Opinion
Case No. 5D19-970
05-01-2020
Antwan Franswa WILKINS, Appellant, v. STATE of Florida, Appellee.
James S. Purdy, Public Defender, and Roman A. Faizorin, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
James S. Purdy, Public Defender, and Roman A. Faizorin, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
EDWARDS, J.
Antwan Franswa Wilkins appeals his conviction and life sentence imposed following a jury trial in which he was found guilty of first-degree murder with a firearm. Appellant argues on appeal that: (1) his motion for judgment of acquittal and (2) his motion for mistrial should have been granted. We affirm, as the learned trial judge did not abuse his discretion in denying the motion for mistrial, nor did he err in denying what Appellant's trial counsel understood was an unwinnable motion for judgment of acquittal, given the overwhelming evidence that Appellant carefully planned and then carried out the revenge killing of the victim, Robert Borders.
BACKGROUND FACTS
Appellant's girlfriend, Sarah Grajales, testified that on the night of July 4, 2018, Appellant asked her to meet him in downtown Orlando so that she could do a favor for him. Although Grajales knew Appellant was in a relationship with another woman, she and he occasionally dined out and had sex. Appellant asked Grajales to go to the cigar bar where Borders worked, strike up a conversation with him, and convince Borders to meet her outside an Orlando apartment complex. Although Grajales said she did not know what Appellant had in mind, she met Borders and started laying the groundwork for their later rendezvous, just as Appellant requested. The first phase of the plan was executed perfectly.
Grajales and Borders exchanged cellphone numbers and texted each other about meeting up when Borders got off work. Sometime after 2:00 a.m. on July 5th, Borders met Grajales outside the designated apartment complex. The two of them sat in Borders’ parked car where they engaged in conversation. Apropos for a man who worked in a cigar bar, Borders began to roll a marijuana-filled blunt, which he and Grajales were going to smoke. They were relaxed and engaged with each other. Thus, the second phase of Appellant's plan was going off without a hitch.
Suddenly, Grajales saw Appellant approach the car and shoot Borders, where he sat in the driver's seat of his own car. Appellant made a clean getaway. Borders died from the gunshot injuries. Thus, the third phase of the planned killing was accomplished.
Grajales left the scene immediately and tried to eliminate any incriminating data on her cellphone that might tie her to this murder. The police caught up with Grajales, who initially denied knowing who the shooter was; however, she eventually told police she was absolutely certain that it was Appellant. She also initially faced charges as his accomplice, but she later entered into a deal in which she would testify truthfully at trial in return for which the charges against her would be dropped. She claimed that she had never seen Appellant with a gun before that incident and did not know, at the time, why Appellant shot Borders.
Appellant's wife, Sui-Fong Kimberly Wong, was one of two witnesses who testified about why Appellant murdered Borders. Wong said that in 2016, when she and Appellant were just dating, she met Borders, who told her that he wanted to buy some marijuana. According to Wong, she put Borders in touch with Appellant, who had some marijuana for sale. However, rather than going through with a purchase, Borders allegedly robbed Appellant. Two years later, Wong noticed Borders working in the cigar bar. When she shared this information with Appellant, he asked her to try to get her friend to strike up a conversation with Borders and get his phone number. Wong testified that she did just that, and her friend was successful. Wong then pretended to be her friend and texted Borders to try to arrange a meeting. However, Borders became suspicious and would not follow through. Because Appellant's initial plan to use Wong as bait failed, he had to line up Grajales to lure Borders to where Appellant could shoot him. When police contacted Wong, she could not believe that her husband was a murderer, nor did she want to believe that he was flagrantly cheating on her. Eventually, she cooperated with police and testified against Appellant.
In addition to the testimony of Grajales and Wong, the State presented a witness named Ira Lane who was Appellant's cell mate for a period of time and who also promoted himself to Appellant as a jailhouse law clerk. Lane testified that Appellant bragged about killing a young man and explained in some detail the steps he had taken to set everything up. Lane's testimony was very consistent with what Grajales told the jury. Additionally, Lane said that Appellant told him that Borders begged not to be shot. According to Lane, Appellant remarked as he was shooting Borders, "I hope it was worth it," referring to when Borders allegedly ripped off Appellant. Lane testified that he had made no deal with the State in return for his testimony, but he did have an outstanding felony charge for which he had yet to be sentenced.
MOTION FOR JUDGMENT OF ACQUITTAL
After presenting Grajales, Wong, and Lane, together with cause of death and crime scene witness testimony, the State rested its case. Appellant's trial counsel, faced with clear, convincing, and overwhelming evidence that his client had committed a premeditated murder, nevertheless made a motion for judgment of acquittal, saying simply "at this time, the Defense would move for a judgment of acquittal. That the State has failed to establish a prima facie case of first-degree murder." The State responded that, in the light most favorable to it, the evidence had established a prima facie case for first-degree murder. The court denied this motion. After the defense rested, Appellant's trial counsel asked to "renew [his] motion for judgment of acquittal based on the same grounds." The court again denied this motion.
The standard of review we employ regarding a trial court's denial of a motion for judgment of acquittal is de novo. Arnold v. State , 892 So. 2d 1172, 1173 (Fla. 5th DCA 2005). A trial court should not grant such a motion unless "the evidence adduced is such that no view that the jury may lawfully take of it favorable to the State can be sustained under the law. The trial court's denial of such a motion ... will not be reversed ... if there is competent substantial evidence to support the jury's verdict." Id. (citations omitted). Given the evidence adduced at trial, and given that defense trial counsel was obviously aware of the hurdle that had to be, but was not going to be, cleared in this case, it is impossible to conjure up what more counsel could have legitimately argued to the trial court in support of a motion for judgment of acquittal.
However, Appellant's counsel for this appeal, who was not trial counsel, has chosen to ignore the legal standard which governs whether or not a judgment of acquittal should be granted, and instead has treated the Court to what amounts to a jury trial closing argument. Appellant's counsel argues that Grajales’ testimony cannot be relied upon because of her obvious bias against Appellant, who chose to marry another woman and because of her deal to avoid prosecution. Likewise, Appellant argues that Wong's testimony cannot form the basis of his conviction because it is that of a woman scorned by her cheating husband. Finally, Appellant's counsel argues that Lane's testimony is inherently incredible because he is nothing more than a jailhouse snitch and because he may have obtained factual details about the crime from news reports rather than from Appellant.
There are two problems with Appellant's arguments. The first problem is that those arguments laid out above were not advanced below in support of the motion for judgment of acquittal; therefore, they will not be entertained for the first time on appeal. "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Tillman v. State , 471 So. 2d 32, 35 (Fla. 1985). "Limited, boilerplate motions for judgment of acquittal, which are of a technical and pro-forma nature, are inadequate to preserve a sufficiency of evidence claim for appellate review." Freeman v. State , 174 So. 3d 1104, 1104 (Fla. 5th DCA 2015).
The second problem with these arguments is that Appellant asks us to weigh the credibility of the witnesses to determine whether or not a judgment of acquittal should have been granted. If there is competent substantial evidence of each element of the crime and that the defendant was the perpetrator of that crime, the trial court should deny a motion for judgment of acquittal, because it is the province of the jury to determine the weight of the evidence and the credibility of the witnesses. See Bufford v. State , 844 So. 2d 812, 813 (Fla. 5th DCA 2003) ; Davis v. State , 425 So. 2d 654, 655 (Fla. 5th DCA 1983).
Given the evidence adduced at trial, it could not have come as a surprise to anyone that the motion for judgment of acquittal was denied. Nor should it come as a surprise to anyone that we affirm the denial of that motion; it would have been error to have granted it. While we appreciate the enthusiasm with which Appellant's counsel advocates for the client, we note that there was no real factual or legal basis for arguing on appeal that a motion for judgment of acquittal should have been granted in this particular case, nor was there good reason to raise arguments here that were not made below.
MOTION FOR MISTRIAL
The motion for mistrial arose during Lane's testimony, when the State asked him if he had received any threats from other inmates once they learned he was going to testify against Appellant. Defense trial counsel objected, arguing that if Lane said he had been threatened, the jury would think Appellant instigated the threats which would make Appellant look guilty. The trial judge thoughtfully considered the parties’ debate and ruled that the State could elicit a simple yes or no answer to the question, but that Lane would not be allowed to say anything about who made or instigated the threats or the substance of the threats. Defense trial counsel thereupon moved for mistrial, which was denied based upon the judge's observation that the information went to the possible bias or prejudice of this witness. Lane testified that he had received threats and nothing more was made of it then, nor in closing.
"The standard of review is ... abuse of discretion where [the defendant] moved for a mistrial and [the] motion was denied." Panchoo v. State , 185 So. 3d 562, 564 (Fla. 5th DCA 2016) (alterations in original) (quoting Brinson v. State , 153 So. 3d 972, 975 (Fla. 5th DCA 2015) ). "A motion for mistrial should be granted only when the error is deemed so prejudicial that it vitiates the entire trial, depriving the defendant of a fair proceeding." Floyd v. State , 913 So. 2d 564, 576 (Fla. 2005). This isolated comment regarding the fact that Lane had received threats by deciding to testify against Appellant cannot be said to have denied Appellant his right to a fair trial, especially when it is viewed in context against all the other evidence adduced at trial by the State. Thus, we hold that the trial judge did not abuse his discretion in denying the motion for mistrial, and affirm as to that issue.
AFFIRMED.
ORFINGER and LAMBERT, JJ., concur.