Pena v. State

Decision Date24 February 2005
Docket NumberNo. SC02-2411.,SC02-2411.
Citation901 So.2d 781
PartiesJose PENA, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

James Marion Moorman, Public Defender and Terrence E. Kehoe, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, Robert J. Krauss, Senior Assistant Attorney General and Erica M. Raffel, Assistant Attorney General, Tampa, FL, for Respondent.

QUINCE, J.

We have for review a decision of the Second District Court of Appeal on the following two questions, certified to be of great public importance:

Pena v. State, 829 So.2d 289, 295 (Fla. 2d DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer both certified questions in the negative.

THE FACTS

Jose Pena was convicted of first-degree murder and sentenced to life without the possibility of parole for the murder of Mirranda Fernandes. On September 10, 1999, Fernandes was found dead on a neighborhood sidewalk. She died from lethal doses of heroin and methylene dioxymethamphetamine (MDMA), also known as ecstasy.

There was testimony presented at trial that on the evenings of September 7 and 9, 1999, Fernandes and a girlfriend visited Pena at his apartment. On September 7, Pena gave Fernandes ecstasy. On the evening of September 9, Fernandes consumed alcohol, marijuana, heroin, and ecstasy. Pena denied providing Fernandes with ecstasy. He eventually admitted that on the evening of September 9 he gave Fernandes what he thought was heroin. He stated that after he and Fernandes took the heroin, they fell asleep. When he awoke, Fernandes was not breathing. He stated that he tried to revive her but could not. Pena then told police that he and a friend put Fernandes in a car. They drove her to a residential neighborhood and dumped her body along the sidewalk.

Pena was charged with first-degree murder by drug distribution under section 782.04, Florida Statutes (1999). Although the statute requires the defendant to be eighteen years of age or older, the indictment failed to make the specific allegation that Pena was at least eighteen at the time of Fernandes' death. Pena told police he was born in 1971, which made him twenty-eight years old at the time of the crime. Pena did not move to dismiss the indictment, nor did he challenge the applicability of the statute based on his age.

Pena's defense at trial was based on causation. Pena argued that the State failed to prove that Fernandes died as a direct result of any drug he gave her. Pena was found guilty as charged. On appeal, Pena argued that the trial court committed fundamental error in failing to instruct the jury on the age requirement of the statute and in permitting a conviction when his age was not alleged in the indictment. Pena also claimed that the trial court committed fundamental error by failing to swear the venire prior to voir dire and by failing to instruct the jury on justifiable and excusable homicide. None of these claims were raised at the trial level.

On appeal, the Second District affirmed Pena's conviction and sentence. Finding that there is little case law interpreting section 782.04(1)(a)(3) and that there is no standard jury instruction for the offense of first-degree murder by drug distribution, the Second District certified the two questions set forth above as questions of great public importance.

LAW AND ANALYSIS
I. Age Element of Section 782.04(1)(a)(3), Florida Statutes (1999)
A. Jury Instruction

Pena was indicted on a charge of first-degree murder by drug distribution. Section 782.04(1)(a)(3), Florida Statutes 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.

The jury instruction given at the conclusion of the evidence did not contain age as an element of the offense. Pena made no objection to the jury instruction as given and Pena did not request any addition to the instruction. On appeal, the Second District affirmed Pena's conviction despite his argument that it was fundamental error to fail to include age as an element in the jury instruction. The Second District opined that under the circumstances, where it is undisputed that the defendant is over the age of eighteen and age is not a disputed element at trial, it is not fundamental error to omit to instruct on the age element. Specifically, the district court found that it was "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." Pena, 829 So.2d at 293. In so holding, the district court cited to this Court's opinion in State v. Delva, 575 So.2d 643 (Fla.1991). The district court then certified the question to this Court as one of great public importance.

In Delva, the defendant was charged by information with trafficking in cocaine. His defense at trial was that he did not know that the cocaine was in his car. On appeal, he argued that the trial court erred in failing to instruct the jury that the defendant must have knowledge that the substance was cocaine. The district court reversed his conviction and certified as a question of great public importance whether the trial court must instruct the jury on the knowledge element. We quashed the decision of the district court, finding that failure to instruct the jury on an element of the offense charged is not fundamental error if the record shows there was no dispute as to that element. We said:

Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal. E.g., Stewart [v. State, 420 So.2d 862 (Fla.1982)

] (trial court did not instruct on intent to permanently deprive as element of robbery, but defendant admitted at trial that he stole the victim's personal property); Morton v. State, 459 So.2d 322 (Fla. 3d DCA 1984) (no instruction on elements of robbery, but facts of robberies conceded with mistaken identity being the only contested issue), review denied, 467 So.2d 1000 (Fla.1985); Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981) (same as Morton).

575 So.2d at 645. We reiterated this standard in Reed v. State, 837 So.2d 366 (Fla.2002). Although we reversed and found fundamental error in Reed, we did so because the element contained in the erroneous jury instruction was disputed at trial. We cited to the Delva opinion for the proposition that jury instructions are subject to the contemporaneous objection rule and will only be reviewed on appeal without an objection if the error is fundamental and for the proposition that failure to instruct on an element of an offense over which there is no dispute is not fundamental error. Reed, 837 So.2d at 370.

The district court in this case reached a similar conclusion and relied on the fact that Pena's defense at trial was based on issues of causation, that Pena could not have argued that he was below the statutory age, and that no jury could have found that he was below the statutory age. The court concluded, "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." Pena, 829 So.2d at 293.

We agree with the district court. There is no dispute that Pena was twenty-eight years old at the time of the crime. In his recorded statement, Pena indicated he was born on June 25, 1971. This recorded statement was presented to the jury. No contrary evidence was introduced. Furthermore, Pena voiced no objection that the instruction did not include age as an element of the crime. Under the specific facts of this case, even if Pena had objected and preserved this issue for review, the error would be harmless. See Glover v. State, 863 So.2d 236, 238 (Fla.2003)

(holding that although the defendant's age is a statutory element of capital sexual battery, failure to include the age element in the jury instructions was not fundamental error where the defendant's age was not a disputed fact). Therefore, we answer the first certified question in the negative and hold that in this case, the trial court's failure to instruct the jury on the age requirement of section 782.04(1)(a)(3) was not fundamental error because the undisputed evidence established that Pena was more than eighteen years of age at the time of the crime.

B. Indictment

Pena also alleges that age is an essential element of section 782.04(1)(a)(3), Florida Statutes (1999), for first-degree murder by drug distribution and must be alleged in the charging document. Pena was charged in a one-count indictment which stated:

The Grand Jurors of the County of Hillsborough, State of Florida, charge that JOSE FRANCISCO PENA, on or
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