Garcia v. State, 87-2543

• Decision Date: 18 October 1988
• Docket Number: No. 87-2543,87-2543
• Citation: 13 Fla. L. Weekly 2350,535 So.2d 290
• Parties: 13 Fla. L. Weekly 2350, 14 Fla. L. Weekly 106 Rigoberto GARCIA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 290

535 So.2d 290

13 Fla. L. Weekly 2350, 14 Fla. L. Weekly 106

Rigoberto GARCIA, Appellant, v. The STATE of Florida, Appellee.

No. 87-2543.

District Court of Appeal of Florida Third District.

Oct. 18, 1988.

As Amended on Denial of Rehearing Dec. 27, 1988.

Breslin & Raben and Peter Raben, Coconut Grove, for appellant.

Robert A. Butterworth, Atty. Gen., and Yvette Rhodes Prescott, Asst. Atty. Gen., for appellee.

Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

Rigoberto Garcia, convicted by a jury of second-degree murder, ¹ contends on appeal that the trial court committed reversible error when, acceding to the deliberating jury's request to be reinstructed on the definitions of second-degree murder and manslaughter, it refused the defendant's request that the manslaughter instruction include the definitions of justifiable or excusable homicide. Garcia says that any reinstruction should have contained the definition of justifiable homicide because this was the theory of his defense. Additionally, he argues that even absent such a defense, the reinstruction on manslaughter was incomplete, inadequate, and misleading when it failed to redefine justifiable and excusable homicide. ²

We disagree with Garcia that the jury's request to reinstruct on the definitions of second-degree murder and manslaughter required the court to reinstruct on Garcia's self-defense theory. And, although we agree with Garcia that the manslaughter reinstruction was incomplete because it did not redefine justifiable or excusable homicide, the jury's verdict of second-degree murder made this error entirely harmless. We thus affirm.

Predictably, the State's and defendant's evidence concerning the killing were at odds. The State's version was that the defendant silenced the verbally but not physically aggressive victim by shooting him; the defendant's version was that two weeks before the shooting, the victim had beaten him and threatened to kill him, and that immediately before the shooting the victim threw a pool ball at him and kept coming toward him with what appeared to be a weapon despite the defendant's warning shot. In short, if believed, the defendant's testimony made out a case of self-defense, or, in legal terms, justifiable homicide. ³ That being so, we reject the State's argument that the evidence was insufficient as a matter of law to establish justifiable homicide, and, therefore, no reinstruction (and presumably no instruction in the first instance) was required. ⁴ As is well established, it is "incumbent upon the court to charge the jury on every defense which is recognized by the law and sustained by a version of the testimony which the jury has a right to accept." Rodriguez v. State, 396 So.2d 798, 799 (Fla. 3d DCA 1981). See Palmes v. State, 397 So.2d 648 (Fla.1981); Johnson v. State, 484 So.2d 1347 (Fla. 4th DCA 1986); Canty v. State, 471 So.2d 676 (Fla. 1st DCA 1985); Pope v. State, 458 So.2d 327 (Fla. 1st DCA 1984).

But merely because the court was required to instruct the jury on Garcia's factually supported claim of self-defense does not mean that it was required to re-instruct the jury on the defendant's claimed defense when the jury requested a reinstruction on the elements of the offense. Here, the jury did not request reinstruction on self-defense, and the trial court was not required to reinstruct on a separate matter not requested by the jury. See Singleton v. State, 512 So.2d 1159, 1160 (Fla. 3d DCA 1987) ("[W]e find no abuse of discretion in the trial court's directly responding to the jury's simple request for the elements of the charged crime of burglary by stating those elements, along with the presumption of innocence and the state's burden of proof, without also re-reading a previously given instruction concerning the defense of good faith mistake."); Gonzalez v. State, 502 So.2d 66, 67 (Fla. 3d DCA 1987) ("The trial court also properly limited its response to the jury's request by denying Gonzalez' request to re-instruct the jury on self-defense, and this was not misleading."); Reifsnyder v. State, 428 So.2d 738 (Fla. 2d DCA 1983) (no error in not reinstructing on self-defense when jury asks only for definitions of specific charges). But see Carranza v. State, 511 So.2d 410 (Fla. 4th DCA 1987). As the supreme court declared in Henry v. State, 359 So.2d 864, 867 (Fla.1978), to require all instructions to be given when only some are requested "might ... create confusion in the minds of the jurors[,] ... might give the appearance of placing the trial judge in the role of an interested advocate rather than an impartial arbiter," would be "exhausting and time consuming," and the "result might be a jury which is deterred from requesting and a court which is restrained from giving, supplemental instructions to help clarify a particular issue."

Garcia is quite correct in his second argument that the definition of manslaughter, to be complete, requires a definition of justifiable and excusable homicide; unlike first-degree and second-degree murder, manslaughter is a residual offense which is defined by reference to what it is not. Hedges v. State, 172 So.2d 824 (Fla.1965). Thus, the statute proscribing manslaughter defines the crime as "[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification ... and in cases in which such killing shall not be excusable homicide...." § 782.07, Fla.Stat. (1985) (emphasis supplied).

It follows, then, that "when the jury's request necessarily elicits a reinstruction on manslaughter and the defendant is convicted of manslaughter, it is error to fail to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter." Turner v. State, 414 So.2d 1161, 1161-62 (Fla. 3d DCA 1982) (emphasis supplied). Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So.2d 313 (Fla. 4th DCA 1981). The question before us, however, is whether the same rule obtains where, as here, the defendant is convicted not of manslaughter, but of second-degree murder, and the instruction on manslaughter, in light of the verdict, is merely an instruction on an offense rejected by the jury, not an instruction on the offense for which the jury has found the defendant guilty. Garcia accurately points out--and we acknowledge--that the failure to include definitions of justifiable and excusable homicide when reinstructing on manslaughter was held to be reversible error in a case in which the defendant was convicted of second-degree murder, Niblack v. State, 451 So.2d 539 (Fla. 2d DCA 1984), and one in which the defendant, charged with second-degree murder, was convicted of third-degree murder, Lowe v. State, 500 So.2d 578 (Fla. 4th DCA 1986). In neither case, however, did the court address the issue of harm vel non to the defendant where the ultimate conviction is not for the offense of manslaughter. We now address the issue.

In the present case, the jury, by returning a guilty verdict to the second-degree murder charge after reinstruction, necessarily found that the killing was done--as a conviction for second-degree murder requires--not only by "an act imminently dangerous to another" (which arguably would include justifiable and excusable homicides), but one "evincing a depraved mind regardless of human life" (which excludes justifiable and excusable homicides), § 782.04(2), Fla.Stat. (1985). This affirmative finding that the killing was done with "a depraved mind regardless of human life" negates the possibility that the jury convicted the defendant solely on a finding that the victim's death was caused by the act, procurement, or culpable negligence of the defendant. It is this very possibility against which the law guards when it requires that the jury be fully instructed on manslaughter by defining justifiable and excusable homicides. Where, however, as here, the jury's verdict--necessarily including that the defendant acted with "a depraved mind regardless of human life"--assures us that no such possibility exists, no harm comes to the defendant when justifiable and excusable homicide are not defined. See Mead v. State, 86 So.2d 773, 775 (Fla.1956) (failure to instruct jury that grand larceny involved property worth more than $50 was harmless when jury makes specific finding that property taken was worth $51). See also Lewis v. State, 419 So.2d 337 (Fla.1982) (failure to instruct jury of minimum and maximum penalties for primary offense charged was...