Armstrong v. State
| Decision Date | 09 May 1991 |
| Docket Number | No. 76768,76768 |
| Citation | 579 So.2d 734,16 Fla. L. Weekly 308 |
| Court | Florida Supreme Court |
| Parties | James ARMSTRONG, Petitioner, v. STATE of Florida, Respondent. 579 So.2d 734, 16 Fla. L. Week. 308 |
James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen. and James N. Charles, Asst. Atty. Gen., Daytona Beach, for respondent.
We review Armstrong v. State, 566 So.2d 943 (Fla. 5th DCA 1990), to answer the following question certified as one of great public importance:
DOES TRIAL COUNSEL FOR A DEFENDANT WAIVE FOR HIS CLIENT FUTURE OBJECTION TO FAILURE TO GIVE THE FULL AND COMPLETE INITIAL INSTRUCTION ON JUSTIFIABLE AND EXCUSABLE HOMICIDE AS PART OF THE MANSLAUGHTER INSTRUCTION WHEN THE TRIAL ATTORNEY SPECIFICALLY REQUESTS AN ABBREVIATED INSTRUCTION, WHICH OTHERWISE WOULD CONSTITUTE FUNDAMENTAL ERROR?
Id. at 944. We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const.
During Armstrong's trial for second-degree murder defense counsel requested that the jury be given an abbreviated version of the standard instruction on excusable homicide. In particular, counsel requested that the definition of excusable homicide be limited to omit reference to a killing in the heat of passion, upon sudden provocation, or upon sudden combat. The defense theory of the case was that Armstrong shot the victim by accident during a struggle for a gun. Defense counsel argued that the evidence would only implicate that portion of the instruction that defined excusable homicide as a killing committed by accident and misfortune, and thus the omitted portion of the instruction was not relevant to the case.
The trial judge gave the instruction as requested. The jury found Armstrong guilty of second-degree murder. On appeal, Armstrong claimed that giving the limited instruction was fundamental, reversible error under Rojas v. State, 552 So.2d 914 (Fla.1989). The Fifth District Court of Appeal agreed that error occurred but held that the error was waived because defense counsel requested the limited instruction.
Failure to instruct on justifiable or excusable homicide as it relates to the definition of manslaughter is reversible error. Rojas. In a different context, this Court has said that fundamental error may be waived where defense counsel requests an erroneous instruction. Ray v. State, 403 So.2d 956 (Fla.1981). In Ray, the defendant was charged with sexual battery. The trial court, without objection, instructed the jury on commission of a lewd and lascivious act as a lesser included offense of sexual battery. Because the charge conference was not recorded, it was not clear whether defense counsel requested the instruction. After the jury convicted Ray of lewd assault, he claimed fundamental error, arguing that lewd assault is not a lesser included offense of sexual battery. This Court determined that lewd assault is not a lesser included offense of sexual battery. Although the Court refused to find waiver on these facts, it nevertheless held that
it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense ...
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