Lead Opinion
Frаncis Wong challenges his convictions and sentences for two counts of lewd or lascivious molestation' against a victim less than twelve years of age, three counts of lewd or lascivious molestation against a victim between twelve and sixteen years of age, and one count of lewd or lascivious battery against a victim less than sixteen years of age. Wong raises two issues on appeal. Wong asserts that the trial court fundamentally erred in admitting the Williams
Defense' counsel did' not file any proposed juiy instructions, and it is apparent from the transcript of the charge conference" that defense counsel had no intention of requesting an instruction on any lesser included offenses prior to the conference. After receiving some guidance from the State and reviewing the instructions book, defense counsel stumbled upon the instruction for cоmmitting an unnatural and lascivious act, a permissive lesser (category two) offense of lewd or lascivious battery and lewd or lascivious molestation. See Fla. Std. Jury Instr. (Crim.) 11.10(b), (c).
Defense counsel: Your Honor, I don’t know if the State’s in agreement with me on this, category two of a lesser is committing natural — unnatural and lascivious act. I think the evidence does support a lesser of this charge. Defendant is charged, the act was unnatural and lascivious, and unnatural means not in accordance with nature or with normal feelings of behavior, and lascivious, we’ve got the same as lascivious. I would ask for this instruction also to be given as a lesser.
Court: I don’t have to give a lesser for category two.
Defense counsel: I understand. I’m asking you. I’m pleading.
Unlike аn instruction on a necessary or category one lesser which must be given upon request even if unsupported by the evidence, an instruction on a permissive lesser is only given when supported by the pleadings and evidence. See Boland v. State,
Taken in context, when defense counsel stated, “I understand,” the most logical interpretation is that he acknowledged and agreed with the cоurt’s general statement of law that instructing the jury on category two lessers is not mandatory. We know this to be the case because defense counsel continued, “I’m asking you. I’m pleading.” Defense counsel obviously understood that there was no ruling by the court to this point because he continued to ask and even “plead” to the court for a favorable ruling. Drawing any other conclusion from the record would be impermissible speculation into the undisclosed mental processes of defense counsel. There was no further discussion of the matter, there was no ruling by the court on the request, and there was no contemporaneous objection.
In Thomas v. State,
Although the dissent foсuses primarily on the adequacy of the request, the adequacy of the request itself has no bearing on our holding.
the trial judge’s statement of his mistaken belief that he had the discretion to refuse to instruct the jury on category two, permissive lesser included offenses — coupled with his peremptory direction of the discussion to unrelated matters — was the equivalent of declaration that he was exercising his assumed discretion to decline to instruct on category two lesser included offenses by declining to give defense counsel’s requested instruction.
However, the standard is not whether the court implicitly denied the request or whether it can be inferred that the request was denied. Rather, the standard is whether the trial court clearly, explicitly, and unequivocally denied the request. See Sochor,
As to defense counsel’s statement, “I understand,” in response to the court’s Statement оf law regarding permissive lessers, the dissent presumes that defense counsel “meant only that he understood that the trial court had so ruled and was going to decline to give the requested instruction; it did not indicate agreement with the proposition' stated.” .However, this interpretation ignores the context of the exchange. Certainly if counsel believed that the court had ruled upon the matter, he would not continue to ask and plead for the court to grant his request. Nonetheless, the dissent agrees that after counsel continues to plead to the court, the court does “not address the jury instruction request.” Thus- there was no clear and unequivocal denial.
“The saliеnt purpose of the rule of contemporaneous objection is to place the trial judge bn notice that error may have been committed and [to] provide the court with an opportunity to correct the error at that time.” Daniels v. State,
Therefore, since the trial court did not rule on the request and defense counsel did not object to the court’s failure to give the instruction, the issue was not preserved for review.
Affirmed.
Notes
. Williams v. State,
. We note that unnatural and lascivious act follows attempt, assault, and battery on the schedule of category two lessers for lewd or lascivious battery and lewd or lasсivious molestation. See Fla, Std. Jury Instr. (Crim.) 11.10(b), (c). Thus,'the dissent's citation to Moore v. State,
. The dissent surmises that "[djefense counsel might have been more prepared for the charge conference, but he knew better than that.” However, defense counsel demonstrated his lack of preparation at other times during the trial. For example, at the close of the State's case, the court inquired if counsel had any requests, to which counsel responded: "You mean like a motion for summary judgment?” Given that this is a criminal proceeding, the court corrected counsel, instructing
. We note that the State does not argue that -the request itself was insufficient. Rather, the State argues that the exchange between the trial court and defense counsel during the charge conference did not satisfy the contemporaneous objection rule because counsel failed to obtain a ruling or object.
Concurrence Opinion
Concurring in part; dissenting in part.
The record shows that defense counsel requested an instruction on the lesser in-
I. DISCUSSION
A. Wong was entitled to the requested instruction
The State charged Wong with five counts of lewd or lascivious molestation and one count of lewd or lascivious battery. The crime of unnatural and lascivious act, section 800.02, Florida Statutes (1999-2010),
Florida law concerning ' the circumstances under which a trial court must instruct the jury on a permissive lesser included offense is well-settled. The Florida Supreme Court has summarized the trial judge’s obligation in this regard as follows:
Upon request, a trial judge must give a jury, instruction on a permissive lesser included offense if the following two conditions are' met: “(1) the indictment or information must allege all the- statutory elements of the permissive lesser included offense; and (2) there must be 'some evidence adduced at trial establishing all of these elements.” Jones v. State,666 So.2d 960 , 964 (Fla. 3d DCA 1996) (citing Brown v. State,206 So.2d 377 , 383 (Fla.1968)). We recently reiterated this longstanding rule of law by . stating that “[a]n .instruction on a permissive lesser included -offense is appropriate only if the allegations of the-, greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser, offense.” Williams v. State,957 So.2d 595 , 599 (Fla.2007) (emphasis added).
Khianthalat v. State,
The State concedes that Wong was entitled — upon request — to an instruction on the permissive lesser included offense of unnatural and lascivious act. In its answer brief, the State says:
[T]he State would acknowledge that unnatural and lascivious act is a permissive lesser-included offense of lewd and [sic] lasciviоus molestation and lewd or lascivious battery. The accusatory pleading and the evidence adduced at trial would have supported the lesser-included offense of unnatural and lascivious act. This case is not materially distinguishable from Williams v. State,627 So.2d 1279 (Fla. 1st DCA 1993), and Horn v. State,120 So.3d 1 (Fla. 1st DCA 2012).... Thus, assuming this Court found the issue preserved, the State would acknowledge that unnatural and lascivious act is a permissive lesser-included offense of the charged offenses in this case and that the trial court erred in not instructing the jury on this offense.
In light of the teaching of the standard jury instructions, the pertinent case law, and the State’s admirable candor, there can be no doubt that Wong was entitled— upon a proper request — to a jury instruction on the permissive lesser included offense of unnatural and lascivious act.
B. The State’s Preservation Argument
Despite its concession about Wong’s entitlement to the instruction, the State argues for affirmance on the theory that the asserted insufficiency of defense counsel’s request for the instruction on the permissive lesser included offense and the absence of any clear ruling on the request by the trial court were insufficient to preserve the issue for appellate review. In the State’s view, defense counsel’s request for the jury instruction failed to satisfy the contemporaneous objection rule. In order to address the preservation issue, it will be helpful to explorе more fully what actually happened at the charge conference in the trial court.
C. The Charge Conference
During the course of the charge conference,
Wong was represented at trial by privately-retained counsel. The State had assigned two prosecutors to try the case against Wong. During the charge conference, one of thе prosecutors initiated a consideration of the possibility of instructing the jury on lesser included offenses by inquiring of defense counsel, “Are you asking for any lessers?” Defense counsel answered, “Let me look at them.” The prosecutor replied helpfully, “There aren’t any category one.... There’s category] two lessers, but [I] don’t have my book out in front of me [to determine] what they are.” (Emphasis added.) Without her book, the prosecutor said, “I’ll grab yours, [defense counsel],” obviously referring to defense counsel’s book. Apparently after consulting his book, defense counsel said, ‘Your
After both the prosecutor and defense counsel had reviewed the possible category two lesser included offenses listed in the “bоok,” the exchange between defense counsel and the trial judge to which the majority refers proceeded as follows:
[DEFENSE COUNSEL]: Your Hon- or, I don’t know if the State’s in agreement with me on this, category two of a lesser is committing natural — unnatural and lascivious act. I think the evidence does support a lesser of this charge. Defendant is charged, the act was unnatural and lascivious, and unnatural means not in accordance with nature or with normal feelings of behavior, and lascivious, we’ve got the same as lascivious. I would ask for this instruction also to be given as a lesser.
THE COURT: I don’t have to give a lesser for category two.
[DEFENSE COUNSEL]: I understand. I’m asking you. I’m pleading.
THE COURT: I’m going to give your witnesses until 4 o’clock. I’ve been waiting for 25 minutes now.
[DEFENSE COUNSEL]: May I go make a phone call?
THE COURT: Go ahead. Are we set to go?
[THE PROSECUTOR]: I have one thing to address, but I think the defendant needs to be out here.
(Defendant entered the courtroom.)
(Emphasis added.) After Wong returned to the courtroom, a discussion ensued about the nature of the testimony to be elicited from two of the defense witnesses. Then defense counsel called his first witness.
The trial judge’s remark made after defense counsel twice repeated his request for an instruction on the lesser included offense did not address the jury instruction request but instead granted defense counsel’s prior request for a brief recess in the proceedings to allow time for his witnesses to arrive. Thus at the conclusion of defense counsel’s repeated request for the instruction on unnatural and lascivious aсt, the trial judge said nothing in response and peremptorily directed the discussion to matters unrelated to the jury instructions. Notably, one of the two prosecutors had initiated the discussion of “category] two lessers”; neither of them made any objection to the giving of the instruction requested by defense counsel.
D. The Contemporaneous Objection Rule
In this case, the trial judge watched while defense counsel and one of the prosecutors consulted the Florida Standard Jury Instructions in Criminal Cases to determine the lesser included offenses that were available for the crimes with which Wong was charged. After consulting this
The trial judge’s declaration that he did “hot have to give a lesser for category two” reflects'the trial'judge’s misconception that he had the unbridled discretion to refuse to instruct the jury on category two, permissive lesser included offenses. After the trial judge made this declaration, defense counsel reiterated — not once but twice — his request for an instruction on the lesser included offense. Obviously, the trial judge had heard all he wanted to hear on the subject and believed that his brusquе — but mistaken — declaration had disposed of defense counsel’s request. ■ Refusing to respond directly to defense counsel’s twice-repeated reiteration of his request, the trial judge immediately took up the matter of defense counsel’s pending request for a brief recess in the trial. Here, the trial judge’s statement of his mistaken belief that he had the discretion to refuse to instruct the jury on category two, permissive lesser included offenses— coupled with his peremptory direction of the discussion to unrelated matters — was .the equivalent of a declaration that he was exercising his assumed discretion to-decline to instruct on category two -lesser includеd offenses by declining to give defense counsel’s requested instruction..
I take issue with the majority’s claim that defense counsel’s statement, “I understand,” made in response to the trial judge’s claim that he had the discretion to decline to instruct the jury on category two, permissive lesser included offenses amounted to an acknowledgment and agreement “with the court’s general statement of the law that instructing the jury on category two lessers is not mandatory.”
The First District’s decision in Truett v. State,
On appeal, Truett argued that the trial court’s failure to instruct on the defense of alibi upon request, was error. Id. The State responded that Truett had “waived the claim he now asserts on appeal by acceding to the trial judge’s explanation of the alibi defense, and the court’s ruling that Truett had failed to adduce sufficient evidence to justify administering the alibi instruction.” Id. at 659, In other words, the State based its lack of preservation argument in Truett — at least in part — on counsel’s neutral statement of “Okay,” made in response to the trial court’s explanation of its reasons for refusing to give the alibi instruction. In addition, the State relied on Truett’s failure to make a specific objection after the reading of the jury instruction in support of its claim of waiver. Id. The State also relied upon the same facts in support of ,a claim that Truett had abandoned his request for the alibi instruction. 1 Id. The First District rejected the State’s claims of waiver and abandonment, reversed Truett’s conviction, and remanded the case for a new trial. Id. at 660. The First District explained its ruling as follows: “The State fails to offer any cases which hold that Truett’s conduct, as reflected in -this record, amounts to abandonment of his claim-.” Id. at 659. Thus Truett stands for the proposition that a respectful response indicating nothing more than counsel’s apprehension that the trial court is making an adverse ruling on a request for a jury instruction does not amount to a waiver or an abandonment of the request. In Wong’s case, similar to Truett, defense counsel’s neutral statement, “I understand,” does not support the State’s argument that Wong failed to preserve his request for an instruction on the permissive lesser included offense;
The majority also faults defense 'counsel for his failure to make an express objection,after the trial judge made it clear that he was refusing to give the requested instruction on the permissive lesser included offense. No such express objection was requirеd. This court has summarized the law concerning what counsel must do to satisfy the contemporaneous objection rule upon the trial court’s refusal to give a requested jury instruction as follows:
The State also argues that, even if the trial court .did err in instructing the jury, the issue was not properly preserved for appeal because defense counsel failed to object to the instructions as. given, While objections with regard to. jury instructions are subject to the contemporaneous objection rule, State v. Delva,575 So.2d 643 , 644-45 (Fla.1991), the objectives of this, rule are satisfied “when the record shows clearly and unambiguously that a request was made for a specific instruction and that .the trial cоurt clearly understood the request and just as clearly denied the request.” State v. Heathcoat, 442 So.2d 955 , 956 (Fla.1983). This court, as well as other Florida courts, has repeatedly applied this rule to hold that the issue of failure to instruct on a lesser-ineluded offense was properly preserved once the instruction was requested, regardless of counsel’s failure to object either after the request was denied or after the instructions were given. See, e.g., Flint v. State463 So.2d 554 , 556 (Fla. 2d DCA 1985). In this case, defense counsel properly preserved the issue for appeal by requesting an instruction on the lesser-ineluded offense of battery despite the fact that counsel arguably did not specifically protest the trial court’s denial of that request.
Bryant v. State,
In this case, the record shows that defense counsel made a request for an instruction on a specific lesser included offense, Defense counsel’s request was not vague or subject to any misunderstanding. On the contrary, defense counsel expressly referred to section 11.8 of the standard jury instructions, the instruction for “Committing Unnatural and Lascivious Act.” Defense counsel explained the reasons for his request for an instruction on what was a category two, permissivе lesser included offense by referring to the allegations of the information and the evidence presented at trial. The trial judge knew that defense counsel had made the request only after consulting the standard jury instructions to determine the available lesser included offenses for the crimes charged. In light of all of the surrounding circumstances, defense counsel’s remarks— though brief — were so clear, direct, and specific that the meaning of and the grounds underlying his request were unmistakable. As noted above, the trial judge’s curt response — “I don’t have to give a lesser for category two” — coupled with this peremptory direction of the discussion to unrelated matters revеals two things. One, the trial judge mistakenly believed that he had the discretion, to refuse to instruct the jury on category two, permissive lesser included offenses. Two, the trial judge intended to exercise that assumed discretion by denying the requested instruction.
After acknowledging but not agreeing with the trial judge’s incorrect statement of the applicable law, defense counsel repeated his request for the instruction two more times by saying, “I’m asking you. I’m pleading.” This was sufficient to satisfy the requirements of the contemporaneous objection rule and to preserve the denial of the requested instruction for appellate review. Defense counsel clearly requested a sрecific instruction, the trial court understood the request, and the trial court — misunderstanding the requirements of the applicable law — refused to give the requested instruction. Further objection by defense counsel then would have been pointless. See State v. Heathcoat,
I note that defense counsel’s efforts at preservation in this case were just as good — if not better — than the efforts of defense counsel in other cases where the appellate courts rejected similar arguments by the State about an asserted lack of preservation of the refusal to give a requested jury instruction or instructions for appellate review. See, e.g., Fernandez
E. Distinguishing Watson v. State
The majority cites Watson v. State,
II. CONCLUSION
In my view, a fair reading of the record in this case demonstrates that defense counsel satisfied the requirements of the contemporaneous objection rule with regard to his request for an instruction on the lesser offense of unnatural and lascivious act. Assuming that Wоng can get over the preservation hurdle, the State admirably concedes that the trial court committed reversible error in refusing to give the requested instruction. Accordingly, I would reverse Wong’s judgment and sentences and remand for a new trial.
. I cite to a span of years for section 800.02 because the offenses with which Wong was charged were alleged to have occurred between January 25, 2000, and May 1, 2011. I note that section 800.02 has not been amended since 1993. -
. I note that Wong was not present for the charge conference.
. Section 11.8 is the standard jury instruction for “Committing Unnatural and Lascivious Act,” section 800.02, Florida Statutes.
. Curiously, the majority does not address the subject of whether the trial judge's "general statement of the law" is correct.