Garzon v. State
| Decision Date | 10 April 2008 |
| Docket Number | No. SC06-2290.,No. SC06-2235.,SC06-2235.,SC06-2290. |
| Citation | 980 So.2d 1038 |
| Parties | Zamir GARZON, Petitioner, v. STATE of Florida, Respondent. Ray C. Balthazar, Petitioner, v. State of Florida, Respondent. |
| Court | Florida Supreme Court |
John F. Cotrone of the Law Firm of John F. Cotrone, P.A., Fort Lauderdale, FL, for Petitioner Ray C. Balthazar.
Bill McCollum, Attorney General, Tallahassee, FL, Celia A. Terenzio, Assistant Attorney General, Bureau Chief, and Mitchell A. Egber and Monique E. L'Italien, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
This case is before the Court for review of the decision of the Fourth District Court of Appeal in Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006). The district court certified that its decision is in direct conflict with the decisions of the First and Second District Courts of Appeal in Davis v. State, 922 So.2d 279 (Fla. 1st DCA 2006), Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), and Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.1
In this case, we address the unobjected-to use of the "and/or" conjunctive phrase between the names of defendants in criminal jury instructions. We hold that the use of "and/or" was error but that it was not fundamental error as to either defendant in these consolidated cases. Accordingly, we approve Garzon.
The Fourth District described in detail the facts of this case. See Garzon, 939 So.2d at 279-82. On March 21, 2003, two individuals attempted to kidnap the Smith family's son. On March 22, 2003, a home invasion occurred at the Smiths' house, while only the grandmother was there. On June 4, 2003, a second home invasion occurred, this time while the mother, daughter, and a housekeeper were at home. Only the crimes that occurred on June 4 were charged against the defendants in this case; however, evidence of the March offenses was introduced at trial as Williams2 rule evidence.
In the June 4 crimes, two individuals forced their way through the Smiths' front door as their housekeeper was coming in that same door. These individuals, identified by members of the Smith family as Ray Balthazar and Charly Coles, then robbed the Smiths of several items. During the home invasion, one of the perpetrators spoke on a cell phone, as if receiving instructions or guidance in executing the crimes. As the Fourth District explained:
The state's theory of the case was that Garzon directed the home invasion by his cell phone conversation with Balthazar. Garzon had previous connections with the Smiths. He had been in the Smiths' home numerous times, working for a man who had built the false wall safe. The state presented evidence of a 39-minute cell phone call at the time of the home invasion; the call originated from Pompano Beach between Balthazar and a cell phone number identified with Garzon.
Balthazar, Coles, and Garzon were all tried before the same jury. Each had separate defense counsel. All three defendants were charged with the same seven crimes: criminal conspiracy, armed burglary of a dwelling, armed robbery, three counts of armed kidnapping, and extortion. After a jury trial, Balthazar was convicted as charged on all counts, and Garzon and Coles were acquitted of extortion and convicted on all other counts.3
The judge provided the State and all defense counsel with a packet of instructions the day before the trial court instructed the jury. The next day, the court asked if counsel had reviewed the instructions and whether they had any objections to the instructions as written. The State and all defense counsel replied that they had no objections and that nothing in the instructions needed to be changed.
The instructions given used "and/or" between the defendants' names for the seven counts. For example, in instructing the jury on the elements of armed burglary, the trial court stated:
To prove the crime of armed burglary of a dwelling, as charged in Count Two of the information, the State must prove the following three elements beyond a reasonable doubt. Number one, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar entered or remained in a structure owned by or in the possession of Sandra Smith.
Number two, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar did not have the permission or consent of Sandra Smith or anyone authorized to act for her to enter or remain in the structure at the time.
Number three, at the time of entering or remaining in the structure, Zamir Garzon and/or [Charly] Coles and/or Ray Balthazar had a fully formed, conscious intent to commit the offense of grand theft and/or robbery in that structure.
(Emphasis added.) These instructions, along with the other instructions given to the jury, were also provided in written form and were permitted to be used by the jury during its deliberations.
In addition to charging the jury on the substantive crimes, the trial court gave a standard charge on principals. This instruction read:
If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did, if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime. To be a principal, the defendant does not have to be present when the crime is committed or attempted.
The trial court also gave a multiple defendants instruction, which read:
A separate crime is charged against each defendant in each count of the information. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to him must be considered separately. A finding of guilty or not guilty as to one or some of the defendants must not affect your verdict as to any other defendants or other crimes charged.
Lastly, each jury verdict form was individualized to each defendant and did not use the "and/or" language.
All three defendants were convicted. Garzon and Balthazar appealed to the Fourth District.4 On appeal, Garzon and Balthazar argued that the use of "and/or" allowed the jury to convict the defendants based on a codefendant committing some or all of the elements of the charged crimes. Their theory was that the jury could have concluded that the State was only required to prove that Garzon "or" Balthazar "or" Coles committed the elements of the offenses and that if, for example, Balthazar committed all of the elements and Garzon committed none, the jury could still convict Garzon based on Balthazar's actions.
If the law of principals applied, the jury could in fact convict Garzon based on Balthazar's actions, provided Garzon had a conscious intent that the criminal acts be done and that Garzon did or said something to aid or encourage those acts. See, e.g., Staten v. State, 519 So.2d 622, 624 (Fla. 1988) (). Garzon and Balthazar argued on appeal to the Fourth District, however, that the jury could convict them based on the acts of another without ever finding that Balthazar and Garzon were principals. Their theory was that this was possible because the elements in the instructions on Counts I through VII simply said "and/or," not "and/or, if you conclude that the law of principals applies."
Conceding that they did not object to the instructions at trial, Garzon and Balthazar argued in the district court that the use of "and/or" was fundamental error. The Fourth District rejected this argument. Relying on our decision in State v. Delva, 575 So.2d 643, 645 (Fla.1991), the Fourth District concluded that the use of "and/or" had not "reach[ed] 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." Garzon, 939 So.2d at 282 (quoting Delva, 575 So.2d at 644-45). Accordingly, the Fourth District concluded that the use of "and/or" was not fundamental error. The court explained:
This is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute. All elements of all crimes were correctly charged. What the "and/or" conjunctions placed in issue was whether one defendant could be held criminally liable for the conduct of a codefendant. If the law of principals applies to a defendant's conduct, that defendant can properly be convicted for a codefendant's criminal acts. Garzon could have been found guilty if either Coles or Balthazar committed a substantive crime and Garzon helped either man commit the crime within the meaning of the principals instruction.
....
With respect to Garzon, everyone in the courtroom knew that the issue boiled down to whether the state had proven that he was the person to whom Balthazar spoke over the cell phone during the home invasion.
Id. at 284 (citations omitted).
In reaching its conclusion that no fundamental error occurred, the Fourth District considered the totality of the record at trial. It noted that the prosecution had not argued for the use of the "and/or" instruction in an improper manner. Instead the State emphasized the law of principals' proper role to the jury, using "the principals instruction as the centerpiece of its argument that Garzon was guilty of the crimes committed by his codefendants." Id. Further, the Fourth District also found empirical support for its conclusion that "and/or" had not confused the jury. The court explained:
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