5D04-2785 Kenneth Tolbertv. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-2785

Case Date: 02/06/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

KENNETH TOLBERT, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 10, 2006 Appeal from the Circuit Court for Orange County, Bob Wattles, Judge. James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D04-2785

SAWAYA, J. Kenneth Tolbert was convicted of home invasion robbery with a firearm, kidnapping with intent to commit a felony with a firearm, two counts of kidnapping with intent to commit a felony, aggravated battery with a firearm, aggravated battery with a deadly weapon, aggravated battery causing great bodily harm, and robbery with a firearm. Tolbert argues that erroneous jury instructions entitle him to reversal of his

convictions and a new trial. Specifically, he argues that insertion of "and/or" between his name and the name of his codefendant, Carlos Reed, in the jury instructions allowed the jury to wrongfully convict him--an innocent man--for the criminal conduct of Reed. Tolbert also argues that the trial court erred in allowing testimony of his drug sales to be presented to the jury. 1 We affirm. The facts are convoluted and confusing, primarily because they involve a group of individuals whose minds were diverted by indulgence in alcohol and illegal drugs over an extended period of time. However, it is not necessary to discuss the minutia of facts in this opinion in order to resolve the issues before us. Therefore, we will present the factual background in summary form. The sequence of events that led to the criminal conduct we review was set in motion when four individuals began a day of merriment involving extensive drug and alcohol use. When their revelry depleted their drug supply, they turned to Tolbert, a drug dealer, for more. Tolbert discovered from one of these individuals that a safe located at a certain residence contained a rather large amount of cash. With a

borrowed truck obtained with bartered drugs, Tolbert proceeded to the residence with his associate, Reed, and another unidentified individual to relieve the residents of the money. Tolbert, Reed, and the third individual entered the home at gunpoint, battered the residents, and threatened to kill them if they did not open the safe. Unfortunately for Tolbert, the residents were so frightened that they could not successfully apply the

Tolbert also argues that the trial court erred in denying his motion to sever his trial from Reed's. Although it appears that Tolbert only made a motion for separate juries, we affirm the trial court's ruling on this issue without further discussion. 2

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combination and, therefore, could not open the safe. Needless to say, as sometimes occurs when a criminal enterprise goes awry, when the initial plan fails another is conceived, so Tolbert, who was apparently unschooled in the art of safe-cracking, simply loaded the safe onto the back of the borrowed truck and proceeded home. There, Tolbert and his associates were eventually successful in cutting the safe open and gaining access to its contents. The unfortunate residents summoned the police. Tolbert was eventually

identified as one of the robbers, and the police proceeded to Tolbert's home, search warrant in hand, where they found the contents of the safe located in the attic above Tolbert's bedroom. Tolbert and Reed were arrested, charged with the offenses

aforementioned, and tried together. At the appropriate time, the trial court instructed the jury that in order to find either defendant guilty of any of the eight counts, the State had to prove that "KENNETH TOLBERT AND/OR CARLOS REED" committed the essential elements of each offense.2 Tolbert was convicted, but Reed was acquitted of all

charges. Obviously displeased with the verdict, Tolbert appeals, raising the issues previously discussed. Turning first to the instructional error involving inclusion of

"and/or" between Tolbert's and Reed's names, the State contends that Tolbert failed to

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For example, the jury was instructed on counts two, three, and four: To prove the crime of kidnapping with intent to commit a felony, State must prove . . . . KENNETH TOLBERT AND/OR CARLOS REED forcibly, secretly or by threat confined abducted or imprisoned . . . . KENNETH TOLBERT AND/OR CARLOS REED had no lawful authority. . . . KENNETH TOLBERT AND/OR CARLOS REED acted with intent . . . . 3

object to the jury instructions and, therefore, waived the error. Tolbert argues that the error is fundamental and requires reversal. The courts have consistently agreed that use of "and/or" between the names of codefendants in jury instructions is fundamental error. This general rule is premised on the rationale that use of this verbiage misleads the jury into believing that the conviction of a defendant may be based solely on the conduct of the codefendant. Pizzo v. State, 916 So. 2d 828 (Fla. 2d DCA 2005); Davis v. State, 895 So. 2d 1195 (Fla. 2d DCA 2005); Cabrera v. State , 890 So. 2d 506, 508 (Fla. 2d DCA 2005) ("The improper use of the conjunction `and/or' in the written and oral instructions was fundamental error because the jury could have convicted Cabrera based solely upon a conclusion that defendant Rios' conduct satisfied an element of the offenses."); Concepcion v. State , 857 So. 2d 299 (Fla. 5th DCA 2003); Davis v. State, 804 So. 2d 400 (Fla. 4th DCA 2001); Williams v. State , 774 So. 2d 841, 843 (Fla. 4th DCA 2000) ("Because Williams' jury may have been misled into thinking that it could convict him based solely on Adderly's conduct, we hold that the instructions were fundamental error."). Hence, the purpose for the general rule is to prevent one individual from being improperly convicted for the criminal conduct of another. If the purpose for the rule is not served in a particular case, the rule may be inapplicable. We believe that when the codefendant is acquitted of all charges, the jury cannot be misled into believing that the defendant can be held criminally responsible for the conduct of the codefendant. The illogic that emanates from application of the rule in such a situation is readily apparent and leads us to conclude that the rule does not apply in cases where the codefendant was acquitted.

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We note that most of the decisions we have cited that apply the instructional rule as fundamental error do not mention the fact that the codefendants were also convicted. Perhaps this absence of factual information in the opinions can be attributed to the procedural course followed by codefendants in filing separate appeals. Therefore, there is no need for the appellate courts to dwell upon the codefendant's fate before the trial court. Nevertheless, we are able to discern that each case involves convictions of the codefendant from the citation of each decision as precedent in the opinions subsequently rendered in the codefendant's appeals, which likewise reversed the codefendant's convictions based on the same instructional error. 3 Moreover, we have not been presented with a case where the rule was applied despite acquittal of the codefendant. Accordingly, we conclude that because Reed, the codefendant, was

See, e.g., Pizzo v. State, 910 So. 2d 287, 293-94 (Fla. 2d DCA 2005) ("As we did in Pizzo I [Pizzo v. State, 916 So. 2d 828 (Fla. 2d DCA 2005)], we reverse Mrs. Pizzo's conviction for conspiracy to commit racketeering based on our determination that the trial court committed fundamental error in instructing the jury on the crime of conspiracy to commit racketeering."); Rios v. State, 905 So. 2d 931, 932 (Fla. 2d DCA 2005) (citing Cabrera v. State , 890 So. 2d 506 (Fla. 2d DCA 2005), to reverse the codefendant's conviction explaining that "the trial court committed fundamental error by including the conjunction and/or between Rios's and Cabrera's names in the jury instructions for the various crimes"); Randolph v. State , 903 So. 2d 264 (Fla. 2d DCA 2005) (citing Davis v. State , 895 So. 2d 1195 (Fla. 2d DCA 2005), to reverse the codefendant's conviction explaining that "[b]ecause the instructions given for Randolph were identical to those given for Davis, we also reverse Randolph's convictions and sentences and remand for a new trial"); Bynes v. State , 798 So. 2d 49 (Fla. 4th DCA 2001) ("In Davis v. State, [804 So. 2d 400 (Fla. 4th DCA 2001)], we reversed the conviction of appellant's co-defendant, his wife, on the ground that the jury instructions on entrapment were inaccurate and misleading. We follow Davis and reverse appellant's conviction for trafficking in cocaine and conspiracy to traffic in cocaine on the same ground."). We note that in Concepcion v. State , 857 So. 2d 299 (Fla. 5th DCA 2003), this court consolidated the appeals of the defendant and his codefendants and reversed each conviction. We did not find a companion case to Williams v. State , 774 So. 2d 841 (Fla. 4th DCA 2000).

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acquitted in the instant case, the fundamental instructional error rule advanced by Tolbert does not apply. Next, Tolbert claims that the trial court erred in allowing testimony of his drug sales to be presented to the jury. He had filed a motion in limine prior to trial to prohibit introduction of this evidence, and after argument was presented, the trial court reserved ruling on the motion. That ruling was never made, and there is nothing in the record to suggest that Tolbert subsequently pressed the trial court for a ruling or objected when the testimony was introduced. The State notes the provision of section 90.104(1), Florida Statutes (2003), which was amended by the 2003 Legislature to provide in pertinent part that "[i]f the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." The Legislature specifically provided that this amendment became law on July 1, 2003,4 which is well before the date Tolbert is alleged to have committed his crimes. But the State argues that the amendment is inapplicable because it has never been adopted by the Florida Supreme Court and is, therefore, an unconstitutional usurpation of the court's authority to adopt rules of procedure. The State is far too dismissive of the amendment's application here because the court has specifically adopted it, effective on the date the Legislature said it became law. In re Amendments to The Florida Evidence Code-Section 90.104, 914 So. 2d 940, 941 (Fla. 2005) ("After considering the Committee's original and supplemental reports and the comments filed, we adopt chapter 2003-259, section 1, as provided in the

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See Ch. 2003-259,

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