Supreme Court of Florida
____________
No. SC14-1150
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STANLEY MCCLOUD,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[January 19, 2017]
LABARGA, C.J.
Stanley McCloud seeks review of the Fifth District Court of Appeal’s
decision in McCloud v. State, 139 So. 3d 474 (Fla. 5th DCA 2014), which the
district court issued on remand in light of this Court’s decision in Haygood v.
State, 109 So. 3d 735 (Fla. 2013). McCloud cites as authority Daugherty v. State,
96 So. 3d 1076 (Fla. 4th DCA 2012), rev. granted, 143 So. 3d 917 (Fla. 2014)
(table), a decision of another district court of appeal pending in this Court. We
have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So. 2d 418,
421 (Fla. 1981). As explained below, we approve the holding of the Fifth District,
but not the reasoning.
As we begin, we note that this case involves a jury instruction consistent
with that deemed to be fundamentally erroneous in State v. Montgomery, 39 So. 3d
252 (Fla. 2010). The petitioner, Stanley McCloud, was convicted of second-degree
murder. He initially challenged his conviction because the jury instruction on the
required lesser included offense of manslaughter by act erroneously required the
jury to find that he intended to cause the death of the victim. At that time,
McCloud’s conviction was affirmed on the grounds that the jury also received a
jury instruction on manslaughter by culpable negligence. See McCloud v. State,
53 So. 3d 1206 (Fla. 5th DCA 2011).
McCloud sought review of that decision in this Court. We granted
jurisdiction, quashed, and remanded in light of our decision in Haygood, which
held
that giving the manslaughter by culpable negligence instruction does
not cure the fundamental error in giving the erroneous manslaughter
by act instruction where the defendant is convicted of an offense not
more than one step removed from manslaughter and the evidence
supports a finding of manslaughter by act, but does not reasonably
support a finding that the death occurred due to the culpable
negligence of the defendant.
109 So. 3d at 743; McCloud v. State, 137 So. 3d 1021 (Fla. 2014) (table).
On remand, the district court again affirmed McCloud’s conviction, this time
concluding that the order of the lesser included offenses as presented to the jury
dictates the number of steps removed from the offense of conviction, and thus,
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whether a fundamental error or harmless error analysis applies. The decision of
the district court on remand is the decision currently before this Court.
We have contemporaneously issued our opinion in Daugherty v. State, No.
SC14-860 (Fla. Jan. 12, 2017), which raises the same question of law as the
present case; that is, how to properly determine the number of steps that the lesser
included offense of manslaughter is removed from second-degree murder, the
offense of conviction. In Daugherty, we quashed the decision of the Fourth
District Court of Appeal and held that
where a defendant is convicted of second-degree murder after the jury
is erroneously instructed on the lesser included offense of
manslaughter by act, the one step removed analysis to determine
fundamental error is not based on the order of the offenses on the
verdict form. Rather, because manslaughter as a matter of degree is a
next lesser offense of second-degree murder, giving an erroneous
instruction on manslaughter by act constitutes fundamental error even
if manslaughter is not listed immediately below second-degree murder
on the verdict form.
Id. at 2.
Because the Fifth District in McCloud employed the same reasoning as the
Fourth District in Daugherty and applied an erroneous steps removed analysis, we
disapprove of the reasoning in McCloud. However, because we conclude that the
error caused by the incorrect instruction was cured by the jury’s consideration of
other offenses also one step removed from the offense of conviction, we approve
the ultimate holding of the district court.
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FACTS AND PROCEDURAL BACKGROUND
McCloud was charged with first-degree murder in the death of his wife,
Sandra McCloud. McCloud shot Sandra with a .357 magnum in her bedroom and
in the presence of their two small children. Sandra died from a single gunshot
wound to the chest. One of the children sustained a grazing wound from the same
gunshot. Both McCloud and Sandra had been drinking for hours before the
murder. Sandra’s blood alcohol level was .16.
In a 911 call that he made shortly after the shooting and after leaving the
Ocala home where he shot Sandra, a distressed McCloud stated that after retrieving
his .357 magnum from his truck, he shot his wife in the chest and wanted to turn
himself in. McCloud drove to a convenience store, where he was taken into
custody. McCloud said during the 911 call:
She—she told me she went with the roo[f] man. And I—we’ve been
separated for eight months. And I come back and she went with the
roo[f] man. I was on my job making good money, and she told me
that, and I could have been still there with my job. I’m going to turn
myself in.
McCloud repeatedly made comments such as “I didn’t mean to do it, but she made
me do it,” and “I—I’m sick and tired of this.”
In an interview at the police station during the hours after the shooting,
McCloud continued to repeat that he shot Sandra because she relentlessly talked to
him about having another man in her life. During this interview, McCloud stated
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that he pointed the gun at her to scare her, but did not intend to shoot and kill her.
He suggested that he shot her in the dark at a point when the lights blinked in the
bedroom and, in contrast to the 911 call, said he thought he shot Sandra in the
shoulder. During this interview, McCloud first stated that the gun was in the truck,
but then he quickly changed his statement and said that the gun was in the bedroom
closet.
The bullet that killed Sandra entered the right side of her chest between the
ribs, traveled through her right lung, and entered into the pericardial sac
surrounding her heart. The bullet tore the upper part of her esophagus in half and
lacerated her aorta. The bullet then grazed her left lung and exited her back. The
medical examiner suggested that Sandra may have been sitting on the edge of the
bed when she was shot, with McCloud standing one to two feet away. McCloud’s
children were in bed with his wife when McCloud fired the shots, and the bullet
grazed one of the children in the arm.1 Sandra was transported to the hospital with
no obvious signs of life and was pronounced dead.
McCloud was convicted of the lesser included offense of second-degree
murder. The jury was also instructed on the lesser included offenses of third-
1. McCloud entered no contest pleas to culpable negligence resulting in
injury to one of the children, and culpable negligence in exposing another child to
injury.
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degree felony murder and manslaughter by act. On the verdict form, third-degree
felony murder appeared between second-degree murder and manslaughter. On
appeal, the district court concluded that, as a result of the order in which the
offenses were instructed to the jury and listed on the verdict form, the erroneously
instructed offense of manslaughter by act was two steps removed from second-
degree murder, the offense of conviction. The district court stated:
In this case, the lesser included offense of manslaughter by act was
two steps removed from the second-degree murder conviction due to
the inclusion of the felony murder charge in the jury instructions and
on the verdict form.
McCloud, 139 So. 3d at 474-75. Relying on Pena v. State, the district court
determined that a harmless error analysis was appropriate. 901 So. 2d 781, 787
(Fla. 2005) (“However, 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.”).
The district court concluded that the use of the erroneous manslaughter by
act instruction constituted harmless error and affirmed McCloud’s conviction and
sentence. McCloud, 139 So. 3d at 475. The district court also cited to Daugherty,
96 So. 3d 1076, which applied the same steps-removed analysis on similar facts
and concluded that the erroneous manslaughter by act instruction constituted
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harmless error. McCloud, 139 So. 3d at 475. At the time, this Court had granted
belated review in Daugherty, and we subsequently granted review in McCloud.
ANALYSIS
McCloud, who was convicted of second-degree murder, maintains that he is
entitled to relief because the jury received an instruction on the lesser included
offense of manslaughter by act that was consistent with the instruction held to be
fundamentally erroneous under the facts and instructions given in Montgomery, 39
So. 3d at 259. At trial, McCloud’s jury was instructed as follows:
Manslaughter, to prove the crime of manslaughter, the State
must prove the following two elements beyond a reasonable doubt.
One, Sandra McCloud is dead. Two, A, Stanley McCloud
intentionally caused the death of Sandra Gail McCloud or B, the death
of Sandra McCloud was caused by the culpable negligence of Stanley
McCloud.
However, the defendant cannot be guilty of manslaughter if the
killing was either justifiable or excusable homicide as I have
previously explained those terms.
In order to convict of manslaughter by intentional act, it is not
necessary for the State to prove that the defendant had a premeditated
intent to cause death.
I will now define culpable negligence for you. Each of us has a
duty to act reasonably toward others. If there is a violation of that
duty without any conscious intention to harm, that violation is
negligence, but culpable negligence is more than a failure to use
ordinary care toward others.
In order for negligence to be culpable, it must be gross and
flagrant. Culpable negligence is a course of conduct showing reckless
disregard of human life or the safety of persons exposed to its
dangerous effects or such an entire want of care as to raise a
presumption of a conscious indifference to consequences, or which
shows wantonness or recklessness or a grossly careless disregard of
the safety and welfare of the public or such an indifference to the
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rights of others as is equivalent to an intention—intentional violation
of such rights.
The negligent act or omission must have been committed with
an utter disregard for the safety of others. Culpable negligence is
consciously doing an act or following a course of conduct that the
defendant must have known or reasonably should have known was
likely to cause death or great bodily injury.
The district court acknowledged that McCloud’s jury received a faulty jury
instruction on manslaughter by act. McCloud, 139 So. 3d at 474. However, the
court concluded that because manslaughter was not placed immediately below
second-degree murder but was preceded by third-degree felony murder, a harmless
error analysis applied to the faulty instruction. In sum, the layout of the verdict
form and the jury instructions rendered manslaughter two steps removed from
second-degree murder because the lesser included offense of third-degree felony
murder was placed between them. However, as we held in Daugherty, this was
error. We explained:
This Court has consistently observed that manslaughter, a next
lesser included offense of second-degree murder, is one step removed
from second-degree murder. It is this relationship between the two
offenses that undergirds this Court’s conclusion that the erroneous
manslaughter instruction in Montgomery constituted fundamental
error. However, this Court has previously concluded that third-degree
felony murder—which, like manslaughter, is also a second-degree
felony—is also one step removed from second-degree murder. See
Herrington v. State, 538 So. 2d 850, 851 (Fla. 1989). “Although
third-degree felony murder is not a necessarily included offense of
first-degree murder, it is, under certain circumstances and evidence, a
proper permissive lesser included offense of first-degree murder,
requiring a jury instruction to that effect.” Green v. State, 475 So. 2d
235, 236 (Fla. 1985).
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No. SC14-860, at 14-15 (Fla. Jan. 12, 2017). We continued:
The district court’s interpretation of what constitutes a step removed
improperly focused on the appearance of the verdict form and based a
defendant’s entitlement to relief on an arbitrary set of
circumstances—which lesser included offense is listed first when
drafting the verdict form. We conclude that the determination of what
constitutes a step removed is not based on the layout of the verdict
form, but rather, the relationship between the offense of conviction
and the erroneous lesser included offense instruction.
Manslaughter, a second-degree felony, is a next lesser offense
of second-degree murder. However, as we previously observed in
Herrington, so is third-degree felony murder (also a second-degree
felony). Daugherty’s jury was instructed on multiple next lesser
included offenses of the same degree of severity, and Daugherty was
entitled to a proper instruction on each. The placement of third-
degree felony murder on the verdict form did not, by mere virtue of its
location between second-degree murder and manslaughter, remedy the
error caused by the faulty manslaughter instruction. To conclude
otherwise would leave to mere chance a defendant’s entitlement to
relief based on how the verdict form is fashioned.
Id. at 16-17. Our analysis in Daugherty applies here.
Curing the Manslaughter by Act Error
In this case, the issue of intent was pertinent and material to what the jury
had to consider to convict McCloud, who was charged with premeditated first-
degree murder. Thus, the giving of an erroneous instruction on manslaughter by
act, an offense one step removed from second-degree murder, constituted
fundamental error where it required the jury to find that McCloud intended to
cause the victim’s death. However, in Haygood, 109 So. 3d at 743, we held that
fundamental error caused by the then-erroneous standard jury instruction on
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manslaughter by act is not cured by the mere giving of an instruction on
manslaughter by culpable negligence unless the evidence in the case reasonably
supports a conviction of that offense. Thus, we now turn to whether the error in
this case was cured because the jury was also instructed on third-degree felony
murder, or because the jury was given the instruction on manslaughter by culpable
negligence. Both lesser included offenses are second-degree felonies which, like
manslaughter by act, are one step removed from second-degree murder.
Third-Degree Felony Murder
“Although third-degree felony murder is not a necessarily included offense
of first-degree murder, it is, under certain circumstances and evidence, a proper
permissive lesser included offense of first-degree murder, requiring a jury
instruction to that effect.” Green, 475 So. 2d at 236. Thus, similar to
manslaughter by culpable negligence, the giving of the third-degree felony murder
instruction is subject to a trial court’s determination that the evidence presented
supports giving the instruction. In this case, the jury could reasonably have found
McCloud guilty of third-degree felony murder based on the underlying crime of
attempted aggravated assault with a firearm. McCloud’s jury received the
following instruction on third-degree felony murder, with the underlying felonies
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of aggravated assault with a firearm and, alternatively, attempted aggravated
assault with a firearm:
Third degree felony murder, before you can find the defendant
guilty of third degree felony murder, the State must prove the
following three elements beyond a reasonable doubt. One, Sandra
McCloud is dead. Two, A, the death occurred as a consequence of
and while Stanley McCloud was engaged in the commission of
aggravated assault with a firearm, or B, the death occurred as a
consequence of and while Stanley McCloud was attempting to
commit aggravated assault with a firearm. Three, Stanley McCloud
was the person who actually killed Sandra McCloud.
It is not necessary for the State to prove the killing was
perpetrated with a design to affect death.
If you find that Stanley McCloud committed murder in the third
degree and you also find that during the commission of the crime he
possessed and/or discharged and/or caused death or great bodily harm
with a firearm, your verdict should indicate such possession and/or
discharge of a firearm and/or caused death or great bodily harm with a
firearm.
The jury was instructed on aggravated assault and attempted aggravated assault as
follows:
Aggravated assault with a firearm, the crime of aggravated
assault with a firearm consist [sic] of the following four elements.
One, Stanley McCloud intentionally and unlawfully threatened either
by word or act to do violence to Sandra McCloud.
Two, at the time Stanley McCloud appeared to have the ability
to carry out the threat. Three, the act of Stanley McCloud created in
the mind of Sandra McCloud a well-founded fear that the violence
was about to take place. Four, the assault was made with a firearm.
It is not necessary for the State to prove that the defendant had
an intent to kill.
Attempt to commit crime, in order to prove that the defendant
attempted to commit the crime of aggravated assault with a firearm,
the State must prove the following beyond a reasonable doubt. One,
Stanley McCloud did some act toward committing the crime of
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aggravate [sic] assault with a firearm that went beyond just thinking
or talking about it. Two, he would have committed the crime except
that he failed.
It is not an attempt to commit aggravated assault with a firearm
if the defendant abandoned his attempt to commit the offense or
otherwise prevented its commission under circumstances indicating a
complete and voluntary renunciation of his criminal purpose.
The State proved beyond a reasonable doubt the first element of third-degree
felony murder, that Sandra McCloud is dead, and the third element, that Stanley
McCloud killed her. However, the remaining inquiry is whether the second
element of third-degree felony murder was satisfied, which is based on whether the
underlying felony was proven.
The jury had to find as to the second element that Sandra McCloud’s death
occurred as a consequence of and while McCloud was either engaged in the
commission of aggravated assault with a firearm or an attempt to commit
aggravated assault with a firearm.2 While the evidence may not support a finding
2. We conclude that the evidence does not reasonably support a finding of a
completed aggravated assault. We acknowledge that McCloud pointed a gun at
Sandra and, by being in possession of the gun at that time, he appeared to be able
to carry out a threat of violence using the firearm. However, the record does not
reveal whether Sandra was actually threatened, nor does it reveal a well-founded
fear on Sandra’s part. In fact, the State emphasized that Sandra’s twenty-year-old
son, who was at the home at the time of the shooting, did not hear yelling or
fighting that night, and came to Sandra’s bedroom upon hearing a “thud.”
Moreover, McCloud’s statement that the lights went off when he shot her raises the
question whether Sandra saw McCloud with the gun.
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of a completed aggravated assault, it does reasonably support a finding of
attempted aggravated assault.
During his interview with law enforcement after the shooting, McCloud
stated that he wanted to scare Sandra with the gun. To that end, the jury could
have found that McCloud attempted to commit aggravated assault but was unable
to complete his attempt because Sandra was unaware of the gun. The jury could
have reasonably convicted McCloud of third-degree felony murder based on the
underlying felony of attempted aggravated assault.
Culpable Negligence
Moreover, the jury could have reasonably convicted McCloud of
manslaughter by culpable negligence. Although the decision below was on
remand from this Court post-Haygood, the district court failed to expressly
evaluate under a fundamental error analysis whether the evidence supported a
finding of manslaughter by culpable negligence, thus remedying the fundamental
error caused by the erroneous instruction on manslaughter by act. Rather, the
district court applied a harmless error analysis to the faulty manslaughter
instruction in McCloud because, in its view, manslaughter by act was two steps
removed from second-degree murder, the offense of conviction.
In Haygood, we concluded that fundamental error caused by the faulty
instruction on manslaughter by act could be remedied where the jury was also
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instructed on manslaughter by culpable negligence, but only where the evidence
reasonably supported that finding. 109 So. 3d at 743. We explained that where the
manslaughter by act instruction erroneously requires intent to kill, and “the only
non-intentional homicide offense remaining for the jury’s consideration” is second-
degree murder, fundamental error results. Id. However, if the jury is also
instructed on manslaughter by culpable negligence, and there is evidence upon
which the jury could reasonably find that non-intentional offense, the error caused
by the manslaughter by act instruction is cured. Id.
In the present case, McCloud’s jury was instructed on the offense of
manslaughter by culpable negligence as follows:
I will now define culpable negligence for you. Each of us has a
duty to act reasonably towards others. If there is a violation of that
duty, without any conscious intention to harm, that violation is
negligence, but culpable negligence is more than a failure to use
ordinary care towards others.
In order for negligence to be culpable, it must be gross and
flagrant. Culpable negligence is a course of conduct showing reckless
disregard of human life or the safety of persons exposed to its
dangerous effects, or such an entire want of care as to raise a
presumption of a conscious indifference to consequences, or which
shows wantonness or recklessness or a grossly careless disregard of
the safety and welfare of the public or such an indifference to the
rights of others as is equivalent to an intention—intentional violation
of such rights.
The negligent act or omission must have been committed with
an utter disregard for the safety of others. Culpable negligence is
consciously doing an act or following a course of conduct that the
defendant must have known or reasonably should have known was
likely to cause death or great bodily injury.
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“Every case of manslaughter by culpable negligence must be determined upon the
facts and circumstances peculiar to it.” Scarborough v. State, 188 So. 2d 877, 877
(Fla. 2d DCA 1966) (citing Fulton v. State, 108 So. 2d 473 (Fla. 1959)). “There is
nothing mystical about culpability. It comprehends blame, censure or some aspect
of erratic conduct.” Fulton, 108 So. 2d at 475.
During his interview, McCloud stated that he did not intend to shoot Sandra
and only intended to scare her after she continued to talk to him about her
relationship with another man. Both McCloud and Sandra had been drinking. The
jury could have reasonably concluded that the act of pointing a gun at Sandra while
under the influence of alcohol, and in the presence of two young children, revealed
a reckless or grossly careless disregard for her safety, and that he shot her in the
course of such reckless or grossly careless behavior. Thus, there was evidence in
the record from which a jury could reasonably find McCloud guilty of
manslaughter by culpable negligence.
Heat of Passion Instruction
The State argues that fundamental error did not occur because the jury was
instructed that it could convict McCloud of manslaughter if it concluded that he
shot Sandra in the heat of passion. As a part of the instruction on second-degree
murder, the jury was instructed as follows:
Heat of passion, heat of passion is a valid theory of defense to
the—to the depraved mind element of second degree murder. Passion
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is the state of mind when it is powerfully acted on and influenced by
something external to itself. It is one of the emotions of the mind
known as anger, rage, sudden resentment, or terror.
Pursuant to Florida law, if you believe defendant’s passion
resulted in a state of mind where depravity, which characterized
murder in the second degree is absent, you may return a verdict of
manslaughter.
While this instruction gave the jury an alternative method of convicting McCloud
of manslaughter, if the jury referred to the actual manslaughter instruction when
deciding whether McCloud acted in the heat of passion, the faulty intent language
would still have prevented it from convicting McCloud of manslaughter by act.
Thus, we do not agree with the State that the heat of passion instruction, by itself,
remedied the fundamental error caused by the instruction on manslaughter by act.
However, the heat of passion instruction informed the jury that it could
convict McCloud of the broader crime of manslaughter. If the jury had referred
back to the manslaughter instruction, that instruction referred to not only
manslaughter by act, but also to manslaughter by culpable negligence, an offense
which was supported by the record. Moreover, the jury could reasonably have
found McCloud guilty of third-degree felony murder based on the underlying
felony of attempted aggravated assault with a firearm.
CONCLUSION
The district court engaged in an erroneous “steps removed” analysis and
improperly applied a harmless error analysis to evaluate the error caused by the
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erroneous instruction on manslaughter by act. Because the erroneously instructed
lesser included offense of manslaughter by act was one step removed from the
offense of conviction, a fundamental error analysis applies. However, with respect
to lesser included offenses, the jury was properly instructed on two comparable and
viable alternatives to manslaughter by act, both one step removed from the offense
of conviction and supported by the evidence. Moreover, as to the issue of intent,
the jury had for consideration the non-intentional lesser included offense of
manslaughter by culpable negligence, which was reasonably supported by the
evidence. Therefore, the jurors were not left with second-degree murder as the
only other non-intentional lesser included offense for which they could convict
McCloud. For these reasons, McCloud is not entitled to relief. Thus, we approve
the ultimate holding in McCloud, but not the reasoning of the Fifth District.
It is so ordered.
PARIENTE, LEWIS, and QUINCE, JJ., and PERRY, Senior Justice, concur.
CANADY and POLSTON, JJ., concur in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
Fifth District - Case No. 5D09-3179
(Marion County)
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James S. Purdy, Public Defender, and Nancy Jean Ryan, Assistant Public
Defender, Seventh Judicial Circuit, Daytona Beach, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Harold Heidt,
Bureau Chief, and Kristen Lynn Davenport, Assistant Attorney General, Daytona
Beach, Florida,
for Respondent
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