Pena v. State, 01-1066
| Decision Date | 03 July 2002 |
| Docket Number | 2,01-1066 |
| Parties | JOSE PENA APPELLANT, v. STATE OF FLORIDA, APPELLEE. CaseIN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Hillsborough County; Daniel L. Perry, Judge.
James Marion Moorman, Public Defender, and Terrence K. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
Jose Pena appeals his judgment for first-degree murder and his sentence of life without possibility of parole. Mr. Pena was charged and convicted of murder resulting from the unlawful distribution of an illegal drug under section 782.04(1)(a)(3), Florida Statutes (1999). Although Mr. Pena raises several issues warranting discussion and certification to the supreme court, we affirm the judgment and sentence.
On September 10, 1999, a citizen found the dead body of a young woman in the front yard of a Hillsborough County home. An investigation determined that the woman was Mirranda Fernandes. She was seventeen years old and had died of a drug overdose. Her body contained lethal doses of both heroin and MDMA, also known as ecstasy.
Further investigation established that Ms. Fernandes and a girlfriend visited Mr. Pena's apartment on the evenings of September 7 and 9. According to Ms. Fernandes's girlfriend, on the first evening Mr. Pena gave Ms. Fernandes ecstasy. When the girls returned on September 9, Ms. Fernandes used alcohol, marijuana, heroin, and ecstasy. In a recorded statement, Mr. Pena admitted that he gave heroin to Ms. Fernandes on the evening of September 9, but claimed that she brought her own supply of ecstasy on that night. Mr. Pena admitted that when he woke up the following day, he discovered Ms. Fernandes unresponsive in his apartment. After efforts to revive her failed, he placed her body in a car and dumped it in the location where she was later found.
Based on this investigation, the State charged Mr. Pena with a first-degree murder by drug distribution under section 782.04(1)(a)(3), Florida Statutes (1999). This statute provides:
782.04 Murder. -
(1)(a) The unlawful killing of a human being:
(3) Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082
First-degree murder by drug distribution has been a recognized offense since 1972. See ch. 76-141, 1, Laws of Fla.; ch. 72-724, 3, Laws of Fla. It apparently is a rarely charged offense that has not generated a standard jury instruction or significant case law. The offense was first mentioned in Jones v. State, 360 So. 2d 1293 (Fla. 3d DCA 1978), where the defendant was actually convicted of manslaughter. In Martin v. State, 377 So. 2d 706 (Fla. 1979), the supreme court upheld the constitutionality of a drug-distribution, first-degree murder statute as it applied to an indirect supplier of heroin. See also Ingleton v. State, 700 So. 2d 735 (Fla. 5th DCA 1997) (). At trial, the State presented evidence sufficient to convict Mr. Pena of this offense, and the jury found him guilty as charged. The trial court imposed a mandatory life sentence. Mr. Pena raises three issues on appeal: (1) that the trial court committed fundamental error in failing to instruct the jury of the age requirement for the defendant under section 782.04(1)(a)(3) and in permitting a conviction on this charge when his age was not alleged in the information, (2) that the trial court committed fundamental error by failing to swear the venire prior to voir dire, and (3) that the trial court committed fundamental error by failing to instruct the jury on justifiable and excusable homicide. It is worth emphasizing that all of these issues come to this court unpreserved, apparently because trial counsel did not view these issues as important to the defense of the case. None of these issues comes to this court with any record suggesting that the alleged errors were actually harmful to Mr. Pena during the course of this trial.
As quoted above, first-degree murder by drug distribution requires that the offender be eighteen years of age or older. The information filed in this case did not allege that Mr. Pena was eighteen years of age or older. Moreover, Mr. Pena's age was not included in the jury instructions. However, it is undisputed that Mr. Pena was twenty- eight years of age at the time of the offense. His recorded statement, which was presented to the jury, established that his birth date was June 25, 1971. Mr. Pena did not object to the omission of this fact from either the information or the jury instructions. Thus, the first issue on appeal is whether either or both of these omissions are harmful, fundamental error.
The Third District has held that it is fundamental error to convict a defendant of capital sexual battery when neither the information nor the verdict makes reference to the fact that the offender is eighteen years of age or older. See Baker v. State, 604 So. 2d 1239 (Fla. 3d DCA 1992); cf. Glover v. State, 815 So. 2d 698 (Fla. 5th DCA 2002) (). By contrast, the Fourth District has rejected the concept that age is an "element" of capital sexual battery and instead regards age as a sentencing factor. See Jesus v. State, 565 So. 2d 1361 (Fla. 4th DCA 1990). From a functional standpoint, such an age requirement for a defendant simply limits an offense to an adult offense and not a crime supporting an adjudication of juvenile delinquency.
We decline to enter the debate on whether the defendant's age is an element of an offense or a sentencing factor. We merely hold that when there is no factual dispute that the defendant is old enough to commit first-degree murder by drug distribution and the defendant cannot show that he was confused or misled about the charged crime, the defendant can waive the need for this allegation in the information by failing to move to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(b).
Likewise, we conclude that it is not fundamental error to omit an instruction on the defendant's age when the undisputed evidence establishes that the defendant's age fulfills the statutory age requirement for this offense. Mr. Pena's defense hinged on issues of causation. It would not have helped Mr. Pena had the jury been instructed that he needed to be eighteen years of age or older to commit the charged offense. His lawyer could not have argued that Mr. Pena was below the statutory age. No jury could lawfully find that Mr. Pena was under the age of eighteen. This is one of those rare situations where the failure to instruct on a statutory requirement of the crime can be regarded as harmless beyond a reasonable doubt. There is no reason to retry these charges against a twenty-eight year old offender because the jury was not advised that he needed to be at least eighteen years of age to commit this offense.
Mr. Pena argues that the trial court committed fundamental error when it failed to swear the venire prior to jury selection. Florida Rule of Criminal Procedure 3.300(a) requires that the members of the venire, the group of jurors from which a jury will be selected, each swear that they will truthfully answer all questions during jury selection. Mr. Pena does not cite any prior cases directly on point. Instead, he relies on cases holding that it is error for the trial court to fail to swear the trial jurors prior to the commencement of trial as required by Florida Rule of Criminal Procedure 3.360. See Brown v. State, 10 So. 736 (Fla. 1892); compare Fla. R. Crim. P. 3.300(a) with Fla. R. Crim. P. 3.360 ().
In response, the State argues that it is a common practice for another judge or a deputy clerk to swear the potential jurors in another room, when they are part of a general jury pool, prior to the venire's assignment to any particular courtroom. Case law permits a trial judge to delegate to a deputy clerk the process of swearing potential jurors. See Johnson v. State, 660 So. 2d 648, 660 (Fla. 1995). From its own experience, this court is aware that the oath is sometimes given to the venire in another courtroom in the presence of a different court reporter. Nevertheless, we cannot and will not rely on factual information about the jury selection process that is outside our record.
It is clear from our record that the trial judge did not swear the venire. It is equally clear that no lawyer asked the judge to swear the venire or to confirm that the potential jurors were already sworn. Mr. Pena has not alleged or proven by posttrial motions or affidavits that the venire was unsworn.
We are not required to decide whether it would be fundamental error to conduct a trial with members of a venire that had not been sworn. In this case,...
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