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Lane v. State9/17/2003
Along with two co-defendants, the state charged appellant, John Lane, with attempted murder in the second degree. We reverse appellant's conviction for aggravated battery, which, in this case, should not have been given to the jury as a lesser included offense of attempted second degree murder.
The information read:
[The State Attorney] charges that [the defendants] on the 9th day of November, A.D. 2000, in the County and State aforesaid, by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual, did unlawfully attempt to kill and murder one Naphtily Collins, a human being, by striking Naphtily Collins repeatedly about the head and face, contrary to F.S. 782.04 and F.S. 777.04(4).
The case arose from an incident in a park where a group of young people choked, punched, and kicked the victim while he was on the ground. As a result of the beating, upon his admission to the hospital, the victim required intracranial pressure monitoring to treat a life threatening condition. Also, due to the blunt trauma to his skull, the victim had a lateral gaze of the right eye, which meant that he was unable to have his eyes face in the same direction. A month after the incident, a clinical neuropsychologist found that the victim had such significant memory deficits that he had no recollection of the beating.
During a recess of the defense's case, the parties discussed jury instructions. In a discussion of lesser included crimes, defense counsel noted that " e are not asking for aggravated battery," but only for battery and assault. After the state remarked that it was requesting aggravated battery, the trial court announced that it would include all three of these lesser-included offenses, aggravated battery, battery, and assault. The state commented that defense counsel should review the final verdict form; the trial court then noted that "[defense counsel] has an objection to the aggravated battery." Defense counsel objected to a principal instruction.
The trial court instructed the jury on the crime of attempted second degree murder and on the lesser included crimes of aggravated battery, battery, and assault. The jury returned a verdict finding Lane guilty of aggravated battery.
Lane contends that the trial court erred when it instructed the jury on the permissive lesser included offense of aggravated battery. His argument is that the instruction was improper "because the information did not allege all the elements of aggravated battery, specifically, that [Lane] intentionally or knowingly caused great bodily harm." See ยง 784.045(1), Fla. Stat. (2001).
Although Lane generally objected to the giving of the aggravated battery instruction at trial, he did not articulate the argument he now makes on appeal. Florida Rule of Criminal Procedure 3.390(d) requires such precision, providing that
o party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.
(Emphasis added). Defense counsel's statement that he was "not asking for aggravated battery" was insufficient to alert the trial judge as to the error for which Lane now seeks reversal and did not preserve the issue for appeal. See Cardenas v. State, 816 So. 2d 724, 726 (Fla. 1st DCA 2002) ("Merely objecting to the giving of a standard jury instruction, without stating the specific grounds for the objection, does not preserve for appellate review the issue o
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