Lucas v. State

• Decision Date: 22 November 1993
• Docket Number: No. 92-1826,92-1826
• Parties: 18 Fla. L. Weekly D2498 David F. LUCAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 597

630 So.2d 597

18 Fla. L. Weekly D2498

David F. LUCAS, Appellant, v. STATE of Florida, Appellee.

No. 92-1826.

District Court of Appeal of Florida,

First District.

Nov. 22, 1993.

Nancy A. Daniels, Public Defender, Lynn A. Williams, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Richard Parker, Asst. Atty. Gen., Tallahassee, for appellee.

WEBSTER, Judge.

In this direct criminal appeal, appellant raises six issues as involving error requiring reversal of either his convictions or his sentences: (1) denial of his motion for a mistrial made when inadmissible evidence of his bad character was presented to the jury; (2) failure to sustain his objection to a portion of the prosecutor's closing argument; (3) failure to include in the jury instruction on attempted manslaughter any reference to justifiable and excusable homicide; (4) sentencing him as an habitual violent felony offender without making sufficient findings; (5) imposing an improper departure sentence for sexual battery; and (6) imposing consecutive habitual violent felony offender sentences (including mandatory minimum sentences) for convictions arising out of the same criminal episode. We affirm in part, and reverse in part.

Appellant was charged by information with attempted second-degree (depraved mind) murder, sexual battery, armed robbery and kidnapping. Appellant and the state agree that all of the offenses charged arose out of the same criminal episode. Appellant entered not guilty pleas to all charges, and the case was eventually tried to a jury.

At trial, appellant's sole defense was that, although the crimes charged had occurred, they had not been committed by him. During the charge conference, appellant requested (and the trial court agreed to give) an instruction on attempted manslaughter as a category-one lesser-included offense of attempted second-degree murder. The trial court did instruct the jury that attempted (intentional act) manslaughter is a lesser-included offense of attempted second-degree (depraved mind) murder. However, nowhere in the instructions was there any reference to either justifiable or excusable homicide. Appellant did not request a charge on either justifiable or excusable homicide, and did not object to the omission.

On appeal, appellant argues for the first time that it was error requiring reversal to fail to instruct regarding justifiable and excusable homicide as a part of the charge on attempted manslaughter. According to appellant, manslaughter is a residual offense, which cannot be defined properly without an explanation that justifiable and excusable homicide are excluded from that offense. Moreover, because the offense of which appellant was convicted (attempted second-degree murder) is only one step removed from that as to which the erroneous instruction was given (attempted manslaughter), appellant argues that the error is both "fundamental" and per se reversible. To support his argument, appellant relies upon Rojas v. State, 552 So.2d 914 (Fla.1989); and Miller v. State, 573 So.2d 337 (Fla.1991).

The state responds that any error which might have occurred as a result of the failure to instruct the jury regarding justifiable and excusable homicide was not "fundamental" because neither justifiable nor excusable homicide was at issue in the case. For that matter, attempted manslaughter was not at issue in the case. As the state correctly points out, appellant conceded at trial that an attempted second-degree murder had occurred. His sole defense was that he had not been the perpetrator. In support of its position, the state relies principally upon State v. Delva, 575 So.2d 643 (Fla.1991), a case decided after Rojas and Miller.

Appellant is correct that Rojas and Miller stand for the proposition that failure to explain justifiable and excusable homicide as a part of the charge on manslaughter is "fundamental" error, which may be raised for the first time on appeal, when the defendant is convicted of either manslaughter or a greater offense not more than one step removed. See Perez v. State, 610 So.2d 648 (Fla. 3d DCA 1992) (holding that failure to explain justifiable and excusable homicide as part of the lesser-included offense of attempted manslaughter when defendant was charged with attempted second-degree murder was "fundamental" error which could be raised for the first time on appeal, relying upon Rojas and Miller ). However, the state is also correct that Delva, decided after Rojas and Miller, holds that "[f]ailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal." 575 So.2d at 645. Adding to the confusion caused by these seemingly conflicting holdings is State v. Clark, 614 So.2d 453 (Fla.1992). One of the apparent holdings of Clark is that at least some errors previously labeled by the supreme court as "fundamental" might, nevertheless, be subject to a harmless-error analysis. (The court concluded that a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution and article I, section 16, of the Florida Constitution, previously held to be a "fundamental" error, was, nevertheless, subject to a harmless-error analysis.)

We admit that we have found our efforts to reconcile Rojas and Miller with Delva and Clark somewhat troubling. The parties are in agreement that appellant did not dispute in the trial court that an attempted second-degree murder had occurred. His sole defense was that he had not been the perpetrator of that offense. Because only identity was disputed, Delva would appear to lead to the conclusion that it was not "fundamental" error to fail to instruct the jury regarding justifiable and excusable homicide as a part of the charge on the lesser-included offense of attempted manslaughter. Likewise, if one were to apply a harmless-error analysis to the failure to give such an instruction, as suggested by Clark, there can be little question but that, "beyond a reasonable doubt[,] ... the error did not affect the verdict" and was, therefore, harmless. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Nevertheless, after considerable reflection, we conclude that the court intended when it decided Rojas that, in cases such as this, failure to explain justifiable and excusable homicide as part of an instruction on manslaughter is both "fundamental" and per se reversible error (i.e., that the issue may be raised for the first time on appeal, and that it is not subject to a harmless-error analysis).

Interpretation of Rojas is made somewhat more difficult because the court did not recite what facts, if any, it regarded as relevant to its decision. However, reference to the district court opinion which was subsequently quashed reveals that the district court had held that the failure to give an instruction on justifiable and excusable homicide was neither "fundamental" nor harmful error, at least in part, because there was "no evidence which could have supported a self-defense instruction." Rojas v. State, 535 So.2d 674, 676 (Fla. 5th DCA 1988). In quashing the district court's decision, the supreme court said, "we cannot accept the harmless error analysis adopted by the Fifth District Court of Appeal in the instant case." 552 So.2d at 916. Additional support for the conclusion that the court intended that an explanation of justifiable and excusable homicide be given as a part of the manslaughter charge regardless of whether the facts warranted it (i.e., that failure to do so not be subject to a harmless-error analysis)...