DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARCUS JAMAL JERRY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-3921

[July 5, 2017]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Charles E. Burton, Judge; L.T. Case No. 

502013CF010976C.

Fredrick R. Susaneck of Levine & Susaneck, P.A., Palm Springs, for 

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, 

Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

In this appeal from convictions and life sentences for two counts of first 

degree murder with a firearm while wearing a mask, two counts of 

attempted first degree murder with a firearm while wearing a mask, and 

one count of robbery with a firearm while wearing a mask, Appellant 

Marcus Jerry raises four issues for our consideration. We hold, without 

further discussion, that Appellant did not properly preserve his first issue 

on appeal, and we affirm without prejudice to Appellant raising his 

attorney’s failure to preserve the arguments made with respect to this 

issue in a 3.850 post-conviction motion alleging ineffective assistance.1 

Otherwise, as discussed herein, we determine that Appellant’s arguments 

on the remaining three issues are without merit, although we 

independently note a problem with Appellant’s sentence separate from the 

issue raised by counsel. Our affirmance on this issue is without prejudice 

for Appellant to raise a post-conviction motion under Florida Rule of 

Criminal Procedure 3.800(a) or another appropriate rule to correct his 

1 We offer no opinion on the merits of such a motion should one be made.
2

sentence.

Background

Early one morning, a convenience store was robbed. One man first 

cased the store to see who was present. After he left, two men, masked 

and armed, entered. Inside, the two masked men shot and killed two 

customers, shot at but missed two employees, and stole money from the 

register. When the two men returned to their vehicle, they drove away.

During law enforcement’s investigation of these crimes, officers located 

the man who was seen on video casing the store. He claimed that there 

were four men involved—two other men were the masked men who entered 

the store, and Appellant was the getaway driver. The first man (“the 

Witness”) then identified Appellant in two photographic line-ups.

Before the eventual severing of Appellant’s case from the cases against 

the two actual shooters, Appellant filed a notice with the court stating that 

he “adopts and joins in any and all previously motions filed on behalf of 

any of the co-defendants in this case to what ever [sic] effect they may have 

on the above named defendant.” The notice failed to specify any particular 

motion or motions Appellant sought to adopt. The trial court treated this 

notice as a motion and denied it without a hearing. The court found that 

the motion was “vague, non-specific and non-descript,” and stated that 

the court “ha[d] no idea” which motions Appellant was attempting to adopt. 

The order did suggest, however, that the court would be receptive to a 

future motion by Appellant to adopt his co-defendants’ motions if specific 

ones were identified by title or docket number. No future motion was ever 

filed.

The last piece of trial evidence relevant on appeal was the introduction 

of the line-up photos used by the Witness to identify Appellant. The latter

objected to these photos only on the basis that the photos were overly 

prejudicial because they revealed a small facial tattoo which Appellant, 

with the court’s permission, had attempted to hide from the jury 

throughout the trial. 

The jury convicted Appellant on all counts. However, it found that 

Appellant did not actually possess a firearm or wear a mask, even while 

determining that he was guilty of the crimes “with a firearm while wearing 

a mask.”

Analysis
3

As noted above, we affirm Appellant’s first issue (as to whether the trial 

court erred by admitting testimony regarding the contents of Appellant’s 

cell phone and/or the historical phone records from Appellant’s provider) 

without discussion, as this issue was not preserved in the trial court 

through a proper and timely objection on the specific legal ground raised 

on appeal. Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010).

Appellant’s second issue on appeal argues that the trial court erred by 

admitting the photo line-ups used by the Witness to identify Appellant. 

We review the trial court’s determination for an abuse of discretion. Mazza

v. State, 25 So. 3d 659, 661 (Fla. 4th DCA 2010). Defendant’s argument 

in his briefs appeared to be that the identification process was unduly 

suggestive. See id. To the extent that this is his argument, we hold both 

that this issue was unpreserved2 and that it is without merit.3 However, 

at oral argument, Appellant’s attorney clarified that his argument was 

solely regarding the prejudicial nature of the photographs. See § 90.403, 

Fla. Stat. (2015). Although this Court was able to locate the small tattoo 

on Appellant’s face after a close examination of the photographs in the 

record, we cannot determine from the trial transcript whether this tattoo 

would have also been visible to the jury when they looked at Appellant’s 

face in the courtroom.4 The record does not clearly demonstrate that the 

trial court abused its discretion in determining that the probative value of 

the line-up photo was not substantially outweighed by the danger of unfair 

prejudice.

Appellant next argues that the trial court reversibly erred by denying 

his motion to adopt all motions filed by his co-defendants. Although he is 

correct that adoption by reference is a well-accepted practice, Appellant’s 

motion in this case was not an adoption by reference so much as it was a 

request for the court to wade through the entire records of multiple cases

searching for anything that might benefit Defendant. Although they arise 

from different circumstances, we adopt here the reasoning of Simmons v. 

State, 42 So. 3d 824 (Fla. 4th DCA 2010), and Spera v. State, 971 So. 2d 

754 (Fla. 2007). In those cases, this Court and the Florida Supreme Court 

2 At trial, Appellant explicitly stated that he was only objecting to the introduction 

of the photographs, not to the introduction of the identification. 3 The Witness testified that he knew Appellant “[p]retty much all his life” and that 

he was in the vehicle with Appellant while the crimes in this case occurred. 

Considering all the circumstances, there was not a “substantial likelihood of 

irreparable misidentification” even assuming the procedure was unnecessarily 

suggestive. Mazza, 25 So. 3d at 661.

4 Defendant wore makeup to cover the tattoo, but the prosecutor said that it was 

still visible. The judge, however, suggested earlier that he could not see the tattoo

even before the makeup was applied.
4

held that the appropriate disposition of a vague motion is to allow for a 

more precise motion to be made. Simmons, 42 So. 3d at 824; Spera, 971 

So. 2d at 725. Here, that is exactly what happened. The trial court, 

justifiably unwilling to shoulder the heavy burden of performing the task 

expected of Appellant’s counsel, denied Appellant’s motion without 

prejudice and invited Appellant to re-file a motion which identified the 

specific motions of his co-defendants he sought to adopt. We affirm the 

trial court’s handling of this matter.

Finally, Appellant argues that his convictions must be reversed because 

the jury was inconsistent in finding him guilty of the charged crimes while 

simultaneously finding that he did not possess a gun or wear a mask. “An 

inconsistent verdicts claim presents a pure question of law and is reviewed 

de novo.” Brown v. State, 959 So. 2d 218, 220 (Fla. 2007). “As a general 

rule, inconsistent jury verdicts are permitted in Florida.” Id. (quoting State 

v. Powell, 674 So. 2d 731, 732 (Fla. 1996)). The only exception to this rule 

is when “an acquittal on one count negates a necessary element for 

conviction on another count.” Id. (quoting Powell, 674 So. 2d at 733). 

Here, because the jury did not acquit Appellant of anything, this exception 

does not apply.

Although Appellant’s argued claim of error regarding his conviction is 

without merit, we recognize that the trial court may have improperly 

classified his attempted murder and robbery charges and/or illegally 

enhanced the sentences for those charges. In State v. Rodriguez, 602 So. 

2d 1270 (Fla. 1992), the Florida Supreme Court held that section 

775.087(1), Florida Statutes, which deals with enhancing a crime when a 

weapon is possessed, requires that the defendant be the actual person to 

possess the weapon. Rodriguez, 602 So. 2d at 1271. In Wright v. State, 

810 So. 2d 873 (Fla. 2002), the court held the same with regard to section 

775.0845, which enhances crimes when a mask is worn. Wright, 810 So. 

2d at 874. Under this line of cases, Appellant’s crimes apparently should 

have been scored without the firearm or mask enhancements because the 

jury found that he did not actually possess a firearm or wear a mask. 

Rodriguez, 602 So. 2d at 1271; Wright, 810 So. 2d at 874; see also Ford v. 

State, 145 So. 3d 202, 203 (Fla. 1st DCA 2014) (applying Rodriguez); 

Juarez v. State, 65 So. 3d 110, 111 (Fla. 4th DCA 2011) (same). As stated, 

however, Appellant has not raised this particular argument to this Court, 

and we are therefore unable to grant him relief at this time. Our affirmance 

on this point is without prejudice to Appellant filing a motion under Florida 

Rule of Criminal Procedure 3.800(a) to correct his sentence, a motion 

under Rule 3.850 alleging ineffective assistance of trial counsel for failing 

to bring this error to the attention of the trial court, or a petition under 

Florida Rule of Appellate Procedure 9.141(d) alleging ineffective assistance 
5

of appellate counsel for failing to raise this issue in this Court.5

Conclusion

We affirm this case in its entirety. Appellant failed to preserve his 

argument that his phone information should be suppressed, and we 

therefore do not reach the merits of that issue. We further conclude that 

the record does not demonstrate the trial court abused its discretion in 

determining that the line-up photograph was not unduly prejudicial and

that the trial court did not err in denying Appellant’s overbroad motion to 

adopt (especially because the trial court expressed a willingness to 

consider a more focused motion). Finally, although we hold that the 

verdicts in this case were not truly inconsistent, we recognize the apparent

problem with the classification/enhancement of Appellant’s crimes and 

affirm on this issue without prejudice to Appellant filing an appropriate 

motion addressing the problem.

Affirmed.

WARNER and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

5 Again, we offer no opinion on the merits of any ineffective assistance claims that 

may be raised.