Walters v. State

Third District Court of Appeal
State of Florida
Opinion filed April 12, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D08-1518
Lower Tribunal No. 04-2111B
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Manuel Walters,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Julio E.
Jimenez, Judge.
Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public
Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.
Before ROTHENBERG, LOGUE,* and SCALES, JJ.
* Judge Logue did not participate in oral arguments.
ROTHENBERG, J.
On March 17, 2010, this Court affirmed Manuel Walters’ (“the defendant”)
conviction for second degree murder. Walters v. State, 30 So. 3d 656 (Fla. 3d
DCA 2010). Subsequent to this Court’s mandate, the Florida Supreme Court
issued its opinion in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), wherein the
Florida Supreme Court held that it constitutes fundamental error when a defendant
has been convicted of second degree murder and the jury was given an erroneous
manslaughter by act instruction. Three years after Montgomery, the Florida
Supreme Court issued its opinion in Haygood v. State, 109 So. 3d 735, 741 (Fla.
2013). In Haygood, the Florida Supreme Court held that:
[G]iving the manslaughter by culpable negligence instruction does not
cure the fundamental error in giving the erroneous manslaughter by
act instruction where the defendant is convicted of second-degree
murder and the evidence supports a finding of manslaughter by act,
but does not reasonably support a finding that the death occurred
due to the culpable negligence of the defendant.
Id. (emphasis added).
The defendant in the instant case was convicted of second degree murder,
the jury received the erroneous manslaughter by act instruction, and the jury was
also instructed as to culpable negligence as a lesser included offense of second
degree murder. Thus, the Florida Supreme Court remanded Walters v. State back
to this Court for reconsideration based on its decision in Haygood. Because
defense counsel in the instant case clearly and repeatedly argued a theory upon
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which the jury could have found the defendant guilty of manslaughter by culpable
negligence, and the evidence reasonably could have supported a finding of
culpable negligence, affirmance is mandated in this case based on both Haygood
and this Court’s opinion in Dawkins v. State, 170 So. 3d 81 (Fla. 3d DCA 2015).
Accordingly, we affirm the defendant’s conviction and sentence.
ANALYSIS
In Dawkins, this Court, on rehearing and/or clarification, re-evaluated
Dawkins’ petition for writ of habeas corpus based on the Florida Supreme Court’s
holding in Haygood. After citing to the Florida Supreme Court’s holding, this
Court held:
Upon review of the record in Dawkins’ case, there was conflicting
testimony regarding intent, and although Dawkins did not rely on a
culpable negligence defense, the record shows there existed, in all of
the disputed evidence below, some evidence from which the jury
reasonably could have found Dawkins guilty of manslaughter by
culpable negligence, in contrast to the facts in Haygood. With that in
mind, where the jury was also instructed [on] 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.
Dawkins, 170 So. 3d at 82 (citations omitted) (emphasis in the original).
Thus, based on Haygood and Dawkins, this Court must examine the entire
record to determine if: (1) there was conflicting evidence as to the defendant’s
intent; and (2) if there was conflicting evidence as to the defendant’s intent,
whether there was some evidence from which the jury reasonably could have
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found the defendant guilty of manslaughter by culpable negligence. As will be
documented below, there is more than ample evidence from which a jury could
have concluded that the victim was shot and killed due to the culpable negligence
of the defendant.
A. Culpable negligence
The culpable negligence instruction states as follows:
Each of us has a duty to act reasonably towards 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
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.
Fla. Std. Jury Instr. (Crim.) 7.7.
B. The defendant’s intent was a disputed issue at trial
As the defendant candidly admits in his reply brief filed with this Court on
May 28, 2015, the defendant’s intent was a disputed issue of fact at trial.
Mr. Walters never so much as suggested that he intended to kill the
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victim, and the State agreed that it needed to prove that element.
Defense counsel only proposed that the evidence raised a reasonable
doubt because it was consistent with an unintentional killing during a
struggle.
Reply Brief of Appellant, page 1 (record citations omitted).
A complete review of the trial transcript reveals that throughout the trial,
including cross-examination of the witnesses and his arguments to the jury,
defense counsel confronted and disputed the State’s theory of the case. The State’s
theory of the case was that the defendant accidentally discharged his own firearm
inside of a car he was in with his co-defendant, Joseph Long (“Long”), and
because the defendant was intoxicated, he mistakenly believed someone had shot
at them. The defendant then exited the car, confronted the victim, who was seated
in a car with the door closed and the windows up, struck the driver’s side window
of the victim’s car with his firearm at least two times, and then shot the victim
through one of the holes he had created in the window.
The State argued that although no one actually saw the defendant shoot the
victim, the evidence established beyond a reasonable doubt that when the
defendant exited the vehicle, he banged on the victim’s window with a firearm and
then shot the victim through a hole in the window, and that he did so with evil
intent and a depraved mind, constituting the crime of second degree murder. In
contrast, defense counsel argued that they did not know what happened that night
and the State’s case was built upon conjecture and speculation. For example,
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defense counsel argued:
We have no idea why it happened, none. You can speculate from here
to eternity and on the evidence here in this small little room in which
the [fate] of another human being will be determined, no evidence of
why it happened has been brought before you.
. . . .
The problem with this case is [that] we don’t know what happened
because you cannot solve the lack of evidence in this case with
basically speculating about what may have happened.
Defense counsel argued that the evidence was also consistent with someone
shooting at the defendant while he was seated in a vehicle; the defendant exiting
his vehicle; the defendant struggling with the victim, who was armed with a
firearm; and while the defendant was attempting to disarm the victim, the gun
discharging, fatally wounding the victim. Because no one actually saw the
shooting, defense counsel argued that, not only was the evidence consistent with an
accidental discharge of the firearm during a struggle between the defendant and the
victim, but such a view of the evidence was more plausible than the State’s theory
of the case—that the defendant banged on the victim’s car window with a firearm
and then shot the victim with evil intent and a depraved mind.
C. The disputed evidence of the defendant’s intent
The State’s theory of the case was that the events that resulted in the
victim’s death began when the defendant accidentally discharged his firearm in his
car. Because the defendant mistakenly believed someone had fired at him and
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Long, the defendant exited the car, found the victim sitting in the victim’s car,
banged on the victim’s car window with his firearm, and shot the victim through
one of the holes he had made in the window. The defendant and Long then drove
to a gas station while being pursued by the police, ran inside the store where the
defendant hid the firearm, and he and Long were ultimately arrested. Long was
taken into custody without incident at the gas station, and the defendant, who fled,
was found hiding in a shed and had to be tased in order to be taken into custody.
In support of its theory of the case, the State presented various witnesses
including police officers, Long, and several technical witnesses including a crime
technician specializing in gunshot residue, a firearm tool mark examiner, a
ballistics expert, a DNA analyst, and a medical examiner. The first witness,
Jennifer Wing, a K-9 officer for the Miami-Dade Police Department, testified that
she was seated in her vehicle approximately one block away from the shooting,
which occurred after 10:00 p.m. She testified that she heard a gunshot, looked
towards the direction of the gunshot, and saw a dark colored car parked in the
roadway. Right next to the passenger door, which was closed, she saw a silhouette
“kind of bobbing and weaving like a boxer would do and then [she] saw an arm
extend up” and then she heard another gunshot. After the second gunshot, Officer
Wing saw an individual open the passenger door and get into what was later
determined to be a green Honda, and the green Honda proceeded in her direction.
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She described the driver of the green Honda as a black male (later identified as the
co-defendant Long) and the passenger of the green Honda as a white Latin male
(later determined to be the defendant). Officer Wing noted the tag number, called
it in, asked for police assistance, and followed the Honda to a gas station, where
she saw the occupants bail out of the car and run into the convenience store. When
the defendant exited the store, Officer Wing confronted him. The defendant fled
and he was eventually apprehended by other officers, who found him hiding in a
shed.
Through the testimony of the lead detective, crime scene technician,
criminalists, a forensic biologist, a firearm tool mark examiner, and the medical
examiner, the jury learned that the lead detective arrived within nine minutes of
Officer Wing’s call for assistance. The victim’s vehicle, a white Ford, was found
on the swale at 1115 N.W. 38th Street, the scene of the shooting. The victim was
found behind a house, unresponsive and bleeding from a gunshot wound that had
entered his chest and exited his back. He also had cuts on his left hand. The
victim’s white Ford’s bumper was dented, the front driver’s side headlight was
missing, and glass from the broken headlight was found on the sidewalk. The
victim’s blood was found on the driver’s side doorjamb of his vehicle and on his
wallet, which was also found in his vehicle. No blood was found on the street,
sidewalk, or swale. The only blood found at the shooting scene outside of the
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victim’s vehicle was the blood found behind the house where the victim had
collapsed. The driver’s side window of the victim’s vehicle was broken in two
distinct places and a projectile was found lodged inside the passenger seat of the
victim’s vehicle.
An examination of the green Honda the defendant was in revealed a bullet
hole in the lower portion of the front passenger window. The crime scene
technician testified that the bullet hole was caused by a bullet shot from inside the
vehicle and exiting outside of the vehicle. A “copius” amount of gunshot primer
particles was found in the green Honda, consistent with the firearm having been
discharged in the vehicle.
Surveillance footage from inside the convenience store showed the
defendant pulling something out of his waistband. The murder weapon, a .357
Magnum, was recovered from the convenience store the defendant and Long had
fled into after the shooting. The firearm was loaded with four live rounds and two
spent casings. The projectile that entered the victim’s chest and exited his back
was recovered from the passenger seat of the victim’s vehicle. The testimony
presented at trial reflects that the recovered projectile was fired by the .357
Magnum. The barrel of the firearm also had scratches consistent with the barrel
having struck an object, which the State argued was made when the defendant
struck the victim’s car window with the firearm. When the defendant was taken
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into custody, he had cuts on his hand. DNA testing revealed that the drops of
blood found outside and inside the convenience store were the defendant’s blood.
A shard of glass, which was found stuck between the grip and the trigger guard of
the gun, was determined to have come from the broken driver’s side window of the
victim’s vehicle. From the two different DNA findings on the murder weapon, the
crime lab forensic biologist was able to conclusively rule out the victim and Long
as possible contributors, but she was not able to either rule out the defendant as a
contributor or testify that, within a reasonable degree of scientific probability, the
defendant’s DNA was on the weapon. She could only testify that the defendant
was a possible contributor of the DNA found on the murder weapon.
Lastly, the State called the co-defendant, Long, as a witness. Long testified
that the defendant picked him up that evening in the green Honda and that they
drove to a music studio. Thereafter, the defendant asked Long to drive because the
defendant told Long “he was kind of messed up” and he did not have a valid
driver’s license. Long began driving. While they were stopped at a stop sign,
Long saw someone walking on a sidewalk towards them, saw the defendant
swinging his arm towards the rear window, and heard a loud bang. Long hit the
brakes, and while Long was looking around the car to see if anything had been
broken, the defendant jumped out of the car. When he next saw the defendant, the
defendant was standing outside of a white car. He saw the defendant strike the
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window of the white car with something in his hand, and while the defendant was
about to strike the window again, he heard another “bang go off.” The defendant
jumped back into the green Honda with Long driving. Long stopped at a gas
station and surrendered to the police.
The record reflects that throughout the trial, defense counsel attempted to
discredit both the State’s theory and the evidence that the defendant intentionally,
and with malice, ill-will, or evil intent shot and killed the victim. Instead, defense
counsel attempted to convince the jury that either the victim had shot at the
defendant or the defendant mistakenly believed that the victim shot at him, the
defendant exited his vehicle and confronted the victim, and the gun accidentally
discharged while the defendant was trying to defend himself as he was struggling
with the victim over the gun.
Thus, defense counsel focused on the defendant’s lack of malice, ill-will, or
intent. Beginning with his opening statement, defense counsel told the jury that the
evidence that would be presented during the trial would be more consistent with
the defense’s theory that the defendant was attacked by the victim first when the
victim shot at him, and then the defendant confronted the victim and the firearm
discharged while the defendant and victim were struggling over the firearm, rather
than the State’s theory of the case that the defendant had intentionally and with
malice, ill-will, or evil intent shot and killed the victim. For example, defense
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counsel stated the following:
There are two holes in the window [of the victim’s car]. And the
evidence will show that those two holes may very well have been
caused by being hit with a gun or by fists. And the evidence will also
show that it is consistent with two people struggling for a gun,
slamming against the window and breaking it. And the fact that those
knuckles and the knuckles that are cut are Mr. Walters, the evidence is
consistent and will show that Mr. Walters had his hands over the
hands of the individual who was trying to shoot him, who is the
deceased in this case. And that’s why his knuckles are the ones that
are cut and not the victim’s.
Defense counsel actively pursued this defense through the cross-examination
of the State’s witnesses. For example, when defense counsel cross-examined
Officer Wing, he established that she was approximately one block away from
where the shooting occurred, she did not see a muzzle flash or how the shooting
occurred. Gunshot residue was found: (1) inside the green Honda the defendant
was in; (2) on the palm and back of the victim’s left hand but not on the victim’s
right hand (the victim was right-handed); (3) on the palm of the defendant’s right
hand; and (4) on the palm and back of the defendant’s left hand. When defense
counsel cross-examined Alan Kline, the criminalist who testified about the gunshot
residue, he asked Kline whether, based on his examination of the gunshot residue,
it was possible that the defendant and the victim had struggled over the gun and the
gun had discharged during the struggle. Kline agreed that it was possible. Defense
counsel was also able to establish that gunshot residue may be rubbed off or
transferred during contact and that fire rescue and medical personnel may have
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disturbed gunshot residue on the victim’s hands while trying to save the victim’s
life.
Through the medical examiner, defense counsel was able to obtain expert
testimony that the evidence, including the trajectory of the projectile that entered
and exited the victim’s body and was found lodged in the passenger seat of the
victim’s vehicle, was consistent with a struggle outside of the car, the gun
discharging during the struggle, and the bullet traveling through the victim’s chest
through the open car door, and into the passenger seat of the victim’s vehicle.
Additionally, in support of the defendant’s defense that the defendant was not
armed that evening and that the victim was the initial aggressor who fired a shot at
the defendant, followed by a struggle over the gun in the defendant’s attempt to
disarm the victim, and the gun discharging during that struggle, defense counsel
elicited testimony from the co-defendant, Long, that he never saw the defendant in
possession of a firearm that night and that he could not tell whether the first shot
was due to the discharge of a firearm inside the car that he and the defendant were
in or due to someone shooting at them.
Lastly, during closing arguments, defense counsel argued that the State had
failed to prove how the shooting occurred. He argued that the evidence was
inconsistent with the State’s theory of the case, and he attacked the credibility of
and the conclusions reached by some of the State’s witnesses. He then highlighted
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the testimony by the medical examiner, who admitted that the victim could have
been shot during a struggle, and argued that it was more plausible that the victim
was shot while the defendant was attempting to disarm the victim, who was trying
to shoot the defendant.
Well, as plausible, as, much more plausible than one of the theories of
the prosecution is that Mr. Walters was trying to disarm[] the
individual [who] was trying to shoot him. And that he puts his right
hand over the hand of the man who had the gun. And as they
struggled for the gun, of course, the man who had the gun has the gun,
has his hand under the hand . . . that covers him. And that during that
bobbing and weaving[,] that . . . struggle that gun crashes two or three
times against the window breaking it, then, of course, Mr. Walters[’]
hand would be cut. But the hand of the individual who’s holding the
gun is shielded by the man’s hand. . . .
. . . .
Contrary to what the State stated during its first part of closing
summation there were injuries that were very much indicated during
my question that there might have been a struggle or that could have
been a struggle. The doctor described that there was a cut [on] [the
victim’s] nose which the State theorizes could have been from a piece
of glass, that’s a theory. It is consistent with a piece of glass,
consistent means it could have happened, that what it means. But
there’s also contusions[,] he had abrasions [on] one of his knees and
he had another contusion on his body.
So therefore that is also consistent with injuries in a struggle
absolutely. . . .
Thus, it is clear that defense counsel actively pursued a theory that when the
defendant shot the victim it was without malice or evil intent.
C. The record contains evidence upon which the jury could have found the
defendant guilty of culpable negligence
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The undisputed evidence was that the defendant was “messed up” that
evening. The jury could have found the defendant guilty of manslaughter by
culpable negligence if the jury concluded that (1) the defendant, in his intoxicated
state, accidentally discharged his own firearm in the green Honda, (2) in his stupor,
the defendant believed someone had fired at him while he was seated in the Honda,
(3) the defendant exited the Honda to confront the victim, who he believed may
have shot at him, banged on the window of the vehicle the victim was in with a
firearm, and (4) the firearm either discharged while the defendant was banging on
the window, or while he and the victim were struggling over the gun.
Culpable negligence is the failure to act reasonably towards others without
any conscious intention to harm. It is reckless conduct—a negligent act or acts
committed with an utter disregard for the safety of others. There was evidence
upon which the jury could have found that the defendant’s acts were gross and
flagrant, demonstrating a disregard for human life or the safety of persons exposed
to his acts—that he consciously committed an act or acts or followed a course of
conduct that the defendant must have known or reasonably should have known was
likely to cause death or great bodily harm.
If the jury did not believe that the State had proved beyond a reasonable
doubt that when the defendant shot the victim he did so intentionally and with ill-
will, hatred, spite or evil intent, then it could have found that the defendant did so
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while acting with gross and flagrant recklessness. Carrying a loaded firearm on his
person while in such an intoxicated state that he was unable to discern whether he
had accidentally discharged his own firearm while seated in a car with another
individual or he was being fired upon by someone outside of the car was certainly
gross, flagrant, and reckless behavior, demonstrating a total disregard for the safety
of the other occupant (Long who was driving the car) and the general public. But
neither Long nor members of the general public were killed as a result of the
negligent discharge of the defendant’s firearm in the green Honda. It was the
defendant’s subsequent acts that resulted in the death of the victim. The jury could
have concluded that because of his mistaken belief that someone had fired a gun at
him, the defendant confronted an innocent and unarmed man with his firearm. In
his stupor and rage, the defendant banged on the window of the vehicle the victim
was in with that firearm, and the firearm discharged, killing the victim. Thus, if
the jury was not convinced that the defendant was guilty of second degree murder,
it could have found the defendant guilty of manslaughter by culpable negligence.
Because there was evidence from which the jury could have found the
defendant guilty of manslaughter by culpable negligence, this Court must affirm
the defendant’s conviction based on this Court’s decision in Dawkins and the
Florida Supreme Court’s decision in Haygood. In Dawkins, this Court specifically
relied on Haygood in denying Dawkins’ petition for writ of habeas corpus based on
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the erroneous manslaughter by act instruction given to the jury. In finding that no
fundamental error had occurred, this Court held that, although Dawkins did not
rely on a culpable negligence defense, there was evidence upon which the jury
could have found Dawkins guilty of manslaughter by culpable negligence. The
same is true in this case.
CONCLUSION
The issue before this Court on remand is whether the unobjected-to
erroneous manslaughter by act jury instruction is fundamental error where the
defendant was convicted of second degree murder and the jury was also instructed
on manslaughter by culpable negligence as a lesser included offense of second
degree murder. Because the record clearly reflects that the defendant’s intent was
a disputed issue at trial and there was evidence upon which the jury could have
found that the firearm accidentally discharged and killed the victim due to the
culpable negligence of the defendant, the giving of the flawed manslaughter by act
instruction does not constitute fundamental error in this case. Accordingly, we
affirm.
Affirmed.
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