Davis v. State, UU-332
| Decision Date | 05 May 1981 |
| Docket Number | No. UU-332,UU-332 |
| Citation | 397 So.2d 1005 |
| Parties | Howard Dwight DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John D. O'Brien, Panama City, for appellant.
Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
The appellant was charged with and convicted for second degree murder. On appeal, he argues that the trial court erred in giving its reinstruction to the jury on the elements of second degree murder. We agree and reverse.
The trial court initially gave the following Standard Jury Instruction ("SJI"):
Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual.
An act is one imminently dangerous to another and evincing a depraved mind regardless of human life, if it is an act (or a series of acts) which:
1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another;
2. Is done from ill will or hatred, spite or an evil intent, and
3. Is of such a nature that the act itself indicates an indifference to human life. (emphasis supplied)
Two hours and twenty minutes after the jury retired, the jury returned to the courtroom, and the following exchange took place:
After this exchange, the jury retired to the juryroom and then defense counsel immediately objected, stating that: Defense counsel also pointed out that the court's reinstruction was confusing and an incorrect statement of the law. These objections were "sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal." Castor v. State, 365 So.2d 701, 703 (Fla.1978). The trial court noted these objections and overruled them, and forty-five minutes after the trial court's reinstruction was given, the jury returned with its verdict, finding that the appellant was guilty of second degree murder.
The appellant properly contends that the trial court erroneously instructed the jury that the elements which define the term "imminently dangerous and evincing a depraved mind regardless of human life" are disjunctive rather than conjunctive. The State mistakenly argues that this contention is invalid in light of State v. Bryan, 287 So.2d 73 (Fla.1973). The court in Bryan simply noted that a trial court may charge the jury by reading the second degree murder statute. Id. at 74, 76. While the court did state that "the average juror pretty well understands what a depraved mind is," the court also observed the SJI's elaboration on second degree murder "would have been appropriate and even wise to add to the (statutory) charge below." Id. at 76 (footnote omitted). Also, it is clear that once the SJI is given, it must be given properly on a reinstruction. Such was not done here.
The trial court used the disjunctive "and/or" instead of the conjunctive "and." The court compounded this error by essentially telling the jury that as for the last two elements listed in the SJI, "either one of those" would be sufficient to find the appellant guilty of second degree murder. These reinstructions were contrary to the court's initial use of the SJI, which explicitly contains the word "and." Moreover, the SJI's use of the conjunctive "and" is legally correct. Section 782.04(2), Fla.Stat. (1979), provides that second degree murder is "(t)he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual ...." The SJI repeats this language, and then directs attention to the statutory phrase "any act imminently dangerous to another and evincing a depraved mind regardless of human life...." The SJI explicates this language as follows: "any act imminently dangerous to another" is defined in the SJI as element # 1 (an act which "a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another"); "any act ... evincing a depraved mind" is defined in the SJI as element # 2 (an act which "is done from ill will or hatred, spite or an evil intent"); * and "any act ... regardless of human life" is defined in the SJI as element # 3 (an act which "is of such a nature that the act itself indicates an indifference to human life.")
In this instance, reversal is necessary because the law regarding second degree murder was not correctly presented to the jury by the trial court's reinstruction, and the defendant was clearly prejudiced by that erroneous reinstruction. These factors are emphasized by the recognition that "while supplemental instructions must be considered as a whole and must be viewed in the light of other instructions already given, they cannot reasonably be considered as other language in the basic charge, since the jury will rely more heavily on such instructions than on any single portion of the original charge." Henry v. State, 359 So.2d 864, 868 n.3 (Fla.1978). See also Diecidue v. State, 131 So.2d 7, 11 (Fla.1961).
The appellant has raised numerous other points on appeal, but only two of those points merit discussion herein. At trial, the appellant testified in his own behalf, and on cross-examination, a prosecutor asked the following question: "Have you ever been convicted of a crime punishable by death or in excess of a year under the law in which you were convicted?" Defense counsel objected, stating that the question was improper; the trial court overruled the objection; and the appellant answered the question affirmatively.
It is obvious that the prosecutor was tracking the language of § 90.610(1), Fla.Stat. (1979), which provides that "(a) party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted ...." (emphasis supplied). However, we express our concern regarding the prosecution's...
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