Barnett v. State

• Decision Date: 11 September 2013
• Docket Number: No. 4D11–4325.,4D11–4325.
• Citation: 121 So.3d 643
• Court: Florida District Court of Appeals
• Parties: Leon BARNETT, Appellant, v. STATE of Florida, Appellee.

121 So.3d 643

Leon BARNETT, Appellant,

v.STATE of Florida, Appellee.

No. 4D11–4325.

District Court of Appeal of Florida,

Fourth District.

Sept. 11, 2013.

Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

The propriety of using the conjunctive-disjunctive phrase “and/or” in charging a defendant or instructing a jury has vexed trial and appellate courts since its use was first addressed by the Florida Supreme Court in Cochrane v. Florida East Coast Railway Co., 107 Fla. 431, 145 So. 217 (1932). On the facts of this case, we hold that the use of “and/or” in jury instructions regarding attempted felony murder against two possible victims was not fundamental error and did not create the possibility of a non-unanimous verdict.

Leon Barnett and his brother were charged in one information for a criminal episode involving two victims, M.M. and B.T. The information alleged counts against Barnett separately from his brother. Barnett was charged with attempted felony murder, aggravated battery and robbery with a weapon. Barnett's brother was charged with the same three crimes. As to both brothers, the alleged victim of the attempted felony murder was “B.T. and/or M.M.” and the alleged victim of the aggravated battery and robbery was B.T. Barnett's brother was charged additionally with attempted first-degree murder of M.M.

The brothers were tried together with separate juries.¹ The jury found Barnett guilty “as charged” for attempted felony murder and aggravated battery and a lesser included offense of attempted robbery. The verdict form did not state the name of the victim for any of the counts. On appeal,Barnett raises four issues, only one of which we find merits discussion: whether the conviction for attempted felony murder is fundamentally erroneous because it cannot be determined if the verdict was unanimous.

Factual Background and the Jury Instructions

Barnett was charged for his role in the attempted robbery of B.T. and the shootings of B.T. and M.M. According to M.M.'s testimony adduced at trial, M.M. received a call from B.T. asking for a ride. M.M. drove to where B.T. was located. He saw B.T., Barnett, and Barnett's brother walking toward his car. B.T. had his cell phone in his hand, and he was doing something with it. M.M. pulled up and stopped, and Barnett approached the front passenger window. The front windows on both sides of the car were halfway down. Barnett pulled out a black gun which appeared to be flat like a semiautomatic handgun, pointed the gun at M.M., and told him to put the car in park. Barnett then pointed the gun at B.T. and asked B.T. for his money back. At that point, Barnett was still near the front passenger window, B.T. was by the back passenger door, and Barnett's brother was standing at the front driver's side window. Barnett told B.T. to empty his pockets. M.M. then mumbled “that they weren't going to get away with this.” Barnett's brother told M.M. that he wasn't going to talk that way to his brother, pulled out a silver revolver, and without hesitation, fired two shots into M.M. The first shot hit M.M. in the neck; the second shot was in the back, hitting the spine.² A few seconds later, M.M. then heard several gunshots coming from the right rear of his car. M.M. did not see who fired those shots. After being shot, M.M. did not see where Barnett's brother went. B.T. did not testify, and there were no other eyewitnesses to the shootings.

A witness living in the neighborhood testified that B.T. came to her door after she heard gunshots and said Barnett and his brother “did this to me.” She saw blood on his legs. An officer who arrived at the scene testified that a man identifying himself as B.T. was leaning against a vehicle when he arrived and appeared to have been shot in the leg. B.T. told the officer Barnett's brother shot him.

An officer testified six spent .45 caliber Winchester shell casings were found in the street where the shootings occurred. A firearm examiner testified the casings found on the ground were discharged from the same semiautomatic gun, not from a revolver. He also testified that one of the bullets that struck M.M., which was expelled from M.M. a year after the incident, was .45 caliber, and it was likely fired out of a barrel larger than intended due to the lack of rifling on the outside of the bullet. The spent casings were similar, but different from the bullet that struck M.M. The firearm expert testified it was possible that the bullet that struck M.M. was fired from a revolver.

No witness testified to seeing Barnett fire his gun. There was no evidence that more than two shots were fired at M.M. M.M. testified he saw the revolver that was used to shoot him and Barnett's brother was the one who shot him. The testimony of the gun expert could support the conclusion M.M. was shot with a revolver.

M.M. was the only eyewitness to Barnett possessing a gun, and his testimony was the gun was a flat semiautomatic gun. The shell casings found at the scene were consistent with being fired from a semiautomatic handgun. The physical evidence supports the conclusion B.T. was shot with an automatic weapon.³ Therefore, either B.T. was mistaken as to who shot him or Barnett passed his gun to his brother before his brother shot B.T.

On the charge of attempted felony murder, the trial court instructed the jury:

To prove the crime of attempted felony murder, the State must prove the following three elements beyond a reasonable doubt. One, Leon Barnett committed or attempted to commit a robbery. Two, while engaged in the commission or attempted commission of robbery, the Defendant committed or aided or abetted an intentional act that is not an essential element of felony murder. Three, this intentional act could have, but did not cause the death of [M.M.] and/or [B.T.]. Robbery is defined by Florida Statutes, by Florida law and will be explained in a moment. In order to convict Leon Barnett of attempted felony murder, it is not necessary for the state to prove that he had a premeditated design or intent to kill.

(emphasis added).

Legal Analysis

“While the presentation of dual theories of a crime is allowable, this occurs when a defendant is charged with the commission of one crime, and the State presents two scenarios or bases supporting the commission of the crime.” Perley v. State, 947 So.2d 672, 674 (Fla. 4th DCA 2007). In Saldana v. State, 980 So.2d 1220 (Fla. 2d DCA 2008), the defendant was charged with possession of a firearm in which the information alleged the defendant possessed a “9mm handgun and/or .45 caliber Ruger.” Saldana, 980 So.2d at 1221. As noted by the Second District,

Florida Rule of Criminal Procedure 3.140(k)(5) permits disjunctive or alternative allegations for an offense that may be committed by one or more of several means or acts. Rule 3.140( o) provides that no motion to dismiss for a disjunctive pleading defect will be granted unless the information is so vague or indistinct as to embarrass or mislead the defendant in preparing his defense.

Saldana, 980 So.2d at 1221–22. The State's opportunity to pursue alternative theories of the commission of a crime includes situations in which the information alleges more than one victim. Knight v. State, 819 So.2d 883 (Fla. 4th DCA 2002) (a defendant's continuous violent resistance of multiple officers constitutes only one instance of resisting arrest; naming more than one officer in that count was not in error, as appellant could be convicted of only one count of resisting arising from his confrontation with either or both officers).

It is the trial judge's responsibility to “ensure ‘that the jury is fully and correctly instructed as to the applicable law.’ ” Love v. State, 971 So.2d 280, 288 (Fla. 4th DCA 2008) (citing Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006), and quoting Moore v. State, 903 So.2d 341, 341 (Fla. 1st DCA 2005)). The importance of proper jury instructions is particularly critical where the State pursues alternative theories of guilt.

Because Barnett admits that he did not object to the jury instruction for the attempted felony murder offense, the standard of review is whether any defects constitute fundamental error. Perley, 947 So.2d at 674;Dempsey v. State, 72 So.3d 258 (Fla. 4th DCA 2011). “[F]or jury instructionsto constitute fundamental error, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008) (internal quotations omitted). “Courts must analyze the totality of the record to determine if an errant instruction is fundamental error.” Dempsey, 72 So.3d at 261 (citations omitted). “[I]f the totality of the circumstances indicates there is no reasonable possibility an alleged jury instruction error contributed to the verdict, the error is not fundamental.” Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010).

The State argues that any error in this case is not fundamental, citing Dempsey,Croom, and Provow v. State, 14 So.3d 1134, 1136 (Fla. 4th DCA 2009). In Dempsey, this court held that it was not fundamental error to use “and/or” between the names of victims in a jury instruction for robbery, relying on Croom and Provow. In Croom, the defendant was charged in the alternative with committing assault on at least one of three victims. The First District held it was not fundamental error to charge the defendant in this manner when there was overwhelming evidence that the defendant committed assault on all three of the victims. Croom v. State, 36 So.3d at 710. In Provow, the defendant was charged with resisting an officer with...