Berube v. State

• Decision Date: 24 October 2014
• Docket Number: No. 2D09–4385.,2D09–4385.
• Citation: 149 So.3d 1165
• Parties: Leo Richard BERUBE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

149 So.3d 1165

Leo Richard BERUBE, Appellant

v.STATE of Florida, Appellee.

No. 2D09–4385.

District Court of Appeal of Florida, Second District.

Oct. 24, 2014.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

ALTENBERND, Judge.

Upon remand from the Florida Supreme Court, we reconsider Leo Richard Berube's conviction for second-degree murder in light of the subsequent decision in Daniels v. State, 121 So.3d 409 (Fla.2013). Because the giving of the erroneous instruction on the lesser-included offense of manslaughter by act unquestionably did not pertain to a disputed element of that offense, we conclude that Mr. Berube has not established that the error in the instruction was harmful. Having failed to establish this first prong of a fundamental error analysis, he is not entitled to any relief. Thus, we once again affirm the judgment and sentence on appeal.

I. THE PRIOR PROCEEDINGS IN THIS CASE

In 2006, Mr. Berube was convicted of first-degree murder for the strangulation of a prostitute with whom he admitted having a sexual encounter on the evening of her death in 2003. He appealed his judgment and sentence of life imprisonment to this court.

In Mr. Berube's first appeal, this court wrote a lengthy opinion detailing the facts of the case. Berube v. State, 5 So.3d 734 (Fla. 2d DCA 2009) (Berube I ). To avoid repetition, we rely on that recitation of the facts and provide supplemental factual information only as needed in this opinion. In Berube I, this court held that the evidence was sufficient to support a prima facie case of premeditated murder. Id. at 745. However, we reversed and remanded for a new trial.

The new trial was required because the trial court erroneously admitted some Williams¹ rule evidence. Id. at 736. Prior to trial, the State had sought leave to introduce into evidence two prior instances of alleged rape by Mr. Berube and an unsolved murder for which Mr. Berube was a suspect. Id. at 739. The trial court denied the State's request to admit evidence of the unsolved murder—a homicide that occurred shortly after the victim had engaged in sexual intercourse with Mr. Berube. But the trial court granted the State's request to admit evidence of the two instances of alleged rape. Thereafter, that evidence was admitted during the trial. In Berube I, we held that the trial court erred in admitting this evidence and that the error required a new trial. Id. at 745.

In the second trial, Mr. Berube was convicted of second-degree murder. On appeal, he argued that the instruction concerning intent given on the next-lesser offense of manslaughter was fundamentally erroneous for the reasons discussed in the First District's opinion in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). This court concluded that the instruction did not constitute fundamental error. Berube v. State, 84 So.3d 436, 436 (Fla. 2d DCA 2012) (Berube II ).

On review, the supreme court quashed our decision in Berube II and remanded the case for reconsideration in light of the supreme court's decision in Daniels, 121 So.3d 409. See Berube v. State, 137 So.3d 1019 (Fla.2014).

II. THE STANDARD OF REVIEW

This case is very similar to Nieves v. State, 144 So.3d 649 (Fla. 2d DCA 2014). Likewise it is similar to Griffin v. State, 128 So.3d 88, 90 (Fla. 2d DCA 2013) (“Because there was no dispute regarding the element of intent, the erroneous jury instruction on the intent element of the lesser included offense of manslaughter did not constitute fundamental error.”), review granted, 143 So.3d 918 (Fla.2014). We reach a similar outcome for similar reasons.

That said, we have considered what legal standard should be applied to our reconsideration. It seems that the supreme court, in its reliance on dicta from Pena v. State, 901 So.2d 781, 787 (Fla.2005), in both State v. Montgomery, 39 So.3d 252, 259 (Fla.2010) (Montgomery II ), and Daniels, 121 So.3d at 415 & n. 5, implies that this error—an error in the instruction for a lesser-included offense that is one step removed from the conviction—should be treated as a “per se” error for which this court should conduct no examination of the record to determine harmfulness. We do not believe that is the supreme court's intent. Thus, we describe with some care the standard of review and the analysis that we have used to decide this case on remand. In section III, we explain why we believe the dicta from Pena should not govern the question of whether this erroneous instruction entitles Mr. Berube to a third trial.

Under the shift in the analysis for fundamental error that was announced in Reed v. State, 837 So.2d 366, 369–70 (Fla.2002), the defendant has the burden of persuasion on direct appeal to establish two requirements. First, the defendant must show that an unpreserved error is harmful or prejudicial. If that is demonstrated, the defendant must then establish that the error reaches the level of a fundamental error. As we read Montgomery II, Daniels, and Haygood v. State, 109 So.3d 735 (Fla.2013), it is clear that the supreme court has already determined the second requirement as a matter of law; an error in the instruction on intent for the offense of manslaughter in the case of a conviction for second-degree murder reaches the level of a fundamental error if that error is actually harmful. Thus, to prevail in this appeal, Mr. Berube is required to establish only that the error was harmful or prejudicial. See Reed, 837 So.2d at 370 ; see also Haygood, 109 So.3d at 741 (“[F]undamental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.”).

In the context of this issue, the key question seems to be: Putting the elements of second-degree murder aside and assuming that the jury gave serious consideration to the lesser offense of manslaughter, has Mr. Berube demonstrated there was a dispute either of fact or of the jury's application of fact to law that involved the instruction explaining the intent required where the offense of manslaughter is committed by act? At least in the usual case, to establish this burden the defendant must show that the issue of intent was “a material element that [was] disputed at trial.” Daniels, 121 So.3d at 418. We believe that the defendant can either show that this element of intent was an issue in dispute in the case on appeal or that, in a new trial with correct instructions, it would become an issue in dispute.

Because harmfulness is the first prong of the fundamental error analysis, if the defendant establishes both prongs of the fundamental error test, we do not need to further subject the fundamental error to any of the tests for harmfulness or harmlessness used in cases of preserved error; such a consideration simply would be redundant. The fact that the error occurred in the next-lesser offense, making it one step removed from the offense of conviction, does not invoke any concept of per se reversible error when the error is unpreserved. Instead, it is a circumstance that gives Mr. Berube the right to require this court to consider in this decision-making process, as a matter of logic, that the jury might have given serious consideration to this lesser offense during deliberations. The fact that it is one step removed contributes to the decision to categorize the error as one reaching the level of a fundamental error; it does not alter the requirement that Mr. Berube first establish that the error was harmful.

Although we believe that the law requires Mr. Berube to demonstrate from the record a reasonable probability² of such harm before this court is authorized to declare that the error is fundamental, in this case we have carefully reviewed the record and conclude beyond a reasonable doubt that the giving of this instruction was not harmful. Accordingly, we conclude that the error in the manslaughter by act instruction is not a fundamental error in this case.

III. PENA 'S RELIANCE ON ABREAU IN A POST-REED FUNDAMENTAL ERROR ANALYSIS

In order to understand our concern with the portion of Pena that is cited in Montgomery II and Daniels, it is necessary to review a little legal history. In State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), the supreme court held:

Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible. Where the omitted instruction relates to an offense two or more steps removed, DeLaine [v. State, 262 So.2d 655 (Fla.1972),] continues to have vitality, and reviewing courts may properly find such error to be harmless.

This holding occurred in the context of a preserved error. The trial court had completely omitted the requested instruction. Because the error did not involve the next immediate lesser-included offense, the supreme court quashed the district court's reversal, and the district court affirmed the judgment on remand. See Abreau v. State, 365 So.2d 201 (Fla. 3d DCA 1978). Likewise, in Rojas v. State, 552 So.2d 914, 916 & n. 1 (Fla.1989), the court applied Abreau where the mandatory instruction of justifiable and excusable homicide was not given and the error was preserved.

The “per se reversible” error described in Abreau is an error that is not tested for harmlessness or harmfulness. Essentially, it is an error for which the extent or degree of the resulting harm cannot be determined from the record. Accordingly, the party on appeal with the burden to prove that such an error is harmful or harmless can never do so from the record. Because the State is the party with that burden in a direct criminal appeal,³ per se errors result in a reversal against the State without any review of the record for harm. See, e.g., Hazuri v....