NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DONTA DWAYNE SAMS, )
)
Appellant, )
)
v. ) Case No. 2D16-2117
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 12, 2019.
Appeal from the Circuit Court for Polk
County; Reinaldo Ojeda, Judge.
Howard L. Dimmig, II, Public Defender, and
Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Cerese Crawford
Taylor, Assistant Attorney General, Tampa,
for Appellee.
KELLY, Judge.
Donta Sams was tried before a jury on two charges of attempted first-
degree murder, two counts of child abuse, and one count of shooting into a building.
The jury found him guilty of attempted second-degree murder, child abuse, and
shooting into a building. He appeals from the judgment and sentences entered
pursuant to the jury's verdict. While Sams raises several issues on appeal, we need not
address each one because we conclude his challenge to the jury instructions is
dispositive and requires that we reverse.
Sams argues the trial court committed fundamental error because the jury
instruction for attempted manslaughter did not exclude justifiable and excusable
homicide from the definition of attempted manslaughter. He also argues it was
fundamental error to omit the introduction to the homicide instruction that defines
justifiable and excusable homicide. Both of these omissions have been held to be
fundamental error and not subject to a harmless error analysis where the defendant is
convicted of manslaughter (or attempted manslaughter) or a greater offense not more
than one step removed. See State v. Spencer,
216 So. 3d 481, 486 (Fla. 2017)
(declining to recede from State v. Lucas,
645 So. 2d 425 (Fla. 1994), "even where there
is nothing in the evidence from which a jury could conclude that a homicide or an
attempted homicide was excusable or justified");
Lucas, 645 So. 2d at 427 (recognizing
that "a complete instruction on manslaughter requires an explanation that justifiable and
excusable homicide are excluded from the crime" and that failure to give the complete
instruction is fundamental error which is not subject to a harmless error analysis where
the defendant has been convicted of manslaughter or a greater offense not more than
one step removed); Armstrong v. State,
579 So. 2d 734, 735 (Fla. 1991) ("Failure to
instruct on justifiable or excusable homicide as it relates to the definition of
manslaughter is reversible error."); Hedges v. State, 172 So. 2d 824, 826 (Fla. 1965)
("[I]n order to supply a complete definition of manslaughter as a degree of unlawful
homicide it is necessary to include also a definition of the exclusions."), receded from on
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other grounds by Weiand v. State, 732 So. 2d 1044 (Fla. 1999); Van Loan v. State,
736
So. 2d 803, 804 (Fla. 2d DCA 1999) ("A trial court must read the definitions of
excusable and justifiable homicide in all murder and manslaughter cases. A failure to
give these instructions constitutes fundamental error." (citation omitted)).
The supreme court has, however, articulated some exceptions to these
general rules. In Armstrong, the court quoted Ray v. State, 403 So. 2d 956, 961 (Fla.
1981), and explained that
it is not fundamental error to convict a defendant under an
erroneous lesser included charge when he had an
opportunity to object to the charge and failed to do so if . . .
defense counsel requested the improper charge or relied on
that charge as evidenced by argument to the jury or other
affirmative
action.
579 So. 2d at 735 (alteration in original). Similarly, in Lucas, the court reiterated that the
only exception it had recognized was in cases where counsel "affirmatively agreed to or
requested the incomplete
instruction." 645 So. 2d at 427. In Spencer, the court
recognized an additional exception where a defendant "expressly concedes that a
homicide or an attempted homicide is not justified or
excusable." 216 So. 3d at 486.
While this additional exception is not applicable here, the question remains as to
whether the exception discussed in Armstrong and Lucas applies here.
Sams' defense at trial was twofold—he acted in the heat of passion and in
self-defense. Defense counsel actively participated in two charge conferences in which
the trial court went over each instruction individually and discussed them with the State
and defense counsel. At no point in the charge conference is there any discussion of
the introduction to the homicide charge. Instead, during the charge conference,
defense counsel asked the court to include the following language in the instruction for
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attempted first-degree murder: "An issue in this case is whether the Defendant did not
act with a premeditated design to kill because he acted in the heat of passion based on
adequate provocation." The instruction then goes on to explain what the jury must find
to conclude that Sams acted in the heat of passion. Defense counsel also asked that
the charge for attempted second-degree murder include the same language but this
time to explain that heat of passion negates the requirement that Sams act with a
depraved mind regardless of human life. Defense counsel did not ask that the heat of
passion language be added to the attempted manslaughter instruction. He agreed to
have the instruction on the justifiable use of deadly force read at the conclusion of all
the homicide instructions. Defense counsel did not register any objection to the
attempted manslaughter instruction or to the instructions as a whole, although the trial
judge diligently inquired of counsel multiple times as to whether he was satisfied with
the instructions.
Where counsel has merely acquiesced to jury instructions that do not
provide a full instruction on justifiable or excusable homicide, the exception discussed in
Lucas does not apply.
Spencer, 216 So. 3d at 486 (explaining that the district courts,
including this one, have held that where counsel has merely acquiesced to jury
instructions that did not provide a full instruction on justifiable or excusable homicide,
the exception is not applicable). Counsel for Sams did not merely acquiesce—he was
actively involved in shaping the content of the instructions. Nor do we equate his
involvement in shaping the jury instructions as being the equivalent of requesting that
the court give incomplete instructions—at least not in the sense the supreme court has
employed that exception. See, e.g.,
Armstrong, 579 So. 2d at 735 (explaining that
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counsel requested the limited instruction in order to tailor it to the defense that the killing
was accidental).
Whether counsel affirmatively agreed to the erroneous instructions is a
closer question. There is no specific discussion regarding the introduction to the
homicide instruction; however counsel did ask the court to include the definitions for
heat of passion and justifiable use of force in the instructions, and the court did as
counsel requested. And while defense counsel affirmatively agreed to the attempted
manslaughter instruction as read, he did not specifically and affirmatively agree to
exclude the required exceptions for justifiable and excusable homicide—he merely
failed to object. In addressing the exception for cases in which counsel affirmatively
agrees to an omission or alteration of a jury instruction, this court stated in Van Loan,
that "[b]efore this exception applies, defense counsel must be aware of the omission,
alteration, or incomplete instruction and affirmatively agree to
it." 736 So. 2d at 804.
We also stated that "[t]he trial court shoulders the responsibility to properly instruct the
jury on the definitions of excusable and justifiable homicide."
Id. We believe that Van
Loan dictates the conclusion that notwithstanding counsel's actions, the omissions here
amounted to fundamental error. We find this to be the case even though defense
counsel affirmatively agreed to place the justifiable use of force and heat of passion
instructions elsewhere in the jury instructions.
We acknowledge that the extent to which Armstrong, Lucas, and Spencer
require counsel to agree to an erroneous instruction and whether the record must reflect
that counsel knew the instruction was erroneous has been subject to debate among the
district courts and is presently the subject of a certified question in Knight v. State, 43
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Fla. L. Weekly D404 (Fla. 1st DCA Feb. 19, 2018), review granted, No. SC18-309,
2018
WL 3097727 (Fla. June 25, 2018). Accordingly, we certify the following question:
IS IT FUNDAMENTAL ERROR TO CONVICT A DEFENDANT
UNDER AN ALTERED OR INCOMPLETE LESSER INCLUDED
CHARGE WHERE COUNSEL AFFIRMATIVELY AGREES TO THE
INSTRUCTION, BUT THE RECORD DOES NOT SHOW THAT
COUNSEL WAS AWARE OF THE ALTERATION OR OMISSION
AND AFFIRMATIVELY AGREED TO IT AND IS IT ALSO
NECESSARY FOR THE RECORD TO DEMONSTRATE THAT
COUNSEL WAS AWARE THAT THE INSTRUCTION, AS
ALTERED, WAS ERRONEOUS?
Reversed and remanded.
VILLANTI and LUCAS, JJ., Concur.
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