JAMES WOMACK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Womack was convicted of robbery and attempted robbery following a jury trial where written jury instructions incorrectly used "and/or" language to describe the defendants' conduct, allowing the jury to find guilt based on either defendant's actions rather than Womack's individual conduct. The court reversed and remanded for a new trial, finding the "and/or" instructions constituted error despite the trial court's oral agreement to eliminate such language.
The court held that the written "and/or" instructions constituted error requiring reversal and a new trial. The court reversed Womack's convictions for robbery with a firearm and attempted robbery with a firearm and remanded the case for a new trial.
[1] The use of "and/or" in written jury instructions, over objection, constitutes error requiring a new trial in a case involving co-defendants.
[2] Written jury instructions that use "and/or" to describe the actions of co-defendants are erroneous.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Before you can find the defendants guilty of Attempted First Degree Murder with a Firearm the State must prove the following four elements beyond a reasonable doubt: 1. James Womack and/or Courtney Dempsey did some act intended to cause the death of Leif Broberg that went beyond just thinking or talking about it.”
The problematic jury instruction that used "and/or" language, allowing conviction based on either defendant's actions rather than requiring proof specific to Womack.
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Join FLexlaw to unlock all legal intelligenceWomack and co-defendant Courtney Dempsey committed armed robberies of several victims and, during a high-speed chase, shots were fired at a pursuing p…
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PER CURIAM.
Appellant, James Womack, and a co-defendant, Courtney Dempsey, were charged with attempted first degree murder of a police officer with a firearm and five counts of robbery with a firearm. Following a jury trial, Womack was convicted of four counts of robbery with a firearm and one count of attempted robbery with a firearm. The jury acquitted Womack of attempted first degree murder with a firearm. The written instructions given to the jury stated that the State had to prove that James Womack “and/or Courtney Dempsey” committed the elements of the crimes. Because we conclude that the written “and/or” instructions constituted error, we reverse for a new trial.
The evidence showed that Womack and his co-defendant, Courtney Dempsey, committed an armed robbery of several victims and, during a subsequent high speed chase, shots were fired at a police officer who was pursuing them. Womack and Dempsey were tried together, before separate juries. During the jury instruction conference, the court agreed not to use “and/or” instructions, after an objection was made; however, the written instructions given to the jurors were not modified. For example, the court gave the following written instruction pertaining to attempted first degree murder with a firearm to the jurors:
Before you can find the defendants guilty of Attempted First Degree Murder with a Firearm the State must prove the following four elements beyond a reasonable doubt:
1. James Womack and/or Courtney Dempsey did some act intended to cause the death of Leif Broberg that went beyond just thinking or talking about it.
2. James Womack and/or Courtney Dempsey acted with premeditated design to kill Leif Broberg.
3. The act would have resulted in the death of Leif Broberg except that someone prevented James Womack and/or Courtney Dempsey from killing Leif Broberg or they failed to do so.
4. In the course of committing the Attempted First Degree Murder, James Womack and/or Courtney Dempsey carried a firearm.
(Emphasis supplied). The written instructions for all of the other crimes charged also contained the “and/or” language.
In Dempsey v. State, 939 So. 2d 1165 (Fla. 4th DCA 2006), we recently held that the “and/or” instructions in the co-defendant’s case required a new trial. We also noted our decision Garzon v. State, 939 So. 2d 278 (Fla. 4th DCA 2006), in which we held that where “and/or” instructions are given in combination with a principals instruction, the error is not fundamental error. As a result, in Dempsey, we found it appropriate to certify a question of great public importance to the Florida Supreme Court “to determine if the ‘and/or’ instruction, given in combination with a principals instruction, is non-fundamental error.”
In accordance with our decision in Dempsey, we reverse Womack’s convictions for robbery with a firearm and attempted robbery with a firearm and remand for a new trial because the written “and/or” instructions were error. As in Dempsey, we also certify the following question as one of great public importance:
DOES THE USE OF AN “AND/OR” JURY INSTRUCTION, OVER OBJECTION, IN A CASE INVOLVING CO-DEFENDANTS, CONSTITUTE ERROR REQUIRING A NEW TRIAL, WHERE A PRINCIPALS INSTRUCTION IS GIVEN?
Reversed and Remanded for New Trial.
STEVENSON, C.J., GUNTHER and TAYLOR, JJ., concur.
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Zamir Garzon v. State, 980 So. 2d 1038 (Fla. 2008)…846 (Fla. 3d DCA 2007) (use of "and/or”); Brown v. State, 967 So. 2d 236 (Fla. 3d DCA 2007) (use of "and/ or” with principal instructions); Santos v. State, 947 So. 2d 705 (Fla. 4th DCA 2007) (use of “and/or,” per curiam affirmed); Womack v. State, 942 So. 2d 955 (Fla. 4th DCA 2006) (use of "and/or” in written instructions, addressing nonfundamental error); Coles, 941 So. 2d 1288 (codefendant to Garzon); Dempsey v. State, 939 So. 2d 1165 (Fla. 4th DCA 2006) (use of "and/or” in written instructions, addressin…
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Love v. State, 971 So. 2d 280 (Fla. 4th DCA 2008)…ilar problems. On retrial, the trial court should avoid the “and/or” locution, and separately instruct the jury on each battery count. See Reed v. State, 837 So. 2d 366 (Fla.2002); Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001); Womack v. State, 942 So. 2d 955 (Fla. 4th DCA 2006); Dempsey v. State, 939 So. 2d 1165 (Fla. 4th DCA 2006).4 Reversed and remanded. FARMER and KLEIN, JJ., concur. . As an additional ground for reversal on this point, Love points to cases where the state succeeded in excluding e…1 / 2
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Salas v. State, 972 So. 2d 941 (Fla. 5th DCA 2007)…interposed to use of the “and/or” conjunction, this is not a fundamental error case. The use of “and/or” between codefen-dants’ names in jury instructions, where objected to, has been held to constitute reversible error. See, e.g., Womack v. State, 942 So. 2d 955 (Fla. 4th DCA 2006) (certifying question of whether use of “and/or” is reversible error where correct principals instruction was given); Dempsey v. State, 939 So. 2d 1165 (Fla. 4th DCA 2006) (certifying same question). In Dempsey, the court explaine…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Zamir Garzon and Ray C. Balthazar v. State, 939 So. 2d 278 (Fla. 4th DCA 2006)
- Dempsey v. State, 939 So. 2d 1165 (Fla. 4th DCA 2006)