Manslaughter instruction per se error

Berube v. State, 2D09-4385 (January 15, 2016)

The Second District reversed a second-degree murder conviction for a new trial because of a flawed manslaughter by act instruction.

The defendant was originally convicted of first-degree murder; however, the Second District reversed for a new trial because of improper Williams Rule evidence.  The defendant was thereafter convicted of second-degree murder on retrial.  On appeal he argued that he was entitled to a new trial because of a flawed manslaughter instruction.  The DCA rejected the argument because it concluded that any error could not amount to harmful fundamental error because the evidence of guilt was overwhelming, and that the defense did not contest intent.  The Supreme Court then quashed the decision, based largely upon Griffin v. State, 160 So. 3d 63 (Fla. 2015), and remanded the matter back to the DCA.  Upon remand, the DCA granted the defendant a new trial.

The DCA interpreted the Griffin decision to require a per se analysis of error.  Although the evidence against the defendant was overwhelming, the Court could not consider such in determining whether the error constituted harmful error.  Since the State had the burden to prove each of the elements of the charged offense, and lesser offense, and since the defense did not concede to such elements, reversal was required.

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