Rivers v. State, s. AK-485
| Decision Date | 22 December 1982 |
| Docket Number | AK-486,Nos. AK-485,s. AK-485 |
| Parties | Roy RIVERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
J. Craig Williams of Williams & Stapp, Jacksonville, for appellant.
Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
Appellant, who was convicted of armed robbery of a Lil' Champ Food Store that occurred on September 13, 1981, seeks reversal based upon his claim that several trial errors denied him a fair trial. We find reversible error in the trial court's failure to instruct the jury on the limited purpose for which "Williams' Rule" evidence was introduced at the time such evidence was presented to the jury.
The Florida Evidence Code, Section 90.404(2)(b)2., provides that when evidence of other crimes is admitted, "the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered." Recognizing that some aspects of the evidence code may be procedural, rather than substantive law, and therefore within the rule-making authority of the Supreme Court of Florida, that court, in a per curiam opinion dated June 28, 1979 (372 So.2d 1379), temporarily adopted the provisions of the code to the extent that they are procedural, as rules of the court, effective July 1, 1979. See, also, In Re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973). Consistent with the adoption of portions of the code as rules of court, the court also adopted a "Williams' Rule" instruction which includes a "note to judge" advising that such instruction is to be given at the time the evidence is admitted, "if requested." The instruction, Florida Standard Jury Instructions, Criminal Cases, page 50 (effective July 1, 1981), is as follows:
The evidence you are about to receive concerning evidence of other crimes allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant and you shall consider it only as it relates to those issues.
However, the defendant is not on trial for a crime that is not included in the [information] [indictment].
A similar limiting instruction is required to be given at the close of the evidence.
The state contends that the Williams' Rule instruction was never adequately requested, or if an adequate request was made it was made in connection with testimony that was not of a "collateral crime" nature. After a careful review of the record we are compelled to disagree with the state's position.
At trial, appellant's sole defense to the robbery charge was voluntary intoxication to the extent that he was unable to form the specific intent required for commission of the offense of robbery, namely, the intent to permanently deprive the victim of the money stolen. Cirack v. State, 201 So.2d 706 (Fla.1967); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA 1981); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979); 9 Fla.Jur., Criminal Law, § 414.
Appellant testified to his lack of comprehension of and ability to recall his own actions leading up to, during, and following the robbery. In furtherance of his defense he called and array of witnesses to confirm his heavy ingestion of drugs and alcohol, and to describe the apparent effects upon him, prior to commission of the offense. He also presented testimony from two psychiatrists to the effect that, by reason of his drugged and intoxicated state, he lacked the capacity to form the specific intent essential to the crime on the morning it occurred. One of these physicians, Dr. Saul, acknowledged that he understood appellant was accused of four robberies. The other psychiatrist, Dr. Miller, agreed that if a specific act is committed, the fact that the same act is repeated in different settings within short intervals could be considered as indicative of the ability to form the specific intent to commit the act the first time.
In rebuttal, for the purpose of proving the existence of the ability to form the necessary criminal intent, the state called as witnesses the victims of two other grocery store robberies--7-Eleven and Zippy Mart--occurring on the same morning as the Lil' Champ robbery. The state also called three persons who were witnesses to some portions of the events or activities directly or indirectly connected with these two robberies, as well as a third robbery occurring at Skinner's Dairy Store on the same morning.
During the rebuttal testimony of Edward Radomski, the victim of the 7-Eleven store robbery, defense counsel moved for a mistrial because of the court's failure to order consolidation of the case for trial with the cases involving the 7-Eleven store, in which an information had been filed, and the two others in which no information had been filed. No request was made for a cautionary "Williams' Rule" instruction.
The next rebuttal witness, Francis L. Davis, was a witness to the Lil' Champ robbery for which appellant was being tried. The state then called Kenneth Graham, the victim of the Zippy Mart robbery. Prior to Graham's testimony, the following colloquy took place between defense counsel, the prosecuting attorney, and the court:
Graham then gave testimony that while working as a clerk for the Zippy Mart, a man using a double barrelled shotgun robbed him of the store's money and some food stamps.
Graham was followed on the witness stand by Robert Steele, who testified to his observations of individuals (ostensibly the robbers) and their brown Mazda car parked at the Zippy Mart store.
The state then called Richard Smith, at which point defense counsel registered an objection and request, and received the court's ruling, as follows:
Smith then proceeded to relate details of his observation of a small brown car at Skinner's Dairy Store, and an individual who got out of the car, entered Skinner's Store, and emerged running a short time later.
Next in this series of rebuttal witnesses was Billie Collins, who related statements allegedly made by appellant concerning his having taken care of "some business" at Skinner's Dairy, on the morning of the robbery; also that appellant and a companion later divided some money between them. Defense counsel made the following objection and received the following ruling during this testimony:
This court's opinion in Hubbard v. State, 411 So.2d 1312, 1314 (Fla. 1st DCA 1982), quoted favorably in Spurlock v. State, 420 So.2d 875 (Fla.1982) [7 FLW 463], opinion filed October 7, 1982, pointed out that no "special word formula" is required to preserve for appellate review the trial court's refusal to give a requested jury instruction. Hubbard held that the rule (Rule 3.390(d), Florida Rules of Criminal Procedure), does not require the use of the "magic words 'I object,' "
so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.
Hubbard v. State, 411 So.2d at 1314, 1315.
In Spurlock, the court also drew upon language from Thomas v. State, 419 So.2d 634 (Fla.1982), in holding that the contemporaneous objection rule is satisfied,
where the record shows, clearly and unambiguously, that the request was made and that the trial court clearly understood the request and, just as clearly, denied that specific request.
Thomas v. State, 419 So.2d at 636.
In the case before us we reject appellant's contention that the trial judge was alerted to counsel's request for the "Williams' Rule" instruction by his pre-trial objections to collateral crime evidence and his general objections expressed at various times during the trial. Further, counsel's motion for a mistrial during Radomski's testimony about the 7-Eleven robbery, based on the court's failure to order consolidation, clearly does not suffice. As above indicated, no objection of any nature was voiced during the testimony of the next witness, Davis, although both his and Radomski's testimony unmistakably constituted "collateral crime" evidence. Had the rebuttal evidence ended at this point, we would have no hesitancy in finding a waiver of the special "Williams' Rule" instruction. However, as shown by the portions of the record above quoted, during the testimony of the next three rebuttal witnesses defense counsel's request graduated from the general--"... do...
To continue reading
Request your trial
-
Hawthorne v. State
...may be allowed to testify, and, unless there is a clear showing of error, its decision will not be disturbed on appeal. Rivers v. State, 425 So.2d 101 (Fla. 1st DCA 1982); Johnson v. State, 393 So.2d 1069 (Fla.1980); Buchman v. Seaboard Coast Line Railroad Company, 381 So.2d 229 (Fla.1980);......
-
Durousseau v. State
...trial court need only instruct the jury at the time of admission, if so requested, and after the close of the evidence. Rivers v. State, 425 So.2d 101, 102 (Fla. 1st DCA 1982). Here the trial court did both. As to Durousseau's fourth claim, we hold that the collateral crime evidence did not......
-
Durousseau v. State Of Fla., SC08-68
...trial court need only instruct the jury at the time of admission, if so requested, and after the close of the evidence. Rivers v. State, 425 So. 2d 101, 102 (Fla. 1st DCA 1982). Here the trial court did both. As to Durousseau's fourth claim, we hold that the collateral crime evidence did no......
-
Wong v. State
...asked that the record reflect his objection to the court's apparent refusal to give the instruction on battery."); Rivers v. State , 425 So.2d 101, 103–05 (Fla. 1st DCA 1982) (comparing specificity of various requests for instructions throughout proceedings, but ultimately finding request m......