Hamilton v. State, 93-01230
| Decision Date | 16 November 1994 |
| Docket Number | No. 93-01230,93-01230 |
| Citation | 645 So.2d 555 |
| Court | Florida District Court of Appeals |
| Parties | 19 Fla. L. Weekly D2441 Shane D. HAMILTON, Appellant, v. STATE of Florida, Appellee. |
Mark King Leban, Law Offices of Mark King Leban, P.A., Miami, and Terrence J. McWilliams, Coconut Grove, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
Shane D. Hamilton appeals his judgments and sentences for grand theft in the second degree, burglary of a dwelling, and second-degree felony murder imposed after a jury trial. We find merit in his contention that the trial court committed reversible error in deviating from the standard jury instruction concerning the definition of what constitutes a "structure." Accordingly, we reverse the burglary and murder convictions and remand for a new trial. 1 We reject, however, Hamilton's claims that the trial court erred in failing to give a theory of defense instruction based on justifiable and excusable homicide, see Parker v. State, 570 So.2d 1048 (Fla. 1st DCA 1990), and in denying his motion for judgment of acquittal.
Hamilton was charged in one count of an information with burglarizing the dwelling of Stephen Jenks. He was charged in a separate count with the second-degree felony murder of Brian Thomas. The state's theory of prosecution as to burglary was that Hamilton and Thomas entered the curtilage of Jenks' dwelling with the intent to steal motors attached to a boat located next to the home. The state's theory as to second-degree murder was that during the perpetration of this burglary, Jenks, the innocent homeowner, shot and killed Thomas. Such theories, if proven, would clearly support convictions for burglary of a dwelling under Baker v. State, 636 So.2d 1342 (Fla.1994), and second-degree felony murder under State v. Dene, 533 So.2d 265 (Fla.1988).
At trial, the state presented evidence demonstrating that Hamilton and Thomas entered Jenks' backyard and proceeded to remove outboard motors from a boat parked on a trailer against the back wall of Jenks' home. When Jenks observed this activity from inside his home, he attempted to call the police but discovered his phone did not work. 2 He then secured a shotgun, went out the front door, and confronted Hamilton and Thomas in the backyard. During the confrontation, Jenks shot and killed Thomas and then fired at a truck in which Hamilton was fleeing the scene.
The testimony was unrefuted that this home was Jenks' dwelling and that at the time of the incident he was occupying it as such. The state also introduced photographic evidence depicting the backyard of the home. It showed the boat in a semi-secluded area adjacent to the home surrounded by several unevenly spaced trees. This was the only evidence adduced tending to establish that the backyard was enclosed.
At the jury instruction charge conference, Hamilton requested that the trial court give the definition of "structure" contained in the Florida Standard Jury Instructions in Criminal Cases. That definition provides that " '[s]tructure' means any building of any kind, either temporary or permanent, that has a roof over it, and the enclosed space of ground and outbuildings immediately surrounding the structure." Fla.Std.Jury Instr. (Crim.), at 136, (Burglary) (emphasis added). Instead, the trial court opted, without explanation, to give a modified instruction requested by the state. The instruction tracked the statutory definitions of "structure" and "dwelling" but then proceeded to define "curtilage" as "the ground and buildings immediately surrounding a structure and dwelling and customarily used in connection with it." This definition was taken almost verbatim from A.E.R. v. State, 464 So.2d 152, 153 (Fla. 2d DCA), review denied, 472 So.2d 1180 (Fla.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985).
We conclude that the trial court erred in giving this modified instruction in place of the standard instruction without stating "on the record or in a separate order the respect in which [it found] the standard form erroneous or inadequate and the legal basis of [its] finding." Fla.R.Crim.P. 3.985. A trial court's obligation in that regard is mandatory. Moody v. State, 359 So.2d 557, 560 (Fla. 4th DCA 1978). We also conclude that the modified instruction did not completely reflect the law of Florida regarding the definition of curtilage.
We begin our discussion with an examination of relevant sections of chapter 810, Florida Statutes (1991), that define the crime of burglary. We also focus on the recent interpretive gloss placed on the burglary statute by the supreme court in Baker.
Section 810.02(1) provides in pertinent part that " '[b]urglary' means entering or remaining in a structure ... with the intent to commit an offense therein." Section 810.02(3) enhances the penalty for burglary if the structure entered is a dwelling. Section 810.011(1) defines structure to mean "a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof." (Emphasis added.) 3 Section 810.011(2) defines a dwelling as "a building or conveyance of any kind, either temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof." (Emphasis added.) 4 Thus, as the court noted in Baker, "[t]he legislature has defined 'dwelling' such that the definition includes the curtilage." 636 So.2d at 1343. Consistent with that determination, it concluded that under the burglary statute "it would not matter whether [the defendant] was in [the homeowner's] secluded back yard or back bedroom; in either circumstance, the courts must consider him to have been within [the homeowner's] dwelling." 636 So.2d at 1344 (emphasis added).
In reaching this conclusion, the court observed that "the legislature has so thoroughly modified the burglary statute that the present statute must be said to completely abrogate and supersede the common law crime of burglary." 636 So.2d at 1344. Noting the legislature's addition of curtilage to the definitions of "structure" and "dwelling," it then determined that 636 So.2d at 1344 (emphasis added). Given this analysis, it is thus readily apparent that what constitutes the curtilage is a significant issue where there is no proof, as here, of an actual entry into the physical structure itself.
In this case, Hamilton requested the definition of structure contained in the standard jury instructions approved for use in criminal cases by the Florida Supreme Court. That definition clearly states that the area of ground immediately surrounding a structure (the curtilage) must be enclosed. The state, realizing the possible deficiency of its proof regarding enclosure, prevailed upon the trial court to give a modified instruction based on language appearing in an appellate opinion. 5 This instruction clearly eliminated the requirement in the standard instruction that the curtilage be enclosed. As noted, the trial court never gave a reason why the standard instruction was legally erroneous or inadequate such that there were "extraordinary circumstances" requiring that it be modified to "accurately and adequately state the relevant law." Moody, 359 So.2d at 560. This was reversible error in light of what we perceive to be the relevant law of Florida regarding the necessity that the curtilage be enclosed.
As noted, the legislature did not define the term curtilage in the burglary statute. Nor can we determine from the statute the legislature's clear intent as to its meaning. Thus, we resort to time-honored principles of statutory construction to assist us in gleaning the definition of curtilage under the burglary statute.
We first analyze relevant case law that has considered the concept of curtilage in the context of the burglary statute. See, e.g., Tingley v. Brown, 380 So.2d 1289 (Fla.1980). We turn again to Baker for guidance. We find it compelling that in determining that the defendant entered the homeowner's "dwelling" by entry onto the curtilage, the supreme court took great care to point out that the area entered (the yard) was "secluded" and "protected by a fence and shrubbery where the owner had an expectation of privacy." 636 So.2d at 1344. Thus, by emphasizing the "secluded" and "protected" nature of the curtilage, it is reasonable to conclude that the court recognized the necessity that the curtilage of a dwelling or structure somehow be enclosed before it can be considered an extension of the dwelling or structure and thus covered by the burglary statute. 6
This conclusion that proof of enclosure is necessary is also consistent with the facts of prior Florida cases upholding burglary convictions premised on the theory that the curtilage was entered. See State v. Rolle, 577 So.2d 997 (Fla. 4th DCA 1991) (); T.J.T. v. State, 460 So.2d 508 (Fla. 3d DCA 1984) (); Tobler v. State, 371 So.2d 1043 (Fla. 1st DCA), cert. denied, 376 So.2d 76 (Fla.1979) (); DeGeorge v. State, 358 So.2d 217 (Fla. 4th DCA 1978) (); Greer v. State, 354 So.2d 952 (Fla. 3d DCA 1978) (). 7 But see J.E.S. v. State, 453 So.2d 168 (Fla. 1st...
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