Fussell v. State

• Decision Date: 29 January 2015
• Docket Number: No. 1D13–5419.,1D13–5419.
• Citation: 154 So.3d 1233
• Parties: Zairon Jarquis FUSSELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

154 So.3d 1233

Zairon Jarquis FUSSELL, Appellant

v.STATE of Florida, Appellee.

No. 1D13–5419.

District Court of Appeal of Florida, First District.

Jan. 29, 2015.

Nancy A. Daniels, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.

Opinion

BENTON, J.

On direct appeal, Zairon Jarquis Fussell contends his conviction for conspiracy to commit aggravated assault with a deadly weapon, in violation of section 777.04(3), Florida Statutes (2012), (but not his conviction for attempted murder) should be reversed on grounds using the conjunction “and/or” in the jury instructions constituted fundamental error. We affirm.

The jury heard evidence that: Mr. Fussell and a co-defendant, Robert Morris, quarreled with Micca Gamble, Jacoryana Minniefield, Brandon Richardson and Amber Richardson (the movie patrons) in a theater. The argument subsided before the show¹ began but, during the movie, Mr. Morris left the theater for several minutes and returned with something in his hands, then was seen giving Mr. Fussell a handgun inside the theater. In the parking lot after the movie, Mr. Fussell pulled a handgun and fired in the direction of at least three of the movie patrons, they testified.

The jury also heard testimony from law enforcement officers that, when Mr. Morris was apprehended soon after the incident, the officers seized a movie ticket stub (which indicated the ticket had been purchased at 10:20 p.m.) and Mr. Morris's cell phone, which contained a record of a text purportedly sent from Mr. Morris's phone to Mr. Fussell's phone at 10:48 p.m., asking, “Do you want me to try to bring it there?” The testimony was that the phone also stored a record of a text apparently sent in response, which said simply, “Yeah.”

Charged with attempted murder in the first degree,² Mr. Fussell was found guilty of the lesser included offense of attempted second-degree murder. He was also found guilty as charged of conspiracy to commit aggravated assault, and now appeals only his conviction and sentence for conspiracy to commit aggravated assault. For the first time on appeal, he argues the trial court committed fundamental error in instructing the jury by using “and/or” between the movie patrons' names in the conspiracy count.³

Jury instructions “are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. To justify not imposing the contemporaneous objection rule, ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644–45 (Fla.1991) (citations omitted). By definition, a nonstructural error is not fundamental unless it could have been outcome determinative. An erroneous jury instruction cannot be fundamental unless it pertains to a matter genuinely at issue in the case.See id. at 645 (“ ‘[F]undamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’ ” (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982) )).⁴

The use of “and/or” in jury instructions has been addressed in numerous decisions and condemned in many. But not all “and/or” cases are alike. The present case involves the trial of a single defendant, and does not present the problems that may and do arise when multiple defendants are charged disjunctively. Cf. Garzon v. State, 980 So.2d 1038, 1043–45 (Fla.2008) (condemning use of “and/or” between the names of three co-defendants); Nicholson v. State, 33 So.3d 107, 111 (Fla. 1st DCA 2010) (“In some contexts such [‘and/or’] instructions pose the risk of misleading the jury to believe it can find one co-defendant guilty based solely on the other co-defendant's conduct satisfying the elements of the crime.”); Moton v. State, 8 So.3d 483, 485 (Fla. 1st DCA 2009) (concluding use of the “and/or” phrase in the instructions constituted fundamental error because “the jury could have found Mr. Moton guilty on the basis of Mr. Stallworth's conduct alone”); Green v. State, 996 So.2d 911, 912–13 (Fla. 1st DCA 2008) (concluding that the use of “and/or” between the names of defendants in criminal jury instructions was error).

In the present case, the movie patrons who were allegedly shot at—not multiple defendants—were linked with “and/or.” This may not be the best practice. See Schepman v. State, 146 So.3d 1278, 1286 (Fla. 5th DCA 2014) (noting that “Florida courts have long condemned the use of the conjunctions ‘and/or’ and ‘or’ to connect multiple defendants or multiple victims within a single criminal charge” and “urg[ing] prosecutors and trial judges to avoid such faulty shortcuts”); Barnett v. State, 121 So.3d 643, 648–49 (Fla. 4th DCA 2013) (cautioning “the State and trial judges about the use of ‘and/or’ in informations and jury instructions” because such use “may create the possibility for non-unanimous verdicts”); Fuller v. State, 942 So.2d 1039, 1039 (Fla. 2d DCA 2006) (concluding the jury instructions were “fundamentally erroneous because they improperly ‘permitted the jury to convict [the defendant] of aggravated assault if one alleged victim was threatened while the other [alleged victim] had a well-founded fear of violence’ ” (citations omitted)). But the defense in the present case cannot be said to have been prejudiced by the prosecutor's decision to compress what might have been as many as four attempted murder charges into a single charge. Nor did using “and/or” to charge the conspiracy, without specifying which movie patron was (or patrons were) the object of the conspiracy, prejudice the defense here.

In assault cases, the state must prove the victim was in fear. See § 784.011(1), Fla. Stat. (2012) (“An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”). An individual determination is called for as to each alleged victim of assault. See Schepman, 146 So.3d at 1284 (noting that “the lumping together of multiple victims in a single count with ‘or’ or ‘and/or’ may improperly allow the jury to find a defendant guilty by threatening one victim and causing fear of imminent violence in another victim”).⁵

Under neither count tried below, however, was an individual determination required as to each (or any particular) possible victim. Neither count tried below alleged either simple assault or aggravated assault. One count charged attempted murder and the other charged conspiracy to commit aggravated assault. As charged, Mr. Fussell was guilty of attempted murder (whether he intended to kill one, two, three or four persons), and of conspiracy (whether he agreed to and acted in furtherance of a plan to assault one, two, three or four persons using a firearm).⁶ Despite the allegations of multiple possible victims in each count, the state had to prove but a single victim (which did not have to be the same person for both counts).

In short, on the facts of the present case, which of the movie patron(s)—whether as victim(s) of attempted murder or as the target(s) of a conspiracy—was an intended victim (so long as at least one was an intended victim)...