IN THE SUPREME COURT OF FLORIDA CASE NO. HUMBERTO MESA, Petitioner, -vs- STATE OF FLORIDA, Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. HUMBERTO MESA, Petitioner, -vs- STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF PETITIONER ON JURISDICTION Carlos J. Martinez Public Defender Eleventh Judicial Circuit Of Florida 1320 N.W. 14th Street Miami, Florida (305) MANUEL ALVAREZ Assistant Public Defender Florida Bar No Counsel for Petitioner

2 TABLE OF CONTENTS Page INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF THE ARGUMENT... 6 ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, IN THE PRESENT CASE DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN STATE v. MONTGOMERY, 39 So. 3d 252 (Fla. 2010) CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATION OF FONT i

3 TABLE OF CITATIONS PAGE CASES Haygood v. State, 54 So. 3d 1035 (Fla. 2d DCA)... 7 Jollie v. State, 405 So. 2d 418 (Fla. 1981)... 7 Leggett v. State, 34 So. 3d 51 (Fla. 3d DCA 2010)... 5, 7 Lumsdon v. State, 29 So. 3d 390 (Fla. 3d DCA)... 5, 7 State v. Montgomery, 39 So. 3d 252 (Fla. 2010)...passim ii

4 INTRODUCTION This is a petition for discretionary review of the decision of the Third District Court of Appeal in Mesa v. State, So. 3d, 36 Fla. L. Weekly D1650 (3d DCA July ), on the grounds of direct conflict of decisions. In this brief of petitioner on jurisdiction, all references are to the attached appendix, paginated separately and identified as AA@ followed by the page number. STATEMENT OF THE CASE AND FACTS Humberto Mesa was charged with second degree murder (R. AG ). This case arose from the shooting death of the defendant=s former girlfriend, Ivis Garcia. Mr. Mesa (hereinafter, Humberto) and Ivis Garcia (hereinafter, Ivis) had a stormy relationship which resulted in an unwanted pregnancy (T ). After Ivis terminated the pregnancy, her parents insisted that she stop seeing Humberto, however, the couple surreptitiously continued their relationship (T ). Eventually, Ivis left her parent=s home and moved in with Humberto and his mother (T ). Eight months later, she had a change of heart and moved back home with her family=s assistance (T ). 1

5 Ivis later reloctaed to Gainesville, Florida in order to attend college (T ). After leaving South Florida, Ivis and Humberto became estranged, although they had occasional phone contact (T ). In the summer of 2003, Ivis returned to Miami. On June 26, 2003 (Thursday), she met the defendant in the parking lot of a Walgreens (T ). Her body was discovered the following morning (Friday) in an desolate stretch of land near 145th Avenue and Northwest 45th Street (T ). She had been shot in the head, behind the left ear, and her corpse was partially charred (T , 516, ). That evening, Detective Charles McCully visited Ivis=s parents= home and was introduced to Mr. Mesa, who agreed to be interviewed at the police station (T ). During the interrogation, Humberto admitted that he had met Ivis at the Walgreens. They drove to his house and spent some time together. Humberto denied any knowledge of what had happened to her after he dropped her off at her car (T , ). As the interrogation continued, at about 12:40 a.m., the defendant gave a different account of what had transpired the previous evening. He said that after he and Ivis left his house they went for a drive, because she wanted to show him a tree where she had carved their initials (T. 515, ). Later, as they were walking down a road toward the tree, she suddenly turned around and shot at 2

6 him twice (T. 515, ). 1 Humberto disarmed her and in the process the gun discharged accidentally, shooting her in the head (T , ). After the gun discharged, Humberto realized it was his handgun. The police later recovered the weapon in the defendant=s bedroom (T. 575, 690, ). The defendant said that he collected two of the three spent casings, then ran to his friend=s (Eddie Ramirez) car and discarded the casings (T. 515, ). 2 1 Mr. Mesa postulated that Ivis tried to shoot him because she was angry that he had been cheating on her (T ). 2 Ramirez, who had driven to the area because Humberto got a flat tire, waited by the defendant=s car while Humberto and Ivis drove his car to the location where the shooting took place. 3

7 Humberto testified that when they arrived, they exited the car and he used a pen-light for illumination (T. 934). As they walked down the road, Ivis (who was in front) turned around with a silver-plated gun in her hand and fired twice at the defendant (T ). Humberto lunged at her and while struggling to get control of the weapon, the gun went off (T ). Ivis collapsed to the ground and he panicked (T ). In his state of agitation, he mindlessly started to pick up the shell casings and the gun (T. 941). He drove back to where Ramirez was waiting by the defendant=s car and told him about the incident (T. 942). Thereafter, they attempted to dispose of the body. Humberto and Ramirez obtained a gasoline cannister, towels and garbage bags. When they returned to the scene, they placed Ivis=s body in the trunk of Ramirez=s car (T. 561). A short time later, while Ramirez was purchasing gasoline, they ran into a mutual friend, Miguel Colio, who decided to tag along (T ). The defendant, Ramirez and Colio transported the deceased to an unpopulated location in the northwest section of the county where they attempted to incinerate her body (T. 516, ). During the jury instruction conference, the defendant requested the instruction on manslaughter, as a lesser included offense (T. 1145). 4

8 In closing argument, the defense attorney maintained that Ivis tried to shoot Mr. Mesa out of jealousy and she was wounded accidentally when Mr. Mesa attempted to disarm her (T , ). (T. 1228). The trial court read the jury the following definition of manslaughter: Manslaughter. Before you can find the defendant guilty of manslaughter as a lesser included offense, the State must prove the following two elements beyond a reasonable doubt: Number 1, Ivis Garcia is dead. Number 2, Humberto Mesa intentionally caused the death of Ivis Garcia. However, the defendant cannot be guilty of manslaughter of the killing was either justifiable or excusable homicide as I have previously explained those terms. 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. Mr. Mesa was found guilty of second degree murder with a firearm and sentenced to life imprisonment (R. AG , 318). On appeal, the Third District Court of Appeal issued a per curiam affirmance of the conviction and sentence. However, the court expressly cited as precedent two decisions, Leggett v. State, 34 So. 3d 51 (Fla. 3d DCA 2010), and Lumsdon v. 5

9 State, 29 So. 3d 390 (Fla. 3d DCA), in which application for review have been made and this Court has stayed the proceedings. The appellate court=s decision is in direct conflict with State v. Montgomery, 39 So. 3d 252 (Fla. 2010), as the two decisions are irreconcilable. A notice invoking this Court's discretionary jurisdiction based on conflict was timely filed. 6

10 SUMMARY OF THE ARGUMENT In this case, Mr. Mesa=s jury was given the same erroneous manslaughter by act instruction that this Court found constituted fundamental, reversible error. The defective manslaughter instruction, moreover, was only one step removed from second degree murder, for which Mr. Mesa was convicted. The Third District=s decision affirming Mr. Mesa=s conviction, therefore, is in direct conflict with this Court=s decision in State v. Montgomery, 39 So. 3d 252 (Fla. 2010). 7

11 ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL, THIRD DISTRICT, IN THE PRESENT CASE DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN STATE v. MONTGOMERY, 39 So. 3d 252 (Fla. 2010). In this case, the State charged Mr. Mesa with second-degree murder and the jury found Mr. Mesa guilty of second-degree murder. The only real question at trial was whether the defendant intended to kill Ivis Garcia, or whether the shooting was either in self defense, or accidental. This Court has conflict jurisdiction under Jollie v. State, 405 So. 2d 418 (Fla. 1981), because the Third District Court of Appeal, in its per curiam decision, cited as controlling authority Lumsdon v. State, 29 So. 3d 390 (Fla. 3d DCA) (SC ), in which the defendant=s petition for jurisdiction was stayed by this Court pending the disposition of Haygood v. State, 54 So. 3d 1035 (Fla. 2d DCA), review granted, 61 So. 3d 410 (Fla. 2011). The Third District also cited Leggett v. State, 34 So. 3d 51 (Fla. 3d DCA 2010) (SC ), which was decided prior to State v. Montgomery, 39 So. 3d 252 (Fla. 2010). In Leggett, this Court stayed the proceedings on the defendant=s application for jurisdiction on April 14, 2010 and directed the State to show cause why Leggett should not be remanded to the lower appellate court for reconsideration in light of this Court=s decision in Montgomery. 8

12 In the case sub judice, the trial court instructed Mr. Mesa=s jury on manslaughter by act using the identical instruction which this Court, in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), found was fundamentally and reversibly erroneous. The legal harm suffered by the defendant in Montgomery and Mr. Mesa are, mutatis mutandis, identical. The same inaccurate instruction was read to Mr. Mesa=s jury. Manslaughter by act was only one step removed from the offense for which Mr. Mesa was convicted. As such, this case directly conflicts with this Court=s holding in Montgomery. 9

13 CONCLUSION Based on the foregoing facts, authorities and arguments, petitioner respectfully requests this Court to exercise its discretionary jurisdiction to review the decision of the Third District Court of Appeal. Respectfully submitted, Carlos J. Martinez Public Defender 1320 N.W. 14th Street Miami, Florida Telephone: (305) BY: MANUEL ALVAREZ Assistant Public Defender FL Bar No

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to the Office of the Attorney General, 444 Brickell Avenue, Suite 950, Miami, Florida 33131, on this 30th day of August, BY: MANUEL ALVAREZ, ESQ. CERTIFICATION OF FONT Undersigned counsel certifies that the font used in this brief is 14 point proportionately spaced Times Roman. BY: MANUEL ALVAREZ, ESQ. 11