Wilson TILLMAN, Petitioner,
v.
STATE of Florida, Respondent.
Supreme Court of Florida.
*33 Michael E. Allen, Public Defender and Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
BOYD, Chief Justice.
This case is bеfore the Court on petition for review of a decision of the District Court of Appeal, First District, based on the district court's certification that its decision passed upon a question of great public importance. Tillman v. State,
With regard to the сertified question, we find that it is controlled by our decision in Taylor v. State,
Petitioner Wilson Tillman was tried on a three-count indictment charging: (1) the first-degree murder of Brenda Green; (2) the attempted first-degree murder of Linda Lewis; and (3) carrying a concealed firearm. The evidеnce showed that petitioner was the boyfriend of Brenda Green and that she shared her home with him. On July 4, 1982, there was a cookout held in the yard at the apartment complex where they lived. Numerous rеlatives and friends attended the cookout. Later that evening, a smaller number of the group continued to visit in the apartment occupied by Brenda Green, her daughter, her brother, and the petitiоner. According to the testimony of Linda Lewis, cousin of Brenda Green and herself the victim of the offense charged as attempted murder in count two, petitioner and Brenda Green got into an argument. After she indicated to him that if he was dissatisfied he could simply move out of her home, he put his hand in his pocket. After she taunted him to use "that sucker" rather than just "clicking" it, he *34 drew his gun and fired several times, killing Brenda Grеen and wounding Linda Lewis in the arm.
During the cross-examination of state's witness Linda Lewis at trial, the defense attempted to ask the witness whether the deceased, Brenda Green, had told Linda Lewis about an incident in which Brenda Green struck Wilson Tillman with a heavy drinking mug, causing a serious injury. The state objected to the questions on the ground that the answers would be hearsay. The defense proffered the testimony out of the hearing of the jury and argued that the testimony about the incident was relevant to the issue of self-defense in that it would tend to show that the defendant had a reasonable fear of the deceased. The trial judge sustained the objection and disallowed the line of questioning.
The jury returned verdicts finding petitioner guilty of second-degree murder on count one, guilty of attempted manslaughter on count two, and guilty as charged of carrying a concealed firearm on count three. The defense argued that there could be no adjudication of guilt on the verdict for attempted manslaughter, contеnding that there was no such offense under Florida law. The court disagreed and entered judgment on the three verdicts.
On appeal, petitioner Tillman raised both the issue of the existence of the crime of attempted manslaughter and the correctness of the trial court's ruling excluding defense counsel's attempted elicitation of testimony from Linda Lewis on the ground of hearsay. The district court of appeal affirmed the judgments of conviction on all three counts, certified the question of the existence of the crime of attempted manslaughter, but did not discuss the hearsay question in its оpinion. Tillman v. State,
In his brief before this Court, petitioner acknowledges that our decision in Taylor has answered the certified question. Accordingly, he argues not that there is no such crime as attempted manslaughter but that under the limitations placed on the definition of the offense by this Court, he should get a new trial on the charge because of doubts about the evidence and the jury's interpretation thereof. Petitioner also argues that the disallowed questions defense counsel attempted to ask on cross-examination of Linda Lewis at trial should have been allowed because the testimony sought cаme within an exception to the hearsay rule and was relevant to the issue of self-defense.
The state makes a preliminary argument that this review proceeding should be dismissed. With regard to the attеmpted manslaughter conviction, the state grounds its position on the fact that the certified question has been resolved by Taylor. With regard to the hearsay question, the state argues for dismissal on the ground that the district court of appeal did not discuss the issue in its opinion.
The district court's certification that its decision passed upon a question of great public importance gives this Court jurisdiction, in its discretion, to review the district court's "decision." Art. V, § 3(b)(4), Fla. Const. Once the case has been accepted for review here, this Court may review any issue arising in the case that has been properly preserved and properly presented. See, e.g., Trushin v. State,
Petitioner argues that he should be given a new trial on the charge of attempted manslaughter. He points out that under Taylor a conviction for such offense must be bаsed on proof of an act or procurement done with the requisite criminal intent and may not be based on mere culpable negligence. See § 782.07, Fla. Stat. (1981). Petitioner contends that it is unclear whether the jury found its verdict on the ground of an act or procurement on the one hand or culpable negligence on the other.
The foregoing argument is not the argument raised at trial or on apрeal. In both the trial and appellate courts, petitioner argued that no judgment of conviction could be entered on the jury's verdict *35 of attempted manslaughter because there was nо such crime. In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved. E.g., Steinhorst v. State,
Furthermore, we find upon review of the record that there was sufficient evidence to support the conclusion that the shooting of Linda Lewis was the result of an act of petitioner done with the requisite criminal intent and was not mere culpable negligence. Petitioner was engaged in the fatal shooting of Brenda Green when one of the bullets struck Linda Lewis. The evidence was sufficiently like that in Taylor to bring this case within the Taylor rule under which a conviction of attempted manslaughter can be sustained if the requisite criminal intent to do the act can be shown.
We conclude that no reversible error affects petitioner's conviction of attempted manslaughter. We therefore approve the district court's decision affirming it.
Petitioner also argues that he should get a new trial because the trial court erred in refusing to permit him on cross-examination of Linda Lewis to bring out the fact that the deceased had told the witness about having violently struck petitioner. Petitioner argues that the testimony should not have been excluded because it came within an exception to the hearsay rule and was relеvant to his claim of self-defense.
We note first of all that petitioner testified in his defense and told the jury of the incident in which the deceased had struck him. Thus the testimony excluded as hearsay would have bеen merely corroborative of his testimony to the jury on that point of fact. Furthermore, petitioner told the jury his version of the shooting incident, claiming that he shot Brenda Green in self defense. His account was directly contradicted by Linda Lewis, whom the jury apparently chose to believe.
Petitioner argues that the testimony about the statements of the deceased concerning the incidеnt were admissible as a declaration or admission against the penal interest of the speaker. We will not decide the merits of this contention because this specific argument was not prеsented to the trial court as a ground of admissibility. In order to preserve for review an issue arising from a trial court's ruling on a question of admissibility of evidence, the specific ground to be relied upon must be raised before the court of first instance. Here defense counsel merely profferred the testimony and argued its relevance. Trial defense counsel did not present to the court the specific argument relied upon here that the testimony came within an exception to the hearsay rule. We therefore decline to reach the issue of whether the trial court erred on this issue.
The decision of the district court of appeal is approved.
It is so ordered.
*36 ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.