JAMES LYONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Lyons was convicted of first-degree murder after a jury trial based on premeditated murder and felony murder theories. The Florida District Court of Appeal reversed and remanded for a new trial because one of the felony murder theories (burglary) was legally inadequate under recent Florida Supreme Court precedent, and it was impossible to determine which theory the jury relied upon.
The conviction must be reversed and the case remanded for a new trial because the burglary theory of felony murder was legally inadequate under Delgado v. State, and it is impossible to determine whether the jury relied on this inadequate theory in reaching its general verdict. Additionally, the trial court erred in preventing Lyons from testifying about his self-serving statements regarding self-defense, as the state attorney opened the door to such testimony through cross-examination questions and closing argument comments.
[1] A conviction under a general verdict is improper when it is impossible to determine whether the jury relied upon a legally inadequate theory.
[2] Remaining in a premises after the occupant has withdrawn consent does not constitute burglary unless the visitor remains by concealing himself.
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Join FLexlaw to unlock all legal intelligence“the Florida Supreme Court held that simply remaining in a premises after the occupant has withdrawn his consent to the visitor's presence does not constitute burglary unless the visitor remains by concealing himself”
Establishes that the burglary theory was legally inadequate under Delgado v. State
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Join FLexlaw to unlock all legal intelligenceLyons was charged with premeditated murder of Marlen Zengo. Lyons was initially invited into Zengo's residence and never concealed himself. During a f…
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GREEN, Judge.
The defendant, James Lyons, was charged by indictment with the premeditated murder of Marlen Zengo. He was convicted after a jury trial. We reverse.
The jury was instructed with respect to premeditated murder and felony murder. The felony murder theory was based on two contentions, the burglary of Zengo’s residence and alternatively the robbery of Zengo. It is not disputed that Lyons was initially invited into the residence by Zengo and never secreted himself therein. Even so, the State contended that Lyons was guilty of burglary because Zengo must have withdrawn his consent to Lyons’s presence in his residence when the two engaged in a fatal confrontation. Recently, however, the Florida Supreme Court held that simply remaining in a premises after the occupant has withdrawn his consent to the visitor’s presence does not constitute burglary unless the visitor remains by concealing himself. Delgado v. State, 776 So. 2d 233 (Fla.2000). Thus, one of the State’s two felony murder theories was legally inadequate.
The jury returned a single general verdict finding Lyons guilty of murder in the first-degree as charged. Because we are unable to discern whether the jury relied on the legally inadequate burglary theory in order to find Lyons guilty, we are compelled to reverse and remand for a new trial. See Mackerley v. State, 777 So. 2d 969 (Fla.2001) (acknowledging that a conviction under a general verdict is im proper when it is impossible to determine whether the jury relied upon an inadequate legal theory) (citing Delgado, 776 So. 2d 233).
Lyons additionally complains about not having been permitted to testify concerning self-serving statements he made to acquaintances about his self-defense defense, which were consistent with his trial testimony. The trial transcript reflects that the state attorney asked questions on cross-examination of Lyons and made assertions during closing argument which justified allowing Lyons to relate these statements.1 Although the state attorney attempted to isolate his questions to the statements made by Lyons to the paramedics and officers immediately following the incident, this is not what was insinuated to the jury. It appears the state attorney’s comments opened the door for Lyons to testify as to his self-serving statements and the state attorney took advantage of the fact that Lyons could not do so. We caution that this matter should be carefully considered upon retrial. See Smith v. State, 414 So. 2d 7 (Fla. 3d DCA 1982) (holding that questions insinuating impeaching facts which are not proved or are nonexistent are impermissible).
Reversed and remanded for new trial.
ALTENBERND, A.C.J., and NORTHCUTT, J., concur. . For example, the state attorney asked Lyons the following questions on cross-examination.
Q. Okay. So you’re saying from the very beginning of the time you murdered Marlen Zengo you knew it was self-defense but you were keeping it a secret, is that correct?
A. I knew it was self-defense, yeah.
Q. And this is a secret that you were going to keep to yourself?
A. No. Q. Well, you never told the police?
A. No, I didn't.
The state attorney also made the following comments during final argument.
This is not a case for self-defense where this man, this man right here (indication) even thought he had self-defense. And why is that? Because he never even tried to suggest that to the number of people that he talked to.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003)…y for the proposition addressed herein. . We observe that the outcome reached here has been anticipated at the district court level. The Second District Court of Appeal has confronted the identical factual scenario now before us. In Lyons v. State, 791 So. 2d 36 (Fla. 2d DCA 2001), the Second District applied our decisions in Delgado and Mackerley to reverse a conviction based on premeditated and felony murder based on robbery and burglary where the burglary theory was inadequate under Delgado. See id. at 3…
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State v. Ruiz, 863 So. 2d 1205 (Fla. 2003)…ow recede from Delgado, defendants like Braggs and Ruiz would be treated differently than other similarly situated defendants whose appeals were pending at the time Delgado was decided and who have already received relief. See, e.g., Lyons v. State, 791 So. 2d 36, 36 (Fla. 2d DCA 2001) (reversing for a new trial where, in light of Delgado, the general verdict finding Lyons guilty of first-degree murder made it impossible to discern whether the jury relied on the legally inadequate theory of burglary), review…
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Curley Braggs v. State, 815 So. 2d 657 (Fla. 3d DCA 2002)…To the contrary, it seem obvious that overruling Delgado occurred or will occur only because of chapter 2001-58, Laws of Florida. In other words, if the statute had not been passed, Delgado would be applied to this case, as it was in Lyons v. State, 791 So. 2d 36 (Fla. 2d DCA 2001) and Eltaher v. State, 777 So. 2d 1203 (Fla. 4th DCA 2001), review denied, 799 So. 2d 217 (Fla. 2001). Indeed, Delgado would constitutionally have to be applied to a case such as this one, which was in the “pipeline” when Delgado w…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Delgado v. State, 776 So. 2d 233 (Fla. 2000)
- MacKerley v. State, 777 So. 2d 969 (Fla. 2001)
- Smith v. State, 414 So. 2d 7 (Fla. 3d DCA 1982)