Walton v. State

Citation208 So.3d 60
Decision Date01 December 2016
Docket NumberNo. SC13–1652.,SC13–1652.
Parties Leronnie Lee WALTON, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

208 So.3d 60

Leronnie Lee WALTON, Petitioner,
v.
STATE of Florida, Respondent.

No. SC13–1652.

Supreme Court of Florida.

Dec. 1, 2016.


208 So.3d 62

Nancy Ann Daniels, Public Defender, and Pamela Diane Presnell, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Trishia Meggs Pate, Bureau Chief, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, FL, for Respondent.

PERRY, J.

This case is before the Court for review of the First District Court of Appeal's decision in Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013). The First District held that minimum mandatory sentences under section 775.087, Florida Statutes —the 10–20–Life statute—must run consecutively when the sentences arise from a single criminal episode, irrespective of whether the defendant fires a firearm or only carries or displays it. Id. at 528. The First District certified conflict with Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons discussed below, we quash the First District's decision and remand for a new trial.

FACTS

On September 10, 2008, Kristina Salas and her sister, Karine Nalbandyan, placed their children into a parked car. As Salas leaned into the car, a man ambushed her, held a gun to her head, and demanded that she give him her purse or be killed. The two struggled over the purse until the gun

208 So.3d 63

fell to the ground. Then the man picked up his gun, went to the other side of the car, and demanded Nalbandyan's purse.

Detectives Shannon Fusco and James Johnston of the Jacksonville Sheriff's Office were investigating a theft nearby when they came upon the scene. Detective Fusco identified herself as a law enforcement officer and ordered the man to put his gun down. The man and another man at the scene responded by shooting at the detectives. Two eyewitnesses, Lashonda Jackson and her teenage daughter, Antoinette Gillan, observed the crime. Jackson later identified Leronnie Lee Walton as one of the men shooting at the detectives.

Almost two months after the crime, Detective Venosh and Detective Padgett interviewed Gillan. Detective Padgett instructed Gillan to look at a two photo arrays and identify anyone that she recognized in connection with the shooting. Gillan was unable to identify anyone in the first array. She then examined the second set of photographs and initially said she was not sure if she recognized anyone. Detective Padgett responded, "I noticed you moved that one [photo] and kind of looked back a little bit or something when you looked at that one." Gillan replied that a man in one photo in the second array looked familiar. Detective Padgett explained to Gillan the importance of making an identification, noting how dangerous the shooters were and that her mother could have been killed. Detective Padgett then said, "I'm not trying to point you towards anybody, it's just that you really did look—I saw the look on your face when you looked at that one right there." Afterwards, Gillan identified the photo of Walton as a depiction of the man she saw shooting at law enforcement officers.

When the State attempted to call Gillan as a witness during Walton's jury trial, Walton moved to suppress Gillan's identification as impermissibly suggestive and likely unreliable. The trial court denied Walton's motion to suppress.

Ultimately, Walton was convicted of two counts of attempted murder of a law enforcement officer with possession and discharge of a firearm during commission of the attempted murder, and two counts of attempted armed robbery with possession of a firearm during the commission of the attempted armed robbery. After vacating the initial sentencing order, the trial court resentenced Walton to two terms of thirty years for the attempted murders with mandatory minimum sentences of twenty years and two terms of fifteen years for the attempted armed robberies with mandatory minimum sentences of ten years. The trial court ordered that all sentences and mandatory minimums run consecutively. Walton was not present at his resentencing.

On appeal to the First District, Walton argued that the trial court erred by imposing consecutive mandatory minimum sentences. While the First District reversed Walton's sentences because he was not present at resentencing, the First District concluded that any mandatory minimum sentence required by the 10–20–Life statute must be imposed consecutively to any other sentence imposed for any other felony regardless of whether the defendant fires a gun or only carries or displays it. Walton, 106 So.3d at 528. Walton petitioned this Court for review.

ANALYSIS

Walton has identified three errors that merit quashing the First District's decision. The trial court erred in (1) concluding that section 775.087, Florida Statutes —the 10–20–Life statute—required Walton's sentences to be imposed consecutively, (2) failing to instruct the jury on

208 So.3d 64

attempted manslaughter, and (3) admitting improper identification testimony. For the following reasons, we quash the First District's decision and remand with instructions to return the case to the circuit court for a new trial.

First, the First District erred in concluding that the 10–20–Life statute required Walton's sentences to be imposed consecutively, irrespective of whether Walton fired, carried, or displayed a firearm. We recently addressed this issue in Williams v. State, 186 So.3d 989 (Fla.2016). We reiterated that "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." Id. at 993. Accordingly, we quash the First District's opinion to the extent it is inconsistent with Williams.

Second, Walton is entitled to a new trial because the trial court committed fundamental error by failing to instruct the jury on attempted manslaughter as a lesser included offense of second-degree murder. This issue is a pure question of law and is therefore subject to de novo review. Griffin v. State, 160 So.3d 63, 67 (Fla.2015) (citing Puglisi v. State, 112 So.3d 1196, 1204 (Fla.2013) ).

"Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense." Sanders v. State, 944 So.2d 203, 206 (Fla.2006). "The law requires that an instruction be given for any lesser offense all the elements of which are alleged in the accusatory pleadings and supported by the evidence adduced at trial." State v. Weller, 590 So.2d 923, 926 (Fla.1991). "The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense. Once the judge determines that the offense is a necessarily lesser included offense, an instruction must be given." Montgomery v. State, 39 So.3d 252, 259 (Fla.2010) (quoting State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) ).

Attempted manslaughter by act is a necessarily lesser included offense of attempted second-degree murder because attempted second-degree murder contains all of the elements of the crime of attempted manslaughter by act. Compare § 782.04(2), Fla. Stat. (2008) (defining second-degree murder as an "unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual"), with § 782.07(1), Fla. Stat. (2008) (defining manslaughter as a "killing of a human being by the act ... of another, without lawful justification ... and in cases in which such killing shall not be excusable homicide or murder"); see also Montgomery, 39 So.3d at 259 (noting that "second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter"). Here, Walton was charged with second-degree murder, with a sentencing enhancement because the victim was a law enforcement officer. See § 782.04(2), Fla. Stat. (2008) (attempted second-degree murder); § 782.065(2), Fla. Stat. (2008) (sentencing enhancement for law enforcement victim). Accordingly, the trial court was required to give an instruction for attempted manslaughter by act when it gave the instruction for attempted second-degree murder.

Not only did the trial court err by failing to give the instruction for attempted manslaughter by act, but its failure constituted fundamental error. Fundamental error occurs "only when the

208 So.3d 65

omission is pertinent or material to what the jury must consider in order to convict." Griffin v. State, 160 So.3d 63, 66 (Fla.2015) ; see also Montgomery, 39 So.3d at 258 (same). We have repeatedly held that the failure to correctly instruct the jury on a necessarily lesser included offense constitutes fundamental error.See, e.g., Williams v. State, 123 So.3d 23, 27 (Fla.2013) (holding that fundamental error occurs when the trial judge gives an incorrect instruction on the necessarily lesser included offense...

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