          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                                 LEROY SINGH,
                                   Appellant,

                                         v.

                              STATE OF FLORIDA,
                                   Appellee.

                                  No. 4D08-2171

                                [January 10, 2018]


   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Eileen M. O’Connor, Judge; L.T. Case No. 06-14626
CF10A.

   Carey Haughwout, Public Defender, and John M. Conway and Paul E.
Petillo, Assistant Public Defenders, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F.
Medley, Nancy Jack and Heidi L. Bettendorf, Assistant Attorneys
General, West Palm Beach, for appellee.

                               ON REMAND FROM
                          THE FLORIDA SUPREME COURT

CIKLIN, J.

    On remand from the Florida Supreme Court, we are tasked with
reconsidering our previous decision in light of State v. Dominique, 215
So. 3d 1227 (Fla. 2017). The defendant was charged with first-degree
murder with a firearm and convicted of the lesser included offense of
second-degree murder with a firearm. He argues that the manslaughter
by act instruction, previously deemed to constitute fundamental error for
requiring a finding of an intent to kill, 1 was not cured by the giving of the
manslaughter by culpable negligence jury instruction. We disagree and
affirm.


1   State v. Montgomery, 39 So. 3d 252, 254 (Fla. 2010).
   In Haygood v. State, 109 So. 3d 735, 743 (Fla. 2013), the court held
as follows:

     [G]iving the manslaughter by culpable negligence instruction
     does not cure the fundamental error in giving the erroneous
     manslaughter by act instruction where the defendant is
     convicted of an offense not more than one step removed from
     manslaughter and the evidence supports a finding of
     manslaughter by act, but does not reasonably support a
     finding that the death occurred due to the culpable
     negligence of the defendant.

   Subsequently, in Dominique, another case involving a conviction for
the lesser included offense of second-degree murder, the supreme court
elaborated on the circumstances under which giving the manslaughter
by culpable negligence instruction cures the error addressed in Haygood:

     [W]here a jury determines that the evidence does not prove
     an intent to kill, the jury must then determine if any lesser
     included offense not requiring an intent to kill is available for
     their consideration and has been proven.             Where the
     instruction on manslaughter by culpable negligence is given
     as well as the instruction for second-degree murder, the jury
     will examine the evidence for proof of the level of disregard
     for safety and human life and for evidence, if any, of an act
     imminently dangerous to another and demonstrating a
     depraved mind without regard for human life. Both lesser
     included offenses lack any requirement of an intent to kill.
     Whether the defendant is guilty of one or the other will turn
     in large part on whether the defendant is proved to have
     committed the homicide with a level of ill will, hatred, spite,
     or evil intent rising to the level of a depraved mind required
     for second-degree murder.         Therefore, we examine the
     evidence presented during trial to determine if it reasonably
     could support a finding by the jury that the killing resulted
     from culpable negligence, thus providing the jury with a
     viable alternative to second-degree murder that also did not
     require an intent to kill.

215 So. 3d at 1235. The court then reviewed the evidence introduced at
trial:

     The testimony established that on the night of the shooting,
     Dominque was on the telephone with his girlfriend, Vonshell

                                    2
      Lindsay, when she told him their breakup was final and that
      she was getting back together with Clementson, the victim in
      this case. At that same moment, Dominique, who was
      sitting in a borrowed car in Lindsay’s neighborhood, saw
      Clementson drive toward the house where Lindsay was
      visiting. Although Dominique was in the neighborhood, he
      told police it was only to talk with Lindsay, and there was no
      evidence that Dominique knew Clementson would be there.
      Dominique told police that he had a gun with him in the car
      he borrowed from his sister, explaining to police that he
      usually had it with him. When Dominique started walking
      toward Lindsay’s house, Clementson drove by him.
      Dominique told officers that at that point, he grabbed the
      gun and went after Clementson, firing “a whole bunch of
      shots” while running. He told police he was shooting wildly
      without aiming, and that he hoped Clementson was still
      alive. Witnesses also testified that Dominique was running
      in the dark while firing with his arm extended. The only
      witness who saw Dominique actually fire the gun testified
      first that he took aim, but she almost immediately receded
      from that testimony and agreed that “[i]t was not like he
      stood there and [sighted in on] the man before he took the
      shot.”

Id. at 1236 (alterations in original). The court affirmed the defendant’s
conviction, reasoning as follows:

      [T]his evidence reasonably meets the test for “reckless
      disregard for human life” and [] the defendant must have
      known, or reasonably should have known, that these actions
      were likely to cause death, as required by the jury
      instruction for manslaughter by culpable negligence as well
      as second-degree murder. Certainly, Dominique’s actions
      demonstrated want of care, wantonness, recklessness, or
      gross disregard for the safety of others, as is required under
      both the manslaughter by culpable negligence jury
      instruction and the instruction for second-degree murder.
      Accordingly, the jury had before it two viable alternatives,
      neither of which required an intent to kill. It was for the jury
      to determine if the evidence rose to the level of depraved
      mind such that second-degree murder was proven, a
      conclusion the jury reached in this case.

Id.

                                     3
   Here, as in Dominique, the evidence supported both second-degree
murder and manslaughter by culpable negligence. There was testimony
that Singh and the victim had a fraught history and that on the day of
the shooting, they had a heated argument that nearly turned physical.
There was also testimony that the defendant intended to shoot the
victim, that he aimed at the victim, and that they were standing near one
another. However, there was also evidence that the defendant did not
know how to aim, that he did not know how many bullets were in the
gun that another man handed to him shortly before the shooting, and
that he shot in a panicked rather than methodical manner. Indeed,
there was testimony that a bullet ricocheted off of a nearby vehicle that
was facing the apartment building where the victim was shot. Further,
during closing argument, the prosecutor pointed out that the defendant
“started shooting at everything that moved.”

   After examining all of the evidence, we find that the jury had “two
viable alternatives, neither of which required an intent to kill,” and that it
determined that “the evidence rose to the level of depraved mind such
that second-degree murder was proven.”

   Affirmed.

GERBER, C.J., and FORST, J., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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