Not Knowing About the Presence of Drugs Found In a Car As a Defence

In State v. Delva, 575 So. 2d 643, 645 (Fla. 1991), the defendant was convicted of trafficking in cocaine. Delva's defense at trial was that he lacked knowledge of the presence of the cocaine found in his vehicle. No instruction was requested or given that the State must prove knowledge of the illicit nature of the substance. On review, this Court initially noted that there was "no doubt that the instruction given in Delva's case was erroneous" because it failed to include the element to the instruction on the offense of trafficking. Id. at 644. However, the Court also held that that error was not fundamental in Delva's case. Id. at 645. With regard to the generally applicable law, the Court wrote: We have long held that "it 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, 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. Id. at 644-45. Turning to the facts of Delva, the Court noted that Delva presented testimony that the vehicle was jointly owned by himself and his fiancee and his brother had driven it on the day of the arrest, and Delva's defense at trial was that he did not know of the presence of the cocaine. The Court then held: 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. Id. at 645. In short, the Court concluded that Delva's defense that he did not have knowledge of the presence of the cocaine did not also place into dispute the element of knowledge of the illicit nature, and therefore the error in failing to instruct the jury on that element was not fundamental.