Zeigler v. State

• Decision Date: 09 October 2009
• Docket Number: No. 2D07-5300.,2D07-5300.
• Citation: 18 So.3d 1239
• Parties: Merle Frances ZEIGLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

18 So.3d 1239

Merle Frances ZEIGLER, Appellant, v. STATE of Florida, Appellee.

No. 2D07-5300.

District Court of Appeal of Florida, Second District.

October 9, 2009.

James Marion Moorman, Public Defender, and Joseph C. Bodiford, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Merle Frances Zeigler appeals her conviction and sentence for second-degree murder, contending that the trial court committed fundamental error when it gave the standard jury instruction on the lesser-included offense of manslaughter by act because that instruction, as it existed at the time of Zeigler's trial, improperly set out the intent required for a conviction for that offense. In support of her argument, she relies on the recent decision in Montgomery v. State, 11 So.3d 943 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009). Because we find that the instructions given were not erroneous, we affirm Zeigler's conviction and sentence and certify conflict with Montgomery.

Zeigler was charged as a principal to second-degree murder with a firearm following the death of Frank Reposh. The evidence at trial established that Zeigler and Reposh had a long and often stormy relationship. Reposh also had a difficult relationship with Zeigler's adult son, Joshua. Despite the tensions between Joshua and Reposh, Joshua was living with Zeigler and Reposh, along with Joshua's girlfriend Debbie Meneely and their baby daughter, in a two-bedroom duplex.

One evening during September or October 2005, Reposh and Joshua became involved in a verbal altercation. Zeigler was home at the time, but the accounts of her involvement in this altercation vary. However, it is undisputed that at some point during the evening Joshua armed himself with a knife. When Reposh tried to end the fight by leaving the duplex through the back door, Joshua charged at him and stabbed him in the abdomen.

After the stabbing, Joshua sent Meneely to the store for peroxide and gauze to treat Reposh's wound. When Meneely returned with these items, Reposh was in the bathroom, still bleeding profusely. Joshua ordered Meneely into her bedroom, and she went inside and closed the door.

Some time later, Meneely heard a gunshot. When she opened the bedroom door, she saw Reposh lying face down on a sheet of plastic on the living room floor. At that point, Reposh was hog-tied, screaming, and still bleeding profusely. Meneely saw that Joshua was holding a handgun. Joshua told Meneely to go back into her bedroom and turn up the radio, and Meneely did so. A few minutes later she heard a second gunshot. She again opened the door to her room and saw Reposh "laying just dead gone." Zeigler and Joshua later rolled Reposh up in the plastic sheeting and put him in the bathtub. Joshua also cut out and disposed of a bloody piece of the living room carpet.

Reposh lay dead in the bathtub for three days. On the third day, Zeigler asked Meneely to borrow a van from a friend. Joshua, Zeigler, and Meneely then loaded Reposh's dead body into the borrowed van and Meneely drove them to a deserted stretch of road. She dropped off Joshua and Zeigler with Reposh's body and returned the van. Joshua and Zeigler then buried Reposh in a shallow grave and walked home.

Reposh's body was found eight months later, and the police investigation initially focused on Joshua, in part because of his criminal history. However, interviews with Zeigler's friends and acquaintances, including the person from whom she regularly purchased drugs, led police to suspect that Zeigler was involved in Reposh's murder as well. During those interviews, the police learned that Zeigler had told Meneely that she (Zeigler) had fired the first shot at Reposh, but when Reposh did not die, Joshua fired the second shot. The police also learned that Zeigler had told her drug supplier that she had stabbed Reposh and then taken his money to "rent" the gun with which he was later shot. Zeigler told some acquaintances that she had fired both shots herself while she told others that Joshua had fired both shots but that she was going to take the rap for him so that he wouldn't go back to prison.

The police subsequently arrested Zeigler for Reposh's murder, and she made numerous post-Miranda¹ statements. In those statements, Zeigler said that she had stabbed and shot Reposh and that Joshua had nothing to do with Reposh's death. In addition to these statements, the evidence against Zeigler included forensic testing of the duct tape found wrapped around the remains of Reposh's mouth, which revealed Zeigler's fingerprints on the inside of the tape. The State's theory at trial was that Joshua had stabbed Reposh, that Zeigler had then obtained a gun and shot Reposh once, and that when Reposh did not die from the first shot, Joshua fired the second shot. The State presented evidence that the first shot, while not immediately fatal, would have killed Reposh within a few hours.

Zeigler testified in her own defense at trial and said that Joshua stabbed Reposh and fired both shots. She testified that although she was angry with Reposh on the night in question, she did not want to kill him and she did not believe that Joshua would kill him. She denied that she had procured the gun and testified that she had made up the statements about her own involvement because she was trying to protect Joshua. However, according to Zeigler, after Joshua pleaded guilty to Reposh's murder,² she no longer needed to protect Joshua and could finally tell the truth. Thus, her theory of defense was that while she was present during all of the events, she did not know the shooting was going to happen, she took no steps to assist in the shooting, and she never intended for Reposh to be killed. She provided no explanation for her fingerprints on the duct tape.

During the charge conference, Zeigler agreed that the jury should be instructed on the lesser-included offense of manslaughter. The State requested that the jury be read the principals instruction, and, in response to that request, Zeigler requested that the court give the instruction on independent acts. Thus, the relevant instructions, given without any objection by Zeigler, explained the law to the jury as follows:

To prove the crime of second degree murder, the State must prove the following three elements beyond a reasonable doubt:

One, Frank Reposh is dead.

Two, the death was caused by the criminal act of Merle Frances Zeigler.

Three, there was an unlawful killing of Frank Reposh by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

An act includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is imminently dangerous to another and demonstrating a depraved mind if it is an act or series of acts that:

One, a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another;

And two, is done from ill will, hatred, spite, or an evil intent;

And three, is of such a nature that the act itself indicates an indifference to human life.

In order to convict of second degree murder it is not necessary for the State to prove the defendant had an intent to cause death.

. . . .

To prove the crime of manslaughter the State must prove the following two elements beyond a reasonable doubt:

One, Frank Reposh is dead;

Two, Merle Frances Zeigler intentionally caused the death of Frank Reposh.

However, the defendant cannot be guilty [of] manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.

In order to convict of manslaughter by intentional act it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

If the defendant helped another person or persons commit a crime the defendant is a principal and must be treated as if she had done all the things the other person or persons did if:

One, the defendant had a conscious intent that the criminal act be done;

And two, the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime.

To be a principal the defendant does not have to be present when the crime is committed.

If you find that the crime alleged was committed, an issue in this case is whether the crime was an independent act of a person other than the defendant. An independent act occurs when a person other than the defendant commits or attempts to commit a crime, one, which the defendant did not intend to occur; and two, in which the defendant did not participate; and three, which was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant. If you find the defendant was not present when the crime occurred, that in and of itself does not establish that the crime was an independent act of another. If you find that the crime was an independent act of Joshua Zeigler, then you should find the defendant not guilty.

(Emphasis added.)

The jury subsequently found Zeigler guilty of second-degree murder with a firearm, and it specifically found that she discharged the firearm causing the death of Reposh.

In this appeal, Zeigler admits that she did not object to any of the instructions given by the court. However, she contends that the trial court committed fundamental error when it instructed the jury on the lesser-included offense of manslaughter by act because the standard instruction in effect at the time of her trial erroneously added an "intent to kill" element to that offense. She contends that this erroneous instruction precluded the jury from convicting her of this lesser-included offense even if it found that she did not intend for Reposh to...