Knight v. State

• Decision Date: 19 February 2018
• Docket Number: No. 1D14–2382,1D14–2382
• Citation: 267 So.3d 38
• Parties: Arnold Jerome KNIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

267 So.3d 38

Arnold Jerome KNIGHT, Appellant,

v.STATE of Florida, Appellee.

No. 1D14–2382

District Court of Appeal of Florida, First District.

February 19, 2018

Rehearing Denied February 19, 2018

ON MOTION FOR REHEARING, CERTIFICATION OF QUESTION, AND REHEARING EN BANC

Kelsey, J.

The Court previously issued its opinion affirming Appellant's conviction and sentence for attempted second-degree murder. Knight v. State , 41 Fla. L. Weekly D1760, 2016 WL 4036091 (Fla. 1st DCA July 28, 2016). Appellant moved for rehearing, certification of a question of great public importance, and rehearing en banc.¹ We deny Appellant's motion, withdraw our prior opinion, and in its place substitute the following opinion affirming Appellant's conviction and sentence on two alternative grounds. We certify conflict with Caruthers v. State , 232 So.3d 441 (Fla. 4th DCA 2017). We also re-certify as a question of great public importance a question we certified in Moore v. State , 114 So.3d 486, 489 (Fla. 1st DCA 2013), review dismissed , 181 So.3d 1186, 1186–87 (Fla. 2016).

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Appellant challenges his conviction and thirty-year sentence for attempted second-degree murder of his former girlfriend.² The evidence supported the conclusion that he used a heavy, metal hydraulic jack handle to beat the victim 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, including a gash down to her skull, leaving her with permanent residual impairments. The emergency medicine physician who treated the victim testified that the injuries required a direct blow of great force.

The victim testified that Appellant had lived with her and her two young-adult children for a short time and had previously threatened to kill her if she ever tried to leave him. After Appellant moved out of the victim's house at the request of the victim and her son, the victim obtained an injunction for protection against domestic violence against Appellant. Nine hours after he was served with that injunction, at a time when he was aware from having lived with the victim that she would be leaving her house alone to prepare to leave in her car, Appellant was waiting for her and attacked her. The victim saw him begin beating her with the weapon, although the severity of the beating prevented her from remembering the remainder of the attack. The victim's son heard her call out, and was an eyewitness to part of the attack. He saw Appellant with the weapon in his hand and confronted him. The victim's daughter saw Appellant walking away from the attack carrying an object matching the description of the weapon.

The weapon was found a short distance away, between the victim's house and the place where law enforcement found Appellant. The weapon was found to have the victim's DNA on both ends and Appellant's DNA on one end. Although the weapon was the handle to a hydraulic jack, no such jack was found anywhere near the victim's house or surrounding area, supporting the conclusion that Appellant had brought it with him. The presence of the weapon, together with the evidence of Appellant's having been served with the domestic violence injunction just hours earlier, his timed arrival at the victim's house, and his lying in wait for her, also supported the conclusion that Appellant had planned the attack in advance.

Appellant did not testify at his trial, but neither the fact of the attack nor Appellant's identity as the attacker was disputed. There was evidence that upon being informed of the charges including use of a crowbar as a weapon, Appellant spontaneously denied having used a weapon; but there was no evidence explaining how the victim's serious injuries including a deep gash down to her skull could have been inflicted with bare hands. Defense counsel argued to the jury that the attack was not premeditated, Appellant had no intent to kill the victim, and the evidence was insufficient to establish that Appellant had used the jack handle as his weapon for the attack.

The jury was instructed on the following offenses in the following order:

- attempted first-degree premeditated murder with a weapon (the charged offense);

- attempted first-degree premeditated murder;

- attempted second-degree murder with a weapon (the offense of conviction);

- attempted second-degree murder;

- attempted voluntary manslaughter with a weapon (the erroneous instruction);

- attempted voluntary manslaughter;

- aggravated battery with a deadly weapon or great bodily harm;

- felony battery with great bodily harm; and

- battery.

Appellant 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. State v. Montgomery , 39 So.3d 252, 259–60 (Fla. 2010). The erroneous jury instruction for attempted voluntary manslaughter provided as follows, with the erroneous language italicized:

To prove the crime of Attempted Voluntary Manslaughter, the State must prove the following element beyond a reasonable doubt:

ARNOLD JEROME KNIGHT committed an act or procured the commission of an act, which was intended to cause the death of [VICTIM] and would have resulted in the death of [VICTIM] except that someone prevented ARNOLD JEROME KNIGHT from killing [VICTIM] or he failed to do so.

However, the defendant cannot be guilty of Attempted Voluntary Manslaughter if the attempted killing was either excusable or justifiable as I have previously explained those terms.

It is not an attempt to commit manslaughter if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.

To "procure" means to persuade, induce, prevail upon, or cause a person to do something.

In order to convict of Attempted Voluntary Manslaughter it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

The Florida Supreme Court held in Montgomery that this standard instruction was erroneous for including the element of intent to kill; and further held that the last line of the instruction, stating it is not necessary to prove premeditated intent to kill, was insufficient to cure the error. 39 So.3d at 257–58. By the time the Montgomery opinion was rendered, the supreme court had approved a corrected jury instruction on manslaughter by act, which added that "it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death ." Id. at 257 (quoting In re Standard Jury Instructions in Criminal Cases–Report No. 2007 - 10, 997 So.2d 403, 403 (Fla. 2008) ).

The Florida Supreme Court further held in Montgomery that—because of the jury pardon doctrine—the use of an incorrect manslaughter by act instruction is fundamental error, and "per se reversible,"³ if the defendant is convicted of second-degree murder (and by extension, attempted second-degree murder), a crime only one step above manslaughter. Id. at 259–60 ("A jury must be given a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilty as to the next lower crime. If the jury is not properly instructed on the next lower crime, then it is impossible to determine whether, having been properly instructed, it would have found the defendant guilty of the next lesser offense.") (quoting Pena v. State , 901 So.2d 781, 787 (Fla. 2005) ).

In part I of this opinion we find that the Florida Supreme Court recently receded from the jury pardon doctrine. Dean v. State , 230 So.3d 420, 425 (Fla. 2017).⁴ That change in the law eliminates the rationale for the fundamental error analysis of Montgomery . We therefore conclude in part I of this opinion that the use of an erroneous manslaughter instruction does not constitute reversible error on the facts presented. We certify conflict with Caruthers , which held that the Florida Supreme Court did not recede from the jury pardon doctrine in Dean .

In part II of this opinion, we adhere to our previous holding that this error can be waived and was waived on the specific facts presented. We thus affirm Appellant's conviction and sentence on this alternative ground. We re-certify as a question of great public importance a question we certified in Moore , 114 So.3d at 493, review dismissed , 181 So.3d at 1186–87.

I. ABROGATION OF THE JURY PARDON DOCTRINE .

In Dean , the defendant was charged with second-degree felony murder and requested that the jury be instructed on manslaughter as a lesser-included offense. 230 So.3d at 421–22. The trial court agreed with the state that manslaughter was not a lesser-included offense of second-degree felony murder, and decided not to instruct the jury on manslaughter. Id. The Fourth District held that manslaughter is not a necessary lesser-included offense of second-degree felony murder, but certified the question to the Florida Supreme Court. Id. at 422. The supreme court declared in its per curiam opinion that manslaughter was a necessary lesser-included offense of second-degree felony murder. Id. at 422–24. Not giving the manslaughter instruction would have constituted fundamental error, see Montgomery , 39 So.3d at 258 ; which is not subject to harmless error analysis, Reed v. State , 837 So.2d 366, 369–70 (Fla. 2002).

Dean generated four opinions. Justices Lewis, Canady, and Lawson joined the per curiam opinion affirming Dean's conviction. The per curiam opinion expressly incorporated by reference the reasons set forth in Justice Polston's concurring opinion, joined by Justices Canady and Lawson, which receded from the jury pardon doctrine.⁵ Thus, a majority consisting of four justices—Justices Lewis, Canady, Polston, and...