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Pinkney v. Secretary, DOC

United States Court of Appeals, Eleventh Circuit

December 6, 2017

EMERSON PINKNEY, Petitioner-Appellant,
SECRETARY, DOC, Respondent-Appellee, FLORIDA ATTORNEY GENERAL, Respondent.

         Appeal from the United States District Court for the Middle District of Florida

          Before ED CARNES, Chief Judge, WILLIAM PRYOR, and DUBINA, Circuit Judges.


         Emerson Pinkney filed a pro se amended 28 U.S.C. § 2254 petition alleging that his appellate counsel was ineffective for failing to argue that a jury instruction given by the trial court was fundamental error under Florida law. The district court denied his § 2254 petition, and this Court granted a certificate of appealability and appointed counsel for him. This is Pinkney's appeal, which is all about Florida's fundamental error doctrine.

         I. BACKGROUND

         It was about 2:25 in the morning when Emerson Pinkney entered Barbara Jones' apartment. Two people who were in the apartment saw him walk in pointing a gun. Pinkney says he was unarmed. Roy Williams was at the apartment, and he had his own pistol. Williams and Pinkney were on bad terms and it involved two women. Pinkney was dating the mother of Williams' children, and Pinkney believed that Williams had "cussed . . . out" Pinkney's mother. Inside the apartment, Williams and Pinkney started fighting. Pinkney shot Williams in the head, killing him.

         The State's second amended information charged Pinkney with four crimes: manslaughter with a firearm, in violation of Florida Statutes §§ 782.07(1), 775.087; aggravated assault with a firearm, in violation of Florida Statutes §§ 784.021, 775.087; first degree burglary with assault or battery while armed with a deadly weapon, in violation of Florida Statutes §§ 810.02, 775.087; and possession of a firearm by a convicted felon, in violation of Florida Statutes §§ 790.23, 775.087(2)(a)(1).

         During Pinkney's four-day jury trial, the State presented several witnesses. Latoya Woolfork was Williams' girlfriend at the time of the shooting, and both she and Jones were present at Jones' apartment when Williams was shot. Jones testified that Pinkney knocked on her apartment door, entered without permission, and pointed a gun at her. She stated that Pinkney walked toward the right side of the room after entering and did not see Williams, who was standing to the left side of the room and also had a gun. Jones testified that she "got up and ran" to the back of the house, while Woolfork and Williams both stayed in the room. She said that she then heard a gunshot and Woolfork screaming and she later saw Williams on the floor.

         Woolfork testified that earlier on the night of the shooting her boyfriend Williams picked up his "small .22" caliber pistol from his sister's house. He decided to get the weapon because he had heard that Pinkney's mother had told Pinkney that Williams had "cussed her out." According to Woolfork, Williams was "upset" about that because "it was a lie." She testified that, after they were inside Jones' apartment, Pinkney walked in with his gun pointed, and Williams tried to grab Pinkney's gun. As Pinkney and Williams started fighting, Woolfork "was trying to break it up" and "was in the middle of it." She said that Pinkney and Williams fell down, but Pinkney got up before Williams and shot him "[r]ight straight down into his head."

         The State also presented witnesses who had investigated the crime. The detective assigned to the case testified that he did not find any guns or shell casings at Jones' apartment.[1] A medical examiner who reviewed Williams' autopsy report testified that a bullet entered the top of Williams' head and went straight down to the base of his skull. He also testified that, according to the report, there were no "abnormalities or injuries" to Williams' hands. And a crime lab analyst from the Florida Department of Law Enforcement in Tampa testified that the projectile removed from Williams' head was from a ".38 Special caliber revolver[ ]."

         Pinkney took the stand in his own defense and was the last witness to testify. He admitted that he killed Williams, but said that he was not armed on the night of the incident, and that the shooting was "[o]n accident" and occurred as he was fighting for his life. He stated that, a few hours before the incident, he had told Jones that he would swing by her apartment later. When he got to her apartment, according to Pinkney, he knocked on the door and someone unlocked it. He testified that, after he entered through the door, someone approached him from behind and put a gun to the left side of his head, and "out of reflex, " he tried to grab the gun and fight the person. Pinkney told the jury that he and the other person each had a hand on the gun, but that he (Pinkney) never had his finger on the trigger or had complete control of the gun. It was as he was "fighting for [his] life" that Pinkney heard a "pop!" and saw the other person, along with the gun, fall to the floor.

         Pinkney insisted that the shooting was accidental. When asked "who killed Roy Williams, " Pinkney responded: "I did, sir. On accident." He later confirmed once more that it was an accident and added: "I didn't intentionally shoot [Williams]." He explained to the jury that although he was "angry" and "mad" after hearing that Williams had disrespected his mother, he was not "mad to the point where [he wanted] to kill somebody." Pinkney stated that when he was fighting Williams, he was fighting for his life, and that there "[a]in't no fair rules in fighting for your life, " but he acknowledged that he did not have any cuts on his hands or any bruises from fighting Williams.

         After closing arguments, the trial court instructed the jury. It first instructed on the manslaughter charge, stating: "If you find Roy Williams was killed by Emerson Pinkney, you will then consider the circumstances surrounding the killing in deciding if the killing was Manslaughter With a Firearm, Manslaughter, or whether the killing was excusable or resulted from justifiable use of deadly force." The court also instructed the jury that the "killing of a human being is excusable, and therefore, lawful" if it is "committed by accident" under certain circumstances. It then told the jury about Pinkney's affirmative defense of self-defense and the forcible felony exception to that defense:

An issue in this case is whether the defendant acted in self defense. It is a defense to the offense with which Emerson Pinkney is charged if the death of Roy Williams resulted from the justifiable use of force likely to cause death or great bodily harm.
The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting:
1. Any attempt to commit Manslaughter With a Firearm upon him. However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
(1) Emerson Pinkney was attempting to commit, committing, or escaping after the commission of Manslaughter With a Firearm.[2]

         Pinkney's counsel did not object to any of the instructions. The jury found Pinkney guilty of all four charged crimes, and ...

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