IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC ROBERT JEFFREY SUIT, Petitioner, vs. STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC ROBERT JEFFREY SUIT, Petitioner, vs. STATE OF FLORIDA, Respondent. RESPONDENT'S BRIEF ON THE MERITS CHARLES J. CRIST, JR Attorney General Tallahassee, Florida CELIA TERENZIO Assistant Attorney General Florida Bar Number KATHERINE Y. MCINTIRE Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, Florida Telephone: (561) Counsel for Respondent

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...2 SUMMARY OF THE ARGUMENT...3 ARGUMENT....4 EVIDENCE PRESENTED AT TRIAL IN THE FORM OF WITNESS DESCRIPTIONS AS WELL AS DEFENDANT S CONDUCT AND INCRIMINATING STATEMENTS INDICATING THAT THE DEVICE USED AS A THREAT WAS A BOMB, WAS SUFFICIENT TO PROVE THAT THE DEFENDANT CARRIED A DEADLY WEAPON IN THE COURSE OF COMMITTING A ROBBERY UNDER SECTION , FLORIDA STATUTES, WHERE THE DEVICE WAS NEVER FOUND CONCLUSION CERTIFICATE OF TYPE SIZE...14 CERTIFICATE OF SERVICE...14 ii

3 TABLE OF AUTHORITIES CASES Blanco v. State, 679 So. 2d 792 (Fla. 3d DCA 1996) Brown v. State, 494 A.2d 999 (Md. Ct. Spec. App. 1984) Couplin v. State, 37 Md. App. 567, 378 A.2d 197 (1977) Dale v. State, 703 So. 2d 1045 (Fla. 1997)... 5 Donaldson v. State, 722 So. 2d 177 (Fla. 1998)... 6 Fletcher v. State, 472 So. 2d 537 (Fla. 5th DCA 1985)... 4 Franklin v. State, 476 So. 2d 1346 (Fla. 1st DCA 1985)... 4 Hall v. State, 503 So. 2d 1370 (Fla. 4th DCA 1987)... 6, 7, 8, 9, 12 Hutchinson v. State, 816 So. 2d 1186 (Fla. 2nd DCA 2002)... 5 I.O. v. State, 412 So. 2d 42 (Fla. 3d DCA 1982) McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978) Mitchell v. State, 493 So. 2d 1058 (Fla. 1st DCA 1986)... 4 Morales v. State, 431 So. 2d 648 (Fla. 3d DCA 1982) Santiago v. State, 900 So. 2d 710 (Fla. 3rd DCA 2005)... 9 Stanley v. State, iii

4 757 So. 2d 1275 (Fla. 4th DCA 2000) Streetman v. State, 455 So. 2d 1080 (Fla. 2d DCA 1980) T.T. v. State, 459 So. 2d 471 (Fla. 1st DCA 1984)... 4, 7 Thompson v. State, 748 So. 2d 394 (Fla. 1st DCA 2000)... 7, 8 Tookes v. State, 842 So. 2d 1063 (Fla. 4th DCA 2003) White v. State, 723 So. 2d 337 (Fla. 5th DCA 1998)... 6, 10 Williams v. State, 651 So. 2d 1242 (Fla. 2d DCA 1995)... 5, 10 OTHER AUTHORITY CITED Rule 9.210, Fla. R.App. P iv

5 PRELIMINARY STATEMENT Petitioner was the defendant and Respondent was the prosecution in the Criminal Division of the Circuit Court of the Nineteenth Judicial Circuit, in and for St. Lucie County, Florida. Petitioner was the Appellant and Respondent was the Appellee in the Fourth District Court of Appeal ( Fourth District ). In this brief, the parties shall be referred to as they appear before this Honorable Court except that Respondent may also be referred to as the State. 1

6 STATEMENT OF THE CASE AND FACTS The State agrees with Petitioner=s statement of the case and facts, however, adds the following: On direct examination, State witness Juanita Simpson testified that Petitioner threatened to blow that bitch up (T 193). Petitioner had a device in his hand and he was making out like it was a bomb (T 194). Since she did not know what a bomb looked like, she took it to be a bomb (T 194). Simpson described the device as black - maybe a dark dark gray, to the point of black and having the little red wire thingy with the light on it (T 194). On cross-examination, Simpson testified that she did not know if the device was a bomb or not, however, she was not going to take any chances (T ). At first, Simpson did not know if the device was a bomb, but the more she thought about it, she didn t think it was (T 221). State witness Earl Garrett testified that Petitioner told him that he had a bomb and was robbing the place (T 253). Garrett observed something with wires on it but could not say what it was (T 254). State witness Detective McGlon testified that all the on the night of the incident, the witnesses stated that the Petitioner told them that the object at issue was a bomb (T 368). They all 2

7 described the object as a box with wires coming out (T 367). SUMMARY OF THE ARGUMENT Petitioner s conviction for robbery with a deadly weapon should be affirmed. The bomb used was vividly described by all witnesses as a box with wires on it. Petitioner s own conduct and words further confirmed that the device used was indeed a bomb. There was no evidence presented that suggested that the bomb was fake or incapable of detonation. As such, the question was properly submitted to the jury and the jury s finding is supported by competent, substantial evidence. 3

8 ARGUMENT EVIDENCE PRESENTED AT TRIAL IN THE FORM OF WITNESS DESCRIPTIONS AS WELL AS DEFENDANT S CONDUCT AND INCRIMINATING STATEMENTS INDICATING THAT THE DEVICE USED AS A THREAT WAS A BOMB, WAS SUFFICIENT TO PROVE THAT THE DEFENDANT CARRIED A DEADLY WEAPON IN THE COURSE OF COMMITTING A ROBBERY UNDER SECTION , FLORIDA STATUTES, WHERE THE DEVICE WAS NEVER FOUND According to Petitioner, the question before this Court is whether the object displayed at the time of the robbery was, in fact, capable of and likely to cause death, great bodily ( deadly weapon ) or capable of causing death or serious bodily injury ( weapon ). See, Petitioner s Brief on the Merits, Page 12. The certified question phrased in Petitioner s fashion, however, is erroneous in that the object at issue was never found, thus making such an evaluation impossible. Such an interpretation would lead to a criminal being rewarded for successfully disposing of a weapon, which is clearly not supported by the law as it stands. See e.g., Mitchell v. State, 493 So.2d 1058 (Fla. 1st DCA 1986)( The fact that a robber disposes of his weapon prior to arrest does not preclude a conclusion beyond a reasonable doubt that a weapon was used to perpetrate the crime ); Franklin v. State, 476 So.2d 1346 (Fla. 1st DCA 1985); Fletcher v. State, 472 So.2d 537 (Fla. 5th DCA 4

9 1985); T.T. v. State, 459 So.2d 471 (Fla. 1st DCA 1984). The real question posed by the Fourth District Court of Appeals, however, is whether the evidence presented in the instant trial was sufficient to prove that Petitioner carried a deadly weapon when he committed the robbery for which he was convicted. The State respectfully submits that the evidence presented in the instant trial was sufficient to prove that Petitioner used a deadly weapon while perpetrating the crime, thus the certified question should be answered in the affirmative. In order to determine whether an instrument is a deadly weapon when that instrument does not meet the statutory definitions of "weapon" or "firearm," the courts use an objective test and look at whether the object was used in such a manner that it could have caused great bodily harm or death. See, Williams v. State, 651 So. 2d 1242 (Fla. 2d DCA 1995); Hutchinson v. State, 816 So.2d 1186 (Fla. 2nd DCA 2002). The subjective intent of the perpetrator, or the subjective fear of the victim, is not determinative of whether the object would qualify as a weapon. Williams, 651 So. 2d at This Honorable Court has held that whether an object is a "deadly weapon i.e., whether it is 'likely to produce death or great bodily harm' is a factual question to be answered by the 5

10 jury in each case." See, Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997). In moving for a judgment of acquittal, a defendant admits not only the facts stated and the evidence adduced by the state, but he also admits, for the purposes of the motion, every conclusion favorable to the state that a fact finder might reasonably infer from the evidence. See White v. State, 723 So.2d 337 (Fla. 5 th DCA 1998). The court should not grant the motion unless the evidence is such that no view which the jury may lawfully take of it favorable to the state can be sustained under the law. Id. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. See, Donaldson v. State, 722 So.2d 177 (Fla. 1998). A distinguishing fact in the instant case is the fact that the bomb used by Petitioner in the robbery was never found. The fact that a robber disposes of his weapon prior to arrest, however, does not preclude a conclusion beyond a reasonable doubt that a weapon was used to perpetrate the crime. See, Hall v. State, 503 So.2d 1370 (Fla. 4 th DCA 1987). In Hall, the defendant was convicted of robbery with a deadly weapon. Id. Hall held up a bank by threatening a teller with three sticks of dynamite held in one hand, and a lit cigarette lighter in the other. Id. The defendant challenged 6

11 his conviction based on his contention that he could not be convicted of an offense involving a deadly weapon since the explosive device was never recovered. Id. The court concluded that the dynamite was vividly and amply described by a witness and the defendant's acts and conduct supported the conclusion that the device was explosive. Id. Further, the court noted that there was no contradictory evidence and no reason to believe that it was anything other than an explosive device. Id. As such, the court found that the trial court correctly denied Hall s motion for judgment of acquittal. Id. The absence of a weapon in the context of a firearm was discussed in T.T. v. State, 459 So.2d 471 (Fla. 1 st DCA 1984). In T.T., both victims testified that appellant held an object which appeared to be a gun when he demanded their money. Id. According to the victims, appellant accosted the first victim, and threatened, "Give me the money or I'll blow your brains out." Id. While being pursued by the second victim, T.T. stopped, turned, pointed the object toward the victim and shouted, "Stop or I'll shoot." Id. T.T. appealed his convictions by arguing that the trial court erroneously used a subjective test to determine that a firearm was used. Id. The district court affirmed T.T. s conviction finding that his threats while in flight was 7

12 additional evidence which proved more than a subjective belief by the victims that the object was a firearm. Id. The First District Court of Appeal again discussed the absence of a weapon in the context of a firearm in Thompson v. State, 748 So.2d 394 (Fla. 1 st DCA 2000). In Thompson, the victim of the robbery testified that the defendant pulled up his sweatshirt and revealed what appeared to be a gun stuck in his trousers. The court found that this evidence was sufficient to submit that charge to the jury and affirmed Thompson s conviction of robbery with a weapon. Id. In the instant case, State witness Simpson described the device in question as a black maybe a dark dark gray device with a little red wire thingy with the light on it that Petitioner was making out like it was a bomb (T 194). Further, Simpson testified that Petitioner stated that he was going to blow that bitch up while holding the device in his hand (T ). State witness Gibson testified that Petitioner commanded him to open the money drawer before he [blew] this place up while holding something with a lot of wires in his hand (T 238). State witness Everett testified that Petitioner told him that he (Petitioner) had a bomb (T 254). When Everett would not leave, Petitioner produced a device that he later described as 8

13 looking like a multi-meter (T 363). Everett described this device as containing a lot of wires and stuff (T 264). The evidence adduced at trial further included Detective McGlon s testimony that on the night of the robbery, all the witnesses indicated that Petitioner told them that the object, which was described as a box with wires coming out, was a bomb (T ). As in Hall, the nature of the evidence introduced the bomb was vividly and amply described by the witnesses and the defendant's acts and conduct supported the conclusion that the device was explosive. See Hall, 503 So.2d at All the witnesses described the device as being a box with wires on it, as well as described the fact that Petitioner s behavior and words suggested that the device was indeed a bomb. Further, there was no contradictory evidence and no reason to believe that the device was anything other than what the Petitioner purported the object to be, namely an explosive device. As such, the jury s finding that Petitioner used a deadly weapon during the robbery was based on competent substantial evidence. See, Santiago v. State, 900 So.2d 710 (Fla. 3 rd DCA 2005)( A jury may conclude that a weapon is either a dangerous or a deadly weapon where the defendant s words or his actions imply that the weapon is dangerous or deadly ). 9

14 According to Petitioner, however, the Fourth District Court of Appeal s finding that there was no evidence that the device was not a bomb cannot be reconciled with the testimony in the record. See, Petitioner s Brief on the Merits, Page 10. In support of this contention, Petitioner cites State witness Garrett s description of the device as looking like a multimeter (T 363), and State witness Simpson s answer during crossexamination that the more she thought about it, she did not think it was a bomb (T 221). This argument is erroneous on several bases. First, State witness Garrett did not testify that the device was a multimeter, but just that it looked like one. Further, as stated earlier, the subjective fear of the victim, (let alone, victim s hindsight) is not determinative of whether the object would qualify as a weapon. See, Williams, 651 So. 2d at Finally, Petitioner ignores that by moving for a judgment of acquittal, Petitioner effectively admits all inferences in the light most favorable to the State, including the critical inference that the device used was indeed, a bomb in that none of the evidence even suggested otherwise. See White. Petitioner heavily relies on Streetman v. State, 455 So. 2d 1080 (Fla. 2d DCA 1980) and Stanley v. State, 757 So. 2d 1275 (Fla. 4th DCA 2000). However, Streetman and Stanley are 10

15 distinguishable from the case at bar. In Streetman and Stanley, the devices used were recovered. The evidence presented at trial showed that the devices used were not "capable of causing death or great bodily harm" based on the fact that the plastic used in Streetman was not capable of detonation and the starter gun used in Stanley was inoperable. Integral factors distinguish the other cases cited by Petitioner, as well. In Blanco v. State, 679 So.2d 792 (Fla. 3d DCA 1996), the weapon used was a soda bottle that was held to the victim s back in order to simulate the muzzle of a firearm. The court found that irregardless of the victim s subjective fear, the state failed to objectively prove that the soda bottle was of a nature or used in a manner likely to cause death or great bodily harm. See also, McCray v. State, 358 So.2d 615 (Fla. 1 st DCA 1978)(weapon used was a cigarette lighter shaped like a gun but was not used or threatened to be used as a weapon). Contrary to Petitioner s assertion, Tookes v. State, 842 So.2d 1063 (Fla. 4 th DCA 2003) addressed the propriety of the trial court s response to a jury question, not the sufficiency of evidence to prove support a conviction for robbery with a firearm. See Tookes, 842 So.2d at 1065 ( We note that the sufficiency of the evidence is not an issue in this appeal. 11

16 Tookes simply argues that the jury may have been misled or confused by the court's answer to its question ). In I.O. v. State, 412 So.2d 42 (Fla. 3d DCA 1982), the victim of an aggravated assault (who was also a military veteran with special weapons training) identified the weapon used as a real gun. I.O. and another witness, however, testified that the weapon was a toy gun. Based on the fact that the court based it s finding on the victim s subjective fear, I.O. s conviction was reversed. Petitioner s reliance on Morales v. State, 431 So.2d 648 (Fla. 3d DCA 1982) is misplaced as well. In Morales, the state stipulated to the fact that the weapon used was a starter gun. The decision therefore focused on the state s failure to prove that the starter gun had the ability to be converted to fire a projectile, in that it will not fire a projectile on its own. The consistent distinguishing factor between the instant case on appeal and the cases cited by Petitioner is the fact that the bomb used by him was never recovered in the case at bar. A similar issue was addressed by the Maryland Court of Appeals in Couplin v. State, 378 A.2d 197 (1977). In Couplin, defendant was convicted of armed robbery. Although the weapon was neither fired nor recovered, the victim described the weapon as a handgun. On appeal, Couplin argued that, in that 12

17 circumstance, the evidence failed to establish that the weapon was capable of firing a projectile by an explosive propellant. The court rejected this argument and explained It is one thing to say that, where the weapon alleged to be a handgun is produced and examined, and the evidence either shows that it is not a handgun or fails to demonstrate adequately that it is, there can be no conviction. It is quite another to extend the sufficiency theory to produce the same result when, despite credible testimony that the assailant used a weapon described as a handgun, a small pistol, the weapon was not subject to empirical examination because it was not recovered. There is no suggestion that a conviction is unobtainable under this latter circumstance. Id. at 203. See also, Brown v. State, 494 A.2d 999 (Md. Ct. Spec. App. 1984). At bar, as in Hall and Couplin, the evidence presented supported the fact that Petitioner used a bomb during the robbery. There was no evidence that the bomb used by Petitioner was either fake or incapable of detonating. As such, the Fourth District Court of Appeal s decision was appropriately in line with the decision in Hall and the certified question should be answered in the affirmative. CONCLUSION Based on the foregoing, the State respectfully requests that the decision of the District Court of Appeal reported at 901 So.2d 986 be approved, and the order entered in the trial court 13

18 be affirmed. Respectfully submitted, CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida CELIA TERENZIO Bureau Chief Assistant Attorney General Florida Bar No KATHERINE Y. MCINTIRE Assistant Attorney General Florida Bar No North Flagler Drive Suite 900 West Palm Beach, FL (561) Counsel for Respondent 14

19 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing "Respondent=s Brief on the Merits" has been furnished to: Robert J. Watson, 3601 S.E. Ocean Blvd., Suite 004, Stuart, FL on. KATHERINE Y. MCINTIRE CERTIFICATE OF TYPE SIZE AND STYLE In accordance with Fla. R.App. P , the undersigned hereby certifies that the instant brief has been prepared with 12 point Courier New Type. KATHERINE Y. MCINTIRE 15