Martin v. State

• Decision Date: 18 November 2016
• Docket Number: No. 5D15–284.,5D15–284.
• Citation: 207 So.3d 310
• Parties: Dante MARTIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

207 So.3d 310

Dante MARTIN, Appellant,

v.STATE of Florida, Appellee.

No. 5D15–284.

District Court of Appeal of Florida, Fifth District.

Nov. 18, 2016.

Rupak R. Shah and Frances E. Martinez, of Escobar & Assoc., P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone and Bonnie Jean Parrish, Assistant Attorney Generals, Daytona Beach, for Appellee.

PALMER, J.

Dante Martin (the defendant) appeals his judgment and sentences, which were entered by the trial court after a jury found him guilty of committing the crimes of manslaughter,¹ felony hazing resulting in death,² and two counts of misdemeanor hazing.³ We affirm.

The defendant was a member of the percussion section of the Florida A & M University's marching band, the "Marching 100." Members of the percussion section are entitled to ride to away events in a motor coach known as "Bus C." The defendant was president of Bus C.

A tradition or ritual known as "Crossing Bus C" has existed at the University for some time. The ritual consists of three components: 1) the hot seat, 2) the prepping, and 3) the crossing. During the hot seat, the participant takes a seat on Bus C (near the front) and is struck or hit repeatedly by others, including members of the percussion section. Next, the participant is prepped. During the prepping, the participant stands up and places his or her hands on the luggage rail and is then slapped a number of times with full force by the others on the bus. After the prepping, the participant crosses from the front of the bus to the back while others slap, kick, and punch the participant. The defendant, as bus president, decided when someone could cross Bus C.

On the day at issue, Keon Hollis, Robert Champion, and the defendant, as members of the Marching 100, performed at the Florida Classic in Orlando, Florida. Immediately following the band's performance, the defendant asked Hollis if he planned to cross the bus. Hollis indicated that he wanted to do so. Later, Jonathan Boyce, also a member of the band, received a text from the defendant asking him to convey to Hollis and Champion that if they wanted to cross "it's available" to them.

That night, Lissette Sanchez (another member of the percussion section), Hollis, and Champion crossed Bus C, and the defendant participated in these crossings. Champion was the last to cross. When Champion made it to the back, he appeared tired, but indicated, "I'm good." After the crossings were completed, everyone left the bus except Champion. When Boyce noticed that Champion was not with him, he returned to the bus. He found Champion in the back of the bus panicking; and, shortly thereafter, Champion passed out. Champion was taken to a hospital, but efforts to save his life were not successful.

Champion's body was transferred from the hospital to the medical examiner's office. Dr. Sarah Irrgang, the associate medical examiner, visually examined Champion's body. She observed some discoloration and a few superficial abrasions

, she took several photographs, and then released Champion's body for bone harvesting. The next day, after his leg bones had been harvested, Champion's body was returned to the medical examiner's office. At that time, Dr. Irrgang noticed unevenness in the skin on Champion's torso, suggesting swelling. This observation prompted Dr. Irrgang to investigate further. She took a number of pictures of Champion's body during the ensuing autopsy. Based on her investigation, she determined that the manner of death was homicide.

The defendant was later arrested and charged with manslaughter, felony hazing resulting in death, and two counts of misdemeanor hazing. The matter proceeded to a jury trial, which resulted in guilty verdicts on all counts. The trial court entered judgment in accordance with the verdicts and sentenced the defendant to a term of seventy-seven months' imprisonment. This appeal followed.

The defendant first argues that his three hazing convictions must be reversed because Florida's hazing statute is unconstitutionally overbroad and vague. We disagree.

A trial court's decision regarding the constitutionality of a statute is reviewed de novo. State v. Catalano, 104 So.3d 1069, 1075 (Fla.2012). When addressing constitutional challenges to statutes based on the doctrines of overbreadth and vagueness,

[a] court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

State v. Kahles, 644 So.2d 512, 512–13 (Fla. 4th DCA 1994) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ), approved, 657 So.2d 897 (Fla.1995) (footnotes omitted).

Florida's hazing statute defines the term hazing, provides examples of hazing, and provides a list of activities or conduct excepted from the definition of hazing:

1006.63. Hazing Prohibited:

(1) As used in this section, "hazing" means any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution. "Hazing" includes, but is not limited to, pressuring or coercing the student into violating state or federal law, any brutality of a physical nature, such as whipping, beating, branding, exposure to the elements, forced consumption of any food, liquor, drug, or other substance, or other forced physical activity that could adversely affect the physical health or safety of the student, and also includes any activity that would subject the student to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment, or other forced activity that could adversely affect the mental health or dignity of the student. Hazing does not include customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective.

....

(5) It is not a defense to a charge of hazing that:

(a) The consent of the victim had been obtained;

(b) The conduct or activity that resulted in the death or injury of a person was not part of an official organizational event or was not otherwise sanctioned or approved by the organization; or

(c) The conduct or activity that resulted in death or injury of the person was not done as a condition of membership to an organization.

§ 1006.63(1), (5), Fla. Stat. (2012).

As for the defendant's overbreadth claims, a "statute is deemed to be overbroad if it seeks to control or prevent activities properly subject to regulation by means which sweep too broadly into an area of constitutionally protected freedom." J.L.S. v. State, 947 So.2d 641, 644 (Fla. 3d DCA 2007) (citing Firestone v. News—Press Publ'g Co., Inc., 538 So.2d 457, 459 (Fla.1989) ). In J.L.S., the Third District set forth the following principles concerning the overbreadth doctrine:

The doctrine of overbreadth permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially "because it also threatens others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Sult v. State, 906 So.2d 1013, 1019 (Fla.2005) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) ). In other words, the issue of overbreadth is one of the few exceptions to the traditional rules that courts will not consider factual questions beyond the scope of the case at hand.See Schmitt v. State, 590 So.2d 404, 411–12 (Fla.1991). "Hypothetical consequences are considered in the case of allegedly overbroad statutes precisely because this is the only way to give effect to the constitutional right of free speech." Id. at 411.

The deleterious result of overbroad statutes often is described as a "chilling effect." ... The overbreadth doctrine and its requirement of considering hypothetical consequences is intended to eliminate this chilling effect and thus allow for the free, unhindered exercise of constitutional rights.

Id. at 412 (citations omitted). It is said, however, that in the arena of free speech and expression, the overbreadth doctrine is an unusual remedy which is to be used sparingly, particularly where the challenged statute is primarily meant to regulate conduct and not merely pure speech. Id.

947 So.2d at 644–45. Of consequence, "the overbreadth doctrine applies only if the legislation is susceptible of application to conduct protected by the First Amendment." Simmons v. State, 944 So.2d 317, 323 (Fla.2006) (quoting Southeastern Fisheries Ass'n, Inc. v. Dep't of Nat. Res., 453 So.2d 1351, 1353 (Fla.1984) ).

The defendant asserts that Florida's hazing statute encroaches upon constitutionally-protected speech or conduct and, thus, the statute is overbroad; however, he does not articulate how the statute is susceptible of application to speech or conduct protected by the First Amendment. See id.; State v. Bryant, 953 So.2d 585, 587 (Fla. 1st DCA 2007). Rather, he simply argues that, by criminalizing hazing without respect to the victim's consent, subsection 1006.63(5) regulates and restricts "a wide variety of activity...