ROBERT LEWIS HARRIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Lewis Harris was convicted of second degree murder along with a co-defendant based on a jury instruction that used the conjunction "and/or" between their names when describing the criminal act element. The court reverses, finding this phrasing constituted fundamental error because it allowed the jury to convict Harris solely based on his co-defendant's conduct.
The court reverses Harris's conviction, holding that the use of "and/or" in the jury instruction resulted in fundamental error. The error was not cured by the additional instruction requiring the jury to consider each defendant separately, as this instruction did not remedy the fundamental defect in the primary instruction on the elements of the crime.
[1] The use of the conjunction "and/or" between the names of co-defendants in a jury instruction on the elements of a crime constitutes fundamental error when it allows the j…
[2] A jury instruction that permits a conviction based solely on a co-defendant's conduct, even when accompanied by an instruction to consider each defendant separately, may…
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Join FLexlaw to unlock all legal intelligence“The use of "and/or" in the jury instruction may have misled the jury, since it could have based his conviction solely on the acts of his co-defendant.”
Harris's argument that the instruction created the possibility of conviction based solely on co-defendant's conduct rather than his own actions.
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Join FLexlaw to unlock all legal intelligenceHarris and a co-defendant were charged with second degree murder arising from a bar room brawl that resulted in the victim's death. The jury returned …
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PER CURIAM.
The motion for rehearing is denied. We withdraw our June 21, 2006 opinion and substitute the following in its place. Robert Lewis Harris appeals his conviction, asserting that the trial court committed fundamental error when it included the conjunction “and/or” in the jury instruction between his name and that of a co-defendant. We reverse, finding that the use of the “and/or” conjunction in the instruction resulted in fundamental error based on the totality of the circumstances.
The State charged Harris and his co-defendant with second degree murder arising from a bar room brawl that ultimately led to the victim’s death. The jury returned a guilty verdict of second degree murder as to Harris and the co-defendant.
The pertinent instruction on second degree murder read as follows:
To prove the crime of second degree murder, the State must prove the following three elements beyond a reasonable doubt:
1. [The victim] is dead.
2. The death was caused by the criminal act of [the co-defendant] and/or Robert Lewis Harris.
3. There was an unlawful killing of [the victim] by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
The trial court further instructed the jury that it had to consider each defendant separately and the evidence applicable to each one separately. The parties did not object to the jury instructions as given.
Harris argues that a new trial is warranted because the use of “and/or” in the jury instruction may have misled the jury, since it could have based his conviction solely on the acts of his co-defendant. We agree.
Courts previously have considered this claimed error fundamental based on the totality of the circumstances. See Dorsett v. McRay, 901 So. 2d 225 (Fla. 3d DCA 2005); Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005); Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005); Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003); Williams v. State, 774 So. 2d 841 (Fla. 4th DCA 2000). These cases uniformly hold that including the “and/or” conjunction between the names of defendants in the instruction results in fundamental error because it creates a situation in which the “jury may have convicted the [defendant] based solely upon a finding that [the] eode-fendant’s conduct satisfied an element of the offenses.” See, e.g., Davis, 895 So. 2d at 1196. Based upon the instruction the trial judge gave in this case, the jury could have found Harris guilty of second degree murder if it found that the criminal act of his co-defendant caused the victim’s death.
The State argues that any error was harmless because of the additional jury instruction that required the jury to consider each defendant separately and the evidence applicable to each one separately. We disagree with this position. The State in Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005), argued that no fundamental error arose from the jury instruction because the trial court further instructed the jury to consider each defendant and the evidence applicable to each separately, and that the verdict as to one defendant must not affect the verdict as to the other defendant. Despite the additional instruction, the court disagreed with the State and concluded that the insertion of the “and/or” conjunction resulted in fundamental error requiring a new trial. Id. at 396. Similarly, this Court held in Dorsett that “even if the charges against each defendant were to be considered ‘separately,’ as the standard jury instruction stated, the primary instruction still provided that [the defendant] might be criminally liable solely if [his co-defendant] was liable.... ” Dorsett, 901 So. 2d at 227. We thus find that the addition of a standard jury instruction with respect to the joint trial of Harris and the code-fendant did not remedy the fundamental error resulting from the inclusion of the “and/or” conjunction in the specific jury instruction regarding the elements of second degree murder. We thus conclude that the use of the “and/or” conjunction in the instruction to the jury resulted in fundamental error based on the totality of the circumstances. Therefore, we reverse Harris’ conviction and remand for a new trial.
Reversed and remanded.
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Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)…2d 1288 (codefendant to Garzon); Dempsey v. State, 939 So. 2d 1165 (Fla. 4th DCA 2006) (use of "and/or” in written instructions, addressing nonfundamental error); Davis, 922 So. 2d 279 (use of "and/or” with principals instruction); Harris v. State, 937 So. 2d 211 (Fla. 3d DCA 2006) (use of "and/or” with codefendants instruction); Martinez v. State, 933 So. 2d 1155 (Fla. 3d DCA 2006) (use of "and/or” in underlying forcible felony instruction held not fundamental error because not [*1043] used as to a disputed…
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Salas v. State, 972 So. 2d 941 (Fla. 5th DCA 2007)…cases where element of malice was disputed; otherwise error is not fundamental), examined the facts and circumstances of the particular case before determining that use of “and/or” rose to the level of fundamental error. See, e.g., Harris v. State, 937 So. 2d 211 (Fla. 3d DCA 2006); Brown v. State, 967 So. 2d 236 (Fla. 3d DCA 2007); Davis, 804 So. 2d at 405. For instance, in Casimir v. McDonough, 932 So. 2d 471' (Fla. 3d DCA 2006), the court was confronted with an ineffective assistance of counsel claim pre…
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Brown v. State, 967 So. 2d 236 (Fla. 3d DCA 2007)…empted first degree murder based solely on a finding that the criminal conduct of another person acting as a principal satisfied the elements of those offenses. As applied to Counts 2 and 3, we find this to be fundamental error. See Harris v. State, 937 So. 2d 211 (Fla. 3d DCA 2006)(holding that including the “and/or” conjunction between the names of defendants in jury instruction results in fundamental error because it creates a situation in which the jury may have convicted the defendant based solely upon a…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005)
- Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003)
- Elress Williams v. State, 774 So. 2d 841 (Fla. 4th DCA 2000)
- Dorsett v. McRAY, 901 So. 2d 225 (Fla. 3d DCA 2005)
- Green v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- Raymundo Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)
- Satahoo v. State, 895 So. 2d 1195 (Fla. 3d DCA 2005)
- Sherrey Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005)