121 So. 3d 643
Fla. Dist. Ct. App.2013Background
- Two Barnett brothers charged in one information for two victims, M.M. and B.T., with identical counts for each brother (attempted felony murder, aggravated battery, robbery with a weapon).
- The information alleged the attempted felony murder victims as “B.T. and/or M.M.” and the other counts similarly targeted B.T.; brothers were tried separately but on the same information.
- The jury found Barnett guilty as charged for attempted felony murder and aggravated battery, and guilty of a lesser included offense of attempted robbery; the verdict form did not specify a victim name.
- The State pursued alternative theories of guilt via the information and jury instructions, including an “and/or” formulation regarding victims in the attempted felony murder count.
- There was conflicting physical and testimonial evidence about which defendant fired which shots; M.M. testified Barnett’s brother fired the shots to M.M., not Barnett.
- Barnett did not object to the jury instruction; the issue on appeal concerned whether the attempted felony murder conviction could be non-unanimous due to the dual-victim framing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ‘and/or’ dual-victim framing creates non-unanimous verdict error | Barnett: verdict may not be unanimous due to two victims. | State: no non-unanimity; evidence supports one theory; no fundamental error. | Not fundamental; no reasonable possibility of non-unanimous verdict. |
Key Cases Cited
- Cochrane v. Florida East Coast Ry. Co., 107 Fla. 431 (1932) (propriety of using and/or in criminal pleading historically condemned)
- Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007) (discussion of multiple theories and unanimity concerns)
- Dempsey v. State, 72 So.3d 258 (Fla. 4th DCA 2011) (not fundamental error to use and/or between victims in robbery instruction)
- Croom v. State, 36 So.3d 710 (Fla. 1st DCA 2010) (not fundamental error when there is overwhelming evidence against multiple victims)
- Provow v. State, 14 So.3d 1134 (Fla. 4th DCA 2009) (and/or may be used where lawful, but not to create ambiguity or dual liability)