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holding that the standard instruction erroneously “adds the additional element that the defendant ‘committed an act intended to cause the death’ of the victim when attempted manslaughter by act requires only an intentional unlawful act” (quoting Lamb, 18 So.3d at 735)
Summary of this case from Williams v. StateOpinion
No. 1D09–1420.
2011-12-20
James D. THOMPSON, Appellant, v. STATE of Florida, Appellee.
Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
VAN NORTWICK, J.
James David Thompson challenges his judgment of conviction for manslaughter, attempted second degree murder, possession of a firearm by a convicted felon and shooting into an occupied dwelling. Because the trial court committed fundamental error in instructing the jury on the crime of attempted manslaughter and erred in admitting evidence of events on August 16, 2008, we reverse and remand for a new trial.
Appellant was charged with the second degree murder by firearm of Steven Weed, the attempted first degree murder by firearm of Lizia Hardy–Batt, possession of a firearm by a convicted felon, and shooting into an occupied dwelling. The events which led to the charges occurred on August 17, 2008, in Bay County. The record reflects that appellant previously had sold drugs to Weed and was visiting Weed's neighbor when Weed called him over to the residence Weed shared with Hardy–Batt. A disagreement erupted between appellant and Weed, and Weed was shot in the head. Hardy–Batt was shot in the arm and would serve as the prosecution's chief witness against appellant.
The trial court committed fundamental error when the jury was instructed that the crime of attempted manslaughter, one of the lesser included offenses of attempted first degree murder, required proof of an intent to kill. The trial court utilized the standard instruction with regard to count II relating to Hardy–Batt, but this standard instruction has been held to be erroneous. Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009). In Lamb, we held that it is fundamental error to give the standard jury instruction for attempted manslaughter by act because that instruction “adds the additional element that the defendant ‘committed an act intended to cause the death’ of the victim when attempted manslaughter by act requires only an intentional unlawful act.” Id.; see also Minnich v. State, –––So.3d ––––, 2011 WL 265765 (Fla. 1st DCA 2011); Rushing v. State, –––So.3d ––––, 2010 WL 2471903 (Fla. 1st DCA 2010); but see Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. pending, 64 So.3d 1262 (Fla.2011). Accordingly, on this ground, a new trial is required.
The trial court also erred in admitting evidence regarding events which occurred on Saturday, August 16, and during the early morning hours of August 17, 2008; activities which occurred prior to the shooting of Weed and Hardy–Batt. Prior to trial, the State advised by a second amended notice its intent to introduce “similar fact” evidence pursuant to section 90.404(2), Florida Statutes. More particularly, the State advised of its intent to introduce evidence that on the night of August 16th, appellant kidnapped Anthony Hubbard after Hubbard paid appellant with counterfeit money for drugs. The State also sought to introduce evidence of that drug sale as well as evidence that appellant pointed a gun at Hubbard. In its motion, the State claimed that the so- called similar fact evidence, also known as Williams
PADOVANO and HAWKES, JJ., concur.
1. Williams v. State, 110 So.2d 654, 662 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).