Wyche v. State, CASE NO. 1D15–4797

• Decision Date: 06 November 2017
• Docket Number: CASE NO. 1D15–4797
• Citation: 232 So.3d 1117
• Parties: Virginia Denise WYCHE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

232 So.3d 1117

Virginia Denise WYCHE, Appellant,

v.STATE of Florida, Appellee.

CASE NO. 1D15–4797

District Court of Appeal of Florida, First District.

Opinion filed November 6, 2017.

Rehearing Denied January 17, 2018

Andy Thomas, Public Defender, Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.

LEWIS, J.

Virginia Denise Wyche, Appellant, challenges her convictions and sentences for second-degree murder of an unborn quick child and attempted second-degree murder of the unborn child's mother, raising eleven issues, only the first of which merits discussion. Appellant argues that her second-degree murder conviction cannot be legally sustained because under the common law born alive rule, an unborn child is not a human being within the meaning of Florida's homicide statute, section 782.04(2), Florida Statutes (2013). We reject Appellant's argument for the reasons that follow and affirm her convictions and sentences in all other respects without further discussion.

In this tragic case, on April 23, 2014, twenty-five to twenty-six weeks into her pregnancy, the mother was shot with a .22–caliber revolver in the abdomen by Appellant, her friend, over a dispute involving the naming of the unborn quick child, with the bullet striking the unborn quick child and causing multiple injuries to the unborn child. While the mother survived the gunshot wound

, the unborn quick child was not born alive and died as the result of the gunshot wound. Following trial, the jury found Appellant guilty as charged of attempted second-degree murder of the mother and guilty of second-degree murder of the unborn quick child. Thus, the issue we must resolve is whether the common law born alive rule has been abrogated by the Florida Legislature so as to allow Appellant's second-degree murder conviction to stand under section 782.04(2). Given that this issue presents a pure question of law and turns on statutory interpretation, our review is de novo . See

Townsend v. R.J. Reynolds Tobacco Co., 192 So.3d 1223, 1225 (Fla. 2016).

Section 782.04(2), Florida Statutes (2013), defines second-degree murder as "[t]he 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." Under the common law born alive rule, "the killing of a fetus was not homicide unless the child was born alive and then expired as a result of the injuries previously sustained." State v. Gonzalez, 467 So.2d 723, 725 (Fla. 3d DCA 1985) ; see also Knighton v. State, 603 So.2d 71, 72 (Fla. 4th DCA 1992) ; State v. McCall, 458 So.2d 875, 876 (Fla. 2d DCA 1984).¹

The Florida Legislature enacted section 782.09, Florida Statutes, commonly referred to as the feticide statute, in 1868. Ch. 1868–1637, § 10, Laws of Fla. Through September 2005, the feticide statute provided that "[t]he willful killing of an unborn quick child, by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed manslaughter." § 782.09, Fla. Stat. (2005). Effective October 2005, the feticide statute was amended to provide that the unlawful killing of an unborn quick child shall be deemed manslaughter or murder in the same degree as that which would have been committed against the mother if the act had resulted in her death. Ch. 2005–119, § 2, Laws of Fla. At the time of Appellant's offenses, the feticide statute set forth:

(1) The unlawful killing of an unborn quick child , by any injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed murder in the same degree as that which would have been committed against the mother. Any person, other than the mother, who unlawfully kills an unborn quick child by any injury to the mother:

....

(b) Which would be murder in the second degree if it resulted in the mother's death commits murder in the second degree ....

§ 782.09, Fla. Stat. (2013) (defining "unborn quick child" as a "viable fetus") (emphasis added).²

"Under our rules of statutory construction, a statute will not displace the common law unless the legislature expressly indicates an intention to do so." Kitchen v. K–Mart Corp., 697 So.2d 1200, 1207 (Fla. 1997) (citing Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362 (Fla. 1977) ). "Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law." Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990) (citations omitted); see also Townsend, 192 So.3d at 1231 ; Webb v. Sch. Bd. of Escambia Cty., 1 So.3d 1189, 1190 (Fla. 1st DCA 2009). The 2013 version of the feticide statute presents such a sequence of events.

"The polestar of a statutory construction analysis is legislative intent." W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 8 (Fla. 2012). To discern legislative intent, the court must first look to the plain and obvious meaning of the statute's text, which may be discerned from a dictionary. Id. at 9. If the statutory language is clear and unambiguous, the court must apply that unequivocal meaning and may not resort to the rules of statutory construction. Id."Likewise, the ‘[a]dministrative construction of a statute, the legislative history of its enactment, and other extraneous matters are properly considered only in the construction of a statute of doubtful meaning. ’ " Atwater v. Kortum, 95 So.3d 85, 90 (Fla. 2012) (quoting Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1153 (Fla. 2000) ) (emphasis in original). This is so because the Legislature is assumed to know the meaning of the words used in the statute and to have expressed its intent through the use of the words. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1225 (Fla. 2006).

The clear and unambiguous language of the feticide statute provides that the killing of an unborn quick child may constitute murder, which is in direct conflict with the common law rule requiring the fetus to be born alive. As such, the Legislature has expressed a clear intent to recognize an unborn quick child as a human being entitled to the protection of Florida's homicide statute. Therefore, we hold that the Legislature has abrogated the common law born alive rule by enacting the 2013 version of the feticide statute as the two cannot coexist.

We recognize that our holding appears to be in conflict with Knighton, McCall, and Gonzalez. In Knighton, the Fourth District affirmed the appellant's conviction for third-degree murder of a fetus that was born alive, unlike the unborn quick child in the instant case, but subsequently died due to the injuries the appellant inflicted on the mother upon concluding that the fetus was a human being under the common law born alive rule because she was born alive. 603 So.2d at 72–73. Significantly, the court rejected the appellant's argument that the born alive rule has been abrogated by the feticide and termination of pregnancy statutes and "suggest[ed] ... [the rule's] continued viability in the absence of any statutory definition of ‘human being.’ " Id. at 73.

In McCall, the Second District affirmed the dismissal of the DWI manslaughter and vehicular homicide charges relating to the death of an unborn child upon holding that such crimes do not exist in Florida because an unborn child is not a human being within the definitions of DWI manslaughter and vehicular homicide, which require the death of a "human being," in light of the common law born alive rule. 458 So.2d at 876. The court quoted the feticide statute, but stated that it did not apply because the information did not allege the willful killing of the unborn child or his mother, and "adopt[ed] the traditional interpretation of the words ‘human being’ under the homicide statutes as meaning one who has been born alive." Id. at 877. Conversely, in this case, the information tracked the language of the feticide statute, in addition to the homicide statute.

Finally, in Gonzalez, the Third District affirmed the dismissal of the manslaughter charge against the appellant, a doctor who allegedly performed an illegal abortion on a minor, upon holding that an unborn child is not a human being within the meaning of the manslaughter statute in light of the common law born alive rule. 467 So.2d at 725–26. The court reasoned that the Legislature believed the feticide and abortion statutes were adequate protections for the unborn; if the Legislature chooses to expand the protections, it can expressly do so, such as by amending the manslaughter statute to criminalize "the killing of a human being or viable fetus"; the Legislature "has indicated it is capable of distinguishing between an unborn child and a person born alive since it has enacted statutes which acknowledge this distinction"; and "[s]ince ‘human being’ is not defined in Florida Statutes and until the Florida Legislature specifically changes it, the common law definition controls." Id. While the feticide statute in effect when the alleged illegal abortion on the minor was performed on June 25, 1982, did not apply to the facts of Gonzalez, as we previously stated, under the 2013 version of the feticide statute that applies to the facts of this case, an unborn quick child is recognized as a human being entitled to the protection of Florida's homicide statute.

We, therefore, affirm Appellant's convictions and sentences and certify conflict with Knighton, Gonzalez, and McCall to the extent our holding conflicts with those decisions.

AFFIRMED; CONFLICT CERTIFIED.

B.L. THOMAS, C.J., CONCURS; ROWE, J., CONCURS WITH OPINION.

ROWE, J., concurring,

A dispute that began over a Facebook post ended...