114 So. 3d 486
Fla. Dist. Ct. App.2013Background
- Appellant was charged with first-degree murder and home invasion robbery; the victim was killed by blunt force trauma, with hands bound.
- Trial defense was alibi; the defense argued others committed the killing, not appellant.
- The trial court instructed on first-degree murder and lesser-included offenses: second-degree murder and manslaughter.
- During charge conference, the court suggested striking erroneous intent language in the manslaughter instruction; defense did not object.
- The parties discussed a 2008 amended manslaughter instruction requiring the defendant to 'intentionally caused the death' of the victim; appellee agreed to this language.
- The jury convicted appellant of home invasion robbery and of the lesser offense of second-degree murder; conviction on second-degree murder is reversed; home invasion robbery conviction is affirmed; the case is remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the manslaughter instruction's 'intentionally caused the death' language was fundamental error | Appellant | Appellant | Fundamental error waived due to defense agreement |
| Whether the manslaughter instruction failed to inform that justifiable or excusable homicide cannot support manslaughter | Lucas requires complete instruction on exclusions; failure fundamental | Beckham/Black permit waiver when counsel was unaware | Fundamental error not waived; reversal required unless Lucas is reheard |
| Scope of waiver and knowledge required for waiver of fundamental error | Record shows defense knowingly agreed to instruction | Waiver depends on affirmative knowledge of error | Certification requested to resolve whether knowledge is required |
| Effect of Lucas on fundamental-error review when defendant is convicted of a greater offense not more than one step removed | Lucas precludes harmless-error review for misinstruction when similar offense | Need not apply if counsel did not know of error | Lucas controls; fundamental error requires reversal; remand |
Key Cases Cited
- State v. Montgomery, 39 So.3d 252 (Fla.2010) (amended manslaughter instruction requiring intent to kill deemed error)
- Riesel v. State, 48 So.3d 885 (Fla.1st DCA 2010) (amended manslaughter instruction error not substantially different from Montgomery)
- Lucas v. State, 645 So.2d 425 (Fla.1994) (failure to instruct on justifiable/excusable homicide fundamental unless defense affirmatively agreed)
- Lucas v. State, 630 So.2d 597 (Fla.1st DCA 1993) (earlier Lucas opinion on complete manslaughter instruction)
- Ray v. State, 403 So.2d 956 (Fla.1981) (fundamental-error waiver when counsel failed to object after opportunity to cure)
- Armstrong v. State, 579 So.2d 734 (Fla.1991) (waiver of fundamental error when defense requested erroneous charge)
- Black v. State, 695 So.2d 459 (Fla.1st DCA 1997) (counsel's awareness of error required for Lucas exception)
- Beckham v. State, 884 So.2d 969 (Fla.1st DCA 2004) (failure to instruct on justifiable/excusable homicide; waiver analysis emphasized)
- Calloway v. State, 37 So.3d 891 (Fla.1st DCA 2010) (waiver of error where defendant expressly agreed to instructions; distinguishable)
- Joyner v. State, 41 So.3d 306 (Fla.1st DCA 2010) ( Montgomery error not fundamental where offense and instructions differ)