State of Florida v. Nicolas Dominique , 42 Fla. L. Weekly Supp. 386 ( 2017 )

Supreme Court of Florida
____________
No. SC15-1613
____________
STATE OF FLORIDA,
Petitioner,
vs.
NICOLAS DOMINIQUE,
Respondent.
[March 30, 2017]
LABARGA, C.J.
This case is before the Court for review of the decision of the Fourth District
Court of Appeal in Dominique v. State (Dominique II), 171 So. 3d 204 (Fla. 4th
DCA 2015). The district court certified that its decision is in express and direct
conflict with the decision of the Third District Court of Appeal in Dawkins v.
State, 170 So. 3d 81 (Fla. 3d DCA 2015). We have jurisdiction. See art. V,
§ 3(b)(4), Fla. Const. For the reasons we explain, we quash the decision in
Dominique II and approve the decision in Dawkins.
FACTS AND PROCEDURAL BACKGROUND
Nicolas Dominique was charged with first-degree murder and ultimately
convicted of the second-degree murder of Dwayne Clementson. Dominique II,
171 So. 3d at 204. The district court provided a brief summary of the facts as
follows:
At the trial, the state presented evidence that the defendant was
outside of his former girlfriend’s house when her new boyfriend
arrived by car. When the new boyfriend exited his car, the defendant
chased the new boyfriend down the street while firing a gun, shooting
the new boyfriend in the leg which caused him to fall, and then
shooting the new boyfriend in the back of the head, killing him.
The state argued that the defendant’s actions constituted first-
degree murder. The defendant argued that his actions in chasing the
new boyfriend down the street while firing his gun was [sic], at worst,
manslaughter by culpable negligence.
The trial court instructed the jury on first-degree murder,
second-degree murder, manslaughter by act, and manslaughter by
culpable negligence. The jury found the defendant guilty of second-
degree murder.
Id. at 204-05.
Dominique’s jury was instructed on the lesser included offense of
manslaughter by act with the same instruction that this Court found to be
fundamentally erroneous in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), which
instructed the jury that to convict for manslaughter by act, the jury must find that
the defendant intentionally caused the death of the victim—a finding of an intent to
kill that was not an element of the offense of manslaughter by act. On direct
appeal, Dominique argued that he was entitled to relief in light of Montgomery, but
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the Fourth District disagreed and affirmed. See Dominique II, 171 So. 3d at 205.
The Fourth District rejected the fundamental error claim based on the fact that the
trial court also instructed the jury on the lesser included offense of manslaughter by
culpable negligence. See Dominique v. State (Dominique I), 40 So. 3d 33, 36 (Fla.
4th DCA 2010).
The case then came to this Court on petition for review of the decision in
Dominique I. However, we stayed that case pending the disposition of the review
of the decision of the Second District Court of Appeal in Haygood v. State, 54 So.
3d 1035 (Fla. 2d DCA 2011), which was then before this Court. Our decision in
Haygood v. State, 109 So. 3d 735 (Fla. 2013), was subsequently issued and held
that the fundamental error caused by the erroneous Montgomery manslaughter by
act instruction was not cured by giving the instruction on manslaughter by culpable
negligence where there was no evidence from which a jury could reasonably
convict of manslaughter by culpable negligence. See id. at 743. After our decision
in Haygood was issued, and upon review of the response to this Court’s Order to
Show Cause, we granted the petition for review, summarily quashed the decision
of the Fourth District in Dominique I, and remanded to the district court for
reconsideration in light of our decision in Haygood. See Dominique v. State, 160
So. 3d 894 (Fla. 2014) (table report of unpublished order).
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On remand, the Fourth District reversed the conviction and held that
fundamental error occurred in the giving of the jury instruction for manslaughter
by act, requiring a new trial. Dominique II, 171 So. 3d at 204. The Fourth District
interpreted our decision in Haygood to require a new trial any time the erroneous
manslaughter by act instruction is given and the defendant is convicted of an
offense not more than one step removed from manslaughter—regardless of
whether the evidence could support a finding of manslaughter by culpable
negligence. The district court certified express and direct conflict with Dawkins v.
State, 170 So. 3d 81, 81 (Fla. 3d DCA 2015), and the State sought review of
Dominique II in this Court based on that certified conflict.
In this case, the State contends that the Fourth District in Dominique II
misreads Haygood and other cases following Montgomery to incorrectly hold that
the erroneous manslaughter by act instruction is fundamental error in all cases,
regardless of whether the manslaughter by culpable negligence instruction is given
and regardless of whether there is evidence that reasonably supports manslaughter
by culpable negligence. Thus, this iteration of a Montgomery challenge focuses on
the district court’s interpretation of this Court’s decision in Haygood.
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The Fourth District concluded that this Court’s evolution from Montgomery
to Haygood to Griffin1 demonstrates that giving the manslaughter by act
instruction is per se reversible error, even where there is evidence that could
support a finding of manslaughter by culpable negligence. The court stated that
the culpable negligence instruction “cannot under any circumstance cure” the error
created by the faulty manslaughter by act instruction because the error is always
pertinent or material to what the jury had to consider to convict the defendant of
manslaughter. Dominique II, 171 So. 3d at 207. The district court also noted, “We
recognize the state’s factual distinction from Haygood that giving the erroneous
manslaughter by act instruction is fundamental error where the evidence does not
support the accompanying manslaughter by culpable negligence instruction,
whereas here the evidence arguably supported the accompanying manslaughter by
culpable negligence instruction.” Id. at 205. Nevertheless, the district court went
on to find the error fundamental and per se reversible. The Fourth District
explained:
In contrast to the Third District [in Dawkins], under our reading
of the evolving precedent from Montgomery to Haygood to Griffin,
giving the manslaughter by culpable negligence instruction cannot
under any circumstance cure the fundamental error caused by giving
1. Griffin v. State, 160 So. 3d 63, 70 (Fla. 2015) (holding that the giving of
the erroneous manslaughter by act instruction constituted fundamental error where
the defendant offered a misidentification defense at trial, which did not concede the
element of intent). The Haygood issue was not present in Griffin.
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the erroneous manslaughter by act instruction, even where the
evidence reasonably could support a finding of manslaughter by
culpable negligence.
Id. at 207 (bracketed material added). Dawkins held that “where the jury was also
instructed in manslaughter by culpable negligence and the evidence could
reasonably support so finding, the error in giving the flawed Montgomery
manslaughter by act instructions was not per se fundamental error.” 170 So. 3d at
83. Thus, the Fourth District certified conflict with Dawkins. Before resolving the
certified conflict, we review our decision in Haygood, which is central to this case.
Haygood v. State
In 2013, this Court issued its decision in Haygood, which is yet another case
arising out of a Montgomery fundamental error claim. In Haygood, we stated:
We hold that giving the erroneous manslaughter by act instruction,
which we found to be fundamental error in State v. Montgomery, 39
So. 3d 252 (Fla. 2010), is also fundamental error even if the
instruction on manslaughter by culpable negligence is given where the
evidence supports manslaughter by act but does not support culpable
negligence and the defendant is convicted of second-degree murder.
Haygood, 109 So. 3d at 737 (footnote omitted) (emphasis added). In Montgomery,
we held that the standard jury instruction on manslaughter by act was erroneous
because it imposed an element of an intent to kill not contained in section 782.07,
Florida Statutes (2005), the manslaughter statute. The error was found to be
fundamental in Montgomery, where the defendant was charged with first-degree
murder but was convicted of second-degree murder, only one step removed from
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manslaughter. Montgomery, 39 So. 3d at 260. We reiterated in Montgomery that
the erroneous jury instruction was fundamental error because it was “pertinent or
material to what the jury must consider in order to convict” and it pertained to an
element of the crime that was in dispute. Montgomery, 39 So. 3d at 258 (quoting
State v. Delva, 575 So. 2d 643, 645 (Fla. 1991)). Whether the error could be cured
because of the giving of a culpable negligence instruction was not at issue in
Montgomery.
In Haygood, we were asked to apply the Montgomery decision to a case in
which the erroneous manslaughter by act instruction was given, but where the jury
was also instructed on the lesser included offense of manslaughter by culpable
negligence. The circumstances of the homicide were the driving factors in
determining whether fundamental error occurred by the erroneous instruction or
whether also giving the instruction on manslaughter by culpable negligence
“cured” the error. We explained in Haygood that the defendant was angry with his
girlfriend and beat her, causing her to fall, hit her head, and become unconscious.
Haygood, 109 So. 3d at 737. At that point, Haygood had his mother call for an
ambulance and he attempted to perform CPR. Haygood told police that he had
consumed nine beers and was not completely sober, and had hit her in a rage over
her infidelity. Id. He said he did not mean to seriously injure her, and called her
death an accident because “I didn’t mean to kill her.” Id.
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A main consideration by this Court in concluding that the manslaughter by
culpable negligence instruction did not cure the erroneous manslaughter by act
instruction in Haygood was explained as follows:
The evidence in this case supported a finding that Haygood
intentionally committed an act or acts, and that the act or acts resulted
in the victim’s death. The evidence also supported a finding that he
had no intent to kill the victim. Significantly, there was no evidence
to support a finding that Tuckey’s death resulted from culpable
negligence. Haygood’s unambiguous admission that he intended to
strike, head butt, choke, and trip Tuckey essentially eliminated the
alternate means of committing manslaughter—manslaughter by
culpable negligence—as a viable lesser offense. Thus, second-degree
murder was the only offense realistically available to the jury under
the evidence presented in this case and the instructions given—
instructions that required the jury to find intent to kill in order to
convict Haygood for manslaughter by act.
Haygood, 109 So. 3d at 741-42 (emphasis added). Thus, where second-degree
murder is the only viable lesser included offense when the jury finds there is no
intent to kill, the error in the manslaughter by act instruction in requiring an intent
to cause death is fundamental if the defendant is convicted of second-degree
murder, one step removed from manslaughter. In applying both Montgomery and
Haygood to a given case in which the defendant is convicted of an offense not
more than one step removed from manslaughter, and in which both the erroneous
manslaughter by act instruction and the correct manslaughter by culpable
negligence instruction are given, the court will examine whether there is any
evidence that could “reasonably support a finding that the death occurred due to
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the culpable negligence of the defendant” in determining whether the fundamental
error is cured. Haygood, 109 So. 2d at 743. With our decision in Haygood in
mind, we turn to an analysis of the issue in this case.
ANALYSIS
Standard of Review
The certified conflict identified by the district court below presents solely a
legal question; thus, review is de novo. See Daniels v. State, 121 So. 3d 409, 413
(Fla. 2013); Haygood, 109 So. 3d at 739 (citing Kirton v. Fields, 997 So. 2d 349,
352 (Fla. 2008)). Where, as here, the error is unpreserved, we have repeatedly held
that jury instructions are subject to the contemporaneous objection rule and,
without an objection, error in an instruction can only be raised as fundamental
error on appeal. Daniels, 121 So. 3d at 417. Although the defendant has a right to
have the jury correctly instructed on the “essential and material elements of the
crime charged,” id. (quoting Delva, 575 So. 2d at 644), not all errors in jury
instructions are fundamental. See Garzon v. State, 980 So. 2d 1038, 1042 (Fla.
2008). We explained in Delva:
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.”
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Delva, 575 So. 2d at 644-45 (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla.
1982)). With these standards in mind, and in light of our decision in Haygood, a
more detailed review of the evidence and instruction given at trial in this case is
necessary.
Discussion
Dominique was charged with and tried for first-degree murder, but was
convicted of second-degree murder. The manslaughter instructions given at his
trial were as follows:
To prove the crime of manslaughter, the State must prove the
following two elements beyond a reasonable doubt:
1. Dwayne Clementson is dead.
2. (a) Nicolas Dominique intentionally caused the death of
Dwayne Clementson.
or
(b) The death of Dwayne Clementson was caused by the
culpable negligence of Nicolas Dominique.
However, the defendant cannot be guilty of manslaughter if the
killing was either justifiable or excusable homicide as I have
previously explained those terms.
In order to convict of manslaughter by intentional act, it is not
necessary for the State to prove that the defendant had a premeditated
intent to cause death.
I will now define “culpable negligence” for you. Each of us has
a duty to act reasonably toward others. If there is a violation of that
duty, without any conscious intention to harm, that violation is
negligence. But culpable negligence is more than a failure to use
ordinary care toward others. In order for negligence to be culpable, it
must be gross and flagrant. Culpable negligence is a course of
conduct showing reckless disregard of human life, or of the safety of
persons exposed to its dangerous effects, or such an entire want of
care as to raise a presumption of a conscious indifference to
consequences, or which shows wantonness or recklessness, or a
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grossly careless disregard for the safety and welfare of the public, or
such an indifference to the rights of others as is equivalent to an
intentional violation of such rights.
The negligent act or omission must have been committed with
an utter disregard for the safety of others. Culpable negligence is
consciously doing an act or following a course of conduct that the
defendant must have known, or reasonably should have known, was
likely to cause death or great bodily injury.
In order to convict of manslaughter by intentional act, it is not
necessary for the State to prove that the Defendant had a premeditated
intent to cause death.
No objection was made to the manslaughter instruction as given, even though the
manslaughter by act instruction erroneously required the jury to find an intent to
kill. See Montgomery, 39 So. 3d at 255.
The Fourth District Court of Appeal, on remand from this Court, correctly
quoted our Haygood decision by stating:
[G]iving the erroneous manslaughter by act instruction, which we
found to be fundamental error in State v. Montgomery, 39 So. 3d 252
(Fla. 2010), is also fundamental error even if the instruction on
manslaughter by culpable negligence is given where the evidence
supports manslaughter by act but does not support culpable
negligence and the defendant is convicted of second-degree murder.
Dominique II, 171 So. 3d at 205 (quoting Haygood, 109 So. 3d at 737). This
portion of the Haygood decision shows that this Court was leaving open the
possibility that the error can be cured even when the defendant is convicted of
second-degree murder, one step removed from manslaughter, under certain
circumstances. Those circumstances include when the instruction for
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manslaughter by culpable negligence is also given and the evidence reasonably
supports a finding of manslaughter by culpable negligence.
The Fourth District in Dominique II also quoted the portion of Haygood that
reiterated the principle that fundamental error occurs where “the instruction
pertains to a disputed element of the offense and the error is pertinent or material to
what the jury must consider.” 171 So. 3d at 205 (quoting Haygood, 109 So. 3d at
741). The district court concluded that the factual distinction between cases where
the evidence does not support culpable negligence and cases where, as here, the
evidence “arguably supported the accompanying manslaughter by culpable
negligence instruction” was “not central to the Supreme Court’s reasoning in
Haygood.” Id. at 205-06. Thus, the district court in Dominique II held that “under
our reading of the evolving precedent from Montgomery to Haygood to Griffin,
giving the manslaughter by culpable negligence instruction cannot under any
circumstance cure the fundamental error caused by giving the erroneous
manslaughter by act instruction, even where the evidence reasonably could support
a finding of manslaughter by culpable negligence.” Id. at 207.
In reaching this holding, the district court misapplied our decisions in
Haygood and Griffin to the issue of fundamental error under the facts of cases such
as this one. The distinction between cases in which there is evidence that could
reasonably support manslaughter by culpable negligence and those, like Haygood,
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where it cannot was indeed central to our decision in Haygood. Although the
Fourth District is correct that this Court has held intent is always pertinent or
material to what the jury must consider to convict in a homicide prosecution, that
statement cannot be considered in isolation when determining if fundamental error
in the giving of the erroneous jury instruction for manslaughter by act can ever be
cured. Intent is always pertinent in a homicide prosecution and where, as here, the
jury concludes there was no intent to kill, the question then arises what
nonintentional homicide lesser offenses are available for the jury’s consideration
and supported by the evidence. In Haygood, we found fundamental error occurred
because manslaughter by act was misinstructed to require an intent to kill and was
thus unavailable as a nonintentional lesser included offense. The instruction on
manslaughter by culpable negligence was given but was not supported by the
evidence—thus not curing the fundamental error created by the erroneous
manslaughter by act instruction.
The district court’s reliance on Griffin to explain its holding in this case was
also misplaced. First, the issue in Griffin did not turn on the culpable negligence
instruction. Instead, the issue was whether a defense of misidentification in a
homicide prosecution waives all elements of the crime other than identity—
including the element of intent. We clarified in Griffin that intent remains in
dispute, and remains the burden of the State to prove, in a homicide prosecution
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even when misidentification is the defense, because intent determines what level of
offense has been committed. We explained:
When the question before the jury is whether an unlawful
homicide occurred, and the jury finds that the killing was not
justifiable or excusable, the jury must then determine the degree of the
offense based upon the intent, if any, that the State proves existed at
the time of the homicide. A homicide found to be unlawful is not
automatically just one offense, but will be one of several possible
homicide offenses depending upon the nature of the intent or the lack
of any intent at the time of the homicide. For example, if the State has
charged first-degree murder, a necessary jury inquiry is whether the
State proved premeditated intent to kill. Lacking that proof, the jury
must then determine whether the defendant killed “by an act
imminently dangerous to another and demonstrating a depraved mind
without regard for human life.” Fla. Std. Jury Instr. (Crim.) 7.4.
“Imminently dangerous to another and demonstrating a depraved
mind” is defined in pertinent part as an act that “is done from ill will,
hatred, spite, or an evil intent.” If the jury concludes that the killing
was neither premeditated nor done with a depraved mind as that term
is defined, the jury must then decide if the defendant is guilty of
manslaughter by having committed an intentional act that resulted in
death, but without any intent to kill or evil intent (depraved mind) on
the defendant’s part. Thus, it can be seen that in every killing alleged
to be an unlawful homicide, the jury must necessarily consider the
intent behind the killing, or find lack of any intent behind the killing,
before it can determine what, if any, offense has been committed.
Griffin, 160 So. 3d at 68-69. Second, Griffin did not recede sub silentio from
Haygood or modify in any respect the principle announced in that case that giving
the culpable negligence instruction does not cure the fundamental error created by
the erroneous manslaughter by act jury instruction where the evidence does not
reasonably support manslaughter by culpable negligence. The converse of this
holding, which is applicable here, is that the culpable negligence instruction can
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cure the fundamental error created by the erroneous manslaughter by act
instruction where the evidence does reasonably support manslaughter by culpable
negligence.
In the present case, because the manslaughter by culpable negligence
instruction was given, the question becomes whether the evidence could support a
finding of that nonintentional homicide, thus curing the fundamental error created
by the erroneous manslaughter by act instruction. And, as explained in Haygood
and other cases concerning fundamental error, the fact that the evidence could
arguably support a verdict for second-degree murder, an offense also not requiring
an intent to kill, is not determinative of whether fundamental error occurred. See,
e.g., Haygood, 109 So. 3d at 741.
The instruction for second-degree murder, in part, asks the jury to determine
if the killing was the result of an act that was “imminently dangerous to another
and demonstrating a depraved mind.” Fla. Std. Jury Instr. (Crim.) 7.4 Murder—
Second Degree. This is defined as an act done with “ill will, hatred, spite, or an
evil intent” showing “indifference to human life,” and which a person of ordinary
intelligence would know is “reasonably certain to kill or do serious bodily injury.”
Id.
The instruction for manslaughter by culpable negligence also requires, in
part, evidence that the killing was the result of an act showing “reckless disregard
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of human life” and was an act that the defendant “must have known, or reasonably
should have known, was likely to cause death or great bodily injury.” Fla. Std.
Jury Instr. (Crim.) 7.7 Manslaughter. In these two respects the offenses have
somewhat similar elements. However, as noted above, to convict for second-
degree murder, the jury must also find that the actions demonstrate a “depraved
mind” which is proven by acts that are “done from ill will, hatred, spite, or an evil
intent.” Fla. Std. Jury Instr. (Crim.) 7.4. Manslaughter by culpable negligence has
no requirement that the jury find a depraved mind, ill will, hatred, spite, or evil
intent. See Fla. Std. Jury Instr. (Crim.) 7.7.
Thus, where a jury determines that the evidence does not prove an intent to
kill, the jury must then determine if any lesser included offense not requiring an
intent to kill is available for their consideration and has been proven. Where the
instruction on manslaughter by culpable negligence is given as well as the
instruction for second-degree murder, the jury will examine the evidence for proof
of the level of disregard for safety and human life and for evidence, if any, of an
act imminently dangerous to another and demonstrating a depraved mind without
regard for human life. Both lesser included offenses lack any requirement of an
intent to kill. Whether the defendant is guilty of one or the other will turn in large
part on whether the defendant is proved to have committed the homicide with a
level of ill will, hatred, spite, or evil intent rising to the level of a depraved mind
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required for second-degree murder. Therefore, we examine the evidence presented
during trial to determine if it reasonably could support a finding by the jury that the
killing resulted from culpable negligence, thus providing the jury with a viable
alternative to second-degree murder that also did not require an intent to kill.
This Case
Dominique was charged with and prosecuted for first-degree murder.
Clearly, the jury did not find a premeditated intent to kill because he was convicted
of second-degree murder, an offense that does not require an intent to kill. The
jury also had the option to find him guilty of manslaughter by culpable negligence,
a lesser included offense also not requiring an intent to kill. We have examined the
evidence presented at trial and conclude that it reasonably supported the lesser
included offense of manslaughter by culpable negligence. Even though the jury
was foreclosed from finding Dominique guilty of manslaughter by act due to the
erroneous instruction, the jury still had a viable, nonintentional lesser included
homicide offense for which he could have been convicted.
The testimony established that on the night of the shooting, Dominique was
on the telephone with his girlfriend, Vonshell Lindsay, when she told him their
breakup was final and that she was getting back together with Clementson, the
victim in this case. At that same moment, Dominique, who was sitting in a
borrowed car in Lindsay’s neighborhood, saw Clementson drive toward the house
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where Lindsay was visiting. Although Dominique was in the neighborhood, he
told police it was only to talk with Lindsay, and there was no evidence that
Dominique knew Clementson would be there. Dominique told police that he had a
gun with him in the car he borrowed from his sister, explaining to police that he
usually had it with him. When Dominique started walking toward Lindsay’s
house, Clementson drove by him. Dominique told officers that at that point, he
grabbed the gun and went after Clementson, firing “a whole bunch of shots” while
running. He told police he was shooting wildly without aiming, and that he hoped
Clementson was still alive. Witnesses also testified that Dominique was running in
the dark while firing with his arm extended. The only witness who saw Dominique
actually fire the gun testified first that he took aim, but she almost immediately
receded from that testimony and agreed that “[i]t was not like he stood there and
[sighted in on] the man before he took the shot.”
We conclude that this evidence reasonably meets the test for “reckless
disregard for human life” and that the defendant must have known, or reasonably
should have known, that these actions were likely to cause death, as required by
the jury instruction for manslaughter by culpable negligence as well as second-
degree murder. Certainly, Dominique’s actions demonstrated want of care,
wantonness, recklessness, or gross disregard for the safety of others, as is required
under both the manslaughter by culpable negligence jury instruction and the
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instruction for second-degree murder. Accordingly, the jury had before it two
viable alternatives, neither of which required an intent to kill. It was for the jury to
determine if the evidence rose to the level of depraved mind such that second-
degree murder was proven, a conclusion the jury reached in this case.
Because the jury was correctly instructed on manslaughter by culpable
negligence, which does not require an intent to kill, the jury did have a
nonintentional homicide offense for which they could have convicted Dominique
as an alternative to second-degree murder. Under these facts, it cannot be said that
“the verdict of guilty [of second-degree murder] could not have been obtained
without the assistance of the alleged error.” Delva, 575 So. 2d at 645 (bracketed
material added) (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). Thus,
under Haygood, the fundamental error in giving the erroneous manslaughter by act
instruction was cured. For the reasons discussed, we quash the decision in
Dominique II. Because this case is before the Court on certified conflict, the
certified conflict case of Dawkins is discussed next.
The Certified Conflict Case
The Fourth District in Dominique II certified conflict with the decision of
the Third District in Dawkins v. State. In Dawkins, the district court had before it
a petition for writ of habeas corpus alleging ineffective assistance of appellate
counsel for failure to move for rehearing based on the Third District’s decision in
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Cubelo v. State, 41 So. 3d 263 (Fla. 3d DCA 2010), and the Second District’s
decision in Haygood v. State, 54 So. 3d 1035 (Fla. 2d DCA 2011), both of which
this Court quashed.2 See Dawkins, 170 So. 3d at 82.
The Third District denied the petition in Dawkins. In doing so, the court
stated that “where the jury was also instructed in manslaughter by culpable
negligence and the evidence could reasonably support so finding, the error in
giving the flawed Montgomery manslaughter by act instruction was not per se
fundamental error.” Id. at 83. Applying our holding in Haygood, the Dawkins
court concluded that there existed some disputed evidence from which the jury
reasonably could have found Dawkins guilty of manslaughter by culpable
negligence, in contrast to the facts in Haygood. See Dawkins, 170 So. 3d at 82.
Because the Third District correctly interpreted this Court’s analysis and principle
announced in Haygood, the Dawkins decision is approved.
CONCLUSION
The evidence in this case reasonably supported the lesser included offense of
manslaughter by culpable negligence. Thus, under Haygood, the giving of the
2. On remand, the Third District reversed Cubelo’s conviction and
remanded for a new trial because of the erroneous manslaughter by act instruction.
The court concluded that the error was not cured by the culpable negligence
instruction because the evidence did support manslaughter by act but did not
support manslaughter by culpable negligence. Cubelo v. State, 137 So. 3d 1193,
1193 (Fla. 3d DCA 2014).
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manslaughter by culpable negligence instruction cured the fundamental error in the
giving of the erroneous manslaughter by act instruction. Accordingly, we quash
the decision of the Fourth District in Dominique v. State, 171 So. 3d 204 (Fla. 4th
DCA 2015), and remand to the district court with instructions to further remand to
the trial court to reinstate the conviction and sentence. We approve the conflict
decision of Dawkins v. State, 170 So. 3d 81 (Fla. 3d DCA 2015).
It is so ordered.
PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
LAWSON, J., concurs in result only.
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
Direct Conflict of Decisions
Fourth District - Case No. 4D08-2031
(Broward County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Celia A. Terenzio,
Bureau Chief, and Jeanine Germanowicz, Assistant Attorney General, West Palm
Beach, Florida,
for Petitioner
Carey Haughwout, Public Defender, Richard B. Greene, and Patrick B. Burke,
Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, Florida,
for Respondent
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