Florida/Georgia Personal Injury & Workers Compensation

...Before Lopez reached Gonzalez, Carrizales fired two shots, one of which struck Gonzalez, who died shortly thereafter of a gunshot wound. Carrizales complains that the state court failed to give a requested jury instruction on the content of Fla.Stat.Ann. § 782.11 (West 1976), which, he says, if applicable, would make the homicide manslaughter, a second degree felony, rather than first degree murder....

...The Florida Supreme Court has specifically rejected that exact proposition in this case in State v. Carrizales, 356 So.2d 274, 275-76 (Fla.1978). The Court held that it was not error for the trial judge to refuse the instruction, and that the defense incorporated in section 782.11 was not conceptually related to the defense of self-defense....

...A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved. Bronstein v. Wainwright, 646 F.2d 1048, 1050 (5th Cir.1981). The pronouncement by the Florida Supreme Court that section 782.11 does not encompass the defense presented by Carrizales at his trial is binding on this Court....

...It has never been alleged by Carrizales that an adequate jury instruction on self-defense was not given. The Florida Supreme Court specifically observed that such an instruction had been given. Carrizales’s trial would not have been rendered fundamentally unfair by the failure of the trial court to give the instruction on section 782.11, even if defendant’s interpretation of the statute was correct....

...Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee. ENGLAND, Chief Justice. This case is before us on transfer of an appeal commenced in the Fourth District Court of Appeal. [1] The court directly and initially passed on the validity of section 782.11, Florida Statutes (1975), which makes it a second-degree felony to unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other *231 unlawful act, or after such attempt shall have failed......

...Cobb was indicted on two counts of unnecessary killing to prevent an unlawful act, and, after his motion to dismiss the indictment was denied, was tried and found guilty of the unnecessary killing of Eldridge. [2] In this appeal, he raises several points for our consideration. Cobb first asserts that section 782.11 is unconstitutionally vague, in that the phrase "unnecessarily kill" lacks the explicit meaning necessary to apprise men of common understanding of the conduct to which it applies....

...The fact that specific acts of chastisement are not enumerated, an impossible task at best, does not render the statutory standard void for vagueness. Criminal laws are not "vague" simply because the conduct prohibited is described in general language. [3] When the words "unnecessarily kill" in section 782.11 are considered together with the remainder of chapter 782, they are sufficiently precise to meet the constitutional standard for definiteness in penal statutes....

...Homicides committed while resisting another's unlawful act are punishable only if not excusable, as provided in section 782.03, Florida Statutes (1975), or if not justifiable, as provided in section 782.02 or chapter 776, Florida Statutes (1975). Read with these provisions, section 782.11 is not impermissibly vague....

...o support Cobb's asserted belief that deadly force was necessary. Cobb next asserts that the trial court erred in giving jury instructions both on general manslaughter and on culpable negligence, [4] inasmuch as an "unnecessary killing" described in section 782.11 is a crime separate and distinct from general manslaughter....

...Cobb's conviction and sentence. It is so ordered. ADKINS, BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur. ALDERMAN, J., concurs in part and dissents in part with an opinion. ALDERMAN, Justice, concurring in part, dissenting in part. I agree that section 782.11 is constitutional; however, I believe that the uncontradicted evidence in this case establishes that the killing was justified....

...he provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [5] These instructions need not be applicable to every prosecution under section 782.11....

...Under those circumstances, as under the instant case, there are no "vices inherent in an unconstitutionally vague statute", simply because there exists no statute. In any event, our decision in Cobb v. State, 376 So.2d 230 (Fla. 1979), may well be dispositive of this issue. Cobb involved a vagueness challenge against section 782.11, Florida Statutes, which makes it a felony to "unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed ..." In upholding the validity of that statute we stated: When the words "unnecessarily kill" in section 782.11 are considered together with the remainder of chapter 782, they are sufficiently precise to meet the constitutional standard for definiteness in penal statutes....

...Homicides committed while resisting another's unlawful act are punishable only if not excusable, as provided in section 782.03, Florida Statutes (1975), or if not justifiable, as provided in section 782.02 or chapter 776, Florida Statutes (1975). Read with these provisions, section 782.11 is not impermissibly vague....

...The judge gave the jury standard instructions which accurately and comprehensively reflected the law of manslaughter. Similarly unavailing is appellant's argument that he was entitled to an instruction on an unnecessary killing to prevent an unlawful act under section 782.11, Florida Statutes (1977)....

...fought with simply walked out the front door. Since the issue of self-defense was susceptible to different views of the facts and testimony, the motion for judgment of acquittal was properly denied. Alternatively, appellant argues that, pursuant to section 782.11, Florida Statutes (1994), [1] the motion for judgment of acquittal should have been granted on the murder charge sending only a manslaughter charge to the jury. This argument is based on the assumption that self-defense was established. As previously discussed, the question of whether the shooting was in self-defense is a controverted issue in the testimony. An unnecessary killing pursuant to section 782.11 is not the same as a killing in self-defense. Furthermore, a defendant charged with murder who claims self-defense is not entitled to an instruction based on section 782.11 because the standard jury instruction on self-defense adequately covers unnecessary killings under claim of self-defense....

...615, 136 L.Ed.2d 539 (1996). Since appellant sought to exclude or otherwise preclude introduction of the tape, and did not attempt to introduce it himself, we find no abuse of discretion. AFFIRMED. PETERSON and THOMPSON, JJ., concur. NOTES [1] The 1994 version of section 782.11 provides, "Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit a felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslau...

...ed constitutes "manslaughter," and on conviction such person shall be punished "by existing law relating to manslaughter." [2] See § 782.08, Fla. Stat. (1993) (assisting selfmurder); Id. § 782.09 (the willful killing of an unborn quick child); Id. § 782.11 (unnecessary killing to prevent an unlawful act).

...er because it defines a material portion of the offense charged. In this context it isn't necessary that it be predicated upon admitted evidence; it is appropriate, indeed mandatory, otherwise. We further observe that correlatively the provisions of § 782.11, F.S.A., are also applicable to this case....

...f defense warrant. [7] Here, for example, if the jury were fully charged on "justifiable homicide," and did not find that it was necessary for appellant to kill "Rocky" Doss in attempting to preserve the peace, and they were also fully charged under § 782.11, supra, and found that the killing was unnecessary, notwithstanding that it may have been committed in a lawful attempt to prevent an unlawful act, [8] then the offense would be manslaughter even if the killing were intentional or might otherwise be second degree murder....

...In accord with its duty, then, to fully inform the jury on the law applicable both to the offense charged and to relevant defenses toward which there was some evidence, the court should have completely defined "justifiable homicide" as provided in § 782.02(2), F.S.A., and charged on the provisions of § 782.11, F.S.A....

...y a failure either to properly object to such fatal omission or by a failure to specifically request a complete charge thereon. [9] The omission was necessarily prejudicial and misleading and requires a reversal. [10] As to the omission to charge on § 782.11, supra, while not *100 of itself reversible when no request is made therefore, [11] it is nonetheless error in our view and because it was relevant to a prima facie defense should have been given in an abundance of caution whether requested or not....

...District Court of Appeal, Second District, reported at 345 So.2d 1113 (Fla. 2d DCA 1977), which is alleged to be in conflict with Snell v. State, 302 So.2d 770 (Fla. 1st DCA 1974), upon the issue of whether the trial judge must instruct the jury on Section 782.11, Florida Statutes (1975), [1] when the accused's defense is self-defense and where the trial judge instructs on the applicable degrees of homicide, excusable homicide, justifiable homicide, and self-defense. In Snell, the District Court of Appeal, First District, held that the trial judge was not required to instruct on Section 782.11 while in the instant cause, the District Court of Appeal, Second District, found that the judge is so required (Boardman, C.J., dissenting)....

...Consequently, he was forced to fire at Gonzalez in self-defense. However, two witnesses for the State gainsaid this testimony, stating that Gonzalez was only talking to friends when he was shot. During the charge conference, counsel for respondent requested a jury instruction on Section 782.11, Florida Statutes (1975)....

...Respondent was adjudicated guilty of first degree murder and sentenced to imprisonment for life. A timely direct appeal to the District Court of Appeal, Second District, resulted in a decision reversing and remanding for a new trial on the grounds that respondent was entitled to a jury instruction on Section 782.11, Florida Statutes (1975). The competing philosophies as to whether an accused who relies on self-defense is entitled to an instruction on Section 782.11 are ably articulated by Judge McCord who concurred specially in Snell and by the majority opinion of the District Court of Appeal, Second District, in the instant cause....

..... ." In a first degree murder trial where the defense is self-defense, if the jury finds that the defendant unnecessarily killed the decedent, it can find him guilty of either first degree murder, second degree murder, or manslaughter. If, however, § 782.11, Florida Statutes were applicable in such a case and the court charged the jury thereon, the charge would create an erroneous impression in the minds of the jurors that if the defendant was not acquitted, he could only be found guilty of manslaughter....

...ause is remanded to that court for proceedings not inconsistent with the views expressed herein and for consideration of respondent's remaining points on appeal. It is so ordered. OVERTON, C.J., and BOYD, ENGLAND and HATCHETT, JJ., concur. NOTES [1] § 782.11, Fla....

...We agree and, therefore, reverse and remand for a new trial. The record reflects that the jury interrupted its deliberations to request "clarification of the difference between second-degree murder and manslaughter." The trial judge, who initially had instructed on second degree murder, manslaughter under section 782.11, and justifiable homicide, repeated his instruction on second degree murder and manslaughter but did not reinstruct on justifiable homicide....

...de in order to provide a complete definition of manslaughter, which is a residual offense. See § 782.07, Fla. Stat. (1981); Cobb v. State, 376 So.2d 230, 231 (Fla. 1979) (homicide committed while resisting another's unlawful act is punishable under section 782.11 only if not excusable or not justifiable)....

the jury on “unnecessary killing” pursuant to Section 782.11, Florida Statutes (1983), when the accused

to prevent an unlawful act, a violation of section 782.11, Florida Statutes (1981). The court below found

Prevent an Unlawful Act”), which is based on section 782.11, Florida Statutes, a manslaughter statute.

unnecessary killing to prevent an unlawful act, Florida Statute 782.11. The record reveals that appellant went

465 (1983). Clearly, this is not the law. Section 782.-11, Florida Statutes (1983), which states that

court erred in refusing to instruct the jury on Section 782.11, Florida Statutes, which provides that when

...Petitioner, represented by a special assistant public defender, filed a direct appeal raising four claims of trial court error. Exh. 2 at 8; Response at 3. On direct appeal, Petitioner argued that the trial court erred by: (1) failing to instruct the jury on manslaughter pursuant to § 782.11, Florida Statutes (2000); (2) denying Petitioner's motion to suppress when Petitioner did not speak English, could not read the Miranda warning, and did not knowingly, freely, and voluntarily waive his Miranda rights prior to interrogation;...

instructed the jury on manslaughter pursuant to section 782.11, Florida Statutes (1991), since he alleges

unnecessary killing to prevent an unlawful act. See § 782.11, Fla. Stat. (1997). The standard jury instructions

to prevent an unlawful act (in violation of Section 782.11, Florida Statutes). After a jury trial, appellant

requested instruction on manslaughter as defined in § 782.11, Florida Statutes, and, thus, there was no error