980 So.2d 1061 (Fla. 2008), SC07-573, State v. Kettell

Docket Nº:SC07-573
Citation:980 So.2d 1061, 33 Fla. L. Weekly S 255
Opinion Judge:CANTERO, J.
Party Name:STATE of Florida, Petitioner, v. Charles A. KETTELL, Sr., Respondent.
Attorney: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 Defen...
Case Date:April 24, 2008
Court:Supreme Court of Florida
 
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Page 1061

980 So.2d 1061 (Fla. 2008)

33 Fla. L. Weekly S 255

STATE of Florida, Petitioner,

v.

Charles A. KETTELL, Sr., Respondent.

No. SC07-573

Florida Supreme Court

April 24, 2008

Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions, Second District - Case No. 2D05-2882 (Pinellas County)

Page 1062

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

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

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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.

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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...

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