Stockton v. State
| Decision Date | 30 June 1988 |
| Docket Number | No. BH-344,BH-344 |
| Parties | 15 Fla. L. Weekly D1532 Charles L. STOCKTON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
Appellant seeks review of a judgment of conviction and sentence for the offense of second degree murder with a firearm. We find that appellant has presented no point of reversible error which would affect his conviction. However, we find that the court based its departure from the recommended sentence pursuant to the Fla.R.Crim.P. 3.701 sentencing guidelines upon impermissible considerations. We therefore affirm the judgment of conviction but vacate appellant's sentence.
Appellant was tried upon the charge of second degree murder with a firearm, and the evidence established that the victim was killed during an altercation involving numerous individuals. Witnesses testified that appellant shot the victim after being heard to say, "I'll kill one of you." Other witnesses presented contradictory testimony. Appellant admitted discharging a firearm, but stated that he merely shot his gun into the air. Appellant also recanted an earlier admission that he had shot the victim.
At the conclusion of the evidence the court indicated to counsel that a time limitation would be imposed for closing argument. Defense counsel requested an hour, explaining, "I'm not very well prepared." The court limited closing argument to 30 minutes per side, and overruled defense counsel's objection.
While the parties should be afforded reasonable time for closing argument, the amount of time necessary is a matter within the discretion of the trial court and is dependent upon the facts and circumstances of each particular case. E.g., compare Pittman v. State, 440 So.2d 657 (Fla. 1st DCA 1983), with McDuffee v. State, 55 Fla. 125, 46 So. 721 (1908). In the present case conflicting testimony was presented during a two day trial, but the issues to be argued were not such as to render a 30 minute time limitation unreasonable. The limitation of closing argument was thus a matter within the proper exercise of the court's discretion.
The court utilized the standard jury instruction on manslaughter and advised the jurors that the offense could be established by culpable negligence including "consciously doing an act" known to be likely to cause death. Appellant requested special instructions listing certain intentional killings which might be manslaughter. Contrary to appellant's argument, we find that the instruction which the court utilized does not negate the possibility of manslaughter by an intentional act. We conclude that the requested instructions were unnecessary, and that in the circumstances of the present case the standard instruction was adequate.
After the jury commenced deliberations it requested a reinstruction on the distinction between second degree and third degree murder. The court advised counsel that it would reinstruct the jury on these offenses, and also on manslaughter. Defense counsel requested a reinstruction on justifiable and excusable homicide, but the court denied this request. The jury was then reinstructed as to second degree murder, third degree murder, and manslaughter.
Hedges v. State, 172 So.2d 824 (Fla.1965), indicates that in defining manslaughter it is proper to instruct on justifiable and excusable homicide in order to aid the jury's full understanding. But where a jury requests reinstruction the court may limit such reinstruction to the specific charges requested, as long as the repeated instruction is complete on those charges. See Henry v. State, 359 So.2d 864 (Fla.1978). Determining that a jury need not be instructed on justifiable and excusable homicide when reinstructed pursuant to a request to clarify the distinction between first and second degree murder, the Henry court noted that the jury's request made it apparent that it had already decided that the killing was unlawful. Likewise, in the present case the jury's request for reinstruction as to the distinction between second degree and third degree murder indicates that it had determined that the killing was neither justifiable nor excusable homicide. Counsel did not ask the court to forego its gratuitous manslaughter reinstruction, and in these circumstances the court's refusal to further instruct the jury on justifiable and excusable homicide does not constitute reversible error.
Appellant was sentenced to a term of imprisonment beyond that recommended by the Fla.R.Crim.P. 3.701 sentencing guidelines. In stating its reasons for departure from the guidelines the court expressed a conclusion that the recommended sentence "is insufficient for retribution, deterrence, rehabilitation and for the safety of the public." However, the court did not fully delineate a factual basis supporting this conclusion, and a mere personal disagreement with the sentencing guidelines does not justify a departure from the recommended sentence. Cf., Scurry v. State, 489 So.2d 25 (Fla.1986). It is not clear that the court, apart from a personal disagreement with the guidelines recommendation, would have imposed the same sentence based on appellant's lengthy unscored juvenile record and admitted ownership of a firearm contrary to probation conditions shown by the record, and we therefore must vacate appellant's sentence.
The judgment of conviction appealed is affirmed; the sentence appealed is vacated and the cause remanded for resentencing.
ZEHMER, J., dissents with written opinion.
I would reverse the conviction and remand for a new trial because two errors argued by appellant Stockton deprived him of a fair trial. First, the trial court reversibly erred in limiting defense counsel's argument to thirty minutes. Second, the trial court reversibly erred in giving the jury part but not all of the required instruction on manslaughter when, pursuant to a request from the jury, the court undertook to explain the differences between second degree murder, third degree murder and manslaughter. Finally, if the judgment of conviction is not reversed, the reasons for departure from the guidelines sentence are invalid, requiring remand for resentencing in accordance with the guidelines rule.
The trial court abused its discretion in limiting counsel's final argument to thirty minutes. This was not a simple case involving two or three witnesses with little or no conflict in the testimony. On the contrary, after the voir dire and selection of the jury, the presentation of fifteen witnesses consumed two days during which testimony stretched into the evening hours. This testimony, spread over more than 550 pages of transcript, is rife with conflicting versions of what happened on the occasion of the alleged offense. The entire trial transcript is 938 pages long. For a better understanding of the trial proceedings, I quote in part the summary of the testimony in appellant's brief (omitting references to the record), which the state's answer brief does not challenge as to accuracy.
The evidence established that Patrick Statham was killed in the aftermath of a brawl which broke out outside the Joe James Recreation Center, following a party in honor of (but not limited to) the Jacksonville Lee High School football team. The fight was precipitated by an argument which arose over one car blocking another car. At one point in the altercation, appellant (a non-student) was either shoved or hit by Milton Gordon, a Lee High linebacker. According to several state witnesses, appellant went back to his car, got a gun, pointed it in the direction of Milton Gordon and Patrick Statham (who were, or may have been, in the process of beating up a boy on the ground), and fired, striking Statham. According to appellant and one defense witness, appellant was not, and could not have been, the person who shot Patrick Statham, because of the positioning of the various participants; if appellant had fired toward Statham he would have hit one of his own friends. Another defense witness testified that he saw Raymond Bell pointing a gun at Statham.
Four state witnesses, Dianne Strawbridge, Clarence Frazier, Alonzo Davis, and Milton Gordon claimed that appellant fired the fatal shot. A fifth state witness, Arthur Mitchell, saw appellant pointing the gun, but didn't see him shoot it. Davis (who said he was as close to appellant at the time of the shooting as the distance from the witness stand to the jury box) claimed that immediately before the shooting appellant said, "I'll kill one of you punks" and then, after the shooting, said "I told you I'd kill one of you punks." Davis testified that anyone standing as close as he was, and not even necessarily that close, would have heard these statements--"I mean when he said it, he made it clear." Milton Gordon said he heard appellant say, "I'll kill one of you punks"; Clarence Frazier said he said, "Nigger, I'll kill you"; and Arthur Mitchell (who said he was about six feet away from appellant, the distance from the witness stand to the beginning of the jury box) didn't hear him say anything at all.
Anywhere from four to eight to a dozen or more people were participants in the fight, which took place in the midst of a crowd of onlookers. There were apparently a number of people in the vicinity with guns, and there was shooting going on both before and immediately after the shooting of Patrick Statham. Among those with guns were Raymond Bell; Arthur Mitchell's brother; and a short, stocky individual named Charles, referred to as "New York," whom at least one state witness (Charles Frazier) may have confused with appellant. The number of gunshots heard at the time Patrick Statham was shot varied from...
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Stockton v. State
...Atty. Gen., and William A. Hatch, Asst. Atty. Gen., Tallahassee, for respondent. KOGAN, Justice. We have for review Stockton v. State, 529 So.2d 739 (Fla. 1st DCA 1988), based on certified conflict with Hedges v. State, 172 So.2d 824 (Fla.1965), and its progeny. We have jurisdiction. Art. V......