IN THE SUPREME COURT OF FLORIDA
__________________________________________________________________
CASE NO. SC06-2290
L.T. CASE NO. 4D04-4705
__________________________________________________________________
RAY BALTHAZAR,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_____________________________________________________________
RESPONDENT’S ANSWER BRIEF ON THE MERITS
_____________________________________________________________
ON DISCRETIONARY REVIEW FROM THE
FOURTH DISTRICT COURT OF APPEAL
_____________________________________________________________
BILL McCOLLUM
ATTORNEY GENERAL
Tallahassee, Florida
CELIA TERENZIO
BUREAU CHIEF, West Palm Beach
Florida Bar Number: 0656879
MONIQUE E. L’ITALIEN
Assistant Attorney General
Florida Bar Number: 0458198
1515 North Flagler Drive, Suite 900
West Palm Beach, Florida 33401
561-837-5000
Counsel for Respondent
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
THE USE OF THE “AND/OR” CONJUNCTION
BETWEEN THE NAMES OF THE CO-DEFENDANTS
IN THE JURY INSTRUCTIONS ON THE
SUBSTANTIVE CRIMES DID NOT CONSTITUTE
FUNDAMENTAL ERROR; EVEN IF IT WAS ERROR,
IN LIGHT OF THE STANDARD PRINCIPALS
INSTRUCTION, MULITPLE DEFENDANTS
INSTRUCTION, AND THE EVIDENCE SUCH
ERROR WAS HARMLESS.
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ii
TABLE OF AUTHORITIES
CASES
Cabrera v. State, 890 So. 2d 506 (Fla. 2d DCA 2005) .................................... 2, 32
Castor v. State, 365 So. 2d 701 (Fla.1978).........................................................17
Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003)..................................32
Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001)...........................................33
Davis v. State, 922 So. 2d 279 (Fla. 1st DCA 2006) ....................................... 2, 33
Dorsett v. McRay, 901 So. 2d 225 (Fla. 3d DCA 2005) ......................................33
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).........21
Floyd v. State, 850 So. 2d 383 (Fla.2002) ..........................................................18
Garzon v. State, 937 So. 2d 278 (Fla. 4th DCA 2006).....................2, 19, 20, 21, 26
Grant v. State, 738 So. 2d 1020 (Fla. 4th DCA 1999).........................................21
Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371
(1991) ..............................................................................................................21
Martinez v. State, 413 So. 2d 439 (Fla. 3d DCA 1982) .......................................26
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489
(1946) ..............................................................................................................26
San Martin v. State, 717 So. 2d 462 (Fla. 1998) .................................................21
Sochor v. Florida, 504 U.S. 527, 112 S. Ct. 2114, 119 L. Ed. 2d 326 (1992) .......21
State v. Delva, 575 So. 2d 643 (Fla.1991).....................................................17, 18
Sutton v. State, 718 So. 2d 215 (Fla. 1st DCA 1998)...........................................20
iii
Williams v. State, 774 So. 2d 841 (Fla. 4th DCA 2000) ......................................33
Zeno v. State, 910 So. 2d 394 (Fla. 2d DCA 2005)......................................... 2, 14
MISCELLANEOUS
Fla. Std. Jury Instr. (Crim.) 3.5(a) .......................................................................4
1
PRELIMINARY STATEMENT
Petitioner was the defendant and Respondent was the prosecution in the
Criminal Division of the Circuit Court of the Seventeenth Judicial Circuit, in and
for Broward County. On appeal to the Fourth District Court of Appeal, Petitioner
was the Appellant and Respondent was the Appellee. In this brief, the parties will
be referred to as they appear before this court, except that Respondent may also be
referred to as “the State.”
The following references will be used in this brief:
(IB) Petitioner’s Initial Brief on the Merits
(T. __ ) Trial Transcript (The Transcript Number refers to the Volume
Number on the outermost cover, not the inside cover.
(R. __ ) Record on Appeal
2
STATEMENT OF THE CASE AND FACTS
Respondent accepts Petitioner’s Statement of the Case and Facts subject to
the additions and clarifications set forth below and in the argument portion of this
brief which are necessary to resolve the legal issues presented upon appeal. In
addition, Respondent relies upon those facts set forth in the opinion of the Fourth
District Court of Appeal (“Fourth District”) in the instant case, Garzon v. State,
937 So. 2d 278 (Fla. 4th DCA 2006). (Appendix A)
This case is before the Court pursuant to conflict certified by the Fourth
District. In Garzon, the Fourth District certified direct conflict with Cabrera v.
State, 890 So.2d 506 (Fla. 2d DCA 2005), and Zeno v. State, 910 So. 2d 394 (Fla.
2d DCA 2005) and conflict with Davis v. State, 922 So.2d 279 (Fla. 1
st
DCA 2006)
based on its reliance on Zeno. This Court has deferred jurisdiction and asked the
parties to brief the issue on the merits.
1
The pertinent facts are as follows:
Maria Azzarone, the housekeeper of Sandra and Michael Smith, testified
that on June 4, 2003, she was trying to open the Smith’s door when a man with a
gun came up behind her and pushed her through the door. (T9, 1006/7) Sandra
Smith was in the kitchen in front of her. (T9, 1007/22-23) As this man grabbed
Ms. Azzarone by the neck and put a gun to her head, another man came through
1
Respondent has filed its Answer Brief on the Merits with regard to one of
Petitioner’s co-defendants, Zamir Garzon, in the companion case traveling under
the same case number.
3
the door and immediately took Sandra Smith to another room. (T9, 1007/24-
1008/2, 1009/8-9) Both men had guns. (T9, 1066/15-22) Ms. Azzarone did not
see the second man, because she was facing away from the door. (T9, 1011/14-21)
The first man pushed Ms. Azzarone into another area where he made her lay face
down on the floor. (T9, 1008/25-1009/1)
1
This man also found the Smith’s
daughter, Jamie, in an adjacent room and forced her at gunpoint to lay down beside
Ms. Azzarone. (T9, 1009/23-1010/15). He covered Ms. Azzarone’s head, but she
could hear this man ask Jamie about her brother. Ms. Azzarone never told him
that Jamie had a brother. (T9, 1010/17-23)
Subsequently, the second man brought Sandra Smith back to the kitchen.
(T9, 1011/11) All three ladies were told to sit in chairs, and Ms. Azzarone was
allowed to uncover her head; however, she could not see the two men because they
then were both wearing masks. (T9, 1012/11-17) She recalled the men telling
Sandra Smith that she was lying about not having any money in the house, and that
if she did not tell them where it was they would burn Jamie on the stove. (T9,
1013/20-1014/4) After that, one man took Sandra Smith to her bedroom where he
found a briefcase with something in it. (T9, 1014/10-14) After that, the men were
1
On cross-examination, when confronted with her deposition Ms. Azzarone
appeared to say that it was the first man that grabbed her who then took Sandra
Smith to another room (T8, 1040/20-1041/12); however, she also indicated that she
did not know whether this first man was wearing a mask at the time, because she
was focused on the gun (T8, 1038/3-19).
4
talking about having followed the Smith family to the mall and a restaurant. (T9,
1014/15-20) Before the men left, they tied up the victims and told them not to
move. (T9, 1017/18-25)
Sandra Smith (the mother) testified that on the day of the incident at about
8:30 a.m., she was standing in the kitchen/dining area heading toward Jamie’s
room to get her up for school when she heard Ms. Azzarone’s (Betty) key in the
door. (T12, 1296, 1299/25) She looked up and Ms. Azzarone was fighting to get
the door shut because a man with a ski mask was forcing his way through the door.
(T12, 1300/3-8, 20). He got in and forced Ms. Azzarone to the ground, while
another man charged at her. (T12, 1300/10-15) The second man who charged at
her did not have a mask on at the time. (T12, 1300/22-23) The second man
grabbed her, put a gun to the back of her head, asked her if she wanted to die, and
said, “Let’s get to the safe.” (T12, 1301/9-1303/15) She did not take him to the
safe, because essentially he carried her there. (T12, 1303/16-24) He knew where
the safe was located. (T12, 1385/22-1386/21) The safe was in a concealed
hallway behind a false wall that looked like bookshelves. (T12, 1303/25-1304/23)
He told her to open the safe, but she indicated that she could not because in
addition to the keypad the safe also required a key, which was located in her
bathroom. (T12, 1305/11-1306/3) The man took her to get the key, returned to the
safe, and then she opened the safe. (T12, 1306/7-12) All this time, this man was
5
still not wearing a mask. (T12, 1306/12) He took from the safe several Rolex
watches worth three to four thousand dollars and jewelry worth in excess of one
hundred fifty thousand dollars. (T12, 1307/23-1309/20) As she started to get the
jewelry from the safe, as instructed, this man finally put on a mask. (T12, 1310/5-
11) He also took the Rolex and jewelry that she was wearing. (T12, 1310/19-23)
She asked if she could keep her wedding ring. (T12, 1311/10) As this was
happening, the man was speaking on a cell phone and “asked” into the phone that
Mrs. Smith wanted to keep her wedding ring. (T12, 1311/5-12) She surmised that
the person he was speaking to must have had a response, because this man then
told her that she was not allowed to keep the ring because her husband was
f*****g another woman in the Dominican Republic and he did not deserve for her
to wear it. (T12, 1311/12-23) She recalled that this individual was on and off the
cell phone during the entire episode. (T12, 1312/18-22) This individual then took
her back to the front of the house. (T11, 1312/24) She saw her daughter Jamie and
Maria on the floor and the other man standing over them with a gun. (T12,
1313/2-12) The man that was with her started telling them that they had followed
her and Jamie during the end of May when they went to the Coral Square Mall and
then to meet her husband at the Big Bear Brewing Company. (T12, 1313/20-
1314/20) He also kept asking her where the cash was, and when she said that she
had none he asked if she had an iron and then said to turn on the stove threatening
6
to burn her daughter’s beautiful ass unless she told him where the cash was. (T12,
1314/22-1315/4) She watched as her stove got red heating up. (T12, 1315/5-8)
Then he took her to her bedroom where he found a briefcase containing thirteen
thousand dollars in cash and a check. (T12, 1315/14-22, 1354/7) Mrs. Smith
identified Petitioner as the man who had her. (T12, 1332/6-1333/10) She testified
that she will never forget his face. (T12, 1333/13) She also identified Charly
Coles as the man who had her daughter. (T12, 1335/9-21) She explained that the
mask that Charly Coles wore had one wide opening around his nose and eyes.
(T12, 1329/20-24, 1404/4-6)
2
She also identified Petitioner as a man who had, on
several occasions, been in her home in Pompano (prior to the incident). (T12,
1336/7-1337/21)
Jamie Smith (the daughter) testified that on the morning of the incident she
was awakened by her mother’s screams. (T12, 1263/6-15) She peeked out her
bedroom door and saw someone holding her mother. (T12, 1263/22-1264/10)
Then her dog pushed her door open, and a man with a mask on and holding a gun
followed the dog into her bedroom and ordered her to go to the kitchen and lay
face down with Ms. Azzarone. (T12, 1263/4-1267/124) She only saw this one
2
Gun shop salesperson Alfredo Nunez testified that on February 22, 2003,
Charly Coles bought two handguns and a shotgun (T13, 1534/21-1536/10). During
the transaction, Mr. Coles gave him Ray Balthazar’s bail bond business card (T13,
1541).
7
man when she was taken into the kitchen, because by then her mother had already
been taken away. (T12, 1268/12-22) The man put a pillowcase over her head.
(T12, 1268/2) When her mother returned to the kitchen, the men started calling
her mother a liar about having said there was no money in the home, because
Jamie had indicated that there was. (T12, 1269/1-12) Some time thereafter, the
two men removed her pillowcase. (T11, 1270/2-11) They kept asking if there was
money in the house, and saying things about her father and why they were there.
(T12, 1271/23-25) They indicated that her father was in the habit of screwing
people over. (T12, 1272/6-9, 1289/22-1290/3) They also indicated that they saw
her and her mother at the mall and then go meet her father at Big Bear Restaurant.
(T12, 1272/24-1273/1) They also indicated that if they burned her butt her mother
would give them the money. (T12, 1273/22-1274/5) She never saw the
perpetrators’ faces, because they wore masks. (T12, 1277/8-10) The man who was
with her mother had a mask on when she took off her pillowcase and saw him.
(T12, 1291/16-21)
Michael Smith (the father) was not at home at the time of this incident.
(T11, 1186/5-8) He admitted to having an extramarital affair with a woman in the
Dominican Republic named Maria Perez. (T11, 1168/23-1169/2, 1181/22-1182/4)
He identified co-defendant Garzon as a man he was introduced to named Mario,
who was associated with John Cruz and who had worked in his homes in
8
Kissimmee and Pompano. (T11, 1175/9-1177/1, 1255/3-15) They built the false
wall for the safe in his home. (T11, 1226/17-20, 1241/10-12) Garzon was in his
home under this false identity numerous times. (T11, 1256/12-15)
Detective Leitner testified that on June 19, 2003, he processed a 1997 Honda
Civic with Florida paper tag with number U37-MLU. (T13, 1471-1474) He lifted
latent prints from the interior passenger window of this vehicle. (T13, 1478-1479)
Latent examiner, Robert Holbrook, testified that four of these prints belonged to
Petitioner and one of the prints belonged to Charly Coles. (T12, 1506-1507)
Detective Cordero explained that this car was green in color and belonged to
Charly Coles. (T13, 1519-1527) Defense counsel elicited from Deputy Seaman
on cross-examination that he reported that the suspects departed in a green Honda
accord. (T14, 1636/9-12) Angela Kim Strothman, a neighbor of the Smiths,
testified that on June 4, 2003, between 5:30 a.m. to 8:45 a.m. she observed, several
different times, a suspicious dark green two-door Honda in the neighborhood,
which had dark tint, a small dent in the rear bumper, and license tag U37-MLU.
(T15, 1727-1750)
Verizon Wireless employee James Jones testified that Suzan Garzon had two
cell phones activated on December 6, 2002, with phone numbers (786) 512-7774
9
and (786) 512-6840. (T14, 1575-1576)
3
In regard to number (786) 512-6840, her
records indicated that on June 4, 2003 an incoming call which lasted 39 minutes
was received on this phone at 8:34 a.m. from a phone in Pompano Beach.
4
(T14,
1585-1588) Verizon Wireless employee Thomas Daly testified that this call was
made by (954) 257-2977 (Petitioner’s cell phone) (T17, 2063)
Cingular Wireless employee Peter Mills testified that company records for
phone number (954) 257-2977 (Petitioner’s phone) showed that on June 4, 2003,
the user of that phone was in Miami at 2:53 a.m. (T18, 2099). At 5:15 a.m., 5:38
a.m., 5:39 a.m., and 5:40 a.m., the user of this phone called (786) 512-6840
(Petitioner’s phone). (T18, 2101-2102) At 5:47 a.m. and 7:19 a.m., the user of
this phone called (305) 761-7955 (Coles phone).
5
(T18, 2102) At 8:35 a.m., when
the user of this phone called (786) 512-6480 (Petitioner’s phone), he was in the
area of the Smith home. (T18, 2108)
Bail bondsman Shawn Fernandez testified that Petitioner (T14, 1564) cell
phone number was (786) 355-9986 and before that it was (954) 257-2977 (T14,
3
Co-defendant Garzon’s probation officer (proffered T14, 1597), Sandra
Schadlbauer, testified that Garzon told her he could be contacted at (786) 512-7774
and then at (786) 512-6840 beginning June 3, 2003 (T14, 1609-1610).
4
The Smith residence, which is the crime scene in this matter, is located in
Pompano Beach (T11, 1293/8-12).
5
Crystal Lee Danko, records custodian for Sprint, testified regarding cell
phone records for phone number 305/761-7955 in the name of Jocelyn Coles at
7132 S.W. 154
th
Court in Miami (T8, 979/22-981/7).
1567/22-25).
6
Cingular Wireless employee Jorge Mori testified that number (954)
257-2977 was activated on April 9, 2003, was listed in the name of Alkhalb
Balthazar, and that on June 4, 2003, at 8:35 a.m. this phone made a call to phone
number (786) 512-6840 which lasted 39 minutes (T14, 1620-1624)
Best Bail Bonds employee Nidia Diaz testified about the relationship
between Petitioner and a man named Sammy. (T15, 1693-1698, 1703-1710)
Howard Elliott, a former employee of Best Bail Bonds, testified that Garzon is a
friend of his, and that Garzon is also known as Sammy. (T16, 1825-1826) He also
explained how Garzon and Petitioner could have known each other and recalled
Garzon’s cell phone number as (786) 512-6840. (T16, 1827-1837) Steven Mejia
testified that he has known Garzon for several years, that he knows Garzon as both
Zamir and Sam, and that Grazon’s cell phone numbers were (786) 512-6840 and
(786) 512-4414 (T16, 1850-1854).
7
Detective Pugliese testified that Garzon lived at 4955 N.W. 199
th
Street in
Miami; Petitioner lived at Sunset Manor Apartments, at 7500 S.W. 59
th
Place in
6
Nidia Diaz also testified that Ray Balthazar’s cell phone number is (954)
257-2977) (T14, 1697/11).
7
Mr. Mejia first testified that the area code was “305"; however, his memory
was refreshed and he recalled that the correct area code was “786" (T16, 1853/8-
12).
Miami (T16, 1886/24-1887/23); and Charly Coles lived at 7132 S.W. 154
th
Court
in Miami. (T16, 1877/11-1878/1)
Verizon Wireless employee Thomas Daly testified that company records for
phone number (786) 512-6840 showed that on June 4, 2003, the user of that phone
was in Miami at 5:14 a.m., Coconut Creek at 7:12 a.m., in Pompano Beach at 8:34
a.m., back in Coconut Creek at 9:20 a.m., back in Coral Springs at 9:26 a.m., in
Davie at 9:44 a.m., and back in Miami at 10:41 a.m. (T16, 2040-2052). At 9:44
a.m., this phone dialed (954) 257-2977.
8
(T17, 2052/1-2)
Doris Jean Smith (the grandmother) testified that on March 22, 2003 (T8,
830), two men, who she could not identify, forced themselves into her son Michael
Smith’s home, (T8, 828-837) One went to the office in the house, while the other
dragged her into a bedroom. (T8, 838/11) One individual had on a sock cap. (T8,
840/6) and threatened her with a gun. (T8, 845/18-25) He also said to her that her
son is nothing but a crook (T8, 847/18-20) and wanted to know when her daughter
was coming home. (T8, 850/21) She believed that he was also talking on a cell
phone, because she heard him say, “this ain’t the motherf*****g way it’s supposed
to be” and “where are you, are you in the middle of the street.” (T8, 848/13-22)
He also asked her where the safe was. (T8, 846/9) She testified that although the
perpetrators did not know where the safe was, they did know how to get in there.
8
Petitioner’s phone number.
(T8, 895/22-23) Since she could not open the safe, these individuals removed the
safe which was in a closet behind the stereo equipment
9
but for some reason had to
leave it behind at the entrance to the house. (T7, 846-850, 863/4-13) Mrs. Smith’s
testimony is a little vague as to the final location of the safe, but Detective Way
clearly indicated that the safe was left lying on the floor inside the entrance to the
front door. (T8, 935/24-25)
Kerry Smith (the son) testified that on March 21, 2003, Petitioner and
Charlie Coles attempted to abduct him. (T6, 739-768) Petitioner was driving a red
Explorer (T6, 741/10) and was using a cell phone. (T6, 744/12-747/7) Mr. Smith
testified that neither man was wearing a mask. (T7, 804/8-9)
Eyewitness Lorenzo Clark testified that on March 21, 2003 (T9, 1072/13-
16), he witnessed the above incident involving Kerry Smith. (T9. 1075-1080) He
believed that the perpetrator’s vehicle was a red Expedition. (T9, 1076-1077) He
also noticed that there was a passenger in the red vehicle. (T9, 1079) He recalled
that both perpetrators were wearing some sort of mask. (T9, 1089/23-1090/7) He
did get a portion of the red vehicle’s tag number but did not recall what it was in
court. (T9, 1080/3-7, 1081/4-8); however, at the time of the incident he did relate
this information to a deputy. (T9, 1081/12-20)
9
Detective Way testified that there was a second safe behind a bookcase
(T10, 951/12-18).
Joseph Schloten testified that he owned the Sunset Manor apartment
complex where Petitioner lived. (T8, 904-905) Petitioner’s rental application (T8,
905/18-22) dated February 23, 2003 (T8, 907/6), reflected a cell phone for
Petitioner as 786/234-5880.
10
(T8, 911/17-912/3). It also reflected that Petitioner
drove a red Ford Explorer. (T8, 912/12-16) Eugene Bauden managed this
complex. (T8, 915/7-14) He testified that Petitioner told him that he was a bounty
hunter and bail bondsman. (T8, 917/6-7) He also knew that Petitioner drove a red
Ford Explorer. (T8, 918/21) Bail bondsman Shawn Fernandez testified that he
also knew that Petitioner drove a red Ford Expedition. (T13, 1568/15-16) Pierre
Carrie testified that on February 23, 2002, he transferred title to a red Ford
Explorer to Petitioner. (T14, 1-17)
Having previously provided all counsel with a packet of instructions, the
court asked all the lawyers if they had reviewed the instructions and whether they
had any objections. The prosecutor and all defense counsel indicated that nothing
in the instructions needed to be changed. (T19, 2344) The trial court instructed
the jury on criminal conspiracy, armed burglary, robbery with a firearm, armed
kidnapping, extortion, principals, and multiple defendants. (T20, 2364) Petitioner
10
Metro PCS employee Jannan Chandler testified that phone number (786)
234-5880 was in the name of Jovan Erick, and that it was terminated on May 5,
2003 (T15, 1664-1665). The last outgoing call on this phone was on April 5, 2003
(T15, 1666/9-12).
did not object after the jury was instructed. (T20, 2368) Additionally, the jury was
provided with separate verdict forms for each defendant. (R. 103-109; T20, 2364-
2366) The jury returned verdicts of guilty as to all counts as charged in the
information. (T21, 2385-2387)
SUMMARY OF THE ARGUMENT
The use of "and/or" between the names of the co-defendants in the
substantive jury instructions was not objected to by Petitioner. Following the
unobjected-to instructions on the substantive charges, the trial court also gave the
standard “principal” instruction and instruction on multiple defendants. In light of
the undisputed applicability of the standard jury instruction on “principals” and the
well-settled legal principles governing conspiracy prosecutions, Respondent
submits that the unobjected-to jury instructions did not constitute fundamental
error. Rather, the additional jury instructions on principals and multiple
defendants, the argument of counsel, the evidence presented, and the
individualized verdict forms, placed the “and/or” language in the proper context.
Under these circumstances, the Fourth District Court of Appeal was correct and
any error was harmless.
ARGUMENT
THE USE OF THE “AND/OR” CONJUNCTION
BETWEEN THE NAMES OF THE CO-DEFENDANTS
IN THE JURY INSTRUCTIONS ON THE
SUBSTANTIVE CRIMES DID NOT CONSTITUTE
FUNDAMENTAL ERROR; EVEN IF IT WAS ERROR,
IN LIGHT OF THE STANDARD PRINCIPALS
INSTRUCTION, MULITPLE DEFENDANTS
INSTRUCTION, AND THE EVIDENCE SUCH
ERROR WAS HARMLESS.
In this case, Petitioner and his two co-defendants were tried before a single
jury for criminal conspiracy, armed burglary, robbery, armed kidnapping, and
extortion. The jury instructions on all substantive offenses utilized an “and/or”
conjunctive/disjunctive between the names of the co-defendants immediately
followed by the standard instruction on principals and multiple defendants.
Petitioner did not object to any of the jury instructions. (T19, 2344; T20, 2364)
Whereas co-defendant Garzon was acquitted of the extortion count, Petitioner was
convicted on all counts as charged in the information.
On appeal, the Fourth District concluded that the use of the conjunction
“and/or” in the jury instructions between the names of the co-defendants was not
fundamental error. Rather, analyzed in the context of the entire trial, the error, if
any, would be considered harmless. The Fourth District also noted that even had
the defense made the proper objection, it still would not find reversible error.
Consequently, the Fourth District certified direct conflict with cases out of the First
and Second District Courts of Appeal. Respondent urges this Court to affirm the
Fourth District’s analysis and ultimate conclusion.
It appears to be Petitioner’s contention that the use of the “and/or”
conjunction is fundamental error because of the risk a jury may convict one
defendant based solely on the conclusion that a co-defendant satisfied the elements
of the offense. (IB 15, 16)
While Petitioner argues fundamental error based on the mere use of "and/or"
in the jury instructions, he does not mention or dispute the State's theory of the
case, facts, or other jury instructions and verdict forms. Petitioner merely claims
the error is not cured by the jury instructions on multiple defendants and principals.
(IB 16-17) This argument essentially portrays the issue as one of law only,
whereas the discernment of fundamental error must be made in the context of the
entire trial.
This court has held that jury instructions are subject to the contemporaneous
objection rule. See State v. Delva, 575 So.2d 643 (Fla.1991). The requirement of
a contemporaneous objection to preserve an issue for appeal “is based on practical
necessity and basic fairness in the operation of a judicial system. It places the trial
judge on notice that error may have been committed, and provides him an
opportunity to correct it at an early stage of the proceedings.” Castor v. State, 365
So.2d 701, 703 (Fla.1978). As the Fourth District pointed out in its opinion below,
in Delva, this Court took a contextual approach when it considered whether
fundamental error occurred because the trial court failed to properly instruct the
jury on an element of trafficking in cocaine, i.e., whether the defendant knew the
substance he possessed was cocaine. Id. at 644. Although this Court found that
the jury instruction was erroneous, it nonetheless held the error was not
fundamental, because the defense at trial was that the defendant “did not know the
package of cocaine was even in his car,” not that the defendant “knew of the
existence of the package[, but] did not know what it contained.” Id. at 645. This
Court concluded that “[b]ecause knowledge that the substance in the package was
cocaine was not at issue as a defense, the failure to instruct the jury on that element
of the crime could not be fundamental error and could only be preserved for appeal
by a proper objection.” Id.
This Court utilized a similar contextual approach to fundamental error
analysis in Floyd v. State, 850 So.2d 383, 403 (Fla.2002). In Floyd, this Court
held that an erroneous, incomplete instruction in the penalty phase of a capital case
was not fundamental error, in part because the defense attorney's closing argument
“fully present[ed] and discuss[ed]” those mitigation factors that had been omitted
from the court's instructions. Id. at 403.
Applying that approach to the case at bar, the “and/or” jury instructions,
examined in the context of the other jury instructions, the attorneys' arguments, and
the evidence, show that if error, it is harmless under the facts of this case.
Principals Instruction
In the trial below, after charging the jury on all of the substantive crimes, the
trial court read the standard charge on principals. See Fla. Std. Jury Instr. (Crim.)
3.5(a),
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.
(T20, 2359) In light of the evidence in this case, this standard principals
instruction without “and/or”, placed all the other instructions in the proper context.
Garzon at 284. This instruction explained that Petitioner was responsible for the
criminal acts of a co-defendant 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, Petitioner could lawfully
have been found guilty of crimes that one co-defendant or both committed in the
house.
Presumably aligning himself with Judge Klein’s dissent, Petitioner suggests
that because the principals instruction was given after all the “and/or” instructions,
the jury could have concluded Petitioner was guilty because of the conduct of his
co-defendant before it considered the instruction on principals. (IB at 16)
However, as the Fourth District stated,
“A possibility of what the jury “could” do in response to
a jury instruction is not the stuff of fundamental error.
The law presumes that the jury has followed all of the
trial court's instructions, in the absence of evidence to the
contrary.” See Sutton v. State, 718 So.2d 215, 216 n. 1
(Fla. 1st DCA 1998).
Garzon, 939 So.2d at 285.
Further, Petitioner contends that based on the general verdict form, it is
possible the jury based its verdict on the alleged “and/or” instructions. (IB 18)
Obviously, Respondent disagrees the “and/or” instructions are invalid. Regardless
however, this Court should not presume that the resulting general verdict rested on
this alleged infirm ground and must be set aside,
While a general guilty verdict must be set aside
where the conviction may have rested on an
unconstitutional ground or a legally inadequate theory,
reversal is not warranted where the general verdict could
have rested upon a theory of liability without adequate
evidentiary support when there was an alternative theory
of guilt for which the evidence was sufficient.
See San Martin v. State, 717 So. 2d 462, 470 (Fla. 1998) citing Griffin v. United
States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). It is a well
established principle that a jury is unlikely to disregard a theory flawed in law, but
it is likely to disregard an option simply unsupported by the evidence. See also
Sochor v. Florida, 504 U.S. 527, 538, 112 S.Ct. 2114, 2122, 119 L.Ed.2d 326
(1992). In making his argument (IB 18), Petitioner omits a critical portion of the
statement made by the Supreme Court in Griffin wherein it explained this
distinction,
Jurors are not generally equipped to determine whether a
particular theory of conviction submitted to them is
contrary to law--whether, for example, the action in
question is protected by the Constitution, is time barred,
or fails to come within the statutory definition of the
crime. When, therefore, jurors have been left the option
of relying upon a legally inadequate theory, three is no
reason to think that their own intelligence and expertise
will have them from that error. Quite the opposite is true,
however, when they have been left the option of relying
upon a factually inadequate theory, since jurors are well
equipped to analyze the evidence, see Duncan v.
Louisiana, 391 U.S. 145, 157 [88 S.Ct. 1444, 20 L.Ed.2d
491] (1968).
And, as stated in Garzon,
‘Jurors are not potted plants.’ Grant v. State, 738 So.2d
1020, 1022 (Fla. 4th DCA 1999). It is more likely that
they would resist the notion of the principals charge
rather than blindly convict defendant A for defendant B's
conduct, without proof of defendant A's culpability. It is
a stretch for the average juror to believe that someone not
present at the scene of a crime is as culpable as the
defendant who actually committed the criminal acts.
This is why prosecutors spend time in voir dire and
closing argument discussing the principals charge.
Id.
Multiple Defendants Instructions
As stated previously, Petitioner contends the “error is not cured by virtue of
the fact that the trial judge gave the jury the multiple counts, multiple defendants
instruction. . . .” (IB 15) Respondent could not disagree more. The particular
instruction reads as follows,
A separate crime is charged against each defendant in
each count of the information. The defendants have been
tried together, however the charges against each
defendant and the evidence applicable to him must be
considered separately. A finding of guilty or not guilty
as to one or some of the defendants must not affect your
verdict as to any other defendants or other crimes
charged.
(T20, 2364; R. 97) Again, referencing the ability of jurors to properly apply the
facts, Respondent submits this instruction would have further aided the jury in
resolving any confusion allegedly brought about by the “and/or” in the substantive
instructions.
Evidence
Vastly different from the facts surrounding his co-defendant Garzon, the
testimony and evidence put Petitioner and the other co-defendant Coles in the
Smith home on the day of these offenses. So clearly, there is nothing that Garzon
or Coles did or could have done which would have resulted in Petitioner’s
wrongful conviction as a result of the “and/or” conjunction, any error in giving this
instruction was harmless as to Petitioner.
Specifically, in regard to the charge of armed burglary, the uncontradicted
evidence shows that two individuals, identified as Petitioner and Coles (identity
only was placed at issue), both forcibly entered the Smith home while armed. The
evidence also shows that they both demanded money. Therefore, the evidence
shows that both individuals, identified as Petitioner and Coles, committed each
element of armed burglary.
1
As to the charge of robbery of Sandra Smith with a firearm, the
uncontradicted evidence shows that one of the two armed individuals, identified as
1
The elements of armed burglary are that the defendant(s) 1) entered or
remained in a structure owned by or in the possession of Sandra Smith; 2) did not
have the permission or consent of Sandra Smith or anyone authorized to act for her
to enter or remain in the structure at the time; 3) at the time of entering or
remaining in the structure, defendant(s) had a fully formed, conscious intent to
commit the offense of grand theft and/or robbery in that structure; and 4) in the
course of committing the burglary the defendant(s) were armed or armed
themselves with explosives or a dangerous weapon (T20, 2352/6-2354/14).
Petitioner, took the jewelry and money from Mrs. Smith while using force,
violence, assault or putting in fear. Therefore, the evidence shows that one
individual, identified as Petitioner, committed each element of the robbery of
Sandra Smith.
2
With regard to the charge of kidnapping of Sandra Smith with a firearm, the
uncontradicted evidence shows that one of the two armed individuals, identified as
Petitioner, literally picked Sandra Smith up and took her to the safe to get the
contents. Then he took her to her bathroom, to get the key, and back to the safe.
Then he took her to the kitchen, to her bedroom to get the cash, and back to the
kitchen. Therefore, the evidence shows that Petitioner committed each element of
the kidnapping of Sandra Smith.
3
The evidence as to the charge of criminal conspiracy to commit robbery with
a firearm and/or the armed burglary of a dwelling (the Smith home) shows that
2
The elements of robbery with a firearm are 1) defendant took the jewelry
and United States currency from the person or custody of Sandra Smith; 2) force,
violence, assault or putting in fear was used in the course of the taking; 3) the
property taken was of some value; 4) the taking was with the intent to permanently
or temporarily deprive Sandra Smith of her right to the property or any benefit
from it; and 5) in the course of committing the robbery defendant(s) carried a
firearm (T20, 2355/22-2357/18).
3
The elements of kidnapping are 1) defendant forcibly, secretly or by threat
confined, abducted or imprisoned the victim against his or her will; 2) without
lawful authority; and 3) acting with the intent to commit or facilitate the
commission of robbery (T20, 2358/1-18) .
both Petitioner and Coles forced their way into the Smith home while armed and
demanded money. Clearly, the evidence supports Petitioner’s charge of a
conspiracy.
5
On the charge of extortion of Sandra Smith, the uncontradicted evidence
shows that it was Petitioner who threatened to burn Jamie Smith on the stove
unless Sandra Smith showed him where the money was. Thus Petitioner committed
each element of the extortion of Sandra Smith.
4
Finally, in regard to the charges of kidnapping of Maria Azzarone and Jaime
Smith with a firearm, although the uncontradicted evidence shows that only one
individual, Charly Coles, physically forced Maria Azzarone from the kitchen into
the dining area and forced Jaime Smith from her bedroom into the dining area, this
is of no import as Petitioner was present.
It is well settled that a co-conspirator generally is criminally responsible for
a crime committed in pursuance of the common purpose or which results as a
5
The elements of conspiracy are 1) the intent of the defendant was that the
offense of armed robbery or armed burglary of a dwelling would be committed;
and 2) in order to carry out the intent the defendant agreed, conspired, combined or
confederated with his co-defendants to cause either the offense of armed robbery
or armed burglary to be committed either by all of them or one of them or by some
other person (T20, 2351/8-18).
4
The elements of extortion are 1) defendant maliciously threatened by verbal
communication to cause injury to the person of another, to wit Jamie Smith; and 2)
with the intent to compel any other person, to wit Sandra Smith, to do any act or
refrain from doing any act against her will (T20, 2358/19-2359/1).
natural and probable consequence of the conspiracy. “This is so even if the
criminal act was not intended as part of the original design or the co-conspirator
did not participate in the act.” Martinez v. State, 413 So. 2d 439 (Fla. 3d DCA
1982), citing Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L.Ed
1489 (1946).
Respondent submits in light of all of the jury instructions provided the jury,
and this evidence, the jury could reasonably have concluded that not only was
Petitioner physically present, but he was instrumental in committing each of these
offenses. It simply does not bear out that the jury could have found Petitioner
guilty based on a finding that another co-defendant committed some of the
elements of a particular offense, while he or the third co-defendant committed the
rest of the elements of that offense.
Although the facts surrounding the phone calls between Garzon and
Petitioner are not as critical here as they are to the discussion of Garzon’s
involvement, it is valuable to outline those details.
As the Fourth District so aptly pointed out below,
With respect to Garzon, 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.
Garzon at 284. According to the State’s evidence, Verizon Wireless employee
James Jones testified that Suzan Garzon had two cell phones activated on
December 6, 2002, with phone numbers (786) 512-7774 and (786) 512-6840 (T14,
1575-1576). Garzon’s probation officer (proffered T14, 1597), Sandra
Schadlbauer, testified that Garzon told her that he could be contacted at (786) 512-
7774 and then at (786) 512-6840 beginning June 3, 2003 (T14, 1609-1610). In
regard to number (786) 512-6840, her records indicate that on June 4, 2003 an
incoming call which lasted 39 minutes was received on this phone at 8:34 a.m.
from a phone in Pompano Beach. The Smith residence was located in Pompano
Beach. (T14, 1585-1588). Verizon Wireless employee Thomas Daly testified that
this call was made by (954) 257-2977 (Petitioner’s cell phone) (T17, 2063).
Cingular Wireless employee Peter Mills testified that company records for phone
number (954) 257-2977 (Petitioner’s phone) show that on June 4, 2003, the user of
that phone was in Miami at 2:53 a.m. (T18, 2099). At 5:15 a.m., 5:38 a.m., 5:39
a.m., and 5:40 a.m., the user of this phone called (786) 512-6840 (Garzon’s phone)
(T18, 2101-2102). At 5:47 a.m. and 7:19 a.m., the user of this phone called (305)
761-7955 (Coles phone)
5
(T18, 2102). At 8:35 a.m., when the user of this phone
called (786) 512-6480 (Garzon’s phone), he was in the area of the Smith home
(T18, 2108). Bail bondsman Shawn Fernandez testified that Petitioner’s (T14,
1564) cell phone number was (786) 355-9986 and before that it was (954) 257-
5
Crystal Lee Danko, records custodian for Sprint, testified regarding cell
phone records for phone number 305/761-7955 in the name of Jocelyn Coles at
7132 S.W. 154
th
Court in Miami (T9, 979/22-981/7).
2977 (T14, 1567/22-25). Cingular Wireless employee Jorge Mori testified that
number (954) 257-2977 was activated on April 9, 2003, was listed in the name of
Alkhalb Balthazar, and that on June 4, 2003, at 8:35 a.m. this phone made a call to
phone number (786) 512-6840 which lasted 39 minutes (T14, 1620-1624). Best
Bail Bonds employee Nidia Diaz testified about the relationship between Petitioner
and a man named Sammy. (T15, 1693-1698, 1703-1710). Howard Elliott, a former
employee of Best Bail Bonds, testified that Garzon is a friend of his, and that
Garzon is also known as Sammy. (T16, 1825-1826). He also explained how
Garzon and Petitioner could have known each other and recalled Garzon’s cell
phone number as (786) 512-6840. (T16, 1827-1837). Steven Mejia testified that he
has known Garzon for several years, that he knows Garzon as both Zamir and Sam,
and that Garzon’s cell phone numbers were (786) 512-6840 and (786) 512-4414
(T16, 1850-1854).
Detective Pugliese testified that Garzon lived at 4955 N.W. 199
th
Street in
Miami; Petitioner lived at Sunset Manor Apartments, at 7500 S.W. 59
th
Place in
Miami (T16, 1886/24-1887/23); and Coles lived at 7132 S.W. 154
th
Court in
Miami (T16, 1877/11-1878/1).
Verizon Wireless employee Thomas Daly testified that company records for
phone number (786) 512-6840 (Garzon’s number) show that on June 4, 2003, the
user of that phone was in Miami at 5:14 a.m., Coconut Creek at 7:12 a.m., in
Pompano Beach at 8:34 a.m., back in Coconut Creek at 9:20 a.m., back in Coral
Springs at 9:26 a.m., in Davie at 9:44 a.m., and back in Miami at 10:41 a.m. (T16,
2040-2052). At 9:44 a.m., this phone (Garzon’s number) dialed (954) 257-2977
(Petitioner’s number) (T17, 2052/1-2).
Based on all of the evidence and testimony the State had put forth, it was the
inescapable conclusion that at the actual time of the offenses, Garzon was in
Pompano; that Petitioner called Garzon at or about the time he entered the Smith
residence and stayed on the phone for 39 minutes, and that Garzon was instructing
Petitioner while he and Coles were in the Smith residence. (T11, 1175/9-1177/1,
1226/17-20, 1241/10-12, 1255/3-15, 1256/12-15)
Theory of the Case
As discussed by the Fourth District below, in its closing argument, the
prosecution focused on the jury instruction on principals to emphasize Petitioner
was guilty of the crimes committed by his co-defendants. The State did not use
the “and/or” conjunctions to argue for a legally incorrect or improper theory of
guilt. The prosecutor argued:
[On June 4], there were only two people with firearms
inside the house, yet there are three people on trial
charged with the same crimes. How is that possible?
The Judge is going to read you an instruction that's titled
principals. This is your classic example of the getaway
driver being held responsible for the completed act of the
person who drives to the scene. Principals will read as
follows:
If the defendant helped another person – and this could
apply to any of the three defendants - - helped another
person or persons commit or attempt to commit a crime,
if he helped another person or person commit to commit
a crime, the defendant is a principal and must be treated
as if he had done all the things, 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, any
of those things, to either advise somebody, to assist them
in any manner, to encourage them, to cause the crime to
occur, to advise the person or other persons to actually
commit or attempt to commit the crime, and the kicker is,
to be a principal the defendant does not have to be
present when the crime is either committed or attempted.
That’s the law.
Again, this is not something I’m coming up with,
this is the law that her Honor will read you in the State of
Florida. To be a principal the person does not have to be
present when the crime is attempted or committed.
(T18, 2197-2198) (e.s.)
They’ve all been charged in all seven counts.
Under the principal instruction you’re going to get, I
submit to you all of them should be held accountable for
all of the acts that every one of them did. Even though
Zamir Garzon is not inside that house, the information he
provided, the direction he provided, via the phone
records that you have, and all the other evidence that
you’ve got, compels you to include him, compels you to
find that this guy must be treated as if he had done all the
things. . . . the other two did.
(T18, 2260) The remaining bulk of the closing argument is devoted to a discussion
of the, literally, thousands of telephone calls that transpired between the co-
defendants. (T18, 2201-2218, 2238-39, 2248-2255)
And, in Petitioner’s closing argument, defense counsel emphasized that there
was insufficient evidence reasonable doubt to conclude that Petitioner was the
person in the Smith’s home.
Accordingly, the jury was asked to determine whether factually Petitioner’s
participation could allow them to reach the conclusion that he was a principal in
the substantive crimes.
Extortion Charge
Although it may seem more applicable to co-defendant Garzon’s claim,
Respondent submits the fact that the jury only acquitted Garzon of the extortion
charge, and not Balthazar “demonstrates that it followed the law on principals and
was not misled by the “and/or” conjunction in the extortion instruction.” Id. at 285.
The extortion charge arose from Petitioner's threat to use the stove to burn
Jamie unless her mother told him where the cash was hidden in the house. (T8,
1013-1014; T11, 1314-1315). Unlike the other aspects of the encounter where
Petitioner communicated with Garzon, it was reasonable for the jury to conclude
that this threat was the spontaneous idea of Petitioner alone when faced with Mrs.
Smith’s reluctance to provide information.
Petitioner contends this is pure speculation and at best makes the instruction
on the extortion count harmless error. The flaw in Petitioner’s argument is it
supports Respondent’s suggestion that the jury factually resolved the issue and
found that on this one charge Petitioner acted solely and without direction from
Garzon.
Verdict Forms
Although not addressed by the Fourth District, it is worth noting that the
verdict forms in this case were separate and mentioned only one defendant each;
and did not use the term "and/or." Thereby lending further guidance to the jury to
properly convict each defendant under each charge.
Finally, and practically speaking, it would arguably be laborious and more
confusing to provide the jury with individualized instructions on each crime as to
each co-defendant.
Petitioner cites to several cases for the proposition that the use of “and/or”
has uniformly been held to be fundamental error. (IB 15) However, these cases can
be distinguished from the case sub judice: See e.g. Cabrera v. State, 890 So. 2d
506 (Fla. 2d DCA 2005) (Cabrera involved the named defendant and "several
codefendants," only one of which was tried with Cabrera possibly permitting an
inference that the co-defendants were not involved in every offense underlying the
alleged conspiracy and trafficking; Concepcion v. State, 857 So. 2d 299 (Fla. 5th
DCA 2003)(it does not appear that the principals instruction was given and the
opinion does not indicate how the cases were argued.); Dorsett v. McRay, 901 So.
2d 225, 226 (Fla. 3d DCA 2005) (it does not appear that the principals instruction
was given and the opinion does not indicate how the case was argued.); Davis v.
State, 804 So. 2d 400 (Fla. 4th DCA 2001)(the instruction was fundamental error
because it misstated a crucial element of the defense-it told the jury that it could
convict Mrs. Davis if “it concluded that” her husband “alone had a predisposition
to commit the crimes” and it did not involve a principals instruction that placed the
“and/or” language in the proper context.); Williams v. State, 774 So. 2d 841 (Fla.
4th DCA 2000)(the trial court erroneously charged the jury on elements of the
offense; the court incorrectly told the jury “that the evidence applicable to each
crime, and not to each defendant, must be considered separately, and the standard
principals instruction was not given).
In sum, Respondent urges this Court to affirm the Fourth District and find
that under these circumstances, the use of “and/or” in the substantive jury
instructions was not fundamental error. Viewed in the context of the entire trial
with the giving of the standard instructions on principals and multiple defendants;
the evidence; the fact that Petitioner was acquitted on one of the substantive
charges, and the use of separate verdict forms without "and/or", any error simply
did not go to the fairness or validity of the entire trial. Even if this court concludes
the use of "and/or" was erroneous, it should conclude as did the Fourth District, the
error was harmless.
CONCLUSION
WHEREFORE based on the foregoing arguments and authorities cited
herein, the State respectfully requests this Honorable Court affirm the decision of
the Fourth District Court of Appeal.
Respectfully submitted,
BILL McCOLLUM
ATTORNEY GENERAL
Tallahassee, Florida
CELIA TERENZIO
Assistant Attorney General
Bureau Chief
Florida Bar No.: 0656879
MONIQUE E. L’ITALIEN
Assistant Attorney General
Florida Bar No.: 0458198
1515 North Flagler Drive
Suite 900
West Palm Beach, FL 33401
(561) 837-5000
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of hereof has been furnished by U.S. mail
to: John Cotrone, Esquire, 509 S.E. 9
th
Street, Suite 1, Ft. Lauderdale, Florida
33316 this _____ day of _________, 2007.
MONIQUE E. L’ITALIEN
Assistant Attorney General
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief has been prepared with Times New
Roman 14 point type and complies with the font requirements of Rule 9.210.
MONIQUE E. L’ITALIEN
Assistant Attorney General