       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           VOLVICK VASSOR,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D15-3401

                             [ May 16, 2018 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona M. Holmes, Judge; L.T. Case No. 11-019972
CF10A.

   Aubrey Webb, Coral Gables, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   Volvick Vassor appeals his conviction and life sentence for first-degree
murder. The state prosecuted appellant for first-degree murder on dual
theories of premeditation and felony murder, based on allegations that
appellant was a lookout during a residential burglary that resulted in the
shooting death of the homeowner, Nelson Heck. We affirm as to all issues
raised and write to address appellant’s argument that the trial court erred
in giving jury instructions on premeditation because there was insufficient
evidence to support a premeditation theory for first-degree murder.

   Appellant, along with co-defendants Jaquan Jean-Baptiste and Rivky
Tamar, was charged by indictment with first-degree murder for killing
Heck. The state alleged that the defendants acted “with a premeditated
intent to cause the death of Nelson Heck and/or Nelson Heck’s death
occurred as a consequence of and while [the defendants] were engaged in
the commission, or attempted commission of a burglary . . . .”

  The evidence at trial established the following facts. On the evening of
November 15, 2011, the victim’s neighbor, James Keefe, was home when
he heard sounds like gunshots nearby. He walked outside to his driveway,
saw a car drive by, and then noticed the victim’s front door wide open with
the foyer light on. When Keefe walked over to the victim’s house, he saw
the victim lying face up in a pool of blood on the floor of the foyer. He
contacted the Fort Lauderdale police.

    During their investigation, the police learned that another neighbor had
a surveillance system installed outside his residence in an apartment
complex less than a quarter mile from the victim’s house. The neighbor
informed the police that he recorded a video around the time of the
incident. The surveillance video showed two cars pull into the complex’s
parking lot. The video showed two men getting out of one car and entering
the other car. At one point, the interior light in one of the cars was
illuminated, and the neighbor saw the driver putting on gloves. The two
cars then left the area. Less than five minutes later, the video captured
the sound of gunshots.

   Officer Erik Good watched the video multiple times, noting the physical
characteristics and clothing of one occupant, later identified as appellant,
who was wearing Adidas shorts. Officer Good also observed on the video
a Ford Taurus or Fusion and a dark-colored, two-door Nissan Altima.

    Officer Good patrolled the area in search of the vehicles and occupants
he had seen on the surveillance tape. About ninety minutes after the
initial call to police, and about five miles from the victim’s house, Officer
Good stopped a two-door, black Nissan Altima. The driver, appellant,
matched the description of the man wearing Adidas shorts in the video.
The officer handcuffed appellant and transported him to the police station.

    At the station, officers took appellant’s belongings, including his
cellphone, and placed him in an interview room. One officer noticed that
someone named “Gator Tom” was repeatedly calling appellant’s phone, so
the officer wrote down the caller’s name and phone number. The phone
was returned to appellant before his release from jail, and the police used
both video and audio surveillance to monitor the calls he made while he
was alone in the interview room.

   The next day, the police located the Ford Taurus. Christopher
Zetrenne’s sister told the police that her brother had rented the car, which
he had cleaned earlier that day. Zetrenne went to the police station, where
detectives showed him photos from the surveillance video. Zetrenne
admitted that he was the driver of the Ford and that appellant drove the
Altima. Zetrenne denied being involved in the burglary and murder and


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said they were only there to smoke marijuana. The police released him.
Zetrenne later pled to accessory after the fact and received probation.

   After obtaining search warrants, the police searched the Ford and the
Altima, finding the victim’s blood inside both cars. Through cell tower
data, the police obtained records showing numerous calls between
appellant, Jean-Baptiste, Zetrenne, and “Gator Tom”—later identified as
Tamar—on the day before the burglary and homicide. The records further
showed that on the day of the burglary and homicide, there were more
than forty calls between appellant and Zetrenne, and more than twenty
calls between appellant and Tamar. On the day after the burglary and
homicide, there were three calls from appellant to Jean-Baptiste and three
calls from Jean-Baptiste to appellant.

    Appellant and co-defendant Tamar were tried together. Jean-Baptiste
testified that Tamar was the shooter. Jean-Baptiste said that on the night
of the burglary and shooting, Tamar and Zetrenne picked him up in a Ford
Taurus. They drove to a home, where Tamar exited Zetrenne’s vehicle and
walked into the backyard of the home. Around this time, appellant arrived
driving a Nissan Altima. When Tamar returned from the backyard, he was
carrying a black shirt wrapped up in his hand with something inside. He
got into appellant’s Altima. The two vehicles left and met outside another
house. Tamar and appellant got into the Taurus, where Jean-Baptiste and
Zetrenne were already seated. The four men discussed a plan, which
involved appellant and Zetrenne watching for the police while Tamar and
Jean-Baptiste walked up to the door of a targeted home to check for
anyone present before breaking in. Jean-Baptiste and Tamar were to then
remove items from the home and place them in appellant’s and Zetrenne’s
vehicles.

    When they arrived at the victim’s home, Jean-Baptiste and Tamar
exited the Taurus and walked up to the door, while Zetrenne turned the
vehicle around. Appellant drove off. Tamar borrowed Jean-Baptiste’s
phone and called someone to confirm that they were ready before they rang
the victim’s doorbell. When the victim opened the door, Jean-Baptiste
believed Tamar saw that the victim had a gun, because Tamar pushed
Jean-Baptiste toward the victim. The two struggled on the floor and the
victim shot Jean-Baptiste in the hand. Tamar then grabbed the victim
and started hitting him in the head with a gun. As Jean-Baptiste ran from
the home, he turned to see Tamar point a gun and shoot twice. They ran
to the backyard, jumped a fence, and left in Zetrenne’s waiting Taurus.

   The three drove back to Jean-Baptiste’s neighborhood. About two or
three minutes later, appellant arrived.    They discussed what had

                                    3
happened. Tamar told Jean-Baptiste he could not go to the hospital
because they all would be incriminated. Later that night, appellant and
Tamar went to Jean-Baptiste’s home and discussed how police were
everywhere and that they would get the bullet out of Jean-Baptiste’s hand
the following day. The next morning, appellant, Tamar, and Zetrenne
picked up Jean-Baptiste and brought him to an apartment, where they
watched the news about the shooting and used supplies from a drugstore
to remove the bullet from Jean-Baptiste’s hand.

   During the state’s case, the defense attacked Jean-Baptiste’s
credibility, based on his plea agreement for a reduced charge. After the
state rested, defense counsel moved for a judgment of acquittal of first-
degree murder, arguing that the state had failed to introduce sufficient
evidence of premeditation. The trial court denied the motion.

   Appellant took the stand and testified about his background and college
prospects. He said he sold marijuana and was present at the scene only
to handle a marijuana transaction and to give Jean-Baptiste a ride home.
He denied any involvement in the burglary.

   The trial court instructed the jury on first-degree murder, including
both premeditation and felony murder theories. The trial court also
instructed the jury on the law of principals, explaining that if a defendant
helped another person commit or attempt to commit a crime, the
defendant is a principal and must be treated as if he had done all the other
things that the other person did, regardless of whether the defendant was
present or not when the crime is committed or attempted.

   The jury returned a general verdict finding appellant guilty of first-
degree murder. 1

   On appeal, appellant argues that the trial court erred by giving a first-
degree murder instruction on the dual theories of premeditation and felony
murder where there was no evidence to support premeditation.
Specifically, appellant argues that because there is no way to know upon
which alternative ground the jury based its verdict, and because the
evidence was legally insufficient to support a premeditation theory, the
verdict must be set aside.

   “It is well established that a general jury verdict cannot stand where
one of the theories of prosecution is legally inadequate.” Fitzpatrick v.
State, 859 So. 2d 486, 490 (Fla. 2003). Florida courts have reiterated this

1   The jury found co-defendant Tamar, who did not testify, not guilty.

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principle in multiple cases. See id. at 490–91 (reversing the defendant’s
conviction for first-degree murder where the alternative theory of felony
murder based on robbery and burglary was legally insufficient because
entry into the victim’s home was consensual, and there was no evidence
that the defendant surreptitiously remained therein); Shavers v. State, 86
So. 3d 1218, 1222–23 (Fla. 2d DCA 2012) (reversing the defendant’s
general verdict conviction for first-degree murder where the jury may have
relied on a felony murder theory that was legally inadequate because the
jury found the defendant guilty of a lesser-included offense that was not a
qualifying offense for felony murder); Phillips v. State, 100 So. 3d 249, 249–
50 (Fla. 4th DCA 2012) (holding that a jury instruction on felony murder
which set forth a predicate felony of attempted murder was legally invalid,
where attempted murder had not been a predicate felony of felony murder
at the time of the defendant’s offense); see also Valentine v. State, 688 So.
2d 313, 317 (Fla. 1996) (invalidating an attempted first-degree murder
conviction which rested on alternate theories of attempted first-degree
premeditated murder and attempted first-degree felony murder where the
court subsequently held that attempted first-degree felony murder does
not exist in Florida; it was thus a legally unsupportable theory on which
the jury may have relied).

    Appellant argues that this principle should apply to his case because
the state proceeded on two theories of first-degree murder: one which was
supportable (felony murder), and the other which was not (premeditation).
He contends that there was no evidence whatsoever of premeditated
murder, and that the evidence at trial showed that the defendants were
surprised when the victim answered the door. Appellant’s case, however,
is distinguishable from those cases where the general verdict was reversed
because one of the alternative theories was legally inadequate.

   Appellant relies on Mackerley v. State, 777 So. 2d 969 (Fla. 2001), to
argue that the trial court erred in giving an instruction on premeditation
as an alternative basis for his first-degree murder conviction.         In
Mackerley, the Florida Supreme Court considered the following certified
question from our court:

      Is it harmless error when a defendant is convicted by general
      verdict for first degree murder on the dual theories of
      premeditation and felony murder where the felony underlying
      the felony murder charge is based on a legally unsupportable
      theory of which the defendant is nevertheless convicted, and
      there is evidence in the record to support the jury’s finding of
      premeditation?


                                      5
777 So. 2d at 969. In answering the certified question in the negative, the
court cited its decision in Delgado v. State, 776 So. 2d 233 (Fla. 2000).

    In Delgado, the defendant was convicted of two counts of first-degree
murder by general verdict based on dual theories of premeditation and
felony murder. 776 So. 2d at 236. The supreme court reversed the
defendant’s first-degree murder convictions and remanded for a new trial,
holding that the underlying felony (burglary) and thus the felony murder
theory were legally inadequate. Id. at 242. The court ruled that the state
relied upon an invalid theory of burglary to support the felony murder
charge. Id. at 236, 241–42. It explained that the “remaining in” language
of the burglary statute applied only to situations where there was
consensual entry and the “remaining in” was done surreptitiously. Id. at
240. 2 The court stated:

      This is not a case where there was merely insufficient evidence
      to support the burglary charge. The jury in this case was
      instructed that a defendant can be found guilty of burglary,
      even if the initial entry was consensual, if the victims later
      withdrew their consent. This theory of burglary was also
      relied on by the State as the underlying felony to support the
      felony murder charge. Pursuant to our analysis in today’s
      opinion, such a theory of burglary (and felony murder) is
      legally inadequate.

Id. at 242.

   Delgado cited Yates v. United States, 354 U.S. 298 (1957), wherein the
United States Supreme Court “held that a conviction under a general
verdict is improper when it rests on multiple bases, one of which is legally
inadequate.” 776 So. 2d at 242.

   The Delgado decision noted the distinction between a legally inadequate
theory and a factually insufficient theory, citing language from Griffin v.
United States, 502 U.S. 46, 112 (1881):

      In Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116
      L.Ed. 2d 371 (1991), the Supreme Court clarified that the
      Yates rule did not apply when the alternative ground was
      legally proper but failed because of insufficient evidence. See

2 After Delgado was decided, the Florida Legislature passed section 810.015,
Florida Statutes (2001), which amended the burglary statute. See Fitzpatrick v.
State, 859 So. 2d 486, 493 (Fla. 2003).

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      also San Martin v. State, 717 So. 2d 462, 470 (Fla. 1998)
      (“While a general guilty verdict must be set aside where the
      conviction may have rested on an unconstitutional ground or
      a legally inadequate theory, reversal is not warranted where
      the general verdict could have rested upon a theory of liability
      without adequate evidentiary support when there was an
      alternative theory of guilt for which the evidence was
      sufficient.”).  The Griffin court explained the distinction
      between a legally inadequate theory and a factually
      insufficient theory:

             Jurors are not generally equipped to determine
             whether a particular theory of conviction
             submitted to them is contrary to law–whether, for
             example, the action in question is protected by
             the Constitution, is time barred, or fails to come
             within the statutory definition of the crime.
             When, therefore, jurors have been left the option
             of relying upon a legally inadequate theory, there
             is no reason to think that their own intelligence
             and expertise will save them from that error.
             Quite the opposite is true, however, when they
             have been left the option of relying upon a factually
             inadequate theory, since jurors are well equipped
             to analyze the evidence, see Duncan v. Louisiana,
             391 U.S. 145, 157[, 88 S.Ct. 1444, 20 L.Ed. 2d
             491] (1968).

776 So. 2d at 241–42 (quoting Griffin, 502 U.S. at 59–60) (emphasis
added).

    Here, unlike in Mackerley and Delgado, neither the premeditation nor
the felony murder theory rested upon a legally inadequate theory. The
trial court in this case did not provide an erroneous definition of
premeditation or an erroneous jury instruction, and the felony murder
theory was not based on a non-qualifying underlying offense or an
erroneously-defined underlying offense. 3 See Griffin, 502 U.S. at 59 (“the


3 The trial court instructed the jury on first-degree premediated murder, based

on the following:

                         MURDER- FIRST DEGREE


                                      7
term ‘legal error’ means a mistake about the law, as opposed to a mistake
concerning the weight or the factual import of the evidence”). Appellant
mainly challenges the sufficiency of the evidence to support premeditation
for first-degree murder. However, as explained above, the relevant inquiry
is not whether the state advanced a factually insufficient alternative
theory, but rather whether the state advanced a legally inadequate theory.
Here, the record does not show that the jury was led to rely upon a legally
inadequate theory.

   As the state correctly argues, Mackerley does not abrogate Florida’s
longstanding principle that a general guilty verdict may be upheld where
the evidence is sufficient to establish either felony murder or
premeditation. In this case, the evidence strongly supported first-degree
murder based on the felony murder rule. And although the evidence of
premeditation was weaker, premeditation was not a legally inadequate or
an unconstitutional theory of first-degree murder. Moreover, any possible
error in instructing on both theories would be harmless because the

  There are two ways in which a person may be convicted of first degree murder.
One is known as premediated murder and the other is known as felony murder.

   To prove the crime of First Degree Premediated Murder, the State must prove
the following three elements beyond a reasonable doubt:

   1.   Nelson Heck is dead.

   2.   The death was caused by the criminal act of VOLVICK VASSOR AND/OR
        RIVKY TAMAR.

   3.   There was a premediated killing of Nelson Heck.

   An “act” includes a series of related actions arising from and performed
pursuant to a single design or purpose.

    “Killing with premeditation” is killing after consciously deciding to do so. The
decision must be present in the mind at the time of the killing. The law does not
fix the exact period of time that must pass between the formation of the
premeditated intent to kill and the killing. The period of time must be long
enough to allow reflection by the defendant. The premeditated intent to kill must
be formed before the killing.

    The question of premeditation is a question of fact to be determined by you
from the evidence. It will be sufficient proof of premeditation if the circumstances
of the killing and the conduct of the accused convince you beyond a reasonable
doubt of the existence of premeditation at the time of the killing.


                                         8
evidence supported a conviction based on felony murder. See Crain v.
State, 894 So. 2d 59, 75 n.16 (Fla. 2004) (“Because we determine that the
evidence is sufficient to support a first-degree felony murder conviction,
we decline to directly address Crain’s argument that the evidence is
insufficient to establish first-degree premeditated murder. Any error in
instructing the jury on premeditated murder based on insufficient
evidence of premeditation is necessarily harmless.”); Jones v. State, 748
So. 2d 1012, 1024 (Fla. 1999) (“[E]ven if the evidence does not support
premeditated murder, any error in charging the jury on that theory is
harmless where the evidence supports a conviction for felony murder,
which has also been charged.”). In other words, we need not reach the
issue of the sufficiency of the evidence supporting premeditation because
there was ample evidence supporting the felony murder theory. See Brown
v. State, 644 So. 2d 52, 53 (Fla. 1994).

    In sum, because the state presented two legally adequate grounds for
first-degree murder, premeditation and felony murder, and there was
competent substantial evidence supporting felony murder, the trial court
did not reversibly err in instructing the jury on both theories of first-degree
murder. Any error is necessarily harmless. Accordingly, we affirm
appellant’s conviction and sentence.

   Affirmed.

WARNER and DAMOORGIAN, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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