Pollock v. State

• Decision Date: 17 June 2011
• Docket Number: No. 2D10–1027.,2D10–1027.
• Citation: 64 So.3d 695
• Parties: Robert J. POLLOCK, Petitioner,v.STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

64 So.3d 695

Robert J. POLLOCK, Petitioner,

v.STATE of Florida, Respondent.

No. 2D10–1027.

District Court of Appeal of Florida, Second District.

April 8, 2011.Rehearing Denied June 17, 2011.

Robert J. Pollock, pro se.Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.CASANUEVA, Chief Judge.

Following a jury trial, Robert J. Pollock was convicted of second-degree murder by discharging a firearm resulting in the victim's death. In his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), Mr. Pollock contends that appellate counsel was ineffective for failing to argue that the trial court fundamentally erred by giving the then standard instruction for manslaughter by act.¹ We agree and reverse Mr. Pollock's second-degree murder conviction, vacate the sentence, and remand for a new trial.

The offense of second-degree murder is only one step removed from the necessarily-lesser included offense of manslaughter. State v. Montgomery, 39 So.3d 252, 259 (Fla.2010). Manslaughter may be committed in one of three ways: by act, by procurement, or by culpable negligence. Id. at 256; § 782.07(1), Fla. Stat. (2005). In the present case, the trial court instructed the jury on manslaughter by act and manslaughter by culpable negligence. This court affirmed Mr. Pollock's judgment and sentence in Pollock v. State, 22 So.3d 83 (Fla. 2d DCA 2009) (table decision). Almost two months prior to the filing of the initial brief in Pollock, the First District in Montgomery v. State, ––– So.3d –––– (Fla. 1st DCA 2009), 2009 WL 350624, approved, 39 So.3d 252 (Fla.2010), reversed Mr. Montgomery's conviction for second-degree murder and remanded for a new trial, holding that the standard jury instruction improperly imposed an additional element of intent to kill on the offense of manslaughter by act and was therefore fundamentally erroneous. No case had previously so held.

As this court stated in Del Valle v. State, 52 So.3d 16, 18 (Fla. 2d DCA):

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show counsel's deficient performance and that “ ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Downs v. Moore, 801 So.2d 906, 909–10 (Fla.2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla.1985)).

The facts in Del Valle indicate that the First District's decision in Montgomery issued over three months prior to the filing of Mr. Del Valle's initial brief in the direct appeal. Id. at 17. This court concluded that Mr. Del Valle's appellate counsel's performance was deficient when he failed to argue that the manslaughter by act instruction was fundamentally erroneous based on the decision of the First District in Montgomery. Id. at 18. Because Montgomery issued almost two months prior to the filing of the initial brief in the direct appeal in the present case, we similarly conclude that Mr. Pollock's appellate counsel's performance was deficient.

In Del Valle, we noted the supreme court granted review of the First District's Montgomery decision prior to the filing of the initial brief in Mr. Del Valle's direct appeal.² Id. The supreme court, in Montgomery, 39 So.3d at 257–59, held that where Mr. Montgomery was convicted of second-degree murder, the trial court's giving of the then standard jury instruction on manslaughter by act, a necessarily lesser—included offense of second-degree murder, constituted fundamental error. The Del Valle court therefore concluded that Mr. Del Valle was prejudiced by his appellate counsel's deficient performance because had counsel argued that the manslaughter by act instruction was fundamentally erroneous, this court would have been compelled to certify conflict with the First District's decision in Montgomery, and he would have ultimately been afforded relief as part of the direct appeal process. 52 So.3d at 18–19.

In Del Valle, we noted that we must apply the law existing at the time of the appeal to determine whether appellate counsel's performance was deficient but that we must apply the current law to determine whether the petitioner is entitled to relief. Id. at 18. In the present case, having determined that the performance of Mr. Pollock's appellate counsel was deficient, we must now apply the law as it currently stands to determine his entitlement to relief. Here, unlike in Del Valle, the trial court instructed the jury on manslaughter by culpable negligence as well as manslaughter by act.

Subsequent to the supreme court's decision in Montgomery, this court issued Barros–Dias v. State, 41 So.3d 370, 372 (Fla. 2d DCA 2010), in which we held that the manslaughter by act instruction was not fundamentally erroneous where the jury was also instructed on manslaughter by culpable negligence because the jury was not directed by the erroneous manslaughter by act instruction to find Mr. Barros–Dias guilty of the greater offense of second-degree murder. This court in Haygood v. State, 54 So.3d 1035, 1037 (Fla. 2d DCA 2011), followed the precedent established in Barros–Dias and affirmed Mr. Haygood's second-degree murder conviction because the trial court gave the jury both the erroneous manslaughter by act instruction and the culpable negligence manslaughter instruction. However, the Haygood court noted that “[a]rguably, the evidence presented at trial is inconsistent with a theory of manslaughter by culpable negligence.” Id. at 271. Because of this, the court certified a question regarding whether the error in the manslaughter by act instruction is fundamental when the jury is also instructed on a culpable negligence theory of manslaughter even though the evidence does not support that theory. Id.

In the present case, the victim, Nicki Hendrix, was the former girlfriend of Mr. Pollock. At the time of her disappearance, she was dating Dorsie France and was living with Mr. Pollock and Mr. France in Mr. France's house. Her body was subsequently found buried under a newly poured concrete slab in the backyard of Mr. France's house. Ms. Hendrix died from a gunshot wound to the head. She had no other injuries. A spent bullet was found under the bathtub in the bathroom of Mr. France's house. Subsequent testing revealed the spent bullet and the bullet recovered from the victim were fired from the same gun. There was testimony from the State's witnesses that Mr. France was aware that the victim was cheating on him and stealing his money and drugs. The strongest evidence that it was Mr. Pollock who...