Hernandez v. State, 5D04-2467.
| Decision Date | 03 February 2006 |
| Docket Number | No. 5D04-2467.,5D04-2467. |
| Citation | 919 So.2d 707 |
| Parties | Luis HERNANDEZ, 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.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Luis Hernandez appeals his conviction of conspiracy to traffic in cannabis. Hernandez claims that the instructions to the jury were fundamentally flawed and that the trial court erred when it allowed the State to introduce an audio tape of a telephone conversation without proper authentication.1 We conclude that the cumulative effect of the errors requires a new trial.
Hernandez was charged with trafficking in cannabis, conspiracy to traffic in cannabis, and possession of a misdemeanor amount of cannabis. The trial court granted Hernandez's motion for judgment of acquittal as to the misdemeanor possession charge. The trafficking charge was mistried when the jury was unable to reach a verdict as to that charge. However, the jury found Hernandez guilty of the conspiracy charge.
The information, charging Hernandez with conspiracy to traffic, alleged:
Pedro Mioureseou Martinez and Luis Heriberto Hernandez in the County of Lake, and the State of Florida, between 1998 and the 5th day of October, 2000, in the County and State aforesaid did unlawfully and intentionally agree or conspire with Norman Hickman to engage in specific conduct prohibited by law, to wit: trafficking in cannabis in violation of Florida Statute 777.04(3), 893.03(1)(c)(7) and 893.135(1)(a).
The jury instructions as to the conspiracy charge provided, in pertinent part:
To prove the crime of criminal conspiracy, the State must prove the following two elements beyond a reasonable doubt:
1. The intent of Luis Hernandez was that the offense of trafficking in cannabis would be committed.
2. In order to carry out the intent Luis Hernandez agreed, or conspired, with Norman Hickman and/or Debra Scherler-Hickman to cause trafficking in cannabis to be committed either by them, or by one of them, or by some other person.
Hernandez's counsel did not object to the proposed instructions at the charge conference; instead, he announced that the proposed instructions were "fine."
On appeal, Hernandez contends that the conspiracy instruction given to the jury was fundamentally flawed because it failed to require the State to prove a conspiracy involving a trafficking amount of cannabis. Clearly, Hernandez failed to preserve the issue for review by failing to raise a contemporaneous objection to this element of the jury instructions at trial. State v. Delva, 575 So.2d 643, 644 (Fla. 1991). However, the failure to fully instruct the jury on all of the elements of the crime that the defendant is charged with committing, and that the State must prove, constitutes fundamental error. In King v. State, 800 So.2d 734 (Fla. 5th DCA 2001), this Court said:
Fundamental error occurs when a trial court fails to instruct a jury on an essential element of the crime charged. If the trial court issues an incomplete or inaccurate jury instruction, fundamental error may occur if the error relates to an element of the crime. However, in order for the error in the instruction to be fundamental, it must pertain to an element of the crime that is a disputed issue in the case.
Id. at 737; see also Concepcion v. State, 857 So.2d 299, 300 (Fla. 5th DCA 2003).
The error here pertains to an element of the crime that was disputed in the case. Hernandez challenged whether all of the substance introduced as evidence at trial was actually cannabis. Also, without specifying the weight of cannabis that Hernandez allegedly conspired to traffic in, it would be impossible for the trial court to properly sentence Hernandez under section 893.135, Florida Statutes (2001). Thus, without the inclusion of a reference to the...
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Roy v. State
...call.Florida cases on authentication of electronic communications dealing with audio recordings are critical here. In Hernandez v. State, 919 So. 2d 707 (Fla. 5th DCA 2006), this Court found that, in a conspiracy to traffic in narcotics trial, an audio recording was not authenticated when t......
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