BERNARD ERIC WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bernard Wright was convicted of carrying a concealed firearm, third-degree murder, and assault with intent to commit murder. The appellate court reversed the murder conviction due to insufficient evidence, but affirmed the other convictions, holding that circumstantial evidence alone was insufficient to prove Wright fired the fatal shot that killed a bystander during a multi-person shooting incident.
The court reversed Wright's third-degree murder conviction, holding that the circumstantial evidence, while consistent with guilt, was not inconsistent with the reasonable hypothesis of innocence that the fatal bullet came from one of the other guns fired during the shooting. The court affirmed convictions for carrying a concealed firearm and assault with intent to commit murder in the third degree.
[1] Circumstantial evidence is insufficient to sustain a conviction for murder if it is not inconsistent with a reasonable hypothesis of the defendant's innocence.
[2] Failure to file a motion for severance constitutes a waiver of the right to severance, absent a showing of clear prejudice.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There was no direct evidence that the latter's death resulted from a shot fired by appellant and the circumstantial evidence to support such, while consistent with appellant's guilt, was not inconsistent with a reasonable hypothesis of his innocence, i. e., that the fatal bullet came from one of the several other guns fired during the melee.”
Establishes the legal standard for circumstantial evidence in murder cases and why the evidence was insufficient here
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Join FLexlaw to unlock all legal intelligenceWright and Lonnie Wilson became involved in an argument during a crap game near Rolle's Bar. Wilson fired two shots at Wright's feet outside the bar. …
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OWEN, Judge.
Appellant was convicted of (1) carrying: a concealed firearm, (2) third degree murder, and (3) assault with intent to commit murder in the third degree. Of the three points raised on this appeal, the first has merit, the second was abandoned at oral argument, and the third is without merit.
Appellant’s first point, and the only one with merit, questions the sufficiency of the evidence to sustain the conyiction for third degree murder. The State’s case aá to this charge was based solely upon circumstantial evidence. Appellant and one Lonnie Wilson a/k/a Lonnie Durham1 were involved in a crap game near Rolle’s Bar when they became involved in an argument. Appellant went outside and Wilson followed firing two shots from a pistol into the ground near appellant’s feet. One thing led to another and in a few minutea a crowd had gathered. Appellant and Wilson each had a gun and started firing at the other. Several persons in the crowd also drew guns and began shooting. A total of twenty to twenty-five shots were fired. When the shooting was all over, Wilson had been wounded and a bystander, one Pop McKenzie, had been shot and killed. There was no direct evidence that the latter’s death resulted from a shot fired by appellant and the circumstantial evidence to support such, while consistent with appellant’s guilt, was not inconsistent with a reasonable hypothesis of his innocence, i. e., that the fatal bullet came from one of the several other guns fired during the melee. For this reason it was error not to grant appellant’s motion for judgment of acquittal on the murder charge and the judgment as to that count is reversed and the sentence thereon vacated.
Appellant’s third point is that the trial court erred in its refusal to grant a severance from the misjoined codefendant, Wilson. The latter made a motion for severance which was denied. On Wilson’s appeal we held that denial of such motion for severance was error and reversed his conviction, remanding for a new trial. Wilson v. State, 298 So. 2d 433 (4th DCA Fla.1974). However, appellant did not make a motion for severance. It has been held in U. S. v. Daniels, 141 U.S.App.D.C. 223, 437 F. 2d 656 (1970), involving a federal rule of criminal procedure corresponding to Rule 3.150 RCrP, that the failure to make such motion amounts to a waiver of the right to a severance and, absent ,a showing of clear prejudice, will not warrant reversal on appeal. We think such a view is sound and adopt it. There are undoubtedly a myriad of reasons why a defendant might choose to waive his right to sever in such a situation and having made such tactical decision, he should not have the same right to reversal and new trial as is accorded the codefendant whose timely motion for severance was denied. See, Wilson v. State, supra. Appellant does not attempt to show, nor does the record bear out, that the court’s failure to sever resulted in clear prejudice to appellant.
The judgment of third degree murder is reversed; the judgment of carrying a concealed firearm and the judgment of assault with intent to commit third degree murder, and the respective sentences thereon, are severally affirmed.
Reversed in part; affirmed in part.
WALDEN, C. J., and CROSS, J., concur. . See, Wilson v. State, 298 So. 2d 433 (4th DCA Fla.1974).
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Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988)…of the tape or severance of the trial; the trial court, however, did not rule on the severance motion, and Herrera did not adopt codefendant Gomez’ renewed motion for severance.3 Johnson v. State, 348 So. 2d 646 (Fla. 3d DCA 1977); Wright v. State, 318 So. 2d 477 (Fla. 4th DCA 1975), cert. denied, 334 So. 2d 609 (Fla.1976). Thus, the issue was not preserved. See State v. Barber, 301 So. 2d 7 (Fla.1974); Snead v. State, 415 So. 2d 887 (Fla. 5th DCA 1982). Even if we were to consider the issue on its merits,…
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Smith v. State, 574 So. 2d 1195 (Fla. 3d DCA 1991)…so [*1197] raised, joined or adopted in any way by Washington, who, to the contrary, made a personal statement that he was satisfied with the result of the jury selection process. Johnson v. State, 348 So. 2d 646 (Fla. 3d DCA 1977); Wright v. State, 318 So. 2d 477 (Fla. 4th DCA 1975), cert. denied, 334 So. 2d 609 (Fla.1976); accord Barnes v. State, 168 Ga.App. 925, 310 S.E. 2d 777 (1983); People v. Foster, 100 A.D.2d 200, 473 N.Y.S.2d 978 (1984), cert. denied, 474 U.S. 857, 106 S.Ct. 166, 88 L.Ed.2d 137 (1985…
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Truluck Herbert Johnson v. State, 348 So. 2d 646 (Fla. 3d DCA 1977)…sted a curative instruction. Counsel for defendant having acted independently of counsel for co-defendant during the proceedings and having failed to expressly adopt the above objection, has thereby waived his objection thereto. See Wright v. State, 318 So. 2d 477 (Fla. 4th DCA 1975). Assuming arguendo that defendant’s counsel had made a timely objection, we do not believe defendant has made reversible error to appear. It is not presumed that the jurors are led astray to wrongful verdicts by impassioned elo…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Daniels, 437 F.2d 656 (D.C. Cir. 1970)
- Jackson v. Louie L. Wainwright, 298 So. 2d 433 (Fla. 4th DCA 1974)
- Wilson v. State, 298 So. 2d 433 (Fla. 4th DCA 1974)