Nardone v. State, 4D00-3267.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: TAYLOR, J.
• Citation: 798 So.2d 870
• Parties: Anthony NARDONE, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 4D00-3267.,4D00-3267.
• Decision Date: 07 November 2001

798 So.2d 870

Anthony NARDONE, Appellant,
v.
STATE of Florida, Appellee

No. 4D00-3267.

District Court of Appeal of Florida, Fourth District.

November 7, 2001.

798 So.2d 871

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

Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Anthony Nardone appeals his conviction and sentence for aggravated assault with a deadly weapon. He raises three issues on appeal: (1) error in allowing a police officer to give an opinion that the weapon used by appellant was a deadly weapon; (2) error in failing to grant a mistrial because of the prosecutor's demonstration during closing argument; and (3) insufficiency of the evidence. We affirm on the issue of sufficiency of the evidence. We reverse, however, on appellant's other two points on appeal.

On March 7, 2000, appellant was a patient at Lawnwood Pavillion, where he was recovering from testicular surgery. Around 4:00 a.m., appellant went to the nursing station, complaining of pain and

798 So.2d 872

requesting medication. When the nurse on duty refused his request, appellant became unruly and started yelling and swearing. One of the nurses, Alain Dumont, told appellant that if he did not stop being loud and disruptive, he would be placed in time out in the "quiet room." The "quiet room" is an isolation room with a bed and four point restraints. In protest, appellant got out of his wheel chair, laid down on the floor, reached underneath a flower planter near the nursing station, and held onto an aluminum strip attached to the planter. When Dumont and two orderlies tried to drag appellant in a sheet to the "quiet room," appellant resisted. As one of the orderlies, Clinton Travis, bent down to grab appellant, appellant attempted to strike Travis near his face with the aluminum strip torn from the planter. Dumont and Travis were able to wrestle the piece of metal away from appellant's hand

The next day Officer Diane McGlon interviewed the witnesses at Lawnwood and retrieved the aluminum strip used during the incident. At trial, the prosecutor called Officer McGlon as his first witness. He asked the officer whether, in her opinion, the strip could be used to cause serious bodily injury. Defense counsel objected, arguing that it was for the jury to decide whether the object was a deadly weapon. He also argued that the officer's answer would be speculative, confusing to the jury, and more prejudicial than probative. The court overruled the objection. The prosecutor then questioned the officer about her training and experience with weapons. He asked whether she was familiar with various weapons and had seen blunt objects, such as knives, baseball bats, or pieces of wood, cause great bodily harm. The officer answered, "yes." The prosecutor again asked the officer whether, in her opinion, the aluminum strip could cause great bodily harm. She answered, "I believe it can, yes sir." Appellant renewed his objection to the officer's opinion. The court again overruled it.

During closing argument, the prosecutor repeatedly struck a stack of books on his table with the aluminum strip to demonstrate that the strip could cause great bodily harm. When he did so, pieces of drywall that had been attached to the aluminum strip scattered around the court room. The prosecutor asked the jury, "could that be a deadly weapon?" Appellant objected and moved for a mistrial. He protested that this was improper, misleading, and highly inflammatory conduct. The court denied the motion but cautioned the prosecutor to henceforth warn the jury before such a demonstration to avoid alarming or startling them.¹ The jury found appellant guilty of aggravated assault with a deadly weapon, as charged.

On appeal, appellant first argues that the trial court erred in allowing Officer McGlon to give an opinion that the aluminum strip was a deadly weapon. To prove appellant committed an aggravated assault with a deadly weapon, the state had to prove beyond a reasonable doubt that the aluminum strip was a deadly weapon. A deadly weapon, within the meaning of section 784.021, Florida Statutes (1999), is:

(1) any instrument which, when it is used in the ordinary manner contemplated by its design and construction, will or is likely to cause death or great bodily harm, or

798 So.2d 873

(2) any instrument likely to cause great bodily harm because of the way it is used during a crime.

Taylor v. State, 672 So.2d 580, 582 (Fla. 1st DCA 1996). Here, the item used in the assault was a strip of aluminum torn from the bottom of a planter. Because it was not designed or ordinarily used as a weapon for causing death or great bodily harm, only the second definition of a deadly weapon applies in this case. Thus, the state had to prove that the aluminum strip was a deadly weapon by establishing that it was actually used in a way likely to cause...