In the Supreme Court of Florida ______
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IN THE SUPREME COURT OF FLORIDA _____________________________________________________________ CASE NO. SC10-1458 L.T. CASE NO. 4D09-2159 _____________________________________________________________ AMOS AUGUSTUS WILLIAMS, Petitioner, vs. STATE OF FLORIDA, Respondent. _____________________________________________________________ RESPONDENT’S ANSWER BRIEF ON THE MERITS _____________________________________________________________ ON DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL _____________________________________________________________ PAMELA JO BONDI ATTORNEY GENERAL Tallahassee, Florida CELIA TERENZIO BUREAU CHIEF, West Palm Beach Florida Bar Number: 0656879 DIANE F. MEDLEY Assistant Attorney General Florida Bar Number: 88102 1515 North Flagler Drive, 9th Floor West Palm Beach, Florida 33401 561-837-5000 Counsel for Respondent TABLE OF CONTENTS TABLE OF AUTHORITIES. .iii PRELIMINARY STATEMENT. .v STATEMENT OF THE CASE AND FACTS. 1 SUMMARY OF THE ARGUMENT. 6 ARGUMENT. 7 THE TRIAL COURT DID NOT FUNDAMENTALLY ERR WHEN INSTRUCTING THE JURY AS TO ATTEMPTED VOLUNTARY MANSLAUGHTER BY ACT. [Restated] . 7 I. Introduction. 7 II. Standard of Review. 8 III. Based on interpreting the applicable statute in light of the common law, the standard jury instruction on attempted voluntary manslaughter (by act) was correct. 8 IV. Even by giving the applicable statute only its strict and literal interpretation, as was done in Montgomery, the jury instruction in this case did not rise to the level of fundamental error. .24 CONCLUSION. .34 CERTIFICATE OF SERVICE. 35 CERTIFICATE OF COMPLIANCE. 36 ii TABLE OF AUTHORITIES Cases Cited Acensio v. State, 497 So. 2d 640 (Fla. 1986) . .26-27 Anderson v. State, 841 So. 2d 390 (Fla. 2003) . 24, 32 Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987) . 17-18 Bautista v. State, 863 So. 2d 1180 (Fla. 2003) . .10-11 Bolin v. State, 8 So. 3d 428 (Fla. 2d DCA 2009) . .18-19 Brown v. State, 790 So. 2d 389 (Fla. 2000) . 21-22 Coicou v. State, 39 So. 3d 237 (Fla. 2010) . 26 Collingsworth v. Mayo, 37 So. 2d 696 (Fla. 1948) . 7 Disney v. State, 72 Fla. 492, 73 So. 598 (Fla. 1916) . .13 Fortner v. State, 119 Fla. 150, 161 So. 94 (Fla. 1935) . 12-15, 23 Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007) . .15 In re Amendments to Standard Jury Instructions in Criminal Cases – Instruction 7.7, 41 So. 3d 853 (Fla. 2010) . 7, 9 In re Standard Jury Instructions in Criminal Cases – Report No. 2007-10, 997 So. 2d 403 (Fla. 2008) . .7, 8 Johnson v. State, 53 So. 3d 1003 (Fla. 2010) . .27-29 Jones v. State, 484 So. 2d 577 (Fla. 1986) . .27 Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009) . .1 McDonald v. State, 957 So. 2d 605 (Fla. 2007) . .8 iii Cases Cited (continued) Montgomery v. State, --- So. 3d ---, 2009 WL 350624, (Fla. 1st DCA 2009) . .18 Olds v. State, 44 Fla. 452, 33 So. 296 (Fla. 1902) . 12-13 Paz v. State, 777 So. 2d 983 (Fla. 3d DCA 2000) . 13-14 Rodas v. State, 967 So. 2d 444 (Fla. 4th DCA 2007) . 28 Rodriguez v. State, 443 So. 2d 286 (Fla. 3d DCA 1983) . .11, 13, 15, 21 Rojas v. State, 552 So. 2d 914 (Fla. 1989) . .27 Rushing v. State, --- So. 3d ---, 2010 WL 2471903 (Fla. 1st DCA 2010) . .30 State v. Abreau, 363 So. 2d 1063 (Fla. 1978) . 26 State v. Montgomery, 39 So. 3d 252 (Fla. 2010) . 1, 7, 24-25, 29-31, 34 Stockton v. State, 544 So. 2d 1006 (Fla. 1989) . 10 Taylor v. State, 444 So. 2d 931 (Fla. 1984) . 16-17, 21 Williams v. State, 40 So. 3d 72 (Fla. 2010) . 1, 31-33 Statutes Cited §775.01, Fla. Stat. .16 §782.07(1), Fla. Stat. 10 Pending Cases Cited In re Standard Jury Instructions in Criminal Cases, SC10-113. .9 In re Standard Jury Instructions in Criminal Cases, SC11-1010. .9 iv Comments Cited Bart Schneider, Comments, SC10-113, May 17, 2010. .10 Charmaine Millsaps, Comments on Proposed Manslaughter Jury Instruction, SC10-113, June 7, 2010. .10 Charmaine Millsaps, Comments on Proposed Attempted Voluntary Manslaughter Jury Instruction, SC11-1010, Mar. 16, 2011 . .9 Michael Terrance Kennett, Comments, SC10-113, June 7, 2010 . 10, 21, 26 Michael Terrance Kennett, Comments, SC11-1010, Mar. 14, 2011. .9-10 PRELIMINARY STATEMENT Petitioner was the defendant and respondent was the prosecution in the Criminal Division of the Circuit Court of the Nineteenth Judicial Circuit, in and for St. Lucie County. On appeal to the Fourth District Court of Appeal, petitioner was the appellant and respondent was the appellee. In this brief, the parties will be referred to as they appear before this Court, except that respondent may also be referred to as “the state.” The following references, which were utilized by petitioner in his initial brief, will also be used in this brief: [R.] Record proper on appeal [consisting of three volumes, paginated 1 through 320, with the third volume “confidential”] [T. ] Transcripts on appeal of jury trial and sentencing [consisting of three volumes, paginated 1 through 570] v STATEMENT OF THE CASE AND FACTS This case is before the Court pursuant to two questions certified by the Fourth District Court of Appeal: 1. Does the standard jury instruction on attempted manslaughter constitute fundamental error? 2. Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So. 3d 252, 2010 WL 1372701 (Fla. Apr. 8, 2010)? Williams v. State, 40 So. 3d 72, 76 (Fla. 2010). In addition, the Fourth District Court certified conflict with Lamb v. State, 18 So. 3d 734 (Fla. 1st DCA 2009). Williams, 40 So. 3d at 76. Petitioner was originally charged by information with aggravated assault with a deadly weapon (a hammer) on victim Yolanda Dent. [R.1] He entered into a plea agreement and received three years of probation, along with time served. [R.8-23] Petitioner was shortly thereafter arrested on new charges. A violation of probation was filed, along with a new information charging him with: 1) attempted first degree murder (victim Samantha Lindsay, with a knife); 2) burglary of a dwelling with an assault or battery while armed (victim Samantha Lindsey); 3) child abuse by intentional infliction of mental or physical injury (stabbing child’s mother in front of child); 4) false imprisonment with a weapon or firearm (victim Samantha Lindsey, with a 1 knife; 5) tampering with a witness. [R.2-3, 4-5, 24-33, 42-52, 75-79] The state later elected not to go forward with count five. [T.4, 6] At the trial on the new charges, police officers testified as to arriving at a residence to hear a baby crying and seeing a man silhouetted in a window, though no one responded to knocks and announcements of police presence. [T.205-210, 252-253] After police backup arrived, a woman opened the door and staggered out, covered in blood. [T.211-214, 252] The woman said she had just been stabbed. [T.214, 252] Her intestines were protruding from her stomach. [T.222-223, 259] A crying baby was located inside, crawling in blood. [T.215, 258] A blood-covered knife was on the kitchen floor and another knife was found outside the bedroom window. [T.235-236, 238-239] A black male was seen climbing out the bedroom window and running away. [T.239, 255, 270-272] Petitioner was located by a police dog while hiding under a tree. [T.281] His shorts appeared to have blood on them and he had blood on his fingers, around his nail beds. [T.283-284, 299-300] He later admitted that the blood belonged to the victim. [T.347] Petitioner gave a statement to police, in which he said that he and the victim were arguing while she was cutting up chicken with a knife. [T.328] She was being a bully and trying to make him fight, and they began 2 wrestling. [T.329, 348] She was attacking him and wanting to cut him. [T.329-330, 333] She got cut when she dropped the knife and bent down to grab it; she fell on the knife and it went through her stomach. [T.340, 347- 348, 357] He did not grab the knife and did not know how the victim’s throat got cut. [T.348, 357] He did not handle the knife except to take it from her. [T.357-358] He mentioned evil spirits moving. [T.342-346] Samantha Lindsey testified that petitioner, her ex-boyfriend at the time, let himself in the house that night while she was cooking; he stabbed her in the leg after she took her ten-month-old baby from him and told him to leave. [T.362, 365, 367-369] He then stabbed her in the neck. [T.371] She ran with the baby out of the house, but he chased her and continued stabbing, eventually dragging her back to the house. [T.372-378] Inside, petitioner stabbed Ms. Lindsey each time she tried to leave. [T.379] This continued for several hours, until police arrived. [T.386-387] Petitioner told her to shut up or he would finish her off. [T.388] When he went toward the bedroom, Ms. Lindsey was able to slide herself toward the door and outside. [T.389-390] She tried to push her intestines back into her body because they were “dragging on the ground.” [T.392] Ms. Lindsey was hospitalized about a month. [T.405] The scar from the stabbing to her stomach was at least the length of her hand. [T.375] She 3 had stabbing scars on her side, chest, neck, and face. [T.375-378] The baby was traumatized and in counseling for aggressive behavior.