208 So. 3d 271
Fla. Dist. Ct. App.2016Background
- Appellant Desmond Kenner was tried twice for second-degree murder with a firearm after Charles Coleman was shot and later died; the first conviction was reversed on instructional grounds.
- No eyewitness to the shooting; Coleman, while dying, identified Kenner as his shooter (dying declaration); family members repeated that declaration at trial.
- Witnesses testified Kenner threatened Coleman after an earlier 2008 altercation in which both were shot; that prior incident was discussed but not linked to who shot whom.
- No physical evidence tied Kenner to the murder weapon; jail calls showed Kenner asked a former girlfriend to lie and provide an alibi for him.
- At the second trial the jury convicted Kenner of second-degree murder and found a firearm use special finding; the second-trial judge sentenced him to life with a 25-year minimum mandatory (first-trial sentence had been 30 years).
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence | Evidence insufficient; conviction relies on dying declaration only | Dying declaration plus threats and other evidence support inference of intent | Denied; evidence legally sufficient to support conviction |
| Motion for mistrial (father’s use of “again”) | Father’s statement implying prior shooting was prejudicial and required mistrial | Inclusion was inadvertent and cured by prompt objection and jury instruction | Denied; no abuse of discretion because curative instruction sufficed |
| Impeachment of dying declarant with felony records | Appellant sought to admit certified judgments to impeach declarant | State stipulated to number of felonies; records unnecessary and prejudicial | Denied as to records; allowed proof of number of felony convictions only |
| Sentencing (vindictiveness and improper factors) | Second, harsher sentence was vindictive and relied on impermissible factors (assertion of innocence, demeanor) | Increased sentence not presumed vindictive (different judge); relied on defendant’s danger and fabrication of alibi | Conviction affirmed but sentence vacated and remanded for resentencing before a different judge due to sentencing court’s consideration of impermissible factors |
Key Cases Cited
- Duckett v. State, 686 So. 2d 662 (Fla. 2d DCA 1996) (defines imminently dangerous act and depraved mind for second-degree murder)
- Jackson v. State, 419 So. 2d 394 (Fla. 4th DCA 1982) (standard for reviewing motions for judgment of acquittal)
- Walker v. State, 707 So. 2d 300 (Fla. 1997) (curative jury instruction can cure prejudicial comments)
- Fulton v. State, 335 So. 2d 280 (Fla. 1976) (limits impeachment with prior convictions to proof of fact of conviction unless witness denies)
- Mathis v. State, 135 So. 3d 484 (Fla. 2d DCA 2014) (improper to admit certified prior judgments and sentences to impeach declarant’s hearsay)
- Kovaleski v. State, 1 So. 3d 254 (Fla. 4th DCA 2009) (presumption of vindictiveness does not apply when a different judge imposes harsher sentence after retrial)
- Holt v. State, 573 So. 2d 284 (Fla. 1990) (defendant has right to maintain innocence; sentencing may not penalize assertion of innocence)
- Torres v. State, 124 So. 3d 439 (Fla. 1st DCA 2013) (vacating sentence when court’s comments could show reliance on impermissible factors)