STATE OF FLORIDA, APPELLANT,
v.
HARRY LORENZO MCCRAY, APPELLEE
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The court held that the undisputed facts were sufficient to establish a prima facie case, and thus the motion to dismiss should not have been granted.
[1] A motion to dismiss in criminal proceedings should be granted only where the most favorable construction of the facts to the state does not establish a prima facie case o…
[2] If there is any evidence upon which a jury could convict, a motion to dismiss should be denied.
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Join FLexlaw to unlock all legal intelligenceThe state charged the defendant with second-degree murder after he shot his wife. The victim identified her husband as the shooter before surgery, and…
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GRIMES, Judge.
The state appeals the dismissal of its information charging appellee with murder in the second decree.
Appellee’s motion to dismiss, filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), set forth the following facts:
1. Witnesses will place the Defendant and the victim in the parking lot of the New Orleans Baptist School at 12th and Osborne, Tampa, Florida, on the afternoon of April 30, 1979.
2. Witness Barbara Dietrich will state that as she drove up into the parking lot of the school she heard a bang and thought it was a car backfiring.
3. As she began to get out of her car she saw a man and a woman, a black couple, standing in back of a car. 4. The woman started walking away and began to yell, “help me, I’ve been shot.”
5. She then observed the Defendant to stand motionless for approximately two minutes, whereupon he got into his car and drove off.
6. At no time did she see a gun in the hand of either the victim or the Defendant.
7. Witness Patricia Fanning will testify that on that afternoon she was working at the school when she heard what she thought was a car backfire.
8. She then heard somebody yell they had been shot.
9. Upon going outside to investigate, she saw the victim in the courtyard of the school with blood all over the front of her. 10. When the victim asked, “Help me”, the witness went to her and saw that the victim held a pistol in one hand.
11. She took the pistol from the victim and rendered assistance.
12. At no time did the victim make any other statements to either of the above listed witnesses.
13. Detective Reynolds, of the Tampa Police Department, will testify that he went to Tampa General Hospital and interviewed the victim in the emergency room, but that because the victim was about to go into surgery, her only statement was that her husband Harry had shot her. 14. The Defendant, Harry L. McCray, was the husband of the victim.
15. While at Tampa General Hospital, Detective Reynolds received information that the Defendant had surrendered to Major John S. Kirk of the Hillsborough County Sheriff’s Office.
16. Detective Reynolds was subsequently advised by the operating room physician that the victim had survived surgery and was in stable condition.
17. There was no further investigation of the case, other than to determine that the gun taken from the victim had not been fired.
18. Major John Kirk will testify that on that afternoon the Defendant entered his office and stated, “I’ve shot my wife.”
19. Upon determining that the Defendant was not armed, Major Kirk advised the Defendant to make no further statements and to call his lawyer, which he did.
20. Approximately two weeks after the shooting, on May 13, 1979, the victim died in Tampa General Hospital as a result of complications from her wounds.
21. Dr. Lee Miller, Medical Examiner, will testify that there was one bullet wound, entry from the rear and exit from the chest.
The state admitted these facts but added that the victim and appellee had commenced dissolution proceedings.
The motion to dismiss in criminal practice is similar in many respects to the summary judgment in civil proceedings. State v. J. T. S., 373 So. 2d 418 (Fla. 2d DCA 1979). The motion should be granted only where the most favorable construction of the facts to the state does not establish a prima facie case of guilt. State v. Smith, 348 So. 2d 637 (Fla. 2d DCA 1977). If there is any evidence upon which a jury of reasonable men could convict, the court should deny the motion. State v. Hires, 372 So. 2d 183 (Fla. 2d DCA 1979). Proof of state of mind for the purpose of second decree murder is a jury question which cannot be resolved on a motion to dismiss. State v. Rogers, 386 So. 2d 278 (Fla. 2d DCA 1980).
We find the undisputed facts under consideration in this case more than enough to withstand the motion to dismiss. While no one actually saw the shooting, appellee admitted that he had shot his wife, and she said the same thing in a statement which may be admissible at trial as a dying declaration. At least one witness saw appellee in his wife’s presence immediately following the firing of the shot and then saw him leave the scene shortly thereafter. Finally, the gun which was found in the hand of the victim had not been fired, and she had been shot in the back. The undisputed facts made a prima facie case for the state.
REVERSED and REMANDED.
HOBSON, Acting C. J., and CAMPBELL, J., concur.
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In the Interest of S.T.N. v. State, 474 So. 2d 884 (Fla. 4th DCA 1985)…ion to dismiss. State v. Alexander, 406 So. 2d 1192 (Fla. 4th DCA 1981); State v. Stewart, 404 So. 2d 185 (Fla. 5th DCA 1981); State v. Alford, 395 So. 2d 201 (Fla. 4th DCA 1981); State v. Evans, 394 So. 2d 1068 (Fla. 4th DCA 1981); State v. McCray, 387 So. 2d 559 (Fla. 2d DCA 1980); State v. Rogers, 386 So. 2d 278 (Fla. 2d DCA), rev. denied, 392 So. 2d 1378 (Fla.1980); State v. Norris, 384 So. 2d 298 (Fla. 4th DCA 1980); State v. J.T.S., 373 So. 2d [*886] 418 (Fla. 2d DCA 1979); State v. West, 262 So. 2d 457…
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State v. Darrel Jennings, 666 So. 2d 131 (Fla. 1995)…orable construction of the facts to the state does not establish a prima facie case of guilt. If there is any evidence [*134] upon which a jury of reasonable men could convict, the court should deny the motion.” Id. at 637 (quoting State v. McCray, 387 So. 2d 559, 561 (Fla. 2d DCA 1980)) (citations and footnote omitted). Reasonable persons could differ as to whether Jennings possessed the requisite knowledge under section 918.13. Consequently, we cannot say that the evidence is such that a trier of fact woul…
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State v. Horne, 399 So. 2d 49 (Fla. 3d DCA 1981)…erse specifically stated that the officers in question could and would identify the defendant. . E. g., State v. Alford, 395 So. 2d 201, 202 (Fla. 4th DCA 1981); State v. Evans, 394 So. 2d 1068 (Fla. 4th DCA 1981), and cases cited; State v. McCray, 387 So. 2d 559 (Fla. 2d DCA 1980), and cases cited; State v. Lawler, 384 So. 2d 1290 (Fla. 5th DCA 1980). . State v. Wright, 386 So. 2d 583 (Fla. 4th DCA 1980); State v. Fort, 380 So. 2d 534 (Fla. 5th DCA 1980).…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. J. T. S. and G. R. W., 373 So. 2d 418 (Fla. 2d DCA 1979)
- State v. Rogers, 386 So. 2d 278 (Fla. 2d DCA 1980)
- State v. Smith, 348 So. 2d 637 (Fla. 2d DCA 1977)
- State v. Hires, 372 So. 2d 183 (Fla. 2d DCA 1979)