Opinion
Case No. 5D03-3120.
Opinion filed September 30, 2005.
Appeal from the Circuit Court for Volusia County, Julianne Piggotte, Judge.
James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellant.
Bernard Sloss, Chipley, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
Bernard Sloss ("Sloss") appeals his conviction for aggravated battery with a deadly weapon. We reverse.
The charge against Sloss arose from a fight in his apartment complex. Sloss lived directly above McKinney Milsap ("McKinney") and McKinney's nephew, Frank Milsap ("Frank"). Sloss was playing music loudly after midnight on 21 February 2003. McKinney asked Sloss to turn down the music. When Sloss refused, McKinney walked across the street to complain to their landlord. Sloss joined their conversation and, as he walked away, said "I'll show you something." McKinney returned to his apartment.
According to McKinney and Frank, Sloss came downstairs, cursed at McKinney, and went to his car. Sloss then approached McKinney and cut McKinney's thigh with a knife. They fought, and Sloss stabbed McKinney several times. Frank went outside after hearing McKinney yell that he was cut. Frank tried to assist McKinney, but was cut three times by Sloss. Frank went inside, got a knife, and went back outside. Frank cut Sloss's hand, forcing Sloss to drop his knife.
According to Sloss, Sloss decided to move out of the apartment that weekend. After going downstairs, he was under his car's hood when he was hit in the back by a chair. He attempted to talk to McKinney, who threw the chair, but McKinney struck him three times. Sloss did not pull his knife until Frank came out of the apartment with a knife. Sloss then began to stab McKinney.
At trial, the defense requested the jury instruction of self-defense and did not object to the inclusion of the "forcible felony" portion of the instruction.
Sloss's jury instructions stated:
A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the imminent commission of aggravated battery.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find [Sloss] was attempting to commit, committing or escaping after the commission of aggravated battery, or [Sloss] initially provoked the use of force against himself unless the force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm, and had exhausted every reasonable means to escape the danger. . . .
(R3 at 357-58) (emphasis added).
This instruction is based on section 776.041(1), Florida Statutes (2003), which provides that the justification of self-defense or defense of others is not available to a person who "[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony."
The jury found Sloss guilty. The court sentenced him to ten years imprisonment followed by five years probation. The issue is whether giving an instruction on the forcible felony exception to self-defense constitutes fundamental error, where the defendant allegedly engaged in two forcible felonies, but is charged with a single crime.
The forcible felony instruction should be given only where the defendant claiming self-defense engaged in an independent forcible felony at the time. See, e.g., Hawk v. State, 902 So. 2d 331, 331 (Fla. 5th DCA 2005). "More specifically, the forcible felony instruction is given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate forcible felony." Id. (quoting Cleveland v. State, 887 So. 2d 362, 363 (Fla. 5th DCA 2004)); accord Carter v. State, 889 So. 2d 937, 939 (Fla. 5th DCA 2004). Where the defendant is charged only with aggravated battery, the act for which the defendant claims self-defense, giving the forcible felony instruction improperly negates the self-defense claim. Hawk, 902 So. 2d at 331; Cleveland, 887 So. 2d at 363; Williams v. State, 901 So. 2d 899, 899 (Fla. 4th DCA 2005). The instruction tells the jury that the very act the defendant seeks to justify precludes a finding of justification. Giles v. State, 831 So. 2d 1263, 1266 (Fla. 4th DCA 2002).
The state argues that Sloss did not object to the instruction at trial and that any error was harmless. However, several courts have held that giving the forcible felony instruction when the defendant is charged with only one crime constitutes fundamental error reviewable in the absence of an objection below. Hawk, 902 So. 2d at 331; Carter, 889 So. 2d at 939; Cleveland, 887 So. 2d at 363. When the defendant admits the stabbing but argues solely self-defense, an instruction negating that defense creates a reasonable possibility that the instruction led to the conviction. See Estevez v. State, 901 So. 2d 989, 992 (Fla. 4th DCA 2005); see also Dunnaway v. State, 883 So. 2d 876, 878 (Fla. 4th DCA 2004) (quoting Rich v. State, 858 So. 2d 1210, 1210-11 (Fla. 4th DCA 2003)). Furthermore, courts cannot conclude that an error was harmless when there is a reasonable possibility that the error contributed to the conviction. Barnes v. State, 868 So. 2d 606 (Fla. 1st DCA 2004). Nor may the court accept the state's invitation to conduct harmless error analysis because, "by its nature, fundamental error is considered harmful." Carter, 889 So. 2d at 939 n. 1; accord Williams, 901 So. 2d at 899.
The state argues that Sloss's aggravated battery against Frank constitutes an independent forcible felony sufficient to justify the forcible felony instruction in the prosecution for aggravated battery against McKinney. Courts considering similar scenarios have ruled that the forcible felony instruction is reversible error. The question turns on whether the defendant claims that he acted against both victims in self-defense; if so, the forcible felony instruction constitutes fundamental error. See Ruiz v. State, 900 So. 2d 733 (Fla. 4th DCA 2005) (reversing two convictions for aggravated battery against two victims); see also Hernandez v. State, 884 So. 2d 281 (Fla. 4th DCA 2004) (holding that the forcible felony instruction where the defendant claimed self-defense against four charges of aggravated battery constituted reversible error); Baker v. State, 877 So. 2d 856, 857 (Fla. 2d DCA 2004) (involving a defendant's aggravated battery conviction against one victim and uncharged battery against another victim). It remains error no matter how credible the defendant's claim of self-defense. For example, a defendant convicted for felony criminal mischief and two counts of assault had claimed self-defense, despite confronting two men installing a pool enclosure, threatening them with golf clubs, throwing their tools into a pool, ramming their truck with his car, and beating their windows with a golf club. Nevertheless, giving the forcible felony instruction was fundamental error. See Bevan v. State, 30 Fla. L. Weekly D1683 (Fla. 2d DCA July 8, 2005);see also Bates v. State, 883 So. 2d 907, 907-08 (Fla. 2d DCA 2004) (holding that, despite defendant's alleged unauthorized display of a firearm against a mother and her two children in a Wal-Mart parking lot, the forcible felony instruction improperly negated his self-defense claim).
The state is correct to note that the statute and instruction are intended to prevent defendants from asserting self-defense when they initiate violence and engage in felonious acts. The portion of the forcible felony instruction dealing with provocation and retreat is acceptable for accomplishing that purpose. However, the issue here is the instruction in which jurors, upon finding Sloss committed aggravated battery, are precluded from considering the self-defense claim Sloss raises to justify the battery. In this case, giving the instruction takes consideration of Sloss's self-defense claim out of the jury's hands altogether. Sloss is entitled to a new trial without the forcible felony exception.
Accordingly, we REVERSE the conviction and REMAND for a new trial.
TORPY, J, concurs and concurs specially, with opinion.
ORFINGER, J., dissents, with opinion.
I concur because we are bound by Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005). I agree with Judge Orfinger, however, that Hawk is wrong. I think Judge Klein's opinion in Bridges v. State, 878 So. 2d 483 (Fla. 4th DCA 2004), correctly states the law on this issue. Because the erroneous instruction related to a defense, rather than an element of the crime, the error was not fundamental. Id. at 484.
This entire debate is, in my view, largely academic because, in the final analysis, Appellant would get a new trial because he was clearly prejudiced by the ineffectiveness of his lawyer in failing to object to the instruction.
I respectfully dissent, although I acknowledge that the majority opinion is consistent with Hawk v. State, 902 So. 2d 331 (Fla. 5th DCA 2005). In Hawk, this Court held that giving the forcible felony exception to the self-defense jury instruction, when the only charge against the defendant was aggravated battery, which was also the act alleged to have been done in self-defense, improperly negated a self-defense claim and constituted fundamental error, reversible even in the absence of a contemporaneous objection. I disagree, because I think Hawk fails to distinguish the failure to give an instruction requiring proof of an essential element of the crime, from the failure to give an instruction relevant to an affirmative defense.
In State v. Delva, 575 So. 2d 643 (Fla. 1991), the supreme court reiterated that:
"[i]t is an inherent and indispensable requisite of a fair and impartial trial . . . that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence." Gerds v. State, 64 So. 2d 915, 916 (Fla. 1953). Instructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Castor v. State, 365 So. 2d 701 (Fla. 1978); Brown v. State, 124 So. 2d 481 (Fla. 1960). To justify not imposing the contemporaneous objection rule, "the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Brown, 124 So. 2d at 484. In other words, "fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict." Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982) cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed. 2d 366 (1983).
Id. at 644-45 (emphasis added).
In State v. Cohen, 568 So. 2d 49, 51-52 (Fla. 1990), the court explained that:
An "affirmative defense" is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, "Yes, I did it but I had a good reason."
I agree that Florida case law holds that the use of force exception to the self-defense instruction should not have been given under the circumstances of this case, as the majority opinion correctly observes. However, when as here, the erroneous instruction goes to an affirmative defense and not to an essential element of the crime, I believe that controlling precedent holds that such an error should not be considered fundamental, but, rather, should be treated like any other unpreserved trial error.
In Sochor v. State, 619 So. 2d 285 (Fla. 1993), the defendant claimed that the trial court committed fundamental error when it failed to instruct the jury on voluntary intoxication as a defense to felony murder based on kidnapping. In rejecting that contention, our supreme court said:
[F]ailure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but not essential element of, kidnapping. . . . Because the complaint of instruction went to Sochor's defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal.
Id. at 290; see Bridges v. State, 878 So. 2d 483 (Fla. 4th DCA 2004); Alfaro v. State, 837 So. 2d 429 (Fla. 4th DCA 2002). But see Estevez v. State, 901 So. 2d 989 (Fla. 4th DCA 2005) (holding that jury instruction that use of force likely to cause death or great bodily harm was not justifiable if defendant was attempting to commit, committing or escaping after commission of aggravated battery was fundamental error). If, as in Sochor, the failure to give an instruction of the defendant's affirmative defense was not error, why should we view the giving of an erroneous instruction to be fundamental error?
Requiring a defendant to make a contemporaneous objection to an erroneous jury instruction relating to an affirmative defense prevents a defendant from agreeing to the jury instructions at trial, and then objecting to the instructions on appeal, as has happened here. All fundamental error is harmful error, but not all harmful error is fundamental. "Error which does not reach the exacting standard to be `fundamental' is subject to review in accordance with State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (discussing the harmless error test)." Reed v. State, 837 So. 2d 366, 370 (Fla. 2002).
We should be cautious when expanding the concept of fundamental error. Fundamental error, in the jury instruction context, occurs only when "the omission is pertinent or material to what the jury must consider in order to convict." Delva, 575 So. 2d at 645 (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982)) (emphasis added); see Battle v. State, No. 03-443 (Fla. Sept. 1, 2005). Here, the jury instruction error did not relate to a matter that the jury was required to consider in order to convict. Hence, I believe a contemporaneous objection was required to preserve the issue for review.
Because I believe Hawk is inconsistent with the supreme court's opinions in Delva, Sochor and Battle, I respectfully dissent.