267 So. 3d 38
Fla. Dist. Ct. App.2018Background
- Knight was convicted of attempted second-degree murder with a weapon and sentenced to 30 years after an attack that left the victim with severe facial and cranial injuries; identity and occurrence of the attack were not disputed at trial.
- The jury was given an erroneous jury instruction for attempted voluntary manslaughter that included an element requiring an intent to kill—language the Florida Supreme Court had earlier invalidated in Montgomery.
- Defense counsel did not object to the manslaughter instruction and actively participated in drafting and approving the overall charge conference and verdict form.
- After trial, Knight appealed; while the panel initially affirmed, it reconsidered the precedential effect of Dean v. State and also addressed waiver of the instruction error by counsel.
- The First DCA (majority) affirmed the conviction on two alternative grounds: (1) Dean abrogated the jury-pardon doctrine so the erroneous manslaughter instruction is subject to harmless-error review (not per se reversible), and (2) alternatively, any error was waived by defense counsel under the totality of the circumstances.
- The court certified conflict with Caruthers (Fourth DCA) on whether Dean receded from the jury-pardon doctrine and re-certified a question of great public importance concerning when counsel’s conduct constitutes waiver of otherwise fundamental jury-instruction error.
Issues
| Issue | Knight's Argument | State's Argument | Held |
|---|---|---|---|
| Whether giving the erroneous manslaughter-by-act instruction (including intent-to-kill language) is reversible per se under Montgomery | Montgomery requires reversal for such an instruction when conviction is for (attempted) second-degree murder; thus this is fundamental error | Dean receded from the jury-pardon doctrine; such instruction error is subject to harmless-error analysis | Court: Dean abrogated jury-pardon doctrine; the instruction error is not automatically reversible and is harmless on these facts (Affirmed) |
| Whether defense counsel waived the instruction error by failing to object and by participating in instruction drafting | Failure to object does not amount to waiver absent an affirmative, knowing relinquishment of the right; mere acquiescence is insufficient | Counsel’s active involvement, the settled state of the law pre-trial, and plausible tactical reasons support finding waiver | Court: On these facts, waiver exists; counsel’s conduct and circumstances show implied waiver (Affirmed on alternative ground) |
| Whether this panel’s application conflicts with Caruthers (Fourth DCA) about Dean’s effect on jury-pardon doctrine | N/A (conflict arises because Fourth DCA reached different conclusion) | N/A | Court: Conflict certified with Caruthers |
| What standard governs waiver of fundamental jury-instruction error (question of great public importance) | Knight: waiver should require affirmative agreement to the specific erroneous portion or clear awareness of its erroneous nature | State: broader circumstances may establish waiver | Court: Question certified to Florida Supreme Court for resolution |
Key Cases Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (held manslaughter-by-act instruction was erroneous for including intent-to-kill and that such error required reversal under the jury-pardon doctrine)
- Dean v. State, 230 So. 3d 420 (Fla. 2017) (per curiam) (majority receded from the jury-pardon doctrine; applied harmless-error analysis to omission of lesser-included instruction)
- Williams v. State, 123 So. 3d 23 (Fla. 2013) (approved that instruction requiring intent to kill for attempted manslaughter is fundamental error)
- Moore v. State, 114 So. 3d 486 (Fla. 1st DCA 2013) (certified question on when counsel’s conduct constitutes waiver of erroneous manslaughter instruction; court found waiver on its facts)
- Ray v. State, 403 So. 2d 956 (Fla. 1981) (attorney’s failure to object to erroneous instructions can constitute waiver)
- Calloway v. State, 37 So. 3d 891 (Fla. 1st DCA 2010) (explains the perverse incentive of allowing counsel to invite error and supports scrutinizing tactical acquiescence)
- Pena v. State, 901 So. 2d 781 (Fla. 2005) (discusses jury pardon doctrine principles)