Paul FITZPATRICK, Appellant, v. STATE of Florida, Appellee, 859 So. 2d 486

PER CURIAM. We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we reverse appellant’s conviction, vacate his sentence, and remand for a new trial. FACTS AND PROCEDURAL HISTORY On September 17, 1996, the grand jury indicted appellant, Paul John Fitzpatrick, for the premeditated murder of Gerald D. Hollinger. The charges against Fitzpatrick resulted from the stabbing death of Hollinger, who was found dead on February 8, 1980, inside his Pinellas County home.

Fitzpatrick was tried February 14, 2000, through February 18, 2000, and found guilty of first-degree murder. The jury recommended death by an eight-to-four majority. Fitzpatrick maintained his innocence at trial, and in a posttrial statement to the sentencing court attributed his conviction to the perjured testimony of the State’s witness, Paul Brown. On September 13, 2000, the trial court sentenced appellant to death. This direct appeal followed. At trial, officers from the local sheriffs department testified that they found Hol-linger’s body lying on the kitchen floor of his residence in a large pool of blood.

The medical examiner testified that there were forty-one stab wounds on his body, including several wounds to the face, three wounds on the neck, the lowest of which cut Hollinger’s jugular vein, and several defensive wounds. The immediate cause of death was blood loss resulting from all of the wounds. The medical examiner also testified that she had suspected the victim was homosexual because the infliction of many more wounds than necessary to cause death is consistent with homosexual homicides.

Evidence submitted at trial established that there was no forced entry into the victim’s home, and that the perpetrator had stolen items from the residence. Law enforcement officials testified that the house was in disarray, that stereo equipment appeared to have been stolen, and that the victim’s wallet was found lying next to his body on top of the pool of blood. According to the medical examiner, the position of the victim’s arms and pooling of the blood was consistent with the victim being rolled from front to back after he was down.

Also found at the scene was a receipt from the Floridian Motor Hotel showing payment for the week of February 2-8, 1980, and a series of bloody shoe prints and sock-clad foot impressions. The victim’s car was found abandoned along a nearby highway with blood on the foot pedals and driver’s side floorboard, and a video cable hanging out of the passenger’s door. The Hollinger murder was classified as a cold case until it was reopened in 1994.

The detective assigned to the case, Michael Ring, noticed that the social security number on the registration form for the Floridian Hotel began with a prefix which — if valid — would have been issued by the Commonwealth of Massachusetts. Ring sent the unidentified prints to Massachusetts and learned that fingerprints found in the hotel room matched both Brown and Fitzpatrick, and that Fitzpatrick’s prints matched those found in the victim’s residence and vehicle. Brown and Fitzpatrick had been incarcerated for the armed robbery of Kenneth Menard, which occurred in Massachusetts on January 30, 1980.

Ring traveled to Massachusetts in June of 1995, interviewed both men, and served search warrants to obtain physical evidence from them. Fitzpatrick was subsequently charged with first-degree murder. At trial, the State introduced evidence regarding the armed robbery of Kenneth Menard, with Menard, Brown, and Fitzpatrick each providing testimony. Brown and Fitzpatrick also testified regarding the events that occurred after the robbery of Menard. According to Brown, he and Fitzpatrick pawned the stereo they had stolen from Menard, cashed one of his personal checks, and used the funds to flee to Florida.

They arrived in Tampa and paid in advance for a one-week stay at the Floridian Motor Hotel. The two then commenced a drug and alcohol binge that they facilitated by stealing cars for transportation between Tampa and the bars in Clearwater. They pawned the contents of the stolen vehicles for spending money. Brown testified that he and Fitzpatrick separated one night in Clearwater with Brown choosing to remain at a party and Fitzpatrick choosing to return to Tampa.

Brown averred that Fitzpatrick was not in the hotel room when he returned to Tampa, and that he was aroused by a knock at the door, which he opened to find an intoxicated Fitzpatrick who was assisted into the room by another man. According to Brown, Fitzpatrick’s shoes were covered in what appeared to be red clay and the bottom of the other man’s coat was covered with dirt or water. Brown stated that he awoke a second time to see Fitzpatrick throw his shoes out the window claiming that one had ripped.

According to Brown, he and Fitzpatrick left the next morning and stayed with a girlfriend of Brown’s aunt for three weeks prior to i*eturning to Massachusetts. Upon their return to Massachusetts the two were arrested and eventually incarcerated in the same correctional facility for the armed robbery of Kenneth Menard. Brown testified that while in prison, Fitzpatrick declared in the presence of two other inmates that he had sliced a man’s throat while in Florida. According to Brown, Fitzpatrick claimed that he had been attacked by a homosexual in Florida and that he had stabbed his attacker in the throat.

Fitzpatrick’s testimony regarding the night of Hollinger’s murder differed substantially from Brown’s. According to Fitzpatrick, he and Brown left Clearwater together, began to walk in the direction of Tampa, and were offered a ride by Hollinger, who requested that the three stop at his house before proceeding to Tampa. They went back to Hollinger’s house where they consumed alcohol. Fitzpatrick testified that he fell asleep on the couch in the victim’s living room and awoke to screams emanating from the kitchen.

He testified that he saw Brown and Hollinger fighting in the kitchen, that he walked back into the living room, and that when he turned toward the kitchen again, Brown walked past him down the hall toward the bathroom. Fitzpatrick testified that when he went to check on the victim, he was in stocking feet and must have stepped in blood. He admitted that the bloody sock-clad foot impressions found at the scene were probably his, but maintained that he was not the only person in the house.

Fitzpatrick testified that Brown suggested stealing the victim’s stereo and that the two fled the scene in the victim’s car only to run out of gas on the highway. Fitzpatrick denied telling Brown that he had slit a man’s throat. He could not recall whether the victim had been rolled over to obtain access to his wallet, but testified that he and Brown never discussed robbing Hollinger. ANALYSIS Appellant raises six issues on appeal. We conclude that appellant’s first issue regarding the validity of the general jury verdict is dispositive and compels us to remand the case for a new trial.

As a result, we do not reach the balance of appellant’s claims. The trial judge in the instant case instructed the jury on premeditated murder and felony murder with robbery and burglary as the underlying felonies. The jury returned a general verdict finding Fitzpatrick guilty of first-degree murder. Appellant argues that reversal of his conviction is warranted because the jury may have relied upon an erroneous definition of burglary as the basis for the felony murder conviction. We agree.

After return of the guilty verdict, appellant filed a motion for a new trial arguing, in part, that this Court’s decision in Delgado v. State, 776 So.2d 233 (Fla.2000), invalidated the theory of felony murder based on burglary which prosecutors relied upon in his case. In Delgado, we held that where an individual enters a dwelling with consent, the burglary statute only applies if the individual remains there surreptitiously. See id. at 240.

Appellant argued that the rule established in Delgado applied to his case because the evidence showed that he was a consensual invitee into Hollinger’s home, but totally failed to establish that he had surreptitiously remained therein. The trial court agreed that it had erred in instructing the jury on burglary as a basis for felony murder, but denied appellant’s motion for a new trial, concluding that the facts were sufficient to establish premeditated murder and felony murder based on robbery.

It is well established that a general jury verdict cannot stand where one of the theories of prosecution is legally inadequate. See Delgado, 776 So.2d at 241; see also Valentine v. State, 688 So.2d 313, 317 (Fla.1996) (invalidating attempted first-degree murder conviction which rested on alternate theories of attempted first-degree premeditated murder and attempted first-degree felony murder where this Court subsequently held that attempted first-degree felony murder does not exist in Florida). This Court recently reiterated this principle in Mackerley v.

State, 777 So.2d 969 (Fla.2001), where the Fourth District Court of Appeal certified the following question of great public importance: Is it harmless error when a defendant is convicted by general verdict for first degree murder on the dual theories of premeditation and felony murder where the felony underlying the felony murder charge is based on a legally unsupportable theory of which the defendant is nevertheless convicted, and there is evidence in the record to support the jury’s finding of premeditation? Mackerley, 777 So.2d at 969.

Citing our decision in Delgado, we answered this question in the negative, quashed the decision of the district court, and remanded with instructions to reverse petitioner’s conviction. Our decisions in Delgado and Mackerley stem from the decision in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), where the U.S. Supreme Court held that a general verdict is invalid when it rests on multiple bases, one of which is legally inadequate. See id. at 312-13, 77 S.Ct. 1064.

According to the Yates Court, the “proper rule to be applied is that which requires the verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id. at 312, 77 S.Ct. 1064. As interpreted in the high Court’s subsequent decision in Griffin v. United States, 502 U.S. 46, 60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), the rationale underlying the Yates rule is that a jury’s expertise as fact finder does not extend to determining the legality of multiple theories of prosecution.

In refusing to apply the Yates rule to factually inadequate theories, the Griffin Court explained: When ... jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory.... Id. at 59, 112 S.Ct. 466. The instant case presents a slight variation on the issue addressed in Mackerley and Delgado.

Here, the question is whether reversal is required where the jury was instructed on premeditated murder and felony murder, and where felony murder, in turn, was based on alternate underlying felonies, one of which is legally insufficient. We hold that the extra analytical step required in the instant case does not alter the impact of the Yates rule. We have before us a multi-part theory of prosecution, one part of which is legally inadequate, and a general jury verdict.

From this information, we cannot possibly discern whether the jury convicted Fitzpatrick based on the legally sufficient grounds of premeditated murder or felony murder based on robbery, or the inadequate charge of felony murder based on burglary. It is precisely this type of uncertainty that Yates rejects. We are therefore compelled to reverse Fitzpatrick’s conviction, vacate his sentence, and remand the case for a new trial. CONCLUSION For the reasons stated above, we reverse appellant’s conviction, vacate his sentence, and remand the case for a new trial consistent with this opinion. It is so ordered.

ANSTEAD, C.J., and PARIENTE and QUINCE, JJ., concur. LEWIS, J., concurs specially with an opinion, in which QUINCE, J., concurs. WELLS, J., dissents with an opinion, in which CANTERO, J., concurs. SHAW, Senior Justice, dissents. . The victim had defensive wounds to his left hand, right leg, and left thigh. The medical examiner also observed marks on the victim’s neck that corresponded with the application of pressure without cutting, and were consistent with someone holding a knife to the victim's neck from behind. . The receipt listed “John Murphy” as the guest in room 1706.

Brown later testified that both he and Fitzpatrick used false names and a false social security number to register for the room at the Floridian. . The bloody sock-clad foot impressions led from the kitchen across the living room, through the master bedroom and into the bathroom to the vanity, then back in reverse order. .

A fingerprint expert testified that of the latent prints lifted from the crime scene, the hotel room, and the victim's vehicle, ten came back positive to Fitzpatrick (seven from the victim’s residence, one from the victim's vehicle, and two from the hotel room), and two from the hotel room came back positive to Brown.

Fitzpatrick’s prints were located on glasses found in the victim’s bedroom and living room, on the door of the bathroom in the victim's residence, outside the door frame on the passenger’s side of the victim's vehicle, and on an ashtray in the hotel room. .Brown stated that he paid for the hotel room and that he believed that he had received the only receipt. . The State's footprint expert opined that the bloody foot impressions were consistent with Fitzpatrick’s foot prints and inconsistent with those taken from other suspects, including Paul Brown. . Appellant argues that the trial court erred in (

i) submitting the case to the jury on premeditated murder and felony murder with alternatives of robbery and burglar}' where the burglary charge was legally inadequate; (ii) limiting the cross-examination of the prosecution's key witness; (iii) permitting the introduction of collateral crime evidence; (iv) failing to find and weigh certain mitigating circumstances; and (

v) denying appellant's motion to declare the Florida death penalty statute unconstitutional because it permits a death recommendation by a simple majority vote. Appellant also argues that his death sentence violates the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution because the aggravating circumstances necessary to impose the death sentence were neither charged by indictment nor determined by a jury. . The U.S.

Supreme Court subsequently overruled that portion of the Yates decision which suggested that a defendant waives his right for a judgment of acquittal by filing a motion for a new trial. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Yates remains controlling authority for the proposition addressed herein. . We observe that the outcome reached here has been anticipated at the district court level. The Second District Court of Appeal has confronted the identical factual scenario now before us. In Lyons v.

State, 791 So.2d 36 (Fla. 2d DCA 2001), the Second District applied our decisions in Delgado and Mackerley to reverse a conviction based on premeditated and felony murder based on robbery and burglary where the burglary theory was inadequate under Delgado. See id. at 36-37.