Harris v. State

• Decision Date: 09 May 1991
• Docket Number: No. 89-1766,89-1766
• Citation: 580 So.2d 243,16 Fla. L. Weekly 1287
• Court: Florida District Court of Appeals
• Parties: 16 Fla. L. Weekly 1287 Sammie Lee HARRIS, Appellant, v. STATE of Florida, Appellee.

Page 243

580 So.2d 243

16 Fla. L. Weekly 1287

Sammie Lee HARRIS, Appellant, v. STATE of Florida, Appellee.

No. 89-1766.

District Court of Appeal of Florida,

First District.

May 9, 1991.

Rehearing Denied June 12, 1991.

Sammie Lee Harris, pro se.

Robert A. Butterworth, Atty. Gen., Carolyn Mosely, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

In this petition for a writ of habeas corpus, petitioner argues that he was denied the effective assistance of appellate counsel. Petitioner was charged and convicted of burglary, robbery, conspiracy, and second degree murder. These convictions were affirmed without opinion. Harris v. State, 422 So.2d 844 (Fla. 1st DCA 1982).

Petitioner claims his appellate counsel was ineffective because he failed to argue on appeal that trial counsel was ineffective for failure to object to incomplete and misleading jury instructions concerning the crime of manslaughter by reason of the court's omission of the charge on justifiable and excusable homicide. Petitioner also alleges ineffective assistance of appellate counsel for failure to raise on appeal, as fundamental error, the trial court's omission of the charge defining justifiable and excusable homicide in connection with the manslaughter instruction.

As to the failure to raise the issue of ineffective assistance of trial counsel, we find the record before us on the former appeal did not contain a transcript of the charge conference between the court and counsel, nor is such transcript before us in the present case. Indeed, there is no indication that the charge conference was reported, or if it was, that a transcript was ever prepared. Although the record does disclose that there was no objection by defense counsel at the conclusion of the court's instruction to the jury, we are not prepared to assume that no objection was previously made and ruled upon, or, on the other hand, that the specific deficiencies complained of were not waived by defense counsel. Accordingly, we conclude that petitioner has not demonstrated ineffectiveness of appellate counsel for failure to urge ineffectiveness of trial counsel, since the alleged deficiency--trial counsel's failure to object to erroneous jury instructions, or failure to request correct instructions--is not apparent on the face of the record. Ineffective assistance of trial counsel is not ordinarily to be raised for the first time on direct appeal except where the facts establishing the ineffectiveness claim are apparent on the face of the record. Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987); Stewart v. State, 420 So.2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Michutka v. State, 506 So.2d 1 (Fla. 1st DCA 1986); Fasano v. State, 548 So.2d 1191 (Fla. 4th DCA 1989); Gordon v. State, 469 So.2d 795 (Fla. 4th DCA), rev. denied, 480 So.2d 1296 (Fla.1985). Furthermore, as the court pointed out in Stewart v. State, supra, appellate counsel cannot be faulted for eschewing appellate review of ineffectiveness of trial counsel when a more effective remedy is provided by collateral proceedings under rule 3.850, Florida Rules of Criminal Procedure.

In order for petitioner to prevail on his claim of ineffective assistance of appellate counsel, he must show:

1. That there were specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside the range of professionally acceptable performance; and

2. That the failure or deficiency caused prejudicial impact on the appellant by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome under the governing standards of decision.

Johnson v. Wainwright, 463 So.2d 207, 209 (Fla.1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Smith v. State, 457 So.2d 1380 (Fla.1984).

We first address the specific error or omission alleged. It is correct, as petitioner However, since petitioner's conviction of second-degree murder was affirmed on appeal in late 1982 (November 4, 1982, 422 So.2d 844), we must turn back the appellate clock to that time in order to assess the extent to which the law was then capable of ascertainment with certainty and to evaluate the magnitude of appellate counsel's dereliction, if any, in failing to raise the issue. Here, it is well to bear in mind that the failure of counsel, in 1982, "to advance certain points on appeal which subsequently gained judicial recognition does not render counsel ineffective." Songer v. Wainwright, 571 F.Supp. 1384, 1403 (M.D. Fla.1983), aff'd, 733 F.2d 788 (11th Cir.1984). In addition, courts are required to "eliminate the distorting effects of hindsight by evaluating the performance from counsel's perspective at the time," and to "indulge a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment with the burden on claimant to show otherwise." Blanco v. Wainwright, 507 So.2d at 1381.

urges, that the trial court failed to give the jury an instruction defining justifiable and excusable homicide in connection with the manslaughter instruction. In fact, our review of the transcript reveals that neither justifiable nor excusable homicide were ever mentioned throughout the instructions, although Florida Standard Jury Instructions clearly provide for these to be defined in giving the introductory instructions in all murder and manslaughter cases. It is now abundantly clear that where the defendant is convicted of second-degree murder (as was petitioner) the trial court's failure to give the required instructions on justifiable and excusable homicide, in connection with the instruction on manslaughter, is fundamental error requiring reversal. Rojas v. State, 552 So.2d 914 (Fla.1989); Ortagus v. State, 500 So.2d 1367 (Fla. 1st DCA 1987), approved in Rojas v. State, supra; but see, State v. Smith, 573 So.2d 306 (Fla.1990) (giving of short-form instructions on justifiable and excusable homicide, followed by reference to these definitions in connection with instruction on manslaughter, not fundamental error); and Wilcoxson v. State, 577 So.2d 1388 (Fla. 1st DCA 1991) (same).

We first note that petitioner relies primarily upon a 1986 case from the Second District Court of Appeal, Alejo v. State, 483 So.2d 117 (Fla. 2d DCA 1986), for the proposition that Florida courts, since the decision in Hedges v. State, 172 So.2d 824 (Fla.1965), have consistently held that an instruction defining justifiable and excusable homicide is necessary to provide a complete instruction on the crime of manslaughter. Significantly, in none of the cases cited by the Alejo court did the courts review the issue in the absence of a request for, or objection to the court's refusal to give, the instructions. See, Hedges v. State, supra (denial of request for charge on justifiable and excusable homicide on reinstructing the jury); Brown v. State, 467 So.2d 323 (Fla. 4th DCA), rev. denied, 467 So.2d 1000 (Fla.1985) (court refused to instruct the jury on justifiable and excusable homicide in connection with instruction on manslaughter); Niblack v. State, 451 So.2d 539 (Fla. 2d DCA 1984) (trial court, on reinstructing jury on difference between second-degree murder and manslaughter, failed, over timely objection by defense counsel, to reinstruct the jury on justifiable homicide); Pouk v. State, 359 So.2d 929 (Fla. 2d DCA 1978) (trial court failed to give appellant's requested instruction on justifiable homicide). Also of significance is that in connection with the Alejo court's specific holding, "that the court's failure to give a complete manslaughter instruction was reversible error, notwithstanding defense counsel's failure to make a timely objection ...," the court explained further:

Where, as here, the court gives an instruction on a lesser included offense, it is fundamental that the instruction be sufficiently complete and accurate so that it does not mislead the jury and negate defendant's theory of defense.

483 So.2d at 118 (emphasis added). Earlier decisions by the same court, we note, did point out the necessity of giving instructions on both justifiable and excusable homicide, even where there is no evidence The case of Spaziano v. State, 522 So.2d 525 (Fla. 2d DCA 1988), ¹ also relied upon by petitioner, further illustrates the importance, in support of the court's finding of fundamental error, of the fact that there was evidence in the case supporting a defense of justifiable or excusable homicide. Spaziano is particularly pertinent here, since the court in that case was also confronted with issues of ineffective assistance of trial and appellate counsel based upon trial counsel's failure to object to an erroneous instruction on excusable homicide and manslaughter, and appellate counsel's failure to urge that omission on appeal as fundamental error. The Spaziano court, in finding fundamental error, reviewed the evidence which revealed, among other things, that the defendant was in an extremely fearful state of mind because of threats by the victim and that the shooting was accidental and unintentional. The court stated:

to support a finding of either justifiable or excusable homicide, because manslaughter cannot be adequately defined without such instruction. Niblack v. State, supra, citing Pouk v. State, supra, and Delaford v. State, 449 So.2d 983 (Fla. 2d DCA 1984) (failure to give the instructions where requested). Thus, it is abundantly clear from these cases, prior to Alejo, that reversible error occurs where the court fails to give the required instructions in the face of a request or objection. However, these cases do not speak of fundamental error, that is, error so serious as to justify appellate review and reversal even though not preserved below. The Alejo court, as above noted, did reach the question...