Knight v. State
| Decision Date | 28 July 2016 |
| Docket Number | CASE NO. 1D14-2382 |
| Parties | ARNOLD JEROME KNIGHT, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Okaloosa County.
Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and Mark Graham Hanson, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
Appellant, the defendant below, challenges his conviction and sentence for attempted second-degree murder. The evidence supported the conclusion that he used a heavy, metal hydraulic jack handle to beat his former girlfriend very severely in her face and head, breaking the arm she used to try to block the attack and breaking one of her eye sockets in addition to inflicting other serious injuries to her face and head, leaving her with permanent residual impairments. Defendant argues that the trial court committed fundamental error by using a jury instruction on the lesser-included crime of attempted voluntary manslaughter by act that the Florida Supreme Court had invalidated several years earlier for incorrectly including an element of intent to kill. The state concedes that the manslaughter instruction was fundamentally erroneous under Florida Supreme Court precedent. The parties disagree, however, on whether defense counsel waived the error. On the facts presented, we conclude that the error was waived. We therefore affirm Defendant's conviction and sentence for attempted second-degree murder.
The Florida Supreme Court held in 2010—nearly four years before the trial in this case—that the standard jury instruction then in effect for voluntary manslaughter by act erroneously included an element of intent to kill, by instructing that the defendant must have committed an act or procured the commission of an act that was "intended to cause the death" of the victim. State v. Montgomery, 39 So. 3d 252, 259-60 (Fla. 2010) (). After Montgomery, the supreme court issued a new interim manslaughter instruction that eliminated the erroneous reference to an intent to kill,instead stating that the jury must find the defendant "intentionally committed an act or acts that caused the death of" the victim. In re Amendments to Standard Jury Instructions in Criminal Cases--Instruction 7.7, 41 So. 3d 853, 854-55 (Fla. 2010).*
Although Montgomery involved completed rather than attempted voluntary manslaughter by act, the correct instruction for the attempted crime obviously also would not include intent to kill because the distinction between completed and attempted manslaughter is not a difference in the elements of manslaughter but only a difference in whether the crime was prevented or otherwise failed to reach completion. See § 777.04(1), Fla. Stat. (2014) (). Thus, the proper instruction for attempted voluntary manslaughter by act was settled in Montgomery as well, by this Court in 2009, and affirmed by the Florida Supreme Court in 2010. Montgomery, 70 So. 3d at 607, aff'd, 39 So. 3d at 259-60.
Even if there had been any doubt about the correct instruction for attempted voluntary manslaughter by act, we had made it clear by 2009 in Lamb v. State, 18So. 3d 734 (Fla. 1st DCA 2009). In Lamb, we held that an instruction including intent to kill was erroneous also as to attempted manslaughter by act. 18 So. 3d at 735. On review of our decision in Lamb based on conflict with a decision of the Fourth District Court of Appeal, the Florida Supreme Court approved Lamb and held that it was fundamental error to instruct a jury that attempted manslaughter by act requires intent to kill. Williams v. State, 123 So. 3d 23, 30 (Fla. 2013).
In spite of these developments in the law that occurred as many as five years before the trial below, the manslaughter jury instruction used here retained the incorrect element of intent to kill. It was virtually identical to that disapproved in Williams, which stated "[Defendant] 'committed an act which was intended to cause the death' of [Victim]." 123 So. 3d at 25 (emphasis added) (quoting Lamb, 18 So. 3d at 735). The jury instruction here also was substantively the same as that disapproved in Montgomery, which included the element that "(Defendant) intentionally caused the death of (victim)." Montgomery, 39 So. 3d at 256. This jury instruction clearly was erroneous. The giving of this erroneous jury instruction constituted fundamental error. Williams, 123 So. 3d at 25, 27; Montgomery, 39 So. 3d at 258.
Fundamental error in a jury instruction can be waived. See, e.g., Moore v. State, 114 So. 3d 486, 489 (Fla. 1st DCA 2013), review dismissed, 181 So. 3d 1186, 1186-87 (Fla. 2016) (). It is axiomatic that waiver "is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right." Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 n. 12 (Fla. 2001). The existence of a waiver is a question of fact. Hill v. Ray Carter Auto Sales, Inc., 745 So. 2d 1136, 1138 (Fla. 1st DCA 1999). In Moore, we certified a question of great public importance as to what facts will constitute a waiver of an erroneous jury instruction, but the supreme court declined to review our decision. Moore, 181 So. 3d at 1186-87. We must, therefore, continue to resolve the question of waiver on a case-by-case basis in light of the specific facts of each case. We hold that on the facts presented here, the error in the manslaughter jury instruction was waived.
The record indicates that counsel for both parties had discussed jury instructions before the charge conference and had agreed on some changes. At the charge conference, defense counsel stated that he had read all of the proposed jury instructions and had no objections to them. He then made detailed comments andrequests on several instructions and on the verdict form, particularly with respect to adding battery offenses to the verdict form and instructions. He consulted with Defendant during the charge conference and stipulated to adding the battery offenses without requiring amendment of the information. During a recess after the state rested, the parties placed on the record additional changes to the jury instructions discussed between counsel with respect to the instruction for aggravated battery and the definition of a weapon for the weapon aggravation instruction, specifically including the voluntary manslaughter instruction. Defense counsel agreed to have the court read the instructions to the jury before closing arguments. No other discussion focused on the manslaughter instruction in general or specifically on the erroneous intent-to-kill language in that instruction.
The court orally instructed the jury prior to closing arguments, without objection from either party. The court instructed the jury on the original charge of attempted first degree premeditated murder with a weapon, and on eight lesser offenses: attempted first degree premeditated murder, attempted second degree murder with a weapon, attempted second degree murder, attempted voluntary manslaughter with a weapon, attempted voluntary manslaughter, aggravated battery with a deadly weapon or great bodily harm, felony battery with great bodily harm, and battery.
Closing arguments focused on the charged crime of attempted first-degree premeditated murder, with the state arguing among other things that intent to kill was obvious from the evidence including the nature and severity of the victim's injuries. Defense counsel argued several times that the evidence did not prove Defendant intended to kill the victim. After closing arguments, the trial court called to counsels' attention several discrepancies where the instructions did not list all lesser included offenses, and the court proposed to instruct the jury to note those instances and refer to the verdict form for complete information. Defense counsel agreed with the proposal. The jury returned a verdict finding defendant guilty of attempted second degree murder with a weapon. Defense counsel polled the jury, which confirmed its verdict.
As already noted, the parties dispute whether these facts support a finding that defense counsel waived the error in the manslaughter instruction. Neither Montgomery nor Williams addressed the question of whether the fundamental error in giving the improper jury instructions was waived. The Florida Supreme Court has held that "objecting to erroneous instructions is the responsibility of a defendant's attorney, and the attorney's failure to object to such instructions can properly constitute a waiver of any defects." Ray v. State, 403 So. 2d 956, 961 (Fla. 1981). This Court in Moore addressed waiver of the specific erroneous jury instruction at issue here. 114 So. 3d at 489-90. Moore involved two errors in aninstruction on manslaughter as a lesser-included offense, including its use of the erroneous requirement that the state prove intent to kill. 114 So. 3d at 488-89. We refused to grant a new trial due to the erroneous intent element in the jury instruction, finding on the facts of Moo...
To continue reading
Request your trial