Crew v. State
| Decision Date | 29 August 2014 |
| Docket Number | No. 5D12–4911.,5D12–4911. |
| Citation | 146 So.3d 101 |
| Parties | Jerry CREW, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
Jerry Crew (“Appellant”) appeals his judgment and sentences for second-degree felony murder and robbery, arguing primarily that he is entitled to a new trial because the trial court abused its discretion by denying a request for a special jury instruction on Appellant's theory of defense to robbery.1 At trial, Appellant's theory of defense was that the taking of property was an afterthought and, therefore, a theft, not robbery. On appeal, Appellant secondarily argues that the prosecutor's improper comments in closing argument were fundamental error and, therefore, require a new trial. We agree on both issues and reverse.2
Darshawn Broadwater regularly sold crack cocaine to Appellant. On the morning of April 16, 2011, Broadwater sold drugs to Appellant, who was residing in a motel. After the sale, Broadwater went to an apartment complex where he met two friends, Leroy Gadson and Donnell Ellis, to make a plan to retaliate against Lawrence Kloc, a rival drug dealer who robbed Gadson and Ellis. In the early afternoon, Broadwater called Appellant and said they planned to lure someone into the motel room and beat him up. Shortly thereafter, Broadwater returned to the motel with Gadson and Ellis, who both had firearms. Broadwater gave Appellant crack cocaine three times to convince him to let them use the motel room. Appellant agreed, called Kloc, and told him that Appellant would purchase drugs at the motel. Kloc then arrived with two cohorts, who remained in an SUV while Kloc entered the motel room. Broadwater hid behind the bed. Gadson and Ellis hid in the bathroom. Kloc entered the room, where he was immediately engaged in a fight with Gadson and Ellis. The combatting groups fired shots during the struggle. Ellis ran out of the room, and one of Kloc's cohorts shot Ellis in the parking lot, killing him. During the struggle, Kloc dropped the drugs in the room. Broadwater testified to collecting and hiding the drugs in a car at the opposite end of the parking lot. He specifically testified that he hid the drugs in anticipation of law enforcement's arrival and investigation when he said he was “just thinking about getting the place clean before the police get here because [he] didn't want to go to jail.” The only mention of Appellant's location during the attack was the State's suggestion that Appellant hid in the shower.
Broadwater provided conflicting testimony about whether Appellant knew that the plan to attack Kloc included robbery.3 Initially, Broadwater testified on direct examination that he, Gadson, and Ellis concealed the true plan to beat up Kloc, which included “going through his pockets.” Broadwater indicated later on direct examination that Appellant knew before the attack occurred of a plan to take Kloc's property. On cross-examination, Broadwater was impeached with his deposition by defense counsel, who read into evidence Broadwater's statements that he, Gadson, and Ellis concealed their plan to rob Kloc because Appellant would not have participated. The State never provided evidence that Appellant would “share in the proceeds” of a robbery.
Appellant requested the following special jury instruction—usually referred to as an “afterthought” instruction—for second-degree felony murder and robbery:
If the force or violence is motivated by reason other than to rob Lawrence Kloc, or if the taking of property occurred as an afterthought to the use of force or violence against Lawrence Kloc, the taking does not constitute robbery, but may still constitute theft.4
At the charge conference, the State conceded that the standard instruction did not cover the theory of defense and the special instruction was a correct statement of the law and not misleading or confusing. As such, the State and the Appellant argued only about whether evidence in the record supported the special instruction. The trial court ultimately denied Appellant's request for the special afterthought instruction, finding that—despite the State's concession at trial—the standard instruction covered the theory of defense.
The trial court instructed the jury on the standard instruction on robbery for the felony-murder charge, in pertinent part, as follows:
Robbery is defined as follows: One, Jerry Crew took U.S. currency and/or illegal narcotics from the person or custody of Lawrence Kloc. Two, force, violence, assault or putting in fear was used in the course of the taking. Three, the property taken was of some value. Four, the taking was with the intent to permanently or temporarily deprive Lawrence Kloc of his right to the property or any benefit from it, appropriate the property of Lawrence Kloc to his own use or to the use of any person not entitled to it.5
In closing, the prosecutor argued:6
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Talley v. State, 3D16-1500
...and they contain comments far more egregious and numerous than the closing remarks in the instant case. In Crew v. State, 146 So.3d 101 (Fla. 5th DCA 2014), one of two cases cited by Tally involving reversal on the basis of fundamental error, the prosecutor's improper comments included: "We......
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Ramroop v. State
...on the defense theory and defense counsel” (citing D'Ambrosio v. State, 736 So.2d 44 (Fla. 5th DCA 1999) )); see also Crew v. State, 146 So.3d 101, 110 (Fla. 5th DCA 2014) (admonishing the prosecutor for “needlessly refer[ring] to the defense attorney's closing argument with sarcasm”). As w......
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Williams v. State
...comment. See Cardona v. State , 185 So.3d 514, 522 (Fla. 2016) ; Davis v. State , 136 So.3d 1169, 1197 (Fla. 2014) ; Crew v. State , 146 So.3d 101, 110 (Fla. 5th DCA 2014) ; Edwards v. State , 428 So.2d 357, 359 (Fla. 3d DCA 1983). Thus it was improper for the prosecutor to appeal to "justi......
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Panchoo v. State
...by prosecutors. See, e.g., Ramroop v. State, 174 So.3d 584 (Fla. 5th DCA 2015) ; Brinson v. State, 153 So.3d at 972 ; Crew v. State, 146 So.3d 101 (Fla. 5th DCA 2014). Nor is this a recent phenomena. See, e.g., Servis v. State, 855 So.2d 1190 (Fla. 5th DCA 2003) ; Freeman v. State, 717 So.2......
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Summation
...in compensatory damages and $23.6 billion in punitive damages were reversed and the case was remanded for a new trial. Crew v. State , 146 So. 3d 101, 110 (Fla. Dist. Ct. App. 2014). In closing arguments, the prosecutor disparaged the defense counsel through comments about his cross-examina......
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The chronic failure to discipline prosecutors for misconduct: proposals for reform.
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