Supreme Court of Florida

IN THE Supreme Court of Florida MYRA S. VAIVADA, Petitioner, v. STATE OF FLORIDA, Case No. SC04-867 District Court Case No.1D02-5292 Respondent. JURISDICTIONAL BRIEF OF PETITIONER ROBERT AUGUSTUS HARPER Robert Augustus Harper Law Firm, P.A. 325 West Park Avenue Tallahassee, Florida 32301-1413 (850) 224-5900/fax (850) 224-9800 FL Bar No. 127600/GA Bar No. 328360 MICHAEL ROBERT UFFERMAN Robert Augustus Harper Law Firm, P.A. FL Bar No. 114227 Counsel for Petitioner VAIVADA

A. TABLE OF CONTENTS Page A. TABLE OF CONTENTS... ii B. TABLE OF CITATIONS...iv 1. Cases...iv 2. Other Authority...iv C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS.... 1 D. SUMMARY OF ARGUMENT.... 1 E. JURISDICTIONAL STATEMENT.... 2 F. ARGUMENT AND CITATIONS OF AUTHORITY.... 2 The decision below expressly and directly conflicts with decisions from the Fourth District Court of Appeal concerning whether involuntary intoxication is a recognized defense in Florida... 2 1. A criminal defendant has a due process right to present the defense of involuntary intoxication... 3 2. The Fourth District recognizes that involuntary intoxication is a valid defense... 5 3. Before addressing the merits of Petitioner Vaivada s postconviction claim, the First District was required to determine whether the defense of involuntary intoxication is valid... 8 G. CONCLUSION.... 10 H. CERTIFICATE OF SERVICE... 11 ii

I. CERTIFICATE OF COMPLIANCE... 12 iii

1. Cases B. TABLE OF CITATIONS Page Boswell v. State, 610 So. 2d 670 (Fla. 4th DCA 1992)... 2, 3, 5, 10 Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997)...2, 3, 6, 7, 10 Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998)...2, 3, 4, 5, 7, 10 Chicone v. State, 684 So. 2d 736 (Fla. 1996)... 4 Devers-Lopez v. State, 710 So. 2d 720 (Fla. 4th DCA 1998)...1, 2, 3, 7, 8, 10 Fleming v. Peoples First Financial Savings and Loan Ass n, 667 So. 2d 273 (Fla. 1st DCA 1995)... 8, 9 Frank v. State, 199 So. 2d 117 (Fla. 1st DCA 1967)... 4 Mora v. State, 814 So. 2d 322 (Fla. 2002)... 3 Morissette v. United States, 342 U.S. 246 (1952)... 4 Perkins v. State, 764 So. 2d 864 (Fla. 4th DCA 2000)... 9 Vaivada v. State, 870 So. 2d 197 (Fla. 1st DCA 2004)...1, 2, 8, 9, 10 2. Other Authority Art. V, 3(b)(3), Fla. Const.... 2 Fla. R. App. P. 9.030(a)(2)(A)(iv)... 2 Fla. R. App. P. 9.210(a)(2)... 12 Fla. R. Crim. P. 3.850.... 1 iv

Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976).... 6 v

C. STATEMENT OF THE CASE AND STATEMENT OF THE FACTS. Petitioner Vaivada was convicted by a jury of the first-degree murder of her husband, Robert Vaivada, in the First Judicial Circuit, Okaloosa County. Petitioner Vaivada timely filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In her motion, Petitioner Vaivada alleged that trial counsel rendered ineffective assistance of counsel by failing to assert, investigate, or pursue the defense of involuntary intoxication, despite evidence indicating that Petitioner Vaivada was intoxicated at the time of the offense. After holding an evidentiary hearing, the trial court denied the postconviction motion on 06 December 2002. Petitioner Vaivada timely appealed the denial. On 05 March 2004, the First District Court of Appeal issued a written opinion affirming the trial court s denial of Petitioner Vaivada s postconviction claim. See Vaivada v. State, 870 So. 2d 197 (Fla. 1st DCA 2004) (rehearing denied on 16 April 2004). In the opinion, the district court decline[d] to address the issue of whether the defense of involuntary intoxication exists under Florida law. Id. at 870. D. SUMMARY OF ARGUMENT. The decision of the First District Court of Appeal in Vaivada v. State, 870 So. 2d 197 (Fla. 1st DCA 2004), expressly and directly conflicts with decisions from the Fourth District Court of Appeal concerning whether the defense of involuntary 1

intoxication is a valid defense in Florida. See Devers-Lopez v. State, 710 So. 2d 720, 721 (Fla. 4th DCA 1998); Carter v. State, 710 So. 2d 110, 113 (Fla. 4th DCA 1998); Brancaccio v. State, 698 So. 2d 597, 600 (Fla. 4th DCA 1997); Boswell v. State, 610 So. 2d 670, 673 (Fla. 4th DCA 1992). E. JURISDICTIONAL STATEMENT. The Supreme Court of Florida has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. See Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv). F. ARGUMENT AND CITATIONS OF AUTHORITY. The decision below expressly and directly conflicts with decisions from the Fourth District Court of Appeal concerning whether involuntary intoxication is a recognized defense in Florida. In her postconviction motion, Petitioner Vaivada alleged that her trial counsel were ineffective for failing to present the involuntary intoxication defense at trial. The trial court denied the motion and the First District Court of Appeal affirmed the denial. See Vaivada v. State, 870 So. 2d 197 (Fla. 1st DCA 2004). In the opinion below, the district court decline[d] to address the issue of whether the defense of involuntary intoxication exists under Florida law. Id. at 870. Petitioner Vaivada submits that in order to determine whether counsel were ineffective for failing to present the 2

involuntary intoxication defense, it was necessary for the district court to first determine whether the defense of involuntary intoxication exists in Florida. The district court s decision declin[ing] to address the issue of whether the defense of involuntary intoxication exists under Florida law is expressly and directly in conflict with several decisions from the Fourth District Court of Appeal, which clearly hold that the involuntary intoxication defense exists in Florida. See Devers-Lopez v. State, 710 So. 2d 720, 721 (Fla. 4th DCA 1998); Carter v. State, 710 So. 2d 110, 113 (Fla. 4th DCA 1998); Brancaccio v. State, 698 So. 2d 597, 600 (Fla. 4th DCA 1997); Boswell v. State, 610 So. 2d 670, 673 (Fla. 4th DCA 1992). No other Florida court has held to the contrary, although this Court recently declined to address the issue. See Mora v. State, 814 So. 2d 322, 330 (Fla. 2002). Petitioner Vaivada submits that her case is the proper case for the Court to decide this very important issue. There exists an uncertainty in this state regarding whether the involuntary intoxication defense exists. In the Fourth District, defendants are entitled to raise the defense; in contrast, in the First District, defendants are left to wonder whether the defense exists. This conflict in the law should be addressed and resolved by the Court. The conflict potentially affects all criminal cases statewide. 1. A criminal defendant has a due process right to present the defense of involuntary intoxication. Petitioner Vaivada submits that pursuant to the Due Process Clauses of the state 3

and federal constitutions, [b]oth federal law and state law are clear that criminalization of conduct without fault is constitutionally limited to minor infractions such as parking violations or other regulatory offenses. Carter, 710 So. 2d at 111. Accordingly, as explained by the Fourth District in Carter, it would be unconstitutional to prevent a defendant from pursuing an involuntary intoxication defense in a case involving more than a minor infraction : In Chicone v. State, 684 So. 2d 736 (Fla. 1996), our supreme court was confronted with the question of whether guilty knowledge was required for conviction of possession of cocaine, a third-degree felony and possession of drug paraphernalia, a first-degree misdemeanor. Justice Anstead s opinion, speaking for a unanimous court, contains a thorough analysis of why, under both federal and Florida law, intent or knowledge is a prerequisite whenever offenses carry substantial criminal sanctions, regardless of how criminal statutes are worded. The landmark federal decision in this area is Morissette v. United States, 342 U.S. 246 (1952), in which the Supreme Court described the types of minor offenses that people could be convicted of without intent or knowledge, and explained why this did not offend due process..... In Chicone the Florida Supreme Court, relying on [] Morissette, concluded that the felony and misdemeanor statutes involved in Chicone would be presumed to have a scienter requirement in the absence of express contrary intent. Chicone, 684 So. 2d at 742. The Chicone court also reiterated what Judge Wigginton stated in Frank v. State, 199 So. 2d 117, 121 (Fla. 1st DCA 1967): Scienter... is not a mere technicality in the law, but a legal principle which must be observed in order to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge. It is a safeguard which must be preserved in the interest of justice so that the constitutional rights of our 4

citizens may be preserved. Chicone, 684 So. 2d at 739. Carter, 710 So. 2d at 111-12. In the instant case, Petitioner Vaivada was convicted of first-degree murder. Without question, the crime of murder carries a substantial criminal sanction and therefore the crime contains a scienter element. It follows that involuntary intoxication is a defense to the crime of murder because, if established, the defense would negate the scienter element. 2. The Fourth District recognizes that involuntary intoxication is a valid defense. Boswell was the first case in this state to address the defense of involuntary intoxication. In Boswell, a case involving a charge of second-degree murder, the Fourth District reversed for failure to give the involuntary intoxication jury instruction. The defense at trial was that the defendant became very inebriated as a reaction to taking the prescribed medications Xanax and Prozac. The defendant had cirrhosis of the liver which led to a toxic level of Prozac building up in his body. Experts testified that the prescribed anti-depressants could cause side effects such as paranoid reactions and hallucinations. The experts opined that the defendant was suffering from hallucinations at the time of the offense. The Fourth District held that the trial court erred in failing to give the involuntary intoxication jury instruction, concluding that [a] party is entitled to have the jury instructed upon the law which is applicable to his 5

theory of the case, if there is any competent evidence adduced that could support a verdict in his favor. Boswell, 610 So. 2d at 673. In Brancaccio, the Fourth District discussed the involuntary intoxication defense in more detail. The defendant in that case was charged with first-degree murder and kidnaping. The defense at trial was that the medication the defendant was taking, which was prescribed to him during his confinement in a mental hospital, had caused him to lose control. Two months prior to the murder, the defendant had been committed to a mental health hospital after threatening to kill his parents and himself. The defendant was placed on Zoloft, a prescription drug used to treat depression. The hospital noted a change in the defendant s personality after he was placed on Zoloft, in that the defendant became more irritable and was given to angry outbursts. At trial, psychiatrists testifying for the defense opined that Zoloft may have had a reaction which was opposite to what it was supposed to have had on the defendant, causing hypomania. The doctors examined the defendant after his arrest and concluded that the defendant did not have the ability to form the intent to commit firstdegree murder based on his involuntary intoxication from the Zoloft. At trial, the trial court refused to instruct the jury on the involuntary intoxication defense. On appeal, the district court reversed. The court began its analysis by citing 6

to an annotation appearing in the American Law Reporter: 1 Generally speaking, an accused may be completely relieved of criminal responsibility if, because of involuntary intoxication, he was temporarily rendered legally insane at the time he committed the offense. And again speaking generally, the courts have considered one to be involuntarily intoxicated when he has become intoxicated through the fault of another, by accident, inadvertence, or mistake on his own part, or because of a physiological or psychological condition beyond his control. The practice of relieving one of criminal responsibility for offenses committed while in a state of involuntary intoxication extends back to the earliest days of the common law. Involuntary intoxication, it appears, was first recognized as that caused by the unskillfulness of a physician or by the contrivance of one s enemies. Today, where the intoxication is induced through the fault of another and without any fault on the part of the accused, it is generally treated as involuntary. Intoxication caused by the force, duress, fraud, or contrivance of another, for whatever purpose, without any fault on the part of the accused, is uniformly recognized as involuntary intoxication.... Brancaccio, 698 So. 2d at 599. The district court concluded that the defendant presented sufficient facts to establish the involuntary intoxication defense and therefore remanded the case for a new trial. See id. at 600. In Carter, a case involving a DUI charge, the Fourth District held: Involuntary intoxication has been recognized as a defense to negate intent under other circumstances. We therefore conclude that where, as here, there is evidence that (1) the defendant unknowingly ingested a substance which caused him to become impaired and (2) drove without the knowledge that he was or would become impaired while driving, an instruction on involuntary intoxication should be given. 1 Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976). 7

710 So. 2d at 111-13 (citations omitted). Finally, in Devers-Lopez, the Fourth District held: Devers-Lopez testified at trial that, after she ingested what she thought was Valium, she began driving to her friend s house, exited a ramp onto the highway, but could not remember what happened thereafter. (The state s toxicologist testified that consuming Valium would not have had impaired her ability to drive. ) Since the evidence raised the issue as to whether she had unknowingly ingested a drug which caused her to become impaired once she was already driving, we believe Devers-Lopez was entitled to a jury instruction on this defense. 710 So. 2d at 721 (citations omitted). Based on the foregoing, the law is settled in the Fourth District that involuntary intoxication is a valid defense. The opinion below expressly and directly conflicts with the above-cited cases. 3. Before addressing the merits of Petitioner Vaivada s postconviction claim, the First District was required to determine whether the defense of involuntary intoxication is valid. The issue of whether involuntary intoxication exists as a defense in Florida is the key issue of Petitioner Vaivada s case. The issue must be addressed before a court can reach the conclusion of whether defense counsel were ineffective for failing to raise the defense. 2 2 In Vaivada, the First District reasoned that it would decline to address the issue of whether the defense of involuntary intoxication exists under Florida law because the issue was not addressed below. Vaivada, 870 So. 2d at 197 (citations omitted). Petitioner Vaivada argued in her postconviction motion that involuntary intoxication was a defense in Florida. The issue was preserved for appellate review. Petitioner Vaivada could not require the trial court to specifically address the issue that was properly raised before it. In declin[ing] to address the issue, the First District cited 8

If involuntary intoxication is a valid legal defense in Florida, then Petitioner Vaivada s case must be viewed in an entirely different light. Defense counsel were to Fleming v. Peoples First Financial Savings and Loan Ass n, 667 So. 2d 273, 274 (Fla. 1st DCA 1995). In Fleming, the district court held: With respect to Fleming s second issue, Fleming s motion for leave to file an amended counterclaim was filed after the trial court had granted summary judgment as to his counterclaims and at the same time as his motion for rehearing. However, the trial court did not expressly rule on his motion for leave and nothing in the record supports Fleming s contention that the trial court impliedly denied his motion for leave when it denied the motion for rehearing. Because appellate review must be confined to the record of the proceedings in the lower tribunal, in absence of a trial court decision on Fleming s motion, there is nothing for us to review. Further, even if we were to find that the trial court had denied the motion for leave sub silencio, based on our review of the record, the denial would not be an abuse of discretion by the trial court. 667 So. 2d at 274 (citations omitted). Notably, the court in Fleming ultimately addressed the issue in question on the merits. See id. ( Further, even if we were to find that the trial court had denied the motion for leave sub silencio, based on our review of the record, the denial would not be an abuse of discretion by the trial court. ). Furthermore, Vaivada is distinguishable from Fleming. Fleming, a civil case, involved a motion for leave to file an amended counterclaim, which was filed after the trial court granted summary judgment. In contrast, Petitioner Vaivada s case, a criminal postconviction case, involves an issue that was raised in the original postconviction motion, prior to any ruling made by the trial court. In order to rule on Petitioner Vaivada s postconviction motion, the trial court and the district court were first required to determine whether involuntary intoxication is a valid defense. In this context, if the district court below believed that the trial court did not properly address the issue, then the proper remedy would have been to remand the case for further consideration. See Perkins v. State, 764 So. 2d 864, 865 (Fla. 4th DCA 2000) (remanding appeal of the denial of a postconviction motion for further consideration because the trial court failed to address whether the 15-year sentence imposed pursuant to the 1995 guidelines is a departure sentence in light of the 1994 guidelines ). 9

aware that Petitioner Vaivada suffered from mental illness prior to the offense and that Petitioner Vaivada was taking prescription medications at the time of the offense. Defense counsel were also aware that Petitioner Vaivada had a history of overdosing on her medications. Finally, defense counsel were aware that witnesses and law enforcement officials indicated that, shortly after the offense, Petitioner Vaivada exhibited abnormal symptoms and that she appeared to be in an atypical mental state. Defense counsel observed similar bizarre symptoms first-hand. Defense counsel were informed prior to trial that Petitioner Vaivada was not insane. After ruling out insanity, the only other viable defense was involuntary intoxication. Defense counsel were ineffective for failing to pursue the involuntary intoxication defense. Based on reasoning set forth above, the First District s decision in Vaivada expressly and directly conflicts with the Fourth District s decisions in Devers-Lopez, Carter, Brancaccio, and Boswell. Accordingly, Petitioner Vaivada requests the Court to grant review in order to resolve the conflict between Vaivada and Devers-Lopez, Carter, Brancaccio, and Boswell. G. CONCLUSION. The Court has discretionary jurisdiction to review the decision below. The Court should exercise its discretion to consider the merits of Petitioner Vaivada s claim. This case presents an important issue regarding whether the involuntary 10

intoxication defense exists, which is of statewide concern in the criminal law of Florida. 11

H. CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing instrument has been furnished to: Office of the Attorney General Department of Legal Affairs PL01, The Capitol Tallahassee, Florida 32399-1050 by hand/mail delivery this day of May, 2004. Respectfully submitted, ROBERT AUGUSTUS HARPER Robert Augustus Harper Law Firm, P.A. 325 West Park Avenue Tallahassee, Florida 32301-1413 (850) 224-5900/fax (850) 224-9800 FL Bar No. 127600/GA Bar No. 328360 MICHAEL ROBERT UFFERMAN Robert Augustus Harper Law Firm, P.A. FL Bar No. 114227 Counsel for Petitioner VAIVADA xc: Myra S. Vaivada 12

I. CERTIFICATE OF COMPLIANCE Undersigned counsel hereby certifies pursuant to Florida Rule of Appellate Procedure 9.210(a)(2) that the Jurisdictional Brief of Petitioner complies with the typefont limitation. ROBERT AUGUSTUS HARPER Robert Augustus Harper Law Firm, P.A. 325 West Park Avenue Tallahassee, Florida 32301-1413 (850) 224-5900/fax (850) 224-9800 FL Bar No. 127600/GA Bar No. 328360 MICHAEL ROBERT UFFERMAN Robert Augustus Harper Law Firm, P.A. FL Bar No. 114227 Counsel for Petitioner VAIVADA 13