Brief 7

INTRODUCTION

This is direct criminal appeal following a trial. XXXXXXXXXX was charged with armed burglary of a dwelling with person assaulted. In the first issue on appeal, XXXXXXXXXX challenges the trial court’s reliance on impermissible and unconstitutional factors while imposing a lengthy prison sentence. In the second issue on appeal, XXXXXXXXXX challenges the “presumption of intent” jury instruction which was provided to the jury. XXXXXXXXXX is challenging the “presumption of intent” jury instruction as both reversible and fundamental error.

PRELIMINARY STATEMENT

Appellant, XXXXXXXXXX, the Defendant in the lower tribunal, will be referred to herein as “the Defendant” or by name. Appellee, the State of Florida, will be referred to as “the State.”

The Record on Appeal is contained, in total, in five (5) volumes. References to the initial four volumes of the record will be cited using the abbreviation “R” followed by the appropriate volume and page number(s). References to the supplemental volume will be cited using the abbreviation “SUPP” followed by the appropriate page number(s).

STATEMENT OF THE CASE AND OF THE FACTS

A. Nature of the Case

This is a direct appeal of a final criminal judgment and sentence of the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida, Case Number: XXXXXXXXXX, rendered against Mr. XXXXXXXXXX, Appellant, Defendant below, on March 2, 2012. (RI: 166); (SUPP: 1-6).

B. Course of Proceedings Below and Statement of the Facts

The State charged XXXXXXXXXX with armed burglary with person assaulted in violation of Sections 810.02(2)(a) and (2)(b), Florida Statutes. The charging document did not allege the underlying offense which made the alleged entry a burglary. (RI: 44). The affidavit which supported the arrest warrant indicates that the offense took place around 6:00PM on a July evening in Duval County, Florida. (RI: 6). XXXXXXXXXX eventually elected to waive his right to counsel and proceeded to trial pro se. (RI: 112-126).

XXXXXXXXXX was the custodian of the home which was burglarized. Ms. XXXXXXXXXX was murdered at some point after the burglary was committed. (RII: 8). Ms. XXXXXXXXXX’s murder remained un-solved through the disposition of the burglary case. (RI: 91); (RI: 162).

The matter was brought to a jury trial. (RIII: 194). The State made an opening statement which described the burglary as taking place in the afternoon. (RIII: 209). The State described the Defendant as kicking-in the back door of a home which was occupied by two adults and one child. (RIII: 211).

The State called two eyewitnesses who observed different aspects of the alleged criminal offense. (RIII: 218; 262).

The first State eyewitness called was WITNESS A. WITNESS A’s observations were made from her home. WITNESS A’s home was across the street from the XXXXXXXXXX home where the alleged burglary occurred. WITNESS A was seated on the front porch of her home which was across the street and facing the XXXXXXXXXX’s home. (RIII: 219-220). WITNESS A described the offense as taking place in the afternoon. (RIII: 220). WITNESS A described initially being at the XXXXXXXXXX’s home where the Defendant engaged in a dispute with XXXXXXXXXX which escalated into a physical confrontation with other male guests at XXXXXXXXXX’s home. (RIII: 223-224). The Defendant left XXXXXXXXXX’s home after the fight. The other male guests left the home as well. WITNESS A then left XXXXXXXXXX’s home and proceeded to her home across the street. (RIII: 224). Roughly ten minutes later; WITNESS A was on her porch and observed the Defendant return to XXXXXXXXXX’s home. WITNESS A observed the Defendant walk along the side of the XXXXXXXXXX home and look at the front porch. WITNESS A then observed the Defendant walk to the rear of XXXXXXXXXX’s home. The Defendant was carrying a firearm. (RIII: 225; 230). WITNESS A could no longer see the Defendant because he was behind the house but she then heard “kicking sounds.” (RIII: 230; 240; 253). WITNESS A saw one adult and one child come out of XXXXXXXXXX’s home and run towards her house. WITNESS A saw XXXXXXXXXX climb from her home onto her front porch. (RIII: 240-241). WITNESS A never saw the Defendant enter or exit XXXXXXXXXX’s home. (RIII: 242).

The second State eyewitness called was WITNESS B. WITNESS B’s observations were made from inside the XXXXXXXXXX home. WITNESS B was a guest of XXXXXXXXXX and was seated inside the home when the alleged burglary occurred. (RIII: 262-264). WITNESS B described the events as taking place in the afternoon. (RIII: 263). WITNESS B saw the Defendant fighting with another male at the XXXXXXXXXX home. (RIII: 264-266). WITNESS B observed the Defendant, and the individual he had fought, leave the home. (RIII: 266). WITNESS B and her daughter stayed at the XXXXXXXXXX home along with Ms. XXXXXXXXXX. (RIII: 266). WITNESS B was inside the XXXXXXXXXX home for about five or ten minutes after the other guests departed. WITNESS B was seated at a breakfast table in the house when she heard a burst and observed the Defendant enter the house with a weapon. (RIII: 267). The Defendant’s entry was preceded by several loud kicking sounds. (RIII: 282). WITNESS B ran from the XXXXXXXXXX home with her daughter. (RIII: 270). Ms. XXXXXXXXXX proceeded to the front porch of the house but she never left the porch. Ms. XXXXXXXXXX asked WITNESS B to return to the home but she would not do so because she was afraid. (RIII: 273).

According to WITNESS B, the Defendant never pointed the firearm at her and never threatened her. (RIII: 282). The Defendant never assaulted WITNESS B and never chased her. (RIII: 282; 285). The Defendant never made any threats to WITNESS B and never conversed with her whatsoever. (RIII: 282-283; 285; 290; 292; 293; 294). Additionally, WITNESS B never saw or heard Ms. XXXXXXXXXX get threatened or harmed. (RIII: 286-287).

The court entered a stipulation that XXXXXXXXXX, one of the individuals inside the house, was deceased and was unavailable to testify. (RIII: 323).

The Defendant testified as a defense witness. (RIII: 340-357). The Defendant testified that he had been in a verbal altercation with XXXXXXXXXX earlier in the day. He testified that the verbal altercation with Ms. XXXXXXXXXX morphed into a fist fight with other gentlemen who were at her residence. (RIII: 341-342). He testified that he initially left her residence but then returned in order to apologize. (RIII: 342). The Defendant claimed he carried a toy gun in fear of the gentlemen he had earlier fought. (RIII: 343). The Defendant testified that the back door was already broken and he simply pushed open the door. The Defendant claimed that the occupants saw him and began to run. (RIII: 343). Following the Defendant’s testimony, the defense rested. (RIII: 357).

The court began to discuss jury instructions. (RIII: 358). The State indicated that it had included standard burglary language in the jury instructions. (RIII: 359). The Defendant requested and received permission to consult with standby counsel. (RIII: 360). The Defendant then asked for additional time to review the instructions. The Defendant informed the court that he had not been provided a copy of the instructions and had insufficient time to review the instructions before the charge conference. (RIII: 361). The court allowed the Defendant ten minutes to review the jury instructions. (RIII: 362).

Closing arguments were given. (RIII: 368; 389)(RIV: 407). In the State’s initial closing argument, the State emphasized the presumption of intent instruction which was given pursuant to Section 810.07, Florida Statutes. (RIII: 373). The State argued that the Defendant intended to commit an assault when he entered the dwelling. (RIII: 376). The jury was instructed as to the presumption of intent. (RIV: 409): (RI: 54). The jury was instructed as follows:

You may infer that THE DEFENDANT had the intent to commit a crime inside a structure if the entering of the structure was done stealthily and without the consent of the owner or occupant.

(RIV: 409); (RI: 54).

The court finished reading the jury instructions to the jurors. The court asked the parties if there were any exceptions or objections to the instructions. (RIV: 423). The Defendant objected as follows:

I mean, I object to the stuff without the consent of the owner because I never implied that I had consent to enter, Your Honor. I mean, that was never an argument of mine. I feel like it was not applicable in my situation, Your Honor.

(RIV: 424).

The court noted the Defendant’s objection. (RIV: 424). Based on the foregoing evidence, the jury found the Defendant guilty as charged. (RIV: 429): (RI: 46). The Defendant elected to have counsel appointed to represent him during post-trial proceedings. (SUPP: 31). The State filed a sentencing memorandum and represented that the offense happened in the afternoon. (RI: 90). Appointed counsel filed a Motion for New Trial and argued the motion at the sentencing proceeding. (RI: 88; 98)(RI: 156). Based on the offense for which the Defendant was convicted and the findings of the jury, the Defendant could have been sentenced anywhere between ten years in prison to life in prison. (RI: 158-160). No witnesses testified at the sentencing hearing. Defense counsel advised the court that the Defendant had a 3-year-old child and that the Defendant’s adult history reflected only one prior felony which was disposed of in a manner that allowed adjudication to be withheld. (RI: 158-159). Defense counsel reminded the court that nobody was injured in the course of the Defendant’s criminal conduct. (RI: 158). The State argued that the Defendant’s defense testimony was disregarded by the jury and found “disbelievable.” The State argued that it was convenient that one of the witnesses was unavailable because she had been murdered. (RI: 162-163). The State noted that the pre-sentence investigation report and the victims were requesting a life sentence. The State alternatively suggested a sentence of forty (40) years incarceration. (RI: 164). Defense counsel pointed-out that the Defendant was nineteen (19) at the time of the offense. (RI: 164)(RI: 6). The court then began to impose sentence, commenting as follows:

He doesn’t seem to have any respect for the rights of other people as evidenced by his actions in this case. He doesn’t know the truth. He continues to argue even to this day, shaking his head at the Court. He is not remorseful for his actions and he is somewhat belligerent and he feels that he’s right and everyone else, including the jury, is wrong.

(RI: 166).

The court then imposed a sentence of forty (40) years incarceration. (RI:

166)(SUPP: 1-6). A timely notice of appeal was filed. (RI: 101). This appeal follows.

SUMMARY OF THE ARGUMENT

Ground I – The trial court sentenced the Defendant to forty (40) years in prison because, in the court’s view, the Defendant was not remorseful for his actions and lied during his defense testimony. This constitutes fundamental error. A court may not consider the truthfulness of a Defendant’s testimony or a Defendant’s lack of remorse when imposing sentence. This court should reverse the Defendant’s sentence and remand for sentencing before a different judge.

Ground II – The presumption of intent instruction was read in error. There was no factual support for the reading of this instruction which materially prejudiced the Defendant’s defense. Additionally, the instruction should not have been read where it was not charged in the charging document. The error which occurred constitutes both reversible error and fundamental error.

GROUND I

THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR IN CONSIDERING TRUTHFULNESS OF APPELLANT’S TESTIMONY AND HIS PERCEIVED LACK OF REMORSE DURING SENTENCING.

Standard of Review

The standard of review is de novo. Jackson v. State, 39 So. 3d 427 (Fla. 1st DCA 2010); Smith v. State, 62 So. 3d 698 (Fla. 2d DCA 2011).

Merits

A sentencing court may consider many different factors in imposing a sentence. However “it is constitutionally impermissible for it to consider the fact that a Defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004). Reliance on such impermissible factors violates a Defendant’s right to due process. Id.

Recently in Jackson v. State, 39 So. 3d 427 (Fla. 1st DCA 2010), this court held it was fundamental error for the trial court to consider the Defendant’s lack of remorse while imposing sentence. This and other courts have similarly recognized such impermissible considerations during sentencing constitute fundamental error, which can be raised for the first time on appeal. Green v. State, 84 So. 3d 1169 (Fla. 3d DCA 2012); Whitmore v. State, 27 So. 3d 168, 169-72 (Fla. 4th DCA 2010). In Holton v. State, 573 So. 2d 284, 292 (Fla. 1990), the Supreme Court explained “[a] trial court violates due process by using a protestation of innocence against a Defendant” because the Fifth Amendment protection against self-incrimination “applies to the penalty phase as well as to the guilt phase.”

The sentencing court clearly relied upon an impermissible and unconstitutional factor when it stated that the Defendant was “not remorseful for his actions.” (RI: 166); Green v. State, 84 So. 3d 1169 (Fla. 3d DCA 2012).

In stating that “he does not know the truth” the sentencing court made a statement that could reasonably be read as conditioning the sentence upon the perceived lack of veracity in the Defendant’s defense testimony. (RI: 166); Williams v. State, 89 So. 3d 304 (Fla. 1st DCA 2012). A trial judge’s opinion as to whether a Defendant testified falsely should not enter into a decision to impose a harsher sentence unless the court is determining the sentence after a separate perjury conviction. Robinson v. State, 637 So. 2d 998 (Fla. 1st DCA 1994); Smith v. State, 62 So. 3d 698 (Fla. 2d DCA 2011). This court has recently re-stated this legal principal in a similar case. Carswell v. State, 75 So. 3d 419 (Fla. 1st DCA 2011).

The trial court sentenced the Defendant in a manner which stands in violation of United States Constitution Amendments V and XIV, as well as Article I, Section 9 of the Florida Constitution. The sentence should be reversed and the case remanded to the trial court for sentencing before an impartial judge.

GROUND II

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AS TO PRESUMED INTENT. THE ERROR REPRESENTS BOTH REVERSIBLE ERROR AND FUNDAMENTAL ERROR.

Reversible Error

Reversible error occurs where it is reasonable to conclude that an erroneous jury instruction mislead the jury. Mogavero v. State, 744 So. 2d 1048 (Fla. 4th DCA 1999). Generally speaking, the standard of review for jury instructions is abuse of discretion; however, discretion, as with any issue of law, is strictly limited by case law. Newman v. State, 976 So. 2d 76 (Fla. 4th DCA 2008).

The first witness called by the State testified that she was on her porch which faced the house where the offense occurred. (RIII: 219-220). She testified that she saw the Defendant with a firearm at the side of the house, that he proceeded to the rear of the house where she lost sight of him, and that she heard sounds as if someone was kicking the door. (RIII: 230; 240; 253). Subsequently, she observed the occupants of the house exit the front of the house and move towards her house. (RIII: 240-242).

The second witness called by the State testified that she was inside the house and she saw the Defendant kick-in the back door. She testified that she ran out of the front of the house. (RIII: 267; 282). She testified that the Defendant never communicated with anyone inside the house, threatened anyone inside the house, nor pointed a firearm at anyone in the house. The State and defense went back and forth thoroughly with this witness regarding the Defendant’s actions inside the house. (RIII: 282-283; 285; 290; 292-294).

The other adult who was inside the house was deceased and unable to testify. (RIII:323). The record establishes that this occurred in the afternoon or early evening in July. (RI: 6; 90); (RIII: 209; 220; 263).

Where a Defendant smashes through a glass door of a home in broad daylight and in presence of victims, the presumption of intent instruction does not apply and should not be given. Frazier v. State, 664 So. 2d 985 (Fla. 4th DCA 1995). Where a Defendant approaches a house in broad daylight, where he might be seen by any passerby, the presumption of intent instruction should not be read. Lanzo v. State, 73 So. 3d 817 (Fla. 5th DCA 2011); J.A.S. v. State, 952 So. 2d 638 (Fla. 2d DCA 2007). Where a Defendant forcefully gains entry in full view of the victim, the presumption instruction is improper. Harrell v. State, 647 So. 2d 1016 (Fla. 4th DCA 1994).

In the instant case the presumption of intent instruction should have been omitted. Taking the evidence in the light most favorable to the State, the Defendant approached the house in broad daylight where he could have been seen by any passerby. In fact, the Defendant was seen by a neighbor from across the street. (RIII: 225). The Defendant subsequently kicked-in the back door of the home in full view of the two adult occupants. (RIII: 267).

The erroneous reading of this instruction was particularly harmful in this case where the evidence presented made it difficult to contemplate what offense the Defendant intended to commit when he entered the dwelling. (RIII: 282-283; 285; 290; 292-294). The charging document does not list a specific underlying offense. (RI: 44). The State argued that the Defendant intended to assault the occupants of the dwelling but the testimony established that once inside the home, the Defendant encountered the home’s occupants (while armed) and he never pointed a weapon, communicated any threats or undertook any violent conduct towards those occupants. (RIII: 376); (RIII: 282-283; 285; 290; 292-294). Allowing the jury to presume that the Defendant intended to commit an offense was therefore acutely harmful under the facts of this case. Indeed, the State felt the need to emphasize the presumption instruction in its initial closing statement. (RIII: 373).

The trial court erred in simply noting the Defendant’s objection and not striking the presumption instruction. (RIV: 424). The Defendant was prejudiced when the jury was allowed to presume criminal intent in this case where his entry was anything but stealthy. The Defendant’s case should be remanded with instructions that he be tried anew.

Fundamental Error

The standard of review for fundamental error is necessarily de novo as there does not exist a trial court ruling to which the appellate court might defer. Beckham v. State, 884 So. 2d 969, 970 (Fla. 1st DCA 2004)(stating: “We have de novo review of the question of law whether the trial court fundamentally erred by failing to give a complete and accurate jury instruction. . . ”).

Instructing the jury on alternate intent elements which are not alleged in the information constitutes fundamental error. See, e.g., Rogers v. State, 935 So. 2d 639 (Fla. 1st DCA 2006); Debose v. State, 920 So. 2d 169 (Fla. 1st DCA 2006); Eaton v. State, 908 So. 2d 1164 (Fla. 1st DCA 2005).

This Court has previously held that, in order to rely on the presumption of intent, the State must plead the presumption in the charging document. Krathy v. State, 406 So. 2d 53 (Fla. 1st DCA 1981). The presumption statute was not plead in the amended information. (RI: 44). The jury was instructed as to the presumption statute. (RIV: 409); (RI: 54).

Therefore Fundamental error occurred and the Defendant’s case should be remanded for a new trial.

CONCLUSION

WHEREFORE, as to Ground I, the Appellant/Defendant respectfully requests this Honorable Court reverse his sentence and remand this cause to the Circuit Court with instructions that he be re-sentenced before a different judge.

As to Ground II, the Appellant/Defendant respectfully requests this Honorable Court reverse his judgment and sentence and remand this cause to the Circuit Court with instructions that he be tried anew.

Respectfully submitted,

______________________

Luke Newman

Luke Newman, P.A.
308 McDaniel Street
Tallahassee, Florida 32303
Phone: 850.224.4444
Fax: 850.224.9335
lukenewmanlaw@hotmail.com
Fla. Bar No. 0859281

CERTIFICATE OF SERVICE

I hereby certify that a copy of foregoing has been provided to:

Office of the Attorney General

(sent via email to: criminalappealsintake@myfloridalegal.com)

…on this _____ day of July, 20XX.

_____________________________

Luke Newman
Fla. Bar No.: 0859281

CERTIFICATE OF COMPLIANCE REGARDING FONT SIZE

Counsel for the Appellant hereby certifies, pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), that the type used in this brief is Times New Roman 14 point proportionally spaced font.

_____________________________

Luke Newman
Fla. Bar No.: 0859281

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