Brown v. State

• Citation: 959 So.2d 218
• Decision Date: 14 June 2007
• Docket Number: No. SC06-628.,SC06-628.
• Parties: Dewarn Antonio BROWN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

959 So.2d 218 Dewarn Antonio BROWN, Petitioner,
v.
STATE of Florida, Respondent. No. SC06-628. Supreme Court of Florida. June 14, 2007.

Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Maria T. Armas, Assistant Attorney General, Miami, FL, for Respondent.

BELL, J.

Dewarn Antonio Brown seeks review of the decision of the Third District Court of Appeal in State v. Brown, 924 So.2d 86 (Fla. 3d DCA 2006), on the ground that it expressly and directly conflicts with the

959 So.2d 219

decisions of this Court in Mahaun v. State, 377 So.2d 1158 (Fla.1979), and Redondo v. State, 403 So.2d 954 (Fla.1981). The decisions are in conflict regarding whether a defendant's convictions for the legally interlocking charges of (1) felony murder and (2) the lesser included misdemeanor of the separately charged underlying felony are true inconsistent verdicts. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we hold that a defendant's convictions for felony murder and for the lesser included misdemeanor of the separately charged underlying felony are true inconsistent verdicts. Accordingly, we quash the Third District's contrary determination.

FACTUAL AND PROCEDURAL BACKGROUND

"Brown was charged with armed robbery and first degree felony (robbery) murder in the shooting death of a participant in a drug deal whose wallet the defendant and two co-perpetrators were attempting to steal." Brown, 924 So.2d at 87. After agreeing to rob the victim, Brown and his two co-perpetrators proceeded into an abandoned building, where the victim was waiting. While one co-perpetrator hit the victim, Brown and the other co-perpetrator searched the victim for money. The co-perpetrator who had been hitting the victim possessed a gun, which discharged during the struggle. After the gun fired, Brown panicked and left the premises while his two co-perpetrators continued struggling to retrieve the victim's money. The wallet was later found in a dumpster a short distance away from the scene.

As reflected in the jury verdict form, Brown was charged with two legally interlocking offenses. Count I included the charged offense of first-degree murder as well as the lesser included offenses of second-degree murder and manslaughter. Count II included the charged offense of armed robbery with a firearm as well as the lesser included offenses of robbery and petit theft. Attempted robbery was not listed as a lesser included offense in count II. For first-degree felony murder in count I, the jury was instructed that the State had to prove the following three elements:

One, Andre Robert Sloate is dead. Two, the death occurred as a consequence of and while Dewarn Antonio Brown was engaged in the commission of a robbery. Or B, the death occurred as a consequence of and while Dewarn Antonio Brown was attempting to commit a robbery. Three, Andre Robert Sloate was killed by a person other than Dewarn Antonio Brown but both Dewarn Antonio Brown and the person who killed Andre Robert Sloate were principles [sic] in the commission of a robbery.

For petit theft, listed as a lesser included offense of armed robbery with a firearm in count II, the jury was instructed that the State had to prove the following two elements:

One, Dewarn Antonio Brown knowingly and unlawfully obtained, used, endeavored to obtain or endeavored to use the property of Andre Robert Sloate. And two, Dewarn Antonio Brown did so with intent to either temporarily or permanently deprive Andre Robert Sloate of his right to the property or any benefit from it.

The trial court also instructed the jury that it must consider the evidence applicable to each count separately and that it must return a separate verdict as to each.

"The jury found the defendant guilty of petit theft as a lesser included offense of the armed robbery charge and guilty of first degree felony murder." Brown, 924 So.2d at 87. After the jury returned its verdict and was dismissed, Brown moved

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to vacate the felony murder conviction, arguing that it was truly inconsistent with the petit theft conviction. Thereafter, the trial court vacated Brown's felony murder conviction as "`legally inconsistent' with the theft conviction, on the theory that an acquittal of armed robbery, implied by the guilty verdict of the `lower' offense of theft, precluded the finding that the defendant had committed that felony, as required for a felony murder conviction." Id.

The Third District reversed and instructed the trial court to reinstate Brown's first-degree felony murder conviction. Id. at 88. The Third District reasoned that "the defendant [was] precluded even from claiming a fatal inconsistency between the verdicts . . . because he endorsed and supported the trial judge's charge to the jury, in accordance with the standard jury instruction, that the evidence as to each of the counts must be `considered separately and a separate verdict returned as to each.'" Id. at 87 (quoting Fla. Std. Jury Instr. (Crim) 3.12(a)). Further, relying on this Court's opinion in Pitts v. State, 425 So.2d 542 (Fla.1983), the Third District determined that the verdicts are not truly inconsistent. The Third District stated:

On the merits, there is no true legal inconsistency because of the rational possibility (which is, in fact, consistent with the evidence in this case) that the guilty verdict as to first degree felony murder was based on a finding that, as the felony statute provides and as the jury was instructed, the death occurred in the course of an attempted robbery, rather than a completed one. Because attempted robbery was not instructed upon as a lesser included offense of the robbery count, and was thus not rejected by the jury, the two verdicts logically can be reconciled, thus requiring reversal.

Brown, 924 So.2d at 87-88 (citations omitted).

ANALYSIS

Brown argues that the verdicts for misdemeanor petit theft and for first-degree felony murder are truly inconsistent. An inconsistent verdicts claim presents a pure question of law and is reviewed de novo. See Dial v. State, 922 So.2d 1018, 1020 (Fla. 4th DCA 2006). This Court has described the general principles regarding inconsistent jury verdicts in the following manner:

As a general rule, inconsistent jury verdicts are permitted in Florida. Eaton v. State, 438 So.2d 822 (Fla.1983); Goodwin v. State, 157 Fla. 751, 26 So.2d 898 ...