Orange v. State

FORST

Affirmed in part; reversed in part; and remanded for resentencing.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.

Appellant Janard Orange was convicted of first degree murder, as well as four counts of robbery with a firearm and one count of assault. Appellant was 16 years old at the time of the murder of Gregory Smith (“the victim”), also 16. The victim was killed as he was waiting to be picked up following his attendance at a school social function. Appellant was sentenced to life without parole for the murder, and was also given life sentences with a mandatory minimum prison term of ten years for each of the robbery convictions.

We find no error with respect to Appellant's convictions. However, in light of recent United States and Florida Supreme Court decisions concerning the sentencing of juveniles, we reverse Appellant's sentence for the homicide count and remand this case for resentencing. We affirm the sentencing for the armed burglary counts, while acknowledging that conflicts between Florida's District Courts of Appeal with respect to juvenile sentencing have recently been accepted for review by the Florida Supreme Court.

My ruling is, is that I am going to grant your motion to cross-examine him of the statements regarding the fear and the concern and the relationship with [Appellant], the girlfriend, and the deceased, the victim. I am going to rule that you're not to get into any area of [the victim] and his scholarship, the way he acted as a student, whether he was smart, whether he had a behavioral problem or otherwise, that is inappropriate and it is not relevant to what we're doing here. I agree with you, [Defense Counsel], to some extent [the State] is creating this impression, this innuendo, of the relationship between [Appellant] and the fear of [the victim], and I think that needs to be, since that door was opened, needs to be developed before the jury, and I'm ruling that it's admissible under those circumstances. But what's good for the goose is good for the gander. I'm going to let [the State] reopen his direct to let him get into that first before you cross-examine him.

... [The witness] may testify that [the victim] himself was afraid, but he cannot get into the fact that it's known that he's a thug or something along those lines. That is my ruling, notwithstanding your argument of reputation evidence or otherwise.
No objection was made to this compromise between the parties' objections. Before the jury reentered the courtroom, the State asked the court whether it had permission to go into statements about the victim's fear of Appellant. The court responded that it did, and then the court asked defense counsel if anything needed to be clarified. Defense counsel replied, “No.”

The jury then reentered the courtroom and the State reopened its direct examination of the counselor. The State elicited that the victim approached the counselor because a female student told him that Appellant wanted to fight him. The counselor stated that the victim knew Appellant to be a really tough guy; and, even though he told the counselor that he was not afraid, the counselor knew that he was afraid. This was the first time that the victim asked the counselor to handle a situation for him. The counselor approached Appellant about the victim but Appellant kind of laughed it off as if it was not a big deal.

On cross-examination, defense counsel sought the same testimony that contact between the counselor and the victim was initiated by the victim, who had been told that Appellant wanted to fight him. The defense also elicited from the counselor that, after the counselor approached Appellant, Appellant laughed it off and said something like, “I'm not going to do anything to that little boy.” The counselor agreed that Appellant did not seem angry at the time and he did not have any problems with the victim. Appellant was not mentioned again in discussions between the counselor and the victim.

On appeal, Appellant now challenges portions of the State's reopened direct examination after the lengthy side bar conference and discussion outside the presence of the jury as to the scope of Appellant's cross-examination of the counselor. Appellant is claiming the trial court erred in allowing such testimony, alleging the testimony was inadmissible hearsay evidence of the victim's state of mind. However, at the trial, Appellant objected only to the State's asking the witness whether it was uncommon for a male to “have some bravado about what they are or are not afraid of.” Appellant's counsel challenged this questioning, stating, “Objection, your Honor, as to what's common or uncommon.” There was no hearsay objection, and thus the issue that Appellant attempts to address on appeal was not properly preserved for appellate review. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (emphasis added).

Furthermore, Appellant abandoned any hearsay challenge to the counselor's testimony when it specifically and expressly requested the court to allow such testimony and agreed with the court that the State would be allowed to get into the details of the situation with the counselor. See Courtemanche v. State, 24 So.3d 770, 773 (Fla. 5th DCA 2009) (recognizing that an objection may be abandoned during the course of a side-bar conference); Garcia–Gallo v. State, 624 So.2d 851, 852 (Fla. 3d DCA 1993) (refusing to address the merits of certain points on appeal where they were abandoned or “expressly acquiesced to by the defendant”); Castillo v. State, 412 So.2d 36, 37 (Fla. 3d DCA 1982) (finding that timely objections may be considered abandoned when defense counsel explores the challenged subject and brings out the alleged prejudicial details). Counsel may choose to abandon an objection for reasons of strategy. See, e.g., Floyd v. State, 18 So.3d 432, 449 (Fla.2009) (“[C]ounsel eventually abandoned these objections in an attempt to place the murder in a domestic-dispute context as a means to avoid the death sentence.”); Pomeranz v. State, 703 So.2d 465, 470 (Fla.1997) ( “[W]e find that [the defendant] abandoned his previous objections to admission of this evidence when he chose to pursue a strategy of repeatedly informing the jury of the dozens of other robberies and burglaries he had committed.”).

If Appellant had an issue with the lack of context or details presented by the State's initial direct examination regarding the situation between the victim, the counselor, and Appellant, he had to make a strategic decision on how to handle it. Appellant chose to abandon its objection to the hearsay testimony so that more details would be revealed about why the victim approached the counselor and why the counselor then approached Appellant. “A criminal defendant may not take advantage on appeal of an error which he himself induced at trial.” Castle v. State, 305 So.2d 794, 797 (Fla. 4th DCA 1974); see also Ellison v. State, 349 So.2d 731, 732 (Fla. 3d DCA 1977). Appellant chose to allow the hearsay testimony to be included, knowing and understanding that this would open the door for the State to inquire into the circumstances as well. The trial court repeatedly cautioned defense counsel and repeatedly attempted to clarify what defense counsel was asking the court to allow. Counsel acquiesced to testimony being presented about the victim's fear without objection and then did not object when the testimony was elicited in front of the jury. Whereas the State originally limited its direct examination to only relevant non-hearsay testimony, the later reopened direct examination questions and responses were induced by Appellant's request to allow the full circumstances of the interaction with the counselor to be admitted. Therefore, Appellant cannot now, on appeal, take advantage of any error from the court allowing the testimony. See Castle, 305 So.2d at 797.

Appellant argues that the trial court reversibly erred in sentencing him to a mandatory term of life in prison without the possibility of parole for the first degree murder conviction because he was only sixteen years old at the time of the shooting, and recent United States Supreme Court decisions have found that such sentences for minors, when mandatory, violate the Eighth Amendment. Appellant's second sentencing challenge is that the trial court reversibly erred in sentencing him to life in prison without parole for the four robbery with a firearm convictions.

In Miller v. Alabama, –––U.S. ––––, 132 S.Ct. 2455, 2475, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that mandatory life sentences for juveniles under the age of eighteen at the time the offense is committed violates the Eighth Amendment of the United States Constitution. The Court explained its rationale in light of its other decisions on juvenile sentencing in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding that imposition of the death penalty on juveniles violates the Eighth Amendment), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment prohibits imposition of a life without parole sentence on a juvenile convicted of a nonhomicide offense):

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures have affected him.
Miller, 132 S.Ct. at 2468. However, “ Miller did not categorically preclude sentencing a juvenile to life without possibility of parole.” Mason v. State, 134 So.3d 499, 500 (Fla. 4th DCA 2014). A sentence of life without parole cannot be mandatorily imposed on a juvenile, and the sentencing court must first “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison” before imposing the “law's harshest term of imprisonment” for a juvenile. Miller, 132 S.Ct. at 2458, 2469, 2475.

The State does not contest that Appellant's sentence for first degree murder violates the Supreme Court's decision in Miller; however, the primary disagreement between the parties is the proper remedy upon reversing the sentence. Appellant is requesting this court to reverse and remand for resentencing, whereas the State's answer brief focuses on the concept of statutory revival, which would impose a sentence of life in prison with the possibility of parole after twenty-five years.

Two of our sister courts have accepted the State's position. See Horsley v. State, 121 So.3d 1130 (Fla. 5th DCA 2013), review granted, No. SC13–1938, 2013 WL 6224657 (Fla. Nov. 14, 2013); Rodriguez–Giudicelli v. State, 143 So.3d 947 (Fla. 2d DCA 2014). However, this court has consistently followed Miller to direct a trial court, on remand, “to conduct further sentencing proceedings and expressly consider whether any of the numerous ‘distinctive attributes of youth’ referenced in Miller apply in this case so as to diminish the ‘penological justifications' for imposing a life-without-parole sentence upon appellant.” Daugherty v. State, 96 So.3d 1076, 1080 (Fla. 4th DCA 2012); see also Mackey v. State, No. 4D12–1573, ––– So.3d ––––, 39 Fla. L. Weekly D1526, 2014 WL 3605552 (Fla. 4th DCA July 23, 2014); Dawson v. State, 142 So.3d 948 (Fla. 4th DCA 2014); Juarez v. State, 138 So.3d 1094 (Fla. 4th DCA 2014); Brighton v. State, 141 So.3d 579 (Fla. 4th DCA 2014). Accordingly, we reverse Appellant's sentence of life imprisonment without the possibility of parole for first degree murder, and remand for resentencing proceedings in conformity with Miller, providing the trial court with the opportunity to consider Appellant's individual circumstances and characteristics as a juvenile and the opportunity to again impose a sentence of life without parole after considering the proper facts. We note that the Florida Supreme Court has accepted jurisdiction to resolve the conflict between the Districts in Horsley, 2013 WL 6224657.

Appellant also requests this court to reverse and remand for resentencing on his four convictions for robbery with a firearm. In Florida, armed robbery is a first degree felony “punishable by imprisonment for a term of years not exceeding life imprisonment.” § 812.13(2)(a), Fla. Stat. (2011). If a defendant possesses a firearm during the commission of the robbery, a mandatory minimum of ten years in prison must be imposed. See § 775.087(2)(a)(1)c., Fla. Stat. (2011). In the instant case, the trial court's sentencing Appellant to life imprisonment for each robbery with a firearm conviction far exceeded the mandatory minimum and raises an issue only partially addressed by the United States Supreme Court, and currently pending before the Florida Supreme Court: whether a juvenile can be given a sentence of life in prison without parole for nonhomicide crimes that took place in conjunction with a homicide(s).

In Graham, the Supreme Court created a categorical rule prohibiting sentences of life without the possibility of parole for juveniles who did not commit a homicide offense. Graham, 560 U.S. at 74–75, 130 S.Ct. 2011. However, Florida district courts disagree as to whether this categorical rule applies in situations where a juvenile defendant commits a nonhomicide offense along with a homicide offense in the same criminal episode.

The First and Fifth Districts maintain that the Supreme Court created a bright line rule concerning life without parole sentences for juveniles convicted of nonhomicide offenses; thus, even if the same juvenile also commits a homicide offense during the same criminal incident, the trial court may not sentence the juvenile to life without parole for the nonhomicide offense. See Jackson v. State, ––– So.3d ––––, 2013 WL 3013582, 38 Fla. L. Weekly 1334 (Fla. 1st DCA 2013); Johnson v. State, ––– So.3d ––––, 2013 WL 1809685, 38 Fla. L. Weekly D953 (Fla. 1st DCA 2013); Weiand v. State, 129 So.3d 434 (Fla. 5th DCA 2013); Akins v. State, 104 So.3d 1173 (Fla. 1st DCA 2012). These districts hold to the bright line rule that the imposition of a life without parole sentence for a juvenile convicted of any nonhomicide crime is illegal and mandates reversal. See, e.g., Johnson, ––– So.3d ––––, 38 Fla. L. Weekly D953.

In Johnson, the First District certified conflict with the Third District's decision in Lawton v. State, 109 So.3d 825 (Fla. 3d DCA 2013), review granted, No. SC13–685, 2014 WL 305688 (Fla. Jan. 14, 2014). Lawton construed a portion of the Graham decision as supporting the creation of an exception to the Supreme Court's rule that would allow the imposition of a life without parole sentence on a juvenile for a nonhomicide offense when a homicide offense also occurred in a single criminal episode. Lawton, 109 So.3d at 828. Although the First and Fifth Districts maintain that the language is merely dicta, the Second and Third districts find the language creates a clear exception. Id.; Starks v. State, 128 So.3d 91, 92 (Fla. 2d DCA 2013); Washington v. State, 110 So.3d 1, 2–3 (Fla. 2d DCA 2012).

In Graham, the Supreme Court recognized that “[j]uvenile offenders who commit[ ] both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who commit[ ] no homicide.” Graham, 560 U.S. at 63, 130 S.Ct. 2011. The Court further explained:

It is difficult to say that a defendant who receives a life sentence on a nonhomicide offense but who was at the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination. The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.
Id. Because of this language, the Second and Third Districts contend that a life without parole sentence for a juvenile convicted of a nonhomicide offense is not illegal and may be upheld where the juvenile was convicted of a homicide offense in the same incident. See, e.g., Starks, 128 So.3d at 92. However, the Second District in Washington, although maintaining that the sentences were not illegal, still reversed a defendant's sentences of life without parole for two nonhomicide convictions where the court was also reversing the defendant's sentences of life without parole for two homicide convictions because the court concluded that the constitutionality of the sentences imposed for the nonhomicide convictions “probably hinges on whether the trial court, on remand, imposes life without parole for [the homicide convictions].” Washington, 110 So.3d at 3.

This District has not issued an opinion regarding the application of Graham to the instant situation where a juvenile defendant received sentences of life without parole for four nonhomicide offenses for acts that occurred during the same criminal episode for which the defendant was also convicted of a homicide offense. We find the Lawton rationale to be more compelling, permitting the trial court to “properly consider[ ] the ... homicide as an aggravating factor justifying” the maximum sentence for the nonhomicide charges. Lawton, 109 So.3d at 829. Accordingly, we find that the life sentences for the four counts of burglary with a firearm were not illegal and we do not disturb the trial court's sentencing with respect to those counts.

Similar to the upcoming resolution of the conflict between Districts with respect to juvenile sentencing of homicides post- Miller, the Florida Supreme Court has also accepted jurisdiction to address the conflict with respect to juvenile sentencing for nonhomicide offenses that are connected to homicides in the same criminal enterprise. Lawton v. State, No. SC13–685, 2014 WL 305688 (Fla. Jan. 14, 2014).

We affirm the trial court's denial of Appellant's motion for judgment of acquittal and uphold his convictions for first degree murder and four counts of robbery with a firearm. We reverse Appellant's mandatory life without parole sentence for the homicide and remand for the trial court to conduct further sentencing proceedings. Finally, we affirm the sentences with respect to the four armed burglary convictions.

Affirmed in part, reversed in part, and remanded.

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