Moore v. State

• Decision Date: 10 June 2013
• Docket Number: No. 1D10–4052.,1D10–4052.
• Parties: Jimmy MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

114 So.3d 486

Jimmy MOORE, Jr., Appellant,

v.STATE of Florida, Appellee.

No. 1D10–4052.

District Court of Appeal of Florida, First District.

June 10, 2013.

Nancy A. Daniels, Public Defender, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant seeks review of a judgment and sentence for second-degree murder and home invasion robbery. He raises two issues on appeal. We affirm the first issue without discussion. In his second issue, appellant argues the trial court committed fundamental error in instructing the jury on the lesser-included offense of manslaughter because the instruction required the jury to find appellant intentionally caused the death of the victim, and because it failed to inform the jury that appellant could not be guilty of manslaughter if the killing was either justifiable or excusable homicide. We affirm as to the portion of the instruction addressing intent because appellant affirmatively agreed to that portion of the instruction. However, we are constrained to reverse as to the failure to instruct on justifiable or excusable homicide in accordance with this court's decision in Beckham v. State, 884 So.2d 969 (Fla. 1st DCA 2004), because defense counsel did not affirmatively agree to an instruction that he was aware was incomplete. Therefore, we affirm appellant's conviction for home invasion robbery, reverse his conviction for second-degree murder, and remand.

However, we also certify two questions of great public importance. Because we believe that a defendant should not receive a new trial based on an unobjected-to erroneous instruction concerning a matter that was not in dispute and could not have reasonably affected the verdict, we certify a question asking the supreme court to readdress its decision in State v. Lucas, 645 So.2d 425 (Fla.1994). We also certify a question asking the court to clarify to what extent counsel must actually be aware that an instruction is erroneous in order to waive fundamental error pursuant to Lucas.

1. Facts

Appellant was charged with first-degree murder and home invasion robbery. The evidence presented at trial demonstrated that the victim's hands were bound, and he was killed by blunt force trauma to the head and neck. Appellant's defense was that he was out of town at the time the incident occurred and that someone else perpetrated the killing. The trial court instructed on first-degree murder, as well as the lesser included offenses of second-degree murder and manslaughter. During the charge conference, the trial court and the State expressed concern that the State's proposed jury instruction for manslaughter erroneously required a finding of intent, and the court offered to strike the intent language. Appellant's counsel did not respond. Later during the charge conference, the parties referenced what appears to be the 2008 amended version of the standard jury instruction on manslaughter, which required the jury to find the defendant “intentionally caused the death of” the victim. See In re Standard Jury Instructions in Criminal Cases–Report No. 2007–10, 997 So.2d 403 (Fla.2008). The State suggested using the intent language from the standard jury instruction, and appellant's counsel responded, “I'm agreeing with [the State], intentionally caused the death under the manslaughter instruction.”

The State then read out loud the agreed-upon instruction to ensure it was correct. It stated in full:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:

Number One, [the victim] is dead.

Number Two, [appellant] intentionally caused the death of [the victim].

In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that [appellant] had a premeditated intent to cause death, only an intent to commit an act which caused death.

The trial court asked appellant's counsel if he agreed with the instruction, and he responded that he did. The court then asked, “Not requesting anything else regarding that?” He responded, “No.” Later in the proceedings, the trial court gave appellant's counsel a printed copy of the instruction that would be read to the jury, and again he stated he had no objection. The trial court instructed the jury on manslaughter as agreed by the parties, without objection. The jury found appellant guilty of the lesser included offense of second-degree murder as well as home invasion robbery.

2. Manslaughter Instruction—Intent

Appellant argues the language in the manslaughter instruction stating that the jury was required to find he “intentionally caused the death” of the victim was error because the offense of manslaughter does not require an intent to kill. Appellant is correct. In State v. Montgomery, the supreme court found the 2006 amended version of the standard jury instruction on manslaughter was error because it required the jury to find the “[d]efendant intentionally caused the death” of the victim. 39 So.3d 252, 256 (Fla.2010). Further, Montgomery found this error to be fundamental unless manslaughter is two or more degrees removed from the crime for which the defendant is ultimately convicted. Id. at 259. Later in Riesel v. State, this court found the 2008 amended version of the standard jury instruction was also error because it was “not materially different” from the one considered in Montgomery, “even though the instruction later provided that the jury was to find only an intent to commit an act which caused the victim's death.” 48 So.3d 885, 886 (Fla. 1st DCA 2010).¹

Here, appellant was convicted of second-degree murder, which is only one step removed from manslaughter. Thus, this error would be fundamental pursuant to Montgomery and Riesel, had counsel not specifically agreed to the instruction. It is well-established that “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’ ” Ray v. State, 403 So.2d 956, 960 (Fla.1981). “[F]undamental error may be waived where defense counsel requests an erroneous instruction.” Armstrong v. State, 579 So.2d 734, 735 (Fla.1991).

Here, the trial court specifically brought to counsel's attention the problem of the intent language in the proposed jury instruction and offered to strike that language. However, counsel specifically requested the language from the standard jury instruction that erroneously instructed the jury that manslaughter required an intent to kill. Thereafter, the trial court gave counsel additional opportunities to object, but he stated he agreed with the instruction. Therefore, appellant waived this error.

3. Manslaughter Instruction—Justifiable or Excusable Homicide

Appellant also argues the manslaughter instruction given by the trial court constituted fundamental error because it failed to instruct the jury that he could not be guilty of manslaughter if the killing was either justifiable or excusable homicide. We are constrained to agree because of the supreme court's holding in Lucas and the decision of this court in Beckham.

In Lucas, the supreme court explained that “because manslaughter is a ‘residual offense, defined by reference to what it is not,’ a complete instruction on manslaughter requires an explanation that justifiable and excusable homicide are excluded from the crime.” 645 So.2d 425, 427 (Fla.1994) (quoting Stockton v. State, 544 So.2d 1006, 1008 (Fla.1989)). Lucas considered a certified question from this court asking if the failure to instruct on justifiable or excusable homicide was fundamental error even where the evidence did not support these defenses. Id. See also Lucas v. State, 630 So.2d 597, 599 (Fla. 1st DCA 1993). The supreme court answered the question in the affirmative, holding the “failure to give a complete instruction on manslaughter during the original jury charge is fundamental error which is not subject to harmless-error analysis where the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder.” Lucas, 645 So.2d at 427.Lucas found “[t]he only exception we have recognized is where defense counsel affirmatively agreed to or requested the incomplete instruction.” Id. (citing Armstrong v. State, 579 So.2d 734 (Fla.1991)).

Here, the manslaughter instruction failed to instruct the jury on justifiable or excusable homicide. Therefore, pursuant to Lucas, it was fundamental error. Whether or not appellant waived this error is a closer issue.

The supreme court discussed the waiver of fundamental error in Ray, 403 So.2d 956. In Ray, the defendant argued the trial court committed fundamental error by instructing on a lesser included offense that was not, in fact, a lesser included offense of the crime charged. Id. The charge conference was not transcribed, so the court ordered a reconstruction. Id. at 958. Defense counsel neither admitted nor denied requesting the lesser included offense but stated that upon the court's announcement that the charge would be read, neither counsel objected to or commented on the charge. Id.

Ray found the “failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial.” Id. at 960. Further, as noted above, Ray found “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’ ” Id. (quoting Sullivan v. State, 303 So.2d 632, 635 (Fla.1974)). Therefore, the court held, “it is not fundamental error ... [if] defense counsel requested the improper charge or relied on that charge as...