Roy RIVERS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
*102 J. Craig Williams of Williams & Stapp, Jacksonville, for appellant.
Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
LARRY G. SMITH, Judge.
Appellant, who was convicted of armed robbery of a Lil' Champ Food Store that occurred on September 13, 1981, seeks reversal based upon his claim that several trial errors denied him a fair trial. We find reversible error in the trial court's failure to instruct the jury on the limited purpose for which "Williams' Rule" еvidence was introduced at the time such evidence was presented to the jury.
The Florida Evidence Code, Section 90.404(2)(b)2., provides that when evidence of other crimes is admitted, "the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered." Recognizing that some aspects of thе evidence code may be procedural, rather than substantive law, and therefore within the rule-making authority of the Supreme Court of Florida, that court, in a per curiam opinion dated June 28, 1979 (
The evidence you are about to receive concerning evidence of other crimes allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of thе defendant and you shall consider it only as it relates to those issues.
However, the defendant is not on trial for a crime that is not included in the [information] [indictment].
A similar limiting instruction is required to be given at the close of the evidence.
The state contends that the Williams' Rule instruction was never adequately requested, or if an adequate request was made it was madе in connection with testimony that was not of a "collateral crime" nature. After a careful review of the record we are compelled to disagree with the state's position.
At trial, appellant's sole defense to the robbery charge was voluntary intoxication to the extent that he was unable to form the specific intent required for сommission of the offense of robbery, namely, the intent to permanently deprive the victim of the money stolen. Cirack v. State,
Appellant testified to his lack of comprehension of and ability to recall his own actions leading up to, during, and following the robbery. In furtherance of his defense he called and array of witnesses to confirm his heavy ingestion of drugs and alcоhol, and to describe the apparent effects upon him, prior to commission of the offense. He also presented testimony from two psychiatrists to the effect that, by reason of his drugged and intoxicated state, he lacked the capacity to form the specific intent essential to the crime on the morning it occurred. One of these physicians, Dr. Saul, acknowledged that he understood appellant *103 was accused of four robberies. The other psychiatrist, Dr. Miller, agreed that if a specific act is committed, the fact that the same act is repeated in different settings within short intervals could be considered as indicative of the ability to form the specific intent to commit the act the first time.
In rebuttal, for the purpose of proving the existence of the ability to form the necessary criminal intent, the state called as witnesses the victims of two other grocery store robberies 7-Eleven and Zippy Mart occurring on the same morning as the Lil' Champ robbery. The state also called three persons who were witnesses to some portions of the events or activities directly or indirectly connected with these two robberies, as well as a third robbery occurring at Skinner's Dairy Store on the same morning.
During the rebuttal testimony of Edward Radomski, the victim of the 7-Eleven store robbery, defense counsel moved for a mistrial because of the court's failure to order consolidation of the case for trial with the cases involving the 7-Eleven store, in which an information had been filed, and the two others in which no information had been filed. No request was made for a cautionary "Williams' Rule" instruction.
The next rebuttal witness, Francis L. Davis, was a witness to the Lil' Champ robbery for which appellant was being tried. The state then called Kenneth Graham, the victim of the Zippy Mart rоbbery. Prior to Graham's testimony, the following colloquy took place between defense counsel, the prosecuting attorney, and the court:
MR. WILLIAMS: At this time, for the record, this won't [sic] be evidence of collateral offense and I renew my motion heretofore made for consolidation and move for a mistrial.
MR. PERKINS: Your Honor, for the record, I would state that this is being used in rebuttal. There is no requirement of Williams' Rule notice.
THE COURT: I understand. I will deny the motion.
MR. WILLIAMS: Your Honor, do you deny my request for an instruction and motion for mistrial?
THE COURT: Yes.
Graham then gave testimony that while working as a clerk for the Zippy Mart, a man using a double barrelled shotgun robbed him of the store's money and some food stamps.
Graham was followed on the witness stand by Robert Steele, who testified to his observations of individuals (ostensibly the robbers) and their brown Mazda car parked at the Zippy Mart store.
The state then called Richard Smith, at which point defense counsel registered an objection and request, and received the court's ruling, as follows:
MR. WILLIAMS: Your Honor, I make the same objection I previously made for the record and same request for an instruction and I understand your ruling probably will be the same.
THE COURT: All right.
Smith then proceeded to relate details of his observation of a small brown car at Skinner's Dairy Store, and an individual who got out of the car, entered Skinner's Store, and emerged running a short time later.
Next in this series of rebuttal witnesses was Billie Collins, who related statements allegedly made by appellant concerning his having taken care of "some business" at Skinner's Dairy, on the morning of the robbery; also that appellant and a companion later divided some money between them. Defense counsel made the following objection and received the following ruling during this testimony:
MR. WILLIAMS: I would move for a mistrial and a limited instruction based upon evidence of collatеral offense for which the defendant is not on trial. For purpose of preserving the record, I will make a continuing objection.
THE COURT: All right. For the record, I intend to instruct and probably add an addition to the standard instruction as to the fact that the defendant is only on trial for the crime alleged in the information, but I don't think under the circumstances *104 it is necessary to do it at this рoint since this testimony is apparently being offered to show the state of mind without any attention to time [sic], so I will deny your motion.
This court's opinion in Hubbard v. State,
so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.
Hubbard v. State,
In Spurlock, the court also drew upon language from Thomas v. State,
where the record shows, clearly and unambiguously, that the request was made and that the trial court clearly understood the request and, just as clearly, denied that specific request.
Thomas v. State,
In the case before us we reject appellant's contention that the trial judge was alerted to counsel's request for the "Williams' Rule" instructiоn by his pre-trial objections to collateral crime evidence and his general objections expressed at various times during the trial. Further, counsel's motion for a mistrial during Radomski's testimony about the 7-Eleven robbery, based on the court's failure to order consolidation, clearly does not suffice. As above indicated, no objection of any nature was voiced during the testimony of the next witness, Davis, although both his and Radomski's testimony unmistakably constituted "collateral crime" evidence. Had the rebuttal evidence ended at this point, we would have no hesitancy in finding a waiver of the special "Williams' Rule" instruction. However, as shown by the portions of the record above quoted, during the testimony of the next three rеbuttal witnesses defense counsel's request graduated from the general "... do you deny my request for an instruction ...," and "I make ... the same request for an instruction ..." to the more specific "... I would move ... for a limited instruction based upon evidence of a collateral offense for which the defendant is not on trial."
We would have difficulty in finding that counsel's request for "an instruсtion," without more, would satisfy the test of Spurlock, Thomas, and Hubbard. Counsel's next request for "a limited instruction based upon evidence of collateral offense ...," is another matter. Because of the specificity of this request, and the trial judge's response, we are compelled to view the matter in a different light. At this point our uncertainty as to whether the trial judge was adequately аlerted as to the nature of the instruction being sought is dispelled by reference to what occurred later in the trial, at the jury charge conference. During this conference, the trial judge stated that he intended to give (from page 50, standard instructions), "the second half of WILLIAMS rule." Defense counsel then reminded the judge of his objections during the course of the triаl, and of his request that the court "give an instruction." Whereupon, the trial judge responded:
THE COURT: I understand that, Mr. Williams, and I understand that you are not relinquishing any of your objections that you previously made as to instructing on the WILLIAMS rule during the course of the testimony.
Still further in the proceedings, at the hearing on motion for new trial, the judge commented:
THE COURT: * * *
... I, perhaps, should have given the instruсtion as to collateral offenses at the time they heard it. I have since thought *105 about that on several occasions, frankly, but I think it was explained properly at the time I instructed the jury... .
Despite the ineptness of the language used by counsel in his several requests, upon viewing the record in its entirety we are compelled to hold that the issue was marginally preserved for appellate review. Under the strictures laid down by this court, and by the Florida Supreme Court in the cases above cited, we are compelled to hold that the failure to give the "Williams' Rule" instruction during the course of the trial, at least as of the point where it was specifically requested, was reversible error. See, also, Skipper v. State,
We have not overlooked the fact that the cases relied upon here dealt primarily with Tascano violations. Tascano v. State,
We have fully considered the remaining points and arguments for reversal raised in appellant's brief. In view of our reversal on the first point, these will be only briefly touched upon for the guidance of the trial court and counsel upon retrial of the case.
No reversible error has been shown in the trial court's denial оf appellant's requested jury instructions on the offenses of robbery with a deadly weapon, and robbery with a weapon. Revised standard jury instructions in criminal cases were approved by opinion filed April 16, 1981, modified June 5, 1981. See, In The Matter Of The Use By The Trial Courts, etc., Nos. 57,734, 58,799, (Fla. April 16, 1981), mod. no. 58,799, (Fla. June 5, 1981) (changing the effective date of the schedule of lesser included offenses to October 1, 1981). The new instructions are applicable in this case. Boston v. State,
Appellant next complains of the trial judge's refusal to allow Dr. Yates to testify as an expert witness as to the effect of alcohol and drugs on the human body and mind. Frankly, as to the circumstances existing in this particular case, we are unable to fully appreciate why Dr. Yates, a psychologist, was any less qualified to render an opinion as to appellant's ability to form an intent than were Drs. Miller and Saul, both of whom are psychiatrists. Both psychiatrists based their opinion concerning appellant's capacity to form the specific intent to deprive the victim of the money primarily upon what appellant told them. Neither psychiatrist had definite information concerning the exact chemical composition or quantities of the drugs and alcohol appellant had injected into his body or consumed. However, in view of our reversal on other grounds, no useful purpose would be served by our further discussion of this point. The trial judge has broad discretion in passing upon the qualifications of an expert witness. See, United States v. Bradley,
We view appellant's contentions regarding the trial court's limitations upon Dr. Miller's testimony, as well as other alleged limitations or restrictions upon appellant's presentation of evidence during the triаl, much in the same light as we have indicated with respect to the exclusion of Dr. Yates' testimony. We agree with the trial court's view that the defense of voluntary intoxication is limited in scope, and the evidence which may be presented is more confined and restrictive than for the defense of insanity. The appellant and his wife, as well as other witnesses, were allowed to cover various aspects of appellant's life and character sufficient to "place" him in the minds of the jurors, and to disclose the difficulties that may have precipitated his sudden over-indulgence in alcohol and drugs. Thus, it appears that appellant was not prevented from presenting the essential facts upon whiсh he sought to rely in support of his intoxication defense. A possible exception appears in the trial court's limitation of Dr. Miller's testimony, concerning the effect of drugs and alcohol, to a period of three days preceding the robbery offense. The mere fact, as Dr. Miller indicated, that ordinarily speaking, the effect of drugs or alcohоl upon the human body would become essentially dissipated or eliminated within that period of time does not in itself preclude consideration, by a qualified expert, of the effect of taking alcohol or drugs over a longer period of time. The fixing of a specific period of time within which the taking of drugs or alcohol might have some significant effeсt upon the capacity to form criminal intent would itself be the subject of expert opinion, rather than a matter for determination by the trial court. Other than with respect to this particular point, appellant has failed to demonstrate any further infirmities in the trial court's rulings that would merit consideration by this court.
Turning to another point, we fail to see how thе several robberies were "related offenses" within Rule 3.151, Florida Rules of Criminal Procedure, so as to require their consolidation for trial upon appellant's request. The several robberies occurred at different locations, involved different victims, and different witnesses. See, Paul v. State,
The judgment of conviction in case no. 81-8252 is REVERSED and REMANDED for a new trial. The judgment of conviction in case no. 81-8253, which was based upon appellant's plea of nolo contendere with reservation of the right to appeal as to all issues raised with respect to case no. 81-8252, is REVERSED, and REMANDED for further proceedings.
ERVIN and SHIVERS, JJ., concur.