IN THE SUPREME COURT OF FLORIDA. Petitioner, CASE NO. SC JURISDICTIONAL BRIEF OF PETITIONER

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1 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, v. Petitioner, CASE NO. SC NONI STINSON, Respondent. JURISDICTIONAL BRIEF OF PETITIONER BILL MCCOLLUM ATTORNEY GENERAL TRISHA MEGGS PATE TALLAHASSEE BUREAU CHIEF, CRIMINAL APPEALS FLORIDA BAR NO MICHAEL T. KENNETT ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL (850) (850) (FAX) COUNSEL FOR PETITIONER

2 TABLE OF CONTENTS PAGE(S) TABLE OF CONTENTS...i TABLE OF CITATIONS...iii PRELIMINARY STATEMENT...1 STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...2 ISSUE I IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?...3 ISSUE II AS CERTIFIED, DOES MONTGOMERY V. STATE, NO. 1D (Fla. 1 st DCA Feb. 12, 2009) DIRECTLY CONFLICT WITH BARTON V. STATE, 507 So. 2d. 638 (Fla. 5 th DCA 1987), reversed on other grounds, STATE V. BARTON, 523 So. 2d 152 (Fla. 1988)?...6 ISSUE III DOES THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICT WITH MARTINEZ V. STATE, 981 So. 2d 449 (Fla. 2008) ON THE SAME QUESTION OF LAW?...7 CONCLUSION...8 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE...8 CERTIFICATE OF COMPLIANCE...9 APPENDIX - ii -

3 TABLE OF CITATIONS CASES PAGE(S) STATE CASES Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987)... 1, 2, 5 Coyne v. State, 732 So. 2d 455 (Fla. 4th DCA 1999)... 4 Coyne v. State, 755 So. 2d 108 (Fla. 2000)... 4 Garzon v. State, 980 So. 2d 1038 (Fla. 2008) Hall v. State, 951 So. 2d 91 (Fla. 2nd DCA 2007)... 6, 7, 8, 9 Harbaugh v. State, 711 So. 2d 77 (Fla. 4th DCA 1998)... 4 Jollie v. State, 405 So. 2d 418 (Fla. 1981)... 4 Martinez v. State, 981 So. 2d 449 (Fla. 2008)... 1, 2, 9 Reed v. State, 837 So. 2d 366 (Fla. 2002) State v. Delva, 575 So. 2d 643 (Fla. 1991) State v. Lucas, 645 So. 2d 425 (Fla. 1994) State v. Sherouse, 536 So. 2d 1194 (Fla. 5th DCA 1989)... 6, 7 In re Standard Jury Instructions in Crim. Cases -- Number , 946 So. 2d 1061 (Fla. 2006)... 8 In re Standard Jury Instructions in Crim. Cases--Report Number , 2008 Fla. LEXIS 2377 (Fla. Dec. 11, 2008)... 8 Taylor v. State, 444 So. 2d 931 (Fla. 1983)... 5, 6, 7, 8 - ii -

4 Williams v. State, 41 Fla. 295, 26 So. 184 (1899)... 5, 6 DOCKETED CASES Burroughs v. State, No. 1D (Fla. 1st DCA Dec. 31, 2008)... 9 Montgomery v. State, No. 1D (Fla. 1st DCA Feb 2009)... 2, 3 - iii -

5 PRELIMINARY STATEMENT Petitioner, the State of Florida, the Appellee in the District Court of Appeal (DCA) and the prosecuting authority in the trial court, will be referenced in this brief as Petitioner, the prosecution, or the State. Respondent, Noni Stinson, the Appellant in the DCA and the defendant in the trial court, will be referenced in this brief as Respondent or by proper name. A bold typeface will be used to add emphasis. Italics appeared in original quotations, unless otherwise indicated. STATEMENT OF THE CASE AND FACTS A jury convicted the Respondent of murder in the second degree, rejecting her claim of self-defense. The court below provided the following facts in the four-corners of its decision: [T]he State presented evidence that the appellant (1) lied to both the 911 operator and the police about her involvement in the shooting; (2) hid the murder weapon; and (3) had recently discovered evidence that her husband had been unfaithful. Additionally, one of the police officers testified that appellant did not appear disheveled and did not have any bruises that would indicate that she had recently been the victim of domestic violence. Stinson v. State, 1D (Fla. 1 st DCA Mar. 13, 2009). Additionally, the lower decision relies on a previous decision of the lower tribunal. Ibid: We are required to reverse, however, based on the trial court s instruction on the lesser included offense of manslaughter by act. The trial court stated that the State was required to prove that Noni Jamil Stinson intentionally caused the death of Solomon Stinson

6 This constitutes fundamental, reversible error. Montgomery v. State, No. 1D (Fla. 1 st DCA Feb. 12, 2009) (on motion for rehearing)

7 SUMMARY OF ARGUMENT ISSUE I. Petitioner asserts that this Court enjoys piggy-back jurisdiction pursuant to Rule 9.030(a)(2)(A)(v), as the lower decision relies upon Montgomery v. State, No. 1D (Fla. 1 st DCA Feb. 12, 2009), a decision that passes upon the following question certified to be of great public importance: Is the State required to prove that the defendant intended to kill the victim in order to establish the crime of manslaughter by act? ISSUE II. Petitioner asserts that this Court enjoys piggy-back jurisdiction pursuant to Rule 9.030(a)(2)(A)(vi), as the lower decision relies upon Montgomery v. State, a decision that certifies direct conflict with Barton v. State, 507 So. 2d 638 (Fla. 5 th DCA 1987), reversed on other grounds, State v. Barton, 523 So. 2d 152 (Fla. 1988). ISSUE III. Petitioner asserts that this Court enjoys jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv), as the decision below expressly and directly conflicts with Martinez v. State, 981 So. 2d 449 (Fla. 2008), on the following question of law: Must a court conduct a review of the complete record before finding that an erroneous jury instruction constitutes fundamental error? - 3 -

8 ISSUE I IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT? Petitioner asserts that this Court enjoys jurisdiction pursuant to Rule 9.030(a)(2)(A)(v), as the lower decision relies upon Montgomery v. State, No. 1D (Fla. 1 st DCA Feb. 12, 2009), a decision that passes upon a question certified to be of great public importance. See Stinson v. State, 1D (Fla. 1 st DCA Mar. 13, 2009: We are required to reverse, however, based on the trial court s instruction on the lesser included offense of manslaughter by act. The trial court stated that the State was required to prove that Noni Jamil Stinson intentionally caused the death of Solomon Stinson. This constitutes fundamental, reversible error. Montgomery v. State, No. 1D (Fla. 1 st DCA Feb. 12, 2009) (on motion for rehearing). Even though Rule 9.120(d) does not authorize Briefs on Jurisdiction when the District Court of Appeal certifies a question of great public importance, the Petitioner provides the following to support piggy-back jurisdiction. See Harry Lee Anstead, Gerald Kogan, Thomas D. Hall, & Robert Craig Waters, Article and Essay: The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, (2005): The final category of conflict is "piggyback" conflict. Discretion over these cases arises because they cite as controlling precedent a decision of a district court that is pending for review in, or has been subsequently overruled by, the Florida Supreme Court; or they cite - 4 -

9 as controlling precedent a decision of the Florida Supreme Court from which the Court has subsequently receded. As stated above, Petitioner seeks to piggy-back jurisdiction on the question of great public importance certified in Montgomery. See Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981): We thus conclude that a district court of appeal per curiam opinion which cites as controlling authority a decision that is either pending review in or has been reversed by this Court continues to constitute prima facie express conflict and allows this Court to exercise its jurisdiction. See also Coyne v. State, 755 So. 2d 108 (Fla. 2000): We have for review Coyne v. State, 732 So. 2d 455 (Fla. 4 th DCA 1999), in which the Fourth District Court of Appeal affirmed the trial court in a per curiam decision without a written opinion, citing Harbaugh v. State, 711 So. 2d 77, 83 (Fla. 4 th DCA 1998). We accepted jurisdiction because Harbaugh was pending in this Court upon a certified question of great public importance. Petitioner recognizes that Jollie jurisdiction depends upon this Court s acceptance of jurisdiction in Montgomery. See The Operation and Jurisdiction of the Supreme Court of Florida at 522: [P]piggyback" conflict sometimes may be only an inchoate, unrealized possibility at the time when - 5 -

10 review must be sought... [T]he Florida Supreme Court may be uncertain for a time whether it will accept a lead case for review... During the interim, jurisdiction remains inchoate and only a possibility. Petitioner also recognizes that this Court s recent modification to the Standard Jury Instruction on manslaughter. For the element of intent, however, that modification does not distinguish between the common law crimes of voluntary (specific intent to kill) and involuntary (general intent to commit an unlawful act) manslaughter. Additionally, the instruction does not insulate the myriad of (pre-modification) second degree murder and manslaughter convictions potentially jeopardized by the Montgomery decision. ISSUE II AS CERTIFIED, DOES MONTGOMERY V. STATE, NO. 1D (Fla. 1 st DCA Feb. 12, 2009) DIRECTLY CONFLICT WITH BARTON V. STATE, 507 So. 2d. 638 (Fla. 5 th DCA 1987), reversed on other grounds, STATE V. BARTON, 523 So. 2d 152 (Fla. 1988)? Petitioner asserts that this Court enjoys piggy-back jurisdiction pursuant to Rule 9.030(a)(2)(A)(vi), as the lower decision relies upon Montgomery v. State, a decision that certifies direct conflict with Barton v. State, 507 So. 2d 638 (Fla. 5 th DCA 1987), reversed on other grounds, State v. Barton, 523 So. 2d 152 (Fla. 1988). See Montgomery, supra: In determining that there is no intent-to-kill element in manslaughter by act, we have come into conflict with the Fifth District. Although we reached our decision by a different route, we agree with the Second District regarding the elements of the crime of manslaughter by act. We believe that the contrary holding espoused by the Fifth District in Barton leaves a gap in the law, as it would not allow for a manslaughter conviction in cases where the defendant commits an unlawful act that unintentionally results in the death of the victim. Because we are unable to reconcile our holding with the Fifth District s position, we certify conflict with Barton. (Emphasis added) - 6 -

11 Presumably, Montgomery relies upon the following passage from Barton in order to certify conflict: Taylor v. State, 444 So. 2d 931 (Fla. 1983), held that an intent to kill is a prerequisite for conviction of assault with intent to commit manslaughter pursuant to Williams v. State, 41 Fla. 295, 26 So. 184 (1899). Adopting the Williams rationale, Taylor held that the crime of attempted manslaughter exists in situations where, if death resulted from an act of the defendant, the defendant would be guilty of voluntary (i.e., intentional) manslaughter at common law. Voluntary manslaughter at common law (as to which there can be an attempt) has been statutorily enacted in Florida as "the killing of a human being by the act (or) procurement... of another, without lawful justification." , Fla.Stat. (1985). The words "act" and "procurement" obviously refer to acts evidencing an intent to kill, as required at common law for voluntary manslaughter. Involuntary (i.e., negligent) manslaughter at common law has been statutorily enacted in Florida as a killing caused by "culpable negligence" (see , Fla.Stat. (1985))- - and there is no such crime as "attempted manslaughter by culpable negligence." Taylor at 934. Barton at 641. Under Montgomery s reading of the case, Barton s interpretation of Taylor equates voluntary manslaughter with manslaughter by act and involuntary manslaughter with manslaughter by culpable negligence. Hence, Barton ignores the possibility that manslaughter by act can encompass the common law offense of involuntary manslaughter when an intentional act unintentionally results in death. Cf. Hall v. State, 951 So. 2d 91, 96 (Fla. 2 nd DCA 2007) (en banc) ( [W]e do not read Taylor to hold that the crime of manslaughter by act is limited to intentional killings. ). The single-punch fistfight provides an excellent example. See Hall at 97 ( This case is another tragic instance of manslaughter by single punch to the head. )

12 However, subsequent to deciding Barton the Fifth District clarified its position: only the crime of voluntary manslaughter requires an intent to kill. See State v. Sherouse, 536 So. 2d 1194, 1195 (Fla. 5 th DCA 1989) (Cobb, J., concurring), citing Williams v. State, 41 Fla. 295, 26 So. 184 (1899): Taylor, in its discussion of voluntary manslaughter, repeatedly refers to the requisite of an intention to kill, not simply the intention to commit an unlawful act that results in homicide... Therefore, consistent with our interpretation in Barton, an essential element of the crime of voluntary manslaughter is an intent to kill... Montgomery recognizes Judge Cobb s concurrence in Sherouse, but attempts to distinguish it. See Montgomery: Although Judge Cobb correctly notes in his concurring opinion in Sherouse that the Taylor court referred to an intent to kill when discussing voluntary manslaughter (i.e., manslaughter by act or procurement), this language can only be construed as dicta when compared with the Taylor court's direct statement of its holding. Presumably, Montgomery points to the following language as the direct statement of the Taylor holding: We therefore hold that there may be a crime of attempted manslaughter. We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act. (Emphasis added) Taylor at 934. If as posited by Montgomery, Barton requires a specific intent to kill for the crime of manslaughter by act to lie (and makes no provision for involuntary manslaughter by act like the single punch fistfight), then Montgomery directly conflicts with Barton because Montgomery (like Hall) only requires an intentional act that results in death

13 In addition to the conflict regarding the level of intent required for the crime of manslaughter by act, an additional point of conflict remains as to the level of intent required for the crime of attempted manslaughter. Compare Montgomery ( The Taylor court's direct holding indicates that attempted manslaughter is a general intent crime, requiring only an intentional act, rather than a specific intent to kill. ) with Hall at 96: The [Taylor] court's holding that an intent to kill is an element of attempted manslaughter does not require a determination that an intent to kill is an element of manslaughter by act. An intent to kill is required to commit an attempted manslaughter because no person can attempt to cause an unintentional death. This logic does not apply to the offense of manslaughter by act. Of course, if our holding today is erroneous, this opinion will necessarily conflict with Taylor. (Emphasis added) Thus, Montgomery expressly and directly conflicts with Hall on a question of law: Does attempted manslaughter require a specific intent to kill or just an intent to commit an unlawful act? Although ancillary, this conflict nonetheless remains. As a final point of conflict, Montgomery (despite its assertion to the contrary) expressly and directly conflicts with Hall v. State, 951 So. 2d 91 (Fla. 2 nd DCA 2007) (en banc) on the following question of law: Does the standard jury instruction for manslaughter by act (as opposed to the crime of manslaughter by act) require the State to prove an intent to kill? 1 The Second District Court of Appeal squarely answered this question of law in the negative. See Hall at 96: - 9 -

14 We are also aware that the standard jury instruction for manslaughter by act requires a finding that the defendant "intentionally caused the death of" the victim. Fla. Std. Jury Instr. (Crim.) 7.7. We do not read this instruction to require an intent to kill, however. We read this instruction to require an intentional act that "caused the death of" the victim. (Emphasis added)

15 In stark contrast, the First District Court of Appeal answered the question of law in the affirmative. See e.g. Burroughs v. State, No. 1D (Fla. 1 st DCA Dec. 31, 2008) 2 :

16 Robert Burroughs, Appellant challenges his conviction and sentence for second-degree murder, arguing that the trial court fundamentally erred in giving the standard jury instruction for the lesser-included offense of manslaughter by act because it erroneously includes the provision that the defendant intended to cause the victim s death... [W]e agree. (Emphasis added) ISSUE III DOES THE DECISION BELOW EXPRESSLY AND DIRECTLY CONFLICT WITH MARTINEZ V. STATE, 981 So. 2d 449 (Fla. 2008) ON THE SAME QUESTION OF LAW? Petitioner asserts that this Court enjoys jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv), as the decision below expressly and directly conflicts with Martinez v. State, 981 So. 2d 449 (Fla. 2008) on the following question of law: Must a court conduct a review of the complete record before finding that an erroneous jury instruction constitutes fundamental error? This Court answered the question in the 1 This Court recently modified the standard jury instruction on manslaughter by act to expressly incorporate the holding of Hall. Compare In re Std. Jury Instructions in Crim. Cases -- No , 946 So. 2d 1061, 1062 (Fla. 2006) ( In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death. ) with In re Std. Jury Instructions in Crim. Cases-- Report No , 2008 Fla. LEXIS 2377 (Fla. Dec. 11, 2008), citing Hall, supra ( In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death. ) (Emphasis added). 2 The lower court decided Burroughs the same day it decided Montgomery, and the former relies upon the latter for its decision

17 affirmative. See Martinez at 455 ( Upon our review of the complete record in this case, we conclude that the erroneous forcible-felony instruction did not deprive Martinez of a fair trial and, therefore, fundamental error did not occur. ); see also Garzon v. State, 980 So. 2d 1038, 1042 (Fla. 2008) ( We have consistently held that not all err in jury instructions is fundamental error. ); but see State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994): [F]ailure to give a complete initial instruction on manslaughter constitutes fundamental reversible error when the defendant is convicted of either manslaughter or a greater offense not more than one step removed. But see also Reed v. State, 837 So. 2d 366, 369 (Fla. 2002), explaining State v. Delva, 575 So. 2d 643, 645 (Fla. 1991): We expressly recognized a distinction regarding fundamental error between a disputed element of a crime and an element of a crime about which there is no dispute in the case. We answered affirmatively as to a disputed element and then said: "Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error." The First District Court of Appeal answered the question of law in the negative. See Stinson v. State, 1D (Fla. 1 st DCA Mar. 13, 2009) ( [T]he trial court s instruction on... manslaughter... constitutes fundamental, reversible error ). CONCLUSION Based on the foregoing reason, the State respectfully requests this Honorable Court exercise its jurisdiction in this cause

18 SIGNATURE OF ATTORNEY AND CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to Mary Jane Lord, Esq., Assistant Public Defender, Leon County Courthouse, Suite 401, 301 South Monroe Street, Tallahassee, Florida 32301, by MAIL on March 25 th, Respectfully submitted and served, BILL MCCOLLUM ATTORNEY GENERAL TRISHA MEGGS PATE Tallahassee Bureau Chief, Criminal Appeals Florida Bar No MICHAEL T. KENNETT Assistant Attorney General Florida Bar No Attorneys for State of Florida Office of the Attorney General Pl-01, the Capitol Tallahassee, Fl (850) (850) (Fax) [AGO# L ] CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of Fla. R. App. P Michael T. Kennett Attorney for State of Florida [F:\Users\CRIMINAL\`ARCHIVE\ \StinsoBJ.2.wpd --- 3/30/09,11:36 AM]

19 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, v. Petitioner, CASE NO. SC NONI STINSON, Respondent. INDEX TO APPENDIX Stinson v. State, 1D (Fla. 1 st DCA Mar. 13, 2009)