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Chambers v. State4/28/2004
Patrick Antonio Chambers appeals his judgment for aggravated assault with a firearm [FN1] and tampering with evidence [FN2] and his sentence of 26.7 years in prison. We affirm the tampering with evidence conviction. We also affirm Mr. Chambers' conviction for aggravated assault with a firearm. Mr. Chambers was charged with attempted second-degree murder with a firearm and convicted of aggravated assault with a firearm as a lesser-included offense. If this court followed its decisions in Mateo v. State, 757 So.2d 1229 (Fla. 2d DCA 2000), and Wilburn v. State, 840 So.2d 384 (Fla. 2d DCA 2003), we would be obligated to reverse this conviction because aggravated assault is not a category one necessarily included lesser offense of attempted second-degree murder and the information did not contain allegations making this offense a proper category two permissive lesser-included offense. [FN3] See, e.g., State v. Weller, 590 So.2d 923 (Fla.1991) (explaining distinction between necessary and permissive lessers). We conclude, however, that Mateo and Wilburn were issued without adequate consideration of the supreme court's decision in Ray v. State, 403 So.2d 956 (Fla.1981). *698 Under the rule announced in Ray, Mr. Chambers' conviction must be affirmed. We recede from our decisions in Mateo and Wilburn to the extent that they conflict with Ray and this opinion.
FN1. §§ 775.087(c), 784.021, Fla. Stat. (2002).
FN2. § 918.13, Fla. Stat. (2002).
FN3. There is also dicta in Guffey v. State, 837 So.2d 1068 (Fla. 2d DCA 2003), that might support a reversal.
The facts in this case are disputed, and we suspect that no version of the facts presented to the jury was entirely accurate. On March 21, 2002, Mr. Chambers knocked on the door of Marcia Radway's apartment. Ms. Radway claimed that he forced his way in and told her that he had been hired to kill her. He pulled out a gun and threatened her with it. At the time of these events, Richard Blair was in the bathroom of the apartment. Mr. Chambers allegedly threatened him with the gun and told him not to come out of the bathroom. A struggle then occurred between Ms. Radway and Mr. Chambers in which the gun discharged and shot her in the leg. Mr. Chambers then fled from the apartment. At trial, Ms. Radway testified that she had not known Mr. Chambers prior to this burglary. Ms. Radway is Jamaican and when the police first arrived at the scene of this crime, she told them that another Jamaican named "Zeke" had shot her.
Mr. Chambers was arrested following a high-speed car chase during which he threw the gun involved in the shooting out the window of his car. Following his arrest, Mr. Chambers gave a recorded statement to the police in which he claimed that he and a man named "Dray" had gone to the apartment to purchase thirteen pounds of marijuana. Mr. Chambers stated that "Dray" was involved in the purchase of the marijuana in another room, while he merely waited in the living room. Mr. Chambers heard a scuffle in the other room and then a gunshot. Thereafter, the two men fled together. However, no one named "Dray" was ever located. The gunshot alerted neighbors to this event, and no neighbor saw anyone other than Mr. Chambers leave the apartment. It is interesting to note, however, that Mr. Blair left the apartment immediately after the shooting and did not return until the police had already begun their investigation.
The State charged Mr. Chambers with armed burglary of a dwelling, aggravated assault of Richard Blair, attempted second-degree murder of Ms. Radway, and tampering with physical evidence, i.e., the firearm. Mr. Chambers was found not guilty of the burglary and of the assault on Richard Blair. He was found guilty of tampering, but that conviction creates no issue f
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