          Third District Court of Appeal
                                  State of Florida

                              Opinion filed April 12, 2017.
            Not final until disposition of timely filed motion for rehearing.

                                  ________________

                                  No. 3D08-1518
                            Lower Tribunal No. 04-2111B
                                ________________


                                 Manuel Walters,
                                       Appellant,

                                           vs.

                               The State of Florida,
                                       Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Julio E.
Jimenez, Judge.

     Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney
General, for appellee.


Before ROTHENBERG, LOGUE,* and SCALES, JJ.


*   Judge Logue did not participate in oral arguments.
      ROTHENBERG, J.

      On March 17, 2010, this Court affirmed Manuel Walters’ (“the defendant”)

conviction for second degree murder. Walters v. State, 30 So. 3d 656 (Fla. 3d

DCA 2010). Subsequent to this Court’s mandate, the Florida Supreme Court

issued its opinion in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), wherein the

Florida Supreme Court held that it constitutes fundamental error when a defendant

has been convicted of second degree murder and the jury was given an erroneous

manslaughter by act instruction.   Three years after Montgomery, the Florida

Supreme Court issued its opinion in Haygood v. State, 109 So. 3d 735, 741 (Fla.

2013). In Haygood, the Florida Supreme Court held that:

      [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 second-degree
      murder 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.

Id. (emphasis added).

      The defendant in the instant case was convicted of second degree murder,

the jury received the erroneous manslaughter by act instruction, and the jury was

also instructed as to culpable negligence as a lesser included offense of second

degree murder. Thus, the Florida Supreme Court remanded Walters v. State back

to this Court for reconsideration based on its decision in Haygood.      Because

defense counsel in the instant case clearly and repeatedly argued a theory upon


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which the jury could have found the defendant guilty of manslaughter by culpable

negligence, and the evidence reasonably could have supported a finding of

culpable negligence, affirmance is mandated in this case based on both Haygood

and this Court’s opinion in Dawkins v. State, 170 So. 3d 81 (Fla. 3d DCA 2015).

Accordingly, we affirm the defendant’s conviction and sentence.

                                   ANALYSIS

      In Dawkins, this Court, on rehearing and/or clarification, re-evaluated

Dawkins’ petition for writ of habeas corpus based on the Florida Supreme Court’s

holding in Haygood. After citing to the Florida Supreme Court’s holding, this

Court held:

      Upon review of the record in Dawkins’ case, there was conflicting
      testimony regarding intent, and although Dawkins did not rely on a
      culpable negligence defense, the record shows there existed, in all of
      the disputed evidence below, some evidence from which the jury
      reasonably could have found Dawkins guilty of manslaughter by
      culpable negligence, in contrast to the facts in Haygood. With that in
      mind, where the jury was also instructed [on] manslaughter by
      culpable negligence and the evidence could reasonably support so
      finding, the error in giving the flawed Montgomery manslaughter by
      act instructions was not per se fundamental error.

Dawkins, 170 So. 3d at 82 (citations omitted) (emphasis in the original).

      Thus, based on Haygood and Dawkins, this Court must examine the entire

record to determine if: (1) there was conflicting evidence as to the defendant’s

intent; and (2) if there was conflicting evidence as to the defendant’s intent,

whether there was some evidence from which the jury reasonably could have


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found the defendant guilty of manslaughter by culpable negligence. As will be

documented below, there is more than ample evidence from which a jury could

have concluded that the victim was shot and killed due to the culpable negligence

of the defendant.

A. Culpable negligence

      The culpable negligence instruction states as follows:

      Each of us has a duty to act reasonably towards others. If there is a
      violation of that duty, without any conscious intention to harm, that
      violation is negligence. But culpable negligence is more than a failure
      to use ordinary care toward others. In order for negligence to be
      culpable, it must be gross and flagrant. Culpable negligence is a
      course of conduct showing reckless disregard of human life, or of the
      safety of persons exposed to its dangerous effects, or such an entire
      want of care as to raise a presumption of a conscious indifference to
      consequences, or which shows wantonness or recklessness, or a
      grossly careless disregard for the safety and welfare of the public, or
      such an indifference to the rights of others as is equivalent to an
      intentional violation of such rights.

      The negligent act or omission must have been committed with an utter
      disregard for the safety of others. Culpable negligence is consciously
      doing an act or following a course of conduct that the defendant must
      have known, or reasonably should have known, was likely to cause
      death or great bodily injury.

Fla. Std. Jury Instr. (Crim.) 7.7.

B. The defendant’s intent was a disputed issue at trial

      As the defendant candidly admits in his reply brief filed with this Court on

May 28, 2015, the defendant’s intent was a disputed issue of fact at trial.

      Mr. Walters never so much as suggested that he intended to kill the


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      victim, and the State agreed that it needed to prove that element.
      Defense counsel only proposed that the evidence raised a reasonable
      doubt because it was consistent with an unintentional killing during a
      struggle.

Reply Brief of Appellant, page 1 (record citations omitted).

      A complete review of the trial transcript reveals that throughout the trial,

including cross-examination of the witnesses and his arguments to the jury,

defense counsel confronted and disputed the State’s theory of the case. The State’s

theory of the case was that the defendant accidentally discharged his own firearm

inside of a car he was in with his co-defendant, Joseph Long (“Long”), and

because the defendant was intoxicated, he mistakenly believed someone had shot

at them. The defendant then exited the car, confronted the victim, who was seated

in a car with the door closed and the windows up, struck the driver’s side window

of the victim’s car with his firearm at least two times, and then shot the victim

through one of the holes he had created in the window.

      The State argued that although no one actually saw the defendant shoot the

victim, the evidence established beyond a reasonable doubt that when the

defendant exited the vehicle, he banged on the victim’s window with a firearm and

then shot the victim through a hole in the window, and that he did so with evil

intent and a depraved mind, constituting the crime of second degree murder. In

contrast, defense counsel argued that they did not know what happened that night

and the State’s case was built upon conjecture and speculation. For example,


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defense counsel argued:

      We have no idea why it happened, none. You can speculate from here
      to eternity and on the evidence here in this small little room in which
      the [fate] of another human being will be determined, no evidence of
      why it happened has been brought before you.
      . . . .

      The problem with this case is [that] we don’t know what happened
      because you cannot solve the lack of evidence in this case with
      basically speculating about what may have happened.

      Defense counsel argued that the evidence was also consistent with someone

shooting at the defendant while he was seated in a vehicle; the defendant exiting

his vehicle; the defendant struggling with the victim, who was armed with a

firearm; and while the defendant was attempting to disarm the victim, the gun

discharging, fatally wounding the victim.      Because no one actually saw the

shooting, defense counsel argued that, not only was the evidence consistent with an

accidental discharge of the firearm during a struggle between the defendant and the

victim, but such a view of the evidence was more plausible than the State’s theory

of the case—that the defendant banged on the victim’s car window with a firearm

and then shot the victim with evil intent and a depraved mind.

C. The disputed evidence of the defendant’s intent

      The State’s theory of the case was that the events that resulted in the

victim’s death began when the defendant accidentally discharged his firearm in his

car. Because the defendant mistakenly believed someone had fired at him and



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Long, the defendant exited the car, found the victim sitting in the victim’s car,

banged on the victim’s car window with his firearm, and shot the victim through

one of the holes he had made in the window. The defendant and Long then drove

to a gas station while being pursued by the police, ran inside the store where the

defendant hid the firearm, and he and Long were ultimately arrested. Long was

taken into custody without incident at the gas station, and the defendant, who fled,

was found hiding in a shed and had to be tased in order to be taken into custody.

      In support of its theory of the case, the State presented various witnesses

including police officers, Long, and several technical witnesses including a crime

technician specializing in gunshot residue, a firearm tool mark examiner, a

ballistics expert, a DNA analyst, and a medical examiner.        The first witness,

Jennifer Wing, a K-9 officer for the Miami-Dade Police Department, testified that

she was seated in her vehicle approximately one block away from the shooting,

which occurred after 10:00 p.m. She testified that she heard a gunshot, looked

towards the direction of the gunshot, and saw a dark colored car parked in the

roadway. Right next to the passenger door, which was closed, she saw a silhouette

“kind of bobbing and weaving like a boxer would do and then [she] saw an arm

extend up” and then she heard another gunshot. After the second gunshot, Officer

Wing saw an individual open the passenger door and get into what was later

determined to be a green Honda, and the green Honda proceeded in her direction.



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She described the driver of the green Honda as a black male (later identified as the

co-defendant Long) and the passenger of the green Honda as a white Latin male

(later determined to be the defendant). Officer Wing noted the tag number, called

it in, asked for police assistance, and followed the Honda to a gas station, where

she saw the occupants bail out of the car and run into the convenience store. When

the defendant exited the store, Officer Wing confronted him. The defendant fled

and he was eventually apprehended by other officers, who found him hiding in a

shed.

        Through the testimony of the lead detective, crime scene technician,

criminalists, a forensic biologist, a firearm tool mark examiner, and the medical

examiner, the jury learned that the lead detective arrived within nine minutes of

Officer Wing’s call for assistance. The victim’s vehicle, a white Ford, was found

on the swale at 1115 N.W. 38th Street, the scene of the shooting. The victim was

found behind a house, unresponsive and bleeding from a gunshot wound that had

entered his chest and exited his back. He also had cuts on his left hand. The

victim’s white Ford’s bumper was dented, the front driver’s side headlight was

missing, and glass from the broken headlight was found on the sidewalk. The

victim’s blood was found on the driver’s side doorjamb of his vehicle and on his

wallet, which was also found in his vehicle. No blood was found on the street,

sidewalk, or swale. The only blood found at the shooting scene outside of the



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victim’s vehicle was the blood found behind the house where the victim had

collapsed. The driver’s side window of the victim’s vehicle was broken in two

distinct places and a projectile was found lodged inside the passenger seat of the

victim’s vehicle.

      An examination of the green Honda the defendant was in revealed a bullet

hole in the lower portion of the front passenger window.          The crime scene

technician testified that the bullet hole was caused by a bullet shot from inside the

vehicle and exiting outside of the vehicle. A “copius” amount of gunshot primer

particles was found in the green Honda, consistent with the firearm having been

discharged in the vehicle.

      Surveillance footage from inside the convenience store showed the

defendant pulling something out of his waistband. The murder weapon, a .357

Magnum, was recovered from the convenience store the defendant and Long had

fled into after the shooting. The firearm was loaded with four live rounds and two

spent casings. The projectile that entered the victim’s chest and exited his back

was recovered from the passenger seat of the victim’s vehicle. The testimony

presented at trial reflects that the recovered projectile was fired by the .357

Magnum. The barrel of the firearm also had scratches consistent with the barrel

having struck an object, which the State argued was made when the defendant

struck the victim’s car window with the firearm. When the defendant was taken



                                         9
into custody, he had cuts on his hand. DNA testing revealed that the drops of

blood found outside and inside the convenience store were the defendant’s blood.

A shard of glass, which was found stuck between the grip and the trigger guard of

the gun, was determined to have come from the broken driver’s side window of the

victim’s vehicle. From the two different DNA findings on the murder weapon, the

crime lab forensic biologist was able to conclusively rule out the victim and Long

as possible contributors, but she was not able to either rule out the defendant as a

contributor or testify that, within a reasonable degree of scientific probability, the

defendant’s DNA was on the weapon. She could only testify that the defendant

was a possible contributor of the DNA found on the murder weapon.

      Lastly, the State called the co-defendant, Long, as a witness. Long testified

that the defendant picked him up that evening in the green Honda and that they

drove to a music studio. Thereafter, the defendant asked Long to drive because the

defendant told Long “he was kind of messed up” and he did not have a valid

driver’s license. Long began driving. While they were stopped at a stop sign,

Long saw someone walking on a sidewalk towards them, saw the defendant

swinging his arm towards the rear window, and heard a loud bang. Long hit the

brakes, and while Long was looking around the car to see if anything had been

broken, the defendant jumped out of the car. When he next saw the defendant, the

defendant was standing outside of a white car. He saw the defendant strike the



                                         10
window of the white car with something in his hand, and while the defendant was

about to strike the window again, he heard another “bang go off.” The defendant

jumped back into the green Honda with Long driving. Long stopped at a gas

station and surrendered to the police.

      The record reflects that throughout the trial, defense counsel attempted to

discredit both the State’s theory and the evidence that the defendant intentionally,

and with malice, ill-will, or evil intent shot and killed the victim. Instead, defense

counsel attempted to convince the jury that either the victim had shot at the

defendant or the defendant mistakenly believed that the victim shot at him, the

defendant exited his vehicle and confronted the victim, and the gun accidentally

discharged while the defendant was trying to defend himself as he was struggling

with the victim over the gun.

      Thus, defense counsel focused on the defendant’s lack of malice, ill-will, or

intent. Beginning with his opening statement, defense counsel told the jury that the

evidence that would be presented during the trial would be more consistent with

the defense’s theory that the defendant was attacked by the victim first when the

victim shot at him, and then the defendant confronted the victim and the firearm

discharged while the defendant and victim were struggling over the firearm, rather

than the State’s theory of the case that the defendant had intentionally and with

malice, ill-will, or evil intent shot and killed the victim. For example, defense



                                         11
counsel stated the following:

      There are two holes in the window [of the victim’s car]. And the
      evidence will show that those two holes may very well have been
      caused by being hit with a gun or by fists. And the evidence will also
      show that it is consistent with two people struggling for a gun,
      slamming against the window and breaking it. And the fact that those
      knuckles and the knuckles that are cut are Mr. Walters, the evidence is
      consistent and will show that Mr. Walters had his hands over the
      hands of the individual who was trying to shoot him, who is the
      deceased in this case. And that’s why his knuckles are the ones that
      are cut and not the victim’s.

      Defense counsel actively pursued this defense through the cross-examination

of the State’s witnesses.   For example, when defense counsel cross-examined

Officer Wing, he established that she was approximately one block away from

where the shooting occurred, she did not see a muzzle flash or how the shooting

occurred. Gunshot residue was found: (1) inside the green Honda the defendant

was in; (2) on the palm and back of the victim’s left hand but not on the victim’s

right hand (the victim was right-handed); (3) on the palm of the defendant’s right

hand; and (4) on the palm and back of the defendant’s left hand. When defense

counsel cross-examined Alan Kline, the criminalist who testified about the gunshot

residue, he asked Kline whether, based on his examination of the gunshot residue,

it was possible that the defendant and the victim had struggled over the gun and the

gun had discharged during the struggle. Kline agreed that it was possible. Defense

counsel was also able to establish that gunshot residue may be rubbed off or

transferred during contact and that fire rescue and medical personnel may have


                                        12
disturbed gunshot residue on the victim’s hands while trying to save the victim’s

life.

        Through the medical examiner, defense counsel was able to obtain expert

testimony that the evidence, including the trajectory of the projectile that entered

and exited the victim’s body and was found lodged in the passenger seat of the

victim’s vehicle, was consistent with a struggle outside of the car, the gun

discharging during the struggle, and the bullet traveling through the victim’s chest

through the open car door, and into the passenger seat of the victim’s vehicle.

Additionally, in support of the defendant’s defense that the defendant was not

armed that evening and that the victim was the initial aggressor who fired a shot at

the defendant, followed by a struggle over the gun in the defendant’s attempt to

disarm the victim, and the gun discharging during that struggle, defense counsel

elicited testimony from the co-defendant, Long, that he never saw the defendant in

possession of a firearm that night and that he could not tell whether the first shot

was due to the discharge of a firearm inside the car that he and the defendant were

in or due to someone shooting at them.

        Lastly, during closing arguments, defense counsel argued that the State had

failed to prove how the shooting occurred. He argued that the evidence was

inconsistent with the State’s theory of the case, and he attacked the credibility of

and the conclusions reached by some of the State’s witnesses. He then highlighted



                                         13
the testimony by the medical examiner, who admitted that the victim could have

been shot during a struggle, and argued that it was more plausible that the victim

was shot while the defendant was attempting to disarm the victim, who was trying

to shoot the defendant.

      Well, as plausible, as, much more plausible than one of the theories of
      the prosecution is that Mr. Walters was trying to disarm[] the
      individual [who] was trying to shoot him. And that he puts his right
      hand over the hand of the man who had the gun. And as they
      struggled for the gun, of course, the man who had the gun has the gun,
      has his hand under the hand . . . that covers him. And that during that
      bobbing and weaving[,] that . . . struggle that gun crashes two or three
      times against the window breaking it, then, of course, Mr. Walters[’]
      hand would be cut. But the hand of the individual who’s holding the
      gun is shielded by the man’s hand. . . .
      . . . .

             Contrary to what the State stated during its first part of closing
      summation there were injuries that were very much indicated during
      my question that there might have been a struggle or that could have
      been a struggle. The doctor described that there was a cut [on] [the
      victim’s] nose which the State theorizes could have been from a piece
      of glass, that’s a theory. It is consistent with a piece of glass,
      consistent means it could have happened, that what it means. But
      there’s also contusions[,] he had abrasions [on] one of his knees and
      he had another contusion on his body.

            So therefore that is also consistent with injuries in a struggle
      absolutely. . . .

      Thus, it is clear that defense counsel actively pursued a theory that when the

defendant shot the victim it was without malice or evil intent.

C. The record contains evidence upon which the jury could have found the
   defendant guilty of culpable negligence



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      The undisputed evidence was that the defendant was “messed up” that

evening. The jury could have found the defendant guilty of manslaughter by

culpable negligence if the jury concluded that (1) the defendant, in his intoxicated

state, accidentally discharged his own firearm in the green Honda, (2) in his stupor,

the defendant believed someone had fired at him while he was seated in the Honda,

(3) the defendant exited the Honda to confront the victim, who he believed may

have shot at him, banged on the window of the vehicle the victim was in with a

firearm, and (4) the firearm either discharged while the defendant was banging on

the window, or while he and the victim were struggling over the gun.

      Culpable negligence is the failure to act reasonably towards others without

any conscious intention to harm. It is reckless conduct—a negligent act or acts

committed with an utter disregard for the safety of others. There was evidence

upon which the jury could have found that the defendant’s acts were gross and

flagrant, demonstrating a disregard for human life or the safety of persons exposed

to his acts—that he consciously committed an act or acts or followed a course of

conduct that the defendant must have known or reasonably should have known was

likely to cause death or great bodily harm.

      If the jury did not believe that the State had proved beyond a reasonable

doubt that when the defendant shot the victim he did so intentionally and with ill-

will, hatred, spite or evil intent, then it could have found that the defendant did so



                                         15
while acting with gross and flagrant recklessness. Carrying a loaded firearm on his

person while in such an intoxicated state that he was unable to discern whether he

had accidentally discharged his own firearm while seated in a car with another

individual or he was being fired upon by someone outside of the car was certainly

gross, flagrant, and reckless behavior, demonstrating a total disregard for the safety

of the other occupant (Long who was driving the car) and the general public. But

neither Long nor members of the general public were killed as a result of the

negligent discharge of the defendant’s firearm in the green Honda. It was the

defendant’s subsequent acts that resulted in the death of the victim. The jury could

have concluded that because of his mistaken belief that someone had fired a gun at

him, the defendant confronted an innocent and unarmed man with his firearm. In

his stupor and rage, the defendant banged on the window of the vehicle the victim

was in with that firearm, and the firearm discharged, killing the victim. Thus, if

the jury was not convinced that the defendant was guilty of second degree murder,

it could have found the defendant guilty of manslaughter by culpable negligence.

      Because there was evidence from which the jury could have found the

defendant guilty of manslaughter by culpable negligence, this Court must affirm

the defendant’s conviction based on this Court’s decision in Dawkins and the

Florida Supreme Court’s decision in Haygood. In Dawkins, this Court specifically

relied on Haygood in denying Dawkins’ petition for writ of habeas corpus based on



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the erroneous manslaughter by act instruction given to the jury. In finding that no

fundamental error had occurred, this Court held that, although Dawkins did not

rely on a culpable negligence defense, there was evidence upon which the jury

could have found Dawkins guilty of manslaughter by culpable negligence. The

same is true in this case.

                                 CONCLUSION

      The issue before this Court on remand is whether the unobjected-to

erroneous manslaughter by act jury instruction is fundamental error where the

defendant was convicted of second degree murder and the jury was also instructed

on manslaughter by culpable negligence as a lesser included offense of second

degree murder. Because the record clearly reflects that the defendant’s intent was

a disputed issue at trial and there was evidence upon which the jury could have

found that the firearm accidentally discharged and killed the victim due to the

culpable negligence of the defendant, the giving of the flawed manslaughter by act

instruction does not constitute fundamental error in this case. Accordingly, we

affirm.

      Affirmed.




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