E-Copy Received Sep 19, 2014 2:54 PM
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
No. 4D14-1268
LYS JADOTTE,
Appellant,
v.
STATE
OF
FLORIDA,
Appellee.
_____________
On Appeal from the Circuit Court of the
Seventeenth Judicial Circuit of Florida
_____________
INITIAL BRIEF OF APPELLANT
CAROL STAFFORD HAUGHWOUT
Public Defender
Fifteenth Judicial Circuit
421 Third Street
West Palm Beach, Florida 33401
GARY LEE CALDWELL
Assistant Public Defender
Florida Bar No. 256919
Attorney for Appellant
(561)355-7600; (561) 624-6560
[email protected]
[email protected]
[email protected]
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE AND FACTS.................................1
SUMMARY OF THE ARGUMENT.........................................4
ARGUMENT........................................................5
As
to
the
attempted
burglary
conviction
(Count
II),
fundamental error occurred when the court instructed the jury
on the inference arising from a nonconsensual stealthy entry
under section 810.07, Florida Statutes. .......................5
A. When the court errs in giving an instruction that is
pertinent or material to what the jury must consider,
fundamental error occurs. ...................................6
B. At bar, the stealthy entry instruction was pertinent or
material to the disputed issue in the case: intent to
commit a crime in the house. ................................7
C. Fundamental error occurred. ..............................7
1. The court erred in giving the instruction because
the state did not prove the entry was surreptitious,
furtive or sly.............................................8
2. The instruction did not define stealthy entry...........9
3. The instruction did not require that the state
prove stealthy entry.......................................9
D. A new trial should be ordered. ..........................11
CONCLUSION.....................................................12
CERTIFICATE OF SERVICE.........................................12
CERTIFICATE OF FONT SIZE.......................................12
i
TABLE OF CITATIONS
Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000)................... 10
Lanzo v. State, 73 So. 3d 817 (Fla. 5th DCA 2011)........ 6, 8, 9
State v. Montgomery, 39 So. 3d 252 (Fla. 2010).......... 6, 7, 11
State v. Waters, 436 So. 2d 66 (Fla. 1983)................. 5, 10
Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991)........... 7
Statutes
§ 810.02, Fla. Stat............................................ 5
§ 810.07, Fla. Stat..................................... 5, 7, 10
Constitutional Provisions
Amend. VI, U.S. Const...................................... 7, 11
Amend. XIV, U.S. Const..................................... 7, 11
Art. I, § 16, Fla. Const...................................... 11
Art. I, § 17, Fla. Const....................................... 7
Art. I, § 9, Fla. Const.................................... 7, 11
ii
STATEMENT OF THE CASE AND FACTS
This case arises from convictions for burglary, attempted
burglary (as a lesser included offense of a second alleged burglary) and petit theft (as a lesser included offense of grand
theft). The defendant had also been charged with fleeing and
eluding, but the jury acquitted him of that offense. He entered
a no contest plea to a charge of driving with a suspended license.
As to the first burglary and the petit theft, a Davie homeowner testified that she and her husband left their house around
10 or 11 a.m. T3 268. (In this brief, “R” refers to the record
on appeal, followed by page numbers, and “T” refers to the transcripts, followed by volume and page numbers.)
She got back home around a quarter to 12, and found that a
sliding glass back door had been smashed and the bedroom had
been ransacked. T3 270-72.
Jewelry and a folder of tax documents were missing. T3 274,
280.
Phone records showed three calls to the house from 11:18 to
11:20. The calls were all from the same number, which the homeowners did not recognize. The caller did not leave a message. T3
293-94.
As to the attempted burglary, a Davie woman was working at
home when there were three calls to her house between 12:43 and
1
12:44 p.m. on the same day as the burglary. Because she did not
recognize the number, she did not answer. T3 323, 316.
Shortly afterward, there was a knock at the front door.
Through the peephole, she saw a man she did not know, and she
did not open the door. There were four dogs in the house and
they were barking like crazy. T3 317, 313.
The man at the door, who she identified as the defendant,
went to an older gold Nissan Maxima, seemed to get something,
and then walked out of view. She went to the back of the house
and saw the defendant approaching her back porch through her
fenced backyard. She asked if she could help him. He said, “Oh,
no, no,” and left quickly. T3 318-21.
The defendant was arrested and found to be in possession of
jewelry taken from the first house. An officer testified that he
received a description of the car around 12:48 p.m. and saw the
car shortly afterward. He followed it until he had backup and
then put on his lights. The defendant drove for 22 blocks before
stopping at a red light. He was then taken into custody. T4 35662.
In the car was jewelry taken from the first house. In the
back seat was the phone used to call both houses. T4 400-403.
An officer testified that he Mirandized and questioned the
defendant at the scene of the arrest. T2 226. He asked the defendant if he was involved in “the incident in the Town of Da-
2
vie.” The defendant said he was not. The officer also asked why
he was in the backyard at the residence and the defendant said
he was not. The officer said he was going to arrest him for burglary and the defendant answered that he never went into the
house and he couldn’t be charged with that. T2 231-32.
A couple of hours later, the defendant was questioned at
the police station. T2 236.
The officer asked him where the jewelry came from, and the
defendant said he found it at Sheridan Street and Flamingo Road.
The officer asked how come that phone had contacted the victim,
and the defendant didn’t have an answer to that. T2 240-41.
The court entered judgment and sentence on March 17, 2014.
R 95-98. A timely notice of appeal was filed on April 3. R 118.
3
SUMMARY OF THE ARGUMENT
Fundamental
error
occurred
as
to
the
attempted
burglary
conviction (Count II) when the court instructed the jurors that
they could infer an intent to commit a crime in the house from a
nonconsensual stealthy entry.
It was error to give the instruction because: The state did
not show the necessary factual predicate of an entry or attempted entry that was surreptitious, furtive or sly. The instruction did not tell the jury that the inference applied only
if the entry or attempted entry was surreptitious, furtive or
sly. And the instruction did not allocate the burden of proof as
to whether there was a stealthy entry or attempted entry.
The error was fundamental as to Count II because it went to
the sole disputed issue as to that charge.
4
ARGUMENT
AS TO THE ATTEMPTED BURGLARY CONVICTION (COUNT II),
FUNDAMENTAL ERROR OCCURRED WHEN THE COURT INSTRUCTED
THE JURY ON THE INFERENCE ARISING FROM A NONCONSENSUAL
STEALTHY ENTRY UNDER SECTION 810.07, FLORIDA STATUTES.
The defendant was convicted of attempted burglary as to to
Count II (the incident when the defendant entered the backyard
of a residence). The state had to prove that he had “the intent
to commit an offense therein” under section 810.02(1)(a), Florida Statutes.
Such intent may be inferred upon proof that the defendant
entered or attempted to enter stealthily and without consent under section 810.07, Florida Statutes. 1 Section 810.07 affords the
state “an alternative means of proving the element of intent,”
and must be “strictly construed.” State v. Waters, 436 So. 2d
66, 69-70 (Fla. 1983). The jury may be instructed on the statutory inference only where the state proves the entry was “surreptitious, furtive or sly.” Lanzo v. State, 73 So. 3d 817, 819
1
Section 810.07 provides:
(1) In a trial on the charge of burglary, proof of the
entering of such structure or conveyance at any time
stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with
intent to commit an offense.
(2) In a trial on the charge of attempted burglary,
proof of the attempt to enter such structure or conveyance at any time stealthily and without the consent
of the owner or occupant thereof is prima facie evidence of attempting to enter with intent to commit an
offense.
5
(Fla. 5th DCA 2011).
At bar, the jury was instructed on this statutory inference
as to both burglary and attempted burglary:
You may infer that Lys J. Jadotte 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.
T5 505, 507.
Giving
this
instruction
was
error
for
three
independent
reasons, each requiring reversal. R3 237-38.
First, the state did not show the entry was surreptitious,
furtive or sly. Second, the instruction did not define “stealthily” as it did not tell the jury that the inference applies
only if the entry is surreptitious, furtive or sly. Third, the
instruction did not provide for any burden of proof that the entry was stealthy.
A. When the court errs in giving an instruction that
is pertinent or material to what the jury must consider, fundamental error occurs.
The jury cannot perform its constitutional task of applying
the law to the facts if the court errs in its instructions on
the law. Where the instructional error is pertinent or material
to what the jury must decide, fundamental error occurs and a new
trial is required. See State v. Montgomery, 39 So. 3d 252, 258
(Fla. 2010). The error deprives a defendant of constitutional
rights under the Due Process and Jury Clauses of the state and
6
the federal constitutions. Art. I, §§ 9, 16 Fla. Const.; Amends.
VI, XIV, U.S. Const. Under these provisions, a criminal defendant is entitled to a jury determination of every element of the
offense beyond a reasonable doubt.
B. At bar, the stealthy entry instruction was pertinent or material to the disputed issue in the case:
intent to commit a crime in the house.
As to Count II (the count on which the defendant was convicted of attempted burglary), counsel conceded that the defendant was guilty of trespass, so that the jury had only to decide
whether he had an intent to commit an offense when he entered
the fenced yard and approached the back door. T5 478-79.
Thus, the issue before the jury was whether the defendant
had an intent to commit an offense.
C. Fundamental error occurred.
In Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991),
this Court ruled that the trial court committed fundamental error in instructing the jury on the section 810.07 inference because it was not supported by the evidence.
Although Vinson, did not contain much analysis, the principles governing fundamental error are well-settled.
Fundamental error occurs in a jury instruction when the error is “pertinent or material to what the jury must consider in
order to convict.” State v. Montgomery, 39 So. 3d at 258.
7
1. The court erred in giving the instruction because
the state did not prove the entry was surreptitious,
furtive or sly.
The state did not prove a surreptitious, furtive or sly as
required by Lanzo.
In Lanzo, the defendant entered the open garage door of a
house during daylight hours and was found trying to take a bicycle. He was not heard by a person in the house.
The Fifth District held that the trial court erred in instructing on the stealthy entry inference because there was no
proof of an entry that was surreptitious, furtive or sly. The
court wrote:
To utilize the presumption set forth in section
810.07, the State must present evidence of the owner
or occupant’s lack of consent and that entry into the
structure was done “stealthily.” While the statute
does not define “stealth,” this term has been interpreted to mean activity that is “surreptitious, furtive, or sly.” J.A.S. v. State, 952 So. 2d 638, 640
(Fla. 2d DCA 2007); see also Black’s Law Dictionary
1548 (9th ed. 2009).
Lanzo, 73 So. 3d at 819.
At bar, the state failed to prove a “surreptitious, furtive
or sly” entry.
The defendant drove up to the house and rang the doorbell
in mid-day. He then entered the backyard through a gate in the
fence and approached the rear door. There were four dogs in the
house. T3 313. They were “barking, going crazy.” T3 317. The
homeowner
testified
the
barking
8
could
be
heard
outside
the
house:
Q Okay. Let me ask you a stupid question. But if somebody were to be on the other side of the door, would
they be able to hear the dogs going crazy, so to
speak?
A Absolutely.
T3 331. Although the yard was fenced, there was no evidence as
to whether it was a chain-link fence or a privacy fence.
The state simply did not prove stealth as contemplated by
the case law. Hence, the court erred in instructing on the inference, and a new trial is required.
2. The instruction did not define stealthy entry.
The statute did not define “stealthily.” As noted above,
Lanzo defined a stealthy entry under the statute as one that is
“surreptitious, furtive, or sly.”
At bar, there was no definition in the instruction given by
the court. T5 505, 507.
The court did not give the jurors a correct definition – or
any definition - of the statutory term “stealthily,” which was
crucial to what they had to decide. In the circumstances at bar,
fundamental error occurred in the instruction as to the disputed
issue as to Count II.
3. The instruction did not require that the state
prove stealthy entry.
The Due Process and Jury Clauses of the state and the federal
constitutions
require
that
9
the
state
prove
to
the
jury
every element of the offense charged beyond a reasonable doubt.
Apprendi v. New Jersey, 530 U.S. 466, 477 (2000).
The section 810.07 inference affords the state “an alternative means of proving the element of intent.” State v. Waters,
436 So. 2d at 69-70.
Where the state relies on a fact as an alternative means to
prove an element beyond a reasonable doubt, that fact must also
be proved beyond a reasonable doubt. That is, a fact supported
by a lower standard of proof cannot be “an alternative means of
proving” an element beyond a reasonable doubt. Hence, the state
must prove that the nonconsensual entry was stealthy beyond a
reasonable doubt since the statute acts as “an alternative means
of proving the element of intent.”
The jury instruction at bar did not require the state to
prove stealth beyond a reasonable doubt. In fact it placed no
burden on the state:
You may infer that Lys J. Jadotte 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.
T5 505, 507.
In consequence, the instruction was erroneous. Because of
the error, the defendant was denied his rights under the Due
Process and Jury Clauses of the state and the federal constitu-
10
tions. Art. I, §§ 9, 16 Fla. Const.; Amends. VI, XIV, U.S.
Const.
Because the erroneous instruction went to what the jury had
to decide in order to convict, fundamental error occurred. As
already noted, fundamental error occurs in a jury instruction
when the error is “pertinent or material to what the jury must
consider in order to convict.” See State v. Montgomery, 39 So.
3d at 258.
D. A new trial should be ordered.
Here, the jurors had to decide whether the defendant had an
intent to commit a crime. They were instructed that they could
infer intent from a nonconsensual stealthy entry, but they were
not instructed that this inference depended on the state’s proving that the entry was surreptitious, furtive or sly. Further,
they were not instructed that the state had to prove such an entry. There can be no confidence that they correctly applied the
law to the facts. This is the kind of case to which the fundamental error rule applies under State v. Montgomery. A new trial
should be ordered.
11
CONCLUSION
The conviction and sentence for attempted burglary (Count
II)
should be reversed and remanded for a new trial.
Respectfully submitted,
CAROL STAFFORD HAUGHWOUT
Public Defender
Fifteenth Judicial Circuit
/s/ Gary Lee Caldwell
GARY LEE CALDWELL
Florida Bar No. 256919
Assistant Public Defender
Attorney for Appellant
CERTIFICATE OF SERVICE
I certify that on 19 September 2014 a copy hereof has been
electronically filed with this Court and furnished to Celia Terenzio, Esq., Assistant Attorney General, Counsel for Appellee,
by email to [email protected].
/s/ Gary Lee Caldwell
Attorney for Appellant
CERTIFICATE OF FONT SIZE
I certify this brief is submitted in Courier New 12-point
font in compliance with Florida Appellate Rule 9.210(a)(2).
/s/ Gary Lee Caldwell
Attorney for Appellant
12