Lathan v. State

270 So.3d 1262

Jarrell L. LATHAN, Petitioner,

v.STATE of Florida, Respondent.

Case No. 5D18-1979

District Court of Appeal of Florida, Fifth District.

Opinion filed May 3, 2019

Jarrell L. Lathan, Orlando, pro se.

Ashley Moody, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Respondent.

LAMBERT, J.

Jarrell L. Lathan petitions this court for relief under Florida Rule of Appellate Procedure 9.141(d). Lathan was convicted after trial of attempted second-degree murder with a firearm and contends that his appellate counsel ineffectively represented him during his direct appeal by failing to argue that the trial court committed fundamental error by not instructing the jury on the necessarily lesser included offense of attempted manslaughter by act. We deny Lathan's petition; but, as we explain below, we also certify questions of great public importance to the Florida Supreme Court.

Lathan was charged with attempted first-degree murder with a firearm but was convicted of the lesser included offense of attempted second-degree murder with a firearm. The jury also separately found that during the commission of this offense, Lathan actually possessed and discharged a firearm, inflicting great bodily harm on the victim. The trial court sentenced Lathan to serve a twenty-five-year mandatory minimum prison sentence.

In the light most favorable to the State, the evidence at trial established that Lathan began arguing with his wife because he believed that she was being unfaithful to their marital vows. The argument escalated when Lathan struck his wife, put his hands around her neck, pointed a gun at her, and then threatened to kill her. As his wife tried to escape through the front door of their apartment, Lathan shot her through the abdomen. Lathan immediately fled the scene and shortly thereafter led law enforcement on an approximately fifteen-mile high speed chase that included pursuit by Orange County Sheriff deputies both in squad cars and by helicopter. Lathan turned off his headlights in an effort to avoid detection and bypassed stop sticks that law enforcement had placed in the road to puncture his tires. Lathan ultimately crashed his car in the front yard of a home and then ran from his car and hid in the homeowner's backyard. He was finally stopped by a K-9 officer, who bit Lathan in the leg and detained him until the pursuing law enforcement officers could place Lathan under arrest.

Lathan's appellate counsel raised one issue in the direct appeal. Lathan had also been convicted at trial of aggravated battery causing great bodily harm or with a firearm; and counsel argued on appeal that the trial court erred when it reclassified Lathan's aggravated battery conviction from a second-degree felony to a first-degree felony because the court instructed the jury on both the use-of-deadly-weapon and great-bodily-harm forms of aggravated battery, but the jury returned a general verdict. See Brady v. State , 65 So.3d 599, 602 (Fla. 5th DCA 2011) (holding that reclassification of an aggravated battery conviction is not proper when the trial court instructed the jury on both forms of aggravated battery and the jury returned a verdict of "guilty as charged"). The State conceded error, and we reversed and remanded to the trial court to correct the judgment and sentencing documents to reflect the proper classification of Lathan's aggravated battery conviction. Lathan v. State , 218 So.3d 510, 510 (Fla. 5th DCA 2017).¹

Mandate issued in the direct appeal on June 13, 2017. Approximately six months earlier, the Florida Supreme Court had issued its opinion in Walton v. State , 208 So.3d 60 (Fla. 2016). There, the defendant had been convicted at trial of the charged offense of attempted second-degree murder. Id. at 64. The supreme court held that the trial court committed fundamental error by failing to instruct the jury on attempted manslaughter by act as a lesser included offense of attempted second-degree murder. Id. The court wrote that because attempted manslaughter by act is a necessarily lesser included offense of attempted second-degree murder,² the trial court had no discretion but to instruct the jury on this offense because "[o]nce the judge determines that the offense is a necessarily lesser included offense, an instruction must be given." Id. (quoting State v. Montgomery , 39 So.3d 252, 259 (Fla. 2010) ).

In bringing the instant petition alleging ineffective assistance of his appellate counsel, Lathan has the burden of showing that his counsel's alleged actions or omissions on direct appeal were so deficient that they fell measurably outside the range of professionally acceptable performance. See Granberry v. State , 919 So.2d 699, 700 (Fla. 5th DCA 2006). He must also demonstrate that this "deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result." See id. (citing Mansfield v. State , 911 So.2d 1160, 1178 (Fla. 2005) ).

Lathan asserts that he has met both of these requirements, contending that had his counsel argued on direct appeal that under Walton³ the trial court fundamentally erred in failing to give the attempted manslaughter by act instruction, which is only one step removed from the convicted offense of attempted second-degree murder with a firearm, our court would have been required to reverse this conviction and remand for a new trial on this count.

During the trial, the very experienced trial judge asked both the prosecutor and defense counsel if either was requesting any specific lesser included offense jury instructions and, if so, to which count or counts. For the charged crime of attempted first-degree murder at issue in count one, there are four category one, necessarily lesser included offenses—attempted second-degree murder, attempted manslaughter by act, attempted aggravated battery (intentionally causing great bodily harm), and attempted battery (intentionally causing bodily harm). See Fla. Std. Jury Instr. (Crim.) 6.2. The prosecutor responded that the State was requesting the lesser included offense instruction of attempted second-degree murder with a firearm. Defense counsel thereafter affirmatively represented to the court that he had no requests for any other lesser included offense jury instructions.

Then, on the final morning of the trial and once again just prior to instructing the jury, the trial judge checked with both the prosecutor and defense counsel to determine if there were any objections to the proposed jury instructions and if the instructions were acceptable. Defense counsel again specifically responded to the judge that he had no objections and that the instructions were acceptable. Thus, the only lesser included offense jury instruction given on any of the six counts tried was the aforementioned attempted second-degree murder with a firearm on count one. As previously indicated, the jury returned a guilty verdict on this lesser included offense.

"Jury instructions are subject to the contemporaneous objection rule. In the absence of an objection at trial, a challenge can be raised on appeal only if fundamental error occurred." Daugherty v. State , 211 So.3d 29, 39 (Fla. 2017) (citing State v. Delva , 575 So.2d 643, 644 (Fla. 1991) ). As indicated, Lathan's trial counsel raised no objections to the jury instructions as given. Therefore, because any alleged error by the trial court in not giving the attempted manslaughter by act jury instruction was not preserved for appellate review, relief is available to Lathan here only if he shows that this failure to give the attempted manslaughter by act instruction was fundamental error. See Hendrix v. State , 908 So.2d 412, 426 (Fla. 2005) ("[A]ppellate counsel may not be deemed ineffective for failing to challenge an unpreserved issue on direct appeal unless it resulted in fundamental error." (citing Rutherford v. Moore , 774 So.2d 637, 646 (Fla. 2000) )).

In its response to Lathan's petition, the State first asserts that no fundamental error occurred and therefore appellate counsel was not ineffective because the omitted attempted manslaughter by act lesser included offense jury instruction is more than one step removed from Lathan's charged offense of attempted first-degree murder with a firearm, as opposed to his convicted offense of attempted second-degree murder with a firearm.⁴ However, based on the Florida Supreme Court's decision in Montgomery , we disagree. In that case, the defendant was charged with first-degree murder. 39 So.3d at 254. Manslaughter is a category one lesser included offense of first-degree murder, albeit two steps removed. See Fla. Std. Jury Instr. (Crim.) 7.2. Nevertheless, because it is a category one lesser included offense of first-degree murder, the court held that the trial court had no discretion and was required to instruct the jury on manslaughter. Montgomery , 39 So.3d at 259.

The trial court did give the then-flawed manslaughter by act jury instruction; and the defendant was convicted not of the charged offense but of the lesser included offense of second-degree murder, which is only one step removed from manslaughter. Id. On appeal, and in apparent recognition that no objection had been raised at trial, the defendant argued that the trial court committed fundamental error by utilizing the flawed manslaughter by act jury instruction. Id. at 254–55. The Florida Supreme Court, acknowledging its earlier decision in Pena v. State , 901 So.2d 781, 787 (Fla. 2005), that "when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis," held that because the defendant's conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, fundamental error occurred in...