Opinion
Case No. 5D19-520
06-28-2019
RODGERICK ANGELO SHOULDERS, JR., Petitioner, v. STATE OF FLORIDA, Respondent.
Rodgerick Angelo Shoulders, Jr., Carrabelle, pro se. Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Petition Alleging Ineffectiveness of Appellate Counsel, A Case of Original Jurisdiction. Rodgerick Angelo Shoulders, Jr., Carrabelle, pro se. Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee. COHEN, J.
Rodgerick Angelo Shoulders, Jr. filed a petition alleging ineffective assistance of appellate counsel. We deny the petition in part, grant the petition in part, and order a new appeal limited to the issue regarding the weight of the evidence for the special verdict findings raised in claim three.
Shoulders was indicted for first-degree murder with a firearm (count I); attempted felony murder with a firearm (count II); and two counts of robbery with a firearm (counts III and IV). The crimes allegedly occurred during a drug deal, when Shoulders and an unidentified co-defendant attempted to steal marijuana and other items. Shoulders was convicted of the lesser included offense of second-degree murder on count I and as charged on the remaining counts. The jury made special verdict findings that Shoulders carried, used, and discharged a firearm causing the death of Jacob Almond and great bodily harm to Bryce Phillips.
After the trial court denied Shoulders's motion for a new trial, it sentenced him to life in prison with a twenty-five-year minimum mandatory sentence on count I, a consecutive life sentence with a twenty-five-year minimum mandatory sentence on count II, and concurrent thirty-year sentences with twenty-five-year minimum mandatory sentences on counts III and IV.
Shoulders appealed and raised two issues: (1) the trial court erred by denying his motion to suppress his un-Mirandized statement to police; and (2) the prosecutor's multiple improper comments during closing argument denied him of his constitutional right to due process and a fair trial. This Court affirmed his judgment and sentence. Shoulders v. State, 249 So. 3d 644 (Fla. 5th DCA 2018) (per curiam).
Shoulders subsequently filed this petition, alleging ineffective assistance of appellate counsel for failing to argue that: (1) the trial court improperly instructed the jury during deliberations; (2) he was improperly convicted of a crime not charged; (3) the trial court improperly denied his motion for judgment of acquittal as to first-degree premeditated murder and should have vacated the special findings on counts I through IV; and (4) the trial court utilized the wrong standard when denying his motion for new trial.
In claim one, Shoulders alleged that appellate counsel's failure to argue that the court improperly responded to the jurors' question during deliberation constituted ineffective assistance. The jury asked, "If the defendant is considered principal, but did not personally carry a firearm, can he be found guilty on Count III and IV of robbery. We are referring to the last paragraph of the jury instructions, page 9, where it says, 'If you find that the defendant carried no firearm.'" The court responded, "We have reviewed your question. Please refer to the jury instructions that were read to you and the copies that were provided to you. Specifically, you should consider the instruction on 'principals' and robbery."
"Instructions given by a trial court during jury deliberations are subject to the abuse of discretion standard of review. Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, . . . [meaning] where no reasonable person would take the view adopted by the trial court." Armstrong v. State, 73 So. 3d 155, 173 (Fla. 2011) (quotations and citations omitted). We find that the trial court did not abuse its discretion when it instructed the jury to refer back to the instructions in responding to the question posed. See Perriman v. State, 731 So. 2d 1243, 1246-47 (Fla. 1999) (noting courts' discretion to refer jury to review jury instructions when jury presents question during deliberation). Thus, appellate counsel was not ineffective for failing to raise this claim.
In claim two, Shoulders alleged that appellate counsel was ineffective for failing to argue that he was indicted for attempted felony murder but convicted of attempted first- degree murder. Shoulders argues that he cannot be convicted of a crime for which he was never charged and that the error is fundamental. He correctly asserts that the verdict form contains an error in that it states, "guilty of Attempted First Degree Murder," rather than "Attempted Felony Murder," with which he was charged. However, the jury was properly instructed on the elements of attempted felony murder, and no objection was raised regarding the verdict form. We conclude that the typographical error on the verdict form does not undermine confidence in the outcome of this conviction. See Delvalle v. State, 653 So. 2d 1078, 1078-79 (Fla. 5th DCA 1995) (finding typographical error in verdict form was harmless). Accordingly, Shoulders failed to demonstrate that appellate counsel was ineffective in failing to raise this issue.
In claim three, Shoulders alleged that appellate counsel was ineffective for failing to allege that the court should have granted his motion for judgment of acquittal on the premeditated theory of first-degree murder. Shoulders reasoned that had the court granted an acquittal on the charge, the State would not have been entitled to the instruction on the lesser included charge of second-degree murder because it is not a necessary lesser-included offense of felony murder. He also argued that competent, substantial evidence did not support the jury's special verdict finding that he discharged a firearm.
We find no merit to Shoulders's argument as to premeditation. However, the second part of Shoulders's claim warrants relief. Shoulders asserts that appellate counsel should have argued that the evidence was insufficient to support the special verdict findings. The special verdict forms for each count gave the jury the option to find whether Shoulders personally carried, used, and discharged a firearm resulting in death or great bodily harm; personally carried, used and discharged a firearm; personally carried and used a firearm; or did not use a firearm. For each count, the jury found Shoulders personally carried, used, and discharged a firearm causing great bodily harm or death.
We begin by rejecting the State's argument that the issue was not preserved for appellate review and therefore, appellate counsel was not ineffective for failing to raise the issue. Shoulders's motion for a new trial asserted that the weight of the evidence did not support the jury's special verdict finding, thus preserving the issue for appeal. Cf. Hartzog v. State, 133 So. 3d 570, 572-73 (Fla. 1st DCA 2014) (noting that defendant's motion for new trial preserved argument that weight of evidence did not support two elements of crime of which he was found guilty); Fulword v. State, 29 So. 3d 425, 426 (Fla. 5th DCA 2010) (reviewing denial of motion for new trial where defendant alleged that verdict was against weight of evidence).
At the hearing on the motion for new trial, the State argued:
As far as the special findings, it—there was he—the evidence was presented that the defendants—both defendants possessed firearms. The evidence is clear, and I agree with the defense that there was only one firearm fired. The question is—the jurors are the triers—the deciders of fact. Whether they believe that the defendant was the person that pulled the trigger or whether they don't agree with [the witness] and they believe that, in fact, this defendant was the one as opposed to his accomplice, that's a decision for them.That position was entirely inconsistent with that taken by the State during trial, including in its closing argument, in which the State argued that the unknown co-defendant shot Almond in the back. We reject Shoulders's contention that appellate counsel should have raised the issue as to the jury's finding that he possessed a firearm. However, we find that appellate counsel was ineffective in failing to raise an argument regarding the weight of the evidence that Shoulders either discharged a firearm or discharged a firearm causing great bodily harm. See Sims v. State, 44 So. 3d 1222, 1224-25 (Fla. 5th DCA 2010) (reversing sentence and remanding with instructions where insufficient evidence supported finding that defendant discharged firearm, rather than merely possessed firearm).
In claim four, Shoulders alleged that appellate counsel was ineffective for failing to argue that the court considered the sufficiency of the evidence rather than the weight of the evidence when it denied his motion for a new trial. We find that this argument lacks merit. See Bell v. State, 248 So. 3d 208 (Fla. 1st DCA 2018) (finding no error in similar claim where record did not indicate that trial court applied wrong standard when ruling on motion for new trial). Accordingly, we find that appellate counsel was not ineffective for failing to raise this argument on appeal.
In conclusion, we deny the petition in part, grant the petition in part, and order a new appeal limited to the issue Shoulders raised in claim three regarding the weight of the evidence as to the jury's findings that he personally carried, used, and discharged a firearm causing great bodily harm or death.
PETITION GRANTED in part and DENIED in part; REMANDED with instructions. EVANDER, C.J., and ORFINGER, J., concur.