Rodney L. Long Jr. v. State of Florida , 188 So. 3d 116 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RODNEY L. LONG JR., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-2272
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed April 4, 2016.
Petition Alleging Ineffective Assistance of Appellate Counsel -- Original
Jurisdiction.
Rodney L. Long, Jr., pro se, Petitioner.
Pamela Jo Bondi, Attorney General and Michael McDermott, Assistant Attorney
General, Tallahassee, for Respondent.
WOLF, J.
In Long v. State, 156 So. 3d 1080 (Fla. 1st DCA 2015), this court affirmed
Rodney Long’s two convictions of burglary of a dwelling, one committed at the
Webb residence and the other at the McGowan residence. Long now alleges he
received ineffective assistance of appellate counsel in his direct appeal because his
appointed counsel failed to argue fundamental error in the jury instructions. We find
the jury instruction on burglary was erroneous because it misinformed the jury that
it had to find the defendant entered with an intent to commit burglary, rather than a
separate offense. We further find that error was fundamental as to the McGowan
offense, but it was not fundamental as to the Webb offense, because Long’s counsel
conceded that a burglary of the Webb residence had occurred; thus, Long’s intent at
the time of entry was not in dispute.
At trial, on both charges, the jury was instructed as follows:
As to Counts I and II, to prove the crime of Burglary, the State
must prove the following two elements beyond a reasonable doubt:
1. RODNEY LAMAR LONG, JR. entered a structure owned by or
in the possession of Herbert Webb (as to Count I) and Patricia
McGowan (as to Count II).
2. At the time of entering the structure, RODNEY LAMAR LONG,
JR. had the intent to commit an offense in that structure.
....
Even though an unlawful entering or remaining in a structure is
proved, if the evidence does not establish that it was done with the intent
to commit burglary, the defendant must be found not guilty of burglary.
(Emphasis added.)
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Our sister courts have found substantially similar “circular” instructions to be
fundamental error because they leave the jury with the impression that it can convict
the defendant of burglary without finding the intent to commit a separate offense at
the time of the unlawful entry. In Viveros v. State, 699 So. 2d 822, 824 (Fla. 4th
DCA 1997), the jury was instructed that the State had to prove the defendant had a
“fully-formed, conscious intent to commit the offense of burglary” in the structure,
and then was later instructed that “[e]ven though an unlawful entering or remaining
in a structure is proved, if the evidence does not establish that it was done with the
intent to commit burglary, the Defendant may not be found guilty.” The Fourth
District found that while it was not necessary to instruct the jury on the elements of
the specific offense upon which the burglary charge was based, “this is not the same
as saying that it is not necessary to establish that there was an intent to commit some
underlying offense—distinct from ‘burglary’—inside the structure or conveyance,
or to instruct the jury in this regard.” Id. at 825. The court went on to find that the
error was fundamental, because the effect of the instruction was essentially that the
jury was instructed on trespass, a different offense. Id. See also Lawrence v. State,
746 So. 2d 1252 (Fla. 5th DCA 1999); Harrison v. State, 743 So. 2d 178 (Fla. 3d
DCA 1999); Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999).
Our sister courts have also found that counsel’s failure to raise this
fundamental error on appeal constitutes ineffective assistance of appellate counsel
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necessitating a new trial. See Dean v. State, 124 So. 3d 997 (Fla. 4th DCA 2013)
(granting petition alleging ineffective assistance of appellate counsel and remanding
for a new trial where the jury was instructed that “to commit the offense of burglary,
defendant was required to have a ‘fully formed, conscious intent to commit the
offense of burglary in that structure’”); Lee v. State, 958 So. 2d 521, 522 (Fla. 2d
DCA 2007) (granting petition alleging ineffective assistance of appellate counsel
and remanding for a new trial where the jury was instructed “that in order to convict
on the crime of burglary the State must prove that ‘[a]t the time of entering the
structure, Eddie Lee had a fully formed, conscious intent to commit the offense of
burglary in that structure’”).
The jury instruction in the instant case suffers from the same malady as these
other cases; the jury was told it could convict the defendant without finding the
defendant had the intent to commit an offense separate from the burglary. Initially,
the jury was properly instructed that the State had to prove Long had the intent to
commit an offense in the structure. However, later on in the instruction, the court
used the circular phrasing “intent to commit burglary.” This second portion of the
instruction erroneously defined the “offense” the State needed to prove as burglary.
The dissent relies on Freeman v. State, 787 So. 2d 152 (Fla. 4th DCA 2001).
In Freeman, the jury was instructed that the State had to prove Freeman had “‘a fully-
formed, conscious intent to commit the offense of burglary in the structure,’” but
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was then instructed that “‘[e]ven though an unlawful entering or remaining in a
structure is proved, if the evidence does not establish that it was done with the intent
to commit theft, the defendant must be found not guilty.’” Id. at 153. The Fourth
District concluded the jury could not have been confused by the instruction because
the error in the first portion was cured by the second portion, “which was correct and
made it clear that the jury had to find an intent to commit theft along with an unlawful
entry.” Id. at 154. Here, unlike in Freeman, the jury was never told that in order to
convict the defendant of burglary, it had to find the defendant entered the structure
with the intent to commit theft or an offense other than burglary. Instead, it was told
exactly the opposite. Thus, the instruction was error.
We must now examine the two offenses before us to determine whether
fundamental error occurred in each case. Our supreme court has long held that
“[f]ailing to instruct on an element of the crime over which the record reflects there
was no dispute is not fundamental error and there must be an objection to preserve
the issue for appeal.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991). “[A] dispute
does not arise when mistaken identity is the sole defense and the facts of the crime
are conceded by the defendant.” Battle v. State, 911 So. 2d 85, 89 (Fla. 2005).
Because the alleged fundamental error relates to the requisite intent for burglary, we
must analyze whether intent was in dispute. In the McGowan case, it was, but in the
Webb case, it was not.
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In the McGowan case, appellant’s intent when he entered the porch of the
home was directly at issue. He did not dispute that he was the person who entered
the residence. His defense was that what occurred was simply a trespass. The State’s
theory was that he entered the structure with the intent to avoid the police who were
chasing him which constituted the offense of resisting arrest without violence.
Appellant argued he was not the person being chased by police, and thus he lacked
the requisite intent to commit burglary. The fact that there was overwhelming
evidence that he was the person being chased by the police does not negate that the
issue of intent was in dispute and constituted his only defense to the burglary charge.
Thus, the erroneous instruction as to this disputed element constituted reversible
error. Haygood v. State, 109 So. 3d 75 (Fla. 2013) (holding that overwhelming
evidence as to disputed element does not negate fundamental error in the jury
instruction). Accordingly, as to the McGowan burglary, we grant the petition and
remand for a new trial.
In the Long trial, counsel conceded a burglary had occurred at the Webb
residence, stating: “All of this evidence tells us one thing, tells us that there was a
burglary that was committed . . . . Obviously, there is no dispute about that.” The
only defense was identification. Based on Long’s proper concession that a burglary
had occurred, the element of intent was not at issue in regards to this
charge. See Morton v. State, 459 So. 2d 322 (Fla. 3d DCA 1984) (no element of
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robbery was in dispute during trial, and thus, no element of robbery was material to
jury’s deliberations, where counsel for the defendant told the jury in opening
statement that the defendant was not disputing the fact that victims were robbed,
only who committed the robbery). Accordingly, we deny the petition with respect
to the Webb charge.
GRANTED in part; DENIED in part.
LEWIS, J., CONCURS; KELSEY, J., CONCURS IN PART AND DISSENTS IN
PART WITH OPINION.
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KELSEY, J., concurring in part and dissenting in part.
I concur in the majority’s reasoning and disposition as to Count I, burglary of
the Webb residence. I respectfully dissent as to Count II, burglary of the McGowan
residence, because I conclude that the record supports applying the same reasoning
and disposition to Count II.
Just as the intentional act of committing theft in the Webb residence was not
in dispute, the intentional act of resisting an officer after that burglary was not in
dispute. Officer Baker, after being dispatched to the Webb residence shortly after
5:00 a.m. and observing that it had been broken into, saw someone beside the house
who immediately ran away in spite of the officer’s multiple commands to stop. It
was undisputed that Officer Baker saw this person jump a fence and wade through a
holding pond with water in it, emerging on the other side and continuing into a
wooded area of the neighborhood. A K-9 officer tracked an individual running away
from the pond. Mr. Long’s counsel did not dispute any of those facts. He expressly
argued that Officer Baker “saw the individual coming on the side of the house” and
“Officer Baker only saw one person.” Mr. Long’s counsel also admitted “there’s no
disputing that” the K-9 officer tracked someone.
Multiple officers set up a perimeter around that area, and inside that perimeter,
moments later, Ms. McGowan saw a man on her screened-in back lanai that faced
the wooded area of the neighborhood. She described the man on her lanai as very
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dirty, so dirty that she thought he was dark-skinned; and she saw him rummaging
around and then using a pool towel to clean himself off. Mr. Long does not dispute
that he was this person in Ms. McGowan’s screened-in lanai, does not dispute that
he wiped his hands on a towel, and does not dispute that his socks were wet. Nor
does he dispute that when he saw that Ms. McGowan saw him, he ran away. He does
not dispute that he left behind what Ms. McGowan described as “very yucky” socks,
one of which tested overwhelmingly positive for Mr. Long’s DNA. His counsel
admitted, “He left his socks, and there is no dispute that he left his socks there.”
When he was arrested, he was covered in mud and was wearing shoes but no socks.
He does not dispute that it was wrong, and a trespass (on which the jury was
instructed correctly as a lesser included offense), for him to be on Ms. McGowan’s
lanai.
Rather than dispute that someone committed the act of resisting by fleeing or
eluding, Mr. Long’s defense was identity, just as he argued identity as a defense to
the Webb burglary. His counsel argued that “Mr. Long is not the person that [Officer
Baker] saw earlier,” and “I would submit to you and I would argue that he [Mr.
Long] is not the person that he [Officer Baker] saw running away from that house.”
Counsel further argued, “But we already know that the person that Officer Baker
saw wasn’t Mr. Long. It wasn’t the same person, so there is no resisting charge.”
Mr. Long’s counsel admitted that the K-9 officer was tracking someone, but that the
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dog “can’t tell us anything about the identity of the individual. She [the dog] is telling
us that there is an individual but not the identity of the individual.”
Because Mr. Long conceded that the crime of resisting occurred, and argued
only lack of evidence identifying him as the individual who committed that crime,
we should deny the petition as to Count II as well as Count I. See Battle v. State, 911
So. 2d 85, 89 (Fla. 2005) (holding no dispute as to an element of the crime arises
“when mistaken identity is the sole defense and the facts of the crime are conceded
by the defendant”). Both parties below argued that resisting was the crime other than
burglary or trespass that satisfied the intent element of burglary as to Ms.
McGowan’s residence. There was no dispute that a man, whom Mr. Long asserted
was someone other than himself, committed the offense of resisting. Whether the
perpetrator of resisting was Mr. Long or not was a jury question, which the jury
resolved against Mr. Long even though the jury was instructed on the lesser included
offense of trespassing and could have concluded that only trespassing occurred at
the McGowan residence. Importantly, the fact that Mr. Long was willing to admit to
trespassing as a lesser included offense does not change the fact that it was
undisputed that another offense separate from burglary itself—resisting arrest—was
committed. The only dispute was identity of the perpetrator, just as that was the only
dispute with respect to the burglary of the Webb residence. Thus, Battle applies; and
on these facts, the performance of Mr. Long’s appellate counsel did not
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“compromise[] the appellate process to such a degree as to undermine the confidence
in the fairness and correctness of the appellate result.” Downs v. Moore, 801 So. 2d
906, 909 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla.
1985)). Given the overwhelming amount of evidence of Mr. Long’s guilt, his
appellate counsel could reasonably have concluded that any error in the jury
instructions did not “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.” State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991).
Even if the facts of the McGowan burglary did not bring this count within
the Battle exception, however, the instruction given would be acceptable under the
reasoning of Freeman v. State, 787 So. 2d 152, 153 (Fla. 4th DCA 2001) (concluding
that any error in an instruction referring to intent to commit “the offense of burglary”
was cured by the remainder of the instruction’s specific reference to theft as the
required offense). Here, the trial court correctly instructed the jury that “intent to
commit an offense” in the structure was an element of the crime of burglary, coupled
with the correct instruction that the entry into the structure “is sufficient if the
defendant, with the intent to commit a crime, extends any part of his body into the
structure.” (Emphasis added.) The subsequent reference to committing “burglary”
occurred only within the portion of the instruction informing the jury what would
not be sufficient evidence to convict the defendant: “Even though an unlawful
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entering or remaining in a structure is proved, if the evidence does not establish that
it was done with the intent to commit burglary, the defendant must be found not
guilty of burglary.” (Emphasis added.) This was an accurate representation of the
point of law that burglary is a specific intent crime. M.H. v. State, 936 So. 2d 1, 3
(Fla. 3d DCA 2006) (noting statutory definition of burglary explicitly makes
burglary a specific intent crime).
This part of the instructions focused the jury’s attention on whether the state
had proved that the defendant had entered Ms. McGowan’s lanai with the specific
intent to commit burglary—which the trial court had just correctly defined as
requiring intent to commit “an offense” or “a crime” in the entered structure. The
requirement of proving some offense or crime other than burglary or trespass was
further made clear in the presentation of a separate instruction on trespass. In
addition, counsel for both parties made it clear in closing arguments that an offense
other than burglary or trespass was at issue, with the state specifically arguing that
resisting was the crime at issue, and the defense specifically arguing that Mr. Long
could not be found guilty of resisting because the state had not established that he
could be identified as the individual who ran away from Officer Baker at the Webb
residence after being commanded to stop.
This case spotlights an issue that appears to have been caused in part by—and
perhaps could be cured or substantially reduced by—a change in the standard jury
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instruction for burglary. The pertinent part of the statute itself has remained
unchanged for decades, defining the intent element of burglary as “the intent to
commit an offense therein [within a dwelling, structure, or conveyance] . . . .”
§ 810.02(1)(a), (b), Fla. Stat. (2015) (emphasis added). The identity of the specific
offense intended to be committed is secondary, so long as there is evidence from
which the jury can find the requisite intent to commit an offense:
We recently held in L.S. v. State, 464 So. 2d 1195 (Fla.1985) that
the exact nature of the offense alleged is surplusage so long as the
essential element of intent to commit an offense is alleged and
subsequently proven. Id. at 1196. In L.S., we said that the state may rely
on section 810.07, Florida Statutes (1983), the burglary presumption of
intent statute, whether or not the state had charged a defendant with the
intent to commit a specified crime within the structure. We reiterate that
beyond allegation and proof of unauthorized entry or remaining in a
structure or conveyance, the essential element to be alleged and proven
on a charge of burglary is the intent to commit an offense, not the intent
to commit a specified offense, therein. See, § 810.02, Fla.Stat. (1983).
. . . It is clear, then, that in a charge of burglary the requirement of
proving intent to commit a specified crime to the exclusion of all others,
while once a proper element of the charge, is no longer necessary.
Toole v. State, 472 So. 2d 1174, 1175-76 (Fla. 1985) (citing State v. Waters, 436 So.
2d 66 (Fla. 1983) (holding that it is not necessary for an information charging
burglary to allege the specific crime intended)); see also Joseph v. State, 965 So. 2d
357, 358 (Fla. 4th DCA 2007) (“There is no requirement that the state allege and
prove that entry was made with the intent to commit a specific offense; however,
even when it does so allege, so long as it also charges and proves “the essential
13
element of intent to commit an offense,” the specific allegation is considered
surplusage.”) (quoting Toole, 472 So. 2d at 1175); Perreault v. State, 831 So. 2d 784,
786 (Fla. 5th DCA 2002) (“Although it is not necessary to instruct the jury on the
specific offense which the defendant intended to commit within the structure, it is
necessary for the jury to find that the defendant entered the premises to commit an
offense therein.”). This principle is also evident from the very existence of section
810.07 of the Florida Statutes, which with respect to both burglary and attempted
burglary, recognizes that the very act of entering “stealthily and without consent”
constitutes prima facie evidence of the requisite intent: “proof of the entering of such
structure or conveyance at any time stealthily and without consent of the owner or
occupant thereof is prima facie evidence of entering with intent to commit an
offense.” § 810.07, Fla. Stat. (2015).
Things seem to go awry when courts try to follow the standard jury instruction
for burglary, which since 1981 has expected the trial court to name a specific offense
within the intent element of burglary. In 1981, this was the pertinent part of the
standard jury instruction for burglary:
At the time of [entering] [remaining in] the [structure] [conveyance]
(defendant) had a fully-formed, conscious intent to commit the offense
of (crime alleged) in that [structure] [conveyance].
Note to Judge: Define the offense that was the object of the burglary.
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See Standard Jury Instructions in Criminal Cases, at 194 (1981) (quoted in Standard
Jury Instructions in Criminal Cases—Submission 2002-1, 850 So. 2d 1272 (Fla.
2003)). This remained the recommended instruction language (except for
amendments to set forth the “remaining in” instructions separately), except that the
helpful “Note to Judge” was deleted from the “entering” part of the instruction in
2003. See Standard Jury Instructions, 850 So. 2d at 1280.
In the 2007 amendments, the intent element was changed to include two
bracketed suggestions plus a separate note advising that the offense could not be
trespass or burglary:
At the time of [entering] the [structure] [conveyance], (defendant) had
the intent to commit [an offense] [(the crime alleged)] in that [structure]
[conveyance].
The offense intended cannot be trespass or burglary.
See In re Standard Jury Instructions in Criminal Cases—Report No. 2006-2, 962 So.
2d 310, 321 (Fla. 2007). It was around this time that decisions started appearing to
deal with the confusion generated by the task of filling in the blanks correctly.
Perhaps in an attempt to stem the tide of confusion, the instruction was amended
again in 2013, as follows, to emphasize that the “an offense” blank should contain
the name of a specific offense other than burglary or trespass:
At the time of [entering] the [structure] [conveyance], (defendant) had
the intent to commit [(the crime alleged)] [an offense other than
burglary or trespass] in that [structure] [conveyance].
15
See In re Standard Jury Instructions in Criminal Cases—Report No. 2012-01, 109
So. 3d 721, 723-24 (Fla. 2013). The 2013 amendment then repeated the separate
reminder that “The offense intended cannot be trespass or burglary.” Id. at 724. This
is the instruction in effect today.
Here, the trial court used the following customized instruction (which is
permissible): “At the time of entering the structure, [Mr. Long] had the intent to
commit an offense in that structure.” This language is commendable for its
simplicity and its adherence to the language of the statute. The trial court further
instructed, correctly, that “[i]t is sufficient if the defendant, with the intent to commit
a crime, extends any part of his body into the structure.” Again, the reference to “a
crime” is accurate, consistent with the statute and cases such as Waters and Toole,
and not confusing. But the instruction then advised the jury that the lack of evidence
of intent would require that the jury acquit Mr. Long: “Even though an unlawful
entering or remaining in a structure is proved, if the evidence does not establish that
it was done with the intent to commit burglary, the defendant must be found not
guilty of burglary.” This is what triggered the parties’ present discussion of the
“circular instruction” argument.
The problem with the “circular instruction” argument, although it has facial
appeal, is that the statute does not require that the jury be formally “instructed” on a
16
specifically named offense at all. Toole, 472 So. 2d at 1175-76; Waters, 436 So. 2d
at 68; Joseph, 965 So. 2d at 358; Perreault, 831 So. 2d at 786. It is likewise not
necessary to define or instruct the jury on the elements of the offense. Grant v. State,
420 So. 2d 903, 903 (Fla. 1st DCA 1982) (relying on Taylor v. State, 386 So. 2d
825, 829 (Fla. 3d DCA 1980) (rejecting argument that court must instruct jury on
each element of the subsumed offense)).
As the court in Waters noted in the context of the charging document, it
became the practice to name the offense that the burglary defendant intended to
commit in the entered structure, probably in cases in which it was clear what offense
the defendant allegedly intended to commit and in which there was only one
probable offense at issue. Waters, 436 So. 2d at 68. But naming the offense is
problematic with respect to the question of intent, which is intangible and not readily
susceptible of proof by direct evidence; and equally problematic when the evidence
would support a conclusion that the defendant could have intended to commit any
one or more of multiple offenses. The prosecutor might see the evidence as
demonstrating intent to commit theft, and the jury might see evidence of intent to
commit assault, murder, arson–or be uncertain what the defendant was up to, but be
convinced of intent to commit some offense. See Duncan, 606 So. 2d at 1229 (“In
many instances, the state does not know the exact offense intended by the
defendant.”). Intent to commit an offense is enough under the statute. See
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§ 810.07(1), Fla. Stat. (2015) (entering “stealthily and without consent . . . is prima
facie evidence of entering with intent to commit an offense”).
While the jury instructions committee likely has had very good reasons for
the specific language it has recommended in burglary cases (though the rationales
are not published), it would appear that the present language is more confusing than
helpful. It seems to have generated a cottage industry in parties raising, and courts
resolving, the “circular instruction” argument, which is occurring unnecessarily in
light of the simple and straightforward requirement of the statute itself and the
establishment of a prima facie case under section 810.07. As the supreme court
always cautions when approving amendments to the standard instructions, “In
authorizing the publication and use of these instructions, we express no opinion on
their correctness and remind all interested parties that this authorization forecloses
neither requesting additional or alternative instructions nor contesting the legal
correctness of the instructions.” Standard Jury Instructions, 109 So. 3d at 722.
Perhaps it would be a good idea to revert to a simpler time, with an instruction that
tracks the language of the statute, and at most adds that the offense must be one other
than burglary itself or trespass, such as the following:
At the time of entering the [structure] [conveyance], (defendant) had
the intent to commit an offense other than burglary or trespass in that
[structure] [conveyance].
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This would eliminate the apparently confusing, and unnecessary, dual fill-in-the-
blanks brackets in the current instruction. The state would then bear the burden of
presenting evidence of intent to commit a specific offense or offenses other than
burglary and trespass, and arguing to the jury that such evidence satisfies the
statutory definition of burglary; whereupon the jury must find that the defendant had
the requisite intent.
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