Marshall v. State

240 So.3d 111

James C. MARSHALL, Petitioner,

v.The STATE of Florida, Respondent.

No. 3D17–1605

District Court of Appeal of Florida, Third District.

Opinion filed February 28, 2018

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for petitioner.

Pamela Jo Bondi, Attorney General, and Marlon J. Weiss and Michael W. Mervine, Assistant Attorneys General, for respondent.

Before LOGUE, SCALES and LINDSEY, JJ.

SCALES, J.

James Marshall petitions this Court for a writ of habeas corpus pursuant to Florida Rule of Appellate Procedure 9.141(d), claiming that he is entitled to a new trial on the charge of second degree murder based on ineffective assistance of appellate counsel. Specifically, Marshall argues that appellate counsel failed to file a supplemental brief in his direct appeal citing to Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009) ( Montgomery I ), which held that giving the then standard jury instruction for manslaughter by act constituted fundamental error, effectively denying him the opportunity to be placed in the Montgomery pipeline. Though this Court previously denied Marshall's first petition raising this same ground,¹ for the following reasons, we grant the instant, successive petition based on the manifest injustice doctrine and remand for a new trial.

1. Underlying Facts and Procedural Background

The State charged Marshall by information with second degree murder for strangling the victim, Marie Sanders, to death on April 2, 2004. The case proceeded to trial on November 14, 2006. Eyewitness testimony at trial established that Marshall accosted the victim in her bed while she was sleeping. When the victim fell backwards off the bed during the ensuing struggle, Marshall straddled the victim—who by then was lying face down on the floor—and proceeded to choke her for at least four minutes. During this time, Marshall resisted attempts by the victim and two bystanders who tried to stop him. Marshall's attack continued despite one of the bystanders actually hitting Marshall with a kitchen pan. Marshall even continued to choke the victim after the police arrived at the scene with guns drawn. Paramedics attempted to revive the victim, but she died at the scene.

At the close of all the evidence, after instructing the jury of the elements of second degree murder, the trial court instructed the jury, without objection, as to the lesser included offenses of manslaughter by act and manslaughter by culpable negligence, giving the then standard jury instructions as to those crimes.² The jury found Marshall guilty of second degree murder as charged. The trial court adjudicated Marshall guilty of second degree murder and, on December 26, 2006, sentenced Marshall to forty-five years in prison.

Marshall, through counsel, appealed his conviction. On direct appeal, Marshall did not challenge the validity of the manslaughter by act jury instruction that had been given at trial. This Court affirmed his conviction with a written opinion issued on July 22, 2009. See Marshall v. State, 15 So.3d 811 (Fla. 3d DCA 2009). This Court's mandate issued on August 7, 2009. Marshall thereafter filed a pro se petition for belated discretionary review in the Florida Supreme Court, but voluntarily dismissed that petition on November 5, 2009. See Marshall v. State, 22 So.3d 538 (Fla. 2009) (table).

2. The Postconviction Proceedings

a. Montgomery I and Montgomery II

On February 12, 2009, while Marshall's direct appeal was still pending in this Court, the First District issued its opinion in Montgomery I. In Montgomery I, our sister court found that the trial court had fundamentally erred in giving the then standard jury instruction for manslaughter by act because the instruction erroneously suggested that intent to kill was an element of that crime. 70 So.3d at 608. The Montgomery I court ordered a new trial for Montgomery, but certified the issue to the Florida Supreme Court as one of great public importance. Id. The Florida Supreme Court accepted jurisdiction of Montgomery I's certified question on May 7, 2009, again, while Marshall's direct appeal was still pending in this Court; yet, Marshall's appointed appellate counsel did not notify this Court of either the Montgomery I decision, or that the Florida Supreme Court had accepted jurisdiction to answer the question certified in Montgomery I.

On April 8, 2010, the Florida Supreme Court approved the First District's decision in Montgomery I"to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim and concluding that in this case, the use of the standard jury instruction on manslaughter constituted fundamental error." State v. Montgomery, 39 So.3d 252, 260 (Fla. 2010) (" Montgomery II").

b. Marshall's Rule 3.850 motion

While the record is unclear as to exactly when, Marshall notified his appellate counsel of the Montgomery proceedings. On May 21, 2010, Marshall's appellate counsel sent Marshall a letter that acknowledged counsel's oversight. Attached to counsel's letter was a draft Florida Rule of Criminal Procedure Rule 3.850 postconviction motion alleging ineffective assistance of both trial counsel and appellate counsel, for Marshall to file pro se . That postconviction motion alleged that (i) Marshall's trial counsel had been ineffective for failing to object the manslaughter by act jury instruction at trial, and (ii) Marshall's appellate counsel had been ineffective for failing to file a supplemental brief in Marshall's direct appeal, missing the opportunity to place Marshall in the Montgomery pipeline. Counsel's letter to Marshall also contained an affidavit signed by counsel in which counsel averred, in relevant part, "I was ineffective as appellate counsel by failing to recognize the error committed by the trial court and thus deprived the defendant/petitioner of effective assistance of counsel on appeal, in violation of his Sixth Amendment rights, and I therefore join in the defendant/petitioner's motion for the relief requested therein."

In June 2010, Marshall filed in the lower court his pro se rule 3.850 motion and accompanying affidavit, both of which had been prepared by his appellate counsel. The trial court denied Marshall's pro se rule 3.850 motion,³ and this Court, without elaboration, affirmed the trial court's denial of Marshall's rule 3.850 motion. Marshall v. State, 56 So.3d 11 (Fla. 3d DCA 2011) (table).

c. Marshall's Rule 9.141(d) Petitions Alleging Ineffective Assistance of Appellate Counsel and Haygood I and Haygood II

In February 2011, Marshall timely⁴ filed with this Court his first pro se rule 9.141(d) petition. Marshall's petition alleged (as did his improper rule 3.850 motion) that his appellate counsel had been ineffective for failing to file anything with this Court during the pendency of Marshall's direct appeal notifying this Court of the proceedings in Montgomery I. Marshall's petition alleged that appellate counsel's ineffectiveness in this regard caused Marshall to miss an opportunity to be placed in the Montgomery pipeline, and thereafter to obtain relief under Montgomery II.

While this petition was still pending, Marshall filed a notice of supplemental authority and moved to stay this Court's consideration of his petition pending resolution by the Florida Supreme Court of a question certified to it by our sister court in Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA 2011) (" Haygood I"). The question certified in Haygood I was whether, in light of the Supreme Court's pronouncements in Montgomery II, the trial court committed fundamental error by giving the flawed manslaughter by act jury instruction where the standard jury instruction for manslaughter by culpable negligence was also given, despite there being no evidence to support a theory of manslaughter by culpable negligence. Id. at 1038. The Second District found that there was no fundamental error under these circumstances. At the time, the law in this District was similar to the law in the Second District: any harm from giving the improper manslaughter by act instruction was alleviated if the trial court also gave the jury the manslaughter by culpable negligence instruction. See Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010) (distinguishing Montgomery II ) (" Cubelo I").

The Florida Supreme Court accepted jurisdiction of Haygood I on May 5, 2011. This Court, however, did not grant Marshall's stay motion. Instead, on July 20, 2011, this Court, without elaboration, summarily denied Marshall's rule 9.141(d) petition and denied Marshall's motion for rehearing that also cited to Haygood I.See Marshall v. State, 75 So.3d 286 (Fla. 3d DCA 2011) (table).⁵

On February 13, 2013, the Florida Supreme Court answered the question certified to it in Haygood I, ultimately holding that "giving the erroneous manslaughter by act instruction, which we found to be fundamental error in [ Montgomery II ] is also fundamental error even if the instruction on manslaughter by culpable negligence is given where the evidence supports manslaughter by act but does not support culpable negligence and the defendant is convicted of second-degree murder." Haygood v. State, 109 So.3d 735, 736 (Fla. 2013) (footnote omitted) (" Haygood II"). Haygood II held that where (i) the erroneous manslaughter by act instruction is given, (ii) the defendant is convicted of a crime not more than one step removed from manslaughter (such as second degree murder), and (iii) the evidence supports a finding of manslaughter by act, but not a finding of manslaughter by culpable negligence, the defendant is entitled to a new trial even if the jury is correctly instructed on manslaughter by culpable negligence. Id. at 743.

d. Marshall's Instant Habeas Corpus Petition Alleging Manifest Injustice

On July 14, 2017, Marshall filed the instant, pro se "Successive Petition for Writ of Habeas Corpus," once again arguing ineffective assistance of appellate co...