Zama v. State
54 So. 3d 1075
Fla. Dist. Ct. App.2011Background
- Zama was convicted of aggravated assault with a deadly weapon after trial for attempted second degree murder.
- Defense theory: he accidentally fired into the club while being forcibly escorted out, without knowledge the safety was off, intending to scare rather than injure.
- Victim Lowe testified he feared for his safety and believed appellant aimed at him, though Lowe later was not nervous after the shot.
- Trial court instructed that aggravated assault was a lesser included offense and provided the three elements of assault to the jury.
- During deliberations, the jury asked whether fear in element 3 referred only to Lowe; the court answered that fear could arise if circumstances would ordinarily induce fear in a reasonable person.
- Appellant argued this answer expanded the fear element to include fear for others, and moved for a new trial; trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court's answer improperly expand the fear element to include others? | Zama contends the fear element applied only to Lowe. | State argues no preserved error or proper law; the answer was correct or harmless. | Yes, improper expansion; reversed for new trial. |
| Was the admission of the bullet-proof vest evidence erroneous and prejudicial? | Vest evidence was irrelevant to the crime and inflamed the jury. | Vest was part of the evidence; its probative value was not argued to be misleading. | Yes, error to admit unrelated vest evidence. |
| Was the detective's non-expert opinion about the projectile admissible? | Opinion based on observations; probative value supported. | Objection to non-expert testimony; no reversible error. | No error; affirmed. |
Key Cases Cited
- State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) (harmless error standard for jury instruction error)
- Coday v. State, 946 So. 2d 988 (Fla. 2006) (preservation requires contemporaneous objection)
- Overton v. State, 801 So. 2d 877 (Fla. 2001) (preservation and timely objections to trial rulings)
- Johnson v. State, 888 So. 2d 691 (Fla. 4th DCA 2004) (well-founded fear required in assault element)
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997) (definition of assault elements and fear element)
- State v. Von Deck, 607 So. 2d 1388 (Fla. 1992) (reaffirming essential elements of assault)
- L.R.W. v. State, 848 So. 2d 1263 (Fla. 5th DCA 2003) (fear instruction cited in related context)
- O'Connor v. State, 835 So. 2d 1226 (Fla. 4th DCA 2003) (admission of unconnected evidence error)