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Date: 11-30-2020
Case Style:
Walter Ramone Ford vs State of Florida
Case Number: 18-4628
Judge: PER CURIAM.
Court: FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Plaintiff's Attorney: Ashley Moody, Attorney General, and Benjamin Louis Hoffman,
Assistant Attorney General
Defendant's Attorney:
OR
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Description:
Milton, FL - Criminal defense lawyer represented defendant Ramone Ford charged with one count of second-degree murder with a firearm, two counts of attempted second-degree murder with a firearm, and one count of discharging a firearm from a vehicle within 1,000 feet of a person.
Ford was one of two gunmen involved in a drive-by shooting
that killed one victim and seriously injured two others. He was
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tried along with two codefendants: Dedric Keandre Davis, the
other gunman; and Kyhem Jalil Johnson, the driver of the car.
Melissa Pocopanni testified that on the night of the shooting,
she loaned her car to Ford and two of his friends, Davis and
Johnson, because they told her they needed it to do something
illegal. She agreed because she expected to share in the proceeds
of whatever activity they had planned. When she met them at the
house of Johnson’s cousin, Ronald Green, she saw Ford in the
garage with a gun in his hands. When they left together, Johnson
drove, Pocopanni was in the rear driver-side seat, Davis was in the
front passenger seat, and Ford was in the rear passenger-side seat.
She testified that they drove to a house where a group of people
were congregating in the backyard and Johnson said, “Yeah, that’s
them.” After circling the block and returning to where the group
was, Ford and Davis pulled up their hoodies and each of them took
out a gun. Pocopanni heard someone in the front seat say, “light
their asses up” right before the shooting, and she partially covered
her head with a towel as the shooting began. She said Ford and
Davis rolled down their windows on the passenger side of the car,
and she heard shots being fired at the group of people in the
backyard who were about fifteen yards away. She described Ford’s
gun, which she also saw on the back seat next to him after the
shooting. They drove to another friend’s house where Pocopanni
left them, and then she drove herself home. When she was arrested
later that night, she told police she believed Ford and Davis shot
at the group because someone had said hurtful things to Davis.
Green testified that he saw Ford and Davis with “a .357, a
Beretta, a .9mm, and a .38” while they were at his house in the
past. He did not see them with guns on the day of shooting, but
they were upset about a Facebook post and one of them talked
about driving down the street where the shooting took place and
“looking for somebody, and seeing if they were there.” Green
testified that after the shooting, Ford and Davis came back to his
house where Davis told Green that “they had pulled up to
Applegate [Street], and they rolled down their windows, and they
shot, and they seen [sic] people falling, and then they drove off.”
Ford, who was in the conversation, did not say anything or dispute
how Davis described the shooting. The next morning, Johnson
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came over to Green’s house and told him that he was driving the
car during the shooting.
Ashley Johns, one of the victims, testified that she saw the car
drive by and then circle back around the block. She saw guns
sticking out of both windows on the passenger side of the car, then
she was shot five times. Jermun Nairn, another victim, testified
that he was shot in the foot right after he saw two windows go
down on the passenger side of the car. Malorie Buehler testified
that she was sitting in the backyard with the group when the car
slowly drove past them and the shooting started. And Quin
Deramus testified that the car drove past them, circled around the
block, then stopped in front of Johns who was about five feet away
from him when the shooting started. He saw two guns sticking out
of the windows on the passenger side of the car.
The State’s firearms expert testified that the bullet taken
from the deceased victim, Thomas Buckhalter, was a “.38 caliber
class bullet, which includes .38 Special, .357 Magnum, and .9mm
Ruger.” One of the bullets recovered from Johns’ leg was a .38
caliber and was more consistent with being a .9mm Ruger bullet.
And because each bullet had different rifling characteristics, he
believed that the bullets were fired from different guns.
Lastly, the detective who interviewed Pocopanni on the night
of the shooting told him that Davis had a revolver and Ford had an
automatic handgun during the shooting. A later search of Ford’s
and Davis’ Facebook accounts uncovered a picture of Davis with a
revolver and Ford with an automatic.
Ford moved for a judgment of acquittal, adopting the
argument made by Johnson’s defense counsel that there was no
evidence that Johnson, who was charged as a principal, had the
intent to participate in the crime. He also argued there was no
evidence that Ford had a gun in his hand or shot a specific person.
The trial court denied Ford’s motion because Pocopanni testified
that Ford and Davis were the ones shooting out of her car’s
windows.
The parties individually reviewed each page of the jury
instructions along with the trial court. Ford and Davis were each
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charged with second-degree murder, while Johnson was charged
as a principal to second-degree murder. Although the instructions
included the “and/or” conjunctive phrase between the
codefendants’ names, Ford did not object to any part of the
instructions and agreed to them as read.
The jury found Ford guilty on all counts. He was sentenced to
concurrent terms of life in prison for the murder and attempted
murder counts, and thirty years in prison for the discharging a
firearm from a vehicle count. This timely appeal follows.
II.
“We review the denial of a motion for judgment of acquittal de
novo; however, all evidence and inferences therefrom are viewed
in a light most favorable to the State.” Williams v. State, 261 So.
3d 1248, 1252 (Fla. 2019). “If, after viewing the evidence in the
light most favorable to the State, a rational trier of fact could find
the existence of the elements of the crime beyond a reasonable
doubt, sufficient evidence exists to sustain a conviction.” Pagan v.
State, 830 So. 2d 792, 803 (Fla. 2002).
Ford argues on appeal that he is entitled to an acquittal
because the proof of his guilt was entirely circumstantial and the
State did not refute every reasonable hypothesis of innocence. We
disagree.
First, Ford did not raise this argument in the trial court.
Instead, Ford adopted the argument of Johnson’s defense counsel
that there was no evidence Johnson had a conscious intent to
participate in the crime. Ford’s counsel also added that no evidence
showed that Ford had a gun in his hand or shot at a specific person.
Because Ford failed to specifically raise the “circumstantial
evidence/reasonable hypothesis argument below, that argument
was not preserved for appeal.” Johnson v. State, 287 So. 3d 673,
676 (Fla. 1st DCA 2019).
In addition, Ford would not be entitled to that standard of
review even if his argument had been properly preserved. The
supreme court has since receded from the special standard of
appellate review previously applied to cases based entirely on
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circumstantial evidence. Bush v. State, 295 So. 3d 179, 200–01
(Fla. 2020). Now, in all cases in which the sufficiency of the
evidence to support a conviction is challenged, the standard is
whether the State presented competent, substantial evidence to
support the verdict. Id.
A. Second-Degree Murder
To convict Ford of second-degree murder, the State had to
prove Ford caused the victim’s death by committing a criminal act
that was imminently dangerous and demonstrated a depraved
mind without regard for human life. See Miranda v. State, 113 So.
3d 51, 54 (Fla. 2d DCA 2013); § 782.04(2), Fla. Stat. (2016);
§ 775.087(2)(a)3., Fla. Stat. (2016).
Viewed in a light most favorable to the State, the evidence was
sufficient to support Ford’s conviction for second-degree murder.
Pocopanni testified that she saw Ford with a gun right before the
shooting. Ford and Davis then rolled down the windows, and she
heard shots being fired. She also saw a gun on the back seat by
Ford after the shooting. Other witnesses testified that passengers
in the front and back on the passenger side of the car fired
weapons. Green testified that Davis later confessed to him that he
and Ford pulled up to the group, rolled down their windows and
started shooting, then saw people falling as they drove off. Ford,
who was part of that conversation, did not dispute what Davis
said.*
The State’s firearm expert testified that the bullet that killed
Buckhalter was the same caliber as the gun Ford possessed.
Although he also believed that the bullets found in Buckhalter and
Johns came from different guns, the jury could have found that
both bullets came from a gun fired by Ford or that the bullet that
killed Buckhalter came from Ford’s gun. The fact that Davis was
* The State argued to the jury, without objection, that Davis’
confession to Green was an adoptive admission of Ford. See
§ 90.803(18)(b), Fla. Stat. (2018) (describing an adoptive admission
as “[a] statement of which the party has manifested an adoption or
belief in its truth”).
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also convicted of the same murder does not render the evidence
insufficient to sustain Ford’s conviction; factually inconsistent
verdicts are permitted in Florida. Brown v. State, 959 So. 2d 218,
221 (Fla. 2007). Even if Ford did not fire the bullet that killed
Buckhalter, the evidence was sufficient to convict him as a
principal to Davis’ shooting of the victim. He concedes this point
on appeal, but argues he was not charged as a principal. But a
defendant need not be charged as a principal to support a
conviction as a principal. State v. Roby, 246 So. 2d 566, 571 (Fla.
1971) (explaining that “it is immaterial whether the indictment or
information alleges that the defendant committed the crime or was
merely aiding or abetting in its commission, so long as the proof
establishes that he was guilty of one of the acts denounced by the
statute”).
Lastly, Ford’s act of shooting into a crowd of people was
imminently dangerous to human life and demonstrated a depraved
mind. See Brown v. State, 243 So. 3d 1037, 1040 (Fla. 1st DCA
2018); Presley v. State, 499 So. 2d 64, 65 (Fla. 1st DCA 1986).
For these reasons, the evidence was sufficient to support
Ford’s conviction for second-degree murder.
B. Attempted Second-Degree Murder
and Discharging a Firearm from a Vehicle
To convict Ford on the two counts of attempted second-degree
murder, the State had to prove that he intentionally committed a
criminal act that would have resulted in the death of Johns and
Nairn but he failed to do so, and the act was imminently dangerous
and demonstrated a depraved mind without regard for human life.
Coicou v. State, 39 So. 3d 237, 241 (Fla. 2010); §§ 782.04(2),
777.04(1), Fla. Stat. (2016). To convict Ford of discharging a
firearm from a vehicle within 1,000 feet of another person, the
State had to prove that he occupied a vehicle and knowingly and
willfully discharged a firearm from that vehicle within 1,000 feet
of any person. § 790.15(2), Fla. Stat. (2016).
For the same reasons discussed above, the evidence is also
sufficient to support Ford’s convictions for both crimes. Even
though Nairn testified that Ford did not shoot at him, other
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evidence suggested he did. Specifically, Pocopanni testified that
Ford had a black gun with a long clip concealed in his clothing, he
rolled down his window, and then she heard shots being fired at
the crowd gathered outside. And the firearms expert testified that
the bullet that wounded Johns’ leg was fired from a gun of the
same caliber as the gun Ford possessed. Johns testified that she
first saw the shooter’s car when it was at a corner about twenty or
forty feet away, and Deramus testified that the car stopped right
in front of Johns when the shooting started. Thus, the trial court
properly denied Ford’s motion for judgment of acquittal. See
Brown, 243 So. 3d at 1040 (reaffirming that conflicting witness
testimony does not entitle a defendant to a judgment of acquittal,
nor can a motion for judgment of acquittal be based on witness
credibility).
III.
In his final issue on appeal, Ford argues that the trial court
committed fundamental error when it used the conjunctive phrase
“and/or” between the names of the defendants in the jury
instructions. We disagree.
The use of “and/or” between codefendants’ names in jury
instructions is error. Garzon v. State, 980 So. 2d 1038, 1045 (Fla.
2008). As a threshold matter, Ford did not object to the use of that
phrase below. Thus, we can reverse only if the error is
fundamental. To be considered fundamental, “the error must reach
down into the validity of the trial itself to the extent that a verdict
of guilt could not have been obtained without the assistance of the
alleged error.” Knight v. State, 286 So. 3d 147, 151 (Fla. 2019)
(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)).
Reviewing courts must look at “the totality of the record to
determine if the ‘and/or’ instruction” meets the “exacting
requirements of fundamental instruction error.” Garzon, 980 So.
2d at 1043.
In Garzon, the supreme court determined that the instruction
did not constitute fundamental error for several reasons. First, the
evidence linking Garzon to the crime was strong. Id. at 1043–44.
The jury was also given an instruction on principals that properly
explained how a defendant could be found guilty based on the acts
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of another. Id. at 1044. Further, the jury was given a “multiple
defendants” instruction that “clearly explained to the jury that its
verdict as to one defendant should not affect its verdict as to
another.” Id. The jury’s acquittal of some codefendants on some
counts showed it knew each defendant was not responsible for the
acts of the others, and the verdict form focused on one defendant
and one crime each. Id. at 1044–45.
Here, the evidence linking Ford to the shooting was strong.
Eyewitnesses testified that two people shot from the passengerside windows of the car. Pocopanni testified that Ford was in the
rear passenger-side seat, he took out a gun that was concealed in
his clothing, and then she heard shots being fired at the group of
people. Another witness testified that Davis confessed he and Ford
committed the shooting, and Ford did not dispute those statements
during that conversation with the witness. The jury was properly
instructed on the law of principals. It also received a “multiple
defendants” instruction, which reinforced that the charges and
evidence against each defendant must be considered separately,
and a guilty verdict for one defendant must not affect the verdict
for another defendant. In addition, the jury specifically found that
Ford actually possessed and discharged a firearm. That finding
demonstrates that the jury did not convict Ford based on the acts
of his codefendants but, instead, on his actual commission of the
crime. Finally, the State never argued that Ford was responsible
for his codefendants’ crimes.
In short, the use of the “and/or” conjunctive phrase in the jury
instructions does not make this case one of the rare cases in which
the interests of justice present a compelling demand for applying
the fundamental error doctrine.
Outcome: AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: