Dominique v. State, 4D08–2031.

• Decision Date: 05 August 2015
• Docket Number: No. 4D08–2031.,4D08–2031.
• Parties: Nicolas DOMINIQUE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

171 So.3d 204

Nicolas DOMINIQUE, Appellant

v.STATE of Florida, Appellee.

No. 4D08–2031.

District Court of Appeal of Florida, Fourth District.

Aug. 5, 2015.

Carey Haughwout, Public Defender, and Richard B. Greene and Patrick B. Burke, Assistant Public Defenders, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

GERBER, J.

The defendant appeals from his second-degree murder conviction. He argues, on remand from the Supreme Court of Florida, that the trial court fundamentally erred by giving an erroneous manslaughter by act instruction where the instruction pertained to a disputed element of the offense (his state of mind) and the error was pertinent or material to what the jury had to consider to convict him. We agree with the defendant's argument and reverse for a new trial.

At the trial, the state presented evidence that the defendant was outside of his former girlfriend's house when her new boyfriend arrived by car. When the new boyfriend exited his car, the defendant chased the new boyfriend down the street while firing a gun, shooting the new boyfriend in the leg which caused him to fall, and then shooting the new boyfriend in the back of the head, killing him.

The state argued that the defendant's actions constituted first-degree murder. The defendant argued that his actions in chasing the new boyfriend down the street while firing his gun was, at worst, manslaughter by culpable negligence.

The trial court instructed the jury on first-degree murder, second-degree murder, manslaughter by act, and manslaughter by culpable negligence. The jury found the defendant guilty of second-degree murder.

On appeal to this court, the defendant argued that, pursuant to the Florida Supreme Court's decision in State v. Montgomery, 39 So.3d 252, 259 (Fla.2010), giving the erroneous standard jury instruction on manslaughter by act—requiring the jury to find the killing was intentional—was fundamental error because he was convicted of second-degree murder, an offense which did not require any intent to kill and which was not more than one step removed from manslaughter.

We affirmed the defendant's second-degree murder conviction in Dominique v. State, 40 So.3d 33 (Fla. 4th DCA 2010). We held that giving the erroneous standard jury instruction on manslaughter by act was not fundamental error where the court also gave the accompanying manslaughter by culpable negligence instruction. Id. at 36.

The defendant petitioned for review in the Florida Supreme Court. While the defendant's petition was pending, the Supreme Court, in Haygood v. State, 109 So.3d 735 (Fla.2013), held:

[G]iving the erroneous manslaughter by act instruction, which we found to be fundamental error in State v. Montgomery, 39 So.3d 252 (Fla.2010), is also fundamental error even if the instruction on manslaughter by culpable negligence is given where the evidence supports manslaughter by act but does not support culpable negligence and the defendant is convicted of second-degree murder.

Id. at 737. The Supreme Court reasoned, in pertinent part:

We have long held that fundamental 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.

Id. at 741 (citation omitted).

Following Haygood, the Supreme Court quashed our affirmance of the defendant's conviction in this case, and remanded his appeal to us for reconsideration in light of Haygood . Dominique v. State, No. SC10–1746, 2014 WL 7463710 (Fla. Dec. 30, 2014).

Following the Supreme Court's remand, we permitted the parties to submit supplemental briefs in light of Haygood.

The state argues it was not fundamental error for the trial court to have given the erroneous manslaughter by act instruction in this case because, unlike in Haygood, the defendant here argued that the evidence supported the accompanying manslaughter by culpable negligence instruction.

The defendant argues it was fundamental error for the trial court to have given the erroneous manslaughter by act instruction, regardless of whether the evidence supported the accompanying manslaughter by culpable negligence instruction, because, as the Supreme Court reasoned in Haygood, the erroneous manslaughter by act instruction pertained to a disputed element of the offense (the defendant's state of mind) and the error was pertinent or material to what the jury had to consider to convict him.

We agree with the defendant's argument. We recognize the state's factual distinction from Haygood that giving the erroneous manslaughter by act instruction is fundamental error where the evidence does not support the accompanying manslaughter by culpable negligence instruction, whereas here the evidence arguably supported the accompanying manslaughter by culpable negligence instruction. In fact, we already have applied that distinction in a recent post-Haygood case. See Simon v. State, 162 So.3d 216, 217 (Fla. 4th DCA 2015) (“We need not consider supplemental arguments on remand because the evidence introduced at trial leaves no reasonable possibility for a finding that the death occurred due to the culpable negligence of the defendant.”) (internal quotation marks omitted).

However, that factual distinction was not central to the Supreme Court's reasoning in Haygood. Instead, as cited above, central to the Supreme Court's reasoning in Haygood was that the erroneous manslaughter by act instruction pertained to a disputed element of the offense (the defendant's state of mind) and the error was pertinent or material to what the jury had to consider to convict the defendant in that case. Similarly here, the erroneous manslaughter by act instruction pertained to a disputed element of the offense (the defendant's state of mind) and the error was pertinent or material to what the jury had to consider to convict the defendant in this case. Thus, fundamental error occurred.

The Supreme Court's central reasoning in Haygood is what distinguishes this case from the post-Haygood case upon which the state relies, Berube v. State, 149 So.3d 1165 (Fla. 2d DCA 2014). In Berube, the Second District held that giving the erroneous manslaughter by act instruction along with an accompanying manslaughter by culpable negligence instruction was not fundamental error where the defendant's theory of defense was misidentification, not that he lacked the requisite state of mind. Id. at 1174–75. Thus, in Berube, the erroneous manslaughter by act instruction did not pertain to a disputed element of the offense (identity) and the error was not pertinent or material to what the jury had to consider to convict the defendant in that case. Here, the erroneous manslaughter by act instruction pertained to a disputed element of the offense (the defendant's state of mind) and the error was pertinent or material to what the jury had to consider to convict the defendant in that case.

Moreover, Berube 's viability is questionable. After the Second District issued Berube, our Supreme Court, in Griffin v. State, 160 So.3d 63 (Fla.2015), held that giving the erroneous manslaughter by act instruction was fundamental error even where the sole defense was misidentification. According to the Court: “[A] sole defense of...