JOSHUA NATHANIEL PEART v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOSHUA NATHANIEL PEART,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-3582
[March 15, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott Suskauer, Judge; L.T. Case No. 502019CF009838B.
Carey Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
We affirm the defendant’s convictions and sentences for first-degree
murder with a firearm of one victim, and the lesser included offense of
attempted second-degree murder with a firearm of a second victim.
We write to address only the defendant’s argument that the state
presented insufficient evidence to support the trial court’s reading of the
“Principals” instruction to the jury. Although we agree with the
defendant’s argument, we conclude the defendant’s trial counsel did not
timely object to the “Principals” instruction, and therefore did not preserve
that objection for appeal. We further conclude the trial court’s reading of
the “Principals” instruction to the jury did not rise to the level of
fundamental error, because the state could have obtained the guilty
verdicts against the defendant without the alleged error’s assistance.
Thus, we affirm the defendant’s convictions and sentences.
We present this opinion in five sections:
1. The state’s trial evidence;
2. The parties’ closing arguments to the jury;
3. The parties’ trial arguments on the “Principals” instruction;
4. The parties’ appellate arguments on the “Principals” instruction; and
5. Our review.
1. The State’s Trial Evidence
The state charged the defendant and a co-defendant with first-degree
murder with a firearm of one victim, and attempted first-degree murder
with a firearm of a second victim. The trial court severed the defendant’s
and the co-defendant’s cases for trial.
At the defendant’s trial, the state’s evidence established the following
chain of events, all of which occurred in the neighborhood where the
defendant, the co-defendant, and the victims lived.
On October 18, 2019, at around 11:45 a.m., the co-defendant’s mother,
while walking down the street, saw the first victim standing near a market.
The co-defendant’s mother asked the first victim to pay back money which
she had lent him. The first victim responded he was not going to pay her
back, called her a name, threw a can at her, pulled a gun, and said he was
“always ready.”
The co-defendant’s mother immediately called the co-defendant. The
co-defendant then called a friend, who was with the defendant at a
girlfriend’s home. The co-defendant asked to speak with the defendant.
The friend handed the phone to the defendant. The friend could not hear
the conversation between the co-defendant and the defendant. When the
defendant finished the conversation, he said he had to go, and handed the
phone back to the friend. The defendant and the friend left the girlfriend’s
home. They met up with a fourth man in the street.
The co-defendant then drove up in his mother’s car. The co-defendant
was by himself. The defendant got into the front passenger seat. The
fourth man got into the back seat on the passenger’s side. The friend
asked the co-defendant for a ride home. The co-defendant said yes. The
friend got into the back seat on the driver’s side. Up to that point, the
friend had not seen any of the other three men possessing a firearm.
When the friend got in the car, he put on his headphones and turned
on some music on his phone. However, when the co-defendant began
explaining what had happened to his mother, the friend briefly took off his
headphones. Although the friend had missed the first part of the
conversation, the friend heard the co-defendant say someone had pulled a
gun on his mother. Everyone in the car knew the co-defendant’s mother,
2
so they all became upset. The friend put his headphones back on, looked
down at his phone, and did not pay attention to which direction the co-
defendant was driving.
Less than fifteen minutes later, while still looking down at his phone,
the friend was startled after hearing loud shots being fired from the front
passenger seat. Without looking up, the friend immediately crouched
down in the back seat to brace himself and avoid getting hurt. From his
crouched position, the friend could see that the fourth man who was in
the back seat with him was not holding a firearm. However, the friend
could not see the co-defendant and the defendant in the front seats.
After the car continued on and things went silent, the friend looked up
from the back seat. He noticed that the co-defendant had not driven in
the direction of the friend’s home. The friend got upset because of what
had just occurred and said he wanted to go home. The co-defendant
instead drove back to the defendant’s girlfriend’s house. The co-defendant
parked the car in the driveway. The friend got out of the car and began
speaking to the co-defendant’s aunt, who happened to be at the house too.
Meanwhile, the friend saw the co-defendant and the defendant walking
back and forth, to and from the car. Because the friend was focused on
his conversation with the co-defendant’s aunt, he did not notice whether
the co-defendant or the defendant had removed anything from the car.
The police investigated the shooting, which had taken place just before
noon outside the market where the co-defendant’s mother had been in the
confrontation with the first victim fifteen minutes earlier. The police
obtained videos from the market’s exterior security cameras. As will be
discussed more fully below, the videos showed someone in the co-
defendant’s mother’s car firing shots out of the open front passenger seat
window at the first victim. The first victim was shot and ran inside the
market, where he died of his wounds. The police also learned that a stray
bullet had gone into the market and struck a glass bottle, which shattered
and injured the second victim who had been standing at the market’s
checkout counter.
The police never found the firearm which had fired the shots. However,
the police found five spent bullet shell casings. Four casings were found
outside the market. The fifth casing was found in the co-defendant’s
mother’s car on the back floor near the passenger side door. A crime scene
investigator determined that the casings were 5.56 millimeters long. The
investigator elaborated on what the casings revealed about the bullets and
firearm type used:
3
It’s a large, long looking bullet. It has a lot of gunpowder
in it. The bullet, the projectile that comes out of it is very
small, it’s like when you hear a 22 rifle that kids shoot … for
squirrel hunting, it’s that same caliber. It’s a little heavier
range which is a little bit heavier bullet, a little bit longer
bullet, but the caliber is the same. It’s the charge in the round
that is large.
The police identified the defendant’s fingerprint on the car’s front
passenger side inside door handle. However, the police were unable to
collect any fingerprints or DNA on the spent bullet casings.
At trial, the friend testified on direct examination that he had not seen
any part of the firearm which had fired the shots. However, on cross-
examination, defense counsel impeached the friend through his deposition
testimony on this topic. During the deposition, the friend testified that the
firearm which had fired the shots was a rifle, the length of which he
described as “almost from [his] fingers to [his] shoulder.” On redirect
examination, the friend testified that he got only a glimpse of the firearm,
and assumed the firearm was a rifle because of how loud the shots were.
As mentioned above, the market had exterior security cameras. The
state introduced into evidence the cameras’ videos and seven still photos
derived from those videos. The seven still photos (re-labeled A.-G. below)
show the co-defendant’s mother’s red car driving past the market’s side,
and then turning the corner to drive past the market’s front, when the
shots were fired from the red car’s open front passenger window at the first
victim, who was next to the market’s door wearing a red hat, white shirt,
red shorts, and red shoes:
A. B.
4
C. D.
E. F.
G.
The videos from which the above still photos were derived were only
seconds long, as the red car had driven past the market very quickly.
5
From these videos and still photos, the investigating detective testified
as follows. The red car’s front passenger window appeared to be down.
The firearm used in the shooting could be seen as the black image sticking
out of the front passenger window. The following discussion then occurred
between the state and the detective:
STATE: [W]hat is being depicted here [in photo D.]?
DETECTIVE: [Y]ou can see the front passenger is the
shooter in the incident, and you can see he extends his
firearm towards the store front where the victim was last seen
running into.
STATE: Okay. And again this is all things that the jury can
see on the surveillance video; these are just still shots?
DETECTIVE: Correct.
(emphases added). Defense counsel did not object to the detective having
testified to his personal observation from the videos and still photos that
“the front passenger is the shooter in the incident,” despite the state
having acknowledged that the jury could view the videos for themselves.
2. The Parties’ Closing Arguments to the Jury
The state had provided its proposed jury instructions to defense
counsel two days before closing arguments were expected to occur. On
the day when closing arguments were expected to occur, and just before
the state was to begin presenting its remaining witnesses, the following
discussion occurred:
THE COURT (speaking to defense counsel): … [M]aybe later
on this morning or early this afternoon, you … can let me
know if there are any objections to the instructions that were
sent over from [the state].
DEFENSE COUNSEL: Yes, Judge. I think I went over [the
instructions] with [the state] before and I think [the
instructions] were in order but I’ll just double-check.
(emphases added).
6
However, defense counsel—at no point before closing arguments—
objected to any of the state’s proposed jury instructions, including a
proposed standard instruction on “Principals.”
During the state’s initial closing argument, the state began by telling
the jury that one of the instructions which the trial court would be
presenting after closing arguments would be the “Principals” instruction.
The state quoted the “Principals” instruction for the jury, and then
provided the state’s explanation of how the “Principals” instruction applied
to the evidence:
Princip[als] [means] that [“i]f [the] defendant helped
another person or persons commit a crime, the defendant is a
principal and must be treated as if he did all the things that
the other person did.[”] …
….
… So, in order to be a princip[al] of a crime, meaning that
you and someone else are together causing this crime to
occur, there has to be two things present: [“]That 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 incite, cause, encourage, assist or
otherwise advise a person or persons to actually commit the
crime.” So, here, it’s that [the co-defendant] did
something, told [the defendant] something that made [the
defendant] do this.
(emphases added). Defense counsel did not contemporaneously object to
the state’s explanation of how the “Principals” instruction applied to the
evidence.
Next, while attempting to prove the element that the defendant’s
criminal act caused the first victim’s death, the state sought to convince
the jury that the videos and still photos, along with other evidence, proved
the defendant was the shooter:
[T]his is the [element] that is a little bit more contested.
That is, is the front seat passenger of this vehicle that we see
shooting in that surveillance video [the defendant].
Now, no one is trying to pull any wool over anybody[’s] eyes.
Obviously that surveillance video is not the clearest. It’s not
7
like you can look at it and you’re like, bam, that’s [the
defendant], right? You needed additional information to get
you to that point, and that’s where the scientific evidence is
coming in, the testimony of the witnesses, as well as the
physical evidence in the case.
… Well, we know that at the time of the comparisons for
the latent prints [on the car’s front passenger inside door
handle] that [the police] … [were] able to determine that … the
latent print[] was in fact this defendant.
Then you also obviously heard from [the friend who was]
… sitting behind the driver in the back seat. [The friend] told
you … he knew [the shots were] coming from the front
passenger side of that vehicle.
But in case [you] didn’t believe that, we have the
surveillance video. … [W]e also for you created some still
shots from [the video] which is just pictures of what’s
happening as the surveillance video is playing. And you can
see on there if you watch it, that muzzle coming out, the fire
from the muzzle coming out ….
During the defense’s closing, defense counsel argued that given the
evidence indicating a rifle was the type of firearm used in the shooting,
and that only a small portion of the rifle was protruding from the front
passenger window, the evidence indicated that the shooter was the co-
defendant, who had fired the rifle while sitting in the driver’s seat:
[W]e both are going to use the same pictures and the State
just told you how these pictures show what [the State] wants you
to believe, [the defendant] firing a rifle out of the … front
passenger’s seat … and you see the front passenger seat and you
can barely see this little teeny nib of a weapon, of a rifle. We
know it’s a rifle because there’s casings that crime scene says it
came from a rifle. And … [in the photos] you’re going to see this
little teeny nib right over the [outside] door handle. How is this
a long rifle that’s being held by the front passenger’s occupant?
If [the front passenger’s occupant is] sitting in the seat by the
window and whoever’s holding this gun, if they’re sitting in the
front passenger seat, you’re going to see the gun. It’s outrageous.
….
8
At best, what [the friend testified to] was [“]I don’t know who
shot that gun. I don’t know if it was the driver who was holding
the gun, I didn’t see his hands. I don’t know if it was the front
passenger who was holding the gun, I didn’t see his hands.[”]
That’s the best [which the State] gave you ….
Defense counsel’s closing argument did not include any response to the
state’s explanation of how the “Principals” instruction applied to the
evidence.
The state’s rebuttal closing argument challenged defense counsel’s
argument that the co-defendant had been the shooter:
Defense [counsel] would have you … believe that this was
someone else in the car that fired the gun? Well, we know
that [the co-defendant] is driving … so he certainly could not
have been the shooter. But to believe Defense[] [counsel’s]
theory means that whoever was in the front [passenger] seat
allowed someone to shoot a high powered gun past the front
of their face. That is ridiculous. ….
3. The Parties’ Trial Arguments on the “Principals” Instruction
After closing arguments, but before the trial court read the instructions
to the jury, defense counsel first objected to the “Principals” instruction:
DEFENSE COUNSEL: Judge, I do want to object to the
[P]rincip[als] instruction. I told that to [the State] last
weekend that I didn’t think [the Principals instruction] was
appropriate, and [the Principals instruction] just came out
[during the State’s closing argument,] but there’s nothing in
this case[.] [T]he State] is trying to say [the defendant] is the
shooter, not a principal in this case at all, so we would object
to the [P]rincip[als] instruction.
….
… I [don’t] feel the [Princip[als] instruction [is] appropriate for
a defendant who [the State is] alleging is the sole shooter in
this case, that he did not work with somebody, and there’s no
evidence that he planned anything and helped someone else
commit a crime.
THE COURT: Okay. [State?]
9
STATE: … [T]he primary response is two-fold. Obviously the
State’s theory of the case is that two individuals planned and
one person executed this crime, that being [the defendant].
From the beginning [and] up to this point, the [co-defendant]
has come up multiple times as the person who was primarily
in contact with the reason for the motive, that being his
mother and the [first] victim having that argument prior to the
shooting. Without that, this doesn’t make sense because [the
defendant], as the evidence has shown, doesn’t have an
involvement with the [first] victim. So, the [P]rincipal[s]
instruction is very much important, not only to the State’s
case, but generally to make sense of this crime now that the
jury has it in their hands, to understand how that operates.
THE COURT: Okay, [defense counsel], I deny your request to
exclude [the Principals] instruction.
The trial court proceeded to read the instructions to the jury, including
Standard Criminal Jury Instruction 3.5(a) on “Principals”:
3.5(a) PRINCIPALS
F.S. 777.011
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
1. the defendant had a conscious intent that the criminal act
be done and
2. 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.
Fla. Std. Jury Instr. (Crim.) 3.5(a) (2019).
After the trial court completed the jury instructions, defense counsel
renewed his objection to the trial court having read the “Principals”
instruction to the jury.
10
The jury then conducted its deliberations, during which it requested to
review the market’s exterior security camera videos which the state had
introduced into evidence and shown the jury during the trial.
After completing its deliberations, the jury issued its verdicts finding
the defendant guilty of first-degree murder with a firearm of the first
victim, and guilty of the lesser included offense of attempted second-degree
murder with a firearm of the second victim. After each of the two guilty
verdicts, the jury answered “Yes” to the following three questions:
1. During the commission of this offense, did the Defendant
actually possess a firearm?
√ Yes No
2. During the commission of this offense, did the Defendant
discharge a firearm?
√ Yes No
3. During the commission of this offense, did the Defendant
discharge a firearm, which discharge caused the death
or serious bodily injury to [the first victim/the second
victim]?
√ Yes No
(emphases added).
Post-trial, the defendant filed a Florida Rule of Criminal Procedure
3.610 motion to arrest judgment, arguing various grounds, including that
the state improperly used the “Principals” instruction to obtain the guilty
verdicts. The trial court denied that motion.
The trial court sentenced the defendant on the two convictions to
concurrent sentences of life in prison.
4. The Parties’ Appellate Arguments on the “Principals” Instruction
This appeal followed. Regarding the “Principals” instruction, the
defendant argues as follows:
The trial court erred in overruling [the defendant’s]
objection to the principal liability instruction. The state
proceeded throughout trial on the theory that [the defendant]
was the actual shooter but, in probable recognition of the
weakness of their case, the state suddenly switched to a
11
principal theory in closing, arguing that [the co-defendant]
possibly committed the shooting and [the defendant] somehow
helped. But there was absolutely zero evidence to support a
principal liability theory. There was no evidence that [the
defendant] intended or assisted [the co-defendant] in shooting
[the first victim]. While [the co-defendant] apparently told [the
defendant], [the friend], and [the fourth man] about [the first
victim] disrespecting [the co-defendant’s] mother, there was
no evidence that [the co-defendant] asked [the defendant] or
any of the other young men to help him find and shoot [the
first victim]. [The defendant’s] mere presence or mere
knowledge of [the co-defendant’s] intent, to the extent [the
defendant] even knew, was not enough.
The state’s answer brief responds both procedurally and substantively.
Procedurally, the state argues that because the defendant’s trial counsel
did not object to the reading of the “Principals” instruction until after
closing arguments—and thus after the state had provided its unobjected-
to explanation of how the “Principals” instruction applied to the evidence—
the defendant’s trial counsel did not raise a contemporaneous objection,
and therefore did not preserve the issue for appellate review:
Defense counsel initially stated he had no objection to the
jury instructions. Defense counsel engaged in a classic
“gotcha” maneuver when he raised this issue after the State
presented its closing argument. [The defendant] now
essentially claims a defendant may sit idly by during his trial,
fail to raise an appropriate objection to the State’s purportedly
improper pursuit of multiple theories of guilt, and then
interpose an objection after the State has already presented
its closing argument.
Substantively, the state argues that although it presented sufficient
evidence to prove the defendant was the shooter, it also presented
sufficient evidence to prove the defendant was a principal to the crimes if
the co-defendant was the shooter. According to the state:
[A defendant] is a principal in the first degree whether he
actually commits the crime or merely aids and abets, and it is
immaterial whether the indictment or information alleges one
or the other in particular so long as the proof established he
is guilty of one or the other. …
….
12
Here, the evidence showed [the defendant] was in the [co-
defendant’s mother’s car] at the time of the shooting and was
involved in the shooting, regardless of whether he was the
actual shooter. [The friend] testified [the defendant] and [the
co-defendant] were discussing how the victim treated [the co-
defendant’s] mother and that the [first] victim would be [at the
market]. The jury could have believed that [the defendant]
aided and abetted [the co-defendant] when [the defendant]
helped clean up the interior of the [co-defendant’s mother’s
car] after the shooting. [The friend] testified that immediately
after the shooting, he saw [the defendant] and [the co-
defendant] going back and forth from the car. Thus,
regardless of whether [the defendant] was the actual shooter,
the State’s evidence showed at a minimum [that the
defendant] was one of the principals during the shooting.
The defendant has not filed a reply brief. Thus, the defendant has not
sought to rebut the state’s procedural argument that the defendant’s trial
counsel did not timely object to the “Principals” instruction in order to
preserve the objection for appeal.
5. Our Review
a. The defendant’s trial counsel did not timely object to the “Principals”
instruction in order to preserve the objection for appeal.
We agree with the state’s argument that because the defendant’s trial
counsel did not object to the reading of the “Principals” instruction until
after closing arguments—and thus after the state had provided its
unobjected-to explanation of how the “Principals” instruction applied to
the evidence—the defendant’s trial counsel did not raise a
contemporaneous objection, and therefore did not preserve the issue for
appellate review.
“Generally, a defendant must raise a contemporaneous objection to the
jury instructions to preserve an issue for appellate review.” Richards v.
State, 39 So. 3d 431, 433 (Fla. 2d DCA 2010). “The requirement of a
contemporaneous objection is based on practical necessity and basic
fairness in the operation of a judicial system. [A contemporaneous
objection] places the trial judge on notice that error may have been
committed, and provides [the trial judge] an opportunity to correct [any
error] at an early stage of the proceedings.” State v. Garcia, 346 So. 3d
581, 585 (Fla. 2022) (citation omitted).
13
Here, when the trial court, during the state’s case-in-chief, first asked
defense counsel if he had any objections to the state’s proposed jury
instructions, defense counsel responded: “I think I went over [the
instructions] with [the state] before and I think [the instructions] were in
order but I’ll just double-check.” (emphasis added). However, defense
counsel—at no point before closing arguments—objected to any of the
state’s proposed jury instructions, including the proposed standard
instruction on “Principals.” Later, during the state’s initial closing
argument, when the state quoted the “Principals” instruction for the jury,
and provided the state’s explanation of how the “Principals” instruction
applied to the evidence, defense counsel still did not object. Only after
closing arguments, but before the trial court read the instructions to the
jury, did defense counsel finally object to the “Principals” instruction. That
objection was not contemporaneous. Pursuant to Garcia, we conclude the
defendant’s trial counsel did not preserve the objection for appeal.
Because the defendant’s trial counsel did not preserve the objection for
appeal, the defendant must show in this appeal not only that the state
presented insufficient evidence to support the trial court’s reading of the
“Principals” instruction to the jury, but also that the error was
fundamental, i.e., the state could not have obtained the guilty verdicts
against the defendant without the alleged error’s assistance. See, e.g.,
Victorino v. State, 23 So. 3d 87, 101 (Fla. 2009) (“Fundamental error in a
jury instruction requires that the error reach down into the validity of the
trial itself to the extent that a verdict of guilty could not have been obtained
without the assistance of the alleged error.”) (citation and internal
quotation marks omitted). We will address each required showing in turn.
b. The state presented insufficient evidence to support the trial court’s
reading of the “Principals” instruction to the jury.
We agree with the defendant that the state presented insufficient
evidence to support the trial court’s reading of the “Principals” instruction
to the jury.
“The standard of review governing a trial court’s decision to give a
standard jury instruction is abuse of discretion. Discretion is abused only
where no reasonable [person] would take the view adopted by the trial
court.” Radler v. State, 290 So. 3d 87, 90 (Fla. 4th DCA 2020) (internal
brackets and citations omitted). However, “that discretion, as with any
issue of law[,] is strictly limited by case law.” Ramirez Ramos v. State, 274
So. 3d 395, 397 (Fla. 4th DCA 2019).
14
Case law provides that “[g]iving the [‘P]rincipals[’] instruction is error
when there is no evidence that the defendant had a conscious intent that
the crime be committed and did some act or said some word which was
intended to and in fact did incite a third party to commit the crime with
which the defendant is charged.” Hanks v. State, 43 So. 3d 917, 918 (Fla.
2d DCA 2010) (citation omitted). “Mere presence at the scene of an offense
is not sufficient to support a [‘P]rincipals[’] instruction.” Id. (citation
omitted). See also Rocker v. State, 122 So. 3d 898, 902 (Fla. 2d DCA 2013)
(the defendant’s mere presence at the scene, knowledge of the offense, and
flight from the scene were insufficient to support his conviction as a
principal for another person’s conduct); Davila v. State, 988 So. 2d 35, 38
(Fla. 2d DCA 2008) (the state presented insufficient evidence for principal
liability where “the only evidence connecting [the defendant] to the
criminal activities was his knowledge that the others wanted to commit a
robbery and his presence in the vehicle when the robbery and murder were
committed”).
Here, to the extent the state’s answer brief has pointed to three pieces
of evidence which the state now argues supported the trial court’s reading
of the “Principals” instruction to the jury, we conclude those three
arguments lack merit.
First, the state argues the evidence was sufficient to support the
“Principals” instruction because “the evidence showed [the defendant] was
in the [co-defendant’s mother’s car] at the time of the shooting and was
involved in the shooting, regardless of whether he was the actual shooter.”
The state is correct that the defendant was in the co-defendant’s mother’s
car at the time of the shooting. However, the case law cited above indicates
the defendant’s alleged knowledge that the co-defendant wanted to shoot
the first victim, and the defendant’s presence in the car when the shooting
was committed—if indeed the co-defendant was the shooter—would have
been insufficient for principal liability. Further, if the co-defendant was
the shooter, the state does not describe any evidence showing how the
defendant was “involved in the shooting.” The state also presented no
evidence that the defendant incited the co-defendant to commit the
shooting or gave a firearm to the co-defendant to commit the shooting.
Second, the state argues the evidence was sufficient to support the
“Principals” instruction because “[the friend] testified [the defendant] and
[the co-defendant] were discussing how the victim treated [the co-
defendant’s] mother and that the [first] victim would be [at the market].”
Again, however, the state does not describe any action which the defendant
may have taken to aid, abet, counsel, or otherwise procure the co-
defendant to commit the shooting, if indeed the co-defendant was the
15
shooter. See § 777.011, Fla. Stat. (2019) (“Whoever commits any criminal
offense against the state, whether felony or misdemeanor, or aids, abets,
counsels, hires, or otherwise procures such offense to be committed, and
such offense is committed or is attempted to be committed, is a principal in
the first degree and may be charged, convicted, and punished as such,
whether he or she is or is not actually or constructively present at the
commission of such offense.”) (emphasis added).
Third, the state argues the evidence was sufficient to support the
“Principals” instruction because “[t]he jury could have believed that [the
defendant] aided and abetted [the co-defendant] when [the defendant]
helped clean up the interior of the [co-defendant’s mother’s car] after the
shooting. [The friend] testified that immediately after the shooting, he saw
[the defendant] and [the co-defendant] going back and forth from the car.”
The state is correct that the friend testified he saw the defendant and the
co-defendant going back and forth from the car immediately after the
shooting. However, the friend did not testify, and the state presented no
other evidence to show, that the defendant had helped to clean up the
interior of the co-defendant’s mother’s car after the shooting.
Even if the state had presented evidence that the defendant had helped
to clean up the car, such evidence, at best, would have shown the
defendant would have been liable as an accessory after the fact, which is
different from principal liability. See § 777.03(1)(c), Fla. Stat. (2019) (“Any
person who maintains or assists the principal or an accessory before the
fact, or gives the offender any other aid, knowing that the offender had
committed a crime and such crime was a capital, life, first degree, or
second degree felony, or had been an accessory thereto before the fact,
with the intent that the offender avoids or escapes detection, arrest, trial,
or punishment, is an accessory after the fact.”).
c. The error in reading the “Principals” instruction to the jury was not
fundamental, because the state could have obtained the guilty
verdicts against the defendant without the alleged error’s assistance.
We conclude the error in reading the “Principals” instruction to the
jury—based on the lack of evidence to support the instruction—was not
fundamental, because the state could have obtained the guilty verdicts
against the defendant without the alleged error’s assistance. We have
reached this conclusion for two reasons.
First, the state’s central theory of the case was that the defendant was
the shooter. The state presented sufficient evidence from which the jury
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could have found beyond a reasonable doubt that the defendant was, in
fact, the shooter.
According to the friend’s testimony, after the co-defendant spoke by
phone with the defendant, the defendant immediately said he had to go.
When the co-defendant drove up in his mother’s car, the defendant
immediately got into the car’s front passenger seat without being told to
do so or asking to do so. When the co-defendant told the other men in the
car that the first victim had pulled a gun on the co-defendant’s mother,
everyone in the car became upset. When the co-defendant drove the car
around the corner to pass the market where the first victim was standing,
the friend was startled by the loud shots which had come from the car’s
front passenger seat, where the defendant was sitting. And the market’s
exterior security cameras recorded the car as it turned the corner, drove
past the market where the first victim was located, had someone fire shots
from the open front passenger seat window, and then continued down the
street. The car, with the co-defendant at the wheel, never stopped moving.
That evidence, considered together, could have led the jury to have
found beyond a reasonable doubt that the defendant was the shooter, as
reflected in the jury’s verdict. The jury not only found the defendant guilty
of first-degree murder with a firearm of the first victim and guilty of the
lesser included offense of attempted second-degree murder with a firearm
of the second victim, but more importantly, as part of those verdicts, the
jury found that during the commission of these offenses, the defendant
“actually possess[ed] a firearm” and “discharged a firearm” … “which
discharge caused” the first victim’s death and the second victim’s serious
bodily injury.
We recognize the defendant’s trial counsel propounded a viable
alternative theory that the co-defendant was the shooter. The defendant’s
trial counsel supported that theory with the friend’s deposition testimony
regarding the firearm’s length, the crime scene investigator’s testimony
regarding the spent bullet casings’ size, and the security videos showing
only a small portion of the firearm’s muzzle protruding from the car’s open
front passenger seat window. Defense counsel also argued the co-
defendant had the strongest motive to seek revenge against the first victim
for having pulled a gun on the co-defendant’s mother. However, the jury
had the opportunity to weigh the evidence and arguments upon which the
defense relied, and nevertheless found the defendant was the shooter.
Second, although the state’s answer brief has attempted to show how
the defendant could have been a principal if the co-defendant had been
the shooter, the state’s trial counsel never actually argued to the jury that
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the co-defendant had been the shooter. Instead, the record shows that,
during the state’s initial closing argument, after the state quoted the
“Principals” instruction to the jury, the state’s only sentence attempting to
apply that instruction to the evidence was “So, here, it’s that [the co-
defendant] did something, told [the defendant] something that made
[the defendant] do this.” (emphases added).
Thus, the state did not attempt to show that the co-defendant was the
shooter, with the defendant being the principal who “had a conscious
intent that the criminal act be done” and “did some act or said some word
which was intended to and which did incite, cause, encourage, assist or
advise [the co-defendant] to actually commit or attempt to commit the
crime.” Rather, the state attempted to show that the defendant was the
shooter, with the co-defendant being the principal who “had a conscious
intent that the criminal act be done” and “did some act or said some word
which was intended to and which did incite, cause, encourage, assist or
advise [the defendant] to actually commit or attempt to commit the crime.”
We can only surmise that the state’s trial counsel, in proposing the
“Principals” instruction, simply may have misunderstood the instruction’s
lack of application to the direct evidence of guilt which the state presented
in this case, as summarized above.
Conclusion
In sum, although we agree with the defendant’s argument that the state
presented insufficient evidence to support the trial court’s reading of the
“Principals” instruction to the jury, we conclude the defendant’s trial
counsel did not timely object to the “Principals” instruction, and therefore
did not preserve that objection for appeal. We further conclude that the
trial court’s reading of the “Principals” instruction to the jury did not rise
to the level of fundamental error, because the state could have obtained
the guilty verdicts against the defendant without the alleged error’s
assistance. Thus, we affirm the defendant’s convictions and sentences.
On the five remaining arguments which the defendant has raised in this
appeal, we affirm without further discussion.
KLINGENSMITH, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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