IN THE SUPREME COURT OF FLORIDA. Lower Tribunal No. 3D JAMAR ANTWAN HILL, STATE OF FLORIDA, BRIEF OF PETITIONER ON JURISDICTION

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Lower Tribunal No. 3D JAMAR ANTWAN HILL, Petitioner, -vs- STATE OF FLORIDA, Respondent. BRIEF OF PETITIONER ON JURISDICTION ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida (305) GWENDOLYN POWELL BRASWELL Assistant Public Defender Florida Bar No Counsel for Petitioner

2 TABLE OF CONTENTS PAGE TABLE OF CITATIONS... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF ARGUMENT... 3 ARGUMENT... 3 THE THIRD DISTRICT COURT OF APPEAL RULED IN EXPRESS AND DIRECT CONFLICT WITH DECISIONS FROM THIS COURT AND OTHER DISTRICT COURTS BY HOLDING THAT THE STATE OF FLORIDA DOES NOT RECOGNIZE THE IMPERFECT SELF-DEFENSE DOCTRINE CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF FONT i

3 TABLE OF CITATIONS CASES Delgado v. State, 361 So. 2d 726 (Fla. 4th DCA 1978)... 5 Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007);... 4 Hernandez v. State, 842 So. 2d 1049 (Fla. 4th DCA 2003)... 7 J.J.W. v. State, 892 So. 2d 1189 (Fla. 5th DCA 2005)... 4 Johnson v. State, 718 So. 2d 848 (Fla. 5 th DCA 1998)... 8 M.H. v. State, 936 So. 2d 1 (Fla. 3d DCA 2006)... 5 Middleton v. McNeil, 541 U.S. 433 (2004)... 2 Padgett v. State, 24 So. 145 (1898)... 5 Popps v. State, 162 So. 701 (Fla. 1935)... 7 Reimel v. State, 532 So. 2d 16 (Fla. 5th DCA 1988)... 7 Roberts v. State, 425 So. 2d 70 (Fla. 2d DCA 1982)... 5 Rodgers v. State, 948 So. 2d 655 (Fla. 2006), cert. denied, 128 S. Ct. 59 (2007)... 7 ii

4 Sanders v. State, 359 So. 2d 899 (Fla. 3d DCA 1978)... 5 Sims v. State, 967 So. 2d 148 (Fla. 2007)... 7 STATE CONSTITUTION Art. V, ' 3(b)(3), Fla. Const STATE STATUTES ' , Fla. Stat. (2000)... 4 ' , Fla. Stat. (2000)... 4 STATE RULES OF COURT Fla. Std. Jury Instr. (Crim.) 3.6(f)... 4 MISCELLANEOUS Am. Jur. 2d Homicide ' 139 (2008)... 4 Blacks Law Dictionary 1390 (8th ed. 2004) C.J.S. Homicide ' 110 (2008)... 5 Florida Criminal Defense Trial Manual ' 15.8 (2006)... 8 iii

5 INTRODUCTION Petitioner, Jamar Antwan Hill, seeks discretionary review of a decision of the Third District Court of Appeal that expressly and directly conflicts with decisions of this Court and of other district courts in Florida. The symbol AA.@ refers to the opinion of the lower court, as set forth in the Appendix to this brief. STATEMENT OF THE CASE AND FACTS Jamar Antwan Hill appealed his convictions on two counts of first-degree murder. (A. 2). At trial, the defense theory was that Mr. Hill shot and killed the decedents because he honestly believed that they were about to kill him. (A. 2). Mr. Hill testified in his own defense and elicited testimony from other witnesses to support this. As it turned out, however, both men were unarmed. (A. 2). Mr. Hill asked the trial court to instruct the jury on imperfect self-defense. Imperfect self-defense is A[t]he use of force by one who makes an honest but unreasonable mistake that force is necessary to repel an attack.@ Black=s Law Dictionary 1390 (8 th ed. 2004) (A. 2). Specifically, Mr. Hill requested the following instruction: The specific intent for manslaughter, as opposed to murder, may arise from the following circumstance: An honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. That would be imperfect self-defense. To establish that a killing is murder and not manslaughter, the burden is on the State to prove beyond a reasonable doubt each of the 1

6 (A. 2 n2). elements of murder and that the act which caused the death was not done... in the honest, even though unreasonable, belief in the necessity to defend against imminent peril to life or to great bodily injury. A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but is not guilty of murder. This would be so even though a reasonable person in the same situation, seeing and knowing the same facts, would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. An Aimminent@ peril is one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. The requested instruction was patterned after a California imperfect selfdefense jury instruction, which was addressed by the U.S. Supreme Court in Middleton v. McNeil, 541 U.S. 433 (2004) (discussing California law to provide that A[w]here that fear [of imminent peril] is unreasonable (but nevertheless genuine), it reduces the crime from murder to voluntary manslaughter B a doctrine known as >imperfect self-defense=@). (A. 2). The trial court in this case refused to give the imperfect self-defense instruction. Only the standard self-defense instruction was given. (A. 2). On direct appeal, the Third District Court of Appeal upheld the trial court=s decision not to give the imperfect-self defense instruction, stating: We conclude that the requested instruction is contrary to the Florida statute, which requires a reasonable belief in the necessity to use 2

7 (A. 3). deadly force. The Florida statute does not contain a provision on imperfect self-defense.@ Mr. Hill timely filed a notice of intent to invoke this Court=s jurisdiction based on express and direct conflict. This brief on jurisdiction follows. SUMMARY OF ARGUMENT Petitioner Jamar Antwan Hill seeks this Court=s discretionary review of the decision by the Third District Court of Appeal holding that the imperfect selfdefense doctrine is not recognized in Florida. The Third District=s decision below expressly and directly conflicts with decisions of this Court and other district courts in Florida that have recognized the imperfect self-defense doctrine. ARGUMENT THE THIRD DISTRICT COURT OF APPEAL RULED IN EXPRESS AND DIRECT CONFLICT WITH DECISIONS FROM THIS COURT AND OTHER DISTRICT COURTS BY HOLDING THAT THE STATE OF FLORIDA DOES NOT RECOGNIZE THE IMPERFECT SELF-DEFENSE DOCTRINE. The defense theory in this case was that Mr. Hill shot and killed the decedents because he honestly believed that the use of deadly force was necessary to protect himself against imminent danger of great bodily harm or death. In light of this theory, Mr. Hill requested an imperfect self-defense jury instruction. The trial court denied the requested instruction, and Mr. Hill appealed. The Third 3

8 District Court of Appeal concluded that the imperfect self-defense instruction requested by Mr. Hill did not correctly state the law in Florida. In Florida, a Aperfect@ right of self-defense exists only where the defendant reasonably believes that deadly force is necessary to prevent his imminent death or great bodily harm. See ' , Fla. Stat. (2000); ' , Fla. Stat. (2000); Fla. Std. Jury Instr. (Crim.) 3.6(f). When a defendant establishes perfect selfdefense to a killing, he is completely exonerated on all homicide charges. On the other hand, Aimperfect@ self-defense renders a defendant guilty of the lesser crime of manslaughter and results when less than all of the requisite elements of Aperfect@ self-defense exists. See, e.g., Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007) (upholding trial court=s denial of defendant=s motion for judgment of acquittal because jury could have properly found him guilty of manslaughter by unintentionally causing victim=s death by intentionally inflicting single punch to victim=s jaw); J.J.W. v. State, 892 So. 2d 1189 (Fla. 5 th DCA 2005) (finding sufficient evidence to support manslaughter conviction despite defendant=s claim of excusable homicide because jury could have properly found defendant guilty of manslaughter where defendant was approached by victim with skateboard in his hand, angry words were exchanged, and defendant=s single punch could have been fatal blow); 40 Am. Jur. 2d Homicide ' 139 (2008) 4

9 (discussing imperfect self-defense generally); 40 C.J.S. Homicide ' 110 (2008) (same). A person who kills based on his honest, albeit unreasonable, belief that deadly force is necessary is not guilty of first-degree or second-degree murder. Such a person is motivated by self-preservation B not a premeditated intent to kill or a depraved mind, which is defined as Aill will, hatred, spite or evil intent.@ See M.H. v. State, 936 So. 2d 1, 3 (Fla. 3d DCA 2006) (second-degree murder conviction requires Aintentional act done from ill will, hatred, spite or an evil intent without a specific intent to kill@); Roberts v. State, 425 So. 2d 70, 71 (Fla. 2d DCA 1982) (in order to obtain second-degree murder conviction, state must prove that defendant killed decedent with a depraved mind, which Ameans malice in the sense of ill will, hatred, spite or evil intent@). However, such a person is not completely exonerated, as men do not hold their lives at the mercy of unreasoning fears or the excessive caution of others. See Sanders v. State, 359 So. 2d 899 (Fla. 3d DCA 1978); Delgado v. State, 361 So. 2d 726 (Fla. 4 th DCA 1978). Rather, where life is taken under these circumstances, the defendant cannot be found guilty of any offense less than the crime of voluntary manslaughter. See Padgett v. State, 24 So. 145 (1898). Here, the imperfect self-defense instruction was necessary to clarify for the jury that it could find Mr. Hill guilty of the lesser offense of voluntary manslaughter if they accepted as true the evidence that Mr. Hill used deadly force 5

10 because he genuinely believed it was necessary to do so, even though the victims were later discovered to be unarmed. It is important to underscore the difference between self-defense and self defense. Although the law in Florida recognizes the existence of self defense only where the defendant reasonably believed that the use of deadly force was necessary to protect himself, it does not follow that the law cannot also recognize the existence of self defense where such a defendant demonstrates that he honestly (or genuinely) believed that the use of deadly force was necessary. In other words, the doctrines are not mutually exclusive or even inconsistent. A person who unreasonably believes in the necessity of using deadly force is never fully exonerated of criminal liability under the imperfect self-defense doctrine, no matter how honestly he or she believed in the necessity of using deadly force. Despite this distinction, the Third District relied heavily on perfect self defense cases in concluding that the imperfect self-defense doctrine is not recognized in Florida. Those Aperfect@ self-defense cases are not useful, however, in determining whether the imperfect self-defense doctrine is available in Florida. Those cases simply discuss the well-settled rule that a defendant must have possessed an objectively reasonable belief that deadly force was required before the defendant may prevail under a claim of perfect self-defense and thereby obtain 6

11 complete exoneration from criminal liability. See, e.g., Hernandez v. State, 842 So. 2d 1049, 1051 (Fla. 4 th DCA 2003); Reimel v. State, 532 So. 2d 16, 18 (Fla. 5 th DCA 1988). This Court has itself recognized the validity of the imperfect self-defense doctrine in Florida by referring specifically to that doctrine in its prior decisions. For example, in Rodgers v. State, 948 So. 2d 655 (Fla. 2006), cert. denied, 128 S. Ct. 59 (2007), this Court recognized the jury=s ability to find that the defendant had established A>imperfect self-defense=@ even though the jury had rejected the defendant=s standard (i.e., Aperfect@) self-defense claim. Id. at 676 (ARather than an outright rejection of self-defense, the verdict of guilty of manslaughter in Rodgers= 1979 trial may have reflected a finding of >imperfect self-defense,= i.e., meeting nondeadly force with deadly force.@). This Court more recently recognized the viability of the imperfect self-defense doctrine in Sims v. State, 967 So. 2d 148 (Fla. 2007). In that case, the Court considered the merits of the defendant=s claim that the trial court had erred in refusing to consider his evidence of Aimperfect selfdefense@ as a mitigating circumstance. Id. at 151 n4. Significantly, the Court did not reject the defendant=s argument outright, on grounds that no such defense was cognizable in Florida. Indeed, this Court has along recognized the existence of the imperfect self-defense doctrine, although that exact phrase is not always used in the case law. See e.g., Popps v. State, 162 So. 701 (Fla. 1935) (stating that 7

12 unnecessary killing in defense of self may be deemed manslaughter where justification is not sufficient to constitute absolute bar to conviction). Other district courts in Florida have also recognized the existence of the imperfect self-defense doctrine in this State. In Johnson v. State, 718 So. 2d 848 (Fla. 5 th DCA 1998), the defendant argued on appeal that the trial court erred in refusing to give his requested Aimperfect self defense@ instruction. The defendant had asked the trial court to instruct the jury as follows: AIf you find that [defendant] actually believed that deadly force was necessary to prevent imminent death or great bodily harm to himself at the hands of [the victim], but that his belief was unreasonable, you should find him guilty of no crime greater than manslaughter.@ Id. at 850. The Fifth District reached the merits of this argument, without ever suggesting that the imperfect self-defense doctrine was not recognized in Florida. Id. Ultimately, however, the court in Johnson rejected the defendant=s argument on the basis that the imperfect self-defense claim had not been supported by the evidence presented at trial. Id. at 850 (stating Adefendant cites no Florida authority to support his argument that he was prejudiced by the trial court=s failure to give these instructions which were not supported by the evidence). See also Florida Criminal Defense Trial Manual ' 15.8 (2006) (discussing Florida cases applying doctrine of imperfect self-defense). For all the foregoing reasons, therefore, the Third District=s ruling that the imperfect self-defense doctrine is not 8

13 recognized in Florida is in direct and express conflict with the decisions of other courts in this State. CONCLUSION In light of the foregoing demonstration of express and direct conflict of decisions, the Petitioner respectfully requests that this Court exercise its jurisdiction, under Article V, Section 3(b)(3), Florida Constitution, to resolve this conflict. Respectfully submitted, BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida (305) BY: GWENDOLYN POWELL BRASWELL Assistant Public Defender Florida Bar No

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by mail to the attorney for the Respondent: Assistant Attorney General Laura Moszer, Office of the Attorney General, Department of Legal Affairs, 444 Brickell Avenue, Suite 650, Miami, Florida 33131, on this 22 nd day of May, GWENDOLYN POWELL BRASWELL Assistant Public Defender Counsel for Appellant CERTIFICATE OF FONT I hereby certify that the font used is 14 point Times New Roman. GWENDOLYN POWELL BRASWELL Assistant Public Defender Counsel for Appellant 10