Montgomery v. State

• Decision Date: 12 February 2009
• Docket Number: No. 1D07–4688.,1D07–4688.
• Parties: Steven W. MONTGOMERY, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

70 So.3d 603

Steven W. MONTGOMERY, Appellant,

v.STATE of Florida, Appellee.

No. 1D07–4688.

District Court of Appeal of Florida, First District.

Feb. 12, 2009.Rehearing Denied Feb. 12, 2009.

Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.

ON MOTION FOR REHEARING, CLARIFICATION AND REHEARING EN BANC

LEWIS, J.

We deny the State's motion for rehearing and rehearing en banc. We grant the State's motion for clarification, withdraw our previous opinion, and substitute the following therefor.

Steven Montgomery, Appellant, appeals his judgment and sentence for second-degree murder. He contends the trial court fundamentally erred in giving the standard jury instruction for manslaughter by act, as it erroneously suggests that intent to kill is an element of that crime. We agree with Appellant because the standard instruction imposed an additional element on the crime of manslaughter by act, and that offense was one step removed from the crime for which Appellant was convicted. Accordingly, we reverse Appellant's judgment and sentence and remand the case for a new trial consistent with this opinion. This resolution renders the remaining issues moot.

At Appellant's trial for first-degree murder, the court instructed the jury on second-degree murder and manslaughter by act, as lesser-included offenses of the charged crime. The trial court gave the following instructions regarding second-degree murder:

[T]o prove the crime of second degree murder the state has the burden of proving these three things: The first being that [the victim] is dead. Secondly, that the death was caused by the criminal act of Mr. Montgomery. Thirdly, that there was an unlawful killing of [the victim] by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

....

Now in order to convict of second degree murder it is not necessary for the state to prove the defendant had an intent to cause death.

The court instructed the jury that to prove the crime of manslaughter, the State had to prove “two things: The first being again that [the victim] is dead and, secondly, that Mr. Montgomery intentionally caused her death.” After an intervening instruction regarding excusable and justifiable homicide, the court continued, “In order to convict of manslaughter by intentional act it is not necessary for the state to prove that the defendant had a premeditated design to cause death....” These instructions are consistent ¹ with the standard jury instructions for second-degree murder and manslaughter by act. See Fla. Std. Jury Instr. (Crim.) 7.4, 7.7.

On appeal, Appellant contends that the giving of these instructions constituted fundamental error. To resolve this issue we must determine whether intent to kill is an element of the crime of manslaughter by act, and if not, whether the instructions given by the trial court had the effect of adding such an element, such that the instructions “taint[ed] the underlying fairness of the entire proceeding.” See Hankerson v. State, 831 So.2d 235, 237 (Fla. 1st DCA 2002). For the reasons explained below, we hold that intent to kill is not an element of manslaughter by act and that the trial court fundamentally erred in giving instructions that suggested the State was required to prove intent to kill to prove the crime of manslaughter.

Turning to the first step in our analysis, we note that there is a split of authority among Florida district courts as to whether manslaughter by act, under section 782.07, Florida Statutes, has intent to kill as an element. This split is based on opposing interpretations of the supreme court's decision in Taylor v. State, 444 So.2d 931 (Fla.1983), which held that attempted manslaughter was a cognizable crime in this state. In Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007) (en banc), the Second District interpreted Taylor as holding that “intent to kill is an element of attempted manslaughter” but did not believe such a holding “require[d] a determination that an intent to kill is an element of manslaughter by act.” In contrast, the Fifth District opined, based on Taylor, that the words “act” and “procurement” in the manslaughter statute “obviously refer to acts evidencing an intent to kill, as required at common law for voluntary manslaughter.” Barton v. State, 507 So.2d 638, 641 (Fla. 5th DCA 1987), rev'd on other grounds, State v. Barton, 523 So.2d 152 (Fla.1988); see also State v. Sherouse, 536 So.2d 1194, 1194–95 (Fla. 5th DCA 1989) (Cobb, J., concurring). The Fifth and Second Districts seem to agree that the supreme court held that intent to kill was an element of attempted manslaughter, but they disagree as to that holding's significance to the elements of manslaughter. See Hall, 951 So.2d at 96; Barton, 507 So.2d at 641.

As noted above, the Second District, in Hall, opined that the Taylor court's holding regarding the intent element of attempted manslaughter did not control its determination of the intent element of manslaughter by act. Hall, 951 So.2d at 96. Because the Second District concluded that Taylor did not control its analysis, that court determined the intent element of manslaughter by act primarily by reference to policy considerations. See id. at 95–96. One of the Second District's concerns was that recognizing an intent-to-kill element would “elevate the crime above second-degree murder,” which requires a lesser showing of intent. Id. We agree with the Second District that this result would be undesirable. We also note, however, that the Second and Fifth Districts' interpretation of Taylor yields another unsettling result. If Taylor held that intent to kill is an element of attempted manslaughter, then the crime of attempted manslaughter would, in a sense, be elevated above aggravated battery, even though aggravated battery is statutorily categorized as a more serious offense, punishable to a greater extent. See § 784.045(2) (categorizing aggravated battery as a second-degree felony); 782.07(1) (categorizing manslaughter by act as a second-degree felony); 777.04(4)(d) (providing that the attempt to commit a second-degree felony is a third-degree felony). Thus, under the Second and Fifth Districts' view of Taylor, a person who attacked another with an intent to kill might be punished to a lesser extent than one who attacked another without an intent to kill, as attempted manslaughter is only a third degree felony, while aggravated battery is a second-degree felony.

We take a different view of the Taylor opinion, the result of which is to avoid the problems discussed in the Hall opinion, as well as the problems created by interpreting Taylor as holding that intent to kill is an element of attempted manslaughter. The Taylor court isolated its holding as follows:

We ... hold that there may be a crime of attempted manslaughter. We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act. This holding necessitates that a distinction be made between the crimes of “manslaughter by act or procurement” and “manslaughter by culpable negligence.” For the latter there can be no corresponding attempt crime. This conclusion is mandated by the fact that there can be no intent to commit an unlawful act when the underlying conduct constitutes culpable negligence. On the other hand, when the underlying conduct constitutes an act or procurement, such as an aggravated assault, there is an intent to commit the act, and thus, there exists the requisite intent to support attempted manslaughter.

444 So.2d at 934. In addition to emphasizing that the crime of attempted manslaughter exists only where the completed offense would be manslaughter by act or procurement, this express holding identifies the intent element of attempted manslaughter. Id. We interpret this language as requiring the State to prove only an intent to commit an act that would have resulted in the death of the victim except that the defendant was prevented from killing the victim or failed to do so.² This interpretation of the Taylor holding results from our reading of its plain language, as well as Florida's general concept of the crime of attempt, which requires the jury to find that the defendant would have completed the relevant underlying offense except that he or she was either prevented from doing so or failed to do so. See State v. Brady, 745 So.2d 954, 957 (Fla.1999) (listing the elements of attempted second-degree murder). If the Taylor court had intended to recognize an intent-to-kill element for the crime of attempted manslaughter by act, rather than an “intent to commit an unlawful act,” it would have stated so in its direct holding. Although Judge Cobb correctly notes in his concurring opinion in Sherouse that the Taylor court referred to an intent to kill when discussing voluntary manslaughter (i.e., manslaughter by act or procurement), this language can only be construed as dicta when compared with the Taylor court's direct statement of its holding. See Sherouse, 536 So.2d at 1194–95; Taylor, 444 So.2d at 934 (expressing its direct holding without referring to an intent to kill).

While Taylor addressed attempted manslaughter, rather than the completed offense of manslaughter by act, its holding controls our analysis. In Gentry v. State, 437 So.2d 1097, 1098–99 (Fla.1983), the supreme court explained this state's position on the level of intent required for the crime of attempt vis-a-vis the level of intent required for the crime attempted to be committed. The Gentry court held that where the completed offense would be a general intent crime, the attempt to commit such an offense also involves general, rather than specific, intent. Id. The Gentry holding was...