Opinion
Case No. 2D10-1708.
Opinion filed December 7, 2011.
Appeal from the Circuit Court for Hillsborough County; Emmett Lamar Battles and Chet A. Tharpe, Judges.
James Marion Moorman, Public Defender, and J.L. "Ray" LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
Heavy Patrell Shavers seeks review of his judgment and life sentence for first-degree murder and grand theft. Shavers was convicted based on evidence that, after a night of partying, he shot a drug-dealer acquaintance for the cash he was known to carry. We reverse and remand for a new trial because the jury's verdict may have rested on a legally inadequate felony murder theory. While our reversal renders the remainder of Shavers' issues moot, we write to discuss Shavers' objection to the principals jury instruction.
Shavers was indicted for first-degree premeditated murder while discharging a firearm (count one) and first-degree robbery while discharging a firearm (count two). At trial, the State pursued the theory that Shavers and several of his friends had spent a night partying at the home of the victim, a known drug dealer who carried a lot of cash. In support of this theory, the State presented the eyewitness testimony of David Peterson, a new friend of Shavers who was also partying at the home. According to Peterson, Shavers robbed the victim for his drug money and shot and killed him during the robbery. Shavers' defense was that Labronx Bailey, one of Peterson's childhood friends, was the perpetrator. In support of this defense, counsel for Shavers impeached Peterson's account of events with prior inconsistent statements and witness testimony.
Even though felony murder was not charged in the indictment, the parties agreed to a first-degree murder instruction that included both premeditated and felony murder theories. Over defense objection, the court also gave a principals instruction. The verdict form did not provide for separate findings for each theory but provided only for a general finding of guilty of first-degree murder. For purposes of the sentencing enhancement statute, the verdict form provided options for the jury to indicate whether Shavers discharged a firearm and inflicted death, discharged a firearm, possessed but did not discharge a firearm, or did not possess a firearm during the offenses.
The State is permitted to proceed on a felony murder theory when an indictment charges first-degree premeditated murder despite the lack of notice. See Hannon v. State, 941 So. 2d 1109, 1148-49 (Fla. 2006); Anderson v. State, 841 So. 2d 390, 404 (Fla. 2003); Knight v. State, 338 So. 2d 201, 204 (Fla. 1976).
See § 775.087(2), Fla. Stat. (2007).
The jury found Shavers guilty "as charged" of first-degree murder on count one but found that he did not possess a firearm. On count two, the jury found Shavers guilty of the lesser-included offense of grand theft. After the jury verdict, Shavers made a motion for judgment of acquittal in which he argued that the jury's finding that he did not possess a firearm in count one negated a finding of premeditated first-degree murder and the jury's verdict for the lesser-included offense of grand theft in count two negated a finding of felony murder. Also, because the facts did not support his guilt as a principal to first-degree murder, Shavers argued that he was entitled to acquittal on count one.
Shavers' argument is one of inconsistent verdicts. As the State points out, there are two types of inconsistent verdicts: factually inconsistent verdicts and legally inconsistent verdicts.See State v. Cappalo, 932 So. 2d 331, 334 (Fla. 2d DCA 2006). Factually inconsistent verdicts are permissible in Florida. Such "[i]nconsistent verdicts are ordinarily considered to arise from a jury's exercise of its `inherent authority to acquit' even if the facts support a conviction." Id. (quoting State v. Connelly, 748 So. 2d 248, 253 (Fla. 1999)). Thus, a jury's verdicts finding a defendant guilty of aggravated fleeing and eluding and attempted assault charges are permissible even though they are factually inconsistent with its verdicts finding the defendant not guilty by reason of insanity on other charges arising from the same incident.Id. at 335. Similarly, a jury's verdict finding a defendant guilty of introducing contraband onto the grounds of a detention facility is permissible even though the jury found the defendant not guilty of possession of the same contraband in count two. Connelly, 748 So. 2d at 252-53.
The types of inconsistent verdicts that are impermissible are legally inconsistent verdicts, which arise when a not-guilty finding on one count negates an element on another count that is necessary for conviction. Cappalo, 932 So. 2d at 334. "Inconsistent verdicts thus are impermissible `where an acquittal of the underlying felony effectively holds the defendant innocent of a greater offense involving that same felony.'" Id. (quotingGonzalez v. State, 449 So. 2d 882, 887 (Fla. 3d DCA 1984)). One example of legally inconsistent verdicts is when a jury finds a defendant guilty of possession of a firearm during the course of a felony but finds the defendant guilty only of a lesser-included misdemeanor instead of the underlying felony. Id. Another example is when the jury finds the defendant guilty of felony murder but also finds him guilty of a misdemeanor instead of the qualifying felony. Id. These types of cases "involve an offense that as a matter of law cannot be committed unless another underlying offense has also been committed. The commission of the underlying offense is a necessary element of the other offense." Id.
The jury's finding in this case that Shavers did not possess a firearm was factually inconsistent with a guilty verdict for premeditated first-degree murder based on the shooting of the victim with a firearm. However, the verdict was not legally inconsistent because the use of a firearm is not an element of premeditated murder. See § 782.04(1)(a)(1), Fla. Stat. (2007) (setting forth the elements of premeditated murder). Thus, it was not necessary for the jury to find that Shavers possessed a firearm in order for the jury to find Shavers guilty of premeditated murder.Cf. Gonzalez v. State, 440 So. 2d 514, 516 (Fla. 4th DCA 1983) (holding that jury's finding of not guilty of possession of a firearm during the commission of a felony was not legally inconsistent with its finding of guilt on the robbery with a firearm charge). If this factual inconsistency were the only error in the verdict, we would affirm.
However, in addition to the premeditated murder theory in count one, the State pursued a felony murder theory that was legally interlocking with the robbery charge in count two. The jury did not find Shavers guilty of robbery in count two but found him guilty of the lesser-included offense of grand theft. Under section 782.04(1)(a)(2), Florida Statutes (2007), robbery is a qualifying felony for the offense of felony murder but grand theft is not. Thus, to the extent the jury's verdict is based on felony murder, the verdict finding Shavers guilty of grand theft in count two is legally inconsistent with its verdict finding Shavers guilty of first-degree murder "as charged" in count one. See Brown v. State, 959 So. 2d 218, 221 (Fla. 2007) (holding that a conviction on the lesser-included charge of petit theft was legally inconsistent with a conviction for first-degree felony murder). And generally, such legally inconsistent verdicts require reversal for vacation of the felony murder conviction. See id. at 220, 223.
This case is complicated by the fact that the first-degree murder charge was presented on both theories of premeditated murder and felony murder with a general verdict form. The State argues that because the charge of premeditated murder is not legally interlocking with the robbery charge in count two, the first-degree murder conviction must stand. However, the State has failed to appreciate the rule that when a jury's general guilty verdict on one count could have been based on a legally inadequate theory, the defendant is entitled to have the general verdict vacated. See Yates v. United States, 354 U.S. 298, 312 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978); Mungin v. State, 689 So. 2d 1026, 1030 (Fla. 1995); Tricarico v. State, 711 So. 2d 624, 626 (Fla. 4th DCA 1998).
The facts of Tricarico are analogous to those in this case. In Tricarico, the State attempted to prove its first-degree murder charge on theories of both premeditated murder and felony murder. 711 So. 2d at 625. The jury convicted the defendant of first-degree murder on a general verdict form. The defendant subsequently sought postconviction relief based on his argument that the underlying charge for the felony murder theory, attempted trafficking in cocaine, was not a qualifying felony.
The State conceded the error, but the trial court determined that the error was harmless because the premeditated murder charge was supported by the evidence. Id. at 625-26. The Fourth District reversed the order based on its determination that, underYates, the conviction under the general verdict could not be sustained because one of the bases on which it rested was legally inadequate. Id. at 626. In determining that the felony murder theory was legally inadequate, the court explained that it was analogous to a nonexistent crime which the supreme court had determined was legally inadequate under Yates. The court reasoned as follows: "Although in this instance there was a crime of felony murder, that crime could not be predicated on attempted trafficking in cocaine. Hence we treat the felony murder crime used in this case as legally inadequate, like a nonexistent crime."Id. The court thus reversed the order denying postconviction relief, granted the defendant's petition alleging ineffective assistance of appellate counsel, and remanded for a new trial. Id. at 625; see also Delgado v. State, 776 So. 2d 233, 242 (Fla. 2000) (reversing and remanding for a new trial under Yates on direct appeal from a general first-degree murder verdict when the felony murder charge was legally inadequate), superseded by statute on other grounds, ch. 2001-58, § 1, at 404, Laws of Fla.
As in Tricarico, one of the bases on which Shavers' first-degree murder conviction rested was legally inadequate because felony murder cannot be predicated on the offense of grand theft. Because the jury used a general verdict form and it is impossible to tell whether it based its verdict on this legally inadequate theory, we reverse and remand for a new trial.
Our reversal renders the remainder of Shavers' arguments moot. However, we note that the principals instruction given over Shavers' objection was not supported by the evidence. As we noted previously, the State's theory was that Shavers shot the victim in the course of a robbery while witness Peterson looked on. Although there was evidence that Shavers attempted to solicit others to aid and abet his robbing the victim, there was no evidence that anyone agreed to act in concert with Shavers to commit the robbery. Shavers' defense was that Bailey shot the victim while Peterson looked on. However, there was no evidence that, even if Bailey did shoot the victim, Shavers aided or abetted him. Accordingly, the evidence did not support the principals instruction. Cf. Lovette v. State, 654 So. 2d 604, 606 (Fla. 2d DCA 1995) (holding that trial court erred in giving a principals instruction "because there was no evidence that Mr. Lovette acted in concert with anyone in committing the theft or the burglary" and "[t]he only evidence of any concerted effort would have been with respect to dealing in stolen property" after the crimes occurred);McGriff v. State, 12 So. 3d 894, 895 (Fla. 1st DCA 2009) (holding that principals instruction was improper where "there was no evidence offered that Appellant worked in conjunction with anyone else to commit the crimes" even though the testimony established that he was standing in a group when the shooting occurred).
Reversed and remanded.
CASANUEVA, J., and DAKAN, STEPHEN L., ASSOCIATE SENIOR JUDGE, Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED