author: GUNTHER, J. FARMER, J., STEVENSON, J., MAY, J., KLEIN, J.,

text:
    Paul Phillip SEVERANCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-338.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   En Banc

GUNTHER, J.

Appellant, Paul Phillip Severance, seeks review of his judgment and sentence for aggravated battery with a deadly weapon. He argues that the trial court fundamentally erred in instructing the jury on the aggravated battery charge because the instructions did not provide that the State was required to prove that Severance touched the victim with the deadly weapon in committing the battery. We find no merit in Severance’s argument and affirm his conviction and sentence. We also recede from our decision in Munoz-Perez v. State, 942 So.2d 1025 (Fla. 4th DCA 2006).

The facts established at trial were that the victim was at her apartment one night watching television with her nine-year-old son when Severance, her boyfriend at the time, knocked on her door. The victim gave Severance permission to enter her apartment. When the victim asked Severance where he had been all day, Severance became very angry and hit the victim on the face with a closed fist. The victim told her son to go into the other room, and Severance continued to hit the victim. Severance then went into the kitchen to get a knife, and when he returned from the kitchen, he pushed the victim onto the couch and threatened to kill her. The victim testified that Severance put the knife to the victim’s throat, and the victim tried to grab the knife to prevent Severance from cutting her with it. The victim further testified that throughout the whole time, Severance was choking her with one hand and hitting her with the other hand. The victim’s son testified that he observed the entire incident and that Severance was “fixing to slit my mom’s throat.” The son also testified that when he tried to get Severance off of his mother, Severance pulled him back by his hair.

During the charge conference, the trial court granted the defense’s request to include a special jury instruction on aggravated battery that “bare hands are not a deadly weapon.” Once that request was granted, defense counsel raised no further objections to the instruction on aggravated battery, and the trial court gave the following instruction:

To prove the crime of aggravated battery, the State must prove the following two elements beyond a reasonable doubt:
The first is the definition of battery, and that is that, one, that Phillip [sic] Severance intentionally touched or struck [the victim] against her will.
And, two, that Paul Severance in committing the battery used a deadly weapon.
A weapon is a deadly weapon if it is used or threatened to be used in a way likely to cause — likely to produce death or great bodily harm. Bare hands are not a deadly weapon.

The jury returned a verdict finding Severance guilty of aggravated battery with a deadly weapon on the victim as well as simple battery on the victim’s son. On appeal, Severance challenges only his conviction for aggravated battery with a deadly weapon arguing that the jury instructions given do not make it clear that to “use a deadly weapon” under the aggravated battery statute, the State must prove beyond a reasonable doubt that the defendant actually touched the victim with the deadly weapon to commit the battery. Relying on Munoz-Perez, Severance contends that the instruction is misleading and constitutes fundamental, reversible error because the instruction improperly allowed the jury to convict him of aggravated battery if it found that he, while committing the battery, used a knife without touching the victim.

In Munoz-Perez, this Court concluded that the appellant’s possession of the knife was insufficient to satisfy the requirement that he was using a deadly weapon while committing a battery. 942 So.2d at 1026. The testimony at trial was that the appellant grabbed the victim and held a sharp knife “near her throat” and also swung the knife in a threatening manner. Id. The appellant argued on appeal that because he never touched the victim with the knife, there was insufficient evidence to prove aggravated battery. Id. at 1027. This Court agreed, and reversed appellant’s conviction for aggravated battery concluding that the trial court should have granted appellant’s motion for judgment of acquittal on the aggravated battery charge. Id. at 1028. This Court stated:

The issue of whether there must be a touching with the deadly weapon in order to prove aggravated battery by using a deadly weapon has not been decided by any of the cases cited by the appellant or the state.
Our supreme court has noted that the legislature has made a distinction between carrying a deadly weapon and using a weapon in our statutes, in State v. Baker, 452 .So.2d 927 (Fla.1984) and Owens v. State, 475 So.2d 1288 (Fla.1985). We conclude, based on these cases, that the element “uses a deadly weapon” in the aggravated battery statute means using the weapon to commit the touching that constitutes the battery.

Id. at 1027-28.

However, we conclude that our interpretation in Munoz-Perez of the element “use a deadly weapon” under section 784.045(l)(a)(2), Florida Statutes (2005) is incorrect. Section 784.045(l)(a)(2) defines “aggravated battery” as follows:

(l)(a) A person commits aggravated battery who, in committing battery:
⅜ * *
2. Uses a deadly weapon.

§ 784.045(l)(a)(2), Fla. Stat. (2005). The text of the statute does not require that in using a deadly weapon, the deadly weapon must actually touch the victim or be used in any particular manner. Rather, section 784.045(l)(a)(2) requires that in committing the battery, the defendant uses a deadly weapon. Because there is no limitation or requirement in the text of the statute as to the manner of use of a deadly weapon, the plain meaning is that if a deadly weapon is used in any manner the battery is aggravated. The refusal of the Legislature to limit the manner or method of use of the deadly weapon does not make the statute ambiguous. On the contrary, it means instead that the drafters intended that it cover all uses.

The standard jury instruction on aggravated battery given in this ease is fully consistent with the plain meaning of the statute. The standard jury instructions are presumed correct and are preferred over special instructions. Stephens v. State, 787 So.2d 747, 755-56 (Fla.2001). The defendant has the burden of demonstrating that the trial court abused its discretion in giving standard instructions. Id. The standard jury instruction on aggravated battery does not require that the deadly weapon used must touch the victim to commit the battery. Fla. Std. Jury Instr. (Crim.) 8.4.

Therefore, we conclude that the trial court adequately instructed the jury on the charge of aggravated battery with a deadly weapon in this case. We recede from Munoz-Perez v. State, 942 So.2d 1025 (Fla. 4th DCA 2006) and hold that the element “uses a deadly weapon” in the aggravated battery statute does not require using the weapon to commit the touching that constitutes the battery. Rather, the plain meaning of the aggravated battery statute is that in committing the battery, the defendant used a deadly weapon, which includes holding a deadly weapon without actually touching the victim with the weapon. Severance’s conviction and sentence for aggravated battery with a deadly weapon is affirmed.

Affirmed.

SHAHOOD, C.J., WARNER, POLEN, FARMER and GROSS, JJ., concur.

FARMER, J., concurs specially with opinion in which GUNTHER, WARNER and GROSS, JJ., concur.

STEVENSON, J., concurs in part, dissents in part with opinion.

MAY, J., concurs in part, dissents in part with opinion in which STONE and STEVENSON, JJ., concur.

KLEIN, J., dissents with opinion in which TAYLOR and HAZOURI, JJ., concur.

FARMER, J.,

concurring.

This responds to the opinions rejecting the analysis in the majority opinion. The essential assertion of all these opinions is that the meaning of the aggravated battery statute is unclear.

On the contrary, there is nothing ambiguous about section 784.045(l)(a)2. The operative word here is uses, a standard word with expansive meaning. In section 784.045, the term uses is not modified or limited. The statute does not suggest in any way that the deadly weapon must in fact contact the person. On the contrary, section 784.045 merely requires that it be employed in some way to facilitate the purpose of committing a battery. Because the statute does not specify how the person necessarily uses the deadly weapon, the only possible meaning is that the deadly weapon be applied or employed in any way assisting the commission of a battery.

The United States Supreme Court has decided this identical issue in an opinion directly supporting the majority’s decision. In Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), the Court confronted functionally identical text: “uses a firearm.” The federal statute in question required that a firearm be used “in relation to” committing “any crime of violence or drug trafficking.” The facts were that defendant had exchanged a firearm for illegal drugs. He argued that using the weapon as payment for the drugs did not fit the statute’s narrow meaning of uses, and that the statute required that he fire or threaten to fire the weapon, or employ it for self-protection. Rejecting this argument, the Court explained:

“When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning. ... ‘In the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning.’ Surely petitioner’s treatment of his MAC-10 can be described as ‘use’ within the everyday meaning of that term. Petitioner ‘used’ his MAC-10 in an attempt to obtain drugs by offering to trade it for cocaine. Webstee’s defines ‘to use’ as ‘[t]o convert to one’s service’ or ‘to employ.’ Black’s Law DictionaRY contains a similar definition: ‘[t]o make use of; to convert to one’s service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of.’ Indeed, over 100 years ago we gave the word ‘use’ the same gloss, indicating that it means ‘to employ’' or ‘to derive service from.’ Petitioner’s handling of the MAC-10 in this case falls squarely within those definitions. By attempting to trade his MAC-10 for the drugs, he ‘used’ or ‘employed’ it as an item of barter to obtain cocaine; he ‘derived service’ from it because it was going to bring him the very drugs he sought.” [c.o.]

508 U.S. at 228-29,113 S.Ct. 2050. In that case the accused had argued that the term uses should require proof that the firearm was used in the manner a firearm would most ordinarily be used, that the firearm must be fired. This argument is functionally indistinguishable from defendant’s argument here that the deadly weapon must be used in the only way a battery may be done, that is to touch the victim. Again, Smith rejected the argument and pointed out:

“§ 924(c)(l)’s language sweeps broadly, punishing any 'us[e]’ of a firearm, so long as the use is ‘during and in relation to’ a drug trafficking offense. See United States v. Long, 284 U.SApp. D.C. 405, 409-410, 905 F.2d 1572, 1576-1577 (Thomas, J.) (although not without limits, the word ‘use’ is ‘expansive’ and extends even to situations where the gun is not actively employed), cert, denied, 498 U.S. 948 [111 S.Ct. 365, 112 L.Ed.2d 328] (1990). Had Congress intended the narrow construction petitioner urges, it could have so indicated. It did not, and we decline to introduce that additional requirement on our own.
“... It is one thing to say that the ordinary meaning of ‘uses a firearm’ includes using a firearm as a weapon, since that is the intended purpose of a firearm and the example of ‘use’ that most immediately comes to mind. But it is quite another to conclude that, as a result, the phrase also excludes any other use. Certainly that conclusion does not follow from the phrase ‘uses ... a firearm’ itself, As the dictionary definitions and experience make clear, one can use a firearm, in a number of ways. That one example of ‘use’ is the first to come to mind when the phrase ‘uses ... a firearm’ is uttered does not preclude us from recognizing that there are other ‘uses’ that qualify as well.” [e.s., e.o.]

508 U.S. at 229-30, 113 S.Ct. 2050. As in Smith, it is one thing to say in this case that the ordinary meaning of battery requires á touching, but it is quite another to conclude that, as a result, the element of committing the battery requires also, for the use of the deadly weapon, that the weapon actually touch or make contact with the victim. Obviously there are other ways in which a deadly weapon may be used.

Section 784.045(l)(a)2 requires that the deadly weapon be used in committing battery. In Smith the statute required the firearm to be used in relation to the crimes of violence or drug trafficking. Smith’s defendant argued that in relation to was a limitation requiring a narrow meaning. Once again the Court disagreed with that argument, saying:

“The phrase ‘in relation to’ is expansive.... Nonetheless, the phrase does illuminate § 924(c)(l)’s boundaries. According to WebsteR’s, ‘in relation to’ means ‘with reference to’ or ‘as regards.’ The phrase ‘in relation to’ thus, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.... Instead, the gun at least must “facilitate], or ha[ve] the potential of facilitating,” the drug trafficking offense.” [e.s., c.o.]

508 U.S. at 237-38, 113 S.Ct. 2050. In this case, the phrase in committing a battery functions exactly like in relation to did in Smith. It means that the use of the deadly weapon “must have some purpose or effect with respect to the crime” [battery]; it must “facilitate or have the potential of facilitating” the battery. Neither of these formulations necessarily requires that the deadly weapon actually touch the victim— any more than in Smith it required that firearm be fired.

Also in Smith, as here, the defendant invoked the rule of lenity, arguing that because both exculpatory and inculpatory meanings are possible, the one favoring him must be applied. In rejecting that argument too the Court said:

“The mere possibility of articulating a narrower construction, however, does not by itself make the rule of lenity applicable. Instead, that venerable rule is reserved for cases where, ‘[a]fter ‘seizing] every thing from which aid can be derived,’ the Court is ‘left with an ambiguous statute. This is not such a case. Not only does petitioner’s use of his MAC-10 fall squarely within the common usage and dictionary definitions of the terms ‘uses ... a firearm,’ but Congress affirmatively demonstrated that it meant to include transactions like petitioner’s as ‘us[ing] a firearm’ by so employing those terms in § 924(d).
“Imposing a more restrictive reading of the phrase ‘uses ... a firearm’ does violence not only to the structure and language of the statute, but to its purpose as well. When Congress enacted the current version of § 924(c)(1), it was no doubt aware that drugs and guns are a dangerous combination. In 1989, 56 percent of all murders in New York City were drug related; during the same period, the figure for the Nation’s Capital was as high as 80 percent. The American Enterprise 100 (Jan.-Feb. 1991). The fact that a gun is treated momentarily as an item of commerce does not. render it inert or deprive it of destructive capacity. Rather, as experience demonstrates, it can be converted instantaneously from currency to cannon. We therefore see no reason why Congress would have intended courts and juries applying § 924(c)(1) to draw a fine metaphysical distinction between a gun’s role in a drug offense as a weapon and its role as an item of barter; it creates a grave possibility of violence and death in either capacity.
“We have observed that the rule of lenity ‘cannot dictate an implausible interpretation of a statute, nor one at odds with the generally accepted contemporary meaning of a term.’ That observation controls this case. Both a firearm’s use as a weapon and its use as an item of barter fall within the plain language of § 924(c)(1), so long as the use occurs during and in relation to a drug trafficking offense; both must constitute ‘uses’ of a firearm for § 924(d)(1) to make any sense at all; and both create the very dangers and risks that Congress meant § 924(c)(1) to address.” [e.s., c.o.]

508 U.S. at 239-41, 113 S.Ct. 2050. This entire line of reasoning is directly applicable to this case. Defendant’s use of the deadly weapon falls squarely within common usage and the standard dictionary definitions. Employing only the narrow interpretation argued by the dissents does considerable damage to the text and purpose of the statute, whose purpose is to add severe punishment to any use of a deadly weapon that facilitates the commission of even a simple battery. Implausible results are avoided by giving effect to the requirement that the deadly weapon be used “in committing” the battery — i.e., that it facilitate the offense in some way. As the Court approved in Smith the knife in this case satisfied the requirement that it be used to “create[ ] a grave possibility of violence or death.” 508 U.S. at 241, 113 S.Ct. 2050; see also Bailey v. United States, 516 U.S. 137, 148, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (holding that Smith made clear that the statutory term use requires the firearm to be actively employed in some way-such as brandishing, displaying, bartering, striking with, and firing or attempting to fire it); but see Watson v. United States, 552 U.S. -, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007) (holding that “uses a firearm” does not include a person who trades his narcotics for a gun).

The statute requires as a foundational element that the-, accused be engaged in the act of committing a simple battery against the victim. The Legislature has added a new element to a simple battery— that a deadly weapon also be used in some way — as a basis for increasing the punishment beyond what a mere simple battery by itself would bring. The analysis of those who reject the majority opinion conflates the simple battery’s element of contact with the victim into a requirement that the deadly weapon be used to make the contact with the victim. There is not a single word in the text that even hints at such a meaning.

The Legislature is free to write a statute having one element of simple battery and an entirely separate element requiring any use of a deadly weapon in any manner to create a new crime different from simple battery alone. The Legislature is also free to name this new crime as a form of battery, even though the new crime has features different from traditional battery and even similar to other crimes. The difference between traditional battery and traditional assault, not to mention the similarity with the latter, is absolutely irrelevant to the meaning of this new, uniquely constructed statute.

The Legislature is the sole architect of all criminal statutes. See Chicone v. State, 684 So.2d 736 (Fla.1996) (holding that legislature is vested with authority to define elements of statutory crime). The power to define the crime includes the power to dispense with elements included in other crimes. See Chicone 684 So.2d at 741 (“determining whether scienter is an essential element of a statutory crime is a question of legislative intent”). Subject only to the applicable constitutions, the Legislature alone decides the policies it intends to enforce by criminalization. It alone adds and omits the elements of those crimes. It alone decides the degree of punishment for each crime. The role of Judges is to interpret and apply those statutes as written, not to change the policies, rewrite the elements, or decide when punishment is too much. See Holly v. Avid, 450 So.2d 217 (Fla.1984) (“It has also been accurately stated that courts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.”).

Section 784.045(l)(a)2 defines one particular crime — which the Legislature chose to denominate as “aggravated battery” — to mean a person “who in committing battery ... uses a deadly weapon.” It could just as well have called this new crime battery assisted by weapon. In punishing a simple battery far more seriously when a deadly weapon is used in some way to make it happen — even though the deadly weapon might not actually touch the victim — the Legislature has made a policy decision about using deadly weapons. This policy decision is not about traditional battery, whether simple or aggravated. The critical policy involved in this statute is to extract a much greater price in punishment when a deadly weapon is any part of the commission of simple battery. If that is the policy — and I think it is demonstrably the only purpose of the statute— why must the deadly weapon necessarily contact the victim?

One manner of use is to display a knife without contact to intimidate or coerce the victim while the perpetrator completes the simple battery. The fact that the Legislature did not instead employ terms like display or threaten in place of the broader term use does not logically either foreclose more limited meanings or raise any ambiguity about them. Whether a weapon was used in committing a battery is thus a question for a properly instructed jury. It is no more ambiguous than hundreds of other decisions juries are called to make in the criminal law.

Nevertheless, the opinions taking issue with the analysis of the majority opinion focus on the fact that the title of this particular crime uses the word battery and cite other statutes with different degrees of battery, all requiring contact. But it does not matter how other crimes have been defined. The only critical thing about section 784.045(l)(a)2 is how the Legislature built it. It could include or exclude elements of other crimes as the Legislature sees fit and appropriate. Chi-cone. makes clear that the Legislature alone defines any new crime. The new crime may be built with or without the elements used in other crimes. Holly v. Auld holds that Judges may not make themselves into statutory architects under the guise of statutory construction. Judges may not add elements the Legislature has omitted, or delete elements the Legislature has included.

Again, the argument of the other opinions would add something not present in the words adopted and approved by the Legislature and not reasonably inferable from those words. It would require us to “extend, modify, or limit, its [section 784.045] express terms or its reasonable and obvious implications.” Holly v. Auld, 450 So.2d at 219. In so doing, we would be abrogating the legislative power to be the exclusive architect of any statute’s purpose, elements and penalty.

GUNTHER, WARNER and GROSS, JJ., concur.

STEVENSON, J.,

concurring in part and dissenting in part.

I agree with the separate opinion filed by Judge May and dissent from part of the majority decision as she has indicated. As a practical matter, I believe that the “touching” requirement in Munoz-Perez v. State, 942 So.2d 1025 (Fla. 4th DCA 2006), could be fairly interpreted to include physical impact as well as physical contact. Nevertheless, a literal reading of the word “touching” would preclude a jury from finding that a defendant “used” a deadly weapon in committing a battery where the weapon physically impacted the victim, but did not actually come into contact with the victim — as illustrated in Judge May’s examples. In my view, the aggravated battery statute was clearly intended to reach such behavior. See § 784.045(l)(a)(2), Fla. Stat. (“A person commits aggravated battery who, in committing battery ... [u]ses a deadly weapon.”).

Based on the transcripts in this case and on Munoz-Perez, it appears there is considerable uncertainty among trial judges, prosecutors and defense attorneys about whether a deadly weapon must have some physical impact on the victim in order to prove aggravated battery. Consistent with the principle of lenity discussed by Judge Klein in his dissent, the aggravated battery using a deadly weapon statute must be interpreted as requiring at least some physical touching, or impact, on the victim attributable in whole or part to the presence of the deadly weapon. For this reason, the court in Munoz-Perez correctly held that the trial judge should have entered a judgment of acquittal on the aggravated aspect of the battery which occurred there. Simply stated, the deadly weapon must be physically involved with the impact which constitutes the unwanted touching. The “touching” requirement set forth in Munoz-Perez was too restrictive to allow this concept; the majority’s “anything goes” approach in the instant case provides no guidance at all. Consequently, I believe the statement in Munoz-Perez that the deadly weapon must be used “to commit the touching that constitutes the battery” should be receded from, and the issue clarified, as Judge May has attempted to do in her separate opinion. 942 So.2d at 1028.

MAY, J.,

concurring in part and dissenting in part.

I concur in the holding of the majority opinion — the trial court did not err in its instructions to the jury on the charge of aggravated battery. I further agree that the statute does not require a touching and we should recede from a sentence in Munoz-Perez v. State, 942 So.2d 1025 (Fla. 4th DCA 2006), in which we concluded that “the element ‘uses a deadly weapon’ in the aggravated battery statute means using the weapon to commit the touching that constitutes the battery.” Id. at 1028. That sentence was unnecessary to the decision in Munoz-Perez.

I disagree, however, with the majority’s conclusion that if the weapon is used in “any manner” the battery must necessarily be an aggravated battery. In my judgment, the weapon must be used in such a way as to assist in accomplishing the battery. See, e.g., Rodriguez v. State, 594 So.2d 818 (Fla. 3d DCA 1992) (where pointing a pistol at the victim to “secure acquiescence” to the defendant’s acts of non-consensual touching was deemed sufficient). For that reason, I do not believe that Munoz-Perez was wrongly decided and therefore dissent from that part of the majority’s opinion that not only recedes from the overly-broad statement, but suggests error in the decision.

It is important to note the difference in the arguments presented in the present case and in Munoz-Perez. In this case, the defendant argues that the trial court erred in refusing to specially instruct the jury based upon the above-quoted sentence in Munoz-Perez. Specifically, the defendant suggests that the trial court should have instructed the jury that the State had the burden to “prove beyond a reasonable doubt that the defendant actually touched the victim with the deadly weapon to commit the battery.”

Contrastingly, in Munoz-Perez, the defendant argued the evidence was insufficient to withstand a motion for judgment of acquittal. In that case, the battery had already occurred, but was continuing, when the defendant picked up a knife. The knife was neither “used” in the initial commission of the battery nor “used” to convert the simple battery into an aggravated battery with a deadly weapon. For that reason, I am still of the opinion that the trial court should have entered a judgment of acquittal on the aggravated aspect of the battery in Munoz-Perez, We simply went too far in drawing a bright-line rule that aggravated battery with a deadly weapon necessarily always requires proof that the weapon actually touched the victim.

The scenarios in which the offense of aggravated battery occurs are varied and diverse.' More often than not, there will be a touching with the deadly weapon or a projectile emanating from it. On. some occasions, however, the battery will occur while the defendant is in possession of a deadly weapon even if the weapon itself does not touch the victim. If, for example, a defendant strikes the victim with a baseball bat wrapped in a velvet covering, any argument that there is no aggravated battery simply because the bat did not touch the victim would be specious. The same would hold true if a defendant struck the victim with the hand which held a deadly weapon and only the defendant’s hand actually made contact with the victim. Or, for example, if a defendant charged at a victim holding a sledge hammer, but only knocked the victim down with his body, a jury could find the defendant guilty of aggravated battery.

Then, there are fact patterns such as that found in Munoz-Perez, in which the deadly weapon actually takes no part in the battery. I would suggest the issue is most often left for jury consideration after being properly instructed on the State’s burden of proof. There are instances, however, like Munoz-Perez, where the evidence simply does not meet the burden of proof to surpass a motion for judgment of acquittal. Thus, I concur in part and dissent in part.

STONE and STEVENSON, JJ., concur.

KLEIN, J.,

dissenting.

The battery at issue in this case is aggravated battery, which occurs when a person who, “in committing battery ... uses a deadly weapon.” § 784.045. In Munoz-Perez v. State, 942 So.2d 1025 (Fla. 4th DCA 2006), the case the majority is receding from, the panel concluded that the statute required that the victim be touched by the deadly weapon. Although the word “uses” has been given a broad interpretation with respect to other crimes such as drug trafficking or robbery, battery is different in that it requires touching. And considering that touching is required, the statute read in its entirety convinces me to conclude that the legislature intended that, for aggravated battery, the weapon must touch the victim.

There are three different degrees of battery, and they all require- contact. Under section 784.03(l)(a)l, a person who “intentionally touches or strikes another person against the will of the other” commits a battery which is a misdemeanor. If the striking causes “great bodily harm, permanent disability, or permanent disfigurement” the battery is a third degree felony. § 784.041. Aggravated battery, which occurs when a person who “in committing battery ... uses a deadly weapon” is a second degree felony. § 784.045. Applying the broad interpretation of “uses” means that the mere touching of a victim by a person who is brandishing a weapon, but not using it to touch, is a second degree felony. Yet a defendant who is unarmed, but commits a battery causing great bodily harm, is only guilty of a third degree felony. Read in that context, I believe that the most serious crime intended by the Legislature in this case is aggravated assault, a third degree felony. § 784.021(l)(a), Fla. Stat. (2006). That was how the panel in Munoz-Perez reacted to this issue. See also Rodriguez v. State, 594 So.2d 318, 320 (Fla. 3d DCA 1992) (Gersten, J., dissenting in part).

If I were the only one who entertained this construction, I would end this dissent here, but this appears to be a close question. If this statute is susceptible of different interpretations, section 775.021, Florida Statutes, our lenity statute, requires us to apply the interpretation favorable to the defendant. I recognize that the fact that appellate judges may have different interpretations of a statute does not, in and of itself, render a statute ambiguous, Hayes v. State, 750 So.2d 1, 3 (Fla.1999), but we are not required to ignore it, either. And section 775.021 is founded on the due process requirement that criminal statutes must apprise ordinary persons of common intelligence as to what is prohibited, Perkins v. State, 576 So.2d 1310, 1312-13 (Fla.1991), not judges. I would hold, consistent with Munoz-Perez, and Judge Gersten’s dissent in Rodriguez, that touching with the deadly weapon is required for aggravated battery.

TAYLOR and HAZOURI, JJ., concur.

      . § 784.045(l)(a)2, Fla. Stat. (2006) (‘‘(l)(a) A person commits aggravated battery who, in committing battery ... uses [e.s.] a deadly weapon.”).

      . See American Heritage Dictionary (3d ed.) 1966 ("1. To put into service or apply to a purpose; employ. 2. To avail oneself of_4. To seek or achieve an end by means of; exploit”); Black’s Law Dictionary (7th ed.) 1540 ("The application or employment of something”); Merriam-Webster’s Unabridged Dictionary (CD edition) at use [2, verb] ("3: to carry out a purpose or action by means of: ... apply to advantage ... UTILIZE”).

      . Namely something called a "MAC-10” which the Court noted was "small and compact, lightweight, and can be equipped with a silencer. Most important of all, it can be devastating: a fully automatic MAC-10 can fire more than 1,000 rounds per minute." 508 U.S. at 225, 113 S.Ct. 2050.

      . In Munoz-Perez, the State did not rely upon the standard jury instruction for aggravated battery to suggest that "use” of a deadly weapon was broader than "touching.”


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    Michael SALAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2994.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    Rehearing Denied Jan. 23, 2008.

      Jeffrey L. Dees, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, J.

Michael Salas appeals from his convictions and sentences arising out of the six-victim Deltona murders in 2004.

Salas was tried and convicted, along with codefendants Troy Victorino and Jer-one Hunter, of multiple counts of first degree murder (premeditated and felony murder), one count of conspiracy and one count of armed burglary. Salas raises four challenges on appeal. First he claims fundamental error occurred when the conjunction “and/or” was used between the defendants’ names in the jury instructions on the substantive charges as well as in the principals instruction. Second, he argues reversible error occurred when his requested instruction on the defense of duress was denied. In addition, he chai-lenges two evidentiary rulings, one precluding him from cross examining the medical examiner as to the blood alcohol levels of two of the victims, and the other permitting into evidence testimony about his lack of remorse.

At the outset, this is not a ease which involves a fundamental error analysis. Fundamental error is a term used by appellate courts where the error at trial is not preserved for appellate review. Crumbley v. State, 876 So.2d 599, 601, n. 2 (Fla. 5th DCA 2004). In this case, the instructional error was preserved by timely objection. Thus, our review of that issue is to determine whether the instructional error constitutes reversible error. This implicates harmless error analysis which requires us to consider the totality of the circumstances including the evidence, the instructions in their entirety, the verdict of the jury, with the ultimate determination concerning whether there exists a reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

THE FACTS

Salas, Victorino and Hunter were jointly tried. At trial, the following evidence was presented.

On August 6, 2004, at 6:30 a.m., a visitor to the house at 3106 Telford Lane, Delto-na, found the front door open and saw a body in the living room. The visitor called 911, and sheriffs deputies responded. Inside, law enforcement personnel found the bodies of four men, two women and a small dog: Erin Belanger, Francisco Ayo-Ro-man and the dog were found in the back right master bedroom; Jonathan Gleason and Anthony Vega were found in the living room; Michelle Nathan was found in the front left bedroom; and Roberto Gonzalez was found lying in the doorway of the back left bedroom. All victims had signs of blunt force injuries to the head and other areas of their bodies and also knife wounds to the neck and upper torso.

Though locked with a deadbolt lock, the front door had been kicked open, and a shoeprint thirteen inches in length was found in the center of the door. A trail of blood from the front left bedroom indicated that the body of victim Vega had been dragged from that bedroom to the living room.

The medical examiner testified that the cause of death of all the victims was severe blunt force trauma to the head and that they had also suffered non-fatal blunt force injuries to other areas of their bodies. Each of the victims had several areas of severe trauma to the head, any one of which would have caused instantaneous loss of consciousness and death. The blunt force trauma was consistent with having been caused by a cylindrical object such as a baseball bat. He testified that all the knife wounds had been inflicted post-mortem.

During cross examination of the medical examiner, defense counsel told the trial court he wanted to ask the witness about blood alcohol tests conducted on victims Vega and Roman that showed levels of .08 and .12 on Vega, and .07 and .12 on Ayo-Roman. The State objected on relevancy grounds. Counsel stated that he believed it was relevant to the issue of how six people died at one time in the house. The trial court sustained the objection.

Robert Cannon, a former codefendant, was called by the State. Cannon had previously entered into a plea deal providing that in return for pleading guilty to all counts in the indictment, he would receive a life sentence and testify against the remaining defendants.

Cannon testified that he had known Salas since middle school but knew Victorino and Hunter for only a couple of days before the crime. He then stated he could not answer any further questions because he was not guilty and could not say anymore except that he wanted a trial. The prosecutor nevertheless asked Cannon if, at the time he drove Victorino to the Telford Lane home, he (Cannon), knew the intent was to kill everyone in the house. Cannon testified “that may have been in his [Victo-rino’s] mind but it was not in mine.” Cannon added that “me and [Salas] were in fear for our life. We had no choice. We had to go with him. Because he would’ve killed me and [Salas].”

When pressed by the prosecutor to “at least tell the jury” who went into the house and who had baseball bats, Cannon said all the defendants had baseball bats. At that point, Cannon refused to answer further questions.

Next, Investigator Horzepa of the sheriffs department testified that Victorino was found on Saturday, August 7, 2004, at a house on Fort Smith Boulevard in Delto-na and was arrested. Hunter was with Victorino and came in voluntarily for an interview.

Horzepa testified that Hunter told him he was living with Victorino at the Fort Smith house. Hunter said he went to the Telford Lane house on the night of the murders because the people in that house had his belongings and identification and he wanted to retrieve them. He arrived at the Telford Lane house in Cannon’s Ford Expedition sometime after midnight.

Hunter continued that he had an aluminum bat with him and that he knew Erin and her boyfriend lived there. He entered the front door and saw a white male in a recliner in the living room watching T.V. Hunter hit the male with the bat. Hunter could not remember how many times he hit this person, he was just swinging the bat. He stated that he hit him more than three times and probably less than twelve times.

Hunter also struck Roberto Gonzalez who was in the back bedroom and continued striking him with the bat. Hunter was just swinging and could not recall where the blows landed. Hunter said this was not supposed to happen. Hunter said he was supposed to get back his belongs which had been stolen from his residence.

A day later, Investigator Horzepa interviewed Salas who initially denied any involvement in the crimes. Salas eventually admitted he was at the Telford Lane house on the night of the murders and was armed with a baseball bat. Salas said that he hit the black male (Gonzalez) who was in the back bedroom, in the leg, arm and back three to four times, but that this was the only person in the house whom he struck. Salas denied hitting anyone in the head. The demeanor of Salas was “unconcerned” and “deadpan.” Salas said he had disposed of the pants he had worn and had a change of clothes with him on the night of the murders. Salas told Horzepa where to find the bats that had been used in the commission of the crimes. In fact, Salas had helped dispose of the bats and had wiped the blood off them. Salas stated that he saw only one female, who was already dead, in the master bedroom of the Telford Lane house.

Brandon Graham, a close friend of Cannon and Salas, next testified. He first met Victorino and Hunter four days before the murders when he was in Cannon’s Ford Expedition with Cannon, Salas, Victorino, Hunter and several female acquaintances. They were going to a home on Telford Lane to retrieve Victorino’s belongings. Victorino said he “wanted us to fight some kids to get his stuff back.” Graham, Hunter, Cannon and Salas had baseball bats while the females had knives. The females went inside the house and much yelling and cursing could be heard. The females came out with Victorino’s CD case but one of the people inside the house yelled they were calling the police and the group re-entered Cannon’s truck and drove away.

Two days before the murders, the group, including Salas, met at a park “to fight some kids.” No fight occurred but as they were driving away in Cannon’s truck, they saw the kids they were planning to fight and chased them. Victorino fired a shot but the chase was broken off. Cannon let Victorino keep the gun for protection.

According to Graham, the following day the group, including Salas, returned to Vie-torino’s residence. Victorino described a movie he had seen where “a group of niggers had ran up on some nigger's house and had beat them to death with lead pipes.” Victorino said, “If I had a group of niggers to do that shit, then I would do it,” and later said he would do it at the Telford Lane house. Salas said, “Yeah, I’m down for it,” and started to talk to Cannon, who “shook his head yeah,” and said, “I’m ready to kill me a bitch.” Victo-rino told Hunter that he knew Hunter was “down with it” because they had taken Hunter’s belongings, too. Victorino then went over a layout of the house and who would be where.

According to Graham, Victorino stated that he wanted to kill “Flaco” (victim Ayo-Roman), and told the others “to beat the bitches, you got to beat the bitches because all they do is talk shit.” They talked some more, and Hunter suggested they should wear masks, but Victorino said, “No, because we’re not gonna leave any evidence. We’re gonna kill them all.” They left the residence and drove around looking for bullets; there were a lot of baseball bats in the Expedition. Victorino and Hunter got out of the truck at one point and Cannon asked Graham if he was still “down for it.” Graham said he really didn’t know, and Salas “was like come on, B, you can’t bitch out on us.”

Graham called a friend and asked if he could drop by. Before Cannon, Hunter, Victorino and Salas dropped Graham off, Cannon cautioned Graham not to discuss the plan. According to Graham, Victorino told Graham the group would be back around seven o’clock to pick him up. They were supposed to kill the people at the Telford Lane house between nine and ten o’clock. The group called Graham several times that night but he had decided not to participate and asked his friend to tell them he was visiting his sick brother.

Eunice Williams, a correctional officer at the Volusia County Jail, testified that while processing Salas following his arrest, he stated he did not know how he got caught, because he had tied up his hair and had taken precautions to not get any blood on himself. He had used a bat and did not get any blood on him. When asked if he understood that he had taken a human life, he responded yes. Over objection, Williams was allowed to testify that Salas said he had no remorse. At the time of the statements, Salas appeared to be joyful and was smirking. He requested protective custody because he had killed someone.

Jerone Hunter testified that he, Cannon and Salas were wearing masks when they went to the Telford Lane house. Hunter testified he did not hit anyone in the head with a baseball bat but that he saw Salas hit one of the victims in the head, the person who was in the front room when they first entered the house.

Salas testified in his own behalf. He testified he had been living with Cannon and that he and Cannon first met Victorino and Hunter five days before the murders occurred. On that day, a girl had called Cannon and was upset and asked for help in getting her stolen clothes back. Cannon and Salas agreed to help her. The girl, along with her two sisters, directed them to a house where they picked up Victorino and Hunter. Victorino told them his clothes, as well as Hunter’s and the girls’, had been stolen by people on Telford Lane, from a house where he and Hunter had previously been living.

Salas related that Victorino directed Cannon to the Telford Lane house. Upon arrival, the girls went inside the house but were unsuccessful in obtaining return of the personal property. The police were called and Salas and the group left in Cannon’s Expedition.

According to Salas, the day before the murders, he, Graham, Hunter and Cannon went to Victorino’s residence to pick up Cannon’s gun. Victorino wanted them to come inside and talked about wanting to get his belongings back and how the police were not helping. He told them about the movie where people went inside a house and beat the residents with poles and said if he had a group, he would do that to the Telford Lane people.

According to Salas, Victorino then got up and stood over them as they sat and asked each of them, one by one, if they would be “down” with this. Salas felt intimidated and said yes. The others also agreed.

On the day of the murders, Salas claimed he and Cannon discussed whether to get back together with Victorino. Salas testified he and Cannon did not believe Victorino was serious and that not once had Victorino said he wanted to kill anybody. He just seemed to want to “rough them up.” Salas and Cannon picked up Victorino at 9:00 p.m. from his Fort Smith residence and ultimately ended up at the Telford Lane residence.

Victorino said he was going to go in there to get his belongings and when he came out “nobody is going to be survivors.” Victorino handed everyone a bat. According to Salas, he and Cannon figured that they could not get out of it. Victorino told Salas and Cannon that if they left, they were just like those people, which he took as a threat, i.e., “if I didn’t help him, he would probably hurt me too.” Salas described how they entered the home. Salas claimed he did not have a chance to back out because Victorino counted to three and kicked the door in. He then testified he did not go into the house with the intent to hurt or kill anyone, but rather that, “I was just going to be there just to get his stuff.”

Victorino instructed Salas to get the “dude” sitting on the floor in the back bedroom. Salas claimed he was grabbed by victim Gonzalez and struck him with the bat to “get him off me.” According to Salas, Hunter beat Gonzalez with a bat some twenty to thirty times. Salas denied hitting anyone in the head and testified he struck Gonzalez only, on the back, the arm, the side, and the leg.

At the close of the evidence, Salas and Hunter each moved for a judgment of acquittal on count fourteen, cruelty to an animal, alleging the only evidence presented was that Victorino was responsible for the death of the dog. The trial court denied the motions.

The verdict forms, consistent with the indictment, provided the option of finding the defendants guilty of both first degree premeditated murder and first degree felony murder; guilty of just first degree premeditated murder; guilty of just first degree felony murder, or guilty of any one of the lesser included offenses. Salas, Hunter and Victorino were each found guilty of both first degree premeditated murder and first degree felony murder of all six victims. All three were convicted of conspiracy, and all three were convicted of armed burglary. All three were acquitted of abusing the dead body of Francisco Ayo-Roman. Victorino was found guilty of abusing the body of Erin Belanger; Salas and Hunter were acquitted. Hunter was convicted of the three counts of abusing the bodies of Roberto Gonzalez, Jonathan Gleason and Anthony Vega; Salas and Victorino were acquitted of those counts. Victorino was found guilty of cruelty to an animal; Salas and Hunter were found not guilty of cruelty to an animal.

The jury recommended a life sentence for Salas on the murder counts. The trial court followed that recommendation. Vic-torino and Hunter each received death sentences and their appeals are pending in the Florida Supreme Court.

Does use of the “And/or” conjunction between NAMES OF CODEFENDANTS IN JURY INSTRUCTIONS CONSTITUTE REVERSIBLE ERROR?

The trial court, in instructing on each of the substantive charges as well as in the principals instruction, used the conjunction “and/or” between Salas’ name and the names of his codefendants Victorino and Hunter. Salas objected to use of this conjunction. The following jury instructions were given.

As to criminal conspiracy, the court instructed:

Criminal conspiracy. To prove the crime of criminal conspiracy, as charged in Count I of the indictment, the State must prove the following two elements beyond a reasonable doubt:
1. The intent of Troy Victorino and/or Jerone Hunter and/or Michael Salas was that the offense of aggravated battery, murder, armed burglary of a dwelling, and tampering with physical evidence would be committed.
2. In order to carry out the intent, Troy Victorino and/or Jerone Hunter and/or Michael Salas agreed, conspired, combined, or confederated with each other to cause aggravated battery, murder, armed burglary of a dwelling and tampering with physical evidence to be committed either by them, or one of them, or by some other person. It is not necessary that the agreement, conspiracy, combination, or confederation to commit aggravated battery, murder, armed burglary of a dwelling, and tampering with physical evidence be expressed in any particular words, or that words pass between the conspirators. It is not necessary that Troy Victorino and/or Jerone Hunter and/or Michael Salas do any act in furtherance of the offenses conspired.

As to premeditated murder, the following instruction was given:

To prove the crime of First Degree Premeditated Murder, as charged in Count I of the Indictment, the State must prove the following three elements beyond a reasonable doubt:
1. [The named victim] is dead.
2. The death was caused by the criminal act of Troy Victorino and/or Jerone Hunter and/or Michael Salas.
3. There was a premeditated killing of [the named victim].

As to first degree felony murder the jury was instructed:

To prove the crime of First Degree Felony Murder, as charged in Count II of the Indictment, the State must prove the following three elements beyond a reasonable doubt:
1. [The named victim] is dead.
2. The death occurred as a consequence of and while Troy Victorino and/or Jerone Hunter and/or Michael Salas were engaged in the commission of Burglary.
3. a. Troy Victorino and/or Jerone Hunter and/or Michael Salas was the person who actually killed [the named victim], or
b. [The named victim] was killed by a person other than Troy Victorino and/or Jerone Hunter and/or Michael Salas, but Troy Victorino and/or Jerone Hunter and/or Michael Salas and the person who killed [the named victim] were principals in the commission of Burglary.
As to burglary, the jury was instructed: To prove the crime of Burglary, as charged in Count XIII of the Indictment, the State must prove the following three elements beyond a reasonable doubt:
1. Troy Victorino and/or Jerone Hunter and/or Michael Salas entered a structure owned by or in the possession of Erin Belanger and/or Francisco Ayo-Roman.
2. Troy Victorino and/or Jerone Hunter and/or Michael Salas did not have the permission or consent of Erin Belan-ger and/or Francisco Ayo-Roman, or anyone authorized to act for her or him, to enter the structure at that time.
3. At the time of entering the structure Troy Victorino and/or Jerone Hunter and/or Michael Salas had a fully-formed, conscious intent to commit the offense of murder in that structure.
The crime of murder has been previously defined for you in those earlier instructions, actually several times over
Even though an • unlawful entering a structure is proved, if the evidence does not establish that it was done with the intent to commit murder, Troy Victorino and/or Jerone Hunter and/or Michael Salas must be found not guilty.

The conjunction “and/or” was also used in instructing on abuse of a dead human body and cruelty to an animal. The trial court instructed the jury as to principals as follows:

I’ll define what a Principal is. If Troy Victorino and/or Jerone Hunter and/or Michael Salas helped each other, or another person or persons, commit a crime, Troy Victorino and/or Jerone Hunter and/or Michael Salas are principals and must be treated as if they had done all things each other, or the other person or persons, did if:
1. Troy Victorino and/or Jerone Hunter and/or Michael Salas had a conscious intent that the criminal acts be done; and,
2. Troy Victorino and/or Jerone Hunter and/or Michael Salas did some act or said some word which was intended to and which did incited [sic], cause encourage, assist, or advise each other, or the other person or persons, to actually commit the crime. To be a principal, Troy Victorino and/or Jerone Hunter and/or Michael Salas does not have to be present when the crime is committed.

(emphasis in original).

Salas argues that under Florida law, this use of “and/or” between the names of co-defendants in the jury instructions constitutes “fundamental error” because it created a situation in which the jury may have convicted Salas solely upon a finding that a codefendant’s conduct satisfied the elements of the offense. As noted at the outset of this opinion, because timely objections were 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 explained the concern:

Under an “and/or” instruction the jury is informed that if defendant A has committed all the elements of the crime, B is guilty without having committed any elements. Or the jury could find both defendant guilty where it found only A committed some elements of the crime and only B committed other elements.

939 So.2d at 1167.

In other words, the “and/or” conjunction may mislead the jury into believing it can convict the defendant based solely on the acts of his codefendant. Tolbert v. State, 922 So.2d 1013 (Fla. 5th DCA 2006); Santos v. State, 947 So.2d 705 (Fla. 4th DCA 2007) (Taylor, J., concurring specially).

This issue appears to have arisen initially in the context of drug prosecutions where it was held that even in the absence of an objection, fundamental error occurred when the jury was instructed that it could convict the defendant solely on a finding that a codefendant had sold or possessed the illegal drugs. See Davis v. State, 922 So.2d 279 (Fla. 1st DCA 2006); Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005); Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005); Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001); Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000). In those cases, the instructions informed the jury that it could convict defendant “A” if “A” and/or defendant “B” knowingly purchased, possessed or sold the illegal drugs and if defendant “A” and/or “B” knew of the illegal nature of the substances. An entrapment instruction in Davis also was worded to make the defense of entrapment unavailable for defendant “A” if “A” and/or “B” had the predisposition to commit the crime. Davis, 804 So.2d at 403. By so wording the instruction, the jury was erroneously instructed that if defendant “B” was predisposed to commit the offense, defendant “A” could be deprived of the defense of entrapment.

In the absence of a timely objection, use of the “and/or” conjunction in instructing the jury may amount to fundamental error. Appellate courts have, in accordance with the concept of fundamental error set out in Reed v. State, 837 So.2d 366 (Fla.2002) (failure to correctly define “malice” in aggravated child abuse prosecution is fundamental error in 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 predicated on the jury instructions for criminal conspiracy to commit first degree murder which employed the “and/or” conjunction between the defendant and his codefendant. The court denied relief, explaining:

Casimir claims that the use of the and/or conjunction in this instruction constitutes fundamental error, and therefore, appellate counsel’s failure to raise the issue on appeal denied him effective assistance of appellate counsel. We disagree. The instruction, as given, provided that before the jury could find Casimir guilty of conspiracy, the State was required to prove that Casimir intended to kill the victim, that in order to carry out that intent, he conspired with his brother, Frankie Lafontant, an unknown black man, or both, to effectuate the crime. Thus, unlike Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001), and other cases where it was determined that fundamental error occurred due to the use of an-“and/or” conjunction in a jury instruction, Casimir could not be found guilty of the crime unless he personally intended that murder be committed and conspired with at least one other person to carry out that intent. See also Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005) (finding no fundamental error in the use of the “and/or” conjunction when it is clear that the defendant’s conviction could not be based solely upon finding that another defendant’s conduct satisfied the elements of the offense).

932 So.2d at 474. See also Tolbert (no fundamental error in use of “and/or” where co-defendant was acquitted by jury on all charges so that jury could not have been misled into believing defendant was guilty based on conduct of his co-defendant).

Garzon v. State, 939 So.2d 278, 279 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 455 (Fla.2007), referenced by the State, found an absence of fundamental error in part because “the principals’ instruction placed the substantive crime instruction in the proper context.” In Garzón, Coles, Balthazar and Garzón were charged with and tried for criminal conspiracy, armed burglary of a dwelling, armed robbery, kidnapping and extortion arising out of a home invasion. The evidence established that Coles and Balthazar entered the home and committed the charged offenses therein and that Garzón, who had previously installed a wall safe in the home, directed the criminal episode from his cell phone. The conjunction “and/or” was used in the instructions on each offense between the defendants’ names, but in addition the court read the standard charge on principals:

If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did, if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime. To be a principal, the defendant does not have to be present when the crime is committed or attempted.

Fla. Std. Jury. Instr. (Crim.) 3.5(a).

The Garzón majority explained that the determination of whether fundamental error occurred requires an examination of the other jury instructions, the attorney’s arguments and the evidence in the case to determine whether the “ Verdict of guilty could not have been obtained without the assistance of the alleged error.’” Id. at 283. The court then explained:

This was not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute, [citations omitted]. All elements of all crimes were correctly charged. What the “and/or” conjunctions placed in issue was whether one defendant could be held criminally liable for the conduct of a codefendant. If the law of principals applies to a defendant’s conduct, that defendant can properly be convicted for a codefendant’s criminal acts. Garzón could have been found guilty if either Coles or Balthazar committed a substantive crime and Garzón helped either man commit the crime within the meaning of the principals instruction.
In this case, the standard principals instruction placed all the other instructions in the proper context. The instruction explained that a defendant is responsible for the criminal act of another person if “the defendant had a conscious intent that the criminal act be done” and the “defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person ... to actually commit the crime.” Fla. Std. Jury Instr. (Crim.) 3.5(a). If the jury found the principals instruction applied to him, Garzón could lawfully have been found guilty of crimes that either Balthazar or Coles, or both, committed in the house.
With respect to Garzón, everyone in the courtroom knew that the issue boiled down to whether the state had proven that he was the person to whom Balthazar spoke over the cell phone during the home invasion.
The prosecution used the principals instruction as the centerpiece of its argument that Garzón was guilty of the crimes committed by his codefendants. The state did not use the “and/or” conjunctions to argue for a legally incorrect or improper theory of guilt.

Id. at 284.

The Garzón majority certified direct conflict with Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005), Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), and Davis v. State, 922 So.2d 279 (Fla. 1st DCA 2006), each of which rejected the contention that use of the standard “principals” instruction cured the erroneous instructions on the substantive elements of the offenses. We observe that in the present case, the principals instruction suffered from the same infirmity as the other instructions in its use of the “and/or” conjunction.

Salas has demonstrated error in instructing the jury and that this error was preserved by proper objection. The remaining inquiry is whether the State has carried its burden of proving “beyond a reasonable doubt that the error complained of did not contribute to the verdict or, stated alternatively, that there is no reasonable possibility that the error contributed to the conviction.” Stires v. State, 824 So.2d 943, 946 (Fla. 5th DCA 2002) (quoting from State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). This analysis, stripped to its essence, considers the effect of the error on the jury. Goodwin v. State, 751 So.2d 537, 542 (Fla.1999).

In the instant case, “and/or” was used in each substantive crime instruction though the jury was also instructed in accordance with Standard Jury Instruction (Criminal) 3.12(c) as follows:

Now, a separate crime is charged against each — Troy Victorino and/or Jerone Hunter and/or Michael Salas in each count of the indictment. Troy Vic-torino and/or Jerone Hunter and/or Michael Salas have been tried together. However, the charges against each, and the evidence applicable to that person, must be considered separately. A finding of guilty or not guilty as to one must not affect your verdict' as to any other of the crimes charged.

As the State points out, the verdicts themselves reflect that the jury heeded this admonition. While Hunter, Victorino and Salas were each found guilty of six counts of first degree murder (felony murder and premeditated murder), of conspiracy and of armed burglary, only Victorino was found guilty of abusing the body of Erin Belanger; Hunter and Salas were acquitted. Hunter was convicted of abusing the bodies of Roberto Gonzalez, Jonathan Gleason and Anthony Vega, though Victorino and Salas were acquitted of those charges. Victorino was convicted of cruelty to an animal while Hunter and Salas were acquitted. It is clear that the jury considered each charge and the evidence against each defendant rather than convicting a defendant based solely on the conduct of a codefendant. The verdicts reflect individualized analysis by the jury of the charges against each defendant.

The evidence in this case must next be considered. This is not a case where the defendant was convicted even though he himself was absent from the scene when the crimes were committed or was not an active participant. Compare Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005) with Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005). By his own admission, Salas was an active participant who forcibly entered the house, armed with a baseball bat and struck at least one victim, Gonzalez, repeatedly with the bat.

We find, as to the armed burglary conviction, use of the “and/or” conjunction was harmless error. Salas admitted to investigators that he was outside the Telford Lane house on the night in question, armed with a baseball bat. It was undisputed that he entered the house forcibly with Victorino and Hunter sometime after midnight, and that he repeatedly struck Gonzalez with the bat. Additionally, overpowering evidence was presented that Salas intended to commit the offense of murder in the house. Salas was present when the plan was hatched to break into the Telford Lane house and kill the occupants. Salas arrived at the house with a change of clothes and armed himself with a baseball bat. Victorino announced “nobody is going to be survivors” and Salas and his codefendants then forcibly entered the house. Salas was seen hitting one of the victims in the head with a bat. After the crimes were committed, Salas disposed of the bloodied bats. When caught, Salas acknowledged he had taken human life and stated he did not know how he got caught. The individualized verdicts reflect that the jury rejected Salas’ trial testimony which itself was contradictory since Salas testified that he did not mean to hurt or kill anyone, yet he acknowledged hitting Gonzalez with a baseball bat. There is simply no way, given Salas’ own admissions, the other evidence against him, and the individualized verdicts returned by the jury, that Salas was convicted of this offense based upon the conduct of his codefen-dants.

We likewise find that as to the six felony murder convictions, the use of the “and/or” conjunction was harmless error. To prove first degree felony murder here, the State was required to prove three elements, first, that the particular victim was dead, second, that the death occurred as a consequence of, and while the defendant was engaged in, the commission of the burglary, and third, that the defendant was the person who actually killed the victim or the victim was killed by a person other than the defendant, but both the defendant and the person who killed the victim were principals in the commission of the burglary. See Carpenter v. State, 785 So.2d 1182 (Fla.2001). In a felony murder context, a defendant is not relieved of culpability for a murder because a codefen-dant actually “pulled the trigger.” Ray v. State, 755 So.2d 604 (Fla.2000). As stated in Ray, “regardless of the identity of the shooter, Ray would still be liable for [the victim’s] death as a cofelon when the murder is committed during the course of a felony.” 755 So.2d at 609. In Lovette v. State, 636 So.2d 1304, 1306 (Fla.1994), the supreme court explained:

We have stated that “an act in which a defendant does not participate and which is ‘outside of and foreign to, the common design’ of the original felonious collaboration may not be used to implicate the nonparticipant in the act.” Parker v. State, 458 So.2d 750, 752 (Fla. 1984) (quoting Bryant v. State, 412 So.2d 347, 349 (Fla.1982)), cert, denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985). Felons, however, are generally responsible for the acts of their co-felons. Adams v. State, 341 So.2d 765 (Fla.1976), cert, denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). As perpetrators of an underlying felony, co-felons are principals in any homicide committed to further or prosecute the initial common criminal design. Adams; Hampton v. State, 336 So.2d 378 (Fla. 1st DCA 1976), cert, denied, 339 So.2d 1169 (Fla.1976). “One who participates with another in a common criminal scheme is guilty of all crimes committed in furtherance of that scheme regardless of whether he or she physically participates in that crime.” Jacobs v. State, 396 So.2d 713, 716 (Fla.1981). Although Lovette did not fire the shots that killed the victims, he was a willing participant in the armed robbery of the store. These killings lessened the immediate detection of the robbery and apprehension of the perpetrators and, thus, furthered that robbery. There is a causal connection between the robbery and the homicides, and both Lovette and Wyatt are guilty of felony murder.

Salas was present when the plan was hatched to break into the Telford Lane house and kill the occupants. Thus, even if Salas himself did not beat all the victims to death, it is undisputed that he participated in the armed burglary.and the murders were committed in the course and scope of that felony, consistent with the plan which had been announced by Victori-no. As in Lovette, these killings lessened the immediate detection and apprehension of those who burglarized the house and thus furthered the burglary. It can be said with certitude that the use of the “and/or” conjunction did not contribute to the verdict against Salas in connection with the armed burglary and felony murder counts.

We are no less certain about the six first degree premeditated murder convictions and the conspiracy conviction. While the instructions as to those counts permitted the jury to find Salas guilty if he, and/or Victorino and/or Hunter had the requisite intent to commit the particular offense and acted on that intent, there exists no reasonable possibility that this error contributed to Salas’ convictions. To reiterate, powerful evidence was presented against Salas on the issue of premeditation. This evidence, particularly when combined with the individualized verdicts returned by the jury, makes it abundantly clear, beyond a reasonable doubt, that the jury rejected Salas’ trial testimony and that the instructional error did not contribute to the verdicts in this regard.

The same conclusion applies to the conspiracy count. Salas admitted to being present when the plan against the occupants of the Telford Lane house was developed, he agreed to the plan, and did so together with Victorino and Hunter. Again, we can say without hesitation that Salas was convicted for his actions and not those of his co-defendants.

Summarizing, it is the confluence of the instructions in their entirety, the evidence, and the individualized verdicts which render the error in the use of the “and/or” conjunction harmless in this prosecution.

Failure to give duress instruction

Salas contends that the trial court committed reversible error in failing to instruct the jury on the defense of duress. Salas argues he was entitled to an instruction on his theory of defense regardless of how weak or improbable it may have been, as long as there was some evidence to support it. See Campbell v. State, 577 So.2d 932 (Fla.1991); Mickel v. State, 929 So.2d 1192 (Fla. 4th DCA 2006). Salas requested the court give Standard Jury Instruction 3.6(k) on duress at the charge conference but the court was annoyed that a written instruction was not submitted and then ultimately denied the request, explaining, “I don’t think the facts in this case support it.”

The State counters by pointing out that under Florida law, duress is not a defense to intentional homicide because “duress will never justify the killing of an innocent third party.” Henry v. State, 613 So.2d 429, 432, n. 6 (Fla.1992); Driggers v. State, 917 So.2d 329 (Fla. 5th DCA 2005); Hunt v. State, 753 So.2d 609 (Fla. 5th DCA 2000); Wright v. State, 402 So.2d 493 (Fla. 3d DCA 1981). As explained in Wright, “The common law has steadfastly refused to recognize any compulsion, even the threat of death, as sufficient to excuse the taking of the life of another.” 402 So.2d at 498.

Even if duress could be a defense to the underlying felony of armed burglary on the felony murder charges, we believe the trial court did not err in declining to give the instruction.

There are six elements which comprise the defense of duress:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause;
2) the danger or emergency threatened significant harm to himself or a third person;
3) the threatened harm must have been real, imminent, and impending;
4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime;
5) the crime must have been committed out of duress to avoid the danger or emergency; and
6) the harm the defendant avoided outweighs the harm caused by committing the crime.

Driggers, 917 So.2d at 330; see also Fla. Std. Jury Instr. (Crim.) 3.6(k).

The defense of duress is not available if the defendant intentionally or recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subject to coercion. Torcía, Whaeton’s CRIMINAL Law (15th ed.) § 52, Duress. The evidence in this case reflects that Salas, over the course of several days, voluntarily and intentionally placed himself in a situation of escalating criminality and danger. In fact, on the day of the murders, Salas admitted he and Cannon drove to Victorino’s residence and picked him up. Further, the only threat of harm referenced below was a vague one, with Victori-no telling Salas that if he and Cannon left, they were just like those people in the house. This “threat” did not reflect that harm was in any way imminent and impending. The “threat” was not that Victo-rino would immediately harm Salas, but rather indicated Salas could leave but may face consequences later. An imminent danger in a duress context is one which cannot be guarded against by calling for the protection of the law. Wright, 402 So.2d at 498, n. 6. The vague threat here did not reach the threshold of a threat of imminent and impending harm which Salas lacked reasonable means to avoid.

Finally, the purported harm which Salas avoided, possible harm to himself, hardly outweighed the harm caused by breaking into the house while armed which directly resulted in the deaths of six people.

The failure to instruct on the defense of duress was not reversible error because the evidence adduced by Salas failed to establish the requisites for such defense. See Worley v. State, 848 So.2d 491 (Fla. 5th DCA 2003).

Denial of oeoss examination on issue of victims’ elevated blood ALCOHOL LEVELS

Salas claims that the trial court erred in refusing to allow him to present evidence that victims Ayo-Roman and Vega had elevated blood alcohol levels at the time they were murdered. The defense claims this evidence was relevant to its theory of defense, that Salas did not actively participate in the murders and that because these victims had elevated blood alcohol levels, it was possible for the six victims to have been killed in the house by just two people, Victorino and Hunter.

The actual way this issue was raised below is as follows. Salas did not proffer during trial any testimony regarding the blood alcohol levels of the two victims. He claims the State filed a pre-trial motion in limine to prevent the defense from commenting on the victims’ alleged use of illegal substances in the presence of the jury, but that motion, which the trial court granted, specifically related only to the victims’ purported use or sale of drugs. It did not refer to alcohol usage. Salas called no witness in an effort to present testimony as to the victims’ blood alcohol levels so this point on appeal does not involve review of the trial court’s refusal, upon proffer, to admit evidence relevant to the defendant’s theory of defense. Compare Dean v. State, 916 So.2d 962 (Fla. 4th DCA 2005).

Rather, Salas sought to cross-examine the medical examiner about tests conducted on the two victims that demonstrated elevated blood alcohol levels. Defense counsel stated that blood alcohol tests on victim Vega came out at .08 and .12 while a blood alcohol test on victim Ayo-Roman came out at .07 and .12. The prosecutor objected on relevancy grounds while defense counsel countered that the blood alcohol levels were relevant to explain how six people could have been killed by just two perpetrators (Victorino and Hunter) at one time in the house. The trial court sustained the objection, thereby precluding that line of cross-examination.

There is no indication that the medical examiner testified on direct examination to the blood alcohol levels of the two victims. An appellate court reviews a trial court’s ruling concerning the scope of cross-examination for an abuse of discretion. Docekal v. State, 929 So.2d 1139 (Fla. 5th DCA 2006). A defendant has an absolute right to conduct a full and fair cross-examination especially where the witness being cross-examined is the State’s key witness. Id. A trial court reversibly errs by prohibiting cross-examination when the facts sought to be elicited are germane to that witness’s testimony and plausibly relevant to the theory of defense. Id.

However, cross-examination must relate to credibility of the witness or be germane to the matters brought out on direct examination. Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). Discussion of the blood alcohol levels of the two victims was not part of the medical examiner’s direct testimony and thus was not a proper subject for cross-examination.

Diaz v. State, 747 So.2d 1021 (Fla. 3d DCA 1999), is illustrative. In Diaz, the appellate court found no abuse of discretion in the trial court’s refusal to allow defense counsel to cross-examine the medical examiner on the issue of the murder victim’s blood alcohol level which the defense claimed was relevant to its claim of self-defense. The medical examiner did not testify regarding the victim’s blood alcohol level and the appellate court agreed with the trial court that the subject was “outside the proper scope of cross-examination and was instead directed to the establishment of a defense.” 747 So.2d at 1024. The court noted that if the defendant sought “to elicit testimony from an adverse witness which goes beyond the scope encompassed by the testimony of the witness on direct examination, other than matters going to credibility, he must make the witness his own.” 747 So.2d at 1023, quoting from Steinhorst, 412 So.2d at 337. The defendant in Diaz, as here, failed to do so. Even though the trial court here did not base its ruling on the principle that the line of questioning exceeded the proper scope of cross-examination, its decision is sustainable on this theory. See Muhammad v. State, 782 So.2d 343 (Fla.2001), which holds that the trial court’s ruling on evidentiary matter will be affirmed even if the trial court ruled for the wrong reason, as long as an alternative theory supports the ruling.

AdmissioN Of Evidence Of Defendant’s Laok Of RemoRse.

Salas lastly claims that reversible error occurred when the State, over objection, was permitted to elicit testimony from corrections officer Eunice Williams that during the jail booking, she asked Salas if he had any remorse and he said no. The trial court also denied a request for a mistrial relating to this testimony.

A trial court’s ruling as to the admissibility of evidence will not be disturbed absent an abuse of discretion, Blanco v. State, 452 So.2d 520 (Fla.1984), and the State contends that no abuse of discretion has been demonstrated. The State argues that the testimony as to lack of remorse was relevant to show Salas’ state of mind about the murders shortly after they occurred and to rebut the claim of Salas at trial that he did not willingly participate in the offenses.

Salas cites to Jones v. State, 569 So.2d 1234 (Fla.1990), as holding that it is error to allow the State to introduce evidence of lack of remorse during the guilt phase of a capital case. Accord Cooper v. State, 856 So.2d 969 (Fla.2003). The Jones court also noted in passing that the prosecutor had been impermissibly allowed during the guilt phase to ask the jury whether it had detected remorse on the part of the defendant. However, in Jones, the murder convictions were affirmed and only the sentences were reversed and the cause remanded for a new sentencing proceeding.

Under Florida law, all relevant evidence is admissible, except as provided by law. § 90.402, Fla. Stat. Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla. Stat. In order for evidence to be relevant, it must have a logical tendency to prove or disprove a fact which is of consequence to the outcome of the action. See Charles Ehrhardt, Florida Evidence, § 401.1 at 130 (2000). Professor Ehrhardt explains:

The concept of “relevancy” has historically referred to whether the evidence has any logical tendency to prove or disprove a fact. If the evidence is logically probative, it is relevant and admissible unless there is a reason for not allowing the jury to consider it.

Id. at 131-32.

As the State maintains, Salas took the position that while he participated in the crimes charged, he was an unwilling participant who acted only because he had been intimidated by Victorino. His lack of remorse after having been arrested for what had occurred would seem to be at odds with this contention and thus relevant to disprove it. Further, such evidence was not unduly prejudicial. § 90.403, Fla. Stat.

Even if admission of this evidence was error, it was harmless error. The State adduced overwhelming evidence of Salas’ participation in the events of August 5-6, 2004. His claim that he did so under durress was belied by testimony from Eunice Williams that Salas appeared to be joyful and was smirking during the booking process. Investigator Horzepa additionally testified that during questioning on August 8, 2004, Salas was “unconcerned” and “deadpan.” The testimony as to a lack of remorse was merely cumulative to other evidence, admitted without objection, that Salas did not display any regret for having participated in the crimes.

Accordingly, the convictions and sentences for armed burglary, first degree murder (felony and premeditated) and conspiracy are affirmed.

AFFIRMED.

PALMER, C.J., and LAWSON, J., concur.

      . In Harris, the Third District rejected a claim of harmless error based on the giving of the instruction that the jury consider each defendant and each charge separately. But in that case, the record did not reflect the return of individualized verdicts. Rather, the jury returned a verdict of guilty on the charge of second degree murder against both Harris and his co-defendant. See also, Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005).

      . Salas argues that duress was a defense to the underlying felony, here burglary, necessary for a felony murder conviction, citing the following passage from Wright:

      Wright was charged and defended against first degree murder by premeditated design, which, of course, involves an intent to kill. Where duress is offered as a defense to first degree murder under a felony murder charge, a different question is presented, since duress is a recognized defense to the underlying felony, and the rationale of the rule prohibiting the duress defense in a crime of homicide appears inapplicable.

        Wright, 402 So.2d at 498, n. 8.


author: PER CURIAM.

text:
    Bryant Shawn BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-925.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    Rehearing Denied Jan. 22, 2008.
    Bryant Shawn Brooks, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The lower court’s order summarily denying Appellant’s Rule 3.850 motion is affirmed because Appellant failed to furnish a sworn statement from the victim who allegedly recanted. Our decision to affirm is without prejudice so that Appellant may file a new Rule 3.850 motion with a sworn affidavit or letter from the victim recanting her testimony with particularity. Moss v. State, 943 So.2d 946 (Fla. 4th DCA 2006).

AFFIRMED WITHOUT PREJUDICE.

PLEUS, ORFINGER and TORPY, JJ., concur.


author: TORPY, J.

text:
    STATE of Florida, Appellant, v. Billy Joe COOK, Appellee.
    No. 5D07-1055.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    Rehearing Denied Jan. 23, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.
    Darrell L. Brock, Daytona Beach, for Appellee.
   TORPY, J.

The State seeks review of the order suppressing evidence in this child pornography case. The evidence was seized during a search of Appellee’s home pursuant to a search warrant. The lower court determined that the affidavit in support of the warrant was devoid of sufficient facts to establish probable cause. Our de novo review causes us to conclude otherwise.

The affidavit in support of the warrant was based on information provided to police by Appellee’s next door neighbor, Mr. Williams. The trial court determined that the information supplied by Mr. Williams was not reliable because it was not corroborated by police. We reject this conclusion because the information was provided by a citizen informant, and its reliability was therefore presumed. State v. Maynard, 783 So.2d 226, 230 (Fla.2001); State v. Woldridge, 958 So.2d 455, 459 (Fla. 2d DCA 2007); State v. Vallone, 868 So.2d 1278, 1279-80 (Fla. 4th DCA 2004).

The trial court also concluded that the information provided by Mr. Williams was insufficient to establish a fair probability that evidence of the alleged crime would be found. We again disagree. The affidavit revealed that Mr. Williams told police that he had access to Appellee’s computer files through a shared hard wire connection. When he opened a file of Appellee’s labeled “XXX,” he saw 122 images of “young preteen girls in nude, sexually explicit positions.” The neighbor said that none of the girls appeared over thirteen years of age and some appeared as young as six. This information was clearly sufficient to support the issuance of a search warrant. See Vallone, 868 So.2d at 1278-80 (citizen informant’s observation of child pornography on computer files sufficient to establish probable cause for search).

Even assuming the information was insufficient, we also agree with the State that this is a classic case for the application of the good faith exception to the exclusionary rule. The police officers did not omit information or make misrepresentations in the affidavit. The sole debate here is over the existence of probable cause. As we previously stated:

In this case, an experienced trial judge reviewed [the officer’s] affidavit and determined that probable cause existed to justify the issuance of a search warrant. The police executed the search pursuant to the warrant issued by the judge. In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant. We are not willing to do so.
No indication exists in the record that either the police officer or the trial judge was corrupt, dishonest, or acted in bad faith. Accordingly, this case is controlled by the principle we articulated in State v. Harris, 629 So.2d 983 (Fla. 5th DCA 1993):
The warrant was regular on its face and the affidavit upon which it was based was not so lacking in indicia of probable cause that the officer executing the warrant could not with reasonable objectivity rely in good faith on the magistrate’s probable cause determination and on the technical sufficiency of the warrant.

State v. Watt, 946 So.2d 108, 110 (Fla. 5th DCA 2007) (quoting Harris, 629 So.2d at 984).

Accordingly, we reverse the lower court’s order and remand this cause for further proceedings.

REVERSED AND REMANDED.

EVANDER, J., concurs.

SAWAYA, J., concurs in result only.


author: KLEIN, J. WARNER, J.,

text:
    Donald PARRINO, Petitioner, v. Ric L. BRADSHAW, Palm Beach County Sheriff, Respondent.
    No. 4D07-4651.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2007.
    Rehearing Denied Feb. 18, 2008.

      Carey Haughwout, Public Defender, and Daniel Cohen, Assistant Public Defender, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent.
   KLEIN, J.

Petitioner, who is incarcerated, seeks a writ of habeas corpus from an order granting the state’s motion for a hearing under U.S. v. Nebbia, 357 F.2d 303 (2d Cir.1966). In Nebbia it was held that, where a defendant posted $100,000 bail in cash, the trial court had discretion to inquire into the source of the funds in order to insure that the defendant will return to court. Petitioner argues Nebbia is not applicable in Florida and that the order should be quashed, so that he can post a bond without inquiry and be released. We deny the petition.

Section 903.046(2), Florida Statutes (2007) and Florida Rule of Criminal Procedure 3.131(b) authorize the court to inquire into “the source of funds used to post bail,” as well as into any other facts, to insure defendant’s appearance. The motion filed by the state, and the order entered by the court granting that motion, are authorized by the statute and the rule, and accordingly the issue as to the applicability of Neb-bia, a federal case, is beside the point.

Petitioner next argues that the inquiry into the bond is not warranted under the facts in this case. Defendant has been charged with two counts of trafficking in Roxycodone (over four grams), aggravated assault on a law enforcement officer, aggravated battery on a law enforcement officer, and kidnapping. The total amount of the bond set for all charges was $60,000, and petitioner is not challenging the amount. Although Nebbia, as petitioner notes, may have involved a much larger amount of narcotics, we cannot agree that the trafficking charges in this case would preclude a court from looking into, the source of the funds.

Petitioner also raises numerous constitutional arguments, but has not cited any case which would support the unconstitutionality of the specific order about which he complains. As the Nebbia court noted with regard to Nebbia’s argument that his fifth amendment rights would be violated, the issue was premature and could be addressed, if necessary, by the trial court. 357 F.2d. at 305.

The petition is denied.

MAY, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur in the majority opinion. I would make two additional comments on this issue.

First, Florida Rule of Criminal Procedure 3.130(d) requires the court, at the first appearance hearing, to determine the issue of pretrial release pursuant to rule 3.131. The court must determine “whether to release a defendant on bail or other conditions, and what that bail or those conditions may be” Fla. R.Crim. P. 3.131(b)(3). As noted by the majority, one of the factors that the court should consider is “the source of funds used to post bail.” Id. It does not appear from the record what the court considered at the first appearance hearing in setting the bail in this case. Because bail was set without any other conditions, the state should have requested a modification of bail “by showing good cause.” Fla. R.Crim. P. 3.131(d)(2). As the petitioner does not raise this issue, it is not necessary to consider this procedural irregularity in this case.

Second, despite the footnote in Winer v. Spears, 771 So.2d 621 (Fla. 3d DCA 2000), which characterizes the holding of Nebbia as standing “for the proposition that a court can require a criminal defendant to establish, prior to posting bond, that the money and/or property used to pay the same were not derived from illicit activities,” id. at 622 n. 2, Nebbia does not actually hold that. What it provides is that a court may take steps to ensure that the bond or conditions imposed will reasonably assure the defendant’s presence at trial. The Nebbia court held that under the federal rules a court has the discretion to hold a hearing where a cash bail is posted to determine whether the bail is adequate to secure the appearance of the defendant. The court also has the discretion to determine whether it should be increased in amount or that additional sureties be required. While the federal rules permit this to occur on the motion of the government after bail has been set, see 18 U.S.C. § 3142(g)(4), no comparable provision is contained in the Florida rules.

To the extent that a court inquires at the first appearance hearing as to the source of the funds available to post bail, it is for the purpose of ascertaining whether the bail set is sufficient to secure the defendant’s appearance, not to deny him pretrial release. Art. I, § 14, Fla. Const.; Fla. R.Crim. P. 3.131. In most circumstances, the court will not be presented with evidence that the source of funds is illicit. More often, the source of funds for a cash bond may remain unknown. An illicit or unknown source of the funds may indicate that a higher bond or additional sureties are necessary in order to secure the defendant’s appearance at trial. Whatever bond or conditions of release are imposed, they are there to insure that the defendant does not abscond prior to trial.