McKenney v. State

967 So. 2d 951, 2007 WL 2847888
CourtDistrict Court of Appeal of Florida
DecidedOctober 3, 2007
Docket3D05-871
StatusPublished
Cited by6 cases

This text of 967 So. 2d 951 (McKenney v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKenney v. State, 967 So. 2d 951, 2007 WL 2847888 (Fla. Ct. App. 2007).

Opinion

967 So.2d 951 (2007)

Adrian McKENNEY, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D05-871.

District Court of Appeal of Florida, Third District.

October 3, 2007.
Rehearing Denied November 8, 2007.

*952 Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before COPE, RAMIREZ and SALTER, JJ.

SALTER, J.

Adrian McKenney ("McKenney") appeals from his convictions and sentences for second degree murder with a firearm, *953 attempted voluntary manslaughter with a firearm, and violation of his probation. We affirm the jury's verdict and each of the circuit court's challenged rulings regarding the speedy trial rule, certain comments made by counsel for the State in closing argument, and the use of an AK-47 semiautomatic weapon for demonstrative purposes.

I. Speedy Trial

McKenney was arrested and charged on January 28, 2004 with the second degree murder with a firearm of Deririck Jackson and the attempted second degree murder with a firearm of Lisa Dixon. During March and April, 2004, defense counsel filed three notices of discovery.

On May 10, 2004, defense counsel filed a motion to compel discovery and for sanctions. Two days later the trial court entered an order compelling discovery of certain items by May 21, 2004. The case was set for trial commencing July 12, 2004. On July 7, 2004, the defense served a notice of alibi. Fla. R.Crim. P. 3.200 specifies that such a notice shall be filed at least ten days before trial, rather than the five days provided here. The State advised the trial court that the State would be ready for trial if the defense withdrew the alibi notice, but that it would request a defense-charged continuance if the alibi notice was not withdrawn.

The 175-day period provided by Fla. R.Crim. P. 3.191(a) was to expire July 21, 2007. The trial court charged the continuance jointly to the State and the defense, and the trial ultimately began on December 13, 2004. In the interim, McKenney filed notices of expiration of the speedy trial period on August 26, 2004 and October 27, 2004 and moved for final discharge based on Rule 3.191, but the trial court denied the motion. We review that denial, and the characterization of the continuance as "joint" rather than "State," for abuse of discretion.

Rule 3.191(j)(2) sets forth one of the exceptions to the speedy trial rule— when "the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel." In this case, the accused and his counsel share responsibility for the continuance because they did not file a timely notice of alibi. McKenney waived his right to discharge under the speedy trial rule when he declined to withdraw the untimely notice of alibi and proceed to trial on July 12, 2004 as scheduled. While McKenney argues that the notice of alibi was served late because of the State's discovery violations, McKenney had ample time between May 21, 2004 (the discovery compliance date ordered by the trial court) and July 2, 2004 within which to bring any remaining discovery issues to the trial court's attention. In addition, McKenney did not explain how or why the alleged discovery problems delayed his filing and service of the notice of alibi. The purported alibi witnesses were McKenney's grandmother and uncle, living in Carol City, who would have testified that McKenney was in Carol City at the time of the shooting. This information was elicited by the defense itself and was not dependent on the allegedly-late State discovery (Transcript of July 9, 2004 Hearing at 295-296 [hereinafter "T. at ___"]).

Under those circumstances, it was not an abuse of discretion for the trial court to charge the continuance jointly rather than only to the State. The continuance might not have been granted, or if granted might have been attributed to the State, had McKenney withdrawn the untimely notice of alibi, but he declined to do so. We therefore conclude that the trial court committed no error in characterizing the continuance as a joint continuance and in denying the motion for final discharge. State v. Naveira, 873 So.2d 300, 306 (Fla. *954 2004); Rodriguez v. State, 933 So.2d 1263 (Fla. 3d DCA 2006).

II. State's Closing Argument

McKenney argues that certain comments by the State during its closing argument were prejudicial and improper, and that the trial court erred by denying a defense motion for mistrial after the comments were made.

Throughout the trial, the defense focused on two points—that a large number of persons, perhaps as many as fifty, were at the site of the shootings, and that only one eyewitness was brought forward by the State. Before the trial, McKenney sought and obtained an order in limine precluding the State from presenting to the jury any evidence or comments that "the witnesses in the Liberty City neighborhood do not come forward to the police or are scared to talk to the police, as this opinion testimony is inadmissible and requires the police officer to testify as to what is in a third-person's mind" (R. at 121).

During initial closing argument, defense counsel again focused on the disparity between the number of likely witnesses and the single eyewitness presented by the State. Addressing the testimony of the first police officer to arrive on the scene, defense counsel said:

When he got there he observed approximately fifty people in the area, and the only witness's name, the only name he came up with, someone named Lisa Francis, who is supposed to be Mr. Jackson's sister, who supposed [sic] to be a witness to the case (T. at 664-65).

Defense counsel repeatedly emphasized the fact that the State had only offered the testimony of Ms. Tillman and that none of the other persons observed at the scene had given testimony:

To watch Miss Tillman, this is a one-witness case (T. at 672).
There aren't any witnesses at all who put Miss Tillman there (T. at 675).
[S]he is the only witness to the shooting that occurred (T. at 678).
. . . and how is it that the detective, the original officer who arrived there, said, "there are fifty people in the area." There is not one other witness to this thing or one other witness to at least say that, at least Miss Tillman was there, one other witness who can corroborate anything in this case, whatsoever, there (T. at 678-79).
There are fifteen, twenty people when the shooting took place, fifteen or twenty adults (T. at 681).
Well, there is no other evidence in the case, and there is no other testimony in this case as to who did this (T. at 688-89).

These excerpts are illustrative but are not a complete catalogue of similar statements by the defense during its own closing.

When the prosecutor followed with her own closing argument, she said:

You know, a street crime like this, it is about the worst kind of case for a jury to have to look at. For law enforcement to have to solve. Because the reality of the case involving a street crime, like this, is that the physical evidence, casings left behind, can't tell you who committed the crime. There aren't going to be fingerprints. There is not going to be DNA. The only way to solve a crime like this, is for witnesses to come forward and say what they saw.

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Cite This Page — Counsel Stack

Bluebook (online)
967 So. 2d 951, 2007 WL 2847888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckenney-v-state-fladistctapp-2007.