Taylor v. State, 80-1111

• Decision Date: 01 July 1981
• Docket Number: No. 80-1111,80-1111
• Parties: Thomas J. TAYLOR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 812

401 So.2d 812

Thomas J. TAYLOR, Appellant, v. STATE of Florida, Appellee.

No. 80-1111.

District Court of Appeal of Florida, Fifth District.

July 1, 1981.

Rehearing Denied Aug 4, 1981.

Kirk N. Kirkconnell of Muller & Kirkconnell, P. A., Winter Park, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

Appellant was charged with the first degree murders of Teddy Pawalta and John Walwyn and the attempted first degree murder of Harry Clayton. A jury found him guilty of second degree murder of Teddy Pawalta, manslaughter of John Walwyn and attempted manslaughter of Harry Clayton. From the judgments of conviction and sentences thereon this appeal follows. We affirm.

The charges arose out of a shooting that occurred on the evening of October 27, 1979, in a bar owned by appellant. The evidence reflects that after an altercation, appellant fired three shots from a shotgun. The first shot hit Teddy Pawalta in the chest; the second hit John Walwyn in the back and the third hit Harry Clayton in the back. The indictment charged appellant with committing the murders on the date of the shooting and the information charging appellant with the attempted murder of Clayton specified the date, but not the year. Before trial, the court granted appellant's motion for a statement of particulars of the date, time and place of the events charged in the indictment and the State responded to the motion. No request was made for a statement of particulars as to the crime charged in the information (where the year had been omitted), nor did appellant move to dismiss the information.

The statement of particulars filed by the State recited that the offenses charged in the indictment occurred "from 0001 hours on the 24th day of October, 1979 to 0001 hours on the 28th day of October, 1979." From the testimony of the expert medical witness who performed autopsies on the bodies, it was only established that the victims died sometime before 9:30 A.M. on October 28, 1979, the point at which the autopsies were performed. No other evidence was presented by the State as to the time of death. Appellant argues on appeal, as he did below, that there was a total failure of proof that any homicides occurred within the time set out in the indictment, as narrowed by the statement of particulars. The trial court granted the State's motion to amend the statement of particulars to extend the time by ten hours, so that the amended statement of particulars would include the time of the autopsies, the only time which the evidence conclusively established as the point of death. Appellant's first point on appeal questions the propriety of the trial court allowing the State to amend its statement of particulars in this fashion after the State had submitted its evidence and had rested.

Appellant relies heavily on that portion of the opinion in State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied Beamon v. Florida, 419 U.S. 1124, 42 L.Ed.2d 824, 95 S.Ct. 809 (1975), wherein the court said that when a statement of particulars gives an exact date upon which the offense occurs

the effect of such a specification of date in a bill of particulars is to narrow the indictment or information as to the time within which the act or acts allegedly constituting the offense may be proved....

Id. at 379.

Beamon has been qualified, however, in HOFFMAN V. STATE, 397 SO.2D 288 (FLA.1981)¹, wherein the Supreme Court pointed out that where time is material, it must be proved as alleged. ² On the other hand

(t)here may be some variance between the date alleged in the information as being the date the offense charged was committed and that proven on the trial, which variance is immaterial if the proof shows that the crime was committed before the filing of the information and that prosecution therefor was begun within the two year period, except in those rare cases ... where the exact time enters into the nature or legal existence of the offense.

Id., 1981 FLW at 262.

The court reemphasized the principle that the violation of a rule of procedure does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. ³ From a review of the other cases cited by the court in Hoffman, we are convinced that the propriety of the allowance of an amendment to a statement of particulars depends on a finding of absence of prejudice or harm to the defendant even when, as here, the amendment is proffered after the State has completed its presentation of its evidence. ⁴

In Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1124 (1979), cited with approval in Hoffman, the information for second degree murder charged that the defendant had committed the offense on the day of the wounding, whereas the proof showed that the victim had lingered and had not died until five weeks later. An amendment to the statement of particulars to correct the date was allowed during trial and approved by the district court on the finding that defendant was not misled. ⁵ These facts are analogous to the instant case where the statement of particulars covered the time of the shooting, although not necessarily the time of death. In the instant case, the trial court responded to the State's request to amend by conducting an extensive inquiry into the matter, concluding that the determinative question was whether prejudice to the defendant existed. Finding none, the court allowed the amendment.

We hold that the court was correct in that determination. There was absolutely no doubt as to the offenses for which defendant was being tried. Further, there was no indication that he was prejudiced or misled by the fact that the indictment used the date of the shooting, whereas the proof of death was a few hours later. On the contrary, it affirmatively appears that there was no prejudice.

For these same reasons, appellant's complaint of error in allowing the State to amend the information to supply the year "1979" is also without merit. Appellant's counsel stated that he was aware of the omission but did not feel obligated to draw the State's information. This was a technical omission which neither misled nor prejudiced defendant in the slightest, and the late attack on it was clearly the type of ambush denounced in Hoffman.

More provocative is appellant's next contention that the trial court erred in instructing the jury that one of the lesser included offenses of attempted first degree murder of Harry Clayton was "attempted manslaughter." ⁶ No objection was made by appellant to the giving of the instruction, and in fact, appellant's counsel responded in the affirmative when the trial judge posed the question of whether "there is a crime of attempted manslaughter."

Appellant now argues on appeal that he could not be convicted of attempted manslaughter even in the absence of an objection to the instruction, because there is no such crime in the State of Florida. Appellant's argument, in essence, is that since one of the elements of manslaughter is culpable negligence, it is a logical absurdity to say that one can have the intent to commit an involuntary (or negligent) act.

Manslaughter is the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification. § 782.07, Fla.Stat. (1975). We have repeatedly said that the culpable conduct necessary to sustain proof of manslaughter under section 782.07 must be of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. Filmon v. State, 336 So.2d 586 (Fla.1976); Miller v. State, 75 So.2d 312 (Fla.1954); Preston v. State, 56 So.2d 543 (Fla.1952).

McCreary v. State, 371 So.2d 1024, 1026 (Fla.1979). With this definition in mind, the same argument was addressed and rejected in Charlton v. Wainwright, 588 F.2d 162 (5th Cir. 1979): ⁷

Florida courts have long recognized the crimes of assault with intent to commit manslaughter and accessory before the fact to manslaughter. Both of these crimes, assault with intent and accessory before the fact, involve specific intent. The Florida Supreme Court has stated that assault with intent to commit manslaughter is a crime where the mode of assault constitutes "culpable negligence."

In addition to recognize that a person can have the specific intent to commit manslaughter, Florida courts have implicitly recognized the crime of attempted manslaughter. Devoe v. Tucker, 113 Fla. 805, 152 So. 624, 626 (1934).

Florida courts have given a special definition to "culpable negligence." Instead of construing it to emphasize involuntary and unintentional behavior, they have construed it to emphasize culpability which rests on intentional, or quasi-intentional behavior.

In sum, Florida has defined culpable negligence to involve a state of mind so wanton or reckless that the behavior it produces may be regarded as intentional. As a result, Florida manslaughter convictions based on culpable negligence, like those based on act or procurement, demand proof of a level of intent greater than that of ordinary negligence. Since each of these three ways of committing manslaughter...