Linehan v. State

• Decision Date: 09 November 1983
• Docket Number: No. 82-1477,82-1477
• Citation: 442 So.2d 244
• Parties: Mitchell LINEHAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 244

442 So.2d 244

Mitchell LINEHAN, Appellant, v. STATE of Florida, Appellee.

No. 82-1477.

District Court of Appeal of Florida,

Second District.

Nov. 9, 1983.

Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

En Banc.

LEHAN, Judge.

This case involves questions of whether voluntary intoxication is a defense to arson; whether voluntary intoxication is a defense to first degree (felony) murder; and whether the trial court was required to instruct the jury on second degree (depraved mind) murder when the defendant was indicted for first degree (felony) murder.

These questions appear to be matters of first impression in Florida. They are not readily answered under existing principles. As to when voluntary intoxication may be a defense to criminal charges, the law is not uniform. Numerous commentators and courts agree that the law relative to that defense is unclear and that existing tests to determine when that defense may be available do not produce consistent, meaningful results. Therefore, in this opinion we undertake not only to provide answers to the specific questions at hand but also to outline reasons for those answers, the nature of certain difficulties implicit in present approaches to those answers, relevant policy considerations, and conceivable ultimate solutions to the difficulties. We endeavor to add a measure of predictability to the law within the bounds of stare decisis. The voluntary intoxication defense potentially exists for numerous criminal offenses and therefore merits serious consideration.

Defendant was indicted for arson under section 806.01, Florida Statutes (1981), and for first degree (felony) murder under section 782.04(1)(a), Florida Statutes (1981). The jury found defendant guilty on both charges. At sentencing the arson conviction was merged into the first degree murder conviction. The court adjudicated defendant guilty of first degree (felony) murder under section 782.04(1)(a), Florida Statutes (1981), and, in accordance with the jury recommendation, imposed a life sentence, requiring a minimum term of 25 years.

Defendant contends that there was error in the refusal of the trial court to instruct on intoxication as a defense. We disagree and affirm the trial court on this point. Defendant also contends that the trial court erred in refusing to include in its first degree (felony) murder jury instructions a lesser included second degree (depraved mind) murder instruction. We must agree with this contention and reverse the first degree (felony) murder conviction. We find no merit in defendant's remaining contentions.

Following defendant's arrest as a suspect for the arson and an initial interview by a detective and a fire marshal official, a second interview was conducted by the same persons. After readvising defendant of his Miranda rights, the detective and fire marshall officially confronted appellant with contradictions from the initial interview. A few minutes into this interview appellant broke down and told them about actually starting the fire himself.

Defendant stated that on the day the fire occurred he had gone to St. Petersburg looking for his girl friend. During the afternoon, defendant went to several bars and to his girl friend's apartment trying to locate her. That evening he returned to her apartment. After not finding her there, he went to the back of the apartment building, up the rear fire escape and apparently gained entrance through a window to her apartment. After entering the apartment, defendant lighted a cigarette and stood, smoking the cigarette and flicking his lighter. He held the flame of the lighter to curtains in the apartment and then departed.

The ensuing fire engulfed the apartment building. All occupants except one managed to escape. The unfortunate victim had, without the landlord's permission, occupied a storage room for shelter during the night. The victim died from smoke inhalation.

A St. Petersburg Fire Department investigator testified that he found the area of deepest burn by a window in the apartment of defendant's girl friend. He found no basis for the fire having started by accidental means, and he classified the fire as arson. Testimony from another fire investigator was that the fire pattern was consistent with curtains in the girl friend's apartment having caught on fire and the fire having spread from there.

Two witnesses testified that they had seen defendant in an intoxicated state on the day of the fire. One of the witnesses testified that a few hours before the fire occurred she saw defendant at the building and that he was staggering. She also testified that she heard him mumble something about burning the building down. Later that evening, when the witness returned to the apartment building and found it in flames, she saw the defendant outside the building still staggering. The witness gave her opinion that the defendant was very drunk.

Defendant did not testify at the trial.

Voluntary Intoxication Is Not A Defense To Arson.

Defendant argues, and we agree, that voluntary intoxication is a defense to a "specific intent" crime, as contrasted with a "general intent" crime. See Cirack v. State, 201 So.2d 706 (Fla.1967); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979). However, we find that arson under section 806.01, Florida Statutes (1981), is a general intent crime to which voluntary intoxication is not a defense.

Section 806.01 provides, in pertinent part:

(1) Any person who willfully and unlawfully by fire or explosion, damages or causes to be damaged:

(a) any dwelling whether occupied or not, or its contents....

We construe the word "willfully" in the arson statute to mean that the accused need have had only a general criminal intent.

The distinction between "specific" and "general" intent crimes is nebulous and extremely difficult to define and apply with consistency. See Annot., 8 ALR 3d 1236 (1966). Although the difference between acts done deliberately and accidentally is not difficult to grasp, the "specific" versus "general" intent test requires a close distinction between different types of intent. The difficulty is compounded by a variety of different types of statutory wording to which to apply the distinction.

On the surface, particular statutes defining criminal offenses which contain the words "willfully" or "intentionally" might be thought to encompass "specific intent" crimes simply because they contain words denoting intent as a requisite mental state. However, that approach would ignore a fundamental concept of criminal law that there are three broad categories of crimes: (1) "strict liability" crimes (e.g., DWI manslaughter or statutory rape) which are criminal violations even if done without intent to do the prohibited act, see Baker v. State, 377 So.2d 17, 19 (Fla.1979); (2) general intent crimes; and (3) specific intent crimes. See W. LaFave & A. Scott, Handbook on Criminal Law § 28 (1972). The inclusion of words denoting a state of mind as an element of the offense (e.g., "willfully" or "intentionally") serves to distinguish general intent and specific intent crimes from strict liability crimes. But the distinction between general intent and specific intent depends upon how words denoting state of mind are used in a statute. The next three paragraphs in this opinion are intended as guidelines for making that distinction.

A "general intent" statute is one that prohibits either a specific voluntary act or something that is substantially certain to result from the act (e.g., damage to a building is the natural result of the act of setting a building afire). A person's subjective intent to cause the particular result is irrelevant to general intent crimes because the law ascribes to him a presumption that he intended such a result. "[A] man is to be taken to intend what he does, or that which is the necessary and natural consequence of his own act." R. Perkins, Perkins on Criminal Law 748 (2d ed. 1969), citing Harrison v. Commonwealth, 79 Va. 374, 377 (1884). Thus, in general intent statutes words such as "willfully" or "intentionally," without more, indicate only that the person must have intended to do the act and serve to distinguish that conduct from accidental (noncriminal) behavior or strict liability crimes. In Love v. State, 107 Fla. 376, 144 So. 843, 844 (1932), the Florida Supreme Court did not directly refer to "general" or "specific" intent, but in defining the type of intent requisite for statutory arson appeared to construe arson as a general intent crime: "A 'willful' setting fire to or burning would be such an act consciously and intentionally, as distinguished from accidentally or negligently done...." In 1979 the legislature omitted the word "maliciously" from the first degree arson statute.

In Myers v. State, Ind.App., 422 N.E.2d 745, 750, 751 (1981), the Indiana appellate court said that:

General criminal intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender's voluntary act, irrespective of a subjective desire to have accomplished such result,

and that the term "intentionally damages ... a dwelling ... requires no more than proof of general criminal intent" which is "the requisite intent necessary ... to distinguish the act ... from an accidental or negligent act having the same result." As the Washington appellate court said in State v. Nelson, 17 Wash.App. 66, 561 P.2d 1093, 1096 (1977), "[a] willful act is one done intentionally, not accidentally."

Specific intent statutes, on the other hand, prohibit an act when accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act. See State v. Gullett, 606 S.W.2d 796, 804 (Mo.Ct.App....