Palmore v. State

• Court: Florida District Court of Appeals
• Writing for the Court: HAWKES, J.
• Citation: Palmore v. State, 838 So.2d 1222 (Fla. App. 2003)
• Decision Date: 07 March 2003
• Docket Number: No. 1D01-2202.,1D01-2202.
• Parties: Albert Lee PALMORE, Appellant, v. STATE of Florida, Appellee.

838 So.2d 1222

Albert Lee PALMORE, Appellant, v. STATE of Florida, Appellee.

No. 1D01-2202.

District Court of Appeal of Florida, First District.

March 7, 2003.

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

Charlie Crist, Attorney General, and Karen Armstrong, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

HAWKES, J.

Appellant, Albert Lee Palmore, appeals his convictions for second degree murder and assault and his resulting life sentence as a prison releasee reoffender. As grounds, Appellant argues, in pertinent part, that the trial court erred by denying defense counsel's request for a special jury instruction on his theory of defense (i.e., that Appellant acted in the heat of passion). Finding the issue preserved for appeal, we agree with Appellant and reverse and remand for a new trial.

The giving or withholding of a requested jury instruction is reviewed under the abuse of discretion standard of review. See Pozo v. State, 682 So.2d 1124, 1126 (Fla. 1st DCA 1996), rev. denied, 691 So.2d 1081 (Fla.1997); see also Bozeman v. State, 714 So.2d 570 (Fla. 1st DCA 1998). However, the trial judge's discretion is fairly narrow because a criminal defendant is entitled, by law, to have the jury instructed on his theory of defense if there is any evidence to support his theory and the theory is recognized as valid under Florida law. See Mora v. State, 814 So.2d 322 (Fla.2002); see also Bozeman, 714 So.2d at 572 (noting that the defendant was entitled to jury instruction on his theory of defense even if the only evidence to support that theory was the defendant's testimony); Williams v. State, 588 So.2d 44, 45 (Fla. 1st DCA 1991) (noting that the defendant was entitled to have jury instructed on his theory of defense even if the evidence was weak or improbable).

I

In the case at bar, evidence was presented that Appellant and the victim, Addie Jones (Jones), lived together for some period of time in Jones' home, and were the natural parents of a four-year-old girl. Approximately one month prior to the murder, Appellant was court-ordered to have no contact with Jones and, for a brief period of time, lived with his sister. During the time Appellant lived with his sister, Jones began a relationship with Leverage Parrish (Parrish). Subsequently, Jones came to the home of Appellant's sister and asked him to get his clothes and "come on home." Jones assured Appellant her relationship with Parrish was over and she wished to raise their daughter together. At the time of the offense, Appellant was living in Jones' home at her request.

In the 10 hours preceding the murder, Appellant and Jones had contact several times. Appellant was aware that Jones was with Parrish, and a witness described Appellant's response as emotional and angry. Appellant cried at one point, and on two occasions, made statements to the effect that if he "couldn't have [his] family, no one could and [he] would kill them all." Upon returning home with Parrish between 1:30 a.m. and 2:00 a.m., Jones asked the Panama City Police to walk through her home to ascertain whether Appellant was present. A police officer testified Jones was frightened.

Shortly before 2:30 a.m., Appellant looked in the window and saw Jones and Parrish naked in the master bedroom. Appellant broke through the window, and Jones fled into the child's bedroom closet. A struggle ensued between Appellant and Parrish, or Parrish attempted to keep Appellant from going into the child's bedroom. Parrish subsequently fled by breaking through the child's bedroom window. When Jones ran out of the closet, Appellant stabbed her several times. Two of the wounds were fatal. In his statement to police, Appellant described his actions:

I just went to stabbing her. Went to stabbing her. Next thing I know I'm, I'm just, after I realized what I was doing, I dropped the knife and I reached down for her ...

Appellant didn't know how many times he stabbed Jones because "I did—couldn't really focus." Describing his thoughts when he saw Jones and Parrish naked together Appellant stated that "it just, it hurted me. It hurt me real bad. Cause I didn't think she would do that after she came back and got me. I was doin' pretty good at my sister's house."

II

At trial, Appellant's sole theory of defense was that, although he committed the act which resulted in Jones' death, it constituted heat of passion manslaughter, not second degree murder. Heat of passion negating the depraved mind element of second degree murder is a valid defense in Florida. See Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000). Appellant both requested and proffered a special jury instruction defining heat of passion in relation to second degree murder. Although not constituting excusable homicide, heat of passion under this theory of defense would reduce second degree murder to manslaughter if accepted by the jury. The State objected, arguing the applicable law regarding the defense was explained in the standard jury instructions. The trial court sustained the State's objection, and in so doing, erred.

A

The State did not contest, either at the trial court or on appeal, that heat of passion is a valid theory of defense to the depraved mind element of second degree murder or that evidence was offered at trial to support the defense. The State's only argument is that the standard jury instruction is sufficient. The State's argument is without merit. The standard jury instructions contain the term "heat of passion" only once. The instruction¹ is based on section 782.03, Florida Statutes, which defines excusable homicide, and the term "heat of passion" itself is not defined in the instruction.

In the case at bar, excusable homicide was not the defense theory. The jury was instructed that if they found that Appellant acted in the heat of passion, the killing would be "excusable" and therefore "lawful." The standard jury instructions do not contain language which would inform the jury that, pursuant to Florida law, if they believed Appellant's passion resulted in a state of mind "where `depravity which characterizes murder in the second degree (is) absent,'" they could return a verdict of manslaughter. Paz, 777 So.2d at 984 (quoting Disney v. State, 72 Fla. 492, 73 So. 598, 601 (1916)). Accordingly, the jury was not properly instructed on Appellant's theory of defense.

B

The State argues that, if the trial court erred by improperly instructing the jury, the error was harmless as defined by State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Harmless error analysis requires the State, as beneficiary of the error, to prove beyond a reasonable doubt that the error did not contribute to the verdict or, alternatively, that there is no reasonable possibility the error contributed to the conviction. Id at 1135. Here, the jury was instructed prior to the presentation of evidence that "it is the judge's responsibility to decide which laws apply to this case and to explain those laws to you." During the closing argument defense counsel told the jury:

It is not something to be condoned by any means, but I believe that it doesn't rise, in this case, to murder. It is more appropriately termed a crime of passion or a killing that occurs in the heat of passion and then by legal definition it is manslaughter and not murder.

A few minutes later the court instructed the jury as to excusable...