ALBERT NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Albert Nelson was convicted of second-degree murder with a firearm, but the appellate court reversed because the trial court failed to instruct the jury on excusable and justifiable homicide when instructing on the lesser included offense of manslaughter, and defense counsel's silence did not constitute affirmative agreement to the omission under State v. Lucas.
The court reversed the conviction, holding that defense counsel's silence did not constitute affirmative agreement or request for the incomplete instruction as required by Lucas. A mere failure to object is insufficient to waive the right to a complete jury instruction on justifiable and excusable homicide.
[1] A trial court commits fundamental error by omitting instructions on excusable and justifiable homicide when instructing on manslaughter, unless defense counsel affirmativ…
[2] Silence or a failure to object to jury instructions does not constitute an affirmative agreement or request for an incomplete instruction.
Previewing 2 of 5 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“it was fundamental error for the court to omit an instruction on excusable and justifiable homicide when instructing on manslaughter, except where defense counsel "affirmatively agreed to or requested the incomplete instruction."”
Establishes the legal standard from State v. Lucas governing when omission of justifiable and excusable homicide instructions constitutes reversible error.
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Join FLexlaw to unlock all legal intelligenceNelson was convicted of second-degree murder with a firearm. At trial, the court requested the state prepare jury instructions and ordered counsel to …
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KLEIN, Judge.
Appellant, who was convicted of second degree murder with a firearm, argues that the court erred in instructing the jury on manslaughter without also instructing on excusable and justifiable homicide. We reverse.
In State v. Lucas, 645 So. 2d 425, 427 (Fla.1994), our supreme court held that it was fundamental error for the court to omit an instruction on excusable and justifiable homicide when instructing on manslaughter, except where defense counsel “affirmatively agreed to or requested the incomplete instruction.” The issue in this ease is whether defense counsel’s actions in regard to the instructions fall within the above exception.
The court requested the state to prepare the jury instructions, and requested counsel to meet to determine which instructions could be agreed to, and which could not. The next day, after reviewing the instructions which had been submitted to the court by counsel, the court inquired whether there had been agreement on them, and the prosecutor responded in the affirmative. Defense counsel did not respond.
We do not agree with the state that this constituted an affirmative agreement or request for the incomplete instruction by defense counsel under Lucas. After making the statement in Lucas about affirmative agreement, our supreme court cited Armstrong v. State, 579 So. 2d 734 (Fla.1991). In Armstrong defense counsel specifically requested “an abbreviated version of the standard instruction on excusable homicide,” and the court held under those circumstances that there was a waiver stating:
Counsel requested the limited instruction in order to tailor it to the defense that the killing was accidental. By affirmatively requesting the instruction he now challenges, Armstrong has waived any claim of error in the instruction. Any other holding would allow a defendant to intentionally inject error into the trial and then await the outcome with the expectation that if he is found guilty the conviction will be automatically reversed.
Id. at 735 (footnote omitted).
We cannot agree that in the present case defense counsel “affirmatively agreed to or requested the incomplete instruction.” Lucas at 427. At best, so far as this record shows, there was a failure to object. Nor would defense counsel’s general statement requesting no lesser included offenses, to which the court did not accede, constitute a waiver. Hall v. State, 677 So. 2d 1353 (Fla. 5th DCA 1996).
We therefore reverse the conviction of second degree murder with a firearm and remand for a new trial. After being convicted of that charge, appellant pled no contest to possession of a firearm by a convicted felon, but appellant and the state agreed that if the second degree murder conviction were reversed, the conviction based on the plea would also be reversed. We thus reverse that as well.
Finally, as the issue may be raised again at a new trial, we have considered the trial court’s admission of statements made by the victim as dying declarations and find them to have been properly admitted.
DELL and PARIENTE, JJ., concur.
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Citator
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Beckham v. State, 884 So. 2d 969 (Fla. 1st DCA 2004)…5 (finding that defense counsel’s mere acquiescence in jury instructions as given did not constitute affirmative agreement to omission of instructions on attempted manslaughter and definitions of justifiable and excusable homicide); Nelson v. State, 679 So. 2d 1249 (Fla. 4th DCA 1996) (reversing conviction of second-degree murder with firearm and remanding for new trial, absent affirmative waiver of right to a complete instruction on excusable and justifiable homicide, where parties’ lawyers reviewed proposed…
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Richardson v. State, 818 So. 2d 679 (Fla. 3d DCA 2002)…State v. Lucas, 645 So. 2d 425 (Fla.1994); Armstrong, 579 So. 2d at 734, a review of the record does not reveal an affirmative waiver. See Van Loan, 736 So. 2d at 804; Blandon v. State, 657 So. 2d 1198 (Fla. 5th DCA 1995). See also, Nelson v. State, 679 So. 2d 1249, 1250 (Fla. 4th DCA 1996). Accordingly, Richardson is entitled to a new trial. Reversed and remanded for a new trial on the attempted second degree murder charge.…
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Platt v. State, 697 So. 2d 989 (Fla. 4th DCA 1997)…ion. See Armstrong v. State, 579 So. 2d 734 (Fla.1991); Summers v. State, 672 So. 2d 617, 618 (Fla. 5th DCA 1996). The mere failure of defense counsel to object to an incomplete instruction does not constitute an affirmative waiver. Nelson v. State, 679 So. 2d 1249 (Fla. 4th DCA 1996). If the trial court’s failure to instruct on excusable homicide during the original jury charge had been raised on direct appeal, reversal would thus have been required based on the failure to give a complete instruction on mans…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Armstrong v. State, 579 So. 2d 734 (Fla. 1991)
- State v. Lucas, 645 So. 2d 425 (Fla. 1994)
- Hall v. State, 677 So. 2d 1353 (Fla. 5th DCA 1996)