MacK v. StateMacK v. State
We review Mack‘s conviction of murder and his sentence of death pursuant to
The appellant was not present at the charge conference, although his counsel said that he had waived his appearance. At that time, defense counsel waived all the instructions on the lesser included offenses of first-degree murder. He said he had discussed this with his client, and this is what his client wanted. There is no personal statement by appellant in the record that he wished to waive his right to have instructions given on the lesser included offenses of murder.
In Harris v. State, 438 So.2d 787 (Fla. 1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984), also a capital case, defense counsel on behalf of his client made a specific request that no instruction
But, for an effective waiver, there must be more than just a request from counsel that these instructions not be given. We conclude that there must be an express waiver of the right to these instructions by the defendant, and the record must reflect that it was knowingly and intelligently made.
Several years later in Jones v. State, 484 So.2d 577 (Fla. 1986), the Court declined to extend the rule of personal waiver to noncapital cases. We explained that the requirement set forth in Harris was imposed as a matter of due process only applicable to capital cases.
Because the record reflects no personal waiver of appellant‘s right to have the jury instructed on the lesser included offenses, the conviction and sentence are hereby reversed and the case is remanded for a new trial.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT and KOGAN, JJ., concur.
GRIMES, J., concurs with an opinion.
GRIMES, Justice, concurring.
The rule adopted in Harris v. State, 438 So.2d 787 (Fla. 1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984), that a waiver of instructions on the lesser included offenses of murder must be made on the record personally by the defendant was ill-advised obiter dictum. In Jones v. State, 484 So.2d 577 (Fla. 1986), this Court said that the Harris rule was in part based on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, Beck only held that an Alabama statute prohibiting instructions on lesser included offenses in capital cases was unconstitutional as violative of due process. Neither that or any other case of which I am aware, excepting Harris, requires that the decision to waive instructions on the lesser included offenses of murder be personally verified on the record by the defendant.
In the course of a criminal trial, defense counsel necessarily makes many tactical decisions and procedural determinations which inevitably impact on his client. It is impractical and unnecessary to require an on-the-record waiver by the defendant to anything but those rights which go to the very heart of the adjudicatory process, such as the right to a lawyer, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the right to a jury trial,