Jackie Cornelius Williams v. State of Florida

SC06-594

>> HEAR YE, HEAR YE, HEAR
YE.
>> THE SUPREME COURT OF
FLORIDA IS NOW IN SESSION.
ALL WHO HAVE CAUSE TO PLEA,
DRAW NEAR, GIVE ATTENTION,
AND YOU SHALL BE HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA
AND HONORABLE COURT.
LADIES AND GENTLEMEN, THE
SUPREME COURT OF FLORIDA.
PLEASE BE SEATED.
>> OKAY THE FIRST CASE ON
OUR CALENDAR FOR DECEMBER
6th IS WILLIAMS VERSUS STATE
OF FLORIDA.
MAY IT PLEASE THE COURT MY
NAME THE PWEB PWRA
BRUCKHEIMER AND I'M HERE
REPRESENTING MR. WILLIAMS.
MR. WILLIAMS WAS
CONVICTED -- WAS CHARGED
WITH SEX BATTERY WITH FORCE
THE VICTIM, THERE WAS A
GREAT DEAL OF PROBLEMS WITH
HER CREDIBILITY.
THE JURY REJECT -- AND THAT
WAS YOU KNOW THE ENTIRE
DEFENSE WAS THAT IT WASN'T
WITH FORCE.
IT WAS CONSENSUAL AND THAT
SHE WAS MAKING UP THE ENTIRE
RAPE AND BEATING.
>> HOW OLD WAS SHE?
>> SHE WAS 15.
[INAUDIBLE]
THERE SHOULD BE, OF COURSE,
HE DID SAY THAT SHE HAD LIED
TO HIM ABOUT HER AGE.
NOW, EVEN THOUGH LACK OF
CONSENT IS NO DEFENSE, AND I
DON'T BELIEVE THAT YOU KNOW
HER LYING ABOUT HER AGE MAY
NOT BE ILL LEAGUE -- A LEGAL
DEFENSE, WE STILL HAVE THE
IDEA OF THE LESSERS.
AND THE JURY PARDON POWER
AND THE IDEA THAT WE HAVE A
VICTIM HERE WHO IS LESS THAN
SYMPATHETIC TO THE JURY.
[INAUDIBLE]
TO WHAT?
LEWD AND LASCIVIOUS, YES,
THAT WAS PRACTICALLY THE
ONLY ISSUE BEING RAISED WAS
THE FACT THAT LEWD AND
LASCIVIOUS SHOULD NOT BE
PART OF THIS TRIAL AND ALL
THE OLD CASE LAW SAID THAT,
BUT ALL THE OLD CASE LAW WAS
BASED ON THE PRE1999
STATUTE.
>> WHAT IS THE BASIS OF THE
OBJECTION?
WHAT WAS -- SPECIFICALLY DID
HE SAY THE REASON WAS HE
COULDN'T HAVE LEWD AND
LASCIVIOUS.
>> THAT IT JUST -- THE CASE
LAW SAID IT DIDN'T APPLY.
IT WASN'T IN THE JURY
INSTRUCTIONS, YOU KNOW LIKE
UNLESSER.
UNLESSERS.
AND -- UNDER SPACE LESSER.
>> THE STATUTE HAD CHANGED
IN 1999.
AND THIS IS SEVERAL YEARS
LATER.
AND NOTHING HAS CHANGED
THERE'S BEEN NO CHANGE IN
THE CASE LAW.
THERE'S BEEN NO CHANGE IN
THE STANDARD JURY
INSTRUCTIONS.
[INAUDIBLE]
TO DEAL WITH IT.
STPHAUB TPHAUB --
[INAUDIBLE]
OH, YES.
I HAVE LOOKED AT THE LESSER
OF LEWD AND LASCIVIOUS
UPSIDE DOWN, SIDEWAYS AND
LEGALLY I CAN'T SEE A REASON
NOW THAT EXISTS THAT WOULD
NOT MAKE IT A LESSER
PROVIDED THAT THE
INFORMATION ALLEGED ALL THE
NECESSARY ESSENTIAL, WHICH
IT DID IN THIS CASE.
>> AND WAS THE PROOF AT
TRIAL SUFFICIENT?
>> OH, YES.
SHRAOE SAID SHE WAS 15.
HOWEVER, EVERYONE WAS SO
BUSY LOOKING AT LEWD AND
LASCIVIOUS AND SEX BATTERY
WITH FORCE THAT NOBODY WAS
PAYING MUCH ATTENTION TO THE
OTHER MANDATORY -- THIS IS
A -- LEWD AND LASCIVIOUS
WOULD BE A PERMISSIVE.
SEX BATTERY WITH OUT FORCE
WAS LISTED AS A MANDATORY,
NECESSARY LESSER UNDER THE
JURY INSTRUCTIONS.
THE JUDGE HAD NO ALTERNATIVE
BUT TO GIVE THAT.
[INAUDIBLE]
I STILL THINK IT'S A BAD
IDEA.
BUT I HAVE NO LEGAL ARGUMENT
OTHER THAN THE FACT THAT
LOOK WHAT IT'S DONE.
IF YOU START BLENDING LEWD
AND LASCIVIOUS SECTION 800
WITH CHAPTER 800 WITH
CHAPTER 795 WE WIND UP WITH
THIS PROBLEM THAT WE NOW
HAVE.
WE'RE PROBABLY LOOKING AT
OTHER PROBLEMS, TOO.
BUT I HAVE NEVER IN MY
HISTORY EVER SEEN TWO
LESSERS GIVEN OF SAME VALUE.
>> WHAT PROHIBITS THAT?
>> OTHER THAN THE FACT THAT
THE WHOLE HISTORY HAS BEEN
OF DESCENDING ORDER AND THAT
THE JURY IS TOLD THAT IT'S A
DESCENDING ORDER AND TO FIND
THE DEFENDANT GUILT OF THE
CRIME --
>> THEY ARE REALLY TOLD THIS
IS OF DESCENDING ORDER OR
ARE THEY SIMPLY TOLD THAT
THEY ARE TO CONVICT THE
DEFENDANT OF THE GREATEST
TENSE DEFENSE THAT THE STATE
HAS PROVEN?
>> WELL, LET ME SEE I KNOW I
HAVE IT IN MY BRIEF.
LET'S SEE.
BUT IT'S KIND OF LIKE THE
IDEA BEING THAT YES, YOU'RE
SUPPOSED TO CONVICT OF THE
MOST -- THE HIGHEST OFFENSE
FOR WHICH THERE IS PROOF.
>> RIGHT.
>> BUT THEY ARE TOLD --
>> WITH THE I -- THE WAY IT
GENERALLY READS IS MAIN
CHARGE IS SEXUAL BATTERY
FORCE IF YOU ARE NOT
CONVINCED THE STATE PROVED
ALL THE ELEMENTS THERE ARE
LESSERS THEN THEY LIST THE
LESSERS.
>> RIGHT.
>> WERE THE TWO LESSERS
LISTED SEQUENTLY IN THE
VERDICT FORM?
>> IT'S ON PAGE 13 IN THE
BRIEFS.
>> THEY WERE LISTED
SEQUENTLY.
SEX BALLOTRY WITH FORCE,
LEWD AND LASCIVIOUS, SEX
BATTERY WITHOUT FORCE.
>> WHAT WAS THE INSTRUCTION?
>> BATTERY.
AND THE INSTRUCTION WAS THEY
MUST RETURN THE VERDICT FOR
THE HIGHEST OFFENSE WHICH
HAS BEEN PROVEN BEYOND A
REASONABLE AND ONLY ONE
VERDICT MAY BE RETURNED --
>> WHEN THEY
TRANSITION -- WHEN THE JUDGE
WAS GIVEN THE INSTRUCTION
AND GIVEN THE INSTRUCTIONS
ON THE TWO LESSER HERE, WAS
THERE -- DID HE SAY THE NEXT
LEDERER INCLUDED OFFENSE IS
AFTER THE L AND L.
>> I WILL HAVE TO GET THE
EXACT LANGUAGE.
BUT I WILL LOOK FOR THAT.
>> IT WASN'T EXPLAINED TO
THE JURY THAT THE DIFFERENCE
BETWEEN THE TWO IS THE CON
ENTITY IS NOT REQUIRED TO BE
PROVEN.
ONE --
>> NO.
I MEAN, ARE GIVEN THAT'S AN
ELEMENT.
THEY ARE NOT TOLD THESE ARE
TWO EQUAL SECOND DEGREE
OFFENSES.
>> CAN -- THEY WERE NEVER
EXPLAINED BY THE JUDGE OR
THE COUNSEL?
>> NO.
>> AND IT REALLY WASN'T EVEN
ADDRESSED BY THE SECOND
DISTRICT EVEN THOUGH THEY
HAD SERIOUS PROBLEMS AND
CERTIFIED THIS QUESTION.
NOBODY WAS REALLY LOOKING
DOWN.
EVERYBODY IS LOOKING UP AT
LEWD AND LASCIVIOUS AND SEX
BATTERY.
SO YOUR POSITION IS --
>> WE VERY MUCH APPRECIATE
YOUR CANDOR.
THAT'S ALL I HAVE LEFT.
>> THAN ON SORT OF AN
ANELLECTUAL BASIS THAT YOU
ARE BRINGING THAT YOU HAVE
REALLY NO LEGAL BASIS TO
CHALLENGE THIS.
ARE YOU, HOWEVER -- ARE YOU
CONTENDING THAT THE JURY IS
MISLED BY THE INSTRUCTIONS
THAT ARE ACTUALLY --
>> YES.
>> AND THERE SHOULD REALLY
BE SOME OTHER WAY OF
PRESENTING THIS TO A JURY
EVEN THOUGH YOUR ARE
CONCEDING THAT IT SHOULD BE
LEGALLY OR CAN BE LEGALLY
NOW WITH THE CHANGE IN THE
STATUTE THAT THERE SHOULD BE
A DIFFERENT INSTRUCTION
GIVEN TO THE JURY AND IF
THAT IS YOUR CONTENTION,
UH-HUH.
>> HOW WOULD YOU HAVE THE
JURY APPRISED?
WOULD IT BE SOMETHING LIKE
IF YOU FIND A -- AN OFFENSE
OF EQUAL OR LESSER?
>> I THINK -- MY VERDICT
FORM WOULD NOT LOOK LIKE THE
VERDICT FORM DOES.
IT WOULD HAVE TO BE LIKE A
FAMILY TREE VERDICT FORM IF
I WERE GOING TO CLEARLY TELL
THE JURY THAT THEY ARE NOT
DEALING WITH LESSERS.
THEY ARE DEALING WITH TWO
CRIMES OF EQUAL VALUE.
>> WELL, IS THERE, THOUGH, A
CONNOTATION, PERHAPS THAT
THERE -- THERE'S LESS OF A
STIGMA ATTACHED TO BEING
CONVICTED OF THE LEWD AND
LASCIVIOUS AS OPPOSED TO THE
SEXUAL BATTERY?
>> WELL, THE IF THE JURY
BOUGHT AT -- THAT AT ALL.
THEY WERE MISLED INTO
THINKING THAT.
AND CLEARLY -- LIKE I SAID
THERE WAS PROBLEMS WITH THIS
VICTIM.
HAD THEY BEEN TOLD THAT IT'S
REALLY SEX BATTERY WITH
FORCE, LEWD AND LASCIVIOUS
CONDUCT AND SIMPLE BATTERY
WITHOUT THAT SEX BATTERY
WITHOUT FORCE IN BETWEEN,
PERHAPS MAYBE THEY WOULD
HAVE THOUGHT HARDER ABOUT
SIMPLE BATTERY.
>> HOW DO WE RECONCILE THAT
WITH THE DECISION OF THIS
COURT SOME YEARS AGO TO
RETREAT FROM TELLING THE
JURY ABOUT PENALTY?
>> YOU CAN'T.
PENALTIES HAVE BECOME MORE
AND MORE IMPORTANT.
NOW THEY ARE DECIDING
WHETHER OR NOT FIREARMS WERE
USED.
THEY MAY NOT BE TOLD THERE'S
A 3-YEAR MINIMUM MANDATORY
GOING ALONG WITH IT.
BUT THE MORE WE HAVE TO
IMPOSE THIS KIND OF
INFORMATION TO THE JURY, THE
MORE THEY WILL BE TOLD.
>> WELL AT ONE TIME WE HAD A
RULE ACTUALLY THAT --
>> AND THAT WAS BEFORE
RING --
>> AND THIS COURT YOU KNOW
WITHDRAW THAT RULE AND WENT
BACK TO THE POSITION THAT
JURIES SHOULD NOT BE
APPRISED.
>> I DON'T SEE HOW WE
CAN -- YOU KNOW KEEP THAT IN
LIGHT OF THE FACT THAT
PENALTIES ARE GETTING
HARSHER.
THEY ARE BEING BASED ON
FACTS NOT BEING, YOU KNOW
THAT JUDGES USED TO MAKE
FINDING OF BUT NOW THE U.S.
SUPREME COURT RULED THE JURY
HAS TO MAKE THE FINDING.
MORE AND MORE THE JURY IS
BEING INVOLVED IN EVERY
DETAIL, WHICH IMPACTS ON
SENTENCE.
>> I UNDERSTAND YOUR
ARGUMENT THEN IT'S THAT IF A
DEFENDANT IS CHARGED WITH A
FIRST-DEGREE FELONY, THE
LESSER INCLUDED OFFENSE IS
ONLY BE AT MOST ONE
SECOND-DEGREE FELONY,
ONE-THIRD-DEGREE FELONY.
>> I WOULD LIKE THAT.
BUT THAT'S ESSENTIALLY YOUR
ARGUMENT.
>> RIGHT.
>> BECAUSE ACCORDING YOU YOU
CAN'T HAVE TWO SECOND DEGREE
FELONIAS LESSER INCLUDED
OFFENSES BECAUSE THE
PUNISHMENT IS THE SAME AND
DAY ARE NOT NECESSARILY THE
SAME.
>> JUSTICE QUINCE ASKED IF I
KNEW ANYTHING TO PREVENT IT.
I'VE NEVER SEEN IT BEFORE.
BUT OTHER THAN THE JURY
CONCEPT POWER I KNOW OF NO
LEAGUE A REASON TO PREVENT
IT.
HOWEVER, I DO HAVE THE
LANGUAGE OF SANDERS AND BOTH
OPPOSING COUNSEL AND
MY -- HIGH SELF SUBMITTED
THIS SUPPLEMENTAL AUTHORITY.
THIS COURT CAME OUT WITH THE
OPINION OCTOBER 26th IT
HAS -- HAD TO DO WITH LESSER,
BUT THE LESSER WINDING UP AT
THE SAME PUNISHMENT AT THE
OTHER.
NONE OF THAT REALLY APPLIES.
HOWEVER, TOWARD IT IS VERY
END THIS COURT SAID THE
CHARGED CRIME SHOULD BE
FOLLOWED ON THE VERDICT FORM
BY THE DETERMINED
LESSER-INCLUDED OFFENSES IN
DESCENDING ORDER BY DEGREE
OF OFFENSE.
>> THAT SEEMS TO ME --
>> THERE SHOULD ONLY BE ONE
OF EACH.
>> IF YOU HAVE A SECOND
DEGREE 1/3 DEGREE
THERE -- THEY WOULD BE IN
DESCENDING ORDER.
WHAT IF A DEFENDANT
REQUESTED -- WHAT IF THE
DEFENDANT IS CHARGED WITH
FIRST-DEGREE MURDER AND
COUNSEL WANTS TO GIVE THE
JURY EVERY OPPORTUNITY TO
CONVICT ON SOMETHING OTHER
THAN FIRST-DEGREE MURDER AND
SAYS PLEASE PUT FIVE
SECOND-DEGREE FELONIES ON
THERE.
BECAUSE I WANT TO GIVE THEM
AN OPPORTUNITY TO CONVICT A
SECOND-DEGREE FELONY AND
YOUR ARGUMENT THE JUDGE
COULDN'T DO IT.
>> MY ARGUMENT IS I'VE NEVER
SEEN IT DONE.
I'VE NEVER SEEN IT ARGUED
FOR.
AND I'VE DONE THIS FOR A
LONG TIME.
[INAUDIBLE]
THEY ARE FOCUSED ON LEWD AND
LASCIVIOUS BEING A LESSER OF
SEX BATTERY.
HE DIDN'T WANT IT THERE AS
WELL.
AS FAR AS THE IDEA BEING
THAT GIVES UP EVERYTHING, I
DON'T THINK SO.
I REALLY THINK --
>> I WASN'T THERE
ARGUMENT --
[INAUDIBLE]
>> THAT WASN'T MENTIONED.
AND IT WASN'T MADE TO THE
SECOND DEGREE EITHER.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> WELL, I --
[AUDIO DIFFICULTIES]
>> THAT'S WHY I'M BRINGING
UP THE JURY PARDON POWER.
I MEAN THE IDEA BEING THEY
WERE MISLED AND TOLD THERE
WAS A DESCENDING ORDER.
THEN IT GOES TO THE SAME
POINT --
[AUDIO DIFFICULTIES]
>> AND CONSENT POSSIBLY
BEING THAT THE
DISTINGUISHING FACTOR.
THEY DID NOT BELIEVE HER.
BUT, YOU KNOW IF ALL THEY
HAD BETWEEN THEM AND SIMPLE
BATTERY WAS NOTHING, THEY
MIGHT HAVE FELT STRONGLY
ENOUGH THAT THIS GIRL HAD
LIED ABOUT HER AGE AND LIED
ABOUT EVERYTHING ELSE THAT
THEY WERE GOING TO TENDER
MERCY WITH JUSTICE AND COME
DOWN WITH SOMETHING LESSER.
[AUDIO DIFFICULTIES]
RIGHT.
AND ALL I'M SAYING THAT IF
WE HAD TAKEN SEXUAL BATTERY
OUT OF THERE, THE ONE
WITHOUT VIOLENCE SO THAT
DIDN'T STAND BETWEEN LEWD
AND LASCIVIOUS AND SIMPLE
BATTERY, POSSIBLY MAYBE THE
JURY WOULD HAVE
GONE -- LOOKED AT THAT MORE
CLOSELY.
I'M JUST SAYING THAT IN THE
LINE OF LESSERS NECESSARY
LESSERS, WHEN THE COURTS DO
NOT GIVE THE NEXT STEP DOWN,
THIS COURT HAS CONSTANTLY
HELD THAT, THAT'S PER SE
REVERSIBLE ERROR WITHOUT
REGARD TO HARMLESSNESS.
AND I'M SAYING THAT BY
HAVING TWO EQUAL ONES LISTED
PERPENDICULARLY, THAT THE
DEFENDANT WAS DENIED THAT
RIGHT.
HE WAS DENIED BEING TOLD THE
NEXT NECESSARY LESSER DOWN
WAS SIMPLE BATTERY.
>> WHAT SHOULD BE FOCUS IN
THESE KINDS OF CASES?
IT SEEMS TO ME WE'RE
FOCUSING ON WHETHER THE
LESSER INCLUDED OFFENSES ALL
NEED TO BE LESSER TO EACH
OTHER AS OPPOSED TO WHETHER
ALL OF THE OFFENSES WHICH
ARE LISTED AFTER THE MAIN
OFFENSE HAVE TO BE LESSER TO
THE MAIN OFFENSE.
ISN'T THAT WHAT THE FOCUS
REALLY SHOULD BE ON, WHETHER
THESE LISTED OFFENSES REALLY
ARE LESSER TO THE CHARGED
OFFENSE?
>> PERSONALLY I THINK THAT
GIVES THE STATE TOO MANY
BITES AT THE SAME PL.
HOWEVER, AS A DEFENSE
ATTORNEY.
>> ALSO GIVES YOUR
OPPORTUNITIES MORE
OPPORTUNITIES NOT TO BE
CONVICTED OF THE MAIN
OFFENSE.
>> MAIN OFFENSE, TRUE.
HERE THEY WERE GIVEN TWO
TKEBGD-SEG FELONIES AS AN
OPTION WHICH MAKES NO
DIFFERENCE.
THE CRIME HE WAS CONVICTED
OF THE PENALTY WAS GOING TO
BE THE SAME.
>> WOULD YOUR ARGUMENT BE
THE SAME IF THE SEXUAL
BATTERY WITHOUT VIOLENCE HAD
BEEN LISTED AS THE SECOND
OFFENSE HERE AND LEWD AND
LASCIVIOUS WAS THE THIRD
ONE.
>> CLEARLY I WOULD HAVE MY
LEG SHOT FROM UNDERNEATH ME.
>> IN YOUR REBUTTAL NOW --
>> I'M TRYING TO SAVE A FEW
MONTHS.
JUSTICE ANSTEAD HAS A
QUESTION.
>> IF WE ACCEPTED THE WORSE
FOR YOUR CLIENT IF WE STATE
DID WHAT THEY COULD DO WHICH
IS CHARGE IN THE ALTERNATIVE,
CHARGE COUNT 1 TO SEXUAL
BATTERY WITH A FORCE AND
THEN LEWD AND LASCIVIOUS
SEPARATE; CORRECT?
>> RIGHT.
I GAVE THAT OPTION LIKE
DEALING IN STOLEN PROPERTY
AND GRAND THEFT.
YOU COULD EITHER COME WITH
TWO SEPARATE CHARGES OR AT
THE VERY LEAST THE JURY
NEEDS TO BE TOLD THAT THESE
ARE NOT DESCENDING ORDERS.
THAT'S -- THAT THESE ARE TWO
EQUALLY.
>> DOESN'T THAT PLACE YOUR
CLIENT IN A WORSE SITUATION?
>> LIKE DOUBLE JEOPARDY.
I THINK LIKE GRAND
THEFT -- IT WOULD BE NICE IN
THE STATUTE SAID SO.
I THINK THERE WOULD BE A
DOUBLE JEOPARDY ISSUE IF
THEY WERE CONVICTED OF BOTH
SO THEREFORE ONLY ONE COULD
STAND.
I DON'T THINK THE STATE HAS
ANY PROBLEM WITH THE FACT
THAT THIS WOULD BE DOUBLE
JEOPARDY TO HAVE CONVICTED
HIM OF BOTH COUNTS IN THIS
CASE.
THE ONLY OTHER THING I WANT
TO POINT OUT FOR YOUR
CONSIDERATION AND I DID SHOW
OPPOSING COUNSEL THIS CASE
THIS MORNING I WAS LOOKING
FOR THE OLD CASES THAT
TALKED ABOUT ROBBERY WITH A
WEAPON VERSUS ROBBERY WITH A
GUN AND HOW YOU ARE
ABSOLUTELY ENTITLED TO THAT.
IT'S PER SE REVERSIBLE AND I
CAME ACROSS THE SANDERS CASE
THIS COURT ISSUE ON OCTOBER
12th.
IT HAS -- IT'S AN UPDATE ON
THAT KIND OF THING.
IT DEALS WITH 3.850s.
BUT AND HOW IT DOESN'T APPLY
THERE.
BUT THE REALITY IS IT DOES
HAVE A GOOD DISCUSSION ON
JURY PARDON POWER.
THANK YOU.
THANK YOU.
>> MAY IT PLEASE THE COURT.
MY NAME THE MARILYN BECCUE
AND I REPRESENT THE STATE OF
FLORIDA IN THE STATE
POSITION UNDER THE FACTS OF
THIS CASE THAT TRIAL COURT
DID NOT ERROR IN INSTRUCTING
THE JURIA PERMISSION SEUF
INCLUDED OVEN OF LEWD AND
LASCIVIOUS AND TO ADDRESS
SKWREFT BELLS QUESTION
EARLIER THE STATE COULD HAVE
CHARGED TWO SEPARATE
OFFENSES COULD HAVE CHARGED
COUNT ONE, SEXUAL BATTERY
WITH FORCE AND VIOLENCE,
COUNT 2, LEWD AND LASCIVIOUS
BATTERY AND I DO DISAGREE
WITH COUNSEL THAT THAT WOULD
BE DOUBLE JEOPARDY.
I WOULD NOT BE DOUBLE
JEOPARDY FOR THEM TO DO
THAT.
BECAUSE EACH OFFENSE
CONTAINED AN ELEMENT THAT
THE OTHER DOES NOT.
[AUDIO DIFFICULTIES]
>> NO.
[AUDIO DIFFICULTIES]
>> MANY ROBINSON I BELIEVE
THE FACTS WERE THERE WAS
ONLY EVIDENCE OF ONE
PENETRATION.
THERE WASN'T AND THEY WERE
TALKING ABOUT LEWD AND
LASCIVIOUS CONDUCT.
IT'S DIFFICULT TO DETERMINE
IN ROBINSON WHETHER THEY
WERE TALKING ABOUT LEWD AND
LASCIVIOUS BATTERY OR LEWD
AND LASCIVIOUS MOLESTATION
OR THOSE KINDS OF THINGS.
SO YOU KNOW, UNDER A STRICT
ANALYSIS THERE WOULDN'T BE
DOUBLE JEOPARDY BECAUSE OF
THE ELEMENT
[INAUDIBLE]
NO IT ISN'T.
THAT'S WHY THE STATE OPTED
TO CHARGE IT THIS WAY, ONE
REASON BECAUSE I BELIEVE
THEY REALLY TRULY BELIEVE
THAT THE CRIME THAT WAS
COMMITTED WAS THE SEXUAL
BATTERY WITH FORCE OF
VIOLENCE AND BUT THEY DID
RECOGNIZE THAT THE VICTIM'S
AGE WOULD LEAD TO A LESSER
INCLUDED OFFENSE IF THEY
CHARGED IT PROPERLY.
[AUDIO DIFFICULTIES]
>> RIGHT.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> I DON'T THINK SO BECAUSE
THE JURY IS INSTRUCTED THERE
ARE LESSER INCLUDED OFFENSES
AND THEY SHOULD BE FIND FOR
THE HIGHEST OFFENSE THAT
THEY SEE THE FACTS FOR.
AND IN THIS CASE THERE WAS
NO DISPUTE ABOUT THE LEWD
AND LASCIVIOUS BATTERY.
HE TESTIFIED THAT HE HAD SEX
WITH HER AND THAT SHE WAS 15
ALTHOUGH HE SAID HE DON'T
KNOW SHE WAS 15.
I DON'T THINK THAT IMPACTED
JURY'S VERDICT IN THIS CASE.
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> NO, BECAUSE IF THEY ARE
INSTRUCTED THEY SHOULD FIND
THEM GUILT OF THE
SIGH -- HIGHEST OFFENSE THAT
IS PROVED.
THEY ARE LOOKING AT THE
ELEMENT THAT ARE ALLEGED AND
THE FACTS THAT ARE SHOWN IN
TRIAL.
THEY ARE NOT REALLY BEING
TOLD THAT NECESSARILY HE
WILL GET A LESSER PUNISHMENT
AS YOU GO DEFENDING DOWN.
[INAUDIBLE]
>> WELL IT'S AN EQUAL
OFFENSE BECAUSE THEY ARE
BOTH SECOND DEGREE FELONY.
IT'S A LESSER OFFENSE THAN
THE CHARGED OFFENSE WHICH I
THINK IS WHAT JUSTICE QUINCE
WAS POINTING OUT THAT
THEY --
[AUDIO DIFFICULTIES]
[AUDIO DIFFICULTIES]
>> I DON'T KNOW IT WOULD
MAKE THAT MUCH OF A
DIFFERENCE.
I DON'T THINK THE JURY ARE
REALLY SAYING OKAY I'M GOING
TO CONVICT OF THIS, BECAUSE
IT'S A HIGHER CRIME.
IT'S LISTED FIRST.
I'M GOING TO CONVICT FOR
WHAT I BELIEVE THE FACTS
SHOW.
AND IN THIS CASE --
[AUDIO DIFFICULTIES]
RIGHT.
RIGHT.
[AUDIO DIFFICULTIES]
THEY ARE ALSO INSTRUCTED A
THAT SHEA -- THEY SHOULDN'T
BE CONCERNED ABOUT WHAT THE
ULTIMATE COURT -- PUNISHMENT
SHOULD BE.
THEIR JOB IS TO DETERMINE
THE LAW AND A APPLY THEM TO
THE FACTS.
IN DOING SO I DON'T SEE
THERE'S PREJUDICE WHEN YOU
HAVE TWO OFFENSES THAT ARE
THE SAME DEGREE BECAUSE YOU
HAVE TO ASSUME THAT THE JURY
IS SAYING, I'M GOING TO FIND
THEM GUILT OF WHAT THE FACTS
SHOW HE'S GUILT OF AND NOT
TAKE THAT CONSIDERATION OF
WHAT'S THE HIGHEST OR THE
LOWEST OVER THE FACT THAT
THEY BELIEVE THAT THIS WAS
CRIME THAT WAS ACTUALLY
PROVEN.
>> WOULD THERE BE ANY
PROBLEM WITH PUTTING SAY ON
THE VERDICT FORM THE DEGREE
OF EACH OFFENSE?
>> I -- OFF THE TOP OF MY
HEAD I CAN'T THINK OF A
PROBLEM WITH THAT.
THAT MIGHT BE MORE CONFUSING
TO THE JURY BECAUSE THEY ARE
ALSO BEING TOLD NOT TO WORRY
ABOUT WHAT THE ULTIMATE
PUNISHMENT WILL BE.
>> ISN'T THE PRACTICE
NORMALLY WHEN INFORMATION IS
GIVEN TO THE JURY IF THEY
RED -- REDACT --
>> FOR THE SAME REASON WE
DON'T WANT THEM TO WORRY
ABOUT THE PUNISHMENT.
WE WANT THEM CONCERNED WITH
WHAT THE FACTS SHOW.
SO THAT MIGHT BE A PROBLEM
BECAUSE YOU WOULD BE THEN
ADDING THIS OTHER ELEMENT OF,
WELL, GEE I DON'T KNOW IF I
WANT HIM CONVICTED OF FIRST
DEGREE OR SECOND DEGREE
FELONY WHEN THAT'S NOT
SUPPOSED TO BE THEIR ROLE IN
THE PROCESS.
THEIR ROLE IS TO LISTEN TO
THE FACTS AND DETERMINE
GUILT IF ANY.
>> IF YOU DON'T HAVE ANY
FURTHER QUESTIONS, THANK
YOU.
REBUTTE L.
-- REBUTTAL.
I DID FIND THE PAGES WITH
THE JURY INSTRUCTIONS.
AND IT PRETTY MUCH TRACKS
FORWARD RULE CRIMINAL
PROCEDURE 3.940 WHICH STATES
WHEN LESSER INCLUDED CRIMES
OR ATTEMPTS IN CONSIDERING
THE EVIDENCE YOU SHOULD
CONSIDER THE POSSIBILITY
THAT ALTHOUGH THE EVIDENCE
MAY NOT CONVINCE YOU THAT
THE DEFENDANT COMMITTED THE
MAIN CRIMES OF WHICH HE IS
ACCUSED THERE MAY BE
EVIDENCE THAT HE COMMITTED
OTHER ACTS THAT WOULD
CONSTITUTE A LESSER OFFENSE.
AND IF IN THAT OTHER SANDERS
CASE THIS COURT BASICALLY
SAYS THAT IS WHAT EMPHASIZES
THE JURY PARDON POWER.
AND OF COURSE THE STATE SAID
THAT -- THEIR ARGUMENT WAS
IT DOESN'T.
BUT THIS COURT HAS MADE THE
FINDING THAT IT DOES.
AND IN THOSE PRIOR CASES TO
NOT --
>> IT SEEMS TO ME THAT ALL
THAT YOU REALLY HAVE TO DO
IS GIVE JURY AN OPPORTUNITY
TO EXERCISE ITS PARTON
POWER.
IN THIS CASE THE JURY WAS
GIVEN THREE LESSER OFFENSES
TO THE MAIN OFFENSE.
THEY COULD EXERCISE THEIR
PARDON POWER.
RIGHT.
>> AND THE CIRCUMSTANCE --
>> THEY WERE GIVEN THEM IN
SUCH A WAY THAT THE THIRD
ONE DOWN -- THAT THE SEX
BATTERY WITHOUT VIOLENCE
STOOD IN BETWEEN LEWD AND
LASCIVIOUS AND SIMPLE
BATTERY AND UNDER THE RULES
SIMPLE BATTERY WOULD HAVE
BEEN A NECESSARY LESSER FOR
LEWD AND LASCIVIOUS CONDUCT.
IT WOULD -- IT WOULD NOT
HAVE HAD ANYTHING IN BETWEEN
IT.
THEY SHOULD NOT HAVE BEEN
TOLD THAT THESE WERE LESSERS
WHEN THEY WERE NOT.
AND THAT'S -- THAT'S WHERE
I'M COMING UP WITH MY PER SE
EVIDENCE.
>> THEY WERE REALLY LESSER
TO THE MAIN OFFENSE BUT
MAYBE NOT LESSERS TO EACH
OTHER.
>> RIGHT.
>> THANK YOU VERY MUCH.
WE WILL TAKE THE CASE UNDER
ADVISEMENT.
THANK YOU VERY MUCH.