Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 29, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-959 Lower Tribunal No. 15-21-A-P ________________ Robert Schminky, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge. Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee. Before LOGUE, LINDSEY and GORDO, JJ. GORDO, J. Robert Schminky appeals his convictions for two counts of attempted first- degree murder of a law enforcement officer. He seeks a new trial on the attempted murder charges, arguing that the trial court fundamentally erred by failing to instruct the jury regarding whether he had knowledge that the victims were law enforcement officers. Based on Ramroop v. State, 214 So. 3d 657 (Fla. 2017), we agree. Accordingly, we reverse and remand for a new trial. FACTUAL AND PROCEDURAL BACKGROUND In September of 2014, Schminky was prescribed Paxil, which he abruptly ceased taking at some point thereafter. Then, on January 20, 2015, he beat his wife with a shotgun, was involved in a high-speed chase with officers and shot at two of them. He was charged with two counts of attempted murder of an officer, aggravated battery, aggravated assault on an officer and aggravated fleeing or eluding. 1 At trial, a defense expert testified that his unprovoked violence was due to Paxil Discontinuation Syndrome (“PDS”). He stated, “the symptoms of PDS include unprovoked bouts of anger, hostility, and violence.” He further testified that Schminky’s actions were spontaneous events and that he was not in control of his 1 The charges on the amended information were as follows: Count I – Attempted First Degree Murder of a Law Enforcement Officer, Sydney Whitehouse; Count II – Attempted First Degree Murder of a Law Enforcement Officer, Christine Gracey; Count III – Aggravated Battery With a Deadly Weapon on Honour Jean Schminky; Count IV – Aggravated Assault on a Law Enforcement Officer, Nestor Argote; and Count V – Aggravated Fleeing or Attempting to Elude a Law Enforcement Officer. 2 actions. According to the defense expert, PDS rendered Schminky legally insane at the time of the offense, meaning that he was unable to know right from wrong. On the evening of the incident, Ms. Schminky asked the defendant about a doctor’s appointment, which resulted in an argument during which he threatened to shoot her and hit her with a shotgun. During this incident, Ms. Schminky called 911. Deputy Angelina Lubin responded to the 911 call. When she arrived, she heard Ms. Schminky calling for help. While Deputy Lubin looked around to find her, the defendant walked past the officer. Deputy Lubin tried to get his attention but Schminky kept walking without responding. Deputy Lubin then realized that Schminky was holding a gun and ordered him to drop it. Schminky fired a shot, Deputy Lubin radioed for backup and Schminky fired a second shot and then drove off. After hearing on the radio that shots had been fired, Sergeant Sydney Whitehouse and Trooper Christine Gracey drove towards the location. Dispatch advised them that Schminky was driving a white Lexus SUV. The officers located the vehicle and pursued it with lights and sirens. After a high-speed pursuit for some time, a shot was fired from the Lexus at Sergeant Whitehouse’s patrol car. Schminky sideswiped Trooper Gracey’s car and shot at it as he drove past. Several other officers joined the pursuit, which came to a halt in a Circle K parking lot. The officers attempted to box the Lexus in, and the Lexus hit Trooper Gracey’s car head- 3 on, at a low speed. The cars became entangled and Schminky fired three times into Trooper Gracey’s car. As Sergeant Whitehouse approached the Lexus, he heard a gunshot and felt a bullet strike his leg, leaving a superficial wound.2 After another vehicle pursuit, Deputy Nestor Argote caught up with Schminky, who eventually left his car and continued on foot. Deputy Argote followed Schminky through some woods. Schminky was ordered to get down on the ground but failed to do so. He was then subdued and arrested. On February 9, 2015, Schminky was charged by information. The information was amended on June 19, 2017.3 The amended information charged Schminky with attempted murder of Sydney Whitehouse (Count I), attempted murder of Christine Gracey (Count II), aggravated battery on Honour Jean Schminky (Count III), aggravated assault on Nestor Argote (Count IV) and aggravated fleeing and eluding of law enforcement officers (Count V). 4 Schminky’s trial commenced on January 16, 2018. 5 2 The bullet was never recovered, so Schminky was not charged with causing great bodily harm because there was no proof as to who fired the shot that hit Sergeant Whitehouse. 3 On March 30, 2017, the Florida Supreme Court decided Ramroop, 214 So. 3d 657, discussed infra. 4 Neither the amended information nor the jury instructions specified the names of the law enforcement officers from which Schminky was charged with fleeing and eluding. 5 The new jury instruction based on Ramroop was approved by the Florida Supreme Court on February 8, 2018. 4 At trial, the defense strategy of the case was not to deny that the events transpired as the State alleged—in fact, they conceded these facts. Rather, the defense argued Schminky was not guilty by reason of insanity because he could not appreciate the nature and wrongfulness of his conduct due to PDS. His expert, Dr. Stefan Rose, testified that at the time of the offense Schminky was legally insane. The standard instruction for attempted first-degree murder of a law enforcement officer did not yet exist at the time of trial, 6 and, as such, was not read 6 Following the Florida Supreme Court’s decision in Ramroop, see 214 So. 3d at 668, n.4, a new instruction was adopted, which adds three elements under section 782.065 to the existing three elements for attempted murder. The relevant portion of the Ramroop jury instruction, approved by the Florida Supreme Court in February of 2018, reads as follows: 6.7 ATTEMPTED MURDER — RECLASSIFIED (BY VICTIM’S EMPLOYMENT AS LAW ENFORCEMENT OFFICER, CORRECTIONAL OFFICER, ETC.) § 782.065, Fla. Stat. In Ramroop v. State, 214 So. 3d 657 (Fla. 2017), the Florida Supreme Court held that § 782.065(2), Fla. Stat. is a reclassification statute that creates a substantive offense. Accordingly, the trial judge should add the three elements below to the elements section of the appropriate Attempted Murder crime (See Instruction 6.2, 6.3, 6.3(a), or 6.4.) (Victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part-time correctional officer] [auxiliary correctional officer] [correctional 5 to the jury. Instead, the jury was instructed on regular attempted first-degree murder, which excludes the element of knowing that the victims were law enforcement officers. The jury instruction read to Schminky’s jury states, in relevant part: Count 1, Attempted Murder, First Degree, Premeditated: To prove the crime of attempted first degree premeditated murder, the State must prove the following three elements beyond a reasonable doubt: Number one, Robert Blair Schminky did some act intending to cause the death of Sydney Whitehouse that went beyond just thinking or talking about it; two, Robert Blair Schminky acted with a premeditated design to kill Sydney Whitehouse; three, the act would have resulted in the death of Sydney Whitehouse except that someone prevented Robert Blair Schminky from killing Sydney Whitehouse or he failed to do so. ... If you find the defendant guilty of attempted first degree murder, you must then determine whether the State has further proved beyond a reasonable doubt that Sydney probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer]. (Defendant) knew that (victim) was a [law enforcement officer] [part-time law enforcement officer] [auxiliary law enforcement officer] [correctional officer] [part- time correctional officer] [auxiliary correctional officer] [correctional probation officer] [part-time correctional probation officer] [auxiliary correctional probation officer]. (Victim) was engaged in the lawful performance of a legal duty. 6 Whitehouse was a law enforcement officer engaged in the lawful performance of a legal duty.[7] The instruction given on Count II, which was as to Trooper Gracey, was identical. The jury was not instructed on knowledge in the attempted murder charges and this finding was not on the verdict form. Schminky was convicted as charged and was sentenced to consecutive life sentences on Counts I and II. This appeal followed. STANDARD OF REVIEW The accuracy of a jury instruction is a question of law reviewed de novo. Daniels v. State, 121 So. 3d 409, 413 (Fla. 2013). LEGAL ANALYSIS In Ramroop, the Florida Supreme Court held that “section 782.065 is a reclassification statute that creates a substantive offense, which includes knowledge [that the victim was a law enforcement officer] as an essential element.”8 214 So. 7 Notably missing is the material element of knowledge. Under Ramroop, discussed infra, the State is required to prove, and the jury must find, beyond a reasonable doubt, that the defendant knew that the victim was a law enforcement officer at the time of the charged offense. 8 Section 782.065, Florida Statues, requires life imprisonment where the trier of fact finds, beyond a reasonable doubt, that: (1) The defendant committed murder in the first degree in violation of s. 782.04(1) and a death sentence was not imposed; murder in the second or third degree in violation of s. 782.04(2), (3), or (4); attempted murder in the first or second degree in violation of s. 782.04(1)(a)1. or (2); or attempted felony murder in violation of s. 782.051; and 7 3d at 665. The trial court failed to instruct the jury that Ramroop needed to have knowledge of the officer’s status as such, and the jury failed to make this finding. Id. at 661. The jury findings that the officer was a law enforcement officer and that he was performing his lawful duties at the time of the offense were not enough, as knowledge is a specific finding that the jury must make to convict a defendant of this new substantive crime, codified under section 782.065. See generally id. The Ramroop court clearly stated that because of the U.S. Supreme Court decision in Apprendi, 9 the jury must be instructed on and must explicitly find, beyond a reasonable doubt, that the defendant knew of the officer’s status before he can be sentenced to life under section 782.065. Id. at 662–63. (2) The victim of any offense described in subsection (1) was a law enforcement officer, part-time law enforcement officer, auxiliary law enforcement officer, correctional officer, part-time correctional officer, auxiliary correctional officer, correctional probation officer, part- time correctional probation officer, or auxiliary correctional probation officer, as those terms are defined in s. 943.10, engaged in the lawful performance of a legal duty. Id. 9 “The United States Supreme Court made clear in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), that the Sixth Amendment to the United States Constitution guarantees each criminal defendant the right ‘to a jury determination [of guilt on] every element of the crime with which he is charged, beyond a reasonable doubt.’” Ramroop, 214 So. 3d at 661 (quoting Apprendi, 530 U.S. at 476–77) (internal quotations omitted). 8 There is no dispute that the jury instructions in this case did not include a knowledge element in the attempted murder charges. Thus, the only question for this Court’s consideration is whether that omission constituted fundamental error requiring reversal. “The failure to instruct the jury on an element of a crime is fundamental error if the element was disputed at trial.” Parrondo v. State, 239 So. 3d 777, 781 (Fla. 3d DCA 2018) (citing Garcia v. State, 901 So. 2d 788, 794 (Fla. 2005); Reed v. State, 837 So. 2d 366, 369–70 (Fla. 2002)); see also Ramroop, 214 So. 3d at 665 (“This Court has ‘long held that fundamental error occurs in a jury instruction where the instruction pertains to a disputed element of the offense and the error is pertinent or material to what the jury must consider to convict.’” (quoting Haygood v. State, 109 So. 3d 735, 741 (Fla. 2013))). The State attempts to distinguish Ramroop and other relevant case law by claiming that the knowledge element was not in dispute because by putting on an insanity defense, an affirmative defense, Schminky admitted he committed the crimes charged. That is belied by the record and the defense theory of the case. The defense put Schminky’s mental state and awareness at issue by arguing that he was suffering from PDS at the time. See, e.g., State v. Tait, 387 So. 2d 338, 340 (Fla. 1980) (“At trial the [defendant] relied on the defense of insanity and thus placed in issue his mental condition at the time of the offense.”). They specifically asserted that Schminky did not have the requisite knowledge at the time of the offenses to 9 know the victims were law enforcement officers. The defense never conceded that Schminky knew that the victims were law enforcement officers. Thus, the State needed to prove that he knew the victims were law enforcement officers and the jury needed to be instructed on that. It was not sufficient that the charging document, which included the knowledge element, was read to the venire. It was also insufficient that the jury found Schminky “guilty as charged” in the information because the question presented is about the jury instructions, not the charging document. Furthermore, the fundamental error was not cured by the jury instructions read in Counts IV and V. Count IV, aggravated assault on a law enforcement officer, was as to Deputy Argote. Therefore, despite the inclusion of a knowledge element, that count was victim specific and Schminky’s knowledge as to Deputy Argote’s status cannot be transposed to Sergeant Whitehouse and Trooper Gracey in Counts I and II. Further, as to Count V, aggravated fleeing or eluding an officer, the jury was required to find that Schminky “knowing he had been directed to stop by a duly authorized law enforcement officer, willfully fled in a vehicle.” The testimony was clear that at least three officers pursued Schminky with lights and sirens while he was driving away. Neither the amended information nor the jury instructions specified which officers Schminky had been charged with fleeing and eluding. The verdict form also does not specify the names of any officers from which the jury 10 concluded Schminky had willfully fled. As such, the jury’s verdict on this count also fails to establish the knowledge required in Counts I and II as to Sergeant Whitehouse and Trooper Gracey. “[T]he erroneous jury instructions that did not include knowledge as an essential element of attempted murder of a law enforcement officer as to section 782.065 amounted to fundamental error.” Ramroop, 214 So. 3d at 668. “[T]he correct remedy is to remand for a new trial on the [attempted murder] offense[s] charged in the information, free of the incorrect jury instruction.” Id. at 667–68 (quoting Ortiz v. State, 192 So. 3d 517, 521 (Fla. 2d DCA 2016)); see also Gabriel v. State, 248 So. 3d 265 (Fla. 5th DCA 2018); Rivera v. State, 235 So. 3d 983 (Fla. 2d DCA 2017). Reversed and remanded. 11