WILLIE TURNER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Willie Turner was convicted of manslaughter after being charged with second-degree murder. The Florida appellate court reversed the conviction on two independent grounds: the trial court's failure to reinstruct the jury on excusable and justifiable homicide when clarifying manslaughter law, and improper admission of testimony suggesting Turner invoked his right to remain silent.
The trial court committed reversible error on both grounds. First, when a jury requests reinstruction on manslaughter and the defendant is convicted of manslaughter, the failure to reinstruct on excusable and justifiable homicide is error because these defenses are necessary exclusions to the definition of manslaughter as an unlawful homicide. Second, any reference in the jury's presence to a defendant's assertion of the right to decline police questioning is reversible error when properly preserved.
[1] A trial court's failure to fully charge the jury on the definition of justifiable homicide, as defined by statute, constitutes reversible error when the omitted subsectio…
[2] A trial court must charge the jury on a statute defining a substantive offense of manslaughter, even if it is not a necessarily lesser included offense within murder, whe…
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Join FLexlaw to unlock all legal intelligence“[Manslaughter] is in the nature of a residual offense. If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable or excusable as defined by statute, a not guilty verdict necessarily ensues. The result is that in 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.”
Establishes why excusable and justifiable homicide are essential components of any manslaughter instruction, not discretionary additions
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Join FLexlaw to unlock all legal intelligenceTurner was charged with second-degree murder and the jury was initially instructed on second-degree murder, manslaughter, and excusable and justifiabl…
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DANIEL S. PEARSON, Judge.
Turner, charged with second-degree murder, was convicted of manslaughter. We reverse for two reasons.
After the jury (initially instructed on, inter alia, the law relating to second-degree murder, manslaughter and excusable and justifiable homicide) retired to deliberate, it asked in a note to the court: “Can you explain or define the charge of manslaughter and second degree murder as stated by you in the law . .. ?” The trial court rein-structed the jury in accordance with the request in the note and refused Turner’s request to reinstruct the jury on excusable and justifiable homicide.
While in some instances it is not error to limit a reinstruction to a direct response to the jury’s specific request, see, e.g., Henry v. State, 359 So. 2d 864 (Fla.1978) (request to clarify difference between first and second-degree murder), when the jury’s request necessarily elicits a reinstruction on manslaughter and the defendant is convicted of manslaughter, it is error to fail to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter.1 Hedges v. State, 172 So. 2d 824 (Fla.1965); Kelsey v. State, 410 So. 2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So. 2d 313 (Fla. 4th DCA 1981); Lawson v. State, 383 So. 2d 1114 (Fla. 3d DCA 1980). The oft-repeated reason for this rule is:
“[Manslaughter] is in the nature of a residual offense. If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable or excusable as defined by statute, a not guilty verdict necessarily ensues. The result is that in 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.” Hedges v. State, supra, at 826.
Additionally, the trial court erred in denying Turner’s motion for mistrial when the State improperly elicited testimony from a police officer that Turner, after being given Miranda warnings and making certain statements, ultimately stated “that is all I am gonna tell you right now.”
Florida courts have persistently held that any reference in the jury’s presence to the defendant’s assertion of his right to decline to answer police questions is reversible when the error of such comment is, as here, properly preserved. Clark v. State, 363 So. 2d 331 (Fla.1978); Shannon v. State, 335 So. 2d 5 (Fla.1976); Bennett v. State, 316 So. 2d 41 (Fla.1975); Barnes v. State, 375 So. 2d 40 (Fla. 3d DCA 1979); Thomas v. State, 342 So. 2d 991 (Fla. 3d DCA 1977). In our view, the comment in the present case can only be construed as a comment on Turner’s refusal to further speak, see Peterson v. State, 405 So. 2d 997, 999 (Fla. 3d DCA 1981) (statement that defendant “would stop when he didn’t want to answer any more” improper reference to defendant’s refusal to talk); Thompson v. State, 386 So. 2d 264, 266 (Fla. 3d DCA 1980) (statement that defendant “would not talk any further,” same); Lucas v. State, 335 So. 2d 566, 567 (Fla. 1st DCA 1976) (statement that defendant “didn’t want to talk [to officer] anymore,” same), and is not, as the State suggests, an affirmative inculpatory statement. Cf. Antone v. State, 382 So. 2d 1205, 1213 (Fla.1980) (defendant’s statement, “Sicilians do not fink” not assertion of right to remain silent).
Reversed and remanded.
. Since Turner, whose defense was self-defense, was convicted of manslaughter, we quite clearly cannot say that the error was harmless. Compare Dean v. State, 325 So. 2d 14 (Fla. 1st DCA 1975) (conviction of first-degree murder renders harmless failure to reinstruct on justifiable and excusable homicide as part of gratuitous instruction on manslaughter), and Lawson v. State, supra (same, in dicta), with Hunter v. State, 378 So. 2d 845 (Fla. 1st DCA 1979) (conviction for third-degree murder reversed where trial court failed to instruct on justifiable and excusable homicide as part of manslaughter reinstruction).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Love v. State, 438 So. 2d 142 (Fla. 3d DCA 1983)…400 So. 2d 519 (Fla. 3d DCA 1981) (after defendant was advised of his right to remain silent, his free and voluntary denial of knowledge of the matter being inquired into was not an invocation of the Fifth Amendment privilege). Cf. Turner v. State, 414 So. 2d 1161 (Fla. 3d DCA 1982) (where defendant, having been warned of his right to remain silent, made certain statements short of a confession but then stated “that is all I am gonna [sic] tell you right now”, reference to that ultimate statement by the prose…
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Rigoberto Garcia v. State, 535 So. 2d 290 (Fla. 3d DCA 1988)…jury’s request necessarily elicits a rein-struction on manslaughter and the defendant is convicted of manslaughter, it is error to fail to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter.” Turner v. State, 414 So. 2d 1161, 1161-62 (Fla. 3d DCA 1982) (emphasis supplied). Kelsey v. State, 410 So. 2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So. 2d 313 (Fla. 4th DCA 1981). The question before us, however, is whether the same rule obtains where, as here, the defendant…
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Carranza v. State, 511 So. 2d 410 (Fla. 4th DCA 1987)…slaughter in an instruction, the exclusions must also be defined. See Hedges v. State at 826; Lowe v. State, 500 So. 2d 578 (Fla. 4th DCA 1986); Gross v. State, 397 So. 2d 313 (Fla. 4th DCA), rev. denied, 399 So. 2d 1146 (Fla.1981); Turner v. State, 414 So. 2d 1161 (Fla. 3d DCA 1982); Kelsey v. State, 410 So. 2d 988 (Fla. 1st DCA 1982). It is undisputed that the court initially charged the jury correctly, including a full instruction on self defense and defense of others. However, the defendant is entitled to…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Antone v. State, 382 So. 2d 1205 (Fla. 1980)
- Henry v. State, 359 So. 2d 864 (Fla. 1978)
- Lucas v. State, 335 So. 2d 566 (Fla. 1st DCA 1976)
- Dean v. State, 325 So. 2d 14 (Fla. 1st DCA 1975)
- Barnes v. State, 375 So. 2d 40 (Fla. 3d DCA 1979)
- Kelsey v. State, 410 So. 2d 988 (Fla. 1st DCA 1982)