Chambers v. State

• Decision Date: 28 April 2004
• Docket Number: No. 2D03-1716.,2D03-1716.
• Parties: Patrick Antonio CHAMBERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

880 So.2d 696

Patrick Antonio CHAMBERS, Appellant, v. STATE of Florida, Appellee.

No. 2D03-1716.

District Court of Appeal of Florida, Second District.

April 28, 2004.

James Marion Moorman, Public Defender, and Tonja R. Vickers, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

EN BANC.

ALTENBERND, Chief Judge.

Patrick Antonio Chambers appeals his judgment for aggravated assault with a firearm¹ and tampering with evidence² 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.³ 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).

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.

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 for appeal.

Concerning the attempted second-degree murder of Ms. Radway, the jury was instructed on several lesser offenses. The trial court provided instructions on attempted manslaughter, aggravated battery, aggravated assault, felony battery, battery, and assault. As to both aggravated battery and aggravated assault, the jury was further permitted to determine on the verdict form (1) whether Mr. Chambers possessed a firearm, (2) whether Mr. Chambers discharged a firearm, and (3) whether the discharge of the firearm did or did not result in great bodily injury.

During the jury charge conference, the parties and the trial court discussed the lesser-included offenses. The trial court even had the lawyers revisit this issue near the end of the charge conference. Everyone agreed that the instructions and the verdict form were sufficient. No error concerning these instructions was preserved. Following the closing arguments in which the lesser-included instructions were not a significant factor, the jury returned its verdict finding Mr. Chambers guilty of an aggravated assault of Ms. Radway during which he possessed and discharged a firearm, causing her great bodily injury. On appeal, Mr. Chambers argues that he could not be convicted of aggravated assault because aggravated assault is not a category one lesser-included offense of second-degree murder, and the information failed to allege the essential elements of aggravated assault. Without such allegations, aggravated assault could not be a category two lesser-included offense. He is correct that the State was not entitled to have the jury instructed on this lesser offense. The dispositive issue on appeal, however, is whether the inclusion of this unauthorized lesser offense in the instructions and on the verdict form was fundamental error. We conclude that it was not.

The development of this issue probably begins with Ray v. State, 403 So.2d 956 (Fla.1981). In Ray, the defendant was charged with sexual battery. The trial court instructed the jury on sexual battery and a lewd and lascivious act, although a lewd and lascivious act was a not a proper lesser-included offense. Ray, 403 So.2d at 959. The jury convicted the defendant of a lewd and lascivious act, and the district court affirmed.

The supreme court accepted conflict jurisdiction and framed the issue as follows: "[W]hether a defendant convicted of a crime for which he was not charged, but which was submitted to the jury as a lesser-included offense when in fact it was not, may challenge that conviction when he failed to object to the submission of that crime to the jury." Ray, 403 So.2d at 958.

The supreme court held

that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.

Ray, 403 So.2d at 961 (footnote omitted).⁴ In reversing Ray's conviction, the supreme court determined that the lewd and lascivious offense in 1975 was not an offense that was of a lesser degree and penalty than sexual battery and that his counsel had neither requested nor relied upon the improper instruction.⁵ Thus, neither of the conditions had been met, and the court held it was fundamental error to convict Mr. Ray.

An extensive body of case law has developed from Ray.⁶ This court followed Ray in Thomas v. State, 820 So.2d 382 (Fla. 2d DCA 2002). In Thomas, we affirmed a conviction for driving under the influence (DUI) with serious bodily injury, even though this offense was not a lesser-included offense of DUI manslaughter as charged in the information. 820 So.2d at 384-85. The defendant had not objected to the instructions on the lesser offense, and the offense was lesser in degree and penalty. Id.

As in Thomas, the information against Mr. Chambers did not allege all of the statutory elements of aggravated assault. However, he was afforded an opportunity to object and failed to do so. Continuing to apply the Ray analysis, we conclude that aggravated assault with a firearm, a second-degree felony, is lesser in degree and punishment than attempted second-degree murder with a firearm, a first-degree felony.⁷ Accordingly, under the holding in Ray, we affirm Mr. Chambers' conviction.

On at least two prior occasions, this court has resolved cases that were controlled by Ray, without a proper analysis of that decision. See Mateo, 757 So.2d 1229

; Wilburn, 840 So.2d 384. In Mateo, the defendant was charged with sexual battery using force likely to cause serious personal injury. 757 So.2d at 1230; see also § 794.011(3), Fla. Stat. (1997). He was convicted of aggravated battery. See § 784.045, Fla. Stat. (1997). Even though the defendant did not object to the instructions on this lesser offense and the offense was lesser in both degree and penalty, we reversed the conviction without any discussion of Ray. Mateo, 757 So.2d at 1230. Additionally, in Wilburn, we reversed an aggravated assault conviction because the information had not charged that the victim had been placed in fear by the defendant's actions. Wilburn relies upon Mateo to reach this result. We now recede from those cases.

In Mateo, instead of citing to Ray, this court cited to three cases: State v. Von Deck, 607 So.2d 1388 (Fla.1992), State v. Gray, 435 So.2d 816 (Fla.1983), and Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995).

Von Deck involved a conviction for an improper lesser-included offense; however, the error was a preserved error. The court was not required to perform a fundamental error analysis. 607 So.2d at 1389-90. Thus, Von Deck did not compel the result reached in Mateo.

Gray involved a conviction for an offense that the State intended to be the charged offense, not a...