State v. Smith

• Decision Date: 20 December 1990
• Docket Number: No. 73822,73822
• Citation: 573 So.2d 306
• Parties: 15 Fla. L. Weekly S659 STATE of Florida, Petitioner/Cross-Respondent, v. Roland SMITH, Respondent/Cross-Petitioner.
• Court: Florida Supreme Court

Page 306

573 So.2d 306

15 Fla. L. Weekly S659

STATE of Florida, Petitioner/Cross-Respondent, v. Roland SMITH, Respondent/Cross-Petitioner.

No. 73822.

Supreme Court of Florida.

Dec. 20, 1990.

Rehearing Denied Feb. 12, 1991.

Robert A. Butterworth, Atty. Gen. and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for petitioner/cross-respondent.

James Marion Moorman, Public Defender and Deborah K. Brueckheimer, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for respondent/cross-petitioner.

PER CURIAM.

We review Smith v. State, 539 So.2d 514 (Fla. 2d DCA 1989), in which the Second District Court of Appeal reversed Smith's conviction and certified two questions as being of great public importance. ¹ For the reasons stated below, we approve the district court's decision ordering a new trial, but we quash the opinion and remand for proceedings consistent with this opinion.

Smith was charged with first-degree murder and presented at trial some evidence of excusable homicide. Evidence showed that in March 1986, Roland Smith, the defendant, and Josette Estes, had just begun living together in Pasco County, Florida. Estes was Smith's seventeen-year-old stepdaughter from a prior marriage, with whom he was having a sexual relationship. Smith was a friend of the victim, John Cascio. On March 6, 1986, Cascio and Estes left Smith's residence to make a telephone call, whereupon Cascio made sexual advances to Estes. Estes rejected the advances and became upset. When they returned, Smith asked why Estes appeared to be so upset. Estes described the incident to Smith. Smith asked Cascio to leave, but Cascio refused. Smith grabbed Cascio and picked up a gun that had been sitting out on a table all night. Estes testified that Cascio said to Smith, "Why don't you put the gun where your mouth is?" Cascio then motioned toward Smith's face and moved toward him. Smith tried to keep Cascio away but Cascio persisted. Smith testified that he yelled for Cascio to stop, and when he did not, Smith fired. Estes testified that Cascio nudged Smith and the gun went off. Cascio died of a gunshot wound to his head.

In support of his claim of self-defense, Smith testified that when he shot Cascio At the close of the trial, the judge gave the standard jury instructions on homicide, which included the short-form definition of excusable homicide. The trial judge did not give the long-form instruction on excusable homicide. Defense counsel did not object to the short-form instruction on excusable homicide. He neither requested a long-form instruction on excusable homicide nor objected to the failure to give it. Smith was convicted of second-degree murder. The district court reversed and remanded the case for a new trial.

he knew that Cascio had an extensive history of violent crime, that Cascio was a reputed "Mafia" figure, that Cascio had attacked him previously, and that Cascio usually carried a gun. Smith said he picked up his own gun because he feared that Cascio was carrying a gun at the time. Other testimony showed that Cascio had a reputation in the community for violence, for carrying a gun, and for being associated with the "Mafia."

In reviewing Smith's convictions, the Second District Court of Appeal first posed the following certified question:

WAS THE FAILURE TO GIVE THE LONG FORM INSTRUCTION ON THE DEFENSE OF EXCUSABLE HOMICIDE FUNDAMENTAL ERROR WHEN THE SHORT FORM EXCUSABLE HOMICIDE INSTRUCTION HAD BEEN GIVEN, WHEN THE DEFENDANT HAD NEITHER REQUESTED THE LONG FORM INSTRUCTION NOR OBJECTED TO THE GIVING OF THE SHORT FORM INSTRUCTION, AND WHEN THAT DEFENSE WAS SUPPORTED BY THE EVIDENCE?

Smith, 539 So.2d at 517-18. The court reasoned that this question should be answered in the negative. The second certified question read:

WHEN A DEFENDANT WAS CONVICTED OF SECOND-DEGREE MURDER, WAS THERE FUNDAMENTAL ERROR WHEN THE TRIAL COURT HAD FOLLOWED THE STANDARD JURY INSTRUCTIONS AND GIVEN THE SHORT FORM INSTRUCTION ON EXCUSABLE HOMICIDE AT THE OUTSET OF THE HOMICIDE INSTRUCTIONS AND HAD GIVEN NO FURTHER INSTRUCTION ON EXCUSABLE HOMICIDE IN CONNECTION WITH ITS INSTRUCTION ON MANSLAUGHTER?

Id. at 520. Because the court below believed that this question should be answered in the affirmative, it reversed Smith's conviction and remanded for a new trial. The state petitioned this Court to answer the certified questions. Smith filed a cross-petition alleging a series of additional errors.

Before addressing the certified questions, we note that the Florida Standard Jury Instructions in Criminal Cases includes two definitions of excusable homicide. The short form is part of the Introduction to Homicide, which is to be read in all homicide cases. This instruction reads as follows:

EXCUSABLE HOMICIDE

F.S. 782.03

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.

I now instruct you on the circumstances that must be proved before (defendant) may be found guilty of (crime charged) or any lesser included crime.

Fla.Std.Jury Instr. (Crim.) at 61. Following the Introduction to Homicide, there is a note in the standard jury instructions that directs the judge to the long-form instruction on excusable homicide if that defense is an issue. The long-form standard jury instruction reads as follows:

EXCUSABLE HOMICIDE

F.S. 782.03

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:

Give 1, 2 or 3 as applicable

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.

Definition

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.

Fla.Std.Jury Instr. (Crim.) at 76.

The issue before the district court of appeal with respect to the first question was whether it was fundamental error not to give the long-form instruction on excusable homicide when there was evidence to support that defense. In this respect, we agree with the district court when it said that to hold fundamental error occurred because of the failure to give the long-form instruction on excusable homicide when it was not requested "would place an unrealistically severe burden upon trial judges concerning a matter which should properly be within the province and responsibility of defense counsel as a matter of trial tactics and strategy." Smith, 539 So.2d at 517.

In normal cases the failure to request an instruction precludes a later contention that such instruction should have been given. Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). Fundamental error occurs in cases "where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Ray v. State, 403 So.2d 956, 960 (Fla.1981). Here, the trial judge gave the short-form instruction on excusable homicide. The failure to give the long-form instruction when it was not requested did not constitute fundamental error. Hence, we answer the first certified question in the negative.

The second certified question deals with the definition of excusable homicide as it relates to the definition of manslaughter. Because manslaughter is in the nature of a residual offense, a complete definition of manslaughter requires an explanation that justifiable homicide and excusable homicide are excluded from the crime. Hedges v. State, 172 So.2d 824 (Fla.1965). In Rojas v. State, 552 So.2d 914 (Fla.1989), this Court held that a conviction of second-degree murder, when the trial court initially instructed on manslaughter without making any reference whatsoever to justifiable and excusable homicide, must be reversed even though the defendant's lawyer did not object to the instruction. We rejected the contention that the jury's affirmative finding that the killing was done with "a depraved mind regardless of human life" rendered harmless the erroneous definition of manslaughter. We also stated:

The fact that the judge defined excusable and justifiable homicide in the beginning of the homicide instructions did not suffice to make the manslaughter instruction legally adequate. Recognizing the need to refer to justifiable and excusable homicide in the context of defining manslaughter, this Court in 1985 approved a recommendation of the Standard Jury Instructions Committee to add after the definition of the elements of manslaughter the following language:

However, the defendant cannot be guilty of manslaughter if the killing is either justifiable or excusable homicide as I have previously explained those terms.2

Id. at 916 & 916 n. 2.

In the instant case, the trial judge gave the current standard jury instruction on manslaughter in its entirety, including the reference to his previous definition of justifiable and excusable homicide. The instruction on manslaughter was not erroneous in any respect. Therefore, we also answer the second question in the negative.

While not resting its decision on the point, the...