Kettell v. State
| Decision Date | 07 March 2007 |
| Docket Number | No. 2D05-2882.,2D05-2882. |
| Citation | 950 So.2d 505 |
| Parties | Charles A. KETTELL, Sr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Amanda Lea Colón, Assistant Attorney General, Tampa, for Appellee.
Charles A. Kettell, Sr., appeals his second-degree felony conviction for shooting at, within, or into a building. Because the trial court gave—over Kettell's objection— an erroneous instruction concerning the elements of the offense, we reverse the conviction.
Section 790.19, Florida Statutes (2003), provides: "Whoever, wantonly or maliciously, shoots at, within, or into . . . any public or private building, occupied or unoccupied, . . . shall be guilty of a felony of the second degree . . . ." The State alleged that while Kettell was in his dwelling, he shot into an interior wall of the dwelling. Among the instructions the trial court gave to the jury concerning the elements of the offense was the following statement:
In order to sustain a conviction for wantonly or maliciously shooting at, within or into a building, the conduct must have been done with an intent to cause damage or injury. This intent element is fulfilled by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into a building per se.
(Emphasis added.)
The defense objected to this instruction because the use of the phrase "per se" suggested that "just shooting into a building creates per se liability and that's not the law." The trial court abused its discretion in giving the instruction over Kettell's objection.
The instruction states that the wanton or malicious "intent element is fulfilled . . . by a person who shoots at, within, or into a building per se." Per se means "[o]f, in, or by itself; standing alone, without reference to additional facts." Black's Law Dictionary 1178 (8th ed.2004). The term per se carries with it a connotation of absolute liability. The instruction thus indicates that shooting at, within, or into a building is an act that "standing alone"—that is, without reference to the intent to cause damage or injury—is sufficient to satisfy the intent element of the offense. This is not a correct statement of the law. To prove a violation of section 790.19, it must be established that the act is done wantonly or maliciously. See Fla. Std. Jury Instr. (Crim.) 10.13.
In giving the incorrect instruction, the trial court relied on language in Holtsclaw v. State, 542 So.2d 437, 438-39 (Fla. 5th DCA 1989). See also Skinner v. State, 450 So.2d 595, 596 (Fla. 5th DCA 1984). As we have explained, we cannot accept the view that the language at issue constitutes a correct and clear statement of the law. The Holtsclaw court undoubtedly sought to express the view that an offense under section 790.19 may be established without showing that the defendant shot at someone. In other words, a defendant who shoots into a building can do so wantonly or maliciously even though he does not shoot at someone. Unfortunately, the language employed in Holtsclaw suggests that the intent element is fulfilled simply by showing that someone shot into a building without proving that the shooting was done wantonly or maliciously.
It is no doubt possible that a perceptive juror considering the full context of the instructions would discern that "the intent to cause damage or injury" was required both with respect to circumstances where the shooting is "at a person" and with respect to circumstances where it is not. But such a possibility is no basis for affirming a conviction based on the verdict of a jury given an instruction that was "confusing, contradictory, or misleading." Butler v. State, 493 So.2d 451, 452 (Fla. 1986).
This is not a case where "it appears from the whole record that the jury could not have been misled by the instructions." Johnson v. State, 252 So.2d 361, 364 (Fla. 1971), judgment vacated in part on other grounds, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972). The problem with the instructions is not that a portion of the instructions is unclear when viewed in isolation from the remainder of the instructions but clear when viewed in context. On the contrary, when the instructions here are considered in full context, the best that can be said of them is that they are contradictory and therefore confusing and misleading. "[T]aken as a whole, the instructions . . . given are [not] clear, comprehensive, and correct." Maynard v. State, 660 So.2d 293, 297 (Fla. 2d DCA 1995).
Kettell was entitled to be judged by a jury which was given correct instructions concerning the elements of the offense charged against him. This is not a trivial technicality.
"It is an inherent and indispensable requisite of a fair and impartial trial under the protective powers of our Federal and State Constitutions as contained in the due process of law clauses that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence."
Scott v. State, 808 So.2d 166, 170 (Fla.2002) (quoting Gerds v. State, 64 So.2d 915, 916 (Fla.1953)), superseded on other grounds by statute, § 893.101, Fla. Stat. (2002), as recognized in Garcia v. State, 901 So.2d 788, 792 n. 1 (Fla.2005).
Here, the trial court did not "`correctly and intelligently instruct the jury on the essential and material elements of the crime charged.'" Scott, 808 So.2d at 170 (quoting Gerds, 64 So.2d at 916). Accordingly, the judgment and sentence are reversed and the case is remanded for a new trial.
Reversed and remanded.
In my view, the instruction given by the trial court was a proper explication of the law. Further, I cannot agree that the instruction was contradictory or confusing. I would affirm the conviction.
A recitation of the underlying facts places the instruction in context. Neighbors heard shots coming from Mr. Kettell's apartment. They called the police. Upon searching the apartment, the police found four .38 caliber bullet holes in the floor boards of the apartment. Additionally, the police discovered a dismantled .38 caliber revolver, a 9½ wooden dowel, gun-cleaning brushes, a leather holster, a bottle of powder solvent, and a pouch of ammunition. Fortunately, no one was hurt. Apparently, Mr. Kettell was not shooting at anyone. Our record does not suggest, however, that he fired the shots accidentally.
The police arrested Mr. Kettell and charged him under section 790.19, Florida Statutes (2003):
Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree. . . .
On its face, the statute does not require an intention to shoot the gun at a person. To secure a conviction, the State had to prove beyond a reasonable doubt that Mr. Kettell wantonly or maliciously shot his gun in his apartment. Id.
The standard criminal jury instructions address the offense with which the State charged Mr. Kettell. Fla. Std. Jury Instr. (Crim.) 10.13. The State, however, requested two additional instructions based on Holtsclaw v. State, 542 So.2d 437 (Fla. 5th DCA 1989). The Holtsclaw facts are strikingly similar to those before us. Mr. Holtsclaw shot his gun six times into the floor and walls of his trailer. Id. at 438. He appealed his conviction, arguing that section 790.19 was inapplicable because (1) he owned the trailer, and (2) he either did not intend to harm anyone or did not aim at anyone. Id. The Fifth District rejected these defenses. "`[S]ection 790.19 . . . is violated by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into a building per se.' (emphasis added)." Id. at 438-39 (quoting Skinner v. State, 450 So.2d 595, 596 (Fla. 5th DCA 1984)); see also Ballard v. State, 447 So.2d 1040 (Fla. 2d DCA 1984). Thus, according to Holtsclaw, the statute does not require an intent to harm or shoot at anyone. The mere shooting in the building, if done with the requisite wantonness or maliciousness, is enough to violate section 790.19. Holtsclaw does not eliminate the wantonness or maliciousness element of the statute.
Anticipating that Mr. Kettell would raise arguments akin to those rejected in Holtsclaw, the State requested instructions stating that the fact that a defendant fired in his own home or was not shooting at a person were not defenses. Mr. Kettell objected. Defense counsel assured the trial court that he would not raise these matters in closing argument. As a result, the trial court declined to give these instructions, concluding that the standard instructions were sufficient. The trial court made clear to Mr. Kettell's counsel, however, that it would give the Holtsclaw instructions if counsel argued the inappropriate defenses before the jury. Ignoring this admonition, defense counsel suggested in closing argument that the jury...
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State v. Kettell
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...Guardiola v. State, 951 So. 2d 997 (Fla. 2d DCA 2007) THE TRIAL 5-65 The Trial: Jury Instructions: Generally 5.14 (See Kettell v. State , 950 So. 2d 505 (Fla. 2d DCA 2007), approved, State v. Kettell , 980 So. 2d 1061, for discussion of the elements of shooting in a dwelling and the proper ......