Opinion
Case No. 2D03-324.
Opinion filed October 3, 2003.
Petition Alleging Ineffective Assistance of Appellate Counsel, Collier County; Daniel R. Monaco, Judge.
Elpido A. Ayala, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
Elpido A. Ayala, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raised two claims of ineffective assistance of appellate counsel. In his first claim, Ayala alleged that appellate counsel was ineffective in failing to argue that the trial court committed fundamental error in merging the jury instructions on voluntary and involuntary manslaughter. This claim is without merit, and we deem it unnecessary to discuss it further. However, we grant the petition as it relates to Ayala's second claim in which he alleged that appellate counsel was ineffective in failing to argue that it was fundamental error to instruct the jury on voluntary manslaughter where the information did not allege the element of intent to cause death, which is a necessary element of voluntary manslaughter. Because the trial court's fundamental error in instructing the jury would have required reversal had it been raised as an issue on appeal, we vacate Ayala's manslaughter conviction and remand for a new trial. See Holmes v. State, 842 So.2d 187, 187 (Fla. 2d DCA 2003).
Ayala was charged with second-degree murder. The information alleged in part that Ayala "did unlawfully, by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, kill and murder [the victim] . . . by stabbing the victim with a knife." The evidence at trial established that Ayala's roommate argued with Ayala and they fought, with the roommate striking the first blow. After a short interlude, the argument continued and, during the second confrontation, Ayala stabbed and killed the roommate. At trial, Ayala argued self-defense. There was no doubt that Ayala's stabbing of the victim was intentional. The jury convicted Ayala of the lesser-included offense of manslaughter. Ayala's conviction and sentence were affirmed on appeal.Ayala v. State, 834 So.2d 163 (Fla. 2d DCA 2002) (table decision).
Manslaughter is defined in part as the "killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification."
§ 782.07(1), Fla. Stat. (2000). The standard jury instruction for manslaughter states that the trial court must give instruction 2.a., b., or c., depending on the proof. Under 2.a., the jury is instructed that the defendant intentionally caused the death of the victim; under 2.b., the jury is instructed that the defendant intentionally procured the death of the victim; and under 2.c., the jury is instructed that the death of the victim was caused by the culpable negligence of the defendant. Manslaughter by act or procurement is classified as voluntary manslaughter whereas manslaughter by culpable negligence is classified as involuntary manslaughter. See Looney v. State, 756 So.2d 239, 239-40 (Fla. 2d DCA 2000) (citing Taylor v. State, 444 So.2d 931, 934 (Fla. 1983)). The crime of voluntary manslaughter requires an intent to cause death whereas the crime of involuntary manslaughter does not. Id. at 240.
In the present case, the jury was instructed on alternate theories of voluntary and involuntary manslaughter. Under the voluntary manslaughter instruction, the jury was instructed that the State had to prove that Ayala "intentionally caused the death" of the victim. The verdict form gave the jury the option of finding Ayala guilty "of the lesser-included offense of Manslaughter." It did not delineate between voluntary and involuntary manslaughter.
Ayala relies on Looney. Looney appealed his manslaughter conviction. The State charged Looney with manslaughter, alleging in the information "that Looney `did unlawfully, by his intentional act, kill Marlene Grenier, a human being, by striking her and causing her to receive wounds or injuries which resulted in her death.'" Looney, 756 So.2d at 240. TheLooney court concluded that "[a]lthough this language seemingly charges manslaughter by act, it does not necessarily exclude a charge of manslaughter by culpable negligence." Id. The court went on to hold: "Because the information does not allege the essential elements of intent to cause death for manslaughter by act, and thus we cannot determine whether the jury convicted Looney of a charge not made in the information, we must reverse Looney's conviction." Id. The Looney court noted that "[i]t is well settled that a conviction on a charge not made by the State's charging document is a denial of due process of law." Id. In C.R.C. v. State, 842 So.2d 235, 237 (Fla. 2d DCA 2003), this court held: "Conviction of an offense not within the ambit of the charging document constitutes a denial of due process and is fundamental error." This is so, even though the proof at trial may have sustained the conviction for the uncharged offense. See id. This court in Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001), held that it was reversible fundamental error to instruct the jury on an alternate theory of committing an offense where that theory was not charged in the information and the jury verdict was a general one which did not delineate between the alternate theories. The Dixon court concluded that "[t]his error is fundamental because the jury's general verdict makes it impossible to know whether Dixon was convicted of the offense with which he was charged." Id. Fundamental error may be raised on appeal even when the issue was not preserved below. See Spencer v. State, 842 So.2d 52, 73 (Fla. 2003).
Dixon and Looney were issued prior to appellate counsel filing the initial brief. Both cases essentially hold that it is fundamental error for a jury to convict under a general jury verdict where there were two alternate theories of committing the offense, only one of which was charged in the information, and the verdict makes it impossible to know which theory the defendant was convicted under. In the present case, it was fundamental reversible error for the trial court to instruct on voluntary manslaughter where the intent to kill element of voluntary manslaughter was not charged in the information and the general verdict made it impossible to know whether Ayala was convicted of voluntary or involuntary manslaughter. Had appellate counsel presented this argument on direct appeal, we would have reversed Ayala's manslaughter conviction and remanded for a new trial. See Dixon, 823 So.2d at 794; Looney, 756 So.2d at 240. Accordingly, we vacate Ayala's conviction and remand for a new trial. See Holmes, 842 So.2d 187.
Petition alleging ineffective assistance of appellate counsel granted.
NORTHCUTT, J., Concurs.
ALTENBERND, C.J., Concurs with opinion.
I concur in this opinion only because our prior opinion in Looney, 756 So.2d 239, appears to compel this outcome. I do not regard the error in this instruction as fundamental. Especially now that the supreme court has clarified that error can be regarded as fundamental only if it is also harmful, see Reed v. State, 837 So.2d 366, 369-70 (Fla. 2002), I would not choose to treat this error as fundamental but for our established precedent.
I would dissent if I could convince myself that Reed had effectively overruled Looney. Although I believe that Looney is inconsistent with Reed, I conclude that this court must follow Looney or recede from Looney in an en banc opinion.
Mr. Ayala plunged a large butcher knife approximately seven inches long into the chest of his victim. This act apparently concluded an ongoing, drunken dispute between the two men. As the majority opinion accurately recognizes, there was no doubt that the act was intentional. Nothing in our record suggests that Mr. Ayala committed any act that might be characterized as culpable negligence. The State tried this case almost exclusively on a theory of second-degree murder, and the defense relied exclusively on self-defense as its theory.
The State requested that the trial court use the standard manslaughter instruction, which includes an instruction on both death by intentional act and death by culpable negligence. See Fla. Std. Jury Instr. (Crim.) 101 Manslaughter. This was a logical request because the schedule of lesser-included offenses in the standard jury instructions lists manslaughter as a category 1 lesser-included offense. See Fla. Std. Jury Instr. (Crim.) 372. Thus, the standard jury instructions inform judges that they must read the manslaughter instruction as a mandatory lesser-included offense to second-degree murder. Unfortunately, the standard jury instructions do not warn anyone that Taylor, 444 So.2d at 934, draws a distinction between manslaughter by culpable negligence and manslaughter by act or procurement. Technically, only the manslaughter by act or procurement is a necessarily lesser-included offense to second-degree murder, even though the manslaughter statute describes manslaughter in a single compound sentence rather than separating the three forms of manslaughter into separate subsections. See § 782.07(1), Fla. Stat. (1999).
The defense made no objection to the requested instructions. Similarly, the defense did not object to the verdict form, which listed manslaughter as a generic lesser-included offense and made no distinction between the types of manslaughter. Although the State made one reference to "culpable negligence" when reading the elements of the offense during its closing argument, neither the State nor the defense made any meaningful use of this erroneous instruction during closing arguments. Given the facts in this case, neither the State nor the defense could have made a logical argument that the evidence supported any theory of manslaughter by culpable negligence.
Nevertheless, we are reversing because Looney, 756 So.2d at 240, holds that it is fundamental error to give the culpable negligence instruction in this situation and that a general verdict convicting a defendant of manslaughter cannot rule out the possibility that the error was harmless. I agree that it was error to give this instruction in light ofTaylor, but I do not agree that we are required to close our eyes to the facts in this case or the method by which it was tried when determining whether the error was the type of harmful error that may be categorized as fundamental. I am convinced beyond a reasonable doubt that the stray erroneous instruction played no role in this case and that the jury's conviction was not based on any theory of culpable negligence. But for our prior decision in Looney, I would consider this unpreserved error harmless and not fundamental. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003) (en banc) (holding that improper inclusion of "remaining in" language in jury instruction for burglary was not fundamental where no reasonable jury could have been misled by language given undisputed evidence of forced entry).
Since our decision in Looney, the supreme court has clarified the concept of fundamental error. See Reed, 837 So.2d 366. In Reed, the supreme court receded from State v. Clark, 614 So.2d 453 (Fla. 1992), which had ruled that fundamental error could be harmless error. 837 So.2d at 370 n. 3. The court stated that to meet the "exacting standard" required for fundamental error, "it must follow that the error prejudiced the defendant." Id. at 370. Thus, the supreme court held that "all fundamental error is harmful error." Id.
Although the court in Reed stated that "fundamental error is not subject to harmless error review," it is important to appreciate that the supreme court has not held that all fundamental error is per se error. Per se error is a variety of error that we deem to be harmful without an examination of the record. We do this because the error affects the structure of the trial in a manner that cannot accurately be assessed by a review of the record. See State v. Schopp, 653 So.2d 1016, 1020 (Fla. 1995) (explaining per se errors always "vitiate the right to a fair trial"); Dougherty v. State, 813 So.2d 217, 223 (Fla. 2d DCA 2002) (describing certain per se errors as structural defects in constitution of trial mechanism which defy analysis by harmless error standards);Scott v. State, 618 So.2d 1386, 1388-89 (Fla. 2d DCA 1993) (holding closed-circuit television plea and sentencing not per se error). Although a specific per se error may be sufficiently serious to constitute fundamental error, even per se errors are not necessarily fundamental.See, e.g., Thomas v. State, 730 So.2d 667, 668-69 (Fla. 1998) (holding trial judge's failure to respond to request from jury without prosecuting attorney, defendant, and defendant's counsel present was per se error but not reversible error when counsel failed to make contemporaneous objection).
Instead, the supreme court is explaining that implicit within the concept of fundamental error is a requirement that the appellate court be convinced that an error was actually harmful before it intercedes to protect a party from an error that the party did not find objectionable at the time it was occurring. Reed, 837 So.2d at 370 (noting fundamental error occurs only when omission is pertinent or material to what jury must consider in order to convict, citing State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991)). The harm or prejudice to the defendant required to establish fundamental error can be either a harm demonstrable from the record or a structural error that vitiates the defendant's right to a fair trial. Unless an error meets this high standard, it remains subject to a harmless error analysis under State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). Reed, 837 So.2d at 370.
In other words, although an appellate court reviewing a preserved error in a criminal case considers whether the error was harmless as the last step in its analysis, Reed essentially requires an appellate court to make an earlier determination of harmfulness when evaluating an unpreserved error to decide whether that error is fundamental.
Just as a technical failure to prove an element of an offense may not be a fundamental error, F.B. v. State, 28 Fla. L. Weekly S624 (Fla. July 11, 2003), an inclusion of an additional instruction may not be fundamental when nothing in the record suggests that its inclusion prejudiced the defendant. But for our decision in Looney, I would deny the petition alleging ineffective assistance of appellate counsel because the inclusion of the culpable negligence portion of the jury instruction on manslaughter was not harmful, and therefore not fundamental, error.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED