Rigdon v. State

• Decision Date: 26 May 1993
• Docket Number: No. 92-1385,92-1385
• Citation: Rigdon v. State, 621 So.2d 475 (Fla. App. 1993)
• Parties: 18 Fla. L. Week. D1314 Royce RIGDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 475

621 So.2d 475

18 Fla. L. Week. D1314

Royce RIGDON, Appellant, v.STATE of Florida, Appellee.

No. 92-1385.

District Court of Appeal of Florida Fourth District.

May 26, 1993.

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.

HERSEY, Judge.

The appellant, Royce Rigdon, charged with attempted murder, was convicted of the lesser included offense of aggravated assault with a firearm.While some of the errors of which he complains on appeal would be considered harmless standing alone, we treat them here to avoid repetition in the retrial mandated by other reversible errors also present in the record.

Appellant was charged with the attempted first degree murder of his then wife, Catherine Rigdon.His defense was voluntary intoxication.At trial, appellant's request for an instruction on improper exhibition of a dangerous weapon was erroneously refused.Both the accusatory pleading and the evidence supported an instruction on this category two, permissive, lesser included offense.SeeState v. Daophin, 533 So.2d 761, 762(Fla.1988).We have previously held such an omission to be error.SeeMeyer v. State, 501 So.2d 8(Fla. 4th DCA1987);see alsoDeVaughn v. State, 582 So.2d 728(Fla. 1st DCA1991)(trial court's refusal to give jury instruction on category two lesser included offense of improper exhibition of a firearm is reversible error where the pleadings and proof support such a charge);Benjamin v. State, 462 So.2d 110(Fla. 5th DCA1985)(it is reversible error for trial court to refuse to instruct on a lesser included offense one step removed from crime for which defendant is convicted, when that instruction has been properly requested).We certify that our view apparently conflicts with that of the third district.Mack v. State, 305 So.2d 264(Fla. 3d DCA1974).

As we have indicated, appellant was convicted of aggravated assault with a firearm, a third degree felony.Improper exhibition of a dangerous weapon and discharging a firearm in public, both of which are category two lesser included offenses of aggravated assault, are both first degree misdemeanors.Simple assault, a category one (necessarily) lesser included offense of aggravated assault, is a second degree misdemeanor.As a necessarily lesser included offense, simple assault is one step removed from the greater crime of aggravated assault.Cannon v. State, 456 So.2d 513, 514(Fla. 5th DCA1984), rev. denied, 462 So.2d 1108(Fla.1985).It thus appears that the error complained of was harmless in this case.

Appellant also requested a jury instruction on simple assault.Assuming an appropriate and timely objection, refusal to instruct on simple assault here would have been reversible error.Cannon, 456 So.2d at 514-15.

However, Florida Rule of Criminal Procedure 3.390(d) provides:

No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.

In Hubbard v. State, 411 So.2d 1312, 1314(Fla. 1st DCA)(on rehearing en banc), dismissed, 424 So.2d 761(Fla.1982), the court stated:

In Castor v. State, 365 So.2d 701, 703(Fla.1978), the Supreme Court stated that to satisfy the rule [3.390(d) ], "... an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal."We believe that this statement best describes the objective of Rule 3.390(d).The primary thrust of the rule is to insure that the trial judge is made aware that an objection is being made and that the grounds therefor are enunciated.

....

We hold that where the record demonstrates that the trial judge was fully aware that an objection was made to the failure to instruct on penalties, that the specific grounds for the objection were presented, and that the judge was given a clear opportunity to rule on the objection, then the issue is preserved for appellate review.

The record in the present case reflects the following colloquy between the trial judge and appellant's counsel:

MR. DIAZ: I WOULD ASK FOR ASSAULT, TOO, JUDGE.

THE COURT: I DECLINE THE ASSAULT.

* * * * * *

MR. DIAZ: OKAY.JUDGE, CAN I SAY ONE MORE THING?

THE COURT: NO, LET ME GET MY INSTRUCTIONS OUT FIRST.I GOT IT.

MR. DIAZ: JUDGE, SIMPLE ASSAULT IS A CATEGORY TWO LESSER FIRST DEGREE ATTEMPTED PREMEDITATED MURDER.I WOULD BE REQUESTING THAT.

THE COURT: THERE IS NO EVIDENCE OF A SIMPLE ASSAULT.I DECLINE TO GIVE IT.

While it is the state's position that appellant did not apprise the trial court of the specific basis for his request, the record reflects that defense counsel specifically informed the trial court that he was requesting a simple assault instruction because that offense was a category two lesser included offense of attempted first degree murder.It is also clear that the court understood the request when denying it, stating that there was no evidence of simple assault.Accordingly, based on the holding in Hubbard (which was applied to defense counsel's oral argument in support of jury instructions at a jury instruction conference in Fernandez v. State, 570 So.2d 1008(Fla. 2d DCA1990), rev. denied, 581 So.2d 167(Fla.1991)), it is clear that although defense counsel's argument in support of the requested instruction was modest, it was nevertheless sufficient to preserve the issue for appellate review.See alsoToole v. State, 479 So.2d 731, 733(Fla.1985)("The contemporaneous objection rule is satisfied when, as here, the record shows that there was a request for an instruction, that the trial court understood the request, and that the trial court denied the specific request.").

Because the failure to instruct on a necessarily lesser included offense one step removed (simple assault) from the crime for which a defendant was convicted (aggravated assault with a firearm) constitutes reversible error per se, we reverse appellant's conviction and remand for a new trial.

Appellant next argues, based on Huhn v. State, 511 So.2d 583(Fla. 4th DCA1987), that the trial court reversibly erred in admitting, over defense counsel's relevancy objection, a small semiautomatic weapon found by a police officer under appellant's bed.This exhibit did not tend to prove or disprove a material fact as it had no connection whatsoever to the charged offense.

Based on Huhn, the trial court in the present case erred in admitting this weapon over appellant's relevancy objection.However, under Herman v. State, 396 So.2d 222(Fla. 4th DCA), cert. dismissed, 402 So.2d 610(Fla.1981), such error was harmless.

Appellant also challenges the trial court's ruling allowing Lori Lasky to testify that Catherine Rigdon felt threatened by appellant.Ms. Lasky testified that on the night before the incident, Ms. Rigdon had gone to Ms. Lasky's house, where she spent the night.The state then asked, "do you know if [Ms. Rigdon] felt threatened by [appellant]?".Over appellant's hearsay objection, Ms. Lasky testified that during the course of their conversation that night, Ms. Rigdon told her that she felt threatened.Ms. Rigdon's statement, as related by Ms. Lasky, was hearsay, as it was an out of court statement offered in evidence to prove the truth of the matter asserted.SeeSec. 90.801(1)(c),Fla.Stat.(1991);see alsoSelver v. State, 568 So.2d 1331, 1334(Fla. 4th DCA1990)("Statements of a murder victim that express general fear of the defendant or a concern that defendant may intend to kill the victim are generally inadmissible hearsay.").In the absence of an applicable exception, hearsay evidence is inadmissible.Correll v. State, 523 So.2d 562, 565(Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152(1988);Sec. 90.802,Fla.Stat.(1991).The question thus becomes whether the statement was admissible, as argued by the state, under the state-of-mind exception to the hearsay rule.In Correll, the Florida Supreme Court succinctly stated It is well settled that the state-of-mind exception to the hearsay rule allows the admission of extra-judicial statements only if the declarant's state of mind is at issue in a particular case or to prove or explain the declarant's subsequent conduct.Sec. 90.803(3)(a),Fla.Stat.(1985).

523 So.2d at 565.

In the present case, appellant was charged with attempted first degree murder contrary to sections 777.04(1)and777.04(4)(a), Florida Statutes (1991), which define the offense of attempt and the appropriate punishment, and contrary to section 782.04(1)(a), Florida Statutes(1991), which defines murder as:

(1)(a) The unlawful killing of a human being:

1.When perpetrated from a...