Tillman v. State
| Decision Date | 06 June 1985 |
| Docket Number | No. 64653,64653 |
| Parties | 10 Fla. L. Weekly 305 Wilson TILLMAN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Michael E. Allen, Public Defender and Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
This case is before the Court on petition for review of a decision of the District Court of Appeal, First District, based on the district court's certification that its decision passed upon a question of great public importance. Tillman v. State, 440 So.2d 666 (Fla. 1st DCA 1983). We have jurisdiction to review the decision. Art. V, § 3(b)(4), Fla. Const. The certified question is whether there is such an offense as attempted manslaughter in the law of Florida.
With regard to the certified question, we find that it is controlled by our decision in Taylor v. State, 444 So.2d 931 (Fla.1983), which was rendered subsequent to the district court decision in the instant case. In Taylor this Court held that there is a crime of attempted manslaughter but that a conviction of such offense requires proof of a certain degree of criminal intent on the part of the defendant; mere culpable negligence is not sufficient to establish such criminal intent. Id. at 934.
Petitioner Wilson Tillman was tried on a three-count indictment charging: (1) the first-degree murder of Brenda Green; (2) the attempted first-degree murder of Linda Lewis; and (3) carrying a concealed firearm. The evidence showed that petitioner was the boyfriend of Brenda Green and that she shared her home with him. On July 4, 1982, there was a cookout held in the yard at the apartment complex where they lived. Numerous relatives and friends attended the cookout. Later that evening, a smaller number of the group continued to visit in the apartment occupied by Brenda Green, her daughter, her brother, and the petitioner. According to the testimony of Linda Lewis, cousin of Brenda Green and herself the victim of the offense charged as attempted murder in count two, petitioner and Brenda Green got into an argument. After she indicated to him that if he was dissatisfied he could simply move out of her home, he put his hand in his pocket. After she taunted him to use "that sucker" rather than just "clicking" it, he drew his gun and fired several times, killing Brenda Green and wounding Linda Lewis in the arm.
During the cross-examination of state's witness Linda Lewis at trial, the defense attempted to ask the witness whether the deceased, Brenda Green, had told Linda Lewis about an incident in which Brenda Green struck Wilson Tillman with a heavy drinking mug, causing a serious injury. The state objected to the questions on the ground that the answers would be hearsay. The defense proffered the testimony out of the hearing of the jury and argued that the testimony about the incident was relevant to the issue of self-defense in that it would tend to show that the defendant had a reasonable fear of the deceased. The trial judge sustained the objection and disallowed the line of questioning.
The jury returned verdicts finding petitioner guilty of second-degree murder on count one, guilty of attempted manslaughter on count two, and guilty as charged of carrying a concealed firearm on count three. The defense argued that there could be no adjudication of guilt on the verdict for attempted manslaughter, contending that there was no such offense under Florida law. The court disagreed and entered judgment on the three verdicts.
On appeal, petitioner Tillman raised both the issue of the existence of the crime of attempted manslaughter and the correctness of the trial court's ruling excluding defense counsel's attempted elicitation of testimony from Linda Lewis on the ground of hearsay. The district court of appeal affirmed the judgments of conviction on all three counts, certified the question of the existence of the crime of attempted manslaughter, but did not discuss the hearsay question in its opinion. Tillman v. State, 440 So.2d at 666. The petition for review in this Court followed.
In his brief before this Court, petitioner acknowledges that our decision in Taylor has answered the certified question. Accordingly, he argues not that there is no such crime as attempted manslaughter but that under the limitations placed on the definition of the offense by this Court, he should get a new trial on the charge because of doubts about the evidence and the jury's interpretation thereof. Petitioner also argues that the disallowed questions defense counsel attempted to ask on cross-examination of Linda Lewis at trial should have been allowed because the testimony sought came within an exception to the hearsay rule and was relevant to the issue of self-defense.
The state makes a preliminary argument that this review proceeding should be dismissed. With regard to the attempted manslaughter conviction, the state grounds its position on the fact that the certified question has been resolved by Taylor. With regard to the hearsay question, the state argues for dismissal on the ground that the district court of appeal did not discuss the issue in its opinion.
The district court's certification that its decision passed upon a question of great public importance gives this Court jurisdiction, in its discretion, to review the district court's "decision." Art. V, § 3(b)(4), Fla. Const. Once the case has been accepted for review here, this Court may review any issue arising in the case that has been properly preserved and properly presented. See, e.g., Trushin v. State, 425 So.2d 1126 (Fla.1983).
Petitioner argues that he should be given a new trial on the charge of attempted manslaughter. He...
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