Chambers v. State

• Decision Date: 13 April 2007
• Docket Number: No. 2D05-4116.,2D05-4116.
• Citation: 975 So.2d 444
• Parties: Patrick CHAMBERS, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

975 So.2d 444

Patrick CHAMBERS, Petitioner, v. STATE of Florida, Respondent.

No. 2D05-4116.

District Court of Appeal of Florida, Second District.

April 13, 2007.

Rehearing Denied June 8, 2007.

Patrick Chambers, pro se.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Respondent.

ALTENBERND, Judge.

Patrick Chambers has filed a petition alleging ineffective assistance of appellate counsel concerning the en banc opinion issued by this court in Chambers v. State, 880 So.2d 696 (Fla. 2d DCA 2004). Although we deny the petition, the issue that Mr. Chambers raises without assistance of counsel is an exceptionally difficult issue that was overlooked by all those trained in the law that reviewed his case on direct appeal. This court delayed this decision in hopes that a case pending in the supreme court, Sanders v. State, 944 So.2d 203 (Fla. 2006), would provide guidance. Although the supreme court's decision in Sanders has been helpful to this court, it has ironically disclosed yet another troublesome issue in this case.

The issue presented by Mr. Chambers is whether it is fundamental error to instruct a jury on an improper permissive lesser-included offense that is lesser in degree than the primary offense, but which— when impacted by statutes enhancing the penalty—can provide the trial court with the option of imposing the same penalty as the primary offense. After considering the principles espoused by the supreme court in Sanders and in a prior opinion, Ray v. State, 403 So.2d 956 (Fla.1981), we conclude it is not fundamental error to instruct the jury on a permissive lesser-included offense that was not charged in the information when (1) the lesser offense was lesser in degree than the charged offense when analyzed without any reclassification, and (2) the jury has available to it outcomes under the lesser offense that would require the trial court to impose a lesser penalty or punishment for the lesser offense than the penalty for the charged offense.

Mr. Chambers raises this issue specifically as it relates to the decision at trial to instruct the jury on aggravated assault as a lesser offense of attempted second-degree murder, even though the allegations of the information did not support a charge of aggravated assault. We conclude that there was no fundamental error in this regard. However, the release of the opinion in Sanders reveals another issue in the verdict form, not addressed by Mr. Chambers in his direct appeal or in this petition: Whether it was fundamental error, before the decision in Sanders, to list attempted manslaughter, a third-degree felony, prior to aggravated battery, a second-degree felony, on the verdict form. We conclude that this additional aspect of the verdict form, or the combination of this and the improper lesser offense, did not constitute fundamental error.

In light of these holdings, we conclude that Mr. Chambers has suffered no prejudice from appellate counsel's failure to raise these issues either on direct appeal or by motion for rehearing. Accordingly, we deny the petition.

I. THE BASIC FACTS OF THE CASE

As explained in the opinion in Mr. Chambers' direct appeal, Mr. Chambers was involved in a shooting that occurred on March 21, 2002, inside an apartment occupied by Marcia Radway and Richard Blair. Mr. Chambers admitted that he went to the apartment that evening, but claimed that he was in another room when a fight broke out between the two occupants and a man named "Dray." No such person was ever located. The two occupants claimed that Mr. Chambers forced his way into their apartment and threatened Mr. Blair, and then Ms. Radway, with a gun. Ms. Radway allegedly struggled with Mr. Chambers. During the struggle, the gun discharged, and she was shot in the leg. Chambers, 880 So.2d at 698.

The State charged Mr. Chambers with burglary of a dwelling, aggravated assault of Mr. Blair, and attempted second-degree murder of Ms. Radway.¹ The information charging Mr. Chambers with these offenses alleged that he was armed with a gun and included language to support an enhanced penalty under the 10-20-life statute. See § 775.087(2), Florida Statutes (2002). Specifically, based upon the bullet wound to Ms. Radway's leg, the information alleged that Mr. Chambers possessed a firearm, discharged that firearm, and caused great bodily harm to Ms. Radway.

The jury found Mr. Chambers not guilty of the burglary and the aggravated assault of Mr. Blair. Thus, those offenses play no role in our analysis. As to the charge of attempted second-degree murder of Ms. Radway, the jury received instructions and a verdict form that included several lesser-included offenses. In addition to the charged crime, the jury was given the option of finding Mr. Chambers guilty of six other lesser offenses, listed here in the order they appeared on the verdict form: attempted manslaughter, aggravated battery, aggravated assault, felony battery, battery, and assault. On the verdict form, the charged offense and the next three offenses (attempted manslaughter, aggravated battery, and aggravated assault) were each followed immediately by three subheadings that asked the jury whether Mr. Chambers possessed a firearm, discharged that firearm, and caused great bodily harm to Ms. Radway while committing that offense. The remaining crimes— felony battery, battery, and assault—are crimes that do not permit enhancement under the 10-20-life statute, see § 775.087(2)(a)(1)(a-r), and thus they appeared on the verdict form without any subheadings. To assist the reader, Appendix A of this opinion reproduces that portion of the verdict form related to attempted second-degree murder and the various lesser offenses; the italicized text, not part of the original verdict form, explains the potential punishments for each offense based upon the applicable statutes.

The jury convicted Mr. Chambers of aggravated assault and found that he discharged his firearm resulting in great bodily harm to Ms. Radway. For this offense, he was sentenced to twenty-five years' imprisonment, which was the mandatory minimum term pursuant to section 775.087(2)(a)(3).²

It is undisputed that aggravated assault is not a necessary lesser-included offense to attempted second-degree murder and that based upon the allegations in the information in this case it was not a permissive lesser-included offense. See Sanders, 944 So.2d at 206 (explaining that necessary lesser-included offenses are those in which the statutory elements of the lesser offense are always subsumed within those of the charged offense; permissive lesser-included offenses are those involving facially distinct elements, but the facts alleged in the accusatory pleadings are such that the lesser offense cannot help but be perpetrated if the greater offense has been); see also Blandin v. State, 916 So.2d 969, 971 (Fla. 2d DCA 2005) (stating, "a jury instruction on a permissive lesser included offense is only permitted if the elements of the lesser offense are alleged in the information and there is proof of those elements at trial"). If Mr. Chambers' counsel had objected, this instruction should not have been given. However, Mr. Chambers' trial counsel did not object to this instruction.

If one considers the evidence and the verdict form, trial counsel would appear to have had a reasonable basis to make such a tactical decision. Attempted second-degree murder, attempted manslaughter, and aggravated battery each suggested a physical injury that was intentionally inflicted, thus directly implicating the type of findings that would support a full enhancement under the 10-20-life statute. With respect to aggravated assault, however, the jury could have concluded that Mr. Chambers' intent was to threaten, and not to physically injure, the victim. Because the victim claimed that she struggled with Mr. Chambers, it was possible that the jury could have decided that the gun went off accidentally during the struggle. In that event, the jury could have found that Mr. Chambers possessed the gun during the assault but that he was not responsible for its discharge and the resulting injury. Thus, the improper permissive lesser offense of aggravated assault, from a tactical perspective, might have been the best option to provide Mr. Chambers with a sentence that was less than what he would receive for the charged offense or the next two offenses listed. Further, although the charged offense or the next two offenses listed may have permitted a similar sentencing range, with or without the enhancements from 10-20-life, a reasonable lawyer might believe that a judge would be more likely to impose a sentence closer to the bottom of the potential range if the jury selected the lowest possible offense. It is noteworthy that the trial judge in this case imposed a twenty-five-year term of imprisonment and did not elect to sentence Mr. Chambers to life in prison—a decision the trial judge may not have made if Mr. Chambers had been convicted of attempted second-degree murder.

II. THE DIRECT APPEAL AND MR. CHAMBERS' ARGUMENT IN THIS PETITION

On direct appeal, Mr. Chambers argued that the listing of aggravated assault on the verdict form was fundamental error entitling him to a new trial. The case turned on a proper interpretation of the rule announced in Ray v. State, 403 So.2d 956 (Fla.1981). In Ray, the Florida Supreme Court held that instructing a jury on a permissive lesser-included offense that was not charged in the information was error, but that the error was not fundamental if the improper instruction involved a crime that was "lesser in degree and penalty than the main offense." Id. at 961 (emphasis added). In our opinion in Mr. Chambers' direct appeal, we similarly rejected Mr. Chambers' argument that the improper instruction on the lesser offense of aggravated assault was fundamental error and explained: "Continuing to apply the Ray an...