Michael v. Montijo
| Decision Date | 26 May 2011 |
| Docket Number | No. 5D09–3434.,5D09–3434. |
| Citation | 61 So.3d 424 |
| Parties | Michael V. MONTIJO, Appellant,v.STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.COHEN, J.
Michael Montijo appeals his conviction for manslaughter with a deadly weapon. His charges for second-degree murder and aggravated assault with a deadly weapon arose from a road rage incident that was set off when Montijo, distracted by talking on his cell phone, cut in front of a car containing Hunter Rosier and three friends. The car followed Montijo into a Steak n' Shake parking lot and its occupants, highly agitated, cursed and screamed at Montijo. Following a verbal confrontation, Montijo retreated into the Steak n' Shake and the staff locked the door behind him. The account of the subsequent events leading to Rosier's death varied depending upon who was testifying—Montijo, one of the restaurant patrons, or Rosier's friends. Suffice it to say, no two accounts were entirely consistent because many of the witnesses had been drinking. What is clear, however, is that Montijo fatally stabbed Rosier, allegedly in self-defense, and there was testimony supporting his defense. 1
Montijo challenges various aspects of the instruction on the justifiable use of deadly force read and provided to the jury. We find no error in the instruction regarding the duty to retreat and its juxtaposition to an individual's right to stand one's ground when confronted with the use of force, as set forth in section 776.013(3), Florida Statutes. What is problematic was the portion of the instruction referencing the burden of proof. The trial court's instruction on the justifiable use of deadly force was patterned on Florida Standard Jury Instruction (Criminal) 3.6(f) and, in relevant part, read:
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Michael V. Montijo is charged if the death of Hunter Rosier resulted from the justifiable use of deadly force.
“Deadly force” means force likely to cause death or great bodily harm.
....
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1. imminent death or great bodily harm to himself or another, or
2. the imminent commission of Aggravated Battery against himself.
To prove the crime of Aggravated Battery, two elements must be proven beyond a reasonable doubt. (Emphasis supplied).
Montijo argues the trial court committed fundamental error in giving the instruction because it improperly shifted the burden to him to establish beyond a reasonable doubt that Rosier was attempting to commit an aggravated battery on him. Montijo is relegated to arguing fundamental error because, as the State points out, he did not timely object to the instruction and, therefore, did not preserve the error for appellate review.
As set forth in Martinez v. State, 981 So.2d 449 (Fla.2008), 2 giving an erroneous jury instruction on an affirmative defense is not per se fundamental error. The issue is whether the error
“reach[ed] 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.” In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.”Id. at 455 (citations omitted).
In determining this issue, we initially reject the State's argument that the instruction did not specify who had the burden of proving the elements of aggravated battery.3 Read in context, it is evident the jury would have understood that Montijo shouldered that burden. Indeed, as an affirmative defense, Montijo had the burden of coming forth with some evidence to support giving the instruction. This could have been accomplished in a variety of ways, including the direct and cross-examination of the witnesses or it may have been inherent in the presentation of the State's case. The evidence necessary to support giving the justifiable use of force instruction, however, did not need to rise to the level of beyond a reasonable doubt. See Murray v. State, 937 So.2d 277, 279 (Fla. 4th DCA 2006).
The defendant in Murray was charged with aggravated battery and asserted that his use of force was necessary to prevent his roommate's commission of an aggravated battery. Similar to this case, the trial court instructed the jury that Murray had to prove the elements of aggravated battery beyond a reasonable doubt. Likewise, as in this case, the jury was instructed that if there was a reasonable doubt about whether or not Murray was justified in using deadly force, they should find him not guilty. In reversing the conviction, the court noted that Murray “laid upon himself a requisite of producing evidence of the additional...
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Claxton v. Sec'y, Case No. 3:12-cv-804-J-34JRK
......5th DCA 1988). Once the defense presents a prima facie case of self defense, the state must disprove the defense beyond a reasonable doubt. Montijo v. State , 61 So.3d 424, 426-427 (Fla. 5th DCA 2011); Falwell v. State , 88 So.3d 970, 972 (Fla. 5th DCA 2012). The state may meet its burden ......
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