Antoine E. McCloud v. State of Florida , 260 So. 3d 911 ( 2018 )

Supreme Court of Florida
____________
No. SC17-2011
____________
ANTOINE E. MCCLOUD,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
December 20, 2018
LEWIS, J.
This case is before the Court for review of the decision of the Second
District Court of Appeal in McCloud v. State, 224 So. 3d 842 (Fla. 2d DCA 2017).
The district court certified that its decision is in direct conflict with the decision of
the First District Court of Appeal in McCray v. State, 171 So. 3d 831 (Fla. 1st
DCA 2015). McCloud, 224 So. 3d at 847. We have jurisdiction. See art. V,
§ 3(b)(4), Fla. Const. This conflict concerns the proper interpretation of Florida’s
witness tampering statute: section 914.22, Florida Statutes (2014). For the reasons
that follow, we approve the decision below and disapprove of the First District’s
precedent discussed in McCray.
FACTUAL AND PROCEDURAL BACKGROUND
This case presents a pure question of statutory interpretation; however, to the
extent that the facts are relevant, the Second District sufficiently recited them:
The incident that gave rise to the witness tampering charge
occurred on the morning of March 8, 2015. Mr. McCloud awoke to
noise made by his six-year-old daughter [(the younger daughter)] in
the living area of his home. Mr. McCloud began yelling at his
daughter to play more quietly and threatened to spank her. The
victim, who was the child’s mother and Mr. McCloud’s wife, also
awoke and told Mr. McCloud to calm down. Upon being told to calm
down, Mr. McCloud became angry, approached the victim, who was
still in bed, and screamed at her to stop interfering with his attempts to
discipline their daughter.
The victim testified that Mr. McCloud then pushed her in the
chest and poked her in the forehead about two to three times. After he
stopped pushing her, Mr. McCloud then left the bedroom. Upon his
exit, the victim began shouting to her twelve-year-old daughter [(the
older daughter)] to call for help. Mr. McCloud returned to the
bedroom with a gun in his hand. He threatened to kill the victim if
she ever took the children from him. Mr. McCloud then left the
bedroom again and approached the older daughter, who was watching
the incident unfold from the hallway outside of the bedroom. The
victim testified that Mr. McCloud took the older daughter’s cell phone
out of her hands and said, “Are you going to call those people on me?
Are you telling my daughter to call those people on me?” The victim
also testified that at some point during the incident, Mr. McCloud
took her cell phone and threw it to the ground, causing the battery to
fall out.
The older daughter testified that upon hearing the victim shout
for help, she left her bedroom and observed from the hallway that Mr.
McCloud was on top of the victim, apparently holding her arms down
for about twenty seconds. She also saw that the victim’s phone was
broken on the floor. The older daughter also testified that as she was
standing in the hallway, Mr. McCloud approached her and grabbed
her cell phone out of her hands. The older daughter stated that upon
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seizing her cell phone, Mr. McCloud stated, “You can’t call the cops
on me. You can’t get my kids to call the cops on me.”
Mr. McCloud took the stand in his own defense at trial. He
testified that he never hurt the victim and that he took the phone from
his older daughter as a form of punishment for her failure to clean the
house. He further testified that at the time he took the phone from his
older daughter, the phone’s screen was black and that there was no
phone call in progress.
At the close of the State’s case, the defense moved for a
judgment of acquittal. Defense counsel argued that the evidence was
insufficient to sustain a conviction for witness tampering because
under McCray [171 So. 3d at 832], the State was required to and
failed to present evidence that “the victim [or witness] was attempting
to contact law enforcement during the time of the incident.” The trial
court denied the motion, finding that the State’s evidence was
sufficient to present the case to the jury. The jury returned a verdict
finding Mr. McCloud guilty of tampering with a witness as charged.
It also found him guilty of simple battery, a misdemeanor in the first
degree, and assault, a misdemeanor in the second degree.[n.1]
[n.1] Mr. McCloud does not challenge his convictions
for battery and assault.
McCloud, 224 So. 3d at 843-44.
McCloud appealed the denial of motion for judgment of acquittal to the
Second District, relying upon the First District’s precedent articulated in McCray.
Id. The Second District rejected McCray, certified conflict with the decision, and
affirmed McCloud’s conviction for witness tampering. Id. at 847. 1
1. Unrelatedly, the Second District vacated McCloud’s sentence, remanding
for a new sentencing hearing due to scrivener’s and computation errors in the
judgment and sentencing scoresheet. McCloud, 224 So. 2d at 844, 847.
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This review follows.
ANALYSIS
The issue central to the certified conflict is whether section 914.22(1)(e),
Florida Statutes, requires the State to demonstrate that a witness attempted to
contact law enforcement to prove its case in chief on witness tampering. Based on
the plain language of the statute, we conclude that the statute does not designate an
attempt to contact law enforcement as an element of the crime; accordingly, the
Second District’s interpretation below was correct.
Standard of Review and Legal Standard
This Court undertakes de novo review for questions of statutory
interpretation. E.g., Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007). The
purpose of this endeavor is to effectuate the Legislature’s intent because
“legislative intent is the polestar that guides a court’s statutory construction
analysis.” State v. J.M., 824 So. 2d 105, 109 (Fla. 2002); e.g., In re Ginsberg’s
Estate, 50 So. 2d 539, 542 (Fla. 1951) (“It is a fundamental rule in statutory
construction that the intention of the Legislature in the enactment of a statute
should be ascertained and effectuated.”); Getzen v. Sumter Cty., 103 So. 104, 107
(Fla. 1925) (“The intent of organic or statutory provisions is the essence of the
law.”); State v. Patterson, 65 So. 659, 660 (Fla. 1914) (“[L]egislative intent . . . is
the essence and vital force of the law.”); State v. Atlantic Coast Line R.R. Co., 47
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So. 969, 984 (Fla. 1908) (“In construing and applying a duly enacted statute, the
valid legislative intent is the guiding star.”); Curry v. Lehman, 47 So. 18, 20 (Fla.
1908) (“[T]he primary rule of construction is to ascertain and give effect to that
intent.”); 48A Fla. Jur. 2d, Statutes § 116 (2014) (“The primary rule of statutory
construction, and the ultimate goal in construing a statutory provision, is to give
effect to legislative intent.” (footnotes omitted)); 2A Norman J. Singer, Statutes
and Statutory Construction § 45:5 (7th ed. 2014) (“[T]he essential idea that
legislative will governs decisions on statutory construction has always been the test
most often declared by courts.”); see also Heydon’s Case, (1584) 76 Eng. Rep. 637
(Exch.) (detailing the traditional common law rule of legislative intent guiding
statutory construction). In order to “discern legislative intent, this Court looks first
to the plain and obvious meaning of the statute’s text.” Smith v. State, 204 So. 3d
18, 21 (Fla. 2016) (quoting W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 2d 1, 9 (Fla.
2012)). If the statute is “clear and unambiguous,” then this Court does not look
beyond the plain language or employ the rules of construction to determine
legislative intent—it simply applies the law. Gaulden v. State, 195 So. 3d 1123,
1125 (Fla. 2016) (quoting Borden v. E.-Eur. Ins. Co., 921 So. 2d 587, 595 (Fla.
2006)).2
2. Our well-established polestar precedent is supported by Holly v. Auld,
450 So. 2d 217 (Fla. 1984), which assumes that legislative intent is the guiding
principle of our statutory interpretation analyses. Id. at 219 (“[I]t is not the court’s
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Section 914.22(1)(e), Florida Statutes
In pertinent part, the witness tampering statute is clear and unambiguous:
(1) A person who knowingly uses intimidation or physical
force, or threatens another person, or attempts to do so, or engages in
misleading conduct toward another person, or offers pecuniary benefit
or gain to another person, with intent to cause or induce any person to:
....
duty or prerogative to modify or shade clearly expressed legislative intent in order
to uphold a policy favored by the court.”); id. (“The preamble and language of that
enactment readily reveal the legislature’s intent and its policy reasons.”); id. at 220(“Neither the language of the statute, nor the legislative intent discernable
therefrom, admits of an interpretation which would limit the discovery privilege.”).
Also, the point of law often cited in Holly actually comes from A.R. Douglas, Inc.
v. McRainey, 137 So. 157 (Fla. 1931). There—nearly 100 years ago—we stated
essentially the exact standard used here, beginning with intent as the polestar:
The intention and meaning of the Legislature must primarily be
determined from the language of the statute itself and not from
conjectures aliunde. When the language of the statute is clear and
unambiguous and conveys a clear and definite meaning, there is no
occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.
Id. at 159. Much of the disagreement on this point is a matter of semantics, better
left for law review articles’ “preoccupation with the choice between textualist and
intentionalist theories of interpretation.” See William S. Blatt, Missing the Mark:
An Overlooked Statute Redefines the Debate Over Statutory Interpretation, 64 U.
Miami. L. Rev. 641, 662 (2010). Many years ago, we correctly decided not to
wade into that murky debate by collapsing the two into one. When the Legislature
has clearly and unambiguously spoken, the resulting statute demonstrates
legislative intent and we simply apply the plain language. E.g., Streeter v.
Sullivan, 509 So. 2d 268, 271 (Fla. 1987); State v. Egan, 287 So. 2d 1, 4 (Fla.
1973). And Florida judges are savvy enough to apply that simple, traditional rule
like their predecessors have done for years.
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(e) Hinder, delay, or prevent the communication to a law
enforcement officer or judge of information relating to the
commission or possible commission of an offense . . . .
....
commits the crime of tampering with a witness, victim, or informant.
§ 914.22(1)(e), Fla. Stat. To prove witness tampering under that plain language,
therefore, the State must demonstrate that a defendant knowingly acted, threatened,
or attempted either, with the specific intent to “[h]inder, delay, or prevent” a
victim’s communication to law enforcement with regard to a criminal offense. Id.;
see Taffe v. State, 232 So. 3d 431, 433 (Fla. 4th DCA 2017); McCloud, 224 So. 3d
at 846; Gill v. State, 622 So. 2d 92, 93 (Fla. 2d DCA 1993); see also McAlpin v.
Crim. Justice Standards & Training Comm’n, 155 So. 3d 416, 420 (Fla. 1st DCA
2014); cf. State v. Gray, 435 So. 2d 816, 820 (Fla. 1983) (holding that the
predecessor to this statute did not create a specific intent crime). 3 The conflict here
relates to whether the statute further requires the State to establish that the witness
attempted to contact law enforcement during the commission of the underlying
criminal offense. McCloud, 224 So. 3d at 845. The Second District held below
that the plain language of the statute does not include a witness’s attempt to contact
law enforcement as an element of the crime, id. at 845-46; whereas the First
3. Section 914.22, Florida Statutes, applies to witnesses, victims, and
informants alike. We use the terms interchangeably below.
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District, on nearly identical facts, came to the opposite conclusion in McCray, 171
So. 3d at 832. Based on the plain language of section 914.22(1)(e), Florida
Statutes—which is clear and unambiguous—we conclude that the First District
misread the statute and improperly added an element to the offense in
contravention of the plain language.
Nothing in the plain language of section 914.22(1)(e) indicates that the
elements of witness tampering include a witness’s attempt to contact law
enforcement, either during or after the commission of the offense. See
§ 914.22(1)(e), Fla. Stat.; Taffe, 232 So. 3d at 434; McCloud, 224 So. 3d at 846.
Rather, the plain language focuses on a defendant’s actus reus and mens rea; it
does not require any action on the part of a victim. “It is axiomatic that where the
legislature has defined a crime in specific terms, the courts are without authority to
define it differently.” State v. Jackson, 526 So. 2d 58, 59 (Fla. 1988). Instead of
following this basic rule, the First District redefined the crime of witness
tampering, adding an additional element. See McCray, 171 So. 3d at 832. That
was error.
McCloud attempts to salvage the First District’s interpretation by looking to
section 914.22’s “knowingly” requirement for support. Without a witness’s
attempt to contact the police, as his contention goes, “the State is unable to show
that a defendant had the intent to knowingly hinder, delay, or prevent
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communication about a crime to law enforcement.” Initial Br. 12. Yet McCloud
misreads the statute by rearranging its words. The Legislature did not define
witness tampering with “knowingly” modifying the prohibited result of hindering,
delaying, or preventing communication with law enforcement, as McCloud argues.
The plain language of section 914.22(1)(e) makes clear that “knowingly” modifies
acts of intimidation, threats, or physical force (among others). § 914.22(1)(e), Fla.
Stat. This construction establishes that the act itself must be committed with
“actual knowledge” or “voluntarily and intentionally.” See Shaw v. State, 510 So.
2d 349, 351 (Fla. 2d DCA 1987); see also O’Neill v. State, 684 So. 2d 720, 722 n.5
(Fla. 1996). Because witness tampering is a specific intent crime, however, the
statute separately requires that the knowing act be done “with intent to cause or
induce” a witness to “[h]inder, delay, or prevent the communication” with law
enforcement. § 914.22(1)(e), Fla. Stat.4 Clearly, the knowledge requirement does
4. A specific intent crime is “an act when accompanied by some intent other
than the intent to do the act itself or the intent (or presumed intent) to cause the
natural and necessary consequences of the act.” Linehan v. State, 442 So. 2d 244,
247 (Fla. 2d DCA 1983), approved in result, 476 So. 2d 1262 (Fla. 1985), receded
from on other grounds by Coicou v. State, 39 So. 3d 237 (Fla. 2010); see, e.g.,
Frey v. State, 708 So. 2d 918, 919 (Fla. 1998); Hentz v. State, 62 So. 3d 1184,
1190 (Fla. 4th DCA 2011); see also Eric A. Johnson, Understanding General and
Specific Intent: Eight Things I Know For Sure, 13 Ohio St. J. Crim. L. 521, 525
(2016) (“[A] crime will qualify as a specific-intent offense if it requires the state to
prove that the defendant intended to ‘achieve some additional consequence’
beyond the commission of ‘the proscribed act.’ ” (quoting People v. Hood, 462
P.2d 370, 378 (Cal. 1969))); 21 Am. Jur. 2d, Criminal Law § 114 (2018) (“A
‘specific intent’ crime is one in which an act was committed voluntarily and
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not apply to a defendant’s intent to bring about the prohibited result of obstructing
justice because those are two separate elements of the crime. By misreading
section 914.22(1)(e), Florida Statutes, McCloud attempts to obfuscate the fact that
it was his actions and intent to tamper—not the victim’s or older daughter’s
responses—which were determinative here. Thus, McCloud’s contentions cannot
palliate the First District’s misreading of the statute’s plain language.
The Certified Conflict
In McCray, the First District addressed a similar fact pattern where the
defendant broke the victim’s phone during the commission of a battery. 171 So.
3d at 832. Interpreting the plain language of section 914.22, the court stated that
“it [wa]s necessary to present evidence that the victim was attempting to contact
law enforcement during the time of the incident to support a conviction under this
statute.” Id. There was no explanation for this interpretation; rather, the First
District merely applied its earlier reading of the statute. Id. (citing Thompson v.
State, 153 So. 3d 996, 997 (Fla. 1st DCA 2015)). The court reasoned that the
victim’s testimony that she was “trying to call somebody” when the defendant
broke her phone was insufficient to establish that she was attempting to contact law
purposely with specific intent to do something the law forbids; the defendant acts
not only with knowledge of what he or she is doing, but also does so with the
objective of completing some unlawful act.”).
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enforcement. Id. Due to the lack of evidence under its reading of the statute, the
district court reversed the witness tampering conviction. Id. at 833.
Likewise, Thompson—which formed the basis of the First District’s
interpretation in McCray—followed the same format, except it cited Longwell v.
State, 123 So. 3d 1197, 1198 (Fla. 1st DCA 2013), as support. Thompson, 153 So.
3d at 997. Longwell represented the first interpretation of the statute to include a
witness’s attempt to contact law enforcement as an element of the crime. 123 So.
3d at 1198. The First District there also failed to explain why it read this
requirement into the plain language. Id. Instead, the court quoted the statute, then
it inexplicably stated its conclusion:
Based on our review of the record, we conclude that no
evidence was presented establishing that [the victim] was attempting
to contact law enforcement during the altercation with [the defendant].
The State accurately and candidly indicated that the evidence
presented did not establish a prima facie case of guilt as to the
tampering charge. Because [the victim] denies calling 911, and
because no witnesses testified that [the victim] was attempting to
contact law enforcement during the altercation, there is insufficient
evidence as to an essential element of the crime.
Id. Nowhere in the First District’s analysis is there any explanation for reading an
additional element of the crime into section 914.22. See id. Notably, however, the
Longwell court noted the State’s concession that it failed to make a prima facie
case for witness tampering. Id. Moreover, the victim there testified that her phone
broke during the altercation because she dropped it, which contradicted her earlier
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statement that the defendant smashed the phone. Id. at 1197. Regardless of the
First District’s interpretation of the statute, the victim’s testimony in Longwell
controverted a witness tampering charge. Because the victim testified that her
phone broke when she dropped it—and no other evidence was offered to
demonstrate prevention of communication—there was no evidence of the
defendant committing an act with the specific intent to hinder, prevent, or delay the
victim’s communication with law enforcement; therefore, the defendant did not
violate the statute. See id.; see also § 914.22(1)(e), Fla. Stat. Thus, despite the
First District’s misinterpretation, the court likely reached the correct result in
Longwell, albeit for the wrong reason. 5
Conversely, the Second District below rejected the First District’s precedent.
McCloud, 224 So. 3d at 845-46. According to the Second District, that
interpretation “add[ed] another element to a crime that is otherwise clearly
5. Over the summer, it appears that the First District recognized its error and
attempted to walk back its precedent. Frazier v. State, 250 So. 3d 794, 797-99
(Fla. 1st DCA 2018). However, its previous holdings were clear, and we must
correct that misinterpretation. See McCray, 171 So. 3d at 833 (“Because there was
no evidence that [the victim] was attempting to contact law enforcement, the trial
court erred in denying [the defendant’s] motion for judgment of acquittal. See
Longwell [123 So. 3d at 1198]. We, therefore, REVERSE the conviction for
tampering with a victim or witness.”). Moreover, the statute is not a general rule
that changes based on the facts of the case, as the First District suggests, Frazier,
250 So. 3d at 799; section 914.22, Florida Statutes, is a clear, unambiguous, and
fixed definition of a crime that we must apply uniformly.
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defined.” Id. at 846. Instead, the district court held that the plain language of
section 914.22(1)(e) “requires the State to prove that the accused knowingly took
some action with the intent to hinder, delay, or prevent the witness from
communicating information to law enforcement ‘relating to [not during] the
commission or possible commission of an offense.’ ” Id. (alteration in original)
(quoting § 914.22(1)(e), Fla. Stat.). The court reasoned that Longwell, and its
progeny, “contravenes the plain meaning of the statute,” “lead[s] to absurd
results,” and “severely restricts the statute’s applicability.” Id.
Under its correct reading of the statute’s plain language, the Second District
concluded that the State presented competent, substantial evidence to support
McCloud’s conviction for witness tampering. Id. Specifically, the testimony
established that McCloud took the older daughter’s cell phone and smashed the
victim’s phone. Id. As he grabbed the older daughter’s phone, McCloud declared,
“You can’t call the cops on me. You can’t get my kids to call the cops on me.” Id.
At some point, McCloud retrieved a handgun and threatened to kill the victim. Id.
at 843. Based on that evidence, the district court concluded that McCloud
“knowingly used physical force, intimidation, or a threat with the intent to hinder
or prevent a communication by either the victim or the older daughter to law
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enforcement regarding the assault and battery.” Id. at 846; see § 914.22(1)(e) Fla.
Stat.6
More recently, the Fourth District adopted the interpretation below. Taffe,
232 So. 3d at 433 (“We reject this authority [(McCray, Thompson, and Longwell)]
and instead adopt the Second District’s holding in McCloud.”). Similar to the
Second District’s approach in McCloud, the Fourth District properly applied the
statute as written:
In our view, there is simply nothing within the plain language
of the witness tampering statute requiring the State to prove the
witness was attempting to contact law enforcement when the threat
was made. . . . Indeed, as outlined by the Second District, adopting the
logic of the First District in this case would lead to an “absurd result.”
Id. at 434.
In addition to its misinterpretation of the plain language, the First District’s
precedent does in practice lead to absurd results. One narrow exception to the
plain meaning rule may be “made where a literal interpretation of a statute yields
absurd results.” Jackson, 526 So. 2d at 59. Yet, in this scenario, the First District
ignored the plain language to deploy a reading that yields absurd results rather than
avoids them. See Taffe, 232 So. 3d at 434; cf. Warner v. City of Boca Raton, 887
So. 2d 1023, 1033 n.9 (Fla. 2004) (“[A] statutory provision should not be
6. The Second District reiterated its position in Williams v. State, 246 So. 3d
529, 530-31 (Fla. 2d DCA 2018).
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construed in such a way that it renders the statute meaningless or leads to absurd
results.”). Under the First District’s interpretation of section 914.22, “a defendant
could never be held criminally liable for witness tampering so long as the
defendant ensures that the witness is unable to contact law enforcement at the time
the threats are made.” Taffe, 232 So. 3d at 434. For instance, if a defendant
kidnaps or murders a witness before an attempt to contact the police, then the State
would almost never be able to prove its case in chief under McCray. See id. The
facts of Taffe bear out this reality. The defendant there robbed and kidnapped a
victim, holding him at gunpoint while discussing with his codefendants whether or
not to murder the victim. Id. at 433. After a codefendant’s cooler head prevailed,
the men warned the victim that they would kill him and his family if he ever
contacted the police before allowing him to leave. Id. At no point during that
encounter was the victim ever able to contact law enforcement; thus, under the
First District’s interpretation in McCray, the defendant did not commit witness
tampering—despite his clear violation of the statute’s plain language—because the
victim did not attempt to contact law enforcement with a gun to his head.
Compare § 914.22(1)(e), Fla. Stat. (criminalizing threats of physical force to
victims with the intent to prevent communication with law enforcement), with
McCray, 171 So. 3d at 832 (“[I]t is necessary to present evidence that the victim
was attempting to contact law enforcement during the time of the incident to
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support a conviction . . . .”). An absurd result such as this cannot stand in the face
of the Legislature’s clear guidance and attempt to protect victims from threatening
actions.
CONCLUSION
Accordingly, we approve the Second District’s decision below in McCloud
and disapprove the First District’s line of precedent articulated in McCray.
It is so ordered.
PARIENTE, QUINCE, POLSTON, and LABARGA, JJ., concur.
CANADY, C.J., concurs in result.
LAWSON, J., concurs specially with an opinion, in which CANADY, C.J.,
concurs.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.
LAWSON, J., specially concurring.
I agree with the majority that the statutory construction issue presented by
this case is answered by the unambiguous language of section 914.22, Florida
Statutes (2014). I also agree that we should approve the decision on review,
McCloud v. State, 224 So. 3d 842 (Fla. 2d DCA 2017), and disapprove the conflict
cases for the reasons explained in the majority’s analysis of the plain language of
that statute. I disagree with the majority’s preliminary statement that in all cases
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“legislative intent” should be “the polestar that guides a court’s statutory
construction analysis,” majority op. at 4 (quoting State v. J.M., 824 So. 2d 105, 109
(Fla. 2002)), for the reasons explained in Schoeff v. R.J. Reynolds Tobacco Co.,
232 So. 3d 294, 312-14 (Fla. 2017) (Lawson, J., concurring in part and dissenting
in part).
CANADY, C.J., concurs.
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
Second District - Case No. 2D15-5289
(Hillsborough County)
Howard L. “Rex” Dimmig, II, Public Defender, and William L. Sharwell, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, C. Suzanne Beschard,
Bureau Chief, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa,
Florida,
for Respondent
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