Crew v. State

Decision Date29 August 2014
Docket NumberNo. 5D12–4911.,5D12–4911.
Citation146 So.3d 101
PartiesJerry CREW, Appellant, v. STATE of Florida, Appellee.
CourtFlorida 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.

Opinion

WALLIS, J.

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

For three days, we've been in this courtroom and we've been listening to Mr. Zimmet's7 denials and nonsense about his client's involvement in a robbery.
....
You see, he just wants to limit his client's involvement. He doesn't mind that Jerry Crew was involved in luring somebody to a room....
What Mr. Zimmet is doing is he's throwing his client under the bus. But he's throwing his client under the bus for the lowest charge that the law will allow.
There's nothing to show that Mr. Crew wasn't there, and that Mr. Crew was not involved in all of this. Those are undeniable facts. And so if Mr. Crew was there and involved, then let's see how little we can make him involved for. Let's see how little we can say he actually did.
And so we'll pick battery, a misdemeanor. We'll pick a misdemeanor, one of the lowest offenses the law will allow.
....
In just a little while, Mr. Zimmet is going to get up and he's going to talk about how his client has morals and how his client tried to tell these boys no. Ladies and Gentlemen, there isn't a moralistic thing about Jerry Crew. Not one. He was fine with all of this. Every bit of it right up until that boy died. And then he knew he'd be responsible.
....
So if he wants to get up here and talk about the morals of his client and he's okay with a beating but not okay with a robbery, please. Please. Jerry Crew doesn't have a moralistic thing about him. Not one. Jerry Crew is nothing more than a hopeless old crack addict .... [H]e's been buying drugs from Darshawn Broadwater since he was 16. Two and three times a day for six years.
This is a moralistic person? This is a person who has a limitation on what's wrong and what's right? No. Not at all.
This is a guy who's looking for a score the only way that he can get it, every way that he can get it. And so, sure, he said no, he said no. They gave him three hits of cocaine. And they offer him an opportunity for more. And so that crackhead, that crackhead was all in.
....
And so when it comes time to pay for what he's taken, what he's used for free, take the options of paying or getting more. No, I'm not going to pay. I'll take some more cocaine. I'll take all this for free that you've given me and I'll take a little more. Because after all, the deal was they were going to split it. They were all going to share in the proceeds. So he's going to get free cocaine again.
....
You're going to stick your neck out to a drug dealer with guns and friends with guns over a battery and you're not going to get anything from it? Nonsense. That's ludicrous. If this guy's in for a penny, he's in for a pound. Just like Mr. Broadwater says. They were going to split the proceeds.
....
He got high off of ten or 20, little pieces. He's going to have ten times that in his room again. My God, imagine how high he's going to be. His little crackhead eyes are going to glow.
....
Jerry Crew, are you going to do this? He agrees to make the calls. He agrees to make the calls and get this going. By the way, Jerry, did we happen to mention to you why we were doing this? Did we happen to tell you why we're doing it? If we didn't tell you about it before, did we tell you that this drug dealer just robbed us just a few days prior for $1,200 with the money and drugs? And you can have a share in what we take off of him. It's like Christmas came early for a crackhead.
And even better, Jerry doesn't even have to participate in the violence. When it goes down, he gets to jump in the shower and wait for the violence to stop. I mean, think about it. You can almost see him in that little fleabag hotel in that filthy little shower. I mean, they started a fire with the three hits that they gave him. The three little bites of his favorite thing in the world. The thing that he bought every day, two and three times a day, for six years. They started a little fire and you can see his little beady crackhead eyes glowing in that shower.
....
And so what is so important? Why all the calls? Unless you've got a stake in it. Unless you're going to get a share in what's about to happen. Unless your crackhead little brain is fluttering a million miles a second thinking about more of your favorite thing in the world. Favorite.8
Mr. Zimmet wants you to believe that his poor, misunderstood client is out in the parking lot doing deep knee bends. Please. Really? You saw his knee in the picture. Deep knee bends?
(Emphasis added). The prosecutor then commented on the defense counsel's out- of-court questioning and cross-examination of a State witness that suffered a stroke after April 16, 2011, as follows:
And what does this evidence tell us? That this woman who has nothing to gain, who knows none of these people, comes to court and tells you what happens.She gets questioned and questioned and questioned and questioned by three defense attorneys for an hour and a
...

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    ...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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