Brown v. State
| Decision Date | 22 May 2009 |
| Docket Number | No. 2D08-2793.,2D08-2793. |
| Citation | 11 So.3d 428 |
| Parties | Jerry Wayne BROWN, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
Jerry Wayne Brown, Jr., appeals his two judgments and life sentences for sexual batteries committed upon two persons under the age of twelve years, violations of section 794.011(2)(a), Florida Statutes.1 The sole issue Mr. Brown asks us to determine is whether the trial court erred in instructing the jury in accordance with section 794.022(1) that the testimony of the victim need not be corroborated in a prosecution for sexual battery. Because we conclude that such an instruction is misleading and constitutes an improper comment on the evidence by the trial court, we reverse Mr. Brown's judgments and sentences and remand for a new trial.
The State charged Mr. Brown with committing sexual battery against two sisters in Collier County at some time between January 1, 1983, and August 1, 1987. The evidence at trial established that the sisters had moved with their family to the Naples area in January 1983. From 1983 until the summer of 1987, Mr. Brown, to whom the sisters were related, had lived sporadically at the sisters' family home in Naples. In January 1983, Mr. Brown would have been eighteen years old. When the two sisters moved to Naples, the older sister was seven years old and the younger sister was six.
In 2006, the two sisters contacted law enforcement officials and reported that Mr. Brown had committed multiple acts of sexual abuse—including sexual battery— against them from January 1983 until the summer of 1987 when they moved from the Naples area. At the time of the report, the older sister was thirty and the younger sister was twenty-nine. Neither of the sisters had made any contemporaneous complaints about the alleged sexual abuse by Mr. Brown. Based on the sisters' reports, Mr. Brown was arrested and charged with committing two sexual batteries—one against each sister.
At trial, the State presented the testimony of three witnesses. The two sisters testified about the four and one-half years of sexual abuse they claimed to have experienced at the hands of Mr. Brown. A detective employed by the Collier County Sheriff's Office testified that she had taken statements from the sisters on November 5, 2006. The detective also testified that Mr. Brown had been born in August 1964. The State did not present any physical evidence or any evidence concerning collateral crimes. In addition, the State did not present evidence of any admissions or incriminating statements by Mr. Brown. Mr. Brown elected not to testify in his own defense. He did not call any witnesses.
The jury found Mr. Brown guilty as charged of both counts of sexual battery. The trial court adjudged him to be guilty in accordance with the jury's verdicts and sentenced him to life in prison on each count.2 The sentences were designated to run consecutively.
Except to the extent that the testimony of each sister reinforced the testimony of the other, their accounts of the alleged sexual abuse were not supported by evidence of contemporaneous complaints, physical evidence, admissions by Mr. Brown, or evidence of collateral crimes. In his opening statement and in his cross-examination of the two sisters, defense counsel noted the absence of any evidence corroborating the sisters' testimony. At the charge conference, the prosecutor requested a special jury instruction based on section 794.022(1), which provides: "The testimony of the victim need not be corroborated in a prosecution under s. 794.011." Section 794.011 is the sexual battery statute. The State's requested instruction tracked the language of section 794.022(1) almost verbatim. The instruction read: "The testimony of the victim need not be corroborated in a prosecution for sexual battery."
Defense counsel objected to the special instruction. In pertinent part, he argued:
I think that's probably an instruction that goes more to [a] motion for judgment of acquittal than it does to something for the jury, because when it comes before the Court, the Court can look at it and say there was no corroboration. The statute says, Judge, you don't need it. You can then deny the motion for judgment of acquittal.
To get out here and tell them that there doesn't have to be any corroboration is pretty much deciding the verdict.
....
In any case, we never come down and say somebody's testified and there has to be corroboration. That's an argument. But to suggest, by special instruction, that what these girls say doesn't need to be corroborated is pretty much giving them an invitation to say, okay, fine, then that's good enough. I don't think that we should say one way or the other.
Thus defense counsel opposed the requested instruction on the ground that section 794.022(1) was pertinent only to the State's burden of proof to survive a motion for judgment of acquittal and was not a proper subject of comment by the trial court.
In addition, defense counsel's objection to the special instruction included the following argument: "Your instruction says corroboration or lack of corroboration, the veracity or lack of veracity of a witness." This portion of defense counsel's objection is ambiguous. However, this comment may be reasonably interpreted as an observation that the subject matter of the special instruction was adequately covered in Standard Jury Instruction 3.9 on "Weighing the Evidence."
The trial court overruled defense counsel's objection and agreed to give the special instruction. After observing that the defense had put the uncorroborated nature of the sisters' testimony "at issue," the trial court ruled: Having decided to give the special instruction, the trial court might have incorporated the instruction into the text of Standard Jury Instruction 3.9 on "Weighing the Evidence." Instead, the trial court added the special instruction to the end of Standard Jury Instruction 11.1 on "Sexual Battery—Victim Less than 12 Years of Age." Because there were two victims, the instruction was read to the jury twice, once in connection with each separate instruction for each sister.
On appeal, Mr. Brown argues that the special "instruction amounted to an improper comment on the evidence and it constituted judicial approval of a crucial State argument." In response, the State emphasizes that the jury instructions must be considered in their entirety. According to the State, the jury instructions—taken as a whole—correctly informed the jury concerning the State's burden to prove its case beyond a reasonable doubt by presenting testimony from the sisters establishing Mr. Brown's commission of the charged offenses. Thus the special instruction "did not suggest to the jury that the State's mere presentation of witnesses inexorably leads to a conviction without critical examination of the evidence."
We review the giving or withholding by a trial court of a requested jury instruction under an abuse of discretion standard. Worley v. State, 848 So.2d 491, 491 (Fla. 5th DCA 2003) (citing Palmore v. State, 838 So.2d 1222 (Fla. 1st DCA 2003)). However, "[w]here an instruction is confusing or misleading, prejudicial error occurs where the jury might reasonably have been misled and the instruction caused them to arrive at a conclusion that it otherwise would not have reached." Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001) (citing Wadman v. State, 750 So.2d 655, 658 (Fla. 4th DCA 1999)).
No reported Florida case has considered the special instruction given in this case or one similar to it. Thus it appears that the propriety of giving the special instruction is a question of first impression in Florida. To examine this question, we will begin by considering the adequacy of the standard jury instructions on this subject and the practice of reading statutes to the jury. Next, we will make a brief review of Florida's prohibition against judicial comment on the evidence. With this background, we will examine the history and purpose of section 794.022(1), the statute on which the special instruction was based. Our examination of section 794.022(1) leads us to a detailed analysis of the two Florida decisions on which Mr. Brown relies most heavily in his argument for reversal—the Marr cases.3 After an analysis of these decisions, we will review three cases from other jurisdictions that have considered jury instructions very similar to the special instruction used in this case. Because we decide that giving the special instruction was error, we will conclude by considering whether the error was harmless under the circumstances of Mr. Brown's case.
Of course, the special instruction at issue in this case does not appear in the Standard Jury Instructions. However, the subject of the special instruction is addressed—at least by inference—in Standard Jury Instruction 3.9 on "Weighing the Evidence." For example, the standard jury instruction suggests that the jury consider whether "the witness's testimony agree[s] with the other testimony and other evidence in the case." The standard jury instruction concludes by advising the jurors:
"The...
To continue reading
Request your trial
-
Cliff Berry, Inc. v. State
... ... 11 However, the use of a standard instruction does not relieve the trial court of its duty to ensure that the instruction accurately and adequately conveys the law applicable to the circumstances of the case. See Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009). A defendant is entitled to a special jury instruction upon proof that (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a ... ...
-
Cliff Berry, Inc. v. State
... ... 2d at 755. 11 However, the use of a standard instruction does not relieve the trial court of its duty to ensure that the instruction accurately and adequately conveys the law applicable to the circumstances of the case. See Brown v. State , 11 So. 3d 428, 432 (Fla. 2d DCA 2009). A defendant is entitled to a special jury instruction upon proof that "(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a ... ...
-
Melvin v. Sec'y
... ... 2254 (Doc. 13) and challenges the validity of his state convictions for first-degree murder and attempted first-degree murder. Melvin alleges one ground of trial court error and six grounds of ineffective ... Richter , 526 Page 9 U.S. 86, 103 (2011). Accord Brown v ... Head , 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se , of the state court decision that ... ...
-
Bass v. State
... ... Although it is true that "[a] judge may not sum up the evidence or comment to the jury upon the weight of the evidence," 90.106, Fla. Stat., and that "jury instructions that amount[ ] to judicial comment on the evidence ... are impermissible," Brown v. State , 11 So.3d 428, 434 (Fla. 2d DCA 2009), we need not decide whether the requested instruction would have been impermissible. Either way, it was no abuse of discretion to deny the request. 2 In its supplemental brief, the State agreed with Bass that Sauz was correctly decided. (The State ... ...
-
The trial (conduct of trial, jury instructions, verdict)
...is reviewed on an abuse of discretion standard. (See this case for extensive discussion of the purpose of §794.022(1).) Brown v. State, 11 So. 3d 428 (Fla. 2d DCA 2009) Knowledge of the illicit nature of a substance is not an element of a drug possession charge. The lack of knowledge is an ......
-
Crimes
...is reviewed on an abuse of discretion standard. (See this case for extensive discussion of the purpose of §794.022(1).) Brown v. State, 11 So. 3d 428 (Fla. 2d DCA 2009) Defendant was the coach of a girl’s swimming team. He caused several of the girls to go to his office to try on swimming s......