Dante Martin v. State , 2016 Fla. App. LEXIS 17401 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DANTE MARTIN,
Appellant,
v. Case No. 5D15-284
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed November 18, 2016
Appeal from the Circuit Court
for Orange County,
Renee A. Roche, Judge.
Rupak R. Shah and Frances E. Martinez, of
Escobar & Assoc., P.A., Tampa, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Samuel A. Perrone and
Bonnie Jean Parrish, Assistant Attorney
Generals, Daytona Beach, for Appellee.
PALMER, J.
Dante Martin (the defendant) appeals his judgment and sentences, which were
entered by the trial court after a jury found him guilty of committing the crimes of
manslaughter,1 felony hazing resulting in death,2 and two counts of misdemeanor hazing.3
We affirm.
The defendant was a member of the percussion section of the Florida A&M
University's marching band, the "Marching 100." Members of the percussion section are
entitled to ride to away events in a motor coach known as "Bus C." The defendant was
president of Bus C.
A tradition or ritual known as "Crossing Bus C" has existed at the University for
some time. The ritual consists of three components: 1) the hot seat, 2) the prepping, and
3) the crossing. During the hot seat, the participant takes a seat on Bus C (near the front)
and is struck or hit repeatedly by others, including members of the percussion section.
Next, the participant is prepped. During the prepping, the participant stands up and places
his or her hands on the luggage rail and is then slapped a number of times with full force
by the others on the bus. After the prepping, the participant crosses from the front of the
bus to the back while others slap, kick, and punch the participant. The defendant, as bus
president, decided when someone could cross Bus C.
On the day at issue, Keon Hollis, Robert Champion, and the defendant, as
members of the Marching 100, performed at the Florida Classic in Orlando, Florida.
Immediately following the band's performance, the defendant asked Hollis if he planned
to cross the bus. Hollis indicated that he wanted to do so. Later, Jonathan Boyce, also
a member of the band, received a text from the defendant asking him to convey to Hollis
and Champion that if they wanted to cross "it's available" to them.
1§ 782.07, Fla. Stat. (2012).
2§ 1006.63(2), Fla. Stat. (2012).
3 § 1006.63(3), Fla. Stat. (2012).
2
That night, Lissette Sanchez (another member of the percussion section), Hollis,
and Champion crossed Bus C, and the defendant participated in these crossings.
Champion was the last to cross. When Champion made it to the back, he appeared tired,
but indicated, "I'm good." After the crossings were completed, everyone left the bus
except Champion. When Boyce noticed that Champion was not with him, he returned to
the bus. He found Champion in the back of the bus panicking; and, shortly thereafter,
Champion passed out. Champion was taken to a hospital, but efforts to save his life were
not successful.
Champion's body was transferred from the hospital to the medical examiner’s
office. Dr. Sarah Irrgang, the associate medical examiner, visually examined Champion’s
body. She observed some discoloration and a few superficial abrasions, she took several
photographs, and then released Champion’s body for bone harvesting. The next day,
after his leg bones had been harvested, Champion's body was returned to the medical
examiner’s office. At that time, Dr. Irrgang noticed unevenness in the skin on Champion's
torso, suggesting swelling. This observation prompted Dr. Irrgang to investigate further.
She took a number of pictures of Champion’s body during the ensuing autopsy. Based
on her investigation, she determined that the manner of death was homicide.
The defendant was later arrested and charged with manslaughter, felony hazing
resulting in death, and two counts of misdemeanor hazing. The matter proceeded to a
jury trial, which resulted in guilty verdicts on all counts. The trial court entered judgment
in accordance with the verdicts and sentenced the defendant to a term of seventy-seven
months' imprisonment. This appeal followed.
3
overbreadth is one of the few exceptions to the traditional
rules that courts will not consider factual questions beyond the
scope of the case at hand. See Schmitt v. State, 590 So. 2d
404, 411–12 (Fla.1991). "Hypothetical consequences are
considered in the case of allegedly overbroad statutes
precisely because this is the only way to give effect to the
constitutional right of free speech." Id. at 411.
The deleterious result of overbroad statutes often is described
as a "chilling effect." . . . The overbreadth doctrine and its
requirement of considering hypothetical consequences is
intended to eliminate this chilling effect and thus allow for the
free, unhindered exercise of constitutional rights.
Id. at 412 (citations omitted). It is said, however, that in the
arena of free speech and expression, the overbreadth
doctrine is an unusual remedy which is to be used sparingly,
particularly where the challenged statute is primarily meant to
regulate conduct and not merely pure speech. Id.
947 So. 2d at 644–45. Of consequence, "the overbreadth doctrine applies only if the
legislation is susceptible of application to conduct protected by the First Amendment."
Simmons v. State, 944 So. 2d 317, 323 (Fla. 2006) (quoting Southeast Fisheries Ass'n,
Inc. v. Dep't of Nat. Res., 453 So. 2d 1351, 1353 (Fla. 1984)).
The defendant asserts that Florida's hazing statute encroaches upon
constitutionally-protected speech or conduct and, thus, the statute is overbroad; however,
he does not articulate how the statute is susceptible of application to speech or conduct
protected by the First Amendment. See id.; State v. Bryant, 953 So. 2d 585, 587 (Fla. 1st
DCA 2007). Rather, he simply argues that, by criminalizing hazing without respect to the
victim’s consent, subsection 1006.63(5) regulates and restricts "a wide variety of activity
that would otherwise be protected by the First Amendment, including, most disturbingly,
the freedom of association and expression." Because the defendant is challenging the
statute on overbreadth grounds, he "bears the burden of demonstrating from both the text
6
consumption of any food, liquor, drug, or other substance, or
other forced physical activity that could adversely affect the
physical health or safety of the student, and also includes any
activity that would subject the student to extreme mental
stress, such as sleep deprivation, forced exclusion from social
contact, forced conduct that could result in extreme
embarrassment, or other forced activity that could adversely
affect the mental health or dignity of the student. Hazing does
not include customary athletic events or other similar contests
or competitions or any activity or conduct that furthers a legal
and legitimate objective.
....
(5) It is not a defense to a charge of hazing that:
(a) The consent of the victim had been obtained;
(b) The conduct or activity that resulted in the death or injury
of a person was not part of an official organizational event or
was not otherwise sanctioned or approved by the
organization; or
(c) The conduct or activity that resulted in death or injury of
the person was not done as a condition of membership to an
organization.
§ 1006.63(1), (5), Fla. Stat. (2012).
As for the defendant's overbreadth claims, a "statute is deemed to be overbroad if
it seeks to control or prevent activities properly subject to regulation by means which
sweep too broadly into an area of constitutionally protected freedom." J.L.S. v. State, 947
So. 2d 641, 644 (Fla. 3d DCA 2007) (citing Firestone v. News–Press Publ'g Co., Inc., 538
So. 2d 457, 459 (Fla. 1989)). In J.L.S., the Third District set forth the following principles
concerning the overbreadth doctrine:
The doctrine of overbreadth permits an individual whose own
speech or conduct may be prohibited to challenge an
enactment facially "because it also threatens others not
before the court—those who desire to engage in legally
protected expression but who may refrain from doing so rather
than risk prosecution or undertake to have the law declared
partially invalid." Sult v. State, 906 So. 2d 1013, 1019
(Fla. 2005) (quoting Brockett v. Spokane Arcades, Inc., 472
U.S. 491, 503 (1985)). In other words, the issue of
5
A vague statute is one that fails to give adequate notice of
what conduct is prohibited and which, because of its
imprecision, may also invite arbitrary and discriminatory
enforcement. In determining whether a statute is vague,
common understanding and reason must be used. Where a
statute does not specifically define words of common usage,
such words must be given their plain and ordinary meaning.
Further, courts cannot require the legislature to draft laws with
such specificity that the intent and purpose of the law may be
easily avoided. Courts must determine whether or not the
party to whom the law applies has fair notice of what is
prohibited and whether the law can be applied uniformly.
Id. at 1353–54 (citation omitted). Importantly, "[t]he Legislature's failure to define a critical
term does not by itself render a statute unconstitutionally vague." Morton v. State, 988
So. 2d 698, 702 (Fla. 1st DCA 2008); accord State v. Hagan, 387 So. 2d 943, 945 (Fla.
1980). Instead, "[w]here a statute does not specifically define words of common usage,
such words are construed in their plain and ordinary sense." Hagan, 387 So. 2d at 945;
accord Morton, 988 So. 2d at 702. Furthermore, unlike overbreadth challenges, an
individual challenging a statute as being unconstitutionally vague must satisfy the
traditional rules of standing:
[T]he traditional rule is that a person to whom a statute may
constitutionally be applied lacks standing to challenge that
statute on the ground that it may conceivably be applied
unconstitutionally to others in situations not before the court.
J.L.S., 947 So. 2d at 646.
Here, the testimony presented at trial demonstrated that Champion, Hollis, and
Sanchez were beaten repeatedly as each crossed Bus C. That conduct constituted
brutality of a physical nature, plainly prohibited by the statute. Because the defendant
participated in the crossings, he violated the plain terms of the statute. Thus, he lacks
8
of the statute and from actual facts that substantial overbreadth exists." J.L.S., 947 So.
2d at 645. The defendant has not demonstrated that the hazing statute criminalizes any
speech or conduct protected by the First Amendment; therefore, his overbreadth
challenge fails. See Kahles, 644 So. 2d at 512 (explaining that an overbreadth challenge
fails if the enactment does not reach a substantial amount of speech or conduct protected
by the First Amendment).
The defendant also argues that Florida's hazing statute is overbroad as applied to
him. We disagree. To prevail on his as-applied challenge, the defendant must
demonstrate that the hazing statute criminalized his own conduct, which was protected
by the First Amendment. See State v. Cotton, 198 So. 3d 737, 743 (Fla. 2d DCA 2016).
The defendant failed to sustain his burden of proof by not demonstrating how his conduct
during the crossings was protected by the First Amendment. Additionally, he cites no
authority supporting his overbreadth as-applied claim. See Newell v. State, 875 So. 2d
747, 748 (Fla. 2d DCA 2004) (rejecting constitutional challenge where defendant made
only a generalized attack on the sexual offender registration statute, "without providing
any significant analysis or citation to legal authority").
As for his claim of vagueness, the defendant argues that the words "brutality" and
"competition," as set forth in the hazing statute, cause the statute to be unconstitutionally
vague. Once again, we disagree.
"[T]he doctrines of overbreadth and vagueness are separate and distinct."
Southeast Fisheries Ass'n, 453 So. 2d at 1353. "The vagueness doctrine has a broader
application . . . because it was developed to assure compliance with the due process
clause of the United States Constitution." Id. Our Supreme Court has explained:
7
A vague statute is one that fails to give adequate notice of
what conduct is prohibited and which, because of its
imprecision, may also invite arbitrary and discriminatory
enforcement. In determining whether a statute is vague,
common understanding and reason must be used. Where a
statute does not specifically define words of common usage,
such words must be given their plain and ordinary meaning.
Further, courts cannot require the legislature to draft laws with
such specificity that the intent and purpose of the law may be
easily avoided. Courts must determine whether or not the
party to whom the law applies has fair notice of what is
prohibited and whether the law can be applied uniformly.
Id. at 1353–54 (citation omitted). Importantly, "[t]he Legislature's failure to define a critical
term does not by itself render a statute unconstitutionally vague." Morton v. State, 988
So. 2d 698, 702 (Fla. 1st DCA 2008); accord State v. Hagan, 387 So. 2d 943, 945 (Fla.
1980). Instead, "[w]here a statute does not specifically define words of common usage,
such words are construed in their plain and ordinary sense." Hagan, 387 So. 2d at 945;
accord Morton, 988 So. 2d at 702. Furthermore, unlike overbreadth challenges, an
individual challenging a statute as being unconstitutionally vague must satisfy the
traditional rules of standing:
[T]he traditional rule is that a person to whom a statute may
constitutionally be applied lacks standing to challenge that
statute on the ground that it may conceivably be applied
unconstitutionally to others in situations not before the court.
J.L.S., 947 So. 2d at 646.
Here, the testimony presented at trial demonstrated that Champion, Hollis, and
Sanchez were beaten repeatedly as each crossed Bus C. That conduct constituted
brutality of a physical nature, plainly prohibited by the statute. Because the defendant
participated in the crossings, he violated the plain terms of the statute. Thus, he lacks
8
standing to challenge the statute as being vague based on the term brutality.4 See J.L.S.,
947 So. 2d at 646 (concluding that defendant lacked standing to challenge school safety
zone statute as being vague because he "engaged in some conduct clearly proscribed"
by the statute).
Similarly, with respect to the term "competition," although the statute does not
define this term or provide examples of competition, we may resort to dictionaries to
determine the meaning of an undefined statutory term. See Morton, 988 So. 2d at 702;
Sims v. State, 510 So. 2d 1045, 1047 (Fla. 1st DCA 1987). The World Book Dictionary
defines competition as "the act or state of trying hard to win or gain something wanted by
others." World Book Dictionary 423 (2009). Another dictionary contains the following
similar definition of competition: "the act or action of seeking to gain what another is
seeking to gain at the same time; . . . a common struggle for the same object." Webster's
Third New International Dictionary 464 (1976). The meaning of "competition," as provided
in these definitions, is sufficiently definite such that the defendant was not forced to guess
at its meaning. See Morton, 988 So. 2d at 702 (relying on definition of "serious" found in
two dictionaries in rejecting vagueness challenge based on undefined statutory phrase
"serious bodily injury").
4 Even if the defendant possessed standing to assert this challenge, the
defendant's argument would still lack merit. As mentioned above, the statute provides a
nonexclusive list of acts constituting "brutality," which includes "whipping," "beating," and
"branding." §1006.63(1), Fla. Stat. (2012). These examples would put a person of
ordinary intelligence on notice as to what conduct constitutes brutality. See Morton, 988
So. 2d at 702. Thus, the use of the term brutality does not render the statute
unconstitutionally vague.
9
Having rejected all of the defendant's constitutional claims, we now discuss his
claims of trial error.
The defendant argues that the trial court erred in denying his motion to dismiss the
manslaughter count. We disagree.
"The standard of review for a trial court order regarding a motion to dismiss is de
novo." Bell v. State, 835 So. 2d 392, 394 (Fla. 2d DCA 2003).
Prior to trial, the defendant moved to dismiss the manslaughter count, contending
that the hazing statute is a specific statute covering a particular subject matter and, as
such, was controlling over the general manslaughter statute, inclusive of that same
subject matter. To support this claim, he relied on Adams v. Culver, 111 So. 2d 665, 667
(Fla. 1959) (recognizing that a specific statute covering certain subject matter controls
over a general statute covering the same subject matter). The defendant acknowledged
that subsection 1006.63(6) of the hazing statute expressly states that this "section shall
not be construed to preclude prosecution for a more general offense resulting from the
same criminal transaction or episode," but he argued that, because the sanctions under
the more general offense of manslaughter are more severe than the sanctions of the
specific offense of felony hazing, the Culver rule applied and, thus, warranted dismissal
of the manslaughter count.
Here, the Legislature made clear in the language of subsection 1006.63(6) that the
State can prosecute the defendant for "a more general offense resulting from the same
criminal transaction or episode." Accordingly, the trial court properly denied the dismissal
motion. See W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012) (explaining
that, if a statute's language is "clear and unambiguous and conveys a clear and definite
10
meaning, this Court will apply that unequivocal meaning and not resort to the rules of
statutory interpretation and construction."); Knowles v. Beverly Enterprises-Florida, Inc.,
898 So. 2d 1, 10 (Fla. 2004) ("The rules of statutory construction are the means by which
courts seek to determine legislative intent only when that intent is not plain and obvious
enough to be conclusive.").
Next, the defendant argues that the trial court abused its discretion in admitting
into evidence, over his objection, testimony and photographs relating to the condition of
Champion’s body after the bone harvest procedure was completed. He contends that the
evidence was inadmissible because the State failed to establish the chain of custody of
the body while it was transported to and from the bone harvesting location; and thus, the
State failed to prove that Champion's body was not tampered with during the bone
harvesting procedure. We disagree.
"A trial court's ruling on the admissibility of evidence is subject to an abuse of
discretion standard of review, but the court's discretion is limited by rules of evidence and
the applicable case law." Horowitz v. State, 189 So. 3d 800, 802 (Fla. 4th DCA 2015),
approved, 191 So. 3d 429 (Fla. 2016). In State v. Jones, 30 So. 3d 619, 622 (Fla. 2d DCA
2010), the Second District explained the law applicable to claims of evidence tampering:
[R]elevant physical evidence is admissible unless there is an
indication of probable tampering. In seeking to exclude certain
evidence, [the movant] bears the initial burden of
demonstrating the probability of tampering. Once this burden
has been met, the burden shifts to the proponent of the
evidence to submit evidence that tampering did not occur.
A mere break in the chain of custody is not in and of itself a
basis for exclusion of physical evidence. Rather, the court
should consider the probability that the evidence has been
tampered with during the interim for which it is unaccounted.
Id. at 622 (alteration in original) (citations omitted) (internal quotation marks omitted).
11
Here, while we agree that the prosecutor's comment was improper, the trial court
issued a proper curative instruction. As such, the trial court did not err in denying the
mistrial motion. See Espute v. State, 85 So. 3d 532, 536 (Fla. 4th DCA 2012) (holding
that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial
where the court sustained defense counsel’s objection and gave a curative instruction).
AFFIRMED.
SAWAYA and COHEN, JJ., concur.
16
an issue that is in dispute." Almeida [v. State, 748 So. 2d 922,
929 (Fla. 1999)].
Ault v. State, 53 So. 3d 175, 198–99 (Fla. 2010); see also Armstrong v. State, 73 So. 3d
155, 168 (Fla. 2011); England v. State, 940 So. 2d 389, 399 (Fla. 2006).
Here, the defendant filed a motion in limine seeking to exclude the autopsy
photographs, arguing that the photographs were not necessary to help the jury
understand the medical examiner's testimony, were not relevant to the manslaughter or
felony hazing charges, and were unduly prejudicial. The trial court denied the motion. At
trial, the defendant renewed his motion in limine and additionally argued that the
photographs would be unnecessarily gory. The motion was denied, and the photographs
were admitted into evidence. This ruling was correct. See England, 940 So. 2d at 399;
Ault, 53 So. 3d at 200.
Champion's autopsy photographs assisted the medical examiner in explaining to
the jury the nature and manner in which the wounds were inflicted on his body. They also
reinforced the testimony from other witnesses indicating that Champion had been
repeatedly struck during the crossing. Importantly, the photographs were relevant to an
issue that was in dispute: whether Champion was the victim of "any brutality of a physical
nature, such as whipping, beating, branding . . . ." § 1006.63(1). Also, as for the claim that
the photographs were not admissible because they were too gruesome, the trial court
ruled that the photographs were not unnecessarily gory and independent review of the
record supports this conclusion.
Next, the defendant argues that the trial court abused its discretion in refusing to
issue his proposed jury instruction on uncharged conspiracy. This argument also lacks
merit.
13
"The giving or withholding by a trial court of a requested jury instruction is reviewed
under an abuse of discretion standard of review." Worley v. State, 848 So. 2d 491, 491
(Fla. 5th DCA 2003). "The trial court's refusal to give the requested instructions must be
judged by [the appellate court] in light of all of the instructions actually given. If the
instructions given contain a sufficient statement of the law concerning the points in
controversy, then there is no reversible error in failing to give the requested instructions."
Tolivert v. Estate of Scherer, 715 So. 2d 358, 359–60 (Fla. 5th DCA 1998).
At the charge conference, both the State and the defendant submitted proposed
instructions to the trial court on the issue of uncharged conspiracy. After receiving
argument on the proposed instructions, the trial court ruled that it would not use either
instruction. Rather, the court drafted its own instruction on the issue.
In Boyd v. State, 389 So. 2d 642 (Fla. 2d DCA 1980), the Second District discussed
the proper instruction to be issued on an uncharged count of conspiracy. The court
explained:
At a minimum, the instructions should contain a definition of
conspiracy, an explanation of the legal consequences of
proving a conspiracy in the case, and the admonition that it is
for the jury to determine whether a conspiracy has been
established beyond a reasonable doubt. Where, as in this
case, the crime of conspiracy is not charged, the state is not
required to prove all the elements of the crime of conspiracy
and it is error to tell the jury it must find that all those elements
have been established.
Id. at 647 (footnote omitted) (citations omitted). Here, the trial court’s instruction defined
conspiracy, explained the consequences of a conspiracy, and indicated that the jury must
find that a conspiracy existed beyond a reasonable doubt. Because the court's instruction
comported with Boyd, no error occurred.
14
The defendant next argues that the trial court erred in rejecting his proposed jury
instruction on hazing. This argument was not preserved for appellate review because the
record does not demonstrate that the defendant requested said instruction below. See
Fla. R. Crim. P. 3.390(d); see also Hood v. State, 287 So. 2d 110, 110 (Fla. 4th DCA
1973) (explaining that a request for a jury instruction or an objection to the failure to give
an instruction is necessary to raise error on appeal).
Lastly, the defendant argues that the trial court erred in denying his motion for
mistrial. This argument also lacks merit.
During closing argument, the prosecutor stated, "[T]he problem is that the crossing
has to stop." Defense counsel objected and sought a mistrial, claiming the comment
constituted an inappropriate send-a-message argument. See Fletcher v. State, 168 So.
3d 186, 209 (Fla. 2015) (explaining that prosecutors may not ask the jury to send a
message through its verdict). The trial court ultimately denied the mistrial motion, but
promptly issued a curative instruction.
"The standard of review is . . . abuse of discretion where [the defendant] moved
for a mistrial and [the] motion was denied." Panchoo v. State, 185 So. 3d 562, 564 (Fla.
5th DCA 2016) (citations omitted). "In determining whether improper remarks warrant a
new trial, the remarks must be examined in 'the context of the closing argument as a
whole and considered cumulatively within the context of the entire record.'" Jennings v.
State, 124 So. 3d 257, 266 (Fla. 3d DCA 2013) (quoting McArthur v. State, 801 So. 2d
1037, 1040 (Fla. 5th DCA 2001)). Moreover, "[g]enerally speaking, the use of a curative
instruction to dispel the prejudicial effect of an objectionable comment is sufficient." Id.
(internal quotation marks omitted).
15
Here, while we agree that the prosecutor's comment was improper, the trial court
issued a proper curative instruction. As such, the trial court did not err in denying the
mistrial motion. See Espute v. State, 85 So. 3d 532, 536 (Fla. 4th DCA 2012) (holding
that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial
where the court sustained defense counsel’s objection and gave a curative instruction).
AFFIRMED.
SAWAYA and COHEN, JJ., concur.
16