Houck v. State

• Decision Date: 04 March 1994
• Docket Number: No. 92-2842,92-2842
• Court: Florida District Court of Appeals
• Parties: 19 Fla. L. Weekly D496 John Edward HOUCK, Jr., Appellant, v. STATE of Florida, Appellee.

Page 180

634 So.2d 180

19 Fla. L. Weekly D496

John Edward HOUCK, Jr., Appellant, v. STATE of Florida, Appellee.

No. 92-2842.

District Court of Appeal of Florida Fifth District.

March 4, 1994.

Irby G. Pugh, Orlando, and David A. Henson of Kirkconnell, Lindsey & Snure, P.A., Winter Park, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carmen F. Corrente, Asst. Atty. Gen., Daytona Beach, for appellee.

ON MOTION FOR REHEARING EN BANC

COBB, Judge.

We have considered this case en banc, pursuant to motion by the appellant urging that the original panel decision herein contravened Dixon v. State, 603 So.2d 570 (Fla. 5th DCA), rev. denied, 613 So.2d 9 (Fla.1992) and further urging that this case is one of exceptional importance. We withdraw our prior opinion issued under date of October 22, 1993 and substitute this opinion therefor.

The appellant, John Edward Houck, Jr., was charged with second degree murder. The information alleged that the defendant

did ... an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill and murder GEORGE TOMMIE CARTER, by inflicting blunt force trauma to the head of GEORGE TOMMIE CARTER and in the course thereof did use a weapon; to wit: pavement or a hard surface.

At trial, the state presented evidence that Houck was the aggressor in a brawl in a parking lot. Witnesses testified that they observed Houck straddling the victim, shaking him by the back of his shirt, and repeatedly banging the side of the victim's head against the asphalt surface. The victim died several weeks later from "blunt force trauma."

The jury returned a verdict finding Houck guilty of the lesser-included offense of manslaughter with a weapon. On appeal, Houck contends that the trial court erred in reclassifying the defendant's manslaughter conviction to a first degree felony based on the defendant's use of a weapon because "it is legally and physically impossible for the ground, or any paved surface, to be a weapon for reclassification purposes." The state contends that the trial court properly submitted the issue of whether the pavement constituted a weapon to the jury.

This appeal requires analysis of section 775.087(1), Florida Statutes (1991), the reclassification statute. ¹ In undertaking that analysis we must start with the established principle that penal statutes are to be strictly construed and any ambiguity therein is to be resolved in scope and application in favor of the accused. See Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991); Duba v. State, 446 So.2d 1167, 1169 (Fla. 5th DCA 1984).

The statute reclassifies a second degree felony to a first degree felony if the defendant "carries, displays, uses, threatens, or attempts to use any weapon or firearm." Chapter 775 does not define "weapon"; therefore, as we held in State v. Little, 400 So.2d 197, 198 (Fla. 5th DCA 1981), we must apply the common or ordinary meaning of that word. See also, State v. Buckner, 472 So.2d 1228 (Fla. 2d DCA 1985). The word "weapon" is defined by Webster's New Collegiate Dictionary:

1: an instrument of offensive or defensive combat: something to fight with 2: a means of contending against another.

Clearly, a paved surface is not commonly understood to be an instrument for combat against another person. Even if we resort to Chapter 790, which relates to weapons and firearms, the definition of a "weapon" therein does not avail the state. That definition is:

any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.

Sec. 790.001(13), Fla.Stat. (1991).

The rule of "ejusdem generis" provides that where general words follow an enumeration of specified persons or things, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. See Black's Law Dictionary, 464 (5th ed. 1979). Therefore, the general words "other deadly weapon" cannot be construed as encompassing a paved surface, which is not in the same general class as those instruments and devices enumerated in the statute. A paved surface is an immovable structure that is incapable of being personally possessed, handled, or wielded in the manner of a dirk (knife), club or chemical device.

We agree with Houck's argument in his motion for rehearing that the original panel was in error in deeming the issue of whether a paved surface is a weapon to be one of fact. ² It is not. It is a question for the court to determine as a matter of law. The failure of the statute to broadly define the term "weapon" cannot be cured by jury speculation. As Houck contends, the panel opinion would open a veritable "Pandora's Box" and allow a creative prosecutor, in conjunction with the jury, to turn almost any intentional injury into one caused by a weapon. For example, would the ground be transformed into a weapon merely because it was the point of impact for a person pushed from a cliff or high building? Would the water become a weapon if the victim was pushed overboard from an ocean liner?

Other jurisdictions have strictly construed their statutes to conclude that pavement and other stationary fixtures are not dangerous or deadly weapons. In State v. Legendre, 362 So.2d 570 (La.1978), the Supreme Court of Louisiana held that a concrete parking lot did not constitute a "dangerous weapon" for purposes of proving aggravated battery despite the broad definition given that term by the legislature. The court stated that

By the plain words of the article defining dangerous weapon it includes any gas, liquid or other substance or instrumentality used in a manner calculated or likely to produce death or great bodily harm. A dangerous weapon is not by that definition or any other an expanse of concrete forming a parking lot; just as it is not a graveled area or the turf in a meadow. We realize that the accused could use the concrete of the parking lot by striking the victim a blow which would cause him to fall upon the concrete and sustain injuries. But this is not "use" of a "weapon". No other "use" of the concrete parking lot has been suggested which would produce death or great bodily harm.

Legendre, 362 So.2d at 571. The court further stated that, in seeking to convert the offense into aggravated battery,

the State is attempting to extend the article of the Code so as to create a crime not provided for therein, contrary to the spirit and letter of the law. This is not genuine construction of the term dangerous weapon as contemplated by the statute defining aggravated battery. According to the fair import of the words, in their usual sense dangerous weapon does not mean a concrete parking lot.

Id. at 571-72.

One seeking to distinguish the Legendre case from the present case may contend that here the state is alleging a more specific use of the pavement by which the defendant caused the victim's injuries, i.e., that the defendant repeatedly pounded the victim's head into the pavement. In Edwards v. United States, 583 A.2d 661, 662 (D.C.1990), however, the District of Columbia Court of Appeals rejected a similar argument even where the prosecution proved that the defendant severely injured and permanently disfigured his wife by "repeatedly slamming her head against the bathtub, sink and toilet in the bathroom of their apartment." The D.C.Code provided for enhanced sentences for

[a]ny person who commits a crime of violence ... when armed with or having readily available any ... firearm ... or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machinegun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, or metallic or other false knuckles).

Edwards, 583 A.2d at 663. As with the Florida Statutes, the D.C.Code failed to provide a definition for "dangerous or deadly weapon." In a previous opinion, the court had stated that "an instrument capable of producing death or serious bodily injury by its manner of use qualifies as a dangerous weapon." Id. at 664 (emphasis added) (quoting Powell v. United States, 485 A.2d 596, 601 (D.C.1984), cert. denied, 474 U.S. 981, 106 S.Ct. 420, 88 L.Ed.2d 339 (1985)). Noting that the statute should be strictly construed in favor of the defendant, the court stated that the issue was whether the bathroom fixtures were plainly and unmistakably "dangerous or deadly weapons" with which the defendant could be "armed" or which he could have "readily available" within the meaning of the statute. Id. at 663. According to the court, the specific dangerous instrumentalities enumerated in the statute were:

all items which an assailant carries and then uses to shoot, stab, or otherwise wound his adversary. They do not include stationary objects or anything resembling them.

Id. at 664. The court recognized the logic employed by other jurisdictions which had held that a concrete sidewalk could constitute a dangerous weapon or instrument:

If [the defendant] had detached the commode from the floor and bludgeoned his wife with it, there would be no question that he would have been armed with a dangerous weapon within the meaning of [the statute]. The same damage could be done where the commode was still but the victim's head was in motion.

Id. at 667. Declining to adopt the more expansive approach of these jurisdictions, the court strictly construed the statute to hold that a stationary fixture, such as a sink, commode, or bathtub, could not be a weapon within the statute's meaning.

Here, the underlying fallacy of the state's argument is that it misconceives the legislative intent underlying the reclassification statute. The obvious legislative intent reflected by section 775.087 is to provide harsher punishment for, and hopefully deter,...