Webb v. State, 92-690
| Decision Date | 04 December 1992 |
| Docket Number | No. 92-690,92-690 |
| Parties | 17 Fla. L. Week. D2714 Douglas WEBB, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, and Steven G. Mason, Law Offices of Steven G. Mason, Orlando, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
This case involves the propriety of an instruction on flight in a criminal aggravated battery case.
The victim, who is visually impaired and suffers from seizures, had known the defendant and the defendant's girlfriend for about a year prior to an evening when the defendant and the defendant's girlfriend visited the victim in the victim's home. During the visit a dispute occurred between the victim, the defendant and the defendant's girlfriend. The facts are in dispute but the truth of the disputed facts is not essential to a decision on a decisive point in this case. The victim alleges that the defendant, in effect, committed an aggravated battery with a deadly weapon upon him and that he, the victim, bit the defendant's thumb in self defense while the defendant alleges that the victim assaulted the girlfriend and bit the defendant's thumb and that the defendant's actions in beating the victim and scalding the victim with hot water were acts of self defense. Finally, when the victim indicated he was going to call "the law," and went to a neighbor's house, the defendant and the defendant's girlfriend left the area of the victim's home. The victim knew where the defendant lived.
Over the defendant's objection, the trial court instructed the jury on flight to the following effect:
When a suspected person in any manner endeavors to escape by flight, concealment, or other indication of a desire to avoid prosecution, that can be taken into account as evidence as one of a series of circumstances [from] which guilt can be inferred.
The defendant argues that in Fenelon v. State, 594 So.2d 292 (Fla.1992), the supreme court ruled "that henceforth the jury instruction on flight shall not be given." 594 So.2d at 295. The supreme court indicated, however, that a flight instruction, even if erroneous, could be harmless when other evidence indicated the defendant's guilt beyond a reasonable doubt. Fenelon was decided one month after the trial in this case. The State argues that Fenelon is to be applied prospectively only and therefore does not apply in this case. We note the recent case of Smith v. State, 598 So.2d 1063 (Fla.1992), which also considered the effect of retroactive application of supreme court decisions and that the Third District Court of Appeal has given Fenelon retrospective application but has also found harmless error. Wright v. State, 603 So.2d 624 (Fla. 3d DCA 1992); Bryant v. State, 602 So.2d 966 (Fla. 3d DCA 1992); Sanchez-Basulto v. State, 601 So.2d 1263 (Fla. 3d DCA 1992).
We hold that the retrospective application of Fenelon is unnecessary to a decision here because under the facts in this case an instruction on flight was inappropriate even prior to Fenelon. See Wright v. State, 586 So.2d 1024 (Fla.1991).
Every time that a defendant leaves the area of an alleged crime does not mean the facts support an instruction on flight because of a natural inference indicating the consciousness of guilt. Flight implies a consciousness of guilt usually only when it reduces the chances of ...
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