    Third District Court of Appeal
                            State of Florida

                       Opinion filed August 1, 2018.
      Not final until disposition of timely filed motion for rehearing.

                            ________________

                             No. 3D18-73
                      Lower Tribunal No. 16-10192
                          ________________


                           Jonathan Morris,
                                 Petitioner,

                                     vs.

                         The State of Florida,
                                Respondent.



     A case of original Jurisdiction - Prohibition

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg,
Assistant Public Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Natalia Costea and Magaly
Rodriguez, Assistant Attorneys General, for respondent.


Before SUAREZ, LAGOA and SALTER, JJ.

     SALTER, J.
      Jonathan Morris seeks a writ of prohibition to preclude the circuit court from

trying him on a severed charge of possessing a firearm as a convicted felon. The

firearm charge was count 2 of an information which also charged Morris (in count

1) with second-degree murder with a firearm. Morris had moved for, and been

granted, severance of Count 2. Following a jury trial on the murder charge, Count

1, Morris was acquitted.

      Morris now contends that the severed possession of a firearm charge

involves an issue of fact necessarily determined in the murder trial, such that

collateral estoppel and the constitutional guarantee against double jeopardy bar

prosecution of the firearm charge. We conclude, however, that the petition must

be denied on the basis of a recent decision of the Supreme Court of the United

States, Currier v. Virginia, 138 S. Ct. 2144 (2018) (“Currier”).

      Proceedings in the Circuit Court

      The two charges against Morris have been described. The undisputed facts

relating to the daylight occurrences on May 15, 2016, at a Miami residential

apartment complex are:

     Lamonte Jacobs was shot eleven times in the courtyard of the apartment

       complex under a tree. Spent nine millimeter cartridges, with no detectable

       fingerprints, were found near Jacobs’ body.




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    Morris himself was wounded three times in the neck, back, and leg, but

      survived. After being shot exiting a hallway to the street, Morris was able

      to climb into a car and escape from the scene.        Surveillance cameras

      yielded a videotape of a third man, allegedly Marquis Dunwoody, shooting

      Morris. Spent .40 caliber cartridges were found in the area where those

      shots were fired. The State’s ballistics analyst testified that the bullets

      recovered at the scene were from two different firearms.

    The surveillance camera videotape also showed a fourth man with

      Dunwoody and using a cellphone when apart from Dunwoody at the time

      of the incident.

     The eyewitness testimony, however, provided disputed and contradictory

testimony about the sequence of events and identity of the shooter under the tree

where Jacobs’ body was found when the police arrived.

     The State’s theory at the trial of the murder count was that Morris fired the

shots that killed Jacobs. A resident of a second-floor apartment at the complex

where the shootings took place, Mr. Perez, testified that he heard gunshots and

went to his rear window overlooking the rear courtyard.          He saw a person

shooting a silver-plated handgun with an extended magazine towards a tree (the

tree where Jacobs’ body was later found), but the branches obscured Perez’s view

of the shooter’s target. The shooter was facing away from Perez, and Perez never



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had a clear view of the shooter’s face. As the shots ended, Perez testified that he

saw the shooter tuck the gun into his shorts and flee. Perez thought the shooter

was Morris (whom he had seen on occasion at the apartment complex).

     Perez then ran to a balcony at the front of his apartment to see if he could see

where the shooter was running. When Perez looked down, he saw Morris running

away; he did not see a gun on Morris. Perez then heard a second round of shots,

this time aimed at Morris as Morris ran away. Perez did not see the second

gunman. Perez’s description of the shooter did not match what Morris was

wearing. Perez described the shooter as wearing a white undershirt and short

jeans. Morris was wearing floor-length jeans and a hooded sweater.

     Another eyewitness was at the front of the building. She heard a group of

shots and took cover. As she rose to run away, she heard a second group of shots

being fired at Morris. She saw Morris running away, looking over his shoulder,

and looking scared. She testified that she did not see Morris with a gun.

     Surveillance cameras captured footage of two men other than Morris

approaching the area immediately before the first round of shots. The cameras

also captured one of those two men shooting at Morris.

     A swab of Morris’s hands for gunpowder residue detected one microscopic

particle which, the State’s criminalist testified, was inconsistent with someone

alleged to have fired ten shots in rapid succession.



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     The jury acquitted Morris of the second-degree murder with a firearm, count

1. The defense then moved to dismiss the possession of a firearm charge, count 2.

The court denied the motion because it concluded that the jury could have

acquitted Morris of murder while also finding that he was the man that Perez saw

shooting the handgun. Morris’s petition for prohibition followed.

     Analysis—Pre-Currier

     In Ashe v. Swenson, 397 U.S. 436 (1970), the Supreme Court of the United

States applied collateral estoppel, flowing from the Fifth Amendment guarantee

against double jeopardy, to bar subsequent litigation on another criminal charge

when the issues of ultimate fact on that charge have already been determined in a

valid final judgment. Ashe has been followed in a consistent line of Florida

cases, including Gragg v. State, 429 So. 2d 1204 (Fla. 1983), and State v. Short,

513 So. 2d 679 (Fla. 2d DCA 1987).

     Collateral estoppel may be employed to bar prosecution or
     argumentation of facts necessarily established in a prior proceeding,
     or it may be utilized to bar subsequent prosecution where one of the
     facts necessarily determined in the former trial is an essential element
     of the crime presently charged. A necessarily established fact has
     been held to be one which has been resolved in favor of the defendant
     at the prior trial and was essential to the conviction in said case.

State v. Strong, 593 So. 2d 1065, 1067 (Fla. 4th DCA 1992).

     Collateral estoppel was applied to grant prohibition by this Court in Morris

v. State, 869 So. 2d 1264 (Fla. 3d DCA 2004).1 Morris held that the defendant’s



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    first trial disposed of the firearm possession issue. The defendant was charged

    with armed robbery, grand theft, attempted armed robbery and possession of a

    firearm by a convicted felon, with the latter charge severed. As in this case, the

    defense was that the defendant was not the perpetrator, based on the differences in

    the appearance of the defendant, the victims’ description of the robber, and the

    lack of physical evidence to connect the defendant to the crime. The defendant

    was acquitted of the armed robbery charge.

         In granting prohibition to prevent a trial on the firearm possession charge,

    this Court concluded that collateral estoppel barred the trial on possession

    because the only issue at the first trial was whether an armed defendant had

    robbed the victims. Because the jury found that the defendant was not the robber,

    the second prosecution – based on the claim that the defendant possessed a

    firearm during the very same armed robbery of which he was acquitted – was

    barred. Id. at 1265.

         In Jones v. State, 120 So. 3d 135 (Fla. 4th DCA 2013), the court granted a

    prohibition petition to preclude a trial for possession of a firearm following an

    acquittal for accessory after the fact to robbery with a firearm and first degree

    murder. There, as here, there was only one witness whose testimony placed the

    defendant at the scene.    The court concluded that by its acquittal, the jury

1 That case also involved the pending trial of a severed count for possession
of a firearm by a convicted felon, but the petitioner was a different Morris.

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“necessarily determined that the testimony of the state's key witness was not

credible as to the events on the date in question.” Id. at 136. Hence, the verdict

in Jones necessarily decided that the defendant did not have a firearm, contrary to

the sole witness’s testimony. Id. at 138.

     Analysis—Post-Currier

     These opinions must be re-examined, however, in light of the United States

Supreme Court decision in Currier.          The analysis in Currier holds that the

defendant’s consent to the severance (including a second trial on the severed

count) obviates any concern or claim that the second trial violates the Double

Jeopardy Clause, receding from Ashe to that extent.

     We directed the parties to file supplemental briefs regarding the impact of

the opinion in Currier, if any, in this case. Morris has candidly and correctly

conceded that “Currier is dispositive as to his Fifth Amendment claim.” He

argues, however, that the second prosecution of the severed charge would violate

his double jeopardy rights under article I, section 9 of the Florida Constitution.

Morris contends that Gragg v. State, 429 So. 2d 1204 (Fla. 1983), “remains

binding law pursuant to Florida’s ‘primacy doctrine,’ which requires state courts

to first look to the Florida Constitution when resolving a claim arising from a

fundamental right.”




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     The State responds that the scope of double jeopardy protection is the same

in both the United States and Florida Constitutions, citing Dunbar v. State, 89 So.

3d 901, 904 n.2 (Fla. 2012). Further, the State argues that Currier appears to

overrule or abrogate previously-controlling Florida Supreme Court precedent

(predicated largely on Ashe), particularly Gragg. The State correctly observes

that “Gragg does not refer or appear to rely on the Florida Constitution.”

     Conclusion

     Based on the record before us and the decision of the Supreme Court of the

United States in Currier, we conclude that Morris’s reliance on Ashe, Gragg, and

the Florida cases that have followed those authorities, is unavailing. Paraphrasing

the majority opinion in Currier and quoted language from the Virginia Court of

Appeals decision in the case, “‘the avoidance of prosecutorial oppression and

overreaching through successive trials’ [has] no application here because the

charges were severed for [in this case, Morris’s] benefit and at his behest.”

Currier, 138 S. Ct at 2149.

     Petition for prohibition denied.




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