State v. Kettell

• Citation: 980 So.2d 1061
• Decision Date: 24 April 2008
• Docket Number: No. SC07-573.,SC07-573.
• Parties: STATE of Florida, Petitioner, v. Charles A. KETTELL, Sr., Respondent.
• Court: United States State Supreme Court of Florida

980 So.2d 1061

STATE of Florida, Petitioner, v. Charles A. KETTELL, Sr., Respondent.

No. SC07-573.

Supreme Court of Florida.

April 24, 2008.

Bill McCollum, Attorney General, Tallahassee, Florida, and Robert J. Krauss, Assistant Attorney General, Bureau Chief, and Richard M. Fishkin, Assistant Attorney General, Tampa, FL, for Petitioner.

James Marion Moorman, Public Defender, and Alisa Smith and Bruce P. Taylor, Assistant Public Defenders, Tenth Judicial Circuit, Bartow, FL, for Respondent.

CANTERO, J.

In this case we decide whether the crime of wantonly or maliciously shooting into a building can be established solely by proof of the shooting itself. We review Kettell v. State, 950 So.2d 505 (Fla. 2d DCA 2007), where the trial court instructed the jury as much. The Second District Court of Appeal reversed, however, holding that the statute required more than mere proof of the shooting. That decision directly and expressly conflicts with Holtsclaw v. State, 542 So.2d 437 (Fla. 5th DCA 1989), in which the court held that merely shooting at, into, or within a building establishes the elements of the crime. We have jurisdiction to resolve the conflict. See art. V, § 3(b)(3), Fla. Const.; State v. Kettell, 959 So.2d 717 (Fla.2007) (granting review). Applying the elementary principle that performing an act "wantonly or maliciously" requires more than merely performing the act, we hold that proof of the shooting alone is insufficient to prove the crime. We therefore approve the Second District's decision.

I. FACTS AND PROCEDURAL HISTORY

When neighbors heard shots coming from Kettell's apartment, they called 911. Officers were dispatched and, upon arriving there, found Kettell alone. The apartment was filled with haze and smelled of gunpowder. The officers found a .38 caliber revolver, gun cleaning materials, and ammunition, as well as bullet holes and bullet fragments in the floor molding. Kettell later admitted to his ex-wife that he fired the shots. He was charged with violating section 790.19, Florida Statutes (2003), which provides, in pertinent part, that "[w]hoever, wantonly or maliciously, shoots at, within, or into ... any public or private building ... shall be guilty of a felony of the second degree."¹ The case went to trial, where a major issue was Kettell's intent.

At trial, a controversy erupted over the jury instructions on the elements of the crime. At the charge conference, arguing that Holtsclaw (the conflict case) held that intent was established solely by evidence that the defendant fired shots within his apartment, the State proposed special jury instructions. The court reserved ruling until after closing arguments. In closing, the State argued in part that Kettell's act of firing his weapon was wanton and malicious because of the risk of personal injury or property damage. Defense counsel argued that the State had not established wanton or malicious intent because it failed to prove the likelihood of personal injury or property damage or Kettell's knowledge of any such likelihood. After closing arguments, the State again requested its special jury instructions because the "jury need[ed] to be instructed that this is a per se crime." Defense counsel objected, arguing that the special instructions negated the statute's wanton or malicious intent requirement, instead creating per se liability for shooting into a building. Considering itself bound by Holtsclaw, the trial court granted the instruction.

The standard jury instruction for the crime requires proof of three elements: that the defendant (1) shot a firearm; (2) at, within, or into a building, occupied or not; and (3) did so "wantonly or maliciously." Fla. Std. Jury Instr. (Crim.) 10.13. These terms are defined in the instructions as follows:

"Wantonly" means consciously and intentionally, with reckless indifference to consequences and with the knowledge that damage is likely to be done to some person.

"Maliciously" means wrongfully, intentionally, without legal justification or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person.

Id. The trial judge gave these standard instructions, and then gave the State's requested special instructions, which read:

In other words, to sustain a conviction for wantonly or maliciously shooting at, within or into a building, the conduct must have been done with an intent to cause damage or injury. This intent element is fulfilled by a person who intentionally shoots at, within or into a building for the primary purpose or with a specific intent of shooting at a person in or near the building as well as by a person who shoots at, within or into a building per se.

Ownership of the building is no defense to the offense of maliciously or wantonly shooting at, within, or into a building.

(Emphasis added.) The jury found Kettell guilty. On appeal, however, the Second District reversed, finding that the first special instruction misstated the law. Kettell, 950 So.2d at 508.

II. DISCUSSION OF LAW

The issue here is whether one can "wantonly or maliciously" shoot at, into, or within a building by "shooting at, within or into a building per se." We hold that the answer must be "no." The adverbs "wantonly or maliciously" require more than the act of shooting itself. Below we (A) explain the nature of the conflict in the district court decisions, (B) resolve the conflict by first analyzing the genesis of the phrase "per se" in the cases interpreting the statute and then concluding that Holtsclaw misinterpreted these decisions to remove the statute's intent requirement, and finally (C) reject the State's contention that giving the erroneous special instruction was harmless error.

A. The Conflict in the Cases

In deciding to give the State's special instruction on intent, the trial court relied on the Fifth District Court of Appeal's decision in Holtsclaw, 542 So.2d 437. Accordingly, to define the conflict here, we first examine that case.

Holtsclaw involved similar, if more violent, facts. After a night of heavy drinking, the defendant returned to his trailer, where his wife and a baby had stayed. Id. at 438. When she asked about the blood on his chin, he struck her. He then retrieved a gun and several times threatened to shoot himself and her. He shot into the floor and then into the wall of the room where the baby was sleeping. When his wife rushed into the room to protect the child, he followed her and again fired into the wall. He was charged with violating section 790.19, as well as with aggravated assault and battery. The jury found him guilty on all counts, but the trial court granted a judgment notwithstanding the verdict on the charge of violating section 790.19. When Holtsclaw appealed his convictions for aggravated assault and battery, the State cross-appealed. Id. at 437-38.

The Fifth District reinstated Holtsclaw's conviction. In its brief opinion, the court addressed the issue as follows:

Holtsclaw's attorney argues this statute did not apply because Holtsclaw owned the trailer and either (1) the shots were made without an intent to injure anyone; or (2) the shots were not directed at anyone. None of these reasons constitute defenses to section 790.19, by its own language, nor does case law so construe it. As we said in Skinner v. State, 450 So.2d 595, 596 (Fla. 5th DCA 1984), review denied, 470 So.2d 702 (Fla.1985):

[We] hold that section 790.19 ... is violated by a person who intentionally shoots at, within, or into a building for the primary purpose, or with the specific intent, of shooting at a person in or near the building, as well as by a person who shoots at, within, or into a building per se.

Holtsclaw, 542 So.2d at 438-39.

In this case, the State requested the special instruction, and the trial court granted it, based on the emphasized language from Holtsclaw above. The State argued that, based on that language, the wanton or malicious intent element is fulfilled by shooting at, within or into a building "per se." The Second District found that the special instruction was "not a correct statement of the law." Kettell, 950 So.2d at 507. The court noted that the instruction absolved the State from proving that the act was done wantonly or maliciously. Id. at 506-07. The district court then addressed the basis for the erroneous instruction — the opinion in Holtsclaw:

In giving the incorrect instruction, the trial court relied on language in Holtsclaw v. State, 542 So.2d 437, 438-39 (Fla. 5th DCA 1989). See also Skinner v. State, 450 So.2d 595, 596 (Fla. 5th DCA 1984). As we have explained, we cannot accept the view that the language at issue constitutes a correct and clear statement of the law. The Holtsclaw court undoubtedly sought to express the view that an offense under section 790.19 may be established without showing that the defendant shot at someone. In other words, a defendant who shoots into a building can do so wantonly or maliciously even though he does not shoot at someone. Unfortunately, the language employed in Holtsclaw suggests that the intent element is fulfilled simply by showing that someone shot into a building without proving that the shooting was done wantonly or maliciously.

Kettell, 950 So.2d at 507. Thus, disagreeing with Holtsclaw about the proof required to establish the intent element of section 790.19, the court held the instruction erroneous; and because the instruction concerned an element of the crime, it reversed and remanded for a new trial. Id. at 507-08.

B. Resolving the Conflict

The district court opinions essentially conflict over whether proof of the first two elements of section 790.19 (shooting a firearm at, within, or into a building) is sufficient to establish the third (doing so wantonly or maliciously). Understanding why Holtsclaw is incorrect first requires us to (1) review the history of the district courts' interpretations of section 790.19 and then...