JOHNSON v. JOHNSON

ALTENBERND, Judge.

David Del Valle, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that appellate counsel was ineffective in failing to argue that the then standard jury instruction for manslaughter by act that was given to the jury in his trial for second-degree murder with a weapon constituted fundamental error. We agree, and we reverse Mr. Del Valle's second-degree murder conviction, vacate the sentence, and remand for a new trial.

The offense of second-degree murder is only one step removed from the necessarily lesser-included offense of manslaughter. State v. Montgomery, 39 So.3d 252, 259 (Fla. 2010). Manslaughter may be committed in one of three ways: by act, by procurement, or by culpable negligence. Id. at 256; see also § 782.07(1), Fla. Stat. (2006). In the present case, the trial court instructed the jury on manslaughter by act only. The court instructed the jury in pertinent part that in order to convict Mr. Del Valle of manslaughter, the State had to prove that the victim's death "was intentionally caused by Mr. Del Valle." This instruction corresponded with the then standard jury instruction for manslaughter by act. Mr. Del Valle did not object to the instruction.

This court affirmed Mr. Del Valle's judgment and sentence. Del Valle v. State, 19 So.3d 990 (Fla. 2d DCA 2009) (table decision). Over three months prior to the filing of the initial brief in Del Valle, the First District in Montgomery v. State, ___ So.3d ___, 2009 WL 350624 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla. 2010), reversed Montgomery's conviction for second-degree murder and remanded for a new trial, holding that the standard jury instruction improperly imposed an additional element of intent to kill on the offense of manslaughter by act and was therefore fundamentally erroneous. No case had previously so held. In Hall v. State, 951 So.2d 91, 96 (Fla. 2d DCA 2007) (en banc), an opinion that preceded Montgomery, this court concluded that "a conviction for manslaughter by act does not require an intent to kill but only an intentional act that causes the death of the victim." Notably, the Hall court stated in dicta:

We are also aware that the standard jury instruction for manslaughter by act requires a finding that the defendant "intentionally caused the death of the victim. Fla. Std. Jury Instr. (Crim.) 7.7. We do not read this instruction to require an intent to kill, however. We read this instruction to require an intentional act that "caused the death of the victim.

This court subsequently certified conflict with the First District's Montgomery decision in Zeigler v. State, 18 So.3d 1239, 1244-45 (Fla. 2d DCA 2009), wherein we held that the manslaughter by act instruction when considered as a whole was not erroneous. The Zeigler court noted that the holding of Montgomery conflicted with the above dicta in Hall. Id. at 1244. The supreme court granted review of the Montgomery decision in State v. Montgomery, 11 So.3d 943 (Fla. 2009) (table decision). This occurred prior to the filing of the initial brief in Del Valle. The supreme court in Montgomery, 39 So.3d at 259 (Fla. 2010), held:

Because Montgomery's conviction for second-degree murder was only one step removed from the necessarily lesser included offense of manslaughter, under Pena v. State, 901 So.2d 781 (Fla. 2005), fundamental error occurred in his case which was per se reversible where the manslaughter instruction erroneously imposed upon the jury a requirement to find that Montgomery intended to kill Ellis.

Thus, the supreme court effectively overruled this court's decision in Zeigler.

To establish a claim of ineffective assistance of appellate counsel, the petitioner must show counsel's deficient performance and that "`the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.'" Downs v. Moore, 801 So.2d 906, 909-10 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1165 (Fla. 1985)). This court must apply the law at the time of the appeal in determining whether appellate counsel's performance was deficient. However, we must apply the current law to determine whether Mr. Del Valle is entitled to relief. See Brown v. State, 25 So.3d 78, 80 (Fla. 2d DCA 2009). Even though at the time the initial brief was filed in Del Valle, this court in Hall had stated in dicta that the then standard manslaughter by act instruction was not erroneous, the First District in Montgomery had held that the instruction was fundamentally erroneous and the supreme court had accepted jurisdiction to review that decision. We therefore hold that appellate counsel's performance was deficient when he failed to argue that the manslaughter by act instruction was fundamentally erroneous based on the First District's Montgomery decision. Had counsel so argued, this court would have affirmed Mr. Del Valle's conviction for second-degree murder; however, as we did in Zeigler, we would have been compelled to certify conflict with Montgomery, and we can only conclude that Mr. Del Valle would have ultimately been afforded relief as part of the direct appeal process. Under the current law, Mr. Del Valle is entitled to have his conviction set aside. Because a new appeal would be redundant in this instance, we reverse Mr. Del Valle's second-degree murder conviction, vacate the sentence, and remand for a new trial. See Hernandez v. State, 884 So.2d 281, 282 (Fla. 2d DCA 2004).

Petition granted.

DAVIS and KHOUZAM, JJ, Concur.

Justice ALBIN, concurring.

Sadly, the Court is passing through an artificially created crisis caused by one Associate Justice who has taken the unprecedented step of challenging the Chief Justice's constitutional authority to assign temporarily a Superior Court judge to fill a vacancy on the Supreme Court. Although a majority of the Court has determined that the Chief Justice has lawfully exercised his authority by temporarily assigning Judge Stern to the Supreme Court, one Associate Justice will not honor that decree, refusing to vote on matters before the Court and refusing to fulfill his own duties under the Constitution.

The Chief Justice is faithfully carrying out his constitutional responsibilities in accordance with the plain language of Article VI, Section II, Paragraph 1 of the New Jersey Constitution, Rule 2:13-2(a), and long-accepted custom. The Chief Justice has expressed his reasons for calling on a Superior Court judge to serve temporarily on the Supreme Court: to secure a full Court of seven members to address the approximately "two thousand matters and issues requiring action [that] will be presented to the Court for consideration this term," matters involving real "people who are trying to vindicate their rights as they await justice." Henry v. N.J. Dep't of Human Sens., 204 N.J. 320, 340, 9 A.3d 882, 894 (2010) (Rabner, C.J., concurring).

To undermine the Chief Justice's authority, one Associate Justice has chosen to abstain in hundreds of cases, effectively reducing the Court to six members and depriving litigants of his vote in matters of utmost importance. He has taken the bench in cases argued before the Court, and plied the litigants with questions, all the while knowing that he would abstain. He has chosen to abstain, rather than to disqualify himself, thereby thwarting the Chief Justice from calling on another Superior Court judge to serve temporarily. He is engaging in a course of nullification knowing that a majority of the Court has endorsed the Chief Justice's constitutional authority to make the present temporary assignment.

The present crisis is not of the Chief Justice's making. He has merely exercised his constitutional authority in the same manner as have other Chief Justices over the past four decades. During those forty years, no Associate Justice or litigant with a case before the Court has questioned the Chief Justice's authority to make a temporary assignment of a Superior Court judge to bring the Court to a full complement of seven members.

Our "abstaining" colleague has sat on cases in which other Chief Justices have temporarily assigned a Superior Court judge to sit on the Supreme Court, even when not necessary to constitute a quorum, and has not abstained. Id. at 344 n. 2, 9 A.3d 897 n. 2. Why now? Without a litigant challenging the Chief Justice's authority, our colleague has chosen to do so at this peculiar time.

Judicial restraint counsels that the Court not decide an issue when there is no concrete case or controversy before it. Yet, our "abstaining" colleague injects a constitutional issue not raised, argued, or briefed by any litigant — based primarily on two academic articles that he widely quotes: — to declaim that, in his opinion, the Court is not properly constituted. Id. at 358-63, 371, 9 A.3d at 905-09, 913-14 (Rivera-Soto, J., abstaining). The scholarly musings of these two academics is that the Chief Justice cannot temporarily assign a Superior Court judge to serve on the Supreme Court other than to constitute a quorum. That supposition, however interesting, is at complete odds with the plain language of Article VI, Section II, Paragraph 1 of our State Constitution and the consistent application of that constitutional provision for most of the modern history of our Supreme Court. And the Chief Justice has dispatched that misbegotten notion with the dispositive analysis in his concurring opinion in Henry v. New Jersey Department of Human Services. Id. at 360-63, 9 A.3d at 906-09 (Rabner, C.J., concurring).

Our "abstaining" colleague has taken an inflexible position that does not account for other reasonable opinions or the possibility of his own fallibility. Accepting his viewpoint compels the conclusion that Chief Justices Weintraub, Hughes, Wilentz, Poritz, and Zazzali were all mistaken and that, by making temporary appointments when not necessary for a quorum, hundreds of opinions were issued by an unconstitutionally constituted Court. The sheer number of prior Justices who have held an opinion different from his own should give him pause to consider that, perhaps, he is in error.

Our "abstaining" colleague makes the thinly veiled, seemingly scandalous charge that the Chief Justice is playing politics, even though he has acted no differently than other Chief Justices facing similar circumstances. See id. at 369-70, 9 A.3d at 912-13 (Rivera-Soto, J., abstaining). The discordant echo of politics rings from our "abstaining" colleague's opinion, not from the Chief Justice's stated reasons for making a temporary assignment. Our "abstaining" colleague says that the Chief Justice's filling a vacancy on the Court will be construed as the Court "having chosen sides in [an] impasse" between the Legislative and Executive branches of government, with the Court "having cast its lot — and that of the Judiciary as a whole — with the Legislature." Id. at 369-70, 9 A.3d at 913. By that strained logic, by making no temporary assignment, the Chief Justice would be casting his and the Court's lot with the Executive, still unavoidably entering what our colleague describes as a "political thicket." See id. at 370, 9 A.3d at 913. The Chief Justice cannot escape his constitutional responsibilities — one of which is to make temporary assignments to the Court "when necessary."

The appointment power of the Executive and the Legislature's role in passing on nominations is not the business of this Court, although our "abstaining" colleague has made it his business. He has engaged in the wild and corrosive supposition that the Chief Justice, by carrying out his mandated constitutional responsibilities, is empowering and emboldening "the Legislature to withhold, for whatever period it deems appropriate, consideration of any candidate nominated by the Governor." See id. at 370, 9 A.3d at 913. There is no basis for that speculative conclusion that invites a disparaging view of the judicial function. More importantly, as Justices, we cannot and must not calculate how we should decide a matter based on public perception, and surely not on how one of our rulings may be wrongly perceived, even by one of the other branches of government. It is our "abstaining" colleague who has needlessly politicized an independent, non-partisan decision by the Chief Justice, and he alone bears responsibility for the collateral damage done to the image of the judiciary.

At issue, ultimately, is whether a Justice of this Court has an obligation to respect the will of the majority. This Court — when four members speak with one voice — is the final authority on the interpretation of the State Constitution. The rule of law requires that every litigant, every citizen, and every government official abide by the decisions of this Court. Respect for the law — even one with which we disagree — must be a first principle for those serving on the highest Court of this State. No one is above the law, not even a Supreme Court Justice.

Filling a temporary vacancy on the Supreme Court is a responsibility vested by the Constitution in the Chief Justice. So long as he does so in accordance with the rules of the Supreme Court, the authority to determine when it is "necessary" to make a temporary assignment is his — no one else's.

Those of us privileged to serve on the Supreme Court do so not on behalf of any political party or cause, or partisan agenda. We serve to render impartial justice, to the extent humanly possible, without favoring any side or fearing the consequences. To falsely suggest that politics enters into our deliberations and to impugn the good faith of the Chief Justice as he fulfills his constitutional duties is a slur on the entire judiciary.

A majority of the Court has interpreted the Constitution as authorizing the Chief Justice to appoint Judge Stern to serve temporarily on the Supreme Court. Although a Justice may disagree with that decision, he may not defy it. No one is above the law.

Justice RIVERA-SOTO, abstaining.

I abstain for the reasons set forth in my opinion in Henry v. New Jersey Department of Human Services, 204 N.J. 320, 9 A.3d 882 (2010) (Rivera-Soto, J., abstaining), namely that the Court, presently "constituted as one Chief Justice, five Associate Justices and a Judge of the Appellate Division selected unilaterally by the Chief Justice, . . . is unconstitutional and its acts are ultra vires[.]" Ibid. at 354, 9 A.3d at 903. I add, however, the following.

My determination to highlight the unconstitutional composition of the Court and the reasons therefor have triggered an overheated paroxysm of judicial hysteria. In this appeal alone, two separate concurring opinions attempt — albeit unsuccessfully — to either cajole, badger or threaten submission to the majority's tyrannical view of a constitutional question. Although that prattle largely is unworthy of the dignity of a reasoned response, some specific rejoinders are in order.

Having asserted the logical and plain conclusion that of necessity flows from the Court being unconstitutionally constituted, I stand accused of "ignor[ing] settled precedent and discard[ing] stare decisis." Ante at 550 (Rabner, C.J., concurring) 9 A.3d at 1018. The so-called "settled precedent" is, as noted in Henry, anything but settled and that concurrence's assertion is fundamentally misleading.

What that concurrence conveniently ignores is that the question of when it is "necessary" to temporarily assign a judge of the Superior Court for service in the Supreme Court in fact was raised as early as May 2007 and was largely resolved by December 2007. At that point, the Court considered the question of temporary assignments in two discrete settings: individual case assignments and general assignments. As noted in a December 12, 2007 memorandum from the Clerk of the Court to the Supreme Court, "in respect of individual case callups, the Court has decided to limit temporary assignments from the Appellate Division to cases in which the assignments are necessary to establish a five-person quorum." (emphasis in original). That memorandum also noted a second scenario: "a general assignment to replace a member of the Court who is unable to participate in the Court's activities." (emphasis in original). In that instance, "[t]emporary assignments in this category are intended to result in a full complement of seven Justices." As the memorandum points out, this second scenario does not arise willy-nilly, but is limited to those instances where the "long-term unavailability of a Justice [is] due to illness or accident[.]" Neither of those admit the circumstances with which the Court presently is confronted: a vacancy in the Court arising out of a political stalemate.^fn1

If there is, then, "settled precedent," it is straightforward but contrary to what the concurrence asserts: temporary assignments are constitutional either to satisfy the Constitution's five-person quorum requirement, N.J. Const, art. VI, § II, ¶ 1, or when a constitutionally nominated and confirmed Justice is unavailable, long-term, due to illness or accident. Neither applies here.

The Court also has decreed that it may act unconstitutionally and, under stare decisis, everyone must accept that decree and follow the party line. That is an unfortunate mischaracterization of the doctrine of stare decisis. The doctrine does not require slavish adherence to abhorrent principles. As this Court recently noted:

To be sure, stare decisis — following precedent — provides stability and certainty to the law. Those governed by decisions of this Court must know that they can rely on our pronouncements. For that reason, we do not lightly alter one of our rulings. Stare decisis, however, is not an unyielding doctrine Stare decisis does not compel us to continue on a mistaken path or to adhere blindly to rules that have lost their reason for being.

[ Pinto v. Spectrum Chems. Lab. Prods., 200 N.J. 580, 598, 985 A.2d 1239 (2010) (citations and internal quotation marks omitted).]

In an early case of this Court, Chief Justice Vanderbilt, in a ringing dissent, noted that "[t]he doctrine of stare decisis neither renders the courts impotent to correct their past errors nor requires them to adhere blindly to rules that have lost their reason for being." Fox v. Snow, 6 N.J. 12, 23, 76 A.2d 877 (1950) (Vanderbilt, C.J., dissenting). He emphasized that "[t]he common law would be sapped of its life blood if stare decisis were to become a god instead of a guide. The doctrine when properly applied operates only to control change, not to prevent it." Ibid. Prophetically, Chief Justice Vanderbilt's view, although expressed then in dissent, has become this Court's standard. White v. Twp. of N. Bergen, 77 N.J. 538, 551-52, 391 A.2d 911 (1978) ("However unpersuasive it was to the Fox court majority in 1950, [Vanderbilt's] philosophy has clearly guided this Court since, as exemplified in many of its decisions. We have agreed with the Vanderbilt thesis that the process of justice is not bound, as though by some strange sort of Mendelian law, to accept the hereditary transfer of now visible defects in justice, from generation to generation; that no such inevitability is required by the principle of stare decisis, and that the Court . . . has authority to intervene against operation of any such fallacy.").

In contrast, when a Justice historically has refused to abide by court decisions solely on the basis of what can only be called a politically correct notion, the hue and cry of stare decisis curiously is not raised. For example, dissenting from the denial of a writ of certiorari in a capital case, Justice Blackmun unilaterally concluded that capital punishment was unconstitutional, dramatically announcing that "[f]rom this day forward, I no longer shall tinker with the machinery of death." Callins v. Collins, 510 U.S. 1141, 1145, 114 S.Ct. 1127, 1130, 127 L.Ed.2d 435, 438 (1994). Yet, despite the unquestioned fact that a majority of the Supreme Court of the United States repeatedly reaffirmed the constitutionality of the death penalty, Justice Blackmun never wavered from his deeply held view and, more to the point, none of his colleagues ever displayed the naked arrogance of castigating him for, purportedly, ignoring stare decisis.

In its implications, the concurrence seemingly asserts that the doctrine of stare decisis does not differ in any material respect from the divine right of kings, that is, a decision reached by the brute force of numbers of this Court cannot be questioned or challenged; it is to be accepted without question. That reading of the doctrine of stare decisis is grotesquely overbroad, and the notion that a majority headcount standing alone can silence permanently a discordant voice is simply too absurd for words. For example, if the doctrine is as broad as the concurrence would have it, the state of the law in this country would still be that separate but equal facilities for different races is constitutional, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), and Justice Harlan's exhortations in dissent, id. at 552, 16 S.Ct. at 1144, 41 L.Ed. at 261, would be relegated to the dustbin of rousing but unpersuasive rhetoric. Constitutional history teaches otherwise, and the constitutional history of this State, in particular, is replete with contrary examples. See, e.g., Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (2006) (recognizing, for first time, constitutional basis for governmental sanction of same-sex unions); State v. Peña-Flores, 198 N.J. 6, 965 A.2d 114 (2009) (rejecting constitutional basis for automobile exception to warrant requirement otherwise recognized in every other American jurisdiction); State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990) (recognizing, for first time, a constitutionally protected expectation of privacy in trash left at curbside unique to New Jersey). That contrary history — one of which this Court often proudly crows — lays forgotten in the din raised by the concurrence.

In a separate concurrence, the position I have advanced has been called an "artificially created crisis[,]" one in which I have "refus[ed] to vote on matters before the Court and refus[ed] to fulfill [my] own duties under the Constitution." Ante at 553 (Albin, J., concurring) 9 A.3d at 1017. The stridency of that concurrence provides its own response.

That said, that concurrence chides me for having "sat on cases in which other Chief Justices have temporarily assigned a Superior Court judge to sit on the Supreme Court, even when not necessary to constitute a quorum, and has not abstained." Id. at 554, 9 A.3d at 1018. One is sorely tempted blithely to reply — tongue firmly planted in one's cheek — with what Justice Clifford referred to as either "that reassuring old turkey" or "that old chestnut": "`The matter does not appear to me now as it appears to have appeared to me then.' Bramwell, B., in Andrews v. Styrap, 26 L.T.R. (n.s.) 704, 706 (Ex. 1872)[.]" Tretina v. Fitzpatrick Assocs., 135 N.J. 349, 367, 640 A.2d 788 (1994) (Clifford, J., concurring); Moraca v. Ford Motor Co., 66 N.J. 454, 466, 332 A. 2d 599 (1975) (Clifford, J., dissenting). In a light-hearted vein, that is the extent of any needed reply.

There is, however, a more serious and pointed response. As noted earlier, the process by which this Court re-examined temporary assignments to the Court was subject to review three years ago, a review prompted by deeply felt and strongly held concerns that the until-then process of temporary appointments contravened the explicit language of the Constitution. Also as noted earlier, those concerns resulted in a Court determination that a temporary assignment would be made only in two circumstances: on an individual case basis to meet the quorum requirement, and on a general basis due to the long-term unavailability of a Justice due to illness or accident. Once that ship was righted, there was no need to raise again that issue, as the Court steadfastly — and in the face of public opposition — hewed to those principles. It is only now that, for reasons that have nothing to do with the "necessity" required by the Constitution, those principles have been cast aside, resulting in a Court that presently is unconstitutionally constituted.^fn2

That concurrence also asserts, in rather colorful terms, that my refusal to bow down to the majority's will — or to the tyranny of this particular majority — somehow violates precepts of good judging.^fn3 In so doing, that concurrence plainly ignores the rather stark difference between acknowledging a decision of this Court and opposing it. My opposition to the Court's wrongful exercise of the temporary assignment power consists of: participating fully in each matter before the Court, just like any other Justice; explaining my views and how I reach them in each such instance, again just like any other Justice; but abstaining from any decision thereon, a decision — how a Justice casts his or her vote — that is uniquely personal and, more to the point, immune from any other Justice's views. In that context, that concurrence's feigned horror at that latter part — a vote of abstention — is, in its proper context, laughable.

That concurrence happily ignores that abstentions from decisions of the Court have been registered for years and, yet, no "artificially created crisis" has arisen. For example, each time the Court is presented with an application seeking the recall of a judge of the Superior Court who is older than seventy, I have abstained from that decision. In my view, the plain constitutional proscription that "justices and judges shall be retired upon attaining the age of 70 years[,]" N.J. Const. art. VI, § VI, ¶ 3 (emphasis supplied), is clear and brooks no different interpretation. Yet, this Court repeatedly has recalled and continues to recall to service judges who are older than seventy and, curiously, has arbitrarily set its own limit on recall at age eighty. Stated in starker terms, the Court blithely ignores a clear constitutional mandate in preference for an arbitrary one of its own making. Although the aggregate number of those abstentions now must be rather significant, inexplicably they have not stirred the invective that concurrence now musters.

The Nobel Laureate and dramatist George Bernard Shaw once observed that "[t]he reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man." George Bernard Shaw, Quotations, available at http://www.quotationspage.com/quote/2097.html. No doubt, some have claimed and undoubtedly will claim that, viewing uncritically and abstractly this Court's prior history and practice, the position I have advanced as to the Constitution's strictures may be unreasonable and, perhaps, even incorrect. Although the views I have espoused may arouse passionate responses, one thing remains clear: the positions I have taken in this matter align far more closely with the explicit mandates of our Constitution than the unvarnished arbitrariness at the core of both concurrences. For me, the choice between going along and asserting a heartfelt belief or between collegiality and constitutionality is no choice at all. In either event, it is the Constitution — and not this Court's constitutionally untethered and arbitrary wishes — that must reign supreme, and it is to the Constitution that my allegiance is bound by oath.

For each of those reasons, I abstain.

For Reversal and Reinstatement — Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, HOENS, and STERN — 6.

For Abstaintment — Justice RIVERA-SOTO — 1.

Opposed — None.