Philip J. Massa, Regional Counsel, and Randall Berman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
Convicted of an organized scheme to defraud, appellant Peter Scott Smith challenges the use of the " and/or" conjunction between his name and the name of his co-defendant in the jury instruction on the elements of the crime. He claims the court's giving of the instruction was fundamental error, even though he requested that the court give it. We affirm, concluding not only that the argument was waived by appellant's request, but also that given the totality of the circumstances the instruction was not fundamental error.
Appellant and his co-defendant were charged by amended information with committing organized fraud, in violation of section 817.034(4)(a)1., Florida Statutes (2001). The state alleged that, during a three-year period, appellant obtained over
$50,000 from various victims, making the offense a first-degree felony.
The facts of this case are set forth in O'Keefe v. State, 47 So.3d 937, 938 (Fla. 4th DCA 2010):
The evidence at trial showed that [John O'Keefe] owned and operated an investment company called Merit First. [O'Keefe] and ... co-defendant, Scott Smith, each sold investment opportunities to friends and acquaintances. The state called thirteen witnesses who each gave substantial sums of money to [O'Keefe] or Smith for investment purposes. Smith attracted investors, mostly from his church, to [O'Keefe's] firm. Some investors dealt solely with [O'Keefe]; some dealt solely with Smith; and some dealt with both [O'Keefe] and Smith. The investors were usually given promissory notes, which were to be repaid within sixty-ninety days, and told that their funds would be used to finance shell corporations that would be sold to start-up companies seeking to go public. However, the investors were never repaid.
A state investigator testified that he had reviewed [O'Keefe's] books and records and could find no investor money going into any investments at all, but he did find substantial amounts flowing to [O'Keefe] and his family and to Smith. Smith testified that before he joined [O'Keefe], he checked out his references, which seemed accurate. [Smith] began selling investments for [O'Keefe] who would continually tell Smith that he was on the brink of a sale of a shell corporation which would bring the return to investors. After about eighteen months, Smith stopped believing him. Smith claimed that he repaid some investment funds to one investor.
Smith testified at the joint trial and claimed that he was duped by O'Keefe as were the victims. He claimed that he did not know of O'Keefe's fraud. Moreover, he claimed that he received very little, if any, money from O'Keefe.
Prior to closing argument, the parties agreed to jury instructions which provided that, as to the elements of the crime the state had to prove that: (1) O'Keefe and Smith engaged in a scheme to defraud; and (2) O'Keefe and Smith obtained property through the scheme to defraud. Id.
During closing argument, Smith's attorney likened Smith to a mate on a boat of which O'Keefe was the captain, and Smith had no control. He argued, " [T]o find Mr. Scott Smith guilty in this case is to blame the mate because you didn't catch your marlin that day." He stressed the instruction on multiple defendants and that the jury must decide the case against each defendant on its own. Smith, he argued, did not commit any scheme to defraud or obtain any money as a result, other than commissions for selling the investments. He also directed the jury's attention to the principals instruction, pointing out that the jury would have to find that Smith knew that O'Keefe was stealing the money of the investors and that Smith brought the investors there with the intent to get some of the money. The state did not present evidence of this to support Smith's liability as a principal, he maintained. He ended by again reminding the jurors that they must decide the case against Smith independent of the case against O'Keefe. On rebuttal, the state attorney also told the jury that it must look at the evidence separately for O'Keefe and Smith.
After the closing arguments, the trial court questioned whether the jury instructions agreed ...