       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 14, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D07-2324
                         Lower Tribunal No. 04-16568
                             ________________


                              Willie Lumsdon,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, David H. Young
and Rosa I. Rodriguez, Judges.

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

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.


Before WELLS, SHEPHERD, and LOGUE.

                                 ON REMAND

      LOGUE, J.
       This case returns to us on remand following the Florida Supreme Court’s

decisions in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), and Haygood v.

State, 109 So. 3d 735 (Fla. 2013). Willie Lumsdon, the defendant, argues that his

second-degree murder conviction must be reversed because the standard

manslaughter by act instruction read to the jury was the same instruction held to be

erroneous in Montgomery.1 The State agrees the instruction was erroneous. Citing

to Dawkins v. State, 170 So. 3d 81 (Fla. 3d DCA 2015), however, the State

contends that the error was cured because the jury was also instructed on

manslaughter by culpable negligence and the evidence could reasonably support so

finding.2 We agree with the defendant. Because he objected to the erroneous

instruction on manslaughter by act, and the State cannot show that the error was

harmless beyond a reasonable doubt, we reverse and remand for a new trial on

second-degree murder. See Haygood, 109 So. 3d at 742; Montgomery, 39 So. 3d at

259.




1 The standard jury instruction for manslaughter by act has since been amended to
exclude the element of “intent to kill.” In re Amendments to Standard Jury
Instructions in Criminal Cases—Instruction 7.7, 75 So. 3d 210, 211 (Fla. 2011).
The trial court did not have the benefit of this change at the time it rendered its
decision.
2The defendant requested the instruction on manslaughter by culpable negligence.
The evidence supported that instruction, as well as an instruction on second-degree
murder and manslaughter by act, which was requested by the State.

                                         2
      The State’s reliance on Dawkins is misplaced. In Dawkins, the defendant did

not object to the erroneous instruction. For this reason, the erroneous instruction

was reversible only if it reflected fundamental error—error that reaches down into

the validity of the trial itself to the extent that a verdict of guilty could not have

been obtained without the assistance of the alleged error. Dawkins held that, where

the jury was also instructed on manslaughter by culpable negligence and the

evidence could reasonably support a finding of culpable negligence, the erroneous

instruction on manslaughter by act was “not per se fundamental error.” 170 So. 3d

at 83. The determination that the error was not fundamental falls far short of

holding the error was not harmful.

      By contrast, here, the defendant objected to the flawed instruction on

manslaughter by act. This objection preserved the issue for appeal and triggered

the harmless error analysis, which places the heavy burden on the State, as the

beneficiary of the error, to show “no reasonable possibility that the error

contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.

1986); see also Barnes v. State, 108 So. 3d 700, 703 (Fla. 1st DCA 2013) (“Where

a trial court erroneously fails to give a requested special instruction that it should

have given, and the requesting party makes a contemporaneous objection, the State

has the burden, as the beneficiary of the error, to prove beyond a reasonable doubt

that it was harmless error not to give the instruction.”). In this case, the State



                                          3
cannot meet its heavy burden because the flawed instruction pertained to a

disputed element of the offense (the defendant’s intent) and the defendant was

convicted of a crime only one step removed from the necessarily lesser included

offense of manslaughter by act. See Haygood, 109 So. 3d at 742; Montgomery, 39

So. 3d at 259; Molina v. State, 150 So. 3d 1280, 1284 (Fla. 3d DCA 2014)

(“[U]nder Haygood, where there are more than one lesser included offenses that

are no more than one step removed from the crime for which the defendant is

convicted, a trial court’s correct instruction on one does not cure or render

harmless an erroneous instruction on another.”).

      Affirmed in part, reversed in part, and remanded for a new trial.3

      SHEPHERD, J., concurs.




3We affirm without discussion the defendant’s conviction of throwing a deadly
missile.

                                         4
                                            Willie Lumsdon v. The State of Florida,
                                            3D07-2324

WELLS, Judge (concurring)

      I agree with the majority’s decision to affirm Willie Lumsdon’s conviction

and sentence for throwing a deadly missile and to reverse his conviction and

sentence for second degree murder, but do so for the following reasons.

      This case arises from a shooting death that occurred near or on a crowded

off-ramp of I-95, where two groups of young men travelling in separate vehicles

engaged in verbal repartee and tossed items between cars following which

Lumsdon admittedly fired off a shot killing one of the occupants in the other car.

See Lumsdon v. State, 29 So. 3d 390, 392 (Fla. 3d DCA 2010), quashed by, 160

So. 3d 896 (Fla. 2014) (“Lumsdon I”). As pertinent here, Lumsdon was charged

with second degree murder with a firearm in which it was properly alleged that

Lumsdon’s acts, while imminently dangerous and evincing a depraved mind, were

committed without an intent to kill:

            WILLIE J LUMSDON, on or about May 30, 2004, in the
      County and State aforesaid, did unlawfully, feloniously and by an act
      imminently dangerous to another, and evincing a depraved mind
      regardless of human life, although without any premeditated design to
      effect the death of any particular individual, kill MALCOM


                                        5
      MARSHALL, a human              being,   by   SHOOTING        MALCOM
      MARSHALL . . . .

Whereas, Lumsdon claimed that fearful of the occupants of the other car, he acted

in self-defense by shooting a gun into the air as a warning. Id.

      In July of 2007, Lumsdon was tried on these charges. In addition to being

instructed that “Second Degree [Murder] includes the lesser crime[] of

Manslaughter,” the jury was instructed that to find Lumsdon guilty of second

degree murder it had to find that Lumsdon unlawfully caused Marshall’s death by

committing an imminently dangerous act demonstrating a depraved mind:

           Before you can find the defendant guilty of Second Degree
      Murder [Ct. 1], the State must prove the following three elements
      beyond a reasonable doubt:

             1. MALCOLM MARSHALL, is dead.

             2. The death was caused by the criminal act of WILLIE
                J. LUMSDON.

             3. There was an unlawful killing of MALCOLM
                MARSHALL by an act imminently dangerous to
                another and demonstrating a depraved mind without
                regard for human life.

The jury also was given that part of the Florida Standard Jury Instruction in

Criminal Cases 7.7 in effect at that time on manslaughter by culpable negligence,

and, over objection, that part of the same instruction on manslaughter by act:

            To prove the crime of Manslaughter, as a lesser-included
      offense of Ct 1, the State must prove the following two elements
      beyond a reasonable doubt:


                                          6
            1. MALCOLM MARSHALL is dead.

            a. WILLIE J. LUMSDON intentionally caused the death
               of MALCOLM MARSHALL, or

            b. The death of MALCOLM MARSHALL was caused
               by the culpable negligence of WILLIE J. LUMSDON
               ....

The jury returned a verdict in pertinent part finding Lumsdon guilty of second

degree murder as charged.

      On appeal, Lumsdon raised four issues all of which ultimately were rejected

by this court. See Lumsdon I, 29 So. 3d at 391–393. However, following oral

argument, Lumsdon filed supplemental briefing relying on Montgomery v. State,

70 So. 3d 603 (Fla. 1st DCA 2009), which then was pending on certification in the

Florida Supreme Court, arguing entitlement to reversal of his conviction for second

degree murder.     While we found no merit to his argument, “[t]o preserve

Lumsdon’s rights,” should the Florida Supreme Court determine that the

manslaughter by act instruction given in this case was fundamentally flawed, we

certified conflict with Montgomery. See Lumsdon I, 29 So. 3d at 393 n.1.

      In State v. Montgomery, 39 So. 3d 252, 259-60 (Fla. 2010), the Florida

Supreme Court held that the manslaughter by act instruction at issue here was

flawed because it required the jury to determine that the defendant intended to kill

the victim—an element not required by the manslaughter statute—rather than



                                         7
determining whether the defendant intended to commit an act which cause the

victim’s death:

             In conclusion we approve the decision of the First District
      Court of Appeal to the extent that it held that manslaughter by act
      does not require proof that the defendant intended to kill the victim . .
      . . We [further] . . . hold that the crime of manslaughter by act does
      not require that the State prove that the defendant intended to kill the
      victim . . . [and] that the intent which the State must prove for the
      purpose of manslaughter by act is the intent to commit an act that was
      not justified or excusable, which caused the death of the victim.

      Because no objection to the flawed instruction had been lodged in the court

below, and because “manslaughter is just one step removed from second-degree

murder,” the Montgomery court found “fundamental error occurred . . . which was

per se reversible.” Id. at 259. Three years later, the Florida Supreme Court in

Haygood v. State, 109 So. 3d 735, 741 (Fla. 2013), held that giving a manslaughter

by culpable negligence instruction along with the manslaughter by act instruction

rejected in Montgomery “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.” Following these decisions, our decision in

Lumsdon I was quashed and this matter remanded to us for reconsideration in light

of Montgomery and Haygood. Lumsdon v. State, 160 So. 3d 896 (Fla. 2014).




                                         8
      On remand, we requested and received supplemental briefs and heard oral

argument. The State, citing to Haygood, argues that because there was some

evidence adduced below that could support a finding of culpable negligence, that

Lumsdon is not entitled to a new trial.           I disagree, because here, unlike

Montgomery and Haygood, an objection to the flawed instruction was lodged.

And, as this court in Lugones v. State, 147 So. 3d 1081, 1082 (Fla. 3d DCA 2014),

confirmed where an objection had been lodged, the burden falls on the State under

State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), to establish beyond a

reasonable doubt that giving this instruction did not contribute to the verdict or,

alternatively stated, that there is no reasonable possibility that the error contributed

to the conviction:

      Lugones objected to this instruction [on attempted manslaughter by
      act which required a finding that the defendant intended to cause the
      death of the victim] on the basis that the intent to kill is not an element
      of attempted manslaughter.         The court nevertheless gave the
      instruction to the jury.

             ....

                                        ANALYSIS

             The first issue is whether the use of the standard jury instruction
      on attempted manslaughter was reversible error. It was. In the first
      place, the standard jury instruction was wrong. Intent to kill is not an
      element of attempted manslaughter. . . .

           The second issue is whether the trial court’s mistake of giving
      the wrong jury instruction constituted reversible error. Because
      Lugones timely objected to the instruction the State has the high


                                           9
      burden of proving that the error was harmless. . . . [S]ee also State v.
      DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (“The harmless error test
      . . . places the burden on the state, as the beneficiary of the error, to
      prove beyond a reasonable doubt that the error complained of did not
      contribute to the verdict, or alternatively stated, that there is no
      reasonable possibility that the error contributed to the conviction.”).

See also Williams v. State, 123 So. 3d 23, 24 (Fla. 2013) (applying the same

reasoning to the attempted manslaughter by act instruction as that applied in

Montgomery to the manslaughter by act instruction).

      Because I find that the State cannot meet this high burden in this case, I

agree that Lumsdon’s conviction for second degree murder must be reversed and

this matter remanded for a new trial on that count.4,5

4 In coming to this conclusion, I necessarily reject the State’s argument that the
evidence in this case supports not only a finding of manslaughter by act, but also
reasonably supports a finding of culpable negligence so as to “cure” the error in
giving the flawed manslaughter by act instruction. See Haygood, 109 So. 3d at
741. Indeed, in light of Lumsdon’s concession in his supplemental brief on
remand that the “facts in this case . . . did not reasonably support culpable
negligence,” and that the “only viable lesser offense, one-step removed from
second-degree murder, would have been manslaughter by act, an offense for which
the jury was not properly instructed,” I agree that the “cure” considered in
Haygood does not apply in this case. See id. (“Based on our decision in
Montgomery, and the principles underlying that decision, we conclude that giving
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.”); see also Lugones, 147
So. 3d at 1083 (“Obviously, a fundamental error is not harmless. Therefore, giving
the wrong instruction was reversible error.”).
5 I also concur in the majority’s determination that Lumdon’s conviction for
throwing a deadly missile should be affirmed.

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