State v. Delva

In Delva v. State, 557 So.2d 52 (Fla. 3d DCA 1989), the district court of appeal reversed Delva’s conviction for trafficking in cocaine because the trial court did not instruct the jury on an element of the crime, i.e., Delva’s knowledge that the substance was cocaine. In an unpublished order denying rehearing, the court certified the following question as being of great public importance:

In a case tried prior to the decision in Dominguez v. State [sic], 509 So.2d 917 (Fla.1987), is it fundamental error to fail to instruct the jury that in order to convict, the State must prove that defendant knew the substance contained in the package in defendant’s car was cocaine, where the instructions were susceptible of the reading that knowing possession of the package containing the substance was sufficient to convict, and where the error is urged on direct appeal from the conviction, not on collateral attack.

Delva v. State, 571 So.2d 1 (Fla. 3d DCA 1990). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Prior to State v. Dominguez, 509 So.2d 917 (Fla.1987), the standard jury instruction on trafficking in cocaine provided that the state must prove:

1. (Defendant) knowingly ... [possessed] a certain substance.

2. The substance was [cocaine]_

3. The quantity of the substance involved was 28 grams or more.

Fla. Std. Jury Instr. (Crim.) at 233 (Mar.1989). In Dominguez, the defendant was arrested when he delivered two packages of cocaine to an undercover officer. In his defense, Dominguez asserted that he had no knowledge of the nature of the substance in the package. He requested a special instruction that the state must prove that the defendant knew the substance was cocaine. We approved the holding of the district court of appeal which had reversed the defendant’s conviction for failure to give the requested instruction. Noting the inadequacy of the standard jury instructions revealed by this case, we amended the instructions to add a fourth element:

4. (Defendant) knew the substance was (specific substance alleged).

Dominguez, 509 So.2d at 918.

Thus, there is no doubt that the instruction given in Delva’s case was erroneous. Delva’s trial, however, occurred prior to the release of Dominguez. Moreover, unlike Dominguez, Delva neither objected to the then-standard instructions given in his case nor requested an instruction on his actual knowledge of the substance.

We have long held that “[i]t is an inherent and indispensable requisite of a fair and impartial trial ... that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.” Gerds v. State, 64 So.2d 915, 916 (Fla.1953). Instructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Castor v. State, 365 So.2d 701 (Fla.1978); Brown v. State, 124 So.2d 481 (Fla.1960). To justify not imposing the contemporaneous objection rule, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown, 124 So.2d at 484. In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 863 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983). Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal. E.g., Stewart (trial court did not instruct on intent to permanently deprive as element of robbery, but defendant admitted at trial that he stole the victim’s personal property); Morton v. State, 459 So.2d 322 (Fla. 3d DCA 1984) (no instruction on elements of robbery, but facts of robberies conceded with mistaken identity being the only contested issue), review denied, 467 So.2d 1000 (Fla.1985); Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981) (same as Morton), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983).

In the instant case, a package of cocaine was discovered under the front seat of the car Delva was driving. What officers identified as a cocaine pricing list was found in Delva’s wallet. Delva’s defense was that he did not know the package of cocaine was even in his car. He presented testimony that the car was jointly owned by himself and his fiancee and the two of them as well as his brother all drove the car. He further presented testimony that his brother drove the car on the day of the arrest. In his closing argument, defense counsel told the jury that the state had to prove he knew the cocaine was hidden under the seat. He pointed out that the cocaine was out of plain view, that Delva’s brother had had the car all day, and that Delva’s fingerprints were not on the package.

There was no suggestion that Delva was arguing that while he knew of the existence of the package he did not know what it contained. Hence, the issue which was raised in Dominguez and corrected by the addition to the standard jury instruction was not involved in Delva’s case. Because knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection.

We answer the certified question in the affirmative with the qualification that fundamental error does not occur when the defendant’s knowledge of the nature of the substance was not an issue in the case. We quash the decision below.

It is so ordered.

SHAW, C.J., and OVERTON, BARKETT and GRIMES, JJ., concur.

McDONALD and KOGAN, JJ., dissent with opinions.