Morris v. State , 252 So. 3d 383 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed August 1, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-73
Lower Tribunal No. 16-10192
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Jonathan Morris,
Petitioner,
vs.
The State of Florida,
Respondent.
A case of original Jurisdiction - Prohibition
Carlos J. Martinez, Public Defender, and Jonathan Greenberg,
Assistant Public Defender, for petitioner.
Pamela Jo Bondi, Attorney General, and Natalia Costea and Magaly
Rodriguez, Assistant Attorneys General, for respondent.
Before SUAREZ, LAGOA and SALTER, JJ.
SALTER, J.
Jonathan Morris seeks a writ of prohibition to preclude the circuit court from
trying him on a severed charge of possessing a firearm as a convicted felon. The
firearm charge was count 2 of an information which also charged Morris (in count
1) with second-degree murder with a firearm. Morris had moved for, and been
granted, severance of Count 2. Following a jury trial on the murder charge, Count
1, Morris was acquitted.
Morris now contends that the severed possession of a firearm charge
involves an issue of fact necessarily determined in the murder trial, such that
collateral estoppel and the constitutional guarantee against double jeopardy bar
prosecution of the firearm charge. We conclude, however, that the petition must
be denied on the basis of a recent decision of the Supreme Court of the United
States, Currier v. Virginia, 138 S. Ct. 2144 (2018) (“Currier”).
Proceedings in the Circuit Court
The two charges against Morris have been described. The undisputed facts
relating to the daylight occurrences on May 15, 2016, at a Miami residential
apartment complex are:
 Lamonte Jacobs was shot eleven times in the courtyard of the apartment
complex under a tree. Spent nine millimeter cartridges, with no detectable
fingerprints, were found near Jacobs’ body.
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 Morris himself was wounded three times in the neck, back, and leg, but
survived. After being shot exiting a hallway to the street, Morris was able
to climb into a car and escape from the scene. Surveillance cameras
yielded a videotape of a third man, allegedly Marquis Dunwoody, shooting
Morris. Spent .40 caliber cartridges were found in the area where those
shots were fired. The State’s ballistics analyst testified that the bullets
recovered at the scene were from two different firearms.
 The surveillance camera videotape also showed a fourth man with
Dunwoody and using a cellphone when apart from Dunwoody at the time
of the incident.
The eyewitness testimony, however, provided disputed and contradictory
testimony about the sequence of events and identity of the shooter under the tree
where Jacobs’ body was found when the police arrived.
The State’s theory at the trial of the murder count was that Morris fired the
shots that killed Jacobs. A resident of a second-floor apartment at the complex
where the shootings took place, Mr. Perez, testified that he heard gunshots and
went to his rear window overlooking the rear courtyard. He saw a person
shooting a silver-plated handgun with an extended magazine towards a tree (the
tree where Jacobs’ body was later found), but the branches obscured Perez’s view
of the shooter’s target. The shooter was facing away from Perez, and Perez never
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had a clear view of the shooter’s face. As the shots ended, Perez testified that he
saw the shooter tuck the gun into his shorts and flee. Perez thought the shooter
was Morris (whom he had seen on occasion at the apartment complex).
Perez then ran to a balcony at the front of his apartment to see if he could see
where the shooter was running. When Perez looked down, he saw Morris running
away; he did not see a gun on Morris. Perez then heard a second round of shots,
this time aimed at Morris as Morris ran away. Perez did not see the second
gunman. Perez’s description of the shooter did not match what Morris was
wearing. Perez described the shooter as wearing a white undershirt and short
jeans. Morris was wearing floor-length jeans and a hooded sweater.
Another eyewitness was at the front of the building. She heard a group of
shots and took cover. As she rose to run away, she heard a second group of shots
being fired at Morris. She saw Morris running away, looking over his shoulder,
and looking scared. She testified that she did not see Morris with a gun.
Surveillance cameras captured footage of two men other than Morris
approaching the area immediately before the first round of shots. The cameras
also captured one of those two men shooting at Morris.
A swab of Morris’s hands for gunpowder residue detected one microscopic
particle which, the State’s criminalist testified, was inconsistent with someone
alleged to have fired ten shots in rapid succession.
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The jury acquitted Morris of the second-degree murder with a firearm, count
1. The defense then moved to dismiss the possession of a firearm charge, count 2.
The court denied the motion because it concluded that the jury could have
acquitted Morris of murder while also finding that he was the man that Perez saw
shooting the handgun. Morris’s petition for prohibition followed.
Analysis—Pre-Currier
In Ashe v. Swenson, 397 U.S. 436 (1970), the Supreme Court of the United
States applied collateral estoppel, flowing from the Fifth Amendment guarantee
against double jeopardy, to bar subsequent litigation on another criminal charge
when the issues of ultimate fact on that charge have already been determined in a
valid final judgment. Ashe has been followed in a consistent line of Florida
cases, including Gragg v. State, 429 So. 2d 1204 (Fla. 1983), and State v. Short,
513 So. 2d 679 (Fla. 2d DCA 1987).
Collateral estoppel may be employed to bar prosecution or
argumentation of facts necessarily established in a prior proceeding,
or it may be utilized to bar subsequent prosecution where one of the
facts necessarily determined in the former trial is an essential element
of the crime presently charged. A necessarily established fact has
been held to be one which has been resolved in favor of the defendant
at the prior trial and was essential to the conviction in said case.
State v. Strong, 593 So. 2d 1065, 1067 (Fla. 4th DCA 1992).
Collateral estoppel was applied to grant prohibition by this Court in Morris
v. State, 869 So. 2d 1264 (Fla. 3d DCA 2004).1 Morris held that the defendant’s
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first trial disposed of the firearm possession issue. The defendant was charged
with armed robbery, grand theft, attempted armed robbery and possession of a
firearm by a convicted felon, with the latter charge severed. As in this case, the
defense was that the defendant was not the perpetrator, based on the differences in
the appearance of the defendant, the victims’ description of the robber, and the
lack of physical evidence to connect the defendant to the crime. The defendant
was acquitted of the armed robbery charge.
In granting prohibition to prevent a trial on the firearm possession charge,
this Court concluded that collateral estoppel barred the trial on possession
because the only issue at the first trial was whether an armed defendant had
robbed the victims. Because the jury found that the defendant was not the robber,
the second prosecution – based on the claim that the defendant possessed a
firearm during the very same armed robbery of which he was acquitted – was
barred. Id. at 1265.
In Jones v. State, 120 So. 3d 135 (Fla. 4th DCA 2013), the court granted a
prohibition petition to preclude a trial for possession of a firearm following an
acquittal for accessory after the fact to robbery with a firearm and first degree
murder. There, as here, there was only one witness whose testimony placed the
defendant at the scene. The court concluded that by its acquittal, the jury
1 That case also involved the pending trial of a severed count for possession
of a firearm by a convicted felon, but the petitioner was a different Morris.
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“necessarily determined that the testimony of the state's key witness was not
credible as to the events on the date in question.” Id. at 136. Hence, the verdict
in Jones necessarily decided that the defendant did not have a firearm, contrary to
the sole witness’s testimony. Id. at 138.
Analysis—Post-Currier
These opinions must be re-examined, however, in light of the United States
Supreme Court decision in Currier. The analysis in Currier holds that the
defendant’s consent to the severance (including a second trial on the severed
count) obviates any concern or claim that the second trial violates the Double
Jeopardy Clause, receding from Ashe to that extent.
We directed the parties to file supplemental briefs regarding the impact of
the opinion in Currier, if any, in this case. Morris has candidly and correctly
conceded that “Currier is dispositive as to his Fifth Amendment claim.” He
argues, however, that the second prosecution of the severed charge would violate
his double jeopardy rights under article I, section 9 of the Florida Constitution.
Morris contends that Gragg v. State, 429 So. 2d 1204 (Fla. 1983), “remains
binding law pursuant to Florida’s ‘primacy doctrine,’ which requires state courts
to first look to the Florida Constitution when resolving a claim arising from a
fundamental right.”
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The State responds that the scope of double jeopardy protection is the same
in both the United States and Florida Constitutions, citing Dunbar v. State, 89 So.
3d 901, 904 n.2 (Fla. 2012). Further, the State argues that Currier appears to
overrule or abrogate previously-controlling Florida Supreme Court precedent
(predicated largely on Ashe), particularly Gragg. The State correctly observes
that “Gragg does not refer or appear to rely on the Florida Constitution.”
Conclusion
Based on the record before us and the decision of the Supreme Court of the
United States in Currier, we conclude that Morris’s reliance on Ashe, Gragg, and
the Florida cases that have followed those authorities, is unavailing. Paraphrasing
the majority opinion in Currier and quoted language from the Virginia Court of
Appeals decision in the case, “‘the avoidance of prosecutorial oppression and
overreaching through successive trials’ [has] no application here because the
charges were severed for [in this case, Morris’s] benefit and at his behest.”
Currier, 138 S. Ct at 2149.
Petition for prohibition denied.
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