Porter v. State

752 So. 2d 673, 2000 WL 126063
CourtDistrict Court of Appeal of Florida
DecidedFebruary 4, 2000
Docket2D98-3251
StatusPublished
Cited by3 cases

This text of 752 So. 2d 673 (Porter 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
Porter v. State, 752 So. 2d 673, 2000 WL 126063 (Fla. Ct. App. 2000).

Opinion

752 So.2d 673 (2000)

James D. PORTER, Appellant,
v.
STATE of Florida, Appellee.

No. 2D98-3251.

District Court of Appeal of Florida, Second District.

February 4, 2000.
Rehearing Denied March 8, 2000.

*674 Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.

CAMPBELL, Acting Chief Judge.

Appellant, James D. Porter, challenges his conviction and sentence for first degree murder on the sole ground that the trial judge erred in failing to grant a motion for judgment of acquittal based on a lack of evidence to sustain a conviction. We agree that the evidence fails to support appellant's conviction and reverse.

Appellant was convicted after his fourth trial for the premeditated first degree murder of his live-in girlfriend, Eve Houghton. Appellant's first two trials ended in hung juries, the third ended in a mistrial, and the fourth resulted in his conviction.

Eve Houghton was shot in the head with a .22 caliber bullet as she sat in a car (belonging to Jamie Blankenburg) with a female friend, Laurie Carr, during a birthday party outside Junior DeLeon's trailer in Bartow. The time of death was stipulated to have been 1:02 a.m. on October 24, 1993. There was testimony that shortly before the shooting, Ms. Houghton was on Jamie Blankenburg's lap in the front passenger seat of his car and they were "hugging a lot." Ms. Carr was supposedly in the driver's seat. Shortly after Blankenburg left the car to get a beer refill, witnesses testified a shot was heard and Ms. Carr ran hysterically from the driver's side, screaming, "[h]e shot her."

No one witnessed the shooting itself, only the fact that Ms. Houghton was struck and killed by a bullet and fell over in the front seat of the car in which she was seated. The bullet entered her head through her right eyebrow in a slightly upward and left direction. The theory of the State was that appellant shot Ms. Houghton with a .22 rifle from a hiding place somewhere outside of and in the vicinity of the car in which she was seated. No one placed appellant at the scene of the shooting at the time of the shooting, although he had had a brief conversation with Ms. Houghton and an altercation with Ms. Carr at the party at DeLeon's trailer several hours prior to Ms. Houghton's death. He was asked to and did leave the party at that time, and no one saw him at the scene of the shooting thereafter. As he was leaving, he reportedly made a remark such as, "[i]f I can't have her, no one can" and/or "I'll be back."

Earlier in the evening, at approximately 9:30 p.m. on October 23, 1993, appellant and Ms. Houghton had an argument on the street in the vicinity of the Driftwood Inn in Bartow. Ms. Houghton sometimes worked at the Driftwood Inn, and appellant was a frequent and well-known patron. During their argument, Bartow Police Officer Ellis came upon the couple. Ms. Houghton advised Ellis that she had just ended her relationship with appellant and "had nothing more to say," although appellant wished to keep talking. Officer Ellis advised appellant and Ms. Houghton to separate and discuss their situation *675 some other time, but not to resolve it "outside on the road."

Appellant then got in his car and left. Ms. Houghton went to the Driftwood Inn, and shortly left with Ms. Carr for the party at DeLeon's trailer. It normally took about eight minutes to drive the 5.2 miles from the Driftwood Inn to DeLeon's trailer.

The bartender that night at the Driftwood Inn, Gail Walton, testified without contradiction that appellant came back to the Driftwood Inn at about 10:30 p.m. on October 23, 1993 and did not leave again except for a few minutes at a time. She also testified that there were two clocks in the bar and that both were kept fifteen minutes fast to assure that the bar closed by 2:00 a.m.

Mary Lou Moyer, the owner of the Driftwood Inn, corroborated the clocks' settings. Ms. Moyer also testified without contradiction that on the evening of the shooting she and Mary Ann Howard had been at the Play Pen, a bar in Mulberry. They testified that they left the Play Pen between 12:20 and 12:45 a.m. for the twenty-minute drive to the Driftwood. Ms. Moyer testified it could have been as late as 1:05 or 1:10 a.m. when they arrived at the Driftwood. When they arrived, appellant was at the Driftwood shooting pool. Ms. Howard corroborated Ms. Moyer and further testified that she observed a Driftwood clock at 1:30 a.m. and that at that time, she and Ms. Moyer had been at the Driftwood for ten to fifteen minutes. After Ms. Houghton was shot at DeLeon's trailer, Sgt. Robert Parnell contacted appellant by telephone at the Driftwood in an effort to determine the victim's identity. Officer Ellis testified that at 2:18 a.m., he was instructed to go to the Driftwood and detain appellant for Polk County Sheriffs Office deputies. Officer Ellis arrived at the Driftwood at 2:54 a.m., and appellant, Ms. Moyer, Ms. Walton and Ms. Howard were present.

When the scene of the shooting was processed for evidence by law enforcement officers, nothing of evidentiary value was found. A metal detector located no shell casings, and there was nothing to indicate the direction from which, or the place from where, the fatal bullet was fired. No evidence was found to indicate anyone's presence in, behind, or close to a row of bushes that was directly in front of the car in which Ms. Houghton was shot. Witnesses believed that the passenger side window of the car was open at the time of the shooting. There was no gunshot damage to the windshield or windows of the car.

Sgt. Parnell testified that he went to the Driftwood to speak to appellant after he was detained by Officer Ellis and informed appellant that Ms. Houghton had been killed. According to both Parnell and Ellis, appellant became upset and cried. Appellant consented to a search of his home and car and agreed to accompany Parnell to a law enforcement facility for an interview. Appellant repeatedly told Parnell that he had argued with Ms. Houghton, told her he was not going to DeLeon's party, went anyway, saw her in a car with another man, got angry and left the party. No evidence was presented that contradicts appellant's story. Law enforcement officers testified that during appellant's interview with them, he admitted owning a 30/30 rifle, a 12-gauge shotgun, some pistols, a compound bow and a .22 caliber rifle that he kept in his bedroom closet. Appellant's interview was not tape-recorded. At trial, appellant denied owning any pistols or a 30/30 rifle, and none were found in the search of his home. He testified that he owned a 20-gauge, not a 12-gauge shotgun, and a 20-gauge was found in his home.

The morning after the shooting, officers searched appellant's home in Bartow where he and Ms. Houghton had been living. During the search, a .22 caliber Marlin-Glenfield Model 70 semi-automatic rifle and separate clip with ten cartridges in it was found in appellant's attic. A box with thirty-eight rounds of .22 caliber ammunition *676 was found on a shelf in appellant's bedroom closet.

There was no effort made to take fingerprints off of the rifle or clip. During his testimony at trial, appellant denied knowing how the rifle got in his attic, testifying that he had left it in his closet. Ms. Houghton's mother, Nancy Barnes and sister, Elaine Foster, both testified as defense witnesses. Ms. Barnes testified that during the week before her death, Ms. Houghton had told her, Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
752 So. 2d 673, 2000 WL 126063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-state-fladistctapp-2000.