Hayes v. State, 87-00045

• Citation: 564 So.2d 161
• Decision Date: 20 June 1990
• Docket Number: No. 87-00045,87-00045
• Parties: 15 Fla. L. Weekly D1678 James Julian HAYES, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 161

564 So.2d 161

15 Fla. L. Weekly D1678

James Julian HAYES, Appellant, v. STATE of Florida, Appellee.

No. 87-00045.

District Court of Appeal of Florida Second District.

June 20, 1990.

Rehearing Denied July 30, 1990.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Michele Taylor, Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

The state charged the defendant with attempted first-degree felony murder and two counts of armed robbery. He was convicted of attempted first-degree felony murder, armed robbery, and unarmed robbery. He appeals his judgments and sentences. We have carefully examined the five points he raises on appeal and find merit in three of them. Based on our rejection of the other two points, we affirm the defendant's convictions for armed robbery and unarmed robbery. Because of errors made during sentencing, however, we vacate his sentences on those counts and remand for resentencing. Also, due to the omission of key language in the instructions read to the jury, we reverse the defendant's conviction for attempted first-degree felony murder and remand for a new trial on that charge.

On February 18, 1986, the defendant and his codefendant, Paul Hamilton, entered a Tampa meat market owned and operated by Roland and Yidalia Longual. After waiting for other customers to leave, the defendant pulled out a gun and ordered Mr. Longual to lie down. The defendant made racial slurs and threats against him and took his wallet. When Mr. Longual tried to stand up, the defendant hit him with the gun. Meanwhile, the codefendant forced Mrs. Longual to open the cash register. When she questioned him, he hit her and took two gold chains and $800-900 in cash. A customer then walked into the shop and the defendant shot him, leaving him paralyzed. The defendant and codefendant fled.

At trial, the Longuals readily identified the robbers. The codefendant did not testify, but his confession, along with that of the defendant, was entered into evidence. The defendant took the stand and testified that he did not intend to shoot the injured customer, but became scared and accidentally fired.

On appeal, the defendant argues that his conviction for attempted first-degree felony murder was improper because the jury instructions on attempt and manslaughter were flawed in that the trial court did not give a complete manslaughter instruction. He contends that his conviction must, therefore, be reversed because attempted manslaughter is only one step removed from the attempted first-degree felony murder of which he was convicted. We agree.

We recognize that the defendant did not object to this omission. Nevertheless, it is reviewable because a proper jury instruction in a criminal case is a fundamental right, the denial of which can be appealed without objection. Rojas v. State, 552 So.2d 914, 915 (Fla.1989); Armstrong v. State, 15 F.L.W. D653 (Fla. 5th DCA Mar. 8, 1990).

Ordinarily the trial court must instruct the jury on all necessarily included lesser offenses. Failure to so instruct on the next immediate lesser-included offense of the crime charged is reversible error because it has the effect of removing from the jury an opportunity to exercise its inherent pardon power. State v. Abreau, 363 So.2d 1063 (Fla.1978); Miller v. State, 549 So.2d 1106, 1110 (Fla. 2d DCA 1989). As noted, the defendant was charged with attempted first-degree felony murder. Therefore, the trial judge should have instructed the jury that the lessers of that offense are attempted second-degree murder and attempted manslaughter. ¹ Since no instruction was given on attempted second-degree murder, attempted manslaughter became the offense one step removed from the charge of attempted first-degree felony murder.

Although the trial judge apparently did not intend to instruct the jury on second-degree murder, he did intend to recite a complete manslaughter instruction. The record, however, undeniably shows that the instruction given was flawed because the judge did not recite the definitions of justifiable and excusable homicide. Rojas; Alejo v. State, 483 So.2d 117 (Fla. 2d DCA 1986). Complete definitions are essential when instructing on manslaughter because it is a residual offense. Thus it must be made clear that justifiable and excusable homicide are excluded. Hedges v. State, 172 So.2d 824 (Fla.1965).

Our decisions mandate that we reject the state's argument that the trial court's omission was harmless error. See, e.g., Spaziano v. State, 522 So.2d 525 (Fla. 2d DCA 1988); Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983). The state argues that since the defendant was charged with attempted first-degree felony murder, as opposed to attempted premeditated murder, neither of the manslaughter exemptions could possibly apply. The defendant shot the victim during an armed robbery. The justifiable rationale (killing necessarily occurring while resisting a murder or felony attempt) could not apply. Further, the excusable homicide theory (killing accidentally occurring while defendant was acting legally with ordinary caution and without unlawful intent) could not apply. Finally, the state posits that even if the jury accepted the defendant's claim that the gun discharged accidentally, he would still be guilty of attempted felony murder, not attempted manslaughter, because he is responsible for the shooting, whether or not it was accidental. See Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977).

Based on this analysis, the instant case could be distinguished from Spaziano, Blitch, and Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988), where excusable and justifiable homicide instructions were necessary because the defendants, charged with first-degree murder, presented evidence of self-defense or accident while acting lawfully. This case, on the other hand, concerns the hitherto unaddressed circumstance where a defendant is charged with a felony murder offense, which is far removed from the usual analysis of premeditated murder.

While there is obvious appeal to the state's argument, there are difficulties with it. It clearly violates the rule that a jury must be instructed on all necessarily included offenses, regardless of the evidence. State v. Wimberly, 498 So.2d 929 (Fla.1986) (conviction for battery of a law enforcement officer reversed because trial court failed to instruct on necessarily included offense of simple battery even though there was no question of the victim's identity or that defendant knew he was a police officer). In ignoring the general rule, the state's analysis fails to recognize that the trial court's incomplete instruction deprived the jury of its "jury pardon" capability. "The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon a recognition of the jury's right to exercise its 'pardon power.' " Wimberly at 932.

Through the years, the concept of jury pardon has been expanded and various avenues constructed to implement this nonconstitutional power of the jury to find the accused guilty of an offense lesser in severity of punishment than that charged. State v. Baker, 456 So.2d 419, 420 (Fla.1984). The analysis approved by the supreme court seems to be a technical application of the rule, with an acknowledging bow to the doctrine of jury pardon. See Marshall v. State, 529 So.2d 797 (Fla. 3d DCA 1988) (attempted...