MARCUS JAMAL JERRY v. STATE OF FLORIDA
225 So. 3d 246
| Fla. Dist. Ct. App. | 2017Background
- Early-morning convenience-store robbery: two masked shooters killed two customers, attempted to kill two employees, and stole money; a fourth man acted as getaway driver.
- A witness who had prior acquaintance with Appellant identified him in two photo line-ups and later identified him as the getaway driver.
- Appellant filed a vague notice purporting to "adopt and join" all motions filed by co-defendants; the trial court denied it as non-specific but invited a more precise adoption motion, which was never filed.
- Appellant objected to admission of the line-up photos only on prejudice grounds (tattoo visible), and objected to phone evidence only on grounds different than those raised on appeal.
- Jury convicted Appellant of first-degree murder, attempted first-degree murder, and robbery; jury also found he did not actually possess a firearm or wear a mask, yet convictions were returned on charges alleging those enhancements.
- Appellant appealed, raising four issues: suppression of phone evidence, admissibility/prejudice of photo line-ups, denial of the omnibus adoption motion, and alleged inconsistent verdicts/enhancement error.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Admission of phone data | Phone contents/historical records were improperly admitted | Appellant failed to preserve the specific objection | Not preserved; affirm without reaching merits; preserved for 3.850 ineffective-assistance claim |
| Admissibility/prejudice of photo line-ups | Line-ups were unduly suggestive and photos were unfairly prejudicial (tattoo shown) | Procedure not likely to cause misidentification; probative value outweighed prejudice | Identification/suggestiveness claim unpreserved and meritless; prejudice claim examined and no abuse of discretion found |
| Denial of motion to adopt co-defendants' motions | Trial court erred by denying Appellant's notice adopting all co-defendants' motions | Notice was vague; court reasonably denied it and invited a specific adoption | Affirmed; vague omnibus adoption not proper—court permissibly denied without prejudice |
| Allegedly inconsistent verdicts and sentence enhancements | Convictions inconsistent because jury found no possession/mask yet convicted of offenses "with a firearm/while wearing a mask"; sentencing enhancements improper | Inconsistent verdicts are generally allowed unless an acquittal negates an element; enhancements require actual possession/wearing | Verdicts not legally inconsistent; but sentencing enhancements may have been improper given jury findings—affirmed without prejudice to motions under rules 3.800(a), 3.850, or appellate relief |
Key Cases Cited
- Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) (preservation of appellate arguments requires specific, timely objection)
- Mazza v. State, 25 So. 3d 659 (Fla. 4th DCA 2010) (standard for suggestive-identification challenges)
- Simmons v. State, 42 So. 3d 824 (Fla. 4th DCA 2010) (vague motions should be refiled more precisely)
- Spera v. State, 971 So. 2d 754 (Fla. 2007) (trial court may require specificity for adoption by reference)
- Brown v. State, 959 So. 2d 218 (Fla. 2007) (inconsistent jury verdicts reviewed de novo; generally allowed)
- State v. Powell, 674 So. 2d 731 (Fla. 1996) (framework on inconsistent verdicts)
- State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992) (statutory weapon enhancements require actual possession by defendant)
- Wright v. State, 810 So. 2d 873 (Fla. 2002) (mask-enhancement requires defendant actually wore the mask)