Smith v. State, 86-3159

• Decision Date: 24 February 1989
• Docket Number: No. 86-3159,86-3159
• Citation: 14 Fla. L. Weekly 541,539 So.2d 514
• Parties: 14 Fla. L. Weekly 541 Roland SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 514

539 So.2d 514

14 Fla. L. Weekly 541

Roland SMITH, Appellant, v. STATE of Florida, Appellee.

No. 86-3159.

District Court of Appeal of Florida Second District.

Feb. 24, 1989.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

Defendant appeals from his conviction for second-degree murder. We agree with one of his contentions on appeal and reverse and remand for a new trial.

We discuss his following contentions: (1) those concerning various aspects of the testimony of the only surviving witness to the crime other than defendant; (2) that concerning questions to and answers from prosecution witnesses about what defendant did not say upon his arrest; (3) that As to contention (1), for the following reasons we do not conclude that the trial court erred in declaring the witness a court witness and in admitting into evidence various prior statements of that witness:

concerning the absence of a long form standard instruction to the jury on excusable homicide; and (4) that concerning the absence of a standard instruction to the jury on culpable negligence. For the reasons explained below, we reverse with regard to contention (3).

(a) There was no error in declaring the witness a court witness. See Jackson v. State, 498 So.2d 406, 409 (Fla.1986); Brumbley v. State, 453 So.2d 381, 384 (Fla.1984).

(b) There was no error in the failure of the trial court to instruct the jury that certain of the prior statements of the witness were to be used by the state for impeachment. Defendant's attorney rejected the opportunity to have the jury so instructed.

(c) There was no error in admitting as substantive evidence other statements of that witness which had been sworn statements to the state attorney's office. See § 90.801(2)(a), Fla.Stat. (1987); Diamond v. State, 436 So.2d 364 (Fla. 3d DCA 1983). See also Delgado-Santos v. State, 471 So.2d 74, 78 n. 6 (Fla. 3d DCA 1985), aff'd, 497 So.2d 1199 (Fla.1986).

(d) Nor was there error in the failure to exclude portions of those statements pertaining to defendant's prior drug use. Defendant's attorney made no motion to exclude those portions and failed to take advantage of an opportunity to participate in the framing of an instruction for the jury to not consider those portions. Also, there was an instruction by the trial court to the jury that those portions should not be considered as evidence of the crime with which defendant was charged.

As to contention (2), defendant contends that the state's questions during trial to, and answers from, three deputies who had been present at defendant's arrest were impermissible comments upon the exercise of defendant's constitutional right to remain silent. The questions and answers concerned the fact that defendant had not told the deputies at the time of his arrest that he was frightened of the victim, although defendant did testify about this at trial in his defense. However, we conclude that these questions and answers were not comments upon the exercise of defendant's right to remain silent. Defendant did not remain silent at his arrest; he made several spontaneous, exculpatory statements to the deputies about why he had shot the victim. The state's questions were aimed at pointing out the inconsistencies in defendant's exculpatory statements. No error occurred. See Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980); Watson v. State, 504 So.2d 1267 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1043 (Fla.1987). In contrast, Nixon v. State, 536 So.2d 391 (Fla. 4th DCA 1989) found reversible error in the state's questions to a defendant about whether he had given the same explanation of his behavior to the arresting officers as he gave at trial. The Nixon opinion does not specifically show whether the defendant in that case gave any explanation at the time of his arrest but indicates that he did not because it refers to his "initial silence." Also, the two cases cited in Nixon in support of the conclusion that there was an improper comment upon the exercise of defendant's right to silence were both cases in which defendant had remained silent at arrest. As explained in Anderson and Watson, that type of situation materially differs from the situation occurring here.

As to contention (3), defendant contends in effect that notwithstanding defendant's failure to request the long form standard jury instruction on excusable homicide or to object to the giving of only the short form instruction thereon, there was reversible, fundamental error from the trial court having given only that short form instruction.

The Florida Standard Jury Instructions in Criminal Cases include two definitions of excusable homicide. The so-called short form instruction is a part of the Introduction to Homicide jury instructions to be

read in all homicide cases. That instruction reads as follows:

EXCUSABLE HOMICIDE

The killing of a human being is excusable, and therefore lawful, when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

The long form, more explicit excusable homicide instruction is a part of the standard jury instructions concerning various different aspects of homicide cases. That instruction reads as follows:

EXCUSABLE HOMICIDE

An issue in this case is whether the killing of (victim) was excusable.

The killing of a human being is excusable if committed by accident and misfortune.

In order to find the killing was committed by accident and misfortune, you must find the defendant was:

1. a. doing a lawful act by lawful means and with usual care and

b. acting without any unlawful intent.

2. in the heat of passion brought on by a sudden provocation sufficient to produce in the mind of an ordinary person the highest degree of anger, rage or resentment that is so intense as to overcome the use of ordinary judgment, thereby rendering a normal person incapable of reflection.

3. engaged in sudden combat. However, if a dangerous weapon was used in the combat or the killing was done in a cruel or unusual manner, the killing is not excusable.

A "dangerous weapon" is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

As this court indicated in Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988) this issue in a criminal case of whether or not there was fundamental error from the failure to give a proper jury instruction--in this case and in Tobey, an instruction on excusable homicide--can arise in different contexts, i.e., under different approaches as to why the instruction should have been given. For present purposes two contexts of that kind can be described as follows: (a) when a defense--in this case, excusable homicide--is presented on behalf of defendant by the offering of evidence in support thereof, and (b) when there is an alleged failure by the trial court to instruct accurately on the definition of an offense--in this case, on excusable homicide as a part of the definition of the lesser included offense of manslaughter.

We will decide this issue in each of those contexts. But first we note that this court has concluded that the short form instruction "may very well have been inherently misleading, because it appear[s] to inaccurately suggest that a killing can never be excusable if committed with a dangerous weapon"; the reason is that the jury could incorrectly conclude that that instruction's phrase, "without any dangerous weapon being used," qualifies the entire instruction. Blitch v. State, 427 So.2d 785, 787 (Fla. 2d DCA 1983). See also Kingery v. State, 523 So.2d 1199, 1205 (Fla. 1st DCA 1988) ("We agree that the instruction is misleading."). The correct conclusion is that the use of a dangerous weapon negates only the third alternative method (sudden combat) of excusable homicide. Kingery; Blitch.

As to context (a), we hold that there was in this case no fundamental error from the failure to give the long form excusable homicide instruction even though defendant had admittedly used a dangerous weapon thus calling into question the accuracy of the short form instruction as referred to above. There having been no objection to the giving of the short form excusable homicide instruction and no request for the long form instruction, any error in that regard was not preserved for appeal and, as we will further explain, was in our view not fundamental.

There was evidence to support the defense of excusable homicide. Tobey states, "The failure to give an instruction on a defense encompassed within the evidence is fundamental error and reviewable notwithstanding the absence of a requested instruction or an objection." 533 So.2d at 1200. However, that statement, derived from Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985), appears to have been clearly dicta. Tobey involved the defenses of excusable and justifiable homicide, and the opinion in that case points out that "correct and thorough" and "complete" excusable and justifiable homicide instructions had been given. Id. ¹ To the extent that that dicta would seem to apply to the case at hand by referring to a failure to give the long form excusable homicide instruction as being fundamental error when, as here, defendant did not request that instruction, that defense was encompassed within the evidence, and the arguably inaccurate short form excusable homicide instruction had been given, we would not agree. In our view such a rule of fundamental error was not intended by Tobey and Carter as a general rule...