Lewis v. State, 96-0073

• Court: Florida District Court of Appeals
• Writing for the Court: STEVENSON; GROSS; FARMER; FARMER
• Citation: Lewis v. State, 693 So.2d 1055 (Fla. App. 1997)
• Decision Date: 14 May 1997
• Docket Number: No. 96-0073,96-0073
• Parties: 22 Fla. L. Weekly D1216 Willie N. LEWIS, Appellant, v. STATE of Florida, Appellee.

Page 1055

693 So.2d 1055

22 Fla. L. Weekly D1216

Willie N. LEWIS, Appellant, v. STATE of Florida, Appellee.

No. 96-0073.

District Court of Appeal of Florida Fourth District.

May 14, 1997.

John A. Garcia of John A. Garcia, Esquire, P.A., West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and William A. Spillias, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, Judge.

Appellant, Willie Lewis, was tried by jury, convicted of throwing a deadly missile at a building, and sentenced to 41 months incarceration. We affirm and write to address appellant's sole point on appeal, that the trial court erred in instructing the jury on the law of "principals."

The testimony at trial

On April 21, 1995, at 1:30 a.m., appellant, Willie Lewis, went to the home of his ex-fiancee, Melonie Cunningham, to ask for his clothes and a television set. Ms. Cunningham was living in her house in Boca Raton with her mother, her three boys (two of whom are appellant's), and her new boyfriend, Timothy Johnson.

Ms. Cunningham was asleep when appellant arrived. Both she and Mr. Johnson got up and spoke with appellant. Ms. Cunningham had already packed up appellant's clothes and had placed them outside by the front door. She would not, however, give appellant the TV because it was rented in her name. About fifteen minutes after appellant arrived, he left with his clothes, never having entered the house. Ms. Cunningham then returned to bed.

At around 3:00 a.m., Ms. Cunningham was suddenly awakened by an explosion. There was a fire in her room, which she managed to extinguish with a couch cushion. The fire caused some damage in the room, but nobody was hurt. It was later discovered that a bottle filled with gasoline and stuffed with a burning rag had been thrown through her window. This type of firebomb device is commonly known as a "Molotov cocktail."

Mark Polk testified that appellant had been living at Polk's home on April 21, 1995, the date of the firebombing. Polk testified that on the afternoon of April 20, appellant told him that he was going to throw a gas bomb into Melonie Cunningham's house. Polk said that appellant was upset over an argument he had had with Cunningham over a television set. Polk told appellant not to do it because there were children in the house. According to Polk, appellant assured him that he knew exactly where the children would be.

Some time after midnight on April 21, Polk was awakened by appellant knocking on the door. Appellant seemed nervous and told Polk that he had thrown the gas bomb into Ms. Cunningham's bedroom window. Polk was not certain what time this took place, but figured that it was 12:00 or 12:30 a.m. because Beavis and Butthead was on TV. He testified that it was not as late as 3:00 a.m., the approximate time of the offense. Polk did not note any smell of gasoline on appellant. Appellant then left the house and returned again at 4:00 or 5:00 a.m..

Polk testified that he keeps a plastic container of gasoline for use in his lawn maintenance business. It is a five gallon container fitted with a tube, and he keeps track of the gas with markings on the container. The morning after the firebombing, Polk noticed about half a gallon of gas missing from the container. Officer Cosova testified that during her investigation in the days following the crime, she saw a five gallon plastic container of gas fitted with a hose on the porch of Polk's house.

After all the testimony had been taken, the State requested that the jury be instructed on principals and explained why:

Based on the statements that the defendant made earlier that afternoon, this is clear, and the act occurring early that morning, there is just too much coincidence.

There is no way that he didn't know that it's going to happen and somehow participated in the fire bombing. We believe there is ample evidence to show that, and somehow he participated. There is too much coincidence, something like that would not happen.

Defense counsel responded:

I clearly disagree with that. I mean, there has been no evidence presented for this Court that would show that the State has alleged at any point that anybody has been involved in this other than Mr. Lewis.

It's purely speculation on their part. I think they are just reaching at this point. I think that is going to confuse the jury. They are going to start thinking something might have taken place they weren't told about.

The judge decided to give the instruction. ¹

Discussion

Jury instructions requested by the State "must relate to issues concerning evidence received at trial." Butler v. State, 493 So.2d 451, 452 (Fla.1986); accord Buford v. Wainwright, 428 So.2d 1389, 1390-91 (Fla.) ("Only instructions which have support in the record should be given to the jury."), cert. denied, 464 U.S. 956, 104 S.Ct. 372, 78 L.Ed.2d 331 (1983); Griffin v. State, 370 So.2d 860, 861 (Fla. 1st DCA 1979)(a charge requires an "appropriate factual basis in the record").

Therefore, it is generally error to instruct the jury on principals where there is no evidence to support an aiding and abetting theory of guilt because the jury may be confused by the instruction. However, in order for the unnecessary instruction to constitute reversible error, it must, under the circumstances of the case, be capable of misleading the jury in such a way as to prejudice the defendant's right to a fair trial. For example, in Hair v. State, 428 So.2d 760, 763 (Fla. 3d DCA 1983), Hair and a co-defendant were jointly tried for a series of rapes perpetrated on the victim. The court held that it was error not to inform the jury that the instruction on principals applied only to Hair's co-defendant and not to him where an unknown third party may have participated with the co-defendant in the first rape, and the State acknowledged that Hair did not act in concert with anyone in committing the second rape. The court noted that the risk of confusion was prejudicial because, in the context of that case, the principals instruction "left it unclear whether it referred to Hair or the unknown third party." Id. at 763.

Likewise, in Lovette v. State, 654 So.2d 604, 605-06 (Fla. 2d DCA 1995), the court reversed a conviction where it found an insufficient evidentiary basis for an instruction on principals and the likelihood that the instruction confused the jury. There, the State presented testimony that the defendant was seen carrying boxes out of the victim's apartment by himself. The defendant testified that he had received the goods, not knowing that they were stolen, from some neighbors in exchange for crack cocaine. The court found that it was error to instruct the jury on the law of principals since there was no evidence that Mr. Lovette acted in concert with anyone in committing the theft or the burglary. The court noted that there may have been evidence that he acted in concert with his neighbors with respect to dealing in stolen property, but he was not charged with that crime. In finding that the unnecessary principals instruction was prejudicial, the court stated:

It is obvious from the questions posed during its deliberations that the instruction confused the jury. Additionally, this instruction misled the jury to think that it had to convict Mr. Lovette of both charges if it found he helped the neighbors sell the stolen items.

Id. at 606.

In the instant case we find that the instruction on the law of principals was within the appropriate discretion of the trial court in view of the evidence presented at trial. The State advanced dual theories of the case: (1) the State's primary assertion was that Appellant personally threw the Molotov cocktail; and (2) that even if he did not, he was sufficiently involved in the crime to be found guilty as an aider and abettor. Regarding this second theory, the prosecutor argued:

[T]he Judge is also going to give you a principal instruction, and that is whether or not he knew it was going to happen and he didn't happen to be there.

* * * * * *

[H]e either knew what was going to happen, played an active role in making it happen, or he threw it through that bedroom window. ²

Trial judges have wide discretion in decisions regarding jury instructions, and the appellate courts will not reverse a decision regarding an instruction in the absence of a prejudicial error that would result in a miscarriage of justice. Sheppard v. State, 659 So.2d 457, 459 (Fla. 5th DCA 1995). A conviction for aiding and abetting requires the State to prove (1) the defendant's intent that the crime be committed; and (2) the defendant's performance of some act to assist in the commission of the crime. See § 777.011, Fla.Stat. (1995); Staten v. State, 519 So.2d 622, 624 (Fla.1988). In this close case concerning whether there was sufficient evidence of aiding and abetting to support an instruction on the law of principals, we cannot conclude that the trial court abused its discretion.

An act in furtherance of the firebombing--permissible inference?

The State's unknown accomplice theory would likely be impermissible speculation in a typical case; however, here that theory is made plausible by words which allegedly came from appellant's own mouth--appellant said that he was going to do it, then afterward said that he had done it, and in fact, the firebombing did take place. That the final consummation of the firebombing required some form of human agency is a matter not of speculation, but rather, the application of common sense. The State is not required to prove every detail with which the defendant commits a crime so long as the essential elements of the offense are established beyond a reasonable doubt. See Purifoy v. State, 359 So.2d 446, 449 (Fla.1978), and the cases cited therein for the "fundamental rule that the prosecution must prove every essential element of the crime charged."

The combined evidence of appellant's statement on the afternoon...