Horn v. State
| Decision Date | 12 April 1996 |
| Docket Number | No. 95-58,95-58 |
| Citation | 677 So.2d 320 |
| Parties | 21 Fla. L. Weekly D867 Maurice Morsells HORN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Okaloosa County. Jere Tolton, Judge.
Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, Patrick Martin, Assistant Attorney General, Tallahassee, for Appellee.
Maurice Morsells Horn appeals judgment and sentence for third degree murder with a firearm, two counts of attempted third degree murder with a firearm, and shooting into an occupied vehicle. On appeal, Mr. Horn raises four issues: 1) whether reversible error occurred when peremptory challenges were exercised during a bench conference while he remained at counsel table; 2) whether the trial court erred in denying his motion for a curative instruction and a mistrial regarding certain comments made by the prosecutor; 3) whether his conviction for attempted third degree murder must be reversed; and 4) whether the trial court erred in enhancing his felony murder conviction for use of a firearm. We affirm in part, reverse and remand in part, and certify three questions to the Florida Supreme Court as matters of great public importance.
On December 10, 1993, Mr. Horn, along with his codefendants and others, approached the occupants of a truck parked across the street from The Cozy Corner, a bar. The driver of the truck was Freddy Wayne McLaughlin; Curtis Durm was a passenger. Mr. Horn was carrying a .22 revolver and one of Mr. Horn's codefendants was carrying a .357 revolver. As Mr. McLaughlin was trying to pull out of the parking space he had backed into, Mr. Horn and the aforementioned codefendant opened fire on the truck. Curtis Durm was killed and Tyshena Durm, a bystander, was wounded by a bullet in the abdomen. Mr. Horn and two codefendants were charged with second degree murder, three counts of attempted second degree murder, and shooting at an occupied vehicle.
At the conclusion of a jury trial, the trial court instructed the jury on, among other things, the elements of third degree murder. The jury was instructed that before they could find Mr. Horn guilty of third degree murder, they would have to find that the state had proven beyond a reasonable doubt that Horn and/or one of his codefendants was engaged in committing or attempting to commit the offense of shooting at or into an occupied vehicle, aggravated battery, or aggravated assault. The jury was also instructed that the lesser included offenses of attempted second degree murder were attempted third degree murder, attempted manslaughter, and aggravated assault.
The jury found Mr. Horn and one of the codefendants guilty of third degree murder, two counts of attempted third degree murder, and shooting into an occupied vehicle. The verdict form did not specify on which of the three predicate offenses the jury relied in finding Mr. Horn guilty of felony murder and attempted felony murder. The jury also found that Mr. Horn "did personally possess a firearm during the commission of the crime." The trial court enhanced both the felony murder and the attempted felony murder convictions based on the use of a firearm.
With respect to the first issue raised by Mr. Horn on appeal, whether reversible error occurred when peremptory challenges were exercised during a bench conference while he remained at counsel table, we affirm. While our supreme court has stated that a criminal defendant "has a right to be physically present at the immediate site where pretrial juror challenges are exercised," Coney v. State, 653 So.2d 1009, 1013 (Fla.1995), cert. denied, Coney v. Florida, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), the applicability of this holding is prospective only. Id.; Lett v. State, 668 So.2d 1094 (Fla. 1st DCA 1996). The Coney holding is thus inapplicable to Mr. Horn's case. In Lett, we certified the following question which we again certify to our supreme court as being of great public importance:
DOES THE DECISION IN CONEY APPLY TO "PIPELINE CASES," THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT REVIEW OR NOT YET FINAL DURING THE TIME CONEY WAS UNDER CONSIDERATION BUT PRIOR TO THE ISSUANCE OF THE OPINION?
We find no merit to Mr. Horn's second argument, that the trial court erred in denying his motion for a curative instruction and a mistrial regarding certain comments made by the prosecutor, and affirm as to this ground without further discussion.
As to Mr. Horn's third argument, we agree that his conviction for attempted third degree murder must be reversed. There is no criminal offense of attempted felony murder in Florida. State v. Grinage, 656 So.2d 457, 458 (Fla.1995); State v. Gray, 654 So.2d 552, 553 (Fla.1995). "The legal fictions required to support the intent for felony murder are simply too great." Gray, 654 So.2d at 554. Neither Grinage nor Gray addressed, however, whether lesser-included offenses remain viable either as the basis for a new trial or as substituted "reduced convictions" on remand, where a conviction for attempted felony murder is reversed on appeal.
The state urges us to reduce Mr. Horn's attempted felony murder conviction to attempted manslaughter, pursuant to section 924.34, Fla.Stat. (1993). This court has previously declined a similar request.
Were we to adopt the state's position and direct entry of judgment for attempted manslaughter (an intent crime) pursuant to section 924.34, we necessarily would be acting as the fact-finder and would have to assume the presence of the requisite intent. Such a result would encroach impermissibly upon the province of the jury. We conclude that the appellant would be effectively denied his constitutional right to trial by a jury if we, sitting in an appellate capacity, were to presume a finding of intent that the jury itself did not have to make.
On the other hand, we are unconvinced by the appellant's argument that Gray mandates an outright dismissal of charges for all time. Specifically, the instant case is not one of insufficient evidence.
Pratt v. State, 668 So.2d 1007, 1009 (Fla. 1st DCA 1996). We reaffirm this recent precedent.
Here, as in Pratt, the evidence was sufficient to support a jury finding of attempted manslaughter, Brown v....
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