JOYCE ANN MCGEE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Joyce Ann McGee was convicted of battery and manslaughter after claiming self-defense in a knife attack case. The appellate court affirmed her conviction, rejecting arguments that cross-examination about inconsistencies in her police statement was improper and that the trial court erred in failing to instruct the jury on justifiable homicide during reinstructions.
The court affirmed the conviction on both grounds. First, cross-examination regarding the inconsistency between the police statement and trial testimony was proper. Second, while the omission of jury instructions on justifiable and excusable homicide was erroneous, the failure to preserve error through a defense objection precluded relief, as the Supreme Court in Castor v. State required an objection to preserve such error during reinstructions.
[1] A defendant's prior inconsistent statement to police may be used for impeachment purposes during cross-examination, even if the statement does not mention a specific deta…
[2] A failure to instruct the jury on justifiable and excusable homicide during reinstruction constitutes fundamental error if there is evidence to support such a defense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“an objection is required to preserve the error when it occurs during a reinstruction”
Establishes the procedural requirement that defense counsel must object to preserve instructional error during reinstructions, preventing the court from finding fundamental error.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcGee was charged with battery and second degree murder with a knife. She claimed self-defense and testified at trial. In a statement to police after …
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SCHWARTZ, Chief Judge.
The defendant was charged with battery and second degree murder with a knife. She claimed self-defense and took the stand to support that contention. She was convicted of battery and the lesser included offense of manslaughter with a deadly weapon. We reject both of her arguments for reversal and affirm.
First, there was no error in permitting cross-examination of the defendant concerning the fact that in a statement freely given the police after the incident, she had not referred to a specific claim— that a shot had been fired before she stabbed the decedent — which was a feature of her testimony at the trial. Holmes v. State, 565 So. 2d 824 (Fla. 4th DCA 1990); Minnis v. State, 505 So. 2d 17 (Fla. 3d DCA 1987).
The second point arises from the fact that, when the jury returned for rein-structions on the law of second degree murder and manslaughter during its deliberations, the trial court gave only general definitions of the respective offenses, and did not charge on the particulars of excusable and justifiable homicide. There is no question that this omission was erroneous, see Rojas v. State, 552 So. 2d 914 (Fla.1989); Hedges v. State, 172 So. 2d 824 (Fla.1965), particularly when there was ample evidence to support the claim of self-defense which is encompassed in the definition of justifiable homicide. Rojas, 552 So. 2d at 914. Because, however, defense counsel did not object, and indeed agreed, to the reinstructions, the appellant must and does contend that the omissions constituted fundamental error. See Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986) (failure to define justifiable and excusable homicide in original instructions fundamental error). The insurmountable difficulty with this position is that the supreme court held directly to the contrary in an identical situation involving «instructions in Castor v. State, 365 So. 2d 701 (Fla.1978). The appellant makes the not unpersuasive contention that the Castor case does not survive the language and rationale of the later decided supreme court decision in Ro jas in a situation like this one in which there was evidence to support the defense of justifiable homicide. See especially Rojas, 552 So. 2d at 916 n. 3.1 This is an argument, however, that this court is not free to accept, both because the Rojas court specifically reiterated the rule that an objection is required to preserve the error when it occurs during a reinstruction,
Rojas, 552 So. 2d at 915, citing Castor, 365 So. 2d at 701, and because we could not, in any event, decline to follow a supreme court opinion in the absence of a specific indication by the court itself that the case is no longer viable. State v. Dwyer, 332 So. 2d 333, 335 (Fla.1976); Hoffman v. Jones, 280 So. 2d 431, 440 (Fla.1973); Ball v. Public Health Trust of Dade County, 491 So. 2d 608, 610 (Fla. 3d DCA 1986); Hill v. State, 302 So. 2d 785, 787 (Fla. 4th DCA 1974); see also Armstrong v. State, 566 So. 2d 943 (Fla. 5th DCA 1990). If we are wrong about this, the supreme court of course has the authority to review the present decision as in direct conflict with Rojas.
Affirmed.
. Footnote 3 reads:
This opinion is directed only to the failure to instruct on justifiable and excusable homicide as it relates to the definition of manslaughter. In those cases in which there is evidence to support the defenses of justifiable or excusable homicide, the standard jury instructions provide for longer and more explicit instructions to be given on these defenses. We do not pass on the conclusion of the district court of appeal that the evidence in the instant case did not warrant the longer instruction on justifiable or excusable homicide, [e.s.]
Rojas, 552 So. 2d at 916.
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Paulo McBEAN v. State, 688 So. 2d 383 (Fla. 4th DCA 1997)…2d 824 (Fla. 4th DCA [*385] 1990), rev. denied, 576 So. 2d 287 (Fla.1991) (where defense witness gave alibi on direct examination, no error in permitting extensive cross-examination regarding failure to assert it at earlier hearing); McGee v. State, 570 So. 2d 1079 (Fla. 3d DCA 1990), rev. denied, 582 So. 2d 623 (Fla.1991) (where issue is self-defense, no error in permitting cross-examination about fact that statement given police after incident made no reference to a shot being fired before victim was stabbed…
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Haines City Cmty. Dev. v. Leila Heggs, 647 So. 2d 855 (Fla. 2d DCA 1994)…in its review capacity over a county court. State ex rel. Garland v. City of West Palm Beach, 141 Fla. 244, 193 So. 297 (Fla. 1940); Levy v. Levy, 483 So. 2d 455 (Fla. 3d DCA), review denied, 492 So. 2d 1333 (Fla. 1986). As noted in McGee v. State, 570 So. 2d 1079, 1081 (Fla. 3d DCA 1990), review denied, 582 So. 2d 623 (Fla.1991), a district court of appeal cannot “decline to follow a supreme court opinion in the absence of a specific indication by the court itself that the case is no longer viable.” Since,…
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Ospina v. State, 579 So. 2d 810 (Fla. 5th DCA 1991)…llenge to an illegal sentence may be brought at any time and a sentence that is entered pursuant to guidelines which had not been constitutionally enacted is an illegal sentence. Boland v. State, 571 So. 2d 518 (Fla. 2d DCA 1990); Dewberry v. State, 570 So. 2d 1079 (Fla. 1st DCA 1990); Davis v. State, 552 So. 2d 338 (Fla. 4th DCA 1989). In his 3.850 motion defendant also claims that the trial court did not afford [*812] him a right to “allocution” on the capital charge because the jury did not specifically fi…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Rojas v. State, 552 So. 2d 914 (Fla. 1989)
- State v. Dwyer, 332 So. 2d 333 (Fla. 1976)
- Telesford Alejo v. State, 483 So. 2d 117 (Fla. 2d DCA 1986)
- Minnis v. State, 505 So. 2d 17 (Fla. 3d DCA 1987)
- Armstrong v. State, 566 So. 2d 943 (Fla. 5th DCA 1990)
- Holmes v. State, 565 So. 2d 824 (Fla. 4th DCA 1990)
- Ball v. Pub. Health Tr. OF Dade Cnty., 491 So. 2d 608 (Fla. 3d DCA 1986)