RICHARD CARLTON JOHNSTON v. STATE OF FLORIDA ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD CARLTON JOHNSTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-1790
[March 1, 2023]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Sherwood Bauer, Jr., Judge; L.T. Case No.
21000174CFAXMX.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Sorraya M. Solages-
Jones, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant, Richard Carlton Johnston, timely appeals his judgment of
conviction and sentence for two counts of resisting an officer without
violence. He raises five issues: 1) whether fundamental error occurred
because the jury could have issued a non-unanimous verdict for the two
counts of resisting arrest; 2) whether fundamental error occurred because
the evidence did not show that appellant was guilty of any offense; 3)
whether cumulative error occurred in the prosecutor’s cross-examination
of appellant and closing argument, necessitating a new trial; 4) whether
fundamental error occurred because appellant was entitled to be tried
before a twelve-person jury; and 5) whether fundamental error occurred in
sentencing because the court took on the role of the prosecutor in
questioning appellant. We affirm as to all issues raised.
All of the charges brought against appellant are based on two
encounters with Martin County Sheriff deputies, both in the early morning
on February 21, 2021. He was charged with six counts—two counts of
battery on a law enforcement officer, 1 two counts of resisting an officer
with violence, 2 disorderly intoxication, and giving a false name while
arrested or detained. The State proceeded to trial on all counts except
disorderly intoxication.
The State’s case consisted of testimony from the four officers involved
in the two interactions with appellant, and pictures of appellant taken after
the altercations. The four officers’ testimony was largely consistent as to
the evening’s events.
Deputy Ardon and Deputy Elliott were called to a disturbance at a bar.
When they arrived, Deputy Ardon observed appellant walking across the
street with significant blood coming out of his nose. Appellant said he had
been punched at the bar. The deputies asked him to sit and wait for fire
rescue. Deputy Ardon asked appellant his name, and he gave a name and
date of birth which both later proved to be incorrect.
In the meantime, Deputy Elliott went to talk with the bar’s bouncer to
determine what had happened. After speaking with the bouncer and other
bar patrons, Deputy Elliott learned that appellant had been causing
problems at the bar and had been trying to fight the bouncer. Deputy
Elliott concluded that the bouncer hit appellant in an act of self-defense.
The bouncer stated that the bar wanted Deputy Elliott to issue appellant
a trespass warning.
As all of this was unfolding, fire rescue took appellant to a hospital
emergency room. The sheriff deputies received a 911 call from the ER that
a person (appellant) had run away from the hospital. A deputy who had
not been at the bar scene was the first to reach the hospital and found
appellant crouched in a fetal position down the road from the hospital.
The deputy asked appellant why he was running away from the hospital,
and appellant responded by asking the deputy why he was hitting him.
The officers from the bar incident, Deputies Ardon and Elliott, and a fourth
deputy arrived shortly thereafter.
Appellant kept asking the deputies why they were hitting him. Because
of his prior injuries as well as his bizarre behavior in contending that the
deputies were hitting him, they handcuffed him to take him back to the
hospital. At some point, the deputies recovered appellant’s wallet and
1 Count I was for battery on Deputy Ardon and Count II was for battery on Deputy
Elliott.
2 Count V was for resisting Deputy Ardon with violence and Count VI was for
resisting Deputy Elliott with violence.
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discovered that he had given them the wrong name and date of birth at
the bar. Deputy Ardon testified that Deputy Elliott placed appellant under
arrest, although he did not state what the charge was.
Appellant began flailing his body, making it difficult for the officers to
carry him. They had to put him down, and he began hitting his head on
the asphalt. They moved him to a grassy area. Appellant looked right at
Deputy Ardon and said, “are you trying me” and then kicked Deputy Ardon
in the back of his leg. Deputy Ardon was not injured.
The deputies finally got appellant into a patrol vehicle and drove him
back to the ER. At some point appellant lost consciousness, but he
regained it by the time he was in the hospital.
Inside the ER, Deputies Ardon and Elliott moved appellant onto a
gurney. They laid him on his back and removed the handcuffs. Appellant
continued to flail and became erratic. They were attempting to handcuff
him again to the gurney when appellant slapped Deputy Elliott in the face
with an open hand. Deputy Elliott slapped him back in the face. Appellant
also spit blood at the deputies. He was then sedated, and the incident
ended.
All of the deputies testified that, except for the slap by Deputy Elliott,
none of the deputies hit appellant or dropped him. They testified that they
had tried to prevent appellant from injuring himself.
Appellant’s version of the events was dramatically different than that of
the officers. He testified that he was in a parking lot near the bar after
eating at a restaurant in the area. The bouncer was also outside in the
parking lot with his buddies. Appellant testified that he was arranging for
a ride home with a girl who worked at the bar. The bouncer apparently
did not like that, approached appellant, and hit him in the nose. After
being punched, appellant testified he was approached by law enforcement,
perhaps Deputy Ardon. He told the officer he had been punched, and then
a few minutes later an ambulance arrived. He denied giving the deputy a
false name and birth date.
Appellant testified that he was in a daze at the hospital and decided to
leave. He informed hospital staff that he declined treatment, not wanting
a large bill. He walked out into the parking lot, trying to find a ride home.
He was approached by a deputy who wrenched his arm. When appellant
tried to grab his phone, the deputy slammed him to the ground. His phone
cracked, and he lost consciousness.
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When he regained consciousness, other deputies were there. The
deputies handcuffed his hands behind his back. They then picked him
up, carrying him “like a hog.” The deputies brought him to a grassy area
and dropped him face down onto the grass. Appellant was uncomfortable
lying on the ground with a blade of grass poking into his eye. He tried to
adjust his body to breathe better twice, and Deputy Ardon pushed him
back down. The deputies flipped appellant over so that he lay on the
handcuffs. They kicked, pushed, and jabbed him, and at one point they
dropped appellant in the parking lot onto the asphalt.
Appellant said he lost consciousness and woke up in a hospital bed.
He has some memory of Deputy Elliott striking him in the face. He
remembered telling Deputy Elliott that he would press charges against
him.
Appellant testified that he would never intentionally attack or strike an
officer for any reason. He did not recall kicking Deputy Ardon or
intentionally hitting Deputy Elliott.
After both the State and defense rested, the court denied appellant’s
motion for judgment of acquittal. The parties then proceeded to closing
argument and jury deliberations. The jury returned a verdict for the
lesser-included offense of resisting an officer without violence as to both
resisting counts and not guilty as to the other charged offenses. The trial
court entered judgment consistent with the verdict and sentenced
appellant to one year in county jail for each count to run consecutively.
Appellant thereafter filed this appeal.
Analysis
Did the Possibility of a Non-Unanimous Verdict
Constitute Fundamental Error
The State charged appellant with two counts of resisting arrest with
violence: one charge for doing violence to Deputy Ardon, the other for
doing violence to Deputy Elliott. In closing argument, the prosecutor
argued appellant did violence or battery to Deputy Ardon when appellant
kicked him in his leg, and that appellant did violence or battery to Deputy
Elliott when appellant slapped him in the ER. The jury returned a verdict
of resisting arrest without violence on each charge.
Appellant contends that his two convictions for resisting an officer
without violence could have been the result of a non-unanimous verdict
and fundamental error. He arrives at this contention by pointing to the
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record identifying four actions that he contends could have supported the
lesser included resistance without violence, including his flailing at the
officers outside the hospital, his altercation with them inside the hospital,
and spitting blood at them. Because the individual jurors each could have
credited a different act of appellant which constituted the act of resisting,
the verdict may not have been unanimous, which is a fundamental error.
“As a state constitutional matter, a criminal conviction requires a
unanimous verdict in Florida.” Shahgodary v. State, 336 So. 3d 8, 11 (Fla.
4th DCA 2022) (quoting Robinson v. State, 881 So. 2d 29, 30 (Fla. 1st DCA
2004)). “[J]urors ‘must unanimously agree that each element of the
charged offense has been established beyond a reasonable doubt.’” Id.(quoting Perry v. State, 10 So. 3d 695, 697 (Fla. 1st DCA 2009)). “Thus,
‘where a single count embraces two or more separate offenses, albeit in
violation of the same statute, the jury cannot convict unless its verdict is
unanimous as to at least one specific act.’” Id. (emphasis supplied)
(quoting Robinson, 881 So. 2d at 31). “An infringement upon a defendant’s
right to a unanimous jury verdict can result in fundamental error.” Id.Appellant relies on Perley v. State, 947 So. 2d 672 (Fla. 4th DCA 2007), to
make his “non-unanimous verdict” argument, but that case is
distinguishable. In Perley, a defendant was charged with one count of
escape, but at trial the State presented two incidents which could have
constituted the defendant attempting an escape. Id. at 674. The
defendant first ran from a vehicle after being stopped by the police, and
after being apprehended and taken to a hospital, he attempted to escape
again. Id. During the trial, the State informed the jury that it could convict
the defendant of escape based upon either incident. Id.On appeal, we concluded that fundamental error had occurred by
“allowing the jury to deliberate on two separate instances of escape where
[the defendant] was only charged with one count of escape.” Id. “By
allowing the State to tell the jury it could convict [the defendant] for either
instance of escape, the trial court compromised the jury’s ability to render
a unanimous verdict.” Id.Similarly, in Chaffin v. State, 121 So. 3d 608 (Fla. 4th DCA 2013), we
found that the defendant was entitled to a new trial on his conviction for
tampering with evidence “because the State presented the jury with two
separate incidents of tampering in support of one charge.” Id. at 615.
Based on Perley, this court held that a non-unanimous verdict could have
resulted. Id. at 616; see also Shahgodary, 336 So. 3d at 13 (finding
fundamental error where State charged one count of violating an
injunction for protection against domestic violence injunction, but the
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prosecutor told the jury that it could find the defendant guilty based upon
any one of five different acts).
By contrast, in this case the State charged appellant with two counts
of resisting with violence against two different deputies. The prosecutor
argued to the jury that the resisting with violence charge involving Deputy
Ardon was based upon appellant kicking him, and the charge involving
Deputy Elliott was based on appellant slapping him. The prosecutor never
argued that the jury could find appellant guilty based on any other act.
The mere possibility that a juror could look to some act other than the
one which the prosecutor argued to satisfy an element of the crime is
insufficient to warrant a reversal of a conviction. See, e.g., Charles v. State,
311 So. 3d 283, 287 (Fla. 2d DCA 2020). Where the State does not
affirmatively advise the jury that it can convict using any number of acts
as the essential element of the crime, the possibility of a non-unanimous
verdict does not constitute fundamental error.
Here, appellant simply speculates that the jury might have viewed other
acts as resisting without violence. But the State never argued that any of
those other acts constituted acts of resisting. Without more, there is no
fundamental error.
Appellant argues in the alternative that the two convictions for resisting
violate double jeopardy, because the two convictions were part of a single
criminal episode. He relies on Wallace v. State, 724 So. 2d 1176 (Fla.
1998). In that case, the supreme court held that where multiple officers
are involved with attempting the arrest of one individual, “continuous
resistance to the ongoing attempt to effect [the defendant’s] arrest
constitutes a single instance of obstruction under section 843.01.” Id. at
1181.
Unlike Wallace, the two charges of resisting against appellant were not
the result of one continuous resistance. Appellant kicked Deputy Ardon
while being restrained outside the hospital. He then lost consciousness,
as even he admitted, and ended up in the hospital on a gurney when he
slapped Deputy Elliott. Because the two events were separated both
geographically and temporally, the convictions on both charges did not
violate the double jeopardy prohibition. See Hayes v. State, 803 So. 2d
695, 699–705 (Fla. 2001).
Lawful Execution of a Legal Duty of the Officers
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“To prove the offense of resisting an officer without violence [pursuant
to section 843.02, Florida Statutes (2020)], the State had to present
evidence: (1) that [Officer Ardon and Officer Elliott] w[ere] engaged in the
lawful execution of a legal duty and (2) that [appellant]’s actions
constituted obstruction or resistance of that duty.” Lu Jing v. State, 316
So. 3d 724, 730 (Fla. 4th DCA 2021) (citations omitted). “The threshold
for establishing the commission of an offense under [section 843.02] is
that the officer be in the ‘lawful execution’ of a ‘legal duty.’” C.E.L. v. State,
995 So. 2d 558, 560 (Fla. 2d DCA 2008).
While appellant did move for judgment of acquittal, his arguments
below are not the same as his arguments on appeal. Therefore, appellant
must show fundamental error. Fundamental error occurs when the
evidence is insufficient to show that a crime has been committed. See F.B.
v. State, 852 So. 2d 226, 230 (Fla. 2003) (“The second exception to the
requirement that claims of insufficiency of the evidence must be preserved
occurs when the evidence is insufficient to show that a crime was
committed at all.”); Young v. State, 141 So. 3d 161, 165 (Fla. 2013) (same).
Appellant argues that the deputies were not lawfully engaged in a legal
duty when they brought him back to the emergency room for medical care
because he had a right to decline medical care. See In re Guardianship of
Browning, 568 So. 2d 4, 11 (Fla. 1990) (holding “a competent person has
the constitutional right to choose or refuse medical treatment, and that
right extends to all relevant decisions concerning one’s health”). He
concentrates his argument on whether the State presented evidence of a
legal duty in which the officers were engaged. We conclude that sufficient
evidence showed a legal duty.
The State provided several grounds to show that the officers were
exercising a legal duty. The first officer on the scene responded to a 911
call that a patient had run from the hospital. Responding to a 911 call is
a legal duty of an officer. Francis v. State, 736 So. 2d 97, 99 n.1 (Fla. 4th
DCA 1999). Further, the officer testified that when a call from a hospital
is received, the officers must determine why the person is leaving the
hospital. If the escapee was there pursuant to the Baker or Marchman
Act, then he would not be free to leave the hospital. The officers considered
appellant’s behavior to be bizarre, and he had observable injuries. For
these reasons, they elected to return him to the hospital. We conclude
that the testimony sufficiently supports the legal duty of the officers at the
time, even though no Baker Act custody was involved in this case.
In addition, Deputies Ardon and Elliott arrived after having been
investigating the bar incident. They had evidence from the bar that
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appellant had been the aggressor and committed a battery on the bouncer.
They also were trying to confirm the name which he gave them, which
turned out was false. None of the deputies testified that their investigation
had concluded when they arrived at the hospital. Clearly, investigation of
a crime is a legal duty of the deputies and required appellant’s detention.
In Bush v. State, 295 So. 3d 179 (Fla. 2020), the court set forth the
standard of review for the legal sufficiency of evidence:
The standard of review historically applied to a determination
of the legal sufficiency of evidence to support a criminal
conviction, at least where there is some direct evidence, is
simply whether the State presented competent, substantial
evidence to support the verdict. Tibbs v. State, 397 So. 2d
1120, 1123 (Fla. 1981); Spinkelink v. State, 313 So. 2d 666,
671 (Fla. 1975). To apply this standard to a criminal case, an
appellate court must “view[ ] the evidence in the light most
favorable to the State” and, maintaining this perspective, ask
whether “a rational trier of fact could have found the existence
of the elements of the crime beyond a reasonable doubt.”
Id. at 200 (alteration in original). Here, viewing the evidence in the State’s
favor, we conclude that the evidence supported the jury’s findings. We
affirm.
Improper Prosecutorial Cross-Examination and Closing Argument
In his next issue on appeal, appellant contends that the prosecutor
engaged in improper cross-examination of appellant and made numerous
improper statements in closing argument, necessitating a new trial. Most
of the alleged errors were not objected to during cross-examination or in
closing argument. Therefore, to require a new trial they must be
fundamental error, meaning an error which reaches the validity of the trial
such that a guilty verdict could not have been obtained without it.
Cherfrere v. State, 277 So. 3d 611, 614 (Fla. 4th DCA 2019). The
prosecutor’s cross-examination and closing argument do not rise to that
level.
After appellant testified on direct examination that he was roughed up
by the officers during the incident, the prosecutor commenced an
aggressive cross-examination of appellant. Appellant became hostile and
accused the officers of a cover-up, aided by the prosecutor filing charges
against appellant. Appellant accused the officers of dishonesty. The
exchanges got heated, and the prosecutor admitted that at times he was
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being sarcastic with his questions, for which he apologized. Defense
counsel’s objections were few and lacked specificity, other than objecting
to a few questions as argumentative or asking for speculation. As to those,
we conclude that the court did not err in overruling those objections. This
was a very tense situation with the appellant calling the prosecution
witnesses dishonest and presenting himself as a victim. Perhaps the
prosecutor may have been more aggressive than the tenets of
professionalism should allow, but on this record we cannot conclude that
his cross-examination vitiated the entire trial.
Similarly, defense counsel made very few objections in closing
argument, necessitating a finding of fundamental error to warrant a new
trial. We cannot conclude that the comments of the prosecutor collectively
deprived appellant of a fair trial. Even if some comments were
inappropriate, the comments do not warrant a new trial. See Varsam v.
State, 314 So. 3d 278, 278 (Fla. 4th DCA 2021); see also Robinson v. State,
211 So. 3d 59, 60 (Fla. 4th DCA 2017) (agreeing the State made several
inappropriate comments during closing but concluding the “comments,
both singularly and collectively, did not rise to the level of fundamental
error”).
Challenge to Size of Jury
Appellant briefly argues that he was entitled to be convicted by a twelve-
member jury rather than a six-member jury under the Sixth and
Fourteenth Amendments of the United States Constitution. We have
already held that a defendant is not entitled to a twelve-member jury in
Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th DCA 2022).
Sentencing Hearing
Finally, appellant contends he is entitled to a new sentencing
proceeding, because the judge took on the role of a prosecutor in
questioning him during the sentencing hearing. We disagree.
At sentencing, appellant testified, apologizing for the court’s time and
stating that he realized he sometimes had not “honored the position of
authority,” telling the court that this was not the first time he had a
resisting arrest conviction. He asked for leniency and for time served.
The court then asked the State if it had any evidence, and the
prosecutor listed multiple misdemeanors of which appellant had been
convicted, including four convictions for resisting arrest, the same crimes
for which he had been convicted in this case. The prosecutor noted the
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crimes for which the jury found him guilty would be his fifth and sixth
crimes, and the prosecutor recommended a sentence of a year in jail for
each count to be served consecutively.
The court stated that it was unaware of the four prior convictions and
wanted to know why four convictions would not be “hugely significant.”
The court wanted some explanation, such as whether they all arose from
one or two events. Appellant then stated that he thought they were double
charged but he did not recall. The State was able to access the prior
convictions: one in Duval County in 2012; one in Duval County in 2016;
one in Martin County in 2017; and one in Savannah, Georgia in 2016. The
court then asked appellant whether he recalled these convictions.
Appellant said he thought he did, and he apologized for having the
convictions. The court commented that his apology had no meaning when
he kept getting convicted of the same crime. Appellant then volunteered
other unsettling events in his life occurring at the time of his prior
convictions as a way of explanation.
The court also wanted to know more about the sentence on the 2017
Martin County charge, which the State looked up. Appellant was convicted
of resisting without violence and given a fifteen-day sentence.
The court then addressed appellant, telling him that being a repeat
offender most bothered the court at sentencing. After appellant
volunteered more information about his belief that his rights had not been
observed in some of these incidents, the court commenced sentencing
appellant, stating:
Believe it or not, the purpose for my discussions at
sentencing, . . . is because I actually do try to find a reason to
be generous in my sentence . . . One of the things that has
always bothered me in sentencing . . . is when they do the
same thing over and over again. . . . it’s just there’s no excuse
for it . . . .
The court sentenced appellant to one-year terms for each offense, to be
served consecutively.
Appellant contends that the trial court abandoned neutrality while
inquiring into his prior criminal convictions. He relies on this court’s
decision in Parr v. State, 247 So. 3d 550 (Fla. 4th DCA 2018). In Parr,
after the defendant entered an open plea, the defendant’s grandfather was
called as a witness. Id. at 552. The grandfather testified that the family
did not want the defendant to go back to jail and testified when asked by
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the court that the defendant was “absolutely not” a danger to the
community. Id. The court then began to question the grandfather without
waiting for the prosecutor to question him. We noted, “[t]he questioning
went far beyond clearing up ambiguities and was directed to discrediting
the witness,” concluding that the court was “not neutral but had taken on
the role of a prosecutor.” Id. at 555.
Here, we do not view the court’s questioning of appellant as taking on
the role of a prosecutor. Instead, we understand that the questioning was
to inform the court fully on the sentence. As the court itself noted, it asked
questions to look for reasons to be “generous.” It was not seeking to
discredit appellant as a witness.
Further, the court was inquiring on a matter which the State raised—
appellant’s four prior convictions for resisting. This makes it
distinguishable from Lang v State, 228 So. 3d 153 (Fla. 4th DCA 2017),
also relied upon by appellant. In Lang, the court made its own
examination of other unrelated court records to discover a conviction not
mentioned by the prosecutor. Id. at 154. The court then used that
conviction to assess the credibility of defendant’s testimony on the
violation of probation charge. Id. at 154–55. Here, the court only asked
the State for additional information with respect to charges that the State
had raised (and appellant had also admitted) to ascertain the length of
sentence previously imposed. We see nothing improper about the court
making that type of inquiry so that the court has a full understanding of
appellant’s record for purposes of sentencing, where the record factors into
the sentence. The court did not depart from a position of neutrality.
Conclusion
No fundamental error occurred in the trial, as any errors were not
sufficient to vitiate the entire trial, and the court did not depart from a
position of neutrality in the sentencing proceeding. We thus affirm
appellant’s conviction and sentence on all issues.
Affirmed.
CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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