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State v. Spencer

Supreme Court of Florida

April 27, 2017

STATE OF FLORIDA, Petitioner,
v.
DAMANI SPENCER, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

         Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance First District - Case No. 1D14-5663 Leon County

          Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Michael Schaub, Assistant Attorney General, Tallahassee, Florida, for Petitioner

          Baya Harrison, III, Monticello, Florida, for Respondent

          LABARGA, C.J.

         This case is before the Court for review of the decision of the First District Court of Appeal in Spencer v. State, 40 Fla.L.Weekly D2819, 2015 WL 9287020 (Fla. 1st DCA Dec. 22, 2015). In its decision, the district court certified the same question of great public importance that it previously certified in Moore v. State, 114 So.3d 486, 493-94 (Fla. 1st DCA 2013):

WHEN A DEFENDANT IS CONVICTED OF EITHER MANSLAUGHTER OR A GREATER OFFENSE NOT MORE THAN ONE STEP REMOVED, DOES THE FAILURE TO INSTRUCT THE JURY ON JUSTIFIABLE OR EXCUSABLE HOMICIDE CONSTITUTE FUNDAMENTAL ERROR NOT SUBJECT TO A HARMLESS ERROR ANALYSIS EVEN WHERE THE RECORD REFLECTS THERE WAS NO DISPUTE AS TO THIS ISSUE AND THERE WAS NO EVIDENCE PRESENTED FROM WHICH THE JURY COULD FIND JUSTIFIABLE OR EXCUSABLE HOMICIDE?

Spencer, 40 Fla.L.Weekly at D2819.[1] We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because this was an attempted homicide case, as opposed to Moore, which involved a homicide, we rephrase the certified question as follows:

WHERE THE RECORD REFLECTS THERE WAS NO EVIDENCE PRESENTED FROM WHICH A JURY COULD FIND JUSTIFIABLE OR EXCUSABLE ATTEMPTED HOMICIDE, DOES FUNDAMENTAL ERROR OCCUR WHEN THE TRIAL COURT FAILS TO INSTRUCT ON JUSTIFIABLE OR EXCUSABLE ATTEMPTED HOMICIDE, AND A DEFENDANT IS CONVICTED OF ATTEMPTED MANSLAUGHTER OR A GREATER OFFENSE NOT MORE THAN ONE STEP REMOVED?

         For the reasons discussed below, we answer the rephrased certified question in the affirmative and approve the holding of the First District.

         FACTS AND PROCEDURAL HISTORY

         Damani Spencer was convicted of two counts of attempted second-degree murder, attempted robbery, and carrying a concealed firearm. See Spencer, 40 Fla.L.Weekly at D2819. The facts were described by the First District Court of Appeal as follows:

Appellant's convictions arose out of an attempted robbery during a drug transaction. . . . At the time of the incident, the . . . victims were seated in a vehicle. They were approached by appellant and another man who attempted to rob them at gunpoint. Appellant later gave a statement to police admitting that he was the man who walked up to the passenger side of the vehicle, pulled out a gun from his waistband, and demanded the drugs. As the victims drove away, appellant and the second man shot at their vehicle multiple times.

Id.

         The First District affirmed Spencer's convictions for carrying a concealed firearm and attempted robbery but, similar to Moore, reversed the convictions for attempted second-degree murder because the trial court "failed to instruct that the appellant could not be guilty of attempted manslaughter if the attempted killings were either justifiable or excusable homicide." Id. Defense counsel neither requested this instruction nor objected to the instructions as given. See id. The First District determined that it was bound by this Court's decision in State v. Lucas, 645 So.2d 425 (Fla. 1994), which held that the failure to instruct on justifiable or excusable homicide as part of the manslaughter instruction constitutes fundamental error where a defendant is convicted of manslaughter or an offense not more than one step removed, regardless of whether the evidence could support a finding of either. See id. at D2819. Concluding that nothing in the record supported justifiable or excusable attempted homicide, the First District certified the same question as in Moore to be of great public importance. See id.

         ANALYSIS

         The rephrased certified question presents a legal question for which the standard of review is de novo. See Haygood v. State, 109 So.3d 735, 739 (Fla. 2013). The trial court below read the standard jury instruction on attempted manslaughter by act with the exception of the underlined provisions:

ATTEMPTED MANSLAUGHTER BY ACT §§ 782.07 and 777.04, Fla. Stat.
To prove the crime of Attempted Manslaughter by Act, the State must prove the following element beyond a reasonable doubt:
(Defendant) intentionally committed an act, which would have resulted in the death of (victim) except that someone prevented (defendant) from killing (victim) or he failed to do so.
However, the defendant cannot be guilty of Attempted Manslaughter by Act by committing a merely negligent act.
Each of us has a duty to act reasonably and use ordinary care toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.
It is not an attempt to commit manslaughter if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.
In order to convict of Attempted Manslaughter by Act it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act which would have caused death and was not justifiable or excusable attempted homicide, as I have previously explained those terms.

Fla. Std. Jury Instr. (Crim.) 6.6 (2014). The trial court also did not instruct the jury on justifiable or excusable attempted homicide. Those instructions provide:

JUSTIFIABLE ATTEMPTED HOMICIDE
An attempted homicide is justifiable and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the attempted homicide.
EXCUSABLE ATTEMPTED HOMICIDE
An attempted homicide is excusable and therefore lawful under any one of the three following circumstances:
1. When the attempted homicide is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
2. When the attempted homicide occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3. When the attempted homicide is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel and unusual manner.

Fla. Std. Jury Instr. (Crim.) 6.1. As noted by the First District, defense counsel did not object to these omissions.

         It is well established that "[j]ury instructions are 'subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred.' " State v. Weaver, 957 So.2d 586, 588 (Fla. 2007) (quoting Reed v. State, 837 So.2d 366, 370 (Fla. 2002)). Accordingly, Spencer is entitled to relief only if the giving of the incomplete attempted manslaughter by act instruction and the omission of the justifiable and excusable attempted homicide instructions constitute fundamental error:

To justify not imposing the contemporaneous objection rule, "the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Brown[ v. State], 124 So.2d [481, 484 (Fla. 1960)]. In other words, "fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict." Stewart v. State, 420 So.2d 862, 863 (Fla. 1982), cert. ...

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