The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Dewarn Antonio Brown v. State of Florida
SC06-628
THE NEXT CASE ON OUR CALENDAR
THIS MORNING IS BROWN VERSUS
STATE OF FLORIDA.,,
>> GOOD MORNING.
I'M FROM THE MIAMI PUBLIC
DEFENDER'S OFFICE AND I
REPRESENT --
>> MR. HEIMLICH, THE SOUND IS
NOT WORKING WELL.
PULL THE MICROPHONE OVER CLOSER
TO YOU PLEASE, SIR.
>> MY ARGUMENT THIS MORNING IS
UNDER HORN, THE VERDICT
CONVICTING DEFENDANT THE MISS
NENOR -- MISS DMOANOR THEFT
PRECLUDED A CONVICTION FOR ANY
FELONY AS A RESULT OF THE
TRANSACTION FOR WHICH THE JURY
CONVICTED BROWN OF MISS MISDEMEANOR
FELONY THEFT, BECAUSE THE PETTY
THEFT CONVICTION PRECLUDED A
NEGATIVE ANY FELONY.
WE ALSO CONTEND THAT THE ERA IN
THE VERDICTS WAS SUFFICIENTLY
PRESERVED BY DEFENDANT'S POST
VERDICT MOTION THAT SET THE
FELONY MURDER VERDICT ASIDE.
>> LET ME ASK A QUESTION.
HERE OBVIOUSLY THE PROBLEM WAS
IN COUNT TWO THE JURY WAS NOT
GIVEN THE OPTION TO CHOOSE
ATTEMPTED ROBBERY OR ARMED
ROBBERY AS A LESSER INCLUDED
OFFENSE, CORRECT?
>> I DON'T AGREE WITH THAT, YOUR
HONOR, BECAUSE THE JURY
CONVICTED THE DEFENDANT OF PETTY
THEFT.
>> LET ME ASK YOU.
WAS THE JURY IN COUNT ONE
INSTRUCTED AS A POTENTIAL LESSER
INCLUDED OFFENSE ATTEMPTED
ROBBERY?
>> NO.
THE STATE ALLEGED ATTEMPTED
ROBBERY IN THE INDICTMENT, THEY
DID NOT REQUEST AN INSTRUCTION
ON ATTEMPTED ROBBERY, NO
INSTRUCTION WAS GIVEN ON
ATTEMPTED ROBBERY --
>> IN COUNT ONE?
>> IN COUNT ONE OR COUNT TWO.
COUNT ONE, THE JURY WAS
INSTRUCTED THAT A MURDER WAS
FELONY MURDER IF IT WAS
COMMITTED IN THE COURSE OF A
ROBBERY OR ATTEMPTED ROBBERY
THERE WAS NEVER ANY EXPLANATION
OF WHAT ATTEMPTED ROBBERY WAS,
THERE WAS NEVER ANY EXPLANATION
THAT AN ATTEMPTED ROBBERY
REQUIRES SPECIFIC INTENT.
>> ARE THE FACTS IN THIS CASE
CONSISTENT WITH AN ATTEMPTED
ROBBERY?
>> THEY'RE ABSOLUTELY
INCONSISTENT WITH AN ATTEMPTED
ROBBERY, YOUR HONOR.
>> HOW IS THAT?
>> BECAUSE THE DEFENDANT'S
WALLET WAS FOUND IN A DUMPSTER
WITH THE MONEY GONE AND THE
CREDIT CARDS GONE AND THE
FINGERPRINTS OF ONE OF THE
PARTICIPANTS IN THE OFFENSE,
JACKIE, ON THE WALLET AND ON THE
THINGS IN THE WALLET, AND THE
TESTIMONY OF THE --
>> THAT'S THE COMPLETION.
WASN'T THE TESTIMONY OF THE
DEFENDANT THAT HE AND THE OTHER
TWO DECIDED THAT THEY WERE GOING
TO GO IN AND ROB THIS GUY
BECAUSE HE HAD $3,000 OR $4,000
ON HIM?
AND THAT THEY WENT TO THAT AND
THEY GOT THE STRUGGLE, THE GUN
WENT OFF AND HE RAN?
>> IT'S THE WORD ROB THAT I HAVE
DIFFICULTY WITH, YOUR HONOR.
A ROBBERY CONSTITUTES A LARCENY
AND AN ASSAULT.
THE JURY CONVICTED THE DEFENDANT
IN THIS CASE OF THE LARCENY.
A PETTY LARCENY.
THEY DID NOT CONVICT HIM OF THE
ASSAULT.
IF THEY HAD FOUND HIM GUILTY OF
THE ASSAULT, THEY WOULD HAVE
FOUND HIM GUILTY OF THE ROBBERY.
>> OF BEFORE THE CONVICTION.
I'M TALKING ABOUT THE FACTS.
THE FACTS AS ADMITTED BY THE
DEFENDANT, WOULD THEY HAVE NOT
INCLUDED AAT THE TIMED ROBBERY?
-- ATTEMPTED ROBBERY.
BASICALLY THAT'S WHAT WAS
ADMITTED TO ARE CONSISTENT?
>> MY UNDERSTANDING OF THE
TESTIMONY WAS THAT THEY WERE
GOING TO STEAL THE VICTIM'S
MONEY, THAT THERE WAS NO
AGREEMENT ON AN ASSAULT, THAT
THE DEFENDANT DID NOT KNOW THAT
BLACK HAD A GUN, THAT THERE WAS
NO INDICATION --
>> HOW WERE THEY GOING TO STEAL
IT?
IT WAS ONLY THE BODY, RIGHT?
>> HE MIGHT BE SLEEPING, HE
MIGHT NOT BE WEARING HIS PANTS.
THERE WAS NO TESTIMONY IN THE
RECORD THAT THEY AGREED TO
ASSAULT HIM.
THE ONLY TESTIMONY IN THE RECORD
WAS THAT HE AGREED TO STEAL THE
MONEY.
NOW, IT'S CERTAINLY TRUE, THEY
ARGUED AT TRIAL, THAT THE
EVIDENCE WARRANTED AN INFERENCE
THAT THEY AGREED TO ROB HIM.
THE JURY REFUSED TO DRAW THAT
INFERENCE.
>> WAIT, LET'S GET TO THE
NEXT -- THAT TO ME IS THE
NON SEQUITUR HERE, BECAUSE IN
COUNT TWO, THE JURY WAS NEVER
GIVEN THE OPTION TO ADDRESS,
THEY WERE JUST GIVEN THE OPTION
OF THE ROBBERY OR THE PETTY
THEFT, CORRECT?
>> ARMED ROBBERY, ROBBERY
WITHOUT A WEAPON, GRAND THEFT
AND PETTY THEFT WERE THE FOUR
CHARGES THAT WERE SUBMITTED AND
THE PROSECUTOR SAID THOSE WERE
THE LESSER.
>> ATTEMPTED ROBBERY WAS NOT AN
OPTION OF THE JURY, CORRECT?
>> CORRECT.
>> AND WHEN THE DEFINITION OF
PETTY THEFT INCLUDES TO OBTAIN
OR ENDEAVOR TO OBTAIN, CORRECT?
>> YES.
>> AND IS NOT A SYNONYM TO EN --
A CINNAMON SYNONYM TO ENDEAVOR IS TO
ATTEMPT.
>> THE QUESTION FOR THE
ATTEMPTED ROBBERY WAS WAS THERE
AN ASSAULT OR AN ATTEMPTED
ASSAULT, AND THERE IS NO FINDING
THAT THERE WAS AN ASSAULT OR
ATTEMPTED ASSAULT AND MOREOVER,
I DON'T UNDERSTAND HOW THE STATE
CAN COME BEFORE THE COURT IN
GOOD FAITH AND SAY WE ALLEGED IN
COUNT ONE OF THE INFORMATION
THAT IT COULD BE A ROBBERY OR AN
ATTEMPTED ROBBERY, BUT WE NEVER
ASKED THE JUDGE TO EXPLAIN TO
THE JURY WHAT AN ATTEMPTED
ROBBERY WAS, BUT WE THINK THAT
THE JURY CONVICTED OF ATTEMPTED
ROBBERY, ALTHOUGH NOBODY EVER
TOLD THEM WHAT THAT REQUIRED,
AND WE THINK THAT BECAUSE THEY
CONVICTED HIM OF PETTY THEFT.
ATTEMPTED ROBBERY IS A CATEGORY
TWO PERMISSIVE LESSER OFFENSE OF
ROBBERY.
>> CAN I JUST -- ON WHAT THE
JURY WAS TOLD, I'VE BECOME
MORE -- I AM -- I TEND TO AGREE
WITH YOU ON THIS ISSUE THAT
THERE WAS TRULY INCONSISTENT
VERDICTS BASED ON -- OR
PRECEDENT.
MY CONCERN IS THE JURY
INSTRUCTION THAT WAS GIVEN, AND
THAT WAS URGED TO BE GIVEN BY
THE DEFENDANT, THAT IS 3.12.
[A.
[WHICH ESSENTIALLY TELLS THE
JURY THAT THEY CAN CONSIDER EACH
CHARGE SEPARATELY AND I'VE
LOOKED AT JUDGE HARRIS'
CONCURRENCE FROM 1999, AND HE
SUGGESTS THAT WE'VE GOT TO DO
SOMETHING WITH THESE JURY
INSTRUCTIONS TO -- BUT GIVEN
THAT THE JURY INSTRUCTION
EXISTS, THAT THE DEFENSE LAWYER
IN THIS CASE URGED THIS TO BE
DONE, WHY ISN'T IT THEREFORE
SOMETHING THE JURY BELIEVED THAT
THEY COULD MAKE THE DECISION
THAT THEY MADE, AND THAT THIS
ARGUMENT THEN IS WAIVED?
>> IN THE FIRST PLACE, YOUR
HONOR, THE DEFENSE COUNSEL DID
NOT URGE THAT IT BE DONE.
HE DID NOT SAY ANYTHING ABOUT IT
BEING DONE.
IT WAS REQUESTED BY THE
PROSECUTOR.
IT WAS DONE, THERE WAS NO
OBJECTION TO IT, I ADMIT THERE
WAS NO OBJECTION TO IT, BUT IT
WAS NOT AS REQUESTED BY DEFENSE
COUNSEL AND DEFENSE COUNSEL DID
NOT ATTEMPT TO TAKE ANY
ADVANTAGE OF THE FACT THAT THE
VERDICTS WOULD BE SEPARATE.
ACTUALLY, WHAT IS DEFENSE
COUNSEL SUPPOSED TO DO WITH
RESPECT TO THAT INSTRUCTION?
HE'S SUPPOSED TO ASK THE JUDGE,
DON'T GIVE THAT INSTRUCTION,
INSTRUCT THE JURY TO RETURN A
GENERAL VERDICT.
>> WELL, DON'T YOU THINK THAT
BETWEEN 1999 AND NOW, SOMEBODY
OUGHT TO ALERT THIS CRIMINAL
JURY INSTRUCTION COMMITTEE, THAT
IT IS GOING TO SET UP AN
INTERLOCKING VERDICT, WHICH A
FELONY MURDER WITH THE PREDICATE
FELONY IS ALWAYS GOING TO CREATE
THIS PROBLEM, TO ASK FOR A
SPECIAL INSTRUCTION THAT WILL
TELL THE JURY THAT YES, THAT IF
YOU -- YOU'VE GOT TO FIND THEM
GUILTY OF A FELONY, IN ORDER FOR
THERE TO BE FELONY MURDER AND IF
YOU DON'T FIND HIM GUILTY -- AND
THAT'S THE FIRST CHARGE TO
CONSIDER, AND IF YOU FIND HIM
GUILTY OF A FELONY, THEN YOU GO
ON TO THE FELONY MURDER
INSTRUCTION, BUT WITHOUT ANY
GUIDANCE, IT SEEMS THAT THE
POSSIBILITY EXISTS THAT THE JURY
THINKS THAT THEY'RE GIVING THIS
DEFENDANT SOME ASSISTANCE BY
EXERCISING POWER ON ONE COUNT
AND NOT ON THE OTHER.
>> WELL, I DON'T THINK IT'S A
BAD IDEA TO CLARIFY THE
INSTRUCTION, BUT I WANTED TO
MAKE IT CLEAR THAT THE
CLARIFICATION THAT YOU'RE
REFERRING TO ONLY APPLIES WHERE
THERE ARE INTERLOCKING COUNTS,
AND THE AGREEMENT THAT THEY'VE
ISSUED BE SEPARATE VERDICTS ON
TWO COUNTS IS NOT IN ANY RESPECT
A WAIVER OF THE RIGHT TO HAVE
THE INTERLOCKING COUNT FOUND IN
THE FELONY MURDER CAP.
THE SEPARATE VERDICT INSTRUCTION
IN THIS CASE INSTRUCTS THE JURY,
FOR EXAMPLE, THAT THEY CAN
CONVICT THE DEFENDANT OF
ROBBERY, BUT NOT OF FELONY
MURDER.
FIND HIM NOT GUILTY OF FELONY
MURDER EVEN THOUGH THEY FIND HIM
GUILTY OF ROBBERY.
THE DEFENDANT DOESN'T HAVE TO
WAIVE THAT BENEFIT, DOESN'T HAVE
TO WAIVE THAT EFFECT OF THAT
INSTRUCTION IN ORDER TO HAVE THE
VERDICT BE CONSISTENT AS TO THE
INTERLOCKING PORTION.
THE DIFFICULTY IN THESE VERDICTS
IS THAT THE FELONY MURDER
VERDICT DEPENDS UPON A FELONY
AND THERE IS TO FELONY.
THE JURY DID NOT FIND A FELONY.
IN ADDITION, THE DEFENSE COUNSEL
DID NOTHING TO TAKE ADVANTAGE OF
THE FACT THAT THIS INSTRUCTION
REQUIRES A SEPARATE VERDICT.
THERE WAS NO ARGUMENT THAT THE
JURY SHOULD DO WHAT IT DID.
THERE WAS NO ARGUMENT THAT THE
JURY SHOULD FIND THIS COUNT OR
THE OTHER COUNT.
THE DEFENDANT'S ARGUMENT AT
TRIAL WAS THE EVIDENCE SHOWS THE
COMMISSION OF A CRIME BY BLACK
AND SHORT HOI AND JACKIE, AND
THAT THE DEFENDANT'S STATEMENT
ABOUT WHAT HAPPENED SHOULD NOT
BE BELIEVED BECAUSE HE WAS TOLD
BY THE POLICE WHEN HE WAS
INTERROGATED, THAT IF HE TOLD
THEM WHAT HAPPENED, HE WOULD LET
THEM GO AND HE TOLD THE POLICE
WHAT THEY WANTED TO HEAR.
THAT WAS THE ARGUMENT.
>> LET ME ASK YOU THIS.
IF THE STATE HAD NOT CHARGED HIM
WITH ROBBERY, BUT DID IN FACT
CHARGE FELONY MURDER, WOULD A
FELONY MURDER CONVICTION STAND
WITHOUT A ROBBERY CONVICTION?
>> I HAVEN'T FOUND A CASE THAT
SAYS THAT, BUT THE LOGIC
CERTAINLY SUGGESTS THAT.
THE JURY FOUND FELONY MURDER ON
AN INDICTMENT OR INFORMATION
THAT ALLEGED MURDER IN THE
COURSE OF A ROBBERY OR ATTEMPTED
ROBBERY.
I WOULD ASSUME THAT THE JURY
FOUND ROBBERY OR ATTEMPTED
ROBBERY.
I DON'T ASSUME THAT IN THIS CASE
BECAUSE THE JURY FOUND PETTY
THEFT AND WHAT THE JURY FOUND IN
THIS CASE WAS MURDER IN THE
COURSE OF A PETTY THEFT.
NOBODY TOLD THE JURY THAT PETTY
THEFT IS A MISDEMEANOR.
THE PROSECUTOR TOLD THE JURY
DURING CLOSING ARGUMENTS THAT IF
YOU COMMIT A CRIME WITH OTHER
PEOPLE AND ONE OF THOSE PEOPLE
KILLS SOMEBODY IN THE COURSE OF
A CRIME, YOU'RE GUILTY OF FELONY
MURDER.
THAT'S ON PAGE 699 OF THE
TRANSCRIPT.
THAT'S WHAT OF THE JURY FOUND.
HE AGREED TO STEAL HIS MONEY AND
IN THE COURSE OF STEALING HIS
MONEY, BLACK SHOT HIM AND KILL
HIM, SO HE'S GUILTY OF FELONY
MURDER.
THAT'S NOT RIGHT THOUGH.
HE DID NOT PARTICIPATE IN THE
UNDERLYING FELONY.
THE INTERLOCKOR IS NOT PRESENT,
IT'S NOT THERE.
>> THAT GOES BACK TO MY
FUNDAMENTAL QUESTION, BECAUSE
WHAT THE JURY WAS TOLD, BECAUSE
THEY DID NOT KNOW WHETHER THE
PETTY THEFT WAS A FELONY OR NOT
A FELONY, THAT MR. BROWN
KNOWINGLY AND UNLAWFULLY
OBTAINED, ENDEAVORED TO OBTAIN
OR ENDEAVORED TO OBTAIN THE
PROPERTY OF THE VICTIM.
HOW IS THAT, ON THAT ALONE,
INCONSISTENT?
WITH COUNT ONE?
>> I WANT TO COME BACK TO THE
SEPARATE VERDICT QUESTION, BUT
LET ME ADDRESS YOUR QUESTION.
THE DEFECT IN THE JURY IN STRKSS
IN THIS CASE, IS THAT THE STATE
DID NOT ASK THE JUDGE TO
INSTRUCT THE JURY ON COUNT TWO,
AS TO ATTEMPTED ROBBERY AS A
LESSER AND DID NOT DEFINE WHAT
AN ATTEMPTED ROBBERY WAS AND DID
NOT DEFINE THE INTENT ELEMENT OF
ROBBERY.
IF THE COURT HAD DONE THAT, THEN
EITHER THE JURY WOULD HAVE FOUND
PETTY THEFT OR THEY WOULD HAVE
FOUND ATTEMPTED ROBBERY.
IN EITHER CASE, I WOULDN'T BE
HERE.
I'M HERE BECAUSE THE STATE IN
THE TRIAL COURT WAIVED THE
ARGUMENT THAT IT'S MAKING NOW
THAT THE JURY FOUND ATTEMPTED
ROBBERY BECAUSE THE STATE IN THE
TRIAL COURT NEVER ARGUED
ATTEMPTED ROBBERY, NEVER TOLD
THE JURY THAT IT WAS ATTEMPTED
ROBBERY, NEVER ASKED FOR AN
INSTRUCTION ON ATTEMPTED
ROBBERY, NEVER GOT AN
INSTRUCTION ON ATTEMPTED ROBBERY
AND NOW AFTER THE JURY WANDERED
IN THE DESERT AND CAME UP WITH A
KILLING IN THE COURSE OF A PETTY
THEFT, THE STATE SAYS WELL IT
REALLY SHOULD HAVE BEEN
ATTEMPTED ROBBERY.
I THINK THE ISSUE IS COMPLETELY
WAIVED BY THE STATE.
>> CAN YOU CLARIFY SOMETHING FOR
ME ON THE VERDICT FORM, I DON'T
THINK -- THERE HASN'T BEEN AN
ARGUMENT MADE ON THIS, JUST TO
CLARIFY, THE VERDICT, ONE OF THE
POSSIBILITIES IS DEFENDANT IS
GUILTY OF MURDER IN THE FIRST
DEGREE.
NOW NORMALLY, THAT WOULD INCLUDE
EITHER PREMEDITATED MURDER OR
FELONY MURDER.
IN THIS CASE, THE STATE I DON'T
THINK IS MAKING AN ARGUMENT THAT
IT COULD HAVE INCLUDED
PREMEDITATED MURDER, BUT DID THE
STATE NOT ARGUE AT ALL THAT THE
FIRST DEGREE MURDER COULD BE
EITHER PREMEDITATED --
>> THERE'S NO ALLEGATION OF
PREMEDICATION IN THE INDICTMENT,
SO THAT WAS NEVER IN THE CASE.
I WANT TO COME BACK TO THIS
ISSUE OF SEPARATE VERDICT.
THE TIME TO OBJECT THAT THE
VERDICTS ARE INCONSISTENT,
BECAUSE THE INTERLOCKING ELEMENT
IS MISSING, IS OF AFTER THE
VERDICT IS RETURNED.
HOW CAN YOU OBJECT DURING THE
CHARGE CONFERENCE, JUDGE, DON'T
GIVE THE SEPARATE VERDICT
INSTRUCTION, BECAUSE I THINK
THIS VERDICT IS GOING TO COME
BACK AS AN INCONSISTENT VERDICT,
HOW CAN YOU DO THAT?
THAT'S FRIVOLOUS, THAT'S
RIDICULOUS.
THE TIME AS I SAY TO OBJECT IS
AFTER THE OBJECTION WAS RAISED
AT THAT POINT AND I THINK THE
CASES THAT HOLD THAT THIS ISSUE
WAS WAIVED ARE A REFLECTION OF A
BELIEF IN THE COURTS, PRY
MEAFERL IN THE THIRD --
PRIMARILY IN THE THIRD DISTRICT,
THAT IF THE DEFENDANT IS NOT
CONVICTED OF ALL THE CHARGES FOR
WHICH THE JUDGES WOULD HAVE
VOTED HIM GUILTY IF THEY HAD
BEEN ON THE JURY, THE RESULT IS
A PARDON.
AND THE PARDON SHOULD BE LIMITED
TO THE PARDON THE JURY GAVE HIM.
WELL THE PROBLEM IS, THAT IF THE
JURY PARDZ YOU AS TO THE
INTERLOCKING CHARGE, THEN THE
PARDON THAT THE JURY GAVE YOU IS
BOTH AS TO THE ATTEMPTED ROBBERY
OR THE ROBBERY, AND THE FELL PHI
MURDER.
-- FELONY MURDER.
IN THE MCCRAY CASE, THE JUDGE
TALKS ABOUT THE DEFENDANT HAVING
HAD THE ADVERTISER IN THE MAIN
COURSE AND NOW HE WANTS COFFEE
AND DESSERT.
>> LET ME ASK YOU THIS.
IN THE CIVIL CONTEXT, I
UNDERSTAND IT'S TOTALLY
DIFFERENT, SO MAYBE YOU CAN SHED
SOME LIGHT ON IT FOR ME, THERE
ARE SOME CASES WHERE THE JURY
RETURNS A VERDICT THAT ARE NOT
CONSISTENT, AND THE COUNSEL HAS
AN OBLIGATION AT THAT POINT TO
IDENTIFY THE PROBLEM, SO THE
JUDGE CAN IDENTIFY IT FOR THE
JURY AND THE JURY CAN GO BACK
AND CORRECT IT.
SHOULD THERE BE ANY KIND OF
OBLIGATION IN THE CRIMINAL
CONTEXT, ONCE THE INCONSISTENCY
IS APPARENT IN THE VERDICT, FOR
COUNSEL TO IDENTIFY IT SO THE
JUDGE CAN INFORM THE JURY THAT
THOSE VERDICTS ARE INCONSISTENT,
THEY CAN'T RETURN THOSE VERDICTS
AND THEY MUST GO BACK AND
CORRECT IT?
>> PLEASE BE AWARE YOU'RE INTO
YOUR REBUTTAL, BUT PLEASE ANSWER
THE QUESTION.
>> I CAN'T SHED ANY LIGHT ON
WHAT THE CIVIL PRACTICE IS.
I THINK THE OBJECTION TO THIS
VERDICT WAS CALLED TO THE
COURT'S ATTENTION VERY PROMPTLY
AND THE COURT ELECTED NOT TO
SEND IT TO THE JURY.
THAT'S MY RECOLLECTION.
I MAY BE IN ERROR ON THAT.
I WANT TO ADD ONE FURTHER THING.
THE THIRD DISTRICT RELIES UPON
PITT.
IN PITTS, THE COURT
DISTINGUISHED REDONDO AND HORN
ON THE BASIS THAT THOSE COURTS
INVOLVED A CONVICTION.
NOW THE COURT IS APPLYING PITTS
TO THIS CASE, WHICH ALSO DID NOT
INVOLVE A CONVICTION.
I THINK REDONDO AND HORN ARE
CORRECT AND THEY CONTROL THIS
CASE.
>> MAY IT PLEASE THE COURT, MAW
RHEA-- TO QUALIFY AS A TRULY OR
LEGALLY INCONSISTENT VERDICT,
THE JURY'S VERDICT WOULD HAVE
HAD TO KNEE GATE ROBBERY AND
ATTEMPTED ROBBERY AS AN
UNDERLYING VERDICT.
IT WAS ADDRESSED IN THE
INDICTMENT AND IN THE JURY
INSTRUCTION --
>> BUT DOESN'T THE STATE HAVE AN
OBLIGATION, WHEN THEY'RE LOOKING
AT THE PREDICATE FELONY, IF THEY
WANT THE JURY TO DECIDE ON
ATTEMPTED ROBBERY, TO ASK FOR
THAT?
THE JURY HERE MADE A SPECIFIC
FINDING -- THEY WENT THROUGH
SEVERAL LESSERS AND GOT TO PETTY
THEFT.
I AM VERY CONCERNED THAT WITH
THE STATE NOT ASKING FOR
ATTEMPTED ROBBERY, THAT SOMEHOW
WE WOULD SPECULATE THAT THEY, ON
ANOTHER CHARGE, WHICH WAS RISING
OUT OF THE IDENTICAL FACTS, THAT
THEY MUST HAVE FOUND ATTEMPTED
ROBBERY ON THAT, WHEN THE STATE
HASN'T ASKED FOR IT.
>> WELL, YOUR HONOR, I WOULD GO
BACK TO ONE OF THE POINTS THAT
YOU MADE EARLIER WITH REGARDS TO
WELL, SHOULD THE JURY HAVE
CONSIDERED THIS INDEPENDENT
COUNT ONE VERSUS COUNT TWO AND
NEITHER ONE IMPACTING UPON THE
OTHER, OR SHOULD THE JURY HAVE
BEEN TOLD, START WITH COUNT TWO,
WHICH IS YOUR FELONIES, AND IF
YOU REACH TO THAT POINT, THEN
YOU CAN CONSIDER THE FELONY
MURDER.
WELL, THIS WAS NOT DONE HERE
BECAUSE THE JURY WAS INSTRUCTED
TO CONSIDER COUNT ONE SEPARATE
AND APART FROM TWO.
>> THE PROBLEM IS I THINK WE
HAVE THESE STANDARD JURY
INSTRUCTIONS THAT HAVE BEEN IN
EFFECT SINCE 1981, AND THE
STANDARD JURY INSTRUCTION
COMMITTEE FROM MY POINT OF VIEW
AFTER THIS CASE, THEY'VE GOT TO
ADDRESS THIS ISSUE, BECAUSE THIS
SHOULD NOT, YOU KNOW, THE STATE,
THE DEFENSE, THE TRIAL COURTS
OUGHT TO, YOU KNOW, ESPECIALLY
WITH JUDGE HARRIS' OPINION SINCE
1999, SHOULD HAVE IN THIS CASE,
COME UP WITH A SPECIAL
INSTRUCTION.
THAT WASN'T DONE.
GIVEN THAT IT WASN'T DONE, I
DON'T SEE HOW UNDER OUR CASE
LAW, BECAUSE WE'RE HERE ON
CONFLICT, HOW WE DISTINGUISH THE
CASES THAT SAY THAT THESE ARE
TRULY INCONSISTENT VERDICTS.
>> WELL, THE SITUATION IN MAHAN
IS DISTINGUISHABLE FROM THE
SITUATION IN THIS SPECIFIC CASE.
IN MAHAN, THE JURY WAS GIVEN THE
OPTION TO CONVICT OR ACQUIT THE
DEFENDANT TORE ATTEMPTED
AGGRAVATED CHILD ABUSE AND THE
JURY DID THAT.
THEY ACQUITTED AS --
>> I GUESS THIS IS REALLY WHERE
YOU GET INTO THE ARGUMENT.
>> EXACTLY.
>> WHICH IS YOUR TAKE ON THIS,
WHICH I UNDERSTAND YOU HAVE TO
MAKE, WHICH IS WHEN THE JURY
FINDS AFFIRM AFFIRMATIVELY PETTY THEFT,
THAT TO ME IS AN ACQUITTAL OF
ANYTHING THAT IS HIGHER THAN
THAT, EVEN IF IT WASN'T
SPECIFICALLY INSTRUCTED ON.
THAT JUST SEEMS LOGICAL.
>> BUT AGAIN, THE JURY IS NOT
TOLD TO CONSIDER COUNTS ONE AND
COUNTS TWO TOGETHER.
>> LET ME -- DON'T WE HAVE A
CASE OR TWO OUT THERE THAT SAYS
THAT A PERSON CAN BE CONVICTED
OF FELONY MURDER WITHOUT THERE
BEING A CONVICTION OF THE
UNDERLYING FELONY?
>> AM I AWARE OF --
>> OF A CASE THAT SAYS THAT?
A CASE THAT SAYS THAT THERE
DOESN'T HAVE TO BE A
DETERMINATION BY THE JURY OF
ROBBERY OR ARSON OR ONE OF THE
ENUMERATED FELONIES IN ORDER FOR
THERE TO BE A FELONY MURDER
CONVICTION?
>> I AM NOT AWARE OF THAT, YOUR
HONOR.
BUT I WOULD SAY THAT IN THIS
PARTICULAR SITUATION, WE DON'T
JUST HAVE THE JURY BLINDLY
LOOKING AT THIS.
THEY WERE THERE, THEY SAT
THROUGH THE EVIDENCE, THEY SAT
THROUGH THE CONFESSION OF THE
DEFENDANT.
WHERE HE TALKS ABOUT HIS ROLE IN
THE ATTEMPTED ROBBERY.
HE DOESN'T ADMIT TO BEING PART
OF THE COMPLETED ROBBERY.
WE HAVE THE SITUATION OF THE
WALLET BEING FOUND IN A DUMPSTER
AND HIS FINGERPRINTS ARE NOT ON
IT, BUT HE CLEARLY TALKS ABOUT
WHAT HIS PARTICIPATION WAS IN
THIS CRIME.
AND THE JURY WAS TOLD, DURING
THE READING OF THE JURY
INSTRUCTIONS WITH REGARDS TO
FELONY MURDER, THAT ONE OF THE
WAYS THAT YOU MAY CONVICT A
DEFENDANT IS IF THE DEATH
OCCURRED AS A CONSEQUENCE OF THE
DEFENDANT'S ATTEMPT TO COMMIT A
ROBBERY.
>> WOULD YOU AGREE THAT THE
SEPARATE ATTEMPT INSTRUCTION WAS
NOT GIVEN?
>> OH, YES, YOUR HONOR.
IT'S CLEARLY STATED IN THE
RECORD.
WE HAVE THE DEFINITION, BUT WE
DO HAVE IT AS PART OF COUNT ONE.
>> RIGHT.
>> BUT IT WASN'T GIVEN AS TO
COUNT TWO.
>> AS TO COUNT TWO.
>> WHY NOT?
WHY SHOULDN'T THAT BE THE
STATE'S RESPONSIBILITY TO ENSURE
THAT -- WHY SHOULDN'T WE PUT THE
BURDEN ON THE STATE TO REQUEST
THAT INSTRUCTION?
IT'S A CATEGORY TWO INSTRUCTION,
IT'S NOT MANDATORY TO THE TRIAL
JUDGE.
IT'S THE STATE'S CASE, THE STATE
CHARGED IT, IT WAS CLEAR THAT
THEY WERE SEEKING IT IN COUNT
ONE.
WHY NOT REQUIRE THE STATE TO DO
IT AS TO COUNT TWO?
>> AGAIN, IT SHOULD HAVE BEEN
DONE, BUT IT WASN'T DONE.
>> AND ESPECIALLY IF THE JURY
COMES BACK HERE AND ASKS A
QUESTION, WE NEED THE DEFINITION
OF ROBBERY AS A LESSER INCLUDE
PETTY THEFT, SO THERE WAS EVEN
OPPORTUNITY AT THAT TIME FOR THE
STATE TO RECOGNIZE.
>> TO RECOGNIZE AND TO LET THE
JURY KNOW THAT OH, THERE'S MORE
HERE, BUT THEN WE COME ALSO TO
THE POINT OF JUSTICE CANTERO AS
TO WHETHER, ONCE THAT VERDICT
CAM BACK, AND THE DEFENSE IS NOW
CLAIMING THAT THIS IS AN
INCONSISTENT VERDICT, SHOULDN'T
THE JURY THEN AT THAT POINT HAVE
BEEN GIVEN THE BETTER
INSTRUCTIONS TO RELY UPON?
>> WHY SHOULDN'T WE PLACE THAT
BURDEN ON THE STATE INSTEAD OF
THE DEFENDANT?
THE STATE TO RECOGNIZE THAT
THERE IS AN INCONSISTENT VERDICT
AND SAY OOPS, WE NEED TO CORRECT
THIS?
>> I CAN UNDERSTAND PLACING THE
BURDEN ON THE STATE WHEN WE'RE
TALKING ABOUT THE JURY
INSTRUCTIONS BEING GIVEN TO THE
JURY, PRIOR TO THE JURY RETIRING
TO DELIBERATE.
WHEN THE JURY COMES BACK WITH
ITS FINDING, WITH ITS DECISION,
I THINK BOTH THE DEFENSE AND THE
STATE ARE IN EQUAL POSITION TO
OBJECT AND TO TRY TO GET THE
JURY TO CONSIDER --
>> WHY WOULD THE DEFENDANT DO
THAT?
I MEAN, THE DEFENDANT -- WHY
WOULD A DEFENDANT DO THAT, WHEN
WE HAVE CASE LAW ABOUT
INCONSISTENT VERDICTS AND IF HE
CAN DEMONSTRATE THAT, AS IN THIS
CASE, THERE WAS NO UNDERLYING
FELONY CONVICTION, WHY WOULD THE
DEFENDANT THEN STAND UP AND SAY
THIS IS INCONSISTENT, YOU NEED
TO REINSTRUCT THE JURY?
>> WELL THAT'S PRECISELY THE
POINT.
THE DEFENDANT IN THIS CASE
RECEIVES A BENEFIT FROM THE
JURY'S FINDINGS.
THE JURY ACQUITS AS TO ROBBERY,
ONLY FINDING HIM GUILTY OF PETTY
THEFT.
THE JURY DOES NOT KNOW THAT THIS
IS SIMI A MISDEMEANOR, DOES NOT
RISE TO THE LEVEL OF FELONY,
IT'S NOT PART OF THE JURY
INSTRUCTION.
>> IN A CRIMINAL PROSECUTION
BEINGS THE BURDEN IS ON THE
STATE, AND SO WHY SHOULD THE
DEFENDANT THEN, WHEN YOU GET AN
INCONSISTENT VERDICT OR WHAT
THEY MAY PERCEIVE TO BE A
CONSISTENT VERDICT, WHY SHOULD
THE DEFENDANT THEN STEP FORWARD
TO HELP THE STATE OUT?
>> IN THIS CASE, WHERE THE
DEFENDANT IS ALLEGING THAT
THERE'S AN ERROR, WHICH WOULD
RESULT IN THE DEFENDANT'S
ACQUITTAL OF THE FELONY MURDER,
THEN YES, THERE'S A BURDEN TO
SAY YES, WE OBJECT.
WE WANT TO HAVE THE JURY COME
BACK AND RECONSIDER THIS.
>> WHAT INTEREST DOES THE STATE
HAVE IN TRYING TO UPHOLD A
CONVICTION FOR FIRST DEGREE
FELONY MURDER WHEN A JURY HAS
FOUND THAT THE PREDICATE OFFENSE
IS A MISDEMEANOR AND THEREFORE
THAT THE DEFENDANT IS NOT GUILTY
OF FELONY MURDER?
WHAT INTEREST DOES THE STATE
HAVE FOR OPPOSING THE FINDING OF
THE JURY THAT THIS WAS A
MISDEMEANOR, ESPECIALLY IF YOUR
OPPONENT IS CORRECT, AND THAT IS
THAT THE STATE JUST GENERALLY
ARGUED THIS THING TO THE JURY,
THAT THE DEFENDANT IS -- IF
SOMEBODY IS KILLED WHILE A CRIME
IS COMMITTED, THAT THAT'S A
FELONY MURDER AND YOU SHOULD
FIND HIM GUILTY?
BUT WHY, NOW THAT THE JURY HAS
FOUND THAT THIS DEFENDANT IS
ONLY GUILTY OF A MISDEMEANOR, AS
FAR AS ANY KIND CONCEPT OF
FELONY MURDER, YOU AGREE THAT IF
THEY FIND THAT IT'S NOT A
FELONY, THERE IS NO FELONY, THAT
HE COULDN'T N FOUND GUILTY OF
FELONY MURDER, SO I'M HAVING
DIFFICULTY WITH WHAT INTEREST
THE STATE HAS, NOW THAT THE JURY
HAS FOUND THIS DEFENDANT ONLY
GUILTY OF A MISDEMEANOR, WHY THE
STATE SHOULD CONTINUE TO
ADVOCATE THAT HE SHOULD BE FOUND
GUILTY OF FELONY MURDER?
WHAT INTEREST DOES THE STATE
HAVE IN THAT?
>> I WOULD BEGIN BY SAYING THAT
THE JURY DID NOT FIND THAT PETTY
THEFT WAS A MISDEMEANOR, IT WAS
SIMPLY ONE OF THE OPTIONS
PRESENTED TO THEM.
>> ISN'T THIS THE SAME CROIM
THAT WE'RE TALKING ABOUT, THAT
THE STATE WAS TRYING TO ARGUE,
TO GET A CONVICTION FOR FELONY
MURDER, IS THAT NOT CORRECT?
>> WELL, THE STATE IN CLOSING
ARGUMENT TOLD THE JURY, YOU CAN
FIND THE DEFENDANT GUILTY IF,
ONE, HE COMPLETED THE ROBBERY,
OR TWO, IF HE ATTEMPTED THE
ROBBERY.
SO IT WASN'T A GENERAL ARGUMENT
THAT WAS PRESENTED TO THE JURY.
THIS IS QUITE SPECIFIC.
>> BUT YOU AGREE THAT IF THE
DEFENDANT ONLY COMMITTED A
MISDEMEANOR, A PETTY THEFT, THAT
HE CAN'T BE CONVICTED OF FELONY
MURDER?
DO YOU NOT AGREE WITH THAT?
>> YOU I WOULD AGREE WITH THAT, BUT
I WOULD ALSO POINT OUT TO THE
COURT THAT THE JURY WAS NOT
ASKED TO CONSIDER THE CASE ON
THAT BASIS, THEY WERE NOT ASKED
WHETHER OR NOT THERE WAS A
FELONY AND THEN DECIDE WHETHER
THERE WAS A FELONY MURDER.
THEY WERE ASKED TO CONSIDER
COUNT ONE SEPARATE, APART FROM
COUNT TWO.
>> IT WAS BOILER PLATE ANYWAY.
>> CAN YOU TELL ME IN THIS CASE,
MR. HEIMLICH'S RECOLLECTION WAS
HAZY ON THE EXACT OBJECTION THAT
WAS MADE, IF ANY, AFTER THE
VERDICT CAME IN, WHETHER THE
DEFENDANT RAISED AN OBJECTION
SAYING IT WAS INCONSISTENT AND
WHAT THE JUDGE DID OR REFUSED TO
DO TO RECTIFY ANY INCONSISTENCY?
>> I BELIEVE THAT AFTER THE JURY
WAS DISMISSED, WE HAVE THE
DEFENSE COUNSEL COMING FORWARD
AND SAYING, WELL, WE WANT TO
FILE AN OBJECTION, WE WANT TO
MOVE WITH REGARD TO AN
INCONSISTENT VERDICT, AND THEY
ASKED FOR 10 DAYS TO DO THAT.
>> THERE WAS NOTHING OBJECTED TO
BEFORE THE JURY WAS DISMISSED?
>> I DON'T BELIEVE SO, YOUR
HONOR.
>> AND THAT'S WHERE --
>> I DON'T HAVE THAT PART OF THE
TRANSCRIPT WITH ME.
>> I'M WONDERING WHY SHOULD WE
NOT REQUIRE THE DEFENDANT TO
OBJECT, IF THE DEFENDANT IS
GOING TO THEN APPEAL ON THE
BASIS OF THE INCONSISTENT
VERDICTS, WHY, AT LEAST AT THAT
POINT, IF WE'RE NOT GOING TO SAY
IT'S A WAIVER BY ACQUIESCING TO
INSTRUCTION 3.12, AT LEAST AT
THE TIME WHEN THE INCONSISTENT
VERDICTS ARE RETURNED, THE
DEFENDANT DOESN'T HAVE AN
OBLIGATION TO RAISE AN OBJECTION
AT THAT POINT, SO THE JURY CAN
BE INSTRUCTED THAT THEY CAN'T
RULE THE WAY THEY DID, IS THERE
ANY CONSTITUTIONAL IMPEDIMENT TO
INSTRUCT BEING THE JURY THAT
THEY HAVE TO GO BACK AND THAT
THOSE VERDICTS CANNOT BE
RENDERED THE WAY THEY DID?
>> I DON'T BELIEVE WE HAVE A
SITUATION WHERE THE JURY CANNOT
RECEIVE ADDITIONAL INSTRUCTION
AND THEN BE ASKED TO CONSIDER
ITS VERDICT ON THE BASIS OF
ADDITIONAL INSTRUCTION.
ESPECIALLY IF IT'S GOING TO
RESULT IN CLARITY FOR THE JURY
TO HAVE GUIDELINES BEFORE THEM
AS THEY MAKE THEIR DECISIONS.
>> ARE THERE OTHER SITUATIONS IN
THE CRIMINAL LAW, I'M NOT
FAMILIAR WITH ANYWHERE, A JURY
COMES BACK WITH A VERDICT OR
VERDICTS IN THE CASE AND THE
JUDGE SAYS, GO BACK AND
DELIBERATE, YOU KNOW, YOU CAN'T
HAVE THESE VERDICTS --
>> I'M NOT AWARE OF A JURY
COMING BACK AND THE COURT
SENDING THEM BACK TO CONTINUE
DELIBERATION UNTIL YOU'RE
TALKING ABOUT AN ALLEN CHARGE,
WHERE THE JURY COMES ALONG AND
SAYS WELL, WE'RE DEADLOCKED, AND
WE CAN'T COME TO A DECISION AND
THE JUDGE GOES AHEAD AND SAYS
WELL, GIVE IT SOME MORE TIME.
CONTINUE WITH YOUR
DELIBERATIONS.
>> I'M TRYING TO THINK OF --
WITH JUSTICE JUSTICE CANTERO, MY
RECOLLECTION IN THE CIVIL ARENA
IS WE MAKE A DISTINCTION BETWEEN
FACTUAL INCONSISTENCY AND LEGAL
INCONSISTENCY, ABOUT WHEN YOU
HAVE TO OBJECT, BUT MY CONCERN
IN THIS SITUATION ABOUT AT WHAT
POINT THERE NEEDS TO BE
OBJECTION, AND IT MAYBE IT GOES
BACK TO WHOSE RESPONSIBILITY IT
IS, THE JURY -- THE CHARGES TO
THESE JURIES, THE INSTRUCTIONS
TO THE JURY, WERE REALLY
CONFUSING.
THEY DIDN'T HELP THE JURY TO
MAKE A LEGALLY CONSISTENT
VERDICT.
AND IT JUST SEEMS TO ME THAT THE
STATE HAS THAT RESPONSIBILITY,
THAT IS, TO HAVE EXPLAINED THAT
PETTY THEFT IS A MISDEMEANOR,
THAT THAT COULD NOT BE A
PREDICATE FOR THE FELONY MURDER
CHARGE, TO EXPLAIN THAT THOSE
CHARGES WERE INTERLOCKING, AND
I'M NOT SURE HERE WHERE THE
STATE DOES NOTHING, BURR AGREES,
DOESN'T ASK FOR ATTEMPTED
MURDER, WHY WE SHOULD GIVE ALL
THE BENEFIT TO THE STATE WHEN
THE JURY HAS CLEARLY FOUND THIS
DEFENDANT GUILTY OF ONLY A
MISDEMEANOR?
>> AND I COME BACK TO THE POINT
THAT IS STICKING WITH YOU, WHICH
IS WITH REGARDS TO THE JURY WAS
ASKED TO CONSIDER EACH OF THESE
COUNTS SEPARATELY.
THEY WERE NOT TOLD COUNT TWO
PRECEDES COUNT NUMBER ONE.
IF YOU CAN'T COME TO THE POINT
THAT THIS IS A FELONY, THEN YOU
CANNOT FIND THE DEFENDANT GUILTY
OF THE FELONY MURDER.
>> BUT THOSE WERE LEGALLY INCON
CORRECT, BASED ON OUR LAW,
BECAUSE THESE WERE INTERLOCKING
CHARGES.
THE PROBLEM THAT I SEE IS 3.12A
IS REALLY INCORRECT, AS AN
INSTRUCTION, WHEN IT IS DEALING
WITH INTERLOCKING CHARGES.
AND I THINK AGAIN, IT'S
SOMETHING THAT WE'RE ALL
RESPONSIBLE FOR, BECAUSE WE'VE
KNOWN THIS FOR YEARS, AND NOBODY
HAS DONE ANYTHING ABOUT IT,
EITHER THE STATE OR THE
DEFENDANT.
YOU SEE THIS UNFORTUNATELY FROM
TIME TO TIME WITH JURY
INSTRUCTIONS, THIS HAS TO BE
REMEDIED FOR THE FUTURE.
THE QUESTION NOW WHO GETS THE
BENEFIT OF THE EITHER THE
DEFENDANT BENEFIT FROM THIS OR
IS THERE REALLY ENOUGH TO SAY
THERE'S A WAIVER AND THAT'S I
GUESS WHAT WE'RE STRUGGLING
WITH.
>> AND I UNDERSTAND THAT, BUT IN
THIS PARTICULAR SITUATION, IT'S
A SITUATION WHERE THE JURY HAD
EVIDENCE BEFORE THEM, THEY WERE
TOLD IN THE INDICTMENT, THEY
WOULD TOLD UNDER COUNT ONE OF
THE JURY INSTRUCTIONS, THAT AN
ATTEMPTED ROBBERY WOULD ALSO
RESULT IN A CONVICTION FOR THE
MURDER CHARGE.
THE FINDING OF GUILT AS TO PETTY
THEFT DID NOT NEGATE THE
ATTEMPTED ROBBERY.
>> YOU COULD HAVE WAIVED THAT
WHOLE COUNT AND SAID WE'RE JUST
GOING ON THE FELONY MURDER
COUNT, CORRECT?
>> IF WE HAD DONE THAT, I
CERTAINLY WOULDN'T BE HERE RIGHT
NOW.
>> THEREIN LIES THE PROBLEM.
AND THAT IS THAT WE'VE GOT ONE
SET OF EVIDENCE, AND IF YOU WILL
ASSUME WITH ME THAT WE DO HAVE A
CASE OR TWO OUT THERE THAT SAYS
THAT A PERSON CAN BE CONVICTED
OF FELONY MURDER WITHOUT THERE
BEING A SIMULTANEOUS CONVICTION
OF AN ENUMERATED FELONY IF THE
EVIDENCE IN THE RECORD SUPPORTS
ONE OF THE EVE NUMBER RATED
FELONIES, -- ENUMERATED
FELONIES, BUT HERE WE DON'T HAVE
THAT SITUATION.
WE HAVE A SITUATION IN WHICH
THERE IS A SPECIFIC FINDING OF
NOT A FELONY, BUT OF A LESSER
INCLUDED OVER FENCE.
-- OFFENSE.
ISN'T THAT THE PROBLEM?
>> THAT IS THE PROBLEM, BUT
AGAIN, IT'S A SITUATION WHERE
THE FINDING OF THE CONVICTION OF
THE PETTY THEFT DOES NOT NEGATE
THE ATTEMPTED ROBBERY AND THE
JURY WAS NOT GIVEN THAT
OPPORTUNITY TO MAKE THAT
SPECIFIC FINDING AS THE JURY DID
IN M HA HAN AND AS ARGUABLY THE
WAS ABLE TO DO IN REDONDO.
>> IF IN THIS CASE THE VERDICT
FORM HAD SAID FELONY MURDER, BY
ARMED ROBBERY, FELONY MURDER BY
ATTEMPTED ROBBERY, FELONY
MURDER, ALL THE PURE MUTATIONS
OF ROBBERY AND THE JURY HAD IN
FACT FOUND THE DEFENDANT GUILTY
OF FELONY MURDER BY ATTEMPTED
ROBBERY, AND THEN IN THE SECOND
COUNT THEY HAD FOUND THE
DEFENDANT GUILTY AS THEY DID
HERE OF PETTY THEFT, WOULD THE
FELONY MURDER CONVICTION BE ABLE
TO STAND IN THE FACE OF THE
MISDEMEANOR CONVICTION?
>> I BELIEVE SO, YOUR HONOR, IF
YOU HAVE THE SITUATION OF THE
JURY BEING TOLD COUNT ONE MUST
BE CONSIDERED SEPARATE AND APART
FROM COUNT TWO.
AND ALSO, IF YOU HAVE --
>> HOW ABOUT IF YOU DIDN'T HAVE
THAT INSTRUCTION?
>> WHERE THE JURY IS TOLD, WELL,
WITHOUT A FELONY CONVICTION, THE
UNDERLYING FELONY --
>> IF THE JURY IS TOLD
EVERYTHING THEY'VE BEEN TOLD IN
THIS CASE, EXCEPT THE
INSTRUCTION ABOUT CONSIDERING
THESE SEPARATELY AND THERE HAD
BEEN A SPECIAL VERDICT FORM,
THEY HAD FOUND HIM GUILTY OF
FELONY MURDER BY ATTEMPTED
ROBBERY, AND CONVICTED HIM OF
PETTY THEFT, COULD BOTH OF THOSE
VERDICTS STILL STAND?
>> I WOULD HAVE TO SAY THAT YES,
IF YOU HAVE THE EVIDENCE TO
SUPPORT THE ATTEMPTED ROBBERY IN
THAT PARTICULAR SITUATION.
THE PETTY --
>> DOES THE ANSWER TO THE
QUESTION DEPEND ON, IN COUNT
TWO, WHETHER THE VERDICT FORM
INCLUDES A LINE FOR ATTEMPTED
ROBBERY OR NOT?
>> WELL, THAT'S WHAT I WAS GOING
TO GET AT, IS IF YOU WOULD HAVE
THE PETTY THEFT AND YOU HAVE A
SITUATION OF THAT NEGATING THE
ATTEMPTED ROBBERY, THEN CLEARLY
THERE'S --
>> THERE'S A LESSER INCLUDED
OFFENSE, DOES IN FACT NEGATE
ATTEMPTED ROBBERY?
IT SEEMS TO ME, IF YOU ARE
CHARGED WITH ROBBERY AND YOU
HAVE ALL THE LESSER INCLUDED
OFFENSES INDICATED AND THE JURY
PICKS THE PETTY THEFT, THEY SAID
YOU ARE NOT GUILTY OF ROBBERY,
WITH A FIREARM, ROBBERY WITHOUT
A FIREARM, ATTEMPTED ROBBERY,
ALL THOSE THINGS?
>> IF THAT WERE THE SITUATION,
YOU COULD -- ANOTHER THING WAS
THE JURY EXERCISING ITS
PARDONING POWER TO SAY YES,
GUILTY OF THE FELONY MURDER ON
THE BASIS OF ATTEMPTED ROBBERY
BUT AS TO THE ROBBERY CHARGE
ITSELF, WE WILL FIND THAT FOR
EXAMPLE, NO, YOU DIDN'T STEAL --
GENTLEMAN.
>> THAT'S NOT MUCH OF A PARDON
GIVEN THE DIFFERENT SENTENCES.
>> IT MAY NOT BE, BUT IT'S THERE
FOR THE JURY TO DECIDE.
>> WHAT IS THE DEFENDANT'S
SENTENCE?
>> I DON'T KNOW THAT HE HAS BEEN
SENTENCED.
DOES THIS COURT HAVE ANY OTHER
QUESTIONS FOR THE STATE?
>> NO, THANK YOU.
>> IF I MAY PLEASE SUM UP.
IN THIS PARTICULAR SITUATION,
AGAIN, THE JURY WAS TOLD TO
CONSIDER COUNT ONE, COUNT TWO
SEPARATE AND APART FROM EACH
OTHER.
THE JURY DID NOT HAVE THE
OPPORTUNITY TO REJECT ATTEMPTED
ROBBERY AS THE UNDERLYING FELONY
OFFENSE.
THE TWO VERDICTS IN THIS
SITUATION CAN BE LOGICALLY
FILED.
THE STATE ASKED THE OPINION OF
THE THIRD DISTRICT COURT BE
AFFIRMED.
THANK YOU.
>> THANK YOU.
REBUTTAL?
>> IN MY REMAINING NINE SECONDS,
I HAVE ONLY THREE POINTS.
THE FIRST IS THAT THE ATTEMPTED
ROBBERY IS NEGATIVE BY THE
VERDICT FOR PETTY THEFT BECAUSE
PETTY THEFT AND ATTEMPTED
ROBBERIES ARE BOTH LESSERS OF
THE ARMED ROBBERY THAT WAS
CHARGED AND IT'S FUNDAMENTAL
THAT YOU CAN'T BE CONVICTED OF
TWO LESSORS.
THIS IS A TWO COUNT INDICTMENT.
ACCORDING TO THE STATE, THE
DEFENDANT HAS BEEN CONVICTED AN
A TWO COUNT INDICTMENT OF THREE
OFFENSES, FELONY MURDER,
ATTEMPTED ROBBERY AND PETTY
THEFT.
THAT CAN'T BE.
>> WELL IN THE SITUATION THAT I
POSTITED, WHERE THESE FOUND
GUILTY OF FELONY MURDER BY
ATTEMPTED ROBBERY AND THEN FOUND
GUILTY OF THE PETTY THEFT, THEN
DO YOU JUST NOT FIND HIM GUILTY
AND NOT SENTENCE HIM ON THE
PETTY THEFT?
>> THE FINDING OF PETTY THEFT IS
INCONSISTENT WITH THE FINDING OF
ATTEMPTED ROBBERY ON THE FIRST
COUNT, BECAUSE THEY'RE TWO
LESSERS OF THE ROBBERY THAT'S
CHARGED AND YOU CAN'T BE
CONVICTED OF TWO LESSERS.
>> WHAT IF UNDER COUNT TWO THEY
DIDN'T INCLUDE A LINE FOR
ATTEMPTED ROBBERY?
>> IT DOESN'T MATTER.
HE'S CHARGED WITH ATTEMPTED
ROBBERY.
HE'S CHARGED WITH ARMED ROBBERY.
ATTEMPTED ROBBERY AND PETTY
THEFT ARE TWO LESSERS.
>> BUT THE JURY DOESN'T KNOW
THAT.
>> HE CAN BE CONVICTED ONE OR
THE OTHER BUT NOT BOTH.
>> THE JURY DOESN'T KNOW THE
LEGAL EASE.
ALL THEY KNOW IS ON COUNT ONE,
THEY THOUGHT HE WAS GUILTY OF
ATTEMPTED ROBBERY, SO THEY FOUND
FELONY MURDER BY ATTEMPTED
ROBBERY, BUT ON COUNT TWO, THEY
DIDN'T HAVE A CHOICE OF
ATTEMPTED ROBBERY, SO THEY TOOK
PETTY THEFT.
>> THAT'S EXACTLY WHY THE
SEPARATE VERDICT INSTRUCTION
DOESN'T WAIVE THE POINT.
THE JURY'S JOB IS NOT TO RETURN
SEPARATE VERDICTS, CONSISTENT
VERDICTS.
THE JURY IS NOT INSTRUCTED --
>> DOESN'T THERE HAVE TO BE --
>> THE CONSISTENCY OF THE
VERDICT IS FOR THE COURT.
>> ONCE THERE ARE INCONSISTENT
VERDICTS AN YOU HAVE AN
APPEALABLE ISSUE, DON'T YOU HAVE
TO AT LEAST OBJECT SO THAT THAT
CAN BE CORRECTED BEFORE YOU
HAVE --
>> I WANT TO COME TO THAT.
I LOOKED IT UP WHILE MY
COLLEAGUE WAS TALKING.
THE VERDICT IS RETURNED ON PAGE
757 OF THE TRANSCRIPT, THE JURY
HAS BEEN TOLD, AFTER THE JURY --
THE JURY IS POLLED, AFTER THE
JURY IS POLLED, THE COURT
DISCHARGED THEM, THE JURY LEAVES
THE COURTROOM, THE COURT SAYS
MR. BROWN I ADJUDICATE YOU AND
THE DEFENSE COUNSEL SAYS WE NEED
A HEARING POSTPONED SO I CAN
LOOK AT SOME LAW, JUDGE.
I DON'T THINK THAT PETTY THEFT
CAN BE A BASIS FOR FELONY
MURDER.
>> THAT'S MY POINT.
LET ME ASK YOU THIS.
THAT'S MY POINT.
IN ORDER TO PRESERVE AN
OBJECTION, THE WHOLE POINT OF IT
IS SO THAT THE ERROR CAN BE
CORRECTED.
ONCE THE JURY IS DISCHARGED, THE
ERROR CAN NO LONGER BE
CORRECTED, DOESN'T THE DEFENDANT
HAVE AN OBLIGATION TO OBJECT
BEFORE THE JURY IS DISCHARGE SO
THAT THE TRIAL COURT CAN
INSTRUCT THE JURY THAT THEY
CANNOT RENDER THOSE TWO VOARDZ VERDICTS
AND THEY GO BACK AND CORRECT IT?
>> THE ANSWER TO YOUR QUESTION,
YOUR HONOR, IS YOU'RE ASKING ME
TO ADDRESS A QUESTION THAT WAS
NOT RAISED.
IT WAS NOT RAISED IN THE TRIAL
COURT, NOT RAISED IN THE
APPELLATE COURT, IT'S NOT RAISED
IN THE BRIEFS IN THIS CASE.
>> ONE SECOND.
WOULD YOU PLEASE ANSWER JUSTICE
CANTERO'S QUESTION, BECAUSE IN
THE CIVIL LAW, IT'S VERY CLEAR
THAT YOU MUST OBJECT BEFORE THE
JURY IS DISCHARGED TO PRESERVE
THAT ERROR.
I UNDERSTAND YOUR POSITION THAT
IT'S NOT RAISED BUT COULD YOU
PLEASE ANSWER HIS QUESTION IS
THERE A DIFFERENCE IN THE
CRIMINAL LAW AND THE CIVIL LAW.
>> I THINK THERE SHOULD BE.
>> AND WOULD YOU EXPLAIN TO HIM
WHY?
>> I THINK THERE SHOULD BE A
DIFNS BECAUSE I THINK THAT THE
CONSIDERATIONS THAT ARE
IMPLICATED HERE HAVE TO DO WITH
DOUBLE JEOPARDY, AND DOUBLE
JEOPARDY WOULD NOT PERMIT THE
STATE TO CONVICT THE DEFENDANT
OF TWO LESSERS OF THE SAME
OFFENSE.
DOUBLE JEOPARDY, AS I RECALL, IS
FUNDAMENTAL ERROR, NOT REQUIRED
TO BE RAISED BY OBJECTION.
SO I WOULD -- IF I WERE
RESEARCHING THIS ISSUE, I WOULD
LOOK FOR LAW SAYING THAT THE
DEFENDANT'S CONVICTION FOR TWO
LESSORS CAN'T STAND EVEN IF HE
DIDN'T MAKE AN OK AT ALL.
>> THANK YOU VERY MUCH.
WITH OUR HELP, YOU HAVE
EXHAUSTED YOUR TIME.
WE THANK YOU BOTH FOR YOUR
PRESENTATIONS THIS MORNING.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE COURT WILL TAKE ITS MORNING
RECESS BEFORE OUR FINAL CASE.
>> PLEASE RISE.