IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA

Transcription

1 E-Copy Received Jan 21, :32 PM IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA LAVORIS JOHNSON, Appellant, v. Case No. 4D STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA ANSWER BRIEF OF APPELLEE PAMELA JO BONDI ATTORNEY GENERAL LAURA FISHER ASSISTANT ATTORNEY GENERAL Florida Bar No Office of the Attorney General 1515 N. Flagler Drive, Ste. 900 West Palm Beach, FL Primary (561) (561) COUNSEL FOR APPELLEE

2 TABLE OF CONTENTS TABLE OF CITATIONS TABLE OF CONTENTS PAGE# ii iii-iv PRELIMINARY STATEMENT 1 STATEMENT OF THE CASE AND FACTS 3 SUMMARY OF ARGUMENT 4 ARGUMENT ISSUE I: THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT S REQUEST FOR AN INDEPENDENT ACT INSTRUCTION 4 ISSUE II: THE TRIAL COURT DID ERR IN DENYING MOTINO FOR JUDGMENT OF AQUITTAL AS THE STATE PRESENTED COMPETENT SUBSTANTIAL EVIDENCE THAT APPELLANT COMMITTED ATTEMPTED ROBBERY 8 ISSUE III: THE TRIAL COURT DID NOT ERR IN GRANTING JURORS REQUEST TO REVIEW VIDEOS WITHOUT CONSULTING JOHNSON 12 ISSUE IV: THE TRIAL COURT DID NOT ERR IN DENYING MOTION FOR JUDGMENT OF AQUITTAL ON SECOND DEGREE MURDER AS TEHRE WAS EVIDENCE OF DEPRAVED MIND. 14 CONCLUSION 18 CERTIFICATE OF SERVICE 18 CERTIFICATE OF COMPLIANCE 18 ii

3 Cases TABLE OF CITATIONS Page Archer v. State, 613 So. 2d 446 (Fla. 1993)... 5 Bradley v. State, 33 So. 3d 664 (Fla. 2010)... 5 Brinson v. State, 18 So. 3d 1075 (Fla. Dist. Ct. App. 2009) Bryant v. State, 412 So. 2d 347 (Fla. 1982)... 5 Charles v. State, 945 So. 2d 579 (Fla. Dist. Ct. App. 2006)... 6 Hodge v. State, 970 So. 2d 923 (Fla. Dist. Ct. App. 2008) Johnston v. State, 863 So. 2d 271 (Fla. 2003)... 9,14 Lewis v. State, 22 So. 3d 753 (Fla. Dist. Ct. App. 2009)... 4 Lovette v. State, 636 So. 2d 1304 (Fla. 1994)... 6 McBride v. State, 7 So. 3d 1146 (Fla. Dist. Ct. App. 2009) McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. Dist. Ct. App. 2006) McGee v. State, 792 So. 2d 624 (Fla. Dist. Ct. App. 2001) Michelson v. State, 805 So. 2d 983 (Fla. Dist. Ct. App. 2001) Mills v. State, 620 So. 2d 1006 (F la. 1993) iii

4 Perriman v. State, 731 So. 2d 1243 (Fla. 1999)... 4 Ray v. State, 755 So. 2d 604 (Fla. 2000)... 6 Santiago v. State, 874 So. 2d 617 (Fla. Dist. Ct. App. 2004) State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) Stephens v. State, 787 So. 2d 747 (Fla. 2001)... 4, 14 Terry v. State, 668 So. 2d 954 (Fla. 1996) Thomas v. State, 531 So. 2d 708 (Fla. 1988) Wagner v. State, 921 So. 2d 38 (Fla. Dist. Ct. App. 2006) Florida Statutes (2013) (1) (2013) (2013)... 9 iv

5 PRELIMINARY STATEMENT This brief will refer to Appellant as such, Defendant, or by proper name, e.g., "Johnson Appellee, the State of Florida, was the prosecution below; the brief will refer to Appellee as such, the prosecution, or the State. Reference to the record on appeal will be by the symbol R; reference to the transcripts will be by the symbol T; reference to any supplemental record or transcripts will be by the symbols SR or ST; and reference to Appellant s brief will be by the symbol IB; all followed by the appropriate volume and page numbers. For example page one of volume two of a third supplemental record would appear as (R. V_ T._ ). STATEMENT OF THE CASE AND FACTS Appellee accepts Appellant s statements of the case and facts, in so far as they are directly supported by appropriate citations to the record, are not argumentative, are relevant to the issues at bar and subject to the additions and clarifications contained below and in the argument section of this answer brief. Appellant s videotaped statement to police was published to the jury. (Vol. 6 T ). Appellant s lifelong friend, Brian Rucker, drove Appellant and Sanchez to the location. (Vol. 6 T. 522). He covered his head and followed Sanchez into the store. (Vol. 6. T ). When the interviewing detective

6 asked Appellant why he would get involved, when he knew what was going to happen, Appellant did not deny his involvement, but answered, it was a stupid thing to do. (V. 6 T Appellant denied knowing Sanchez had a gun, but admitted that he saw Sanchez pull the gun on a customer, force him on the ground and take items from his pockets. (V , 530-1,5). He stood near the customer and touched the items taken from his pockets when Sanchez took his gun off the customer and went to the back of the store. Id. After hearing gun shots, he followed Sanchez as he ran from the back of the store. Id. He and Sanchez saw Rucker s car, got in and fled. (V. 6 T. 524). Amis El Manlouk testified that he was in his car waiting for another store to open when he saw two men walk toward Amigo s, masking themselves. (Vol. 6 T. 460). The first man was carrying a silver revolver. Id. The men were a foot away from each other as they entered the store. Id. Less than 20 seconds later, both men ran out of the store. Id. Miguel Quiroz testified he was shopping at Amigos when a man put a gun to his head and demanded money. (V. 5 T ). He was forced to the ground and $600 American Dollars were taken from his wallet, but his Mexican money was not taken. Id. Mohammad Alam, the owner Amigo s convenience store, testified that his store has four visible surveillance cameras and that Appellant had been a regular customer. (V. 6 T ). 2

7 SUMMARY OF ARGUMENT ISSUE I: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT S REQUEST FOR THE INDEPENDENT ACT INSTRUCTION. THERE WAS SUFFICIENT EVIDENCE PROVING APPELLANT PARTICIPATED IN THE ATTEMPTED ROBBERY AND THAT THE SHOOTING OF THE STORE CLERK WAS A REASONABLY FORESEEABLE CONSEQUENCE. ISSUE II: THE TRIAL COURT DID ERR IN DENYING APPELLANT S MOTION FOR JUDGMENT OF AQUITTAL. THE STATE PRESENTED COMPETENT SUBSTANTIAL EVIDENCE THAT APPELLANT COMMITTED ATTEMPTED ROBBERY WITH CO-DEFENDANT SANCHEZ. ISSUE III: THE TRIAL COURT DID NOT ERR IN GRANTING JURY S REQUEST TO REVIEW SURVEILLANCE VIDEOTAPES AND THE VIDEPTAPE OF APPELLANT S STATEMENT TO POLICE. APPELLANT WAS ADVISED OF THE REQUEST AND GIVEN THE OPPORTUNITY TO OBJECT BEFORE THE JURY WAS BROUGHT BACK TO THE COURT ROOM TO REVIEW THE VIDEOTAPES. ISSUE IV: APPELLANT FAILED TO PRESERVE THIS CLAIM FOR APPELLATE REVIEW. ON THE MERITS, THE STATE PRESENTED SUBSTANTIAL COMPETENT EVIDENCE SUPPORTING APPELLANTS CONVICTION FOR 2 ND DEGREE FELONY MURDER. 3

8 ARGUMENT ISSUE I: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT S REQUEST FOR THE INDEPENDENT ACT INSTRUCTION. THERE WAS SUFFICIENT EVIDENCE PROVING APPELLANT PARTICIPATED IN THE ATTEMPTED ROBBERY AND THAT THE SHOOTING OF THE STORE CLERK WAS A REASONABLY FORESEEABLE CONSEQUENCE. Standard of Review Appellant courts afford trial courts broad discretion in formulating appropriate jury instructions and will only reverse when the error results in a miscarriage of justice or was likely to confuse or mislead the jury. Lewis v. State, 22 So. 3d 753, 758 (Fla. Dist. Ct. App. 2009). The Florida Supreme Court explained: The Florida Standard Jury Instructions in Criminal Cases were designed to eliminate or minimize juror confusion concerning the applicable law in criminal cases. The instructions were researched and formulated by a committee of experts and then reviewed by this Court in an effort to eliminate imprecision. The charges were designed above all to be accurate and clear and thus to withstand appellate scrutiny. Perriman v. State, 731 So. 2d 1243, 1246 (Fla. 1999). The failure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards. Stephens v. State, 787 So. 2d 747, 755 (Fla. 2001). Thus, [a defendant] has the burden of demonstrating that the trial court abused its discretion in giving standard instructions. Id. at To meet that 4

9 burden, a defendant must show, (1) the requested instruction accurately states the law applicable to the facts of the case; (2) the testimony and other evidence presented support the giving of the instruction; and (3) the instruction was necessary to resolve the issues in the case properly. McConnell v. Union Carbide Corp., 937 So. 2d 148, 153 (Fla. Dist. Ct. App. 2006) (citations omitted). Argument The independent act doctrine only arises when one co-felon, who previously participated in a common plan, does not participate in acts committed by his co-felon, which fall outside of, and are foreign to, the common design of the original collaboration, and it does not apply when death is a foreseeable result of the plan. Bradley v. State, 33 So. 3d 664, 675 (Fla. 2010). See, Archer v. State, 613 So. 2d 446, 448 (Fla. 1993)(holding that the independent act theory is inappropriate when the defendant created the situation and the victim's death was a natural and foreseeable result of forces which the defendant set in motion). The felony murder rule and the law of principles [sic] combine to make a felon liable for the acts of his co-felons. Bryant v. State, 412 So.2d 347, 350 (Fla.1982) For a defendant to be criminally liable for the acts of his co-felons as a consequence of the felony murder rule and the law of principals, 5

10 it is necessary that the lethal act... be in furtherance or prosecution of the common design or unlawful act the parties set out to accomplish ; there must be some causal connection between the homicide and the felony. Bryant, 412 So. 2d at 350. The lethal act will be in furtherance of or causally connected to the original scheme where it assists in escape or the avoidance of immediate detection. See Lovette v. State, 636 So. 2d 1304, 1307 (Fla. 1994) When defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion. Charles v. State, 945 So. 2d 579, 584 (Fla. Dist. Ct. App. 2006) citing to Ray v. State, 755 So. 2d 604, 609 (Fla. 2000). Appellant s videotaped statement to police was published to the jury. (Vol. 6 T ). Appellant s lifelong friend, Brian Rucker, drove Appellant and Sanchez to the location. (Vol. 6 T. 522). He covered his head and followed Sanchez into the store. (Vol. 6. T ). When the interviewing detective asked Appellant why he would get involved, when he knew what was going to happen, Appellant did not deny his involvement, but answered, it was a stupid thing to do. (V. 6 T Appellant denied knowing Sanchez had a gun, but admitted that he saw Sanchez pull the gun on a customer, force him on the ground and take items from his pockets. (V , 530-1,5). He stood near the customer and touched the items taken from his 6

11 pockets when Sanchez took his gun off the customer and went to the back of the store. Id. After hearing gun shots, he followed Sanchez as he ran from the back of the store. Id. He and Sanchez saw Rucker s car, got in and fled. (V. 6 T. 524). Amis El Manlouk testified that he was in his car waiting for another store to open when he saw two men walk toward Amigo s, masking themselves. (Vol. 6 T. 460). The first man was carrying a silver revolver. Id. The men were a foot away from each other as they entered the store. Id. Less than 20 seconds later, both men ran out of the store. Id. Miguel Quiroz testified he was shopping at Amigos when a man put a gun to his head and demanded money. (V. 5 T ). He was forced to the ground and $600 American Dollars were taken from his wallet, but his Mexican money was not taken. Id. Mohammad Alam, the owner Amigo s convenience store, testified that his store has four visible surveillance cameras and that Appellant had been a regular customer. (V. 6 T ). Appellant cites to Charles v. State, 945 So. 2d 579, 584 (Fla. Dist. Ct. App. 2006), wherein this Court held that the trial court should have given the jury the independent act instruction. Charles testified that there was never any plan to rob the victim and that he only agreed to participate in an aggravated assault. Id. Conversely, the trial court in this case, refused the instruction, finding Appellant did participate 7

12 in the attempted robbery and that the shooting of the law clerk was a reasonably foreseeable consequence of the crime. (V. 7. T ). As outlined above, the evidence adduced at trial supports this decision. This case is also entirely distinguishable from McGee v. State, 792 So. 2d 624, 627 (Fla. 4 th DCA 2001), where the evidence presented at trial established that McGee remained in the car during co-defendant s entire confrontation with the victim. Conversely, the evidence adduced at trial established Appellant aided and abetted Sanchez in the attempted robbery of the Amigo convenience store. Harmless Error Should this Court find that the judge should have instructed the jury as requested by the defense, the state argues it was harmless beyond a reasonable doubt, as the instructions as whole were adequate. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). 8

13 ISSUE II: THE TRIAL COURT DID NOT ERR WHEN IT DENIED APPELLANT S MOTION FOR JUDGMENT OF ACQUITTAL. THE STATE PRESENTED COMPETENT SUBSTANTIAL EVIDENCE THAT APPELLANT COMMITTED ATTEMPTED ROBBERY Standard of Review An appellate court applies the de novo standard to review a motion for judgment of acquittal. Johnston v. State, 863 So. 2d 271 (Fla. 2003). In Johnston, 863 So. 2d 271, the Florida Supreme Court reviewed the principles that govern a motion for judgment of acquittal: Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. See Pagan, 830 So. 2d at 803 (citing Donaldson v. State, 722 So. 2d 177 (Fla. 1998); Terry v. State, 668 So. 2d 954, 964 (Fla. 1996)). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could not find the existence of the elements of the crime beyond a reasonable doubt. See Banks v. State, 732 So. 2d 1065 (Fla. 1999). "A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt." Orme v. State, 677 So. 2d 258, 262 (Fla. 1996). Argument Appellant and Co-defendant Sanchez were indicted for Firstdegree felony murder as principals. (R. 2). The indictment alleged that Appellant and Sanchez were engaged in an attempt to perpetrate an armed robbery when Borham Dawla was shot and murdered with a firearm, which was possessed and discharged by Sanchez (1)(a)(2)(d)(2013). Id. The jury returned a 9

14 verdict of second degree murder, a lesser included offense. (R. 182). The State was required to prove (1) Appellant intended for the robbery to be committed and (2) that he assisted Sanchez in the commission of the offense. See McBride v. State, 7 So. 3d 1146, 1148 (Fla. 4 th DCA 2009). There are three essential elements to attempt: (1) a specific intent to commit a particular crime; (2) some actual overt step taken, or some overt act done, to actually commit the crime, and (3) a failure to accomplish the intent. Thomas v. State, 531 So. 2d 708 (Fla. 1988); (1)(2013). The state maintains that it presented competent substantial evidence that Appellant participated in the underlying attempted robbery. Appellant s statement to police demonstrates that he knew co-defendant Sanchez intended to commit a robbery. (Vol. 6 T ). Appellant s lifelong friend, Brian Rucker, drove Appellant and Sanchez to the location. (Vol. 6 T. 522). He covered his head and followed Sanchez into the store. (Vol. 6. T ). When the interviewing detective asked Appellant why he would get involved, when he knew what was going to happen, Appellant did not deny his involvement, but answered, that it was a stupid thing to do. (V. 6 T Appellant denied knowing Sanchez had a gun, but admitted that he saw Sanchez pull a gun 10

15 on a customer, force him on the ground and take items from his pockets. (V , 530-1,5). Appellant stated that he stood near the customer and touched the items taken from his pockets when Sanchez took his gun off the customer and went to the back of the store. Id. After hearing gun shots, he followed Sanchez as he ran from the back of the store. Id. He and Sanchez got into Rucker s car and attempted to flee. (V. 6 T. 524). Amis El Manlouk testified that he was in his car waiting for another store to open when he saw two African American men walk toward Amigo s, masking themselves. (Vol. 6 T. 460). The first man was carrying a silver revolver. Id. The men were a foot away from each other as they entered the store. Id. Less than 20 seconds later, both men ran out of the store. Id. Miguel Quiroz testified he was shopping at Amigos when a man put a gun to his head and demanded money. (V. 5 T ). He was forced to the ground and $600 American Dollars were taken from his wallet, but his Mexican money was not taken. Id. Mohammad Alam, the owner Amigo s convenience store, testified that his store has four visible surveillance cameras and that Appellant had been a regular customer. (V. 6 T ). Based on the foregoing arguments, the state presented competent substantial evidence to prove Appellant s participation in the attempted robbery. This claim must fail. 11

16 ISSUE III: THE TRIAL COURT DID NOT ERR WHEN IT GRANTED THE JURORS REQUEST TO REVIEW VIDEO WITHOUT FIRST CONSULTING APPELLANT. Appellant acknowledges that he did not object to the jury s request to review the videos of his interview and the surveillance video taken at the time of the crime, but argues it was per se reversible error to respond to a jury s request without first consulting him. Because Appellant and counsel were consulted before the videos were played, this claim is meritless. After deliberations commenced, the jury sent out requests for lunch menus and to see the videotapes. The judge, acknowledging that Appellant was not in the room, asked the prosecutor to warm up the video equipment. (Vol 7. T ). When Appellant and counsel returned to the courtroom, the judge advised them that lunch menus had been sent back to the jury in response to a note. (Vol 7 T.664-5) The judge asked for the note back so it could be shown to Appellant. Id. Apparently, after Defense counsel reviewed the note, he asked, do they want to put the order in before they watch the video? Defense counsel agreed with the prosecutor and the judge that the lunch order should be placed before the jury returned to the court room to review the videos. (V. 7 T ). Defense counsel affirmatively stated he had no objection to this procedure. (V. 7. T ). 12

17 The record reflects that Appellant and counsel were present when the jury was brought back into the courtroom and the videotapes played. (Vol. 7 T ). Appellant cites to Mills v. State, 620 So. 2d 1006 (Fla. 1993), arguing it is per se reversible error rule where a trial court responds to a jury's question without giving counsel notice and the opportunity to participate in the discussion of the action to be taken on the jury's request. However, as discussed above, Appellant s counsel did have the opportunity to participate and affirmatively agreed to the procedure before the jury was brought out to review the videos. Under the circumstances of the case at bar, the Mills holding is inapplicable, and therefore, Appellant has not demonstrated any reversible error. 13

18 ISSUE IV: APPELLANT FAILED TO PRESERVE THIS ISSUE FOR APPELLATE REVIEW. THE STATE PRESENTED COMPETENT SUBSTANTIAL EVIDENCE TO SUPPORT APPELLANT S CONVICTION FOR SECOND DEGREE FELONY MURDER. Preservation This claim was not preserved for appeal because defense counsel made a bare bones motion for judgment of acquittal, without any specific argument. To preserve an argument for appeal, it must be asserted as the legal ground for the objection, exception, or motion below. Stephens v State, 787 So. 2d 747,751 (Fla. 2001). Here, Appellant submitted a boilerplate motion for acquittal without making the specific argument he now makes to this Court: that the state failed to prove the depraved mind element of second degree murder. Therefore, this claim is not cognizable in this Court. Should this Court reach the merits, the state maintains that Appellant s conviction for second degree felony murder was supported by sufficient evidence. Standard of Review An appellate court applies the de novo standard to review a motion for judgment of acquittal. Johnston v. State, 863 So. 2d 271 (Fla. 2003). In Johnston, 863 So. 2d 271, the Florida Supreme Court reviewed the principles that govern a motion for judgment of acquittal: Generally, an appellate court will not reverse a conviction that is supported by competent, substantial 14

19 evidence. See Pagan, 830 So. 2d at 803 (citing Donaldson v. State, 722 So. 2d 177 (Fla. 1998); Terry v. State, 668 So. 2d 954, 964 (Fla. 1996)). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could not find the existence of the elements of the crime beyond a reasonable doubt. See Banks v. State, 732 So. 2d 1065 (Fla. 1999). "A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt." Orme v. State, 677 So. 2d 258, 262 (Fla. 1996). Merits Appellant s conviction for second degree felony murder was supported by substantial competent evidence. Appellant was charged under the felony murder statute, which provides that a person may be held responsible for the death of another even though he did not form the intent to kill, if he was engaged in the perpetration of any felony. Santiago v. State, 874 So. 2d 617 (Fla. Dist. Ct. App. 2004). The state was required to establish that Appellant had the specific intent to commit a crime, and that he committed an actual overt act toward committing the crime that went beyond mere preparation. Id. The felony murder rule and the law of principals combine to make a felon liable for the acts of his co-felons. Brinson v. State, 18 So. 3d 1075 (Fla. 2d DCA 2009). Thus, the focus is not on the Appellant s participation in the murder, but in the 15

20 underlying felony. Hodge v. State, 970 So. 2d 923 (Fla. Dist. Ct. App. 2008). As discussed in Issues I and II, the state presented competent substantial evidence that Appellant participated in the attempted robbery at the Amigo conveniences store, and that he was in the store when co-defendant, Sanchez, shot and killed the store clerk. There was no break in the chain of circumstances that begins with the attempted robbery and ending with the murder of the store clerk. See Wagner v. State, 921 So. 2d 38 (Fla. Dist. Ct. App. 2006). As discussed in Issue I and II above, Appellant s childhood friend, Brian Rucker, drove Appellant and co-defendant Sanchez to the location. Appellant masked himself, followed Sanchez into the store, stood near the customer who had been forced to lay face down on the ground, while Sanchez went to the back of the store. After Appellant heard shots fired, he followed co-defendant out of the store, learned that Sanchez shot the store clerk, and got back in Rucker s car and attempted to flee. Therefore, Appellant s claim that that state s evidence was insufficient, must fail. Appellant s relies on Michelson v. State, 805 So. 2d 983, 984 (Fla. 4 th DCA 2001), wherein this Court held there was insufficient evidence to prove second degree felony murder. The case at bar, is distinguishable and therefore it does not support his argument. The day after Michelson escaped from 16

21 prison, he and another escaped convict were driving toward Fort Lauderdale, when he realized a police car was following. Id. Michelson panicked, ran two lights, and within seconds, crashed into a vehicle, killing the driver. Id. Judge Gross noted in his special concurring opinion, that at the time of the death, Michelson was no longer engaged in the perpetration of an escape within the meaning of the felony murder statute. Id. at 986. As discussed in Issue I and II, above, the state present competent substantial evidence that Appellant fully participated in the attempted robbery, an enumerated felony, under Section, (2), Florida Statutes (2013). Therefore his convictism for second degree felony murder should be affirmed by this Court. 17

22 CONCLUSION Based on the foregoing discussions, the State respectfully requests this Honorable Court affirm Appellant's conviction and sentence. Respectfully submitted and certified, PAMELA JO BONDI ATTORNEY GENERAL /s/ Laura Fisher By: Laura Fisher ASSISTANT ATTORNEY GENERAL Florida Bar No Attorney for Appellee, State of Fla. Office of the Attorney General 1515 N. Flagler Drive, Ste. 900 West Palm Beach, FL Primary (561) (561) CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to the following by on January 22, 2014, to Melodee A. Smith, Counsel to Appellant, 101 NE 3 rd Avenue, Suite #1500, Fort Lauderdale, Florida at Msmith@SmithCriminalDefense.com. CERTIFICATE OF COMPLIANCE I certify that this brief was computer generated using Courier New 12 point font. /s/ Laura Fisher 18