Lumsdon v. State, 3D07–2324
| Decision Date | 14 December 2016 |
| Docket Number | No. 3D07–2324,3D07–2324 |
| Citation | 218 So.3d 930 |
| Parties | Willie LUMSDON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
Before WELLS, SHEPHERD, and LOGUE.
ON REMAND
This case returns to us on remand following the Florida Supreme Court's decisions in State v. Montgomery , 39 So.3d 252 (Fla. 2010), and Haygood v. State , 109 So.3d 735 (Fla. 2013). Willie Lumsdon, the defendant, argues that his second-degree murder conviction must be reversed because the standard manslaughter by act instruction read to the jury was the same instruction held to be erroneous in Montgomery .1 The State agrees the instruction was erroneous. Citing to Dawkins v. State , 170 So.3d 81 (Fla. 3d DCA 2015), however, the State contends that the error was cured because the jury was also instructed on manslaughter by culpable negligence and the evidence could reasonably support so finding.2 We agree with the defendant. Because he objected to the erroneous instruction on manslaughter by act, and the State cannot show that the error was harmless beyond a reasonable doubt, we reverse and remand for a new trial on second-degree murder. See Haygood , 109 So.3d at 742 ; Montgomery , 39 So.3d at 259.
The State's reliance on Dawkins is misplaced. In Dawkins , the defendant did not object to the erroneous instruction. For this reason, the erroneous instruction was reversible only if it reflected fundamental error—error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. Dawkins held that, where the jury was also instructed on manslaughter by culpable negligence and the evidence could reasonably support a finding of culpable negligence, the erroneous instruction on manslaughter by act was "not per se fundamental error." 170 So.3d at 83. The determination that the error was not fundamental falls far short of holding the error was not harmful.
By contrast, here, the defendant objected to the flawed instruction on manslaughter by act. This objection preserved the issue for appeal and triggered the harmless error analysis, which places the heavy burden on the State, as the beneficiary of the error, to show "no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So.2d 1129, 1135 (Fla. 1986) ; see also Barnes v. State , 108 So.3d 700, 703 (Fla. 1st DCA 2013) (). In this case, the State cannot meet its heavy burden because the flawed instruction pertained to a disputed element of the offense (the defendant's intent) and the defendant was convicted of a crime only one step removed from the necessarily lesser included offense of manslaughter by act. See Haygood , 109 So.3d at 742 ; Montgomery , 39 So.3d at 259 ; Molina v. State , 150 So.3d 1280, 1284 (Fla. 3d DCA 2014) ().
Affirmed in part, reversed in part, and remanded for a new trial.3
I agree with the majority's decision to affirm Willie Lumsdon's conviction and sentence for throwing a deadly missile and to reverse his conviction and sentence for second degree murder, but do so for the following reasons.
This case arises from a shooting death that occurred near or on a crowded off-ramp of I–95, where two groups of young men travelling in separate vehicles engaged in verbal repartee and tossed items between cars following which Lumsdon admittedly fired off a shot killing one of the occupants in the other car. See Lumsdon v. State , 29 So.3d 390, 392 (Fla. 3d DCA 2010), quashed by , 160 So.3d 896 (Fla. 2014) ("Lumsdon I "). As pertinent here, Lumsdon was charged with second degree murder with a firearm in which it was properly alleged that Lumsdon's acts, while imminently dangerous and evincing a depraved mind, were committed without an intent to kill:
WILLIE J LUMSDON, on or about May 30, 2004, in the County and State aforesaid, did unlawfully, feloniously and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill MALCOM MARSHALL, a human being, by SHOOTING MALCOM MARSHALL ....
Whereas, Lumsdon claimed that fearful of the occupants of the other car, he acted in self-defense by shooting a gun into the air as a warning. Id.
In July of 2007, Lumsdon was tried on these charges. In addition to being instructed that "Second Degree [Murder] includes the lesser crime[ ] of Manslaughter," the jury was instructed that to find Lumsdon guilty of second degree murder it had to find that Lumsdon unlawfully caused Marshall's death by committing an imminently dangerous act demonstrating a depraved mind:
The jury also was given that part of the Florida Standard Jury Instruction in Criminal Cases 7.7 in effect at that time on manslaughter by culpable negligence, and, over objection, that part of the same instruction on manslaughter by act:
The jury returned a verdict in pertinent part finding Lumsdon guilty of second degree murder as charged.
On appeal, Lumsdon raised four issues all of which ultimately were rejected by this court. See Lumsdon I , 29 So.3d at 391–393. However, following oral argument, Lumsdon filed supplemental briefing relying on Montgomery v. State , 70 So.3d 603 (Fla. 1st DCA 2009), which then was pending on certification in the Florida Supreme Court, arguing entitlement to reversal of his conviction for second degree murder. While we found no merit to his argument, "[t]o preserve Lumsdon's rights," should the Florida Supreme Court determine that the manslaughter by act instruction given in this case was fundamentally flawed, we certified conflict with Montgomery . See Lumsdon I , 29 So.3d at 393 n.1.
In State v. Montgomery , 39 So.3d 252, 259–60 (Fla. 2010), the Florida Supreme Court held that the manslaughter by act instruction at issue here was flawed because it required the jury to determine that the defendant intended to kill the victim—an element not required by the manslaughter statute—rather than determining whether the defendant intended to commit an act which cause the victim's death:
In conclusion we approve the decision of the First District Court of Appeal to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim .... We [further] ... hold that the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim ... [and] that the intent which the State must prove for the purpose of manslaughter by act is the intent to commit an act that was not justified or excusable, which caused the death of the victim.
Because no objection to the flawed instruction had been lodged in the court below, and because "manslaughter is just one step removed from second-degree murder," the Montgomery court found "fundamental error occurred ... which was per se reversible." Id. at 259. Three years later, the Florida Supreme Court in Haygood v. State , 109 So.3d 735, 741 (Fla. 2013), held that giving a manslaughter by culpable negligence instruction along with the manslaughter by act instruction rejected in Montgomery "does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of second-degree murder and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant." Following these decisions, our decision in Lumsdon I was quashed and this matter remanded to us for reconsideration in light of Montgomery and Haygood . Lumsdon v. State , 160 So.3d 896 (Fla. 2014).
On remand, we requested and received supplemental briefs and heard oral argument. The State, citing to Haygood , argues that because there was some...
To continue reading
Request your trial