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LANZO v. STATE
73 So.3d 817 (2011)
District Court of Appeal of Florida, Fifth District.
October 21, 2011.
At the charge conference, the State requested that the jury be instructed on the statutory presumption set forth in section 810.07(1), Florida Statutes (2010). That statute provides that where a defendant is tried on a burglary charge, evidence that the defendant entered a particular structure or conveyance "stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense." Over Lanzo's objection, the trial judge granted the State's request and instructed the jury as follows: You may infer that Mark Anthony Lanzo had the intent to commit a crime inside a structure if the entering of the structure was done stealthily without the consent of the owner or occupant.... To utilize the presumption set forth in section 810.07, the State must present evidence of the owner or occupant's lack of consent and that entry into the structure was done "stealthily." While the statute does not define "stealth," this term has been interpreted to mean activity that is "surreptitious, furtive, or sly." J.A.S. v. State, 952 So.2d 638, 640 (Fla. 2d DCA 2007); see also Black's Law Dictionary 1548 (9th ed. 2009). Florida courts have concluded that a defendant acts stealthily when his or her actions are done in a furtive or clandestine manner to avoid discovery. See, e.g., Baker v. State, 636 So.2d 1342, 1343 (Fla.1994) (evidence supported a finding of stealthy entry where defendant crept underneath plastic tarp into backyard surrounded by privacy fence, broke window while hidden from view in seclusion of backyard, and fled when alarm sounded); M.S. v. State, 774 So.2d 777, 778 (Fla. 3d DCA 2000) (inferring intent through statutory presumption of stealthy entry where defendant ran from back exit of apartment late at night). In contrast, courts have declined to conclude that evidence showed stealthy entry where the defendant did not act in a furtive or a clandestine manner. See, e.g., J.A.S. v. State; Frazier v. State, 664 So.2d 985,
986 (Fla. 4th DCA 1995) (stealth instruction improper where defendant smashed through glass door of home in broad daylight and in presence of victims). J.A.S. is particularly instructive. There, our sister court reversed an order adjudicating J.A.S. delinquent for attempted burglary of a dwelling. The State's evidence established that a neighbor had observed J.A.S. jiggle the garage door handle of the alleged victim's residence, while another boy went to the front door of the house. Neither boy was observed gaining entry into the house as both remained in front of the house. After shaking the handle for approximately five to ten minutes, J.A.S. leaned against the garage door another few minutes. While the neighbor continued to watch, the boys walked away from the residence. A few minutes later, a police officer arrived at the home in response to a signal from a burglar alarm. Police investigated the scene and discovered a sliding door in the back of the house that was partially open. There was no evidence of entry into the house and no evidence that connected the boys to any action that may have set off the burglar alarm or placed them near the partially open door. The alleged victim knew J.A.S. and testified that J.A.S. did not have permission to be in her house.
1. Nelson did not testify at trial. For the benefit of the trial court and counsel, we caution that should this case be retried and Nelson is once again not called as a witness, the circumstances in which the State may comment on a defendant's failure to call a witness are extremely limited. See Rodriguez v. State, 753 So.2d 29, 38-39 (Fla.2000) ("[T]he state may not comment on a defendant's failure to mount a defense because doing so could lead the jury to erroneously conclude that the defendant has the burden of doing so.... There is a `narrow exception' to this rule, applicable where the defendant has asserted a defense of alibi, self-defense, or defense of others, relying on facts that could be elicited only from a witness who is not equally available to the state. Unless the circumstances fall within this `narrow exception,' these matters are not the subject of fair comment, and any comment `fairly susceptible' to being construed as a comment on the failure to mount a defense is impermissible.") (internal citations omitted); see also Conner v. State, 910 So.2d 313 (Fla. 5th DCA 2005) (improper for prosecutor, during rebuttal closing argument, to comment on defendant's failure to call two witnesses, where based on defendant's version of events, it was unlikely that had those witnesses been called, defendant would have asserted defense of alibi, self-defense, or defense of others).
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