McKenzie v. State

• Decision Date: 13 November 2002
• Docket Number: No. 4D01-1786.,4D01-1786.
• Citation: 830 So.2d 234
• Parties: Joyce McKENZIE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

830 So.2d 234

Joyce McKENZIE, Appellant, v. STATE of Florida, Appellee.

No. 4D01-1786.

District Court of Appeal of Florida, Fourth District.

November 13, 2002.

Carey Haughwout, Public Defender, and Jennifer Brooks, Assistant Public Defender, West Palm Beach, for appellant.

Richard E. Doran, Attorney General, Tallahassee, and Barbara A. Zappi, Assistant Attorney General, Fort Lauderdale, for appellee.

SHAHOOD, J.

This is an appeal by Joyce McKenzie from a Judgment of Conviction and Sentence on the charges of possession of cocaine and possession of drug paraphernalia—a crack cocaine pipe. We affirm the trial court's instruction to the jury on the charge of possession of cocaine without comment, but reverse the two other issues raised by appellant and remand for a new trial.

With respect to the first issue in this case, the trial court, during the charge conference on its instruction to the jury on possession of drug paraphernalia, noted that there did not seem to be any testimony which supported factor "four"¹ of the instruction. The standard jury instruction for possession of drug paraphernalia states that in addition to all other relevant factors, certain factors (thirteen in all) shall be considered in determining whether an object is drug paraphernalia. Factor five states as follows:

Direct or circumstantial evidence of the intent of an owner, or anyone in control of the object, to deliver it to persons whom [he][she] knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

Fla. Std. Jury Instr. (Crim.) 25.14; § 893.146, Fla. Stat. (2000).

Defense counsel agreed with the court and did not think it applied either. The prosecutor then stated:

That's the reason I only included the second sentence, "The innocence of an owner or of anyone in control of the object as to a direct violation of this act should not prevent a finding that the object is intended for use or designed for use as drug paraphernalia," and cut out the first sentence, but I do request the second sentence.

The Court: Do you have any objections to that, Mr. Cohen, reading the second sentence only?

[Defense]: I do. If the legislature intended for the instruction to be read, you know, their way or just part of it, they would have told us that.

....

[Defense]: ... I don't think it's relevant. There is no evidence she intended to deliver it to anyone like you said before.

....

The Court: I'm going to delete that first sentence. I don't see it's applicable. I will read the second sentence. I don't think taking the first sentence out makes the second sentence misleading or incomplete in any way.

[Defense]: We would respectfully object to that. It's our view if the legislature intended for that to happen, then it would have provided the provision explicitly saying that.

As to the charge of possession of drug paraphernalia, the jury was instructed, in part, as follows:

Before you find the defendant guilty of possession of drug paraphernalia, the State must prove the following three elements beyond a reasonable doubt. One, that Joyce McKenzie used or had in her possession the intent to use drug paraphernalia. Two, Joyce McKenzie had knowledge of the presence of drug paraphernalia. And three, Joyce McKenzie had knowledge of the elicit [sic] nature of the drug paraphernalia allegedly possessed.

....

In addition to all of the other logically relevant factors, the following factors should be considered in determining whether or not the object is drug paraphernalia. The proximity of the object in time and space to a direct violation of this act. The proximity of the object to the controlled substance.

The existence of any residue of a controlled substance on the object. The innocence of an owner or of anyone in control of the object, as to a direct violation if this act shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia.

At the conclusion of reading the instructions, defense counsel renewed his objection to the drug paraphernalia charge.

On appeal, appellant argues that the trial court erred in giving the jury an inaccurate and misleading instruction on the possession of drug paraphernalia.

A trial court's decision on the giving or withholding of a proposed jury instruction is reviewed under the abuse of discretion standard of review. See Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998)

. A trial court "should not give instructions which are confusing, contradictory, or misleading." Mogavero v. State, 744 So.2d 1048, 1049 (Fla. 4th DCA 1999)(quoting Butler v. State, 493 So.2d 451, 452 (Fla.1986)). Reversible error occurs when an instruction is not only an erroneous or incomplete statement of the law, but is also confusing or misleading. See id. at 1050 (citing Gross v. Lyons, 721 So.2d 304, 306 (Fla. 4th DCA 1998),

approved, 763 So.2d 276 (Fla.2000)). The test is not whether a particular jury was actually misled, but instead the inquiry is whether the jury might reasonably have been misled. See id. When a court erroneously charges a jury on the elements of a crime, the harmless error doctrine should be invoked with great caution. See id.

In applying the above test, it can be concluded that the jury might reasonably have been misled based on an inaccurate or misleading reading of the jury instruction at issue. Factor five concerned whether there was evidence of intent of the "owner, or anyone in control of the object, to deliver it to persons whom he [ ] knows, or should reasonably know, intend to use the object to facilitate a violation of this act." The trial court as well as the parties agreed that factor five did not apply to the facts of this case, since this case did not involve the delivery of an object. Notwithstanding that fact, the court nevertheless permitted the remaining portion of factor five to be submitted to the jury: "The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia." This second sentence clearly qualified the first sentence. See generally Rich Elecs., Inc. v. S. Bell Tel. & Tel. Co., 523 So.2d 670, 672 (Fla. 3d DCA 1988),

rev. denied, 560 So.2d 234 (Fla.1990)(rule of statutory construction is that a relative or qualifying phrase is to be construed as referring to its nearest antecedent). By taking it out of context, this inaccurate instruction may have misled the jury regarding the presumption of innocence and the state's burden of proof. Thus, the jury could have concluded that even if appellant did not know that the object was a crack pipe, they could nevertheless find her guilty if they concluded that the object was drug paraphernalia.

Next, appellant argues that she was denied a fair trial when the prosecutor, in rebuttal, argued facts not in evidence. In closing argument, defense counsel argued that there was no...