David v. State, No. 3D18-1143
| Citation | 306 So.3d 228 |
| Decision Date | 10 June 2020 |
| Docket Number | No. 3D18-1143 |
| Parties | Derek M. DAVID, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Donald C. Barrett, P.A. and Donald C. Barrett, for appellant.
Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee.
Before SALTER, LINDSEY, and MILLER, JJ.
Appellant, Derek David, challenges his conviction and sentence for three counts of attempted manslaughter with a firearm in violation of section 782.07, Florida Statutes, one count of aggravated assault with a firearm in violation of section 784.021, Florida Statutes, and five counts of related misdemeanors. On appeal, he raises numerous claims, two of which are intertwined and merit further discussion.1 Finding fundamental error, we reverse and remand for further proceedings.
The facts salient to our analysis are not largely disputed. In the early morning hours of March 21, 2016, David and his wife, Jodi, having previously imbibed alcoholic beverages while patronizing several establishments in Key West, began to quarrel. Two unidentified men approached the couple, apparently concerned that a domestic incident was unfolding. One of the men pushed David away from his wife and David attempted to strike him with a closed fist.
Predictably, an affray ensued. David fell to the ground and sustained a physical attack. Upon regaining his footing, he began to walk away. However, one of the men struck him in the back of the head. David again stumbled and was subjected to another physical overture. Jodi simultaneously struggled with the other stranger.
Both men departed, with Jodi following closely behind. David trailed at a marked distance. A second pair of bystanders, Brendan Boudreau and Trent Pauls, drew near. Boudreau was visiting the Florida Keys for the purpose of filming a work-related documentary. As they approached Jodi, she lashed out.
In the ill-fated aftermath, witnessing the altercation from afar, David, a concealed carry permit holder, retrieved his firearm and unsuccessfully endeavored to discharge a warning shot in the air. He then fired four rounds, stricking Boudreau, Reid Ogden, and Scott McBride, the latter of whom were tourists. All three men suffered non-mortal injuries.
While hastily departing from the shooting scene, Derek purportedly brandished his firearm at both a tavern security guard and a barkeeper. He was subsequently apprehended and taken into custody. During the arrest, law enforcement officers observed that David was combative, and his speech was slurred, loud, and laced with profanities.
David was charged by information with three counts of attempted second-degree murder, two counts of aggravated assault with a firearm, one count of discharging a firearm in public, one count of using a firearm while under the influence of alcoholic beverage, one count of violating the concealed firearm permit, and one count of resisting an officer without violence.
David steadfastly maintained his actions were necessary to defend his wife from the imminent use of unlawful force. However, his efforts to invoke immunity pursuant to section 776.032, Florida Statutes (2016), Florida's "Stand Your Ground Law," were fruitless in both the trial court and an ensuing prohibition action.2 See David v. State, 233 So. 3d 1105 (Fla. 3d DCA 2017).
The case proceeded to trial. David again relied upon the theory that he was defending his wife. At the close of the defense case, the lower tribunal reduced the three charges of attempted second-degree murder to attempted manslaughter by act. During the charge conference, arguing that McBride and Ogden were unintended victims of the shooting, the State sought a transferred intent jury instruction. David asked that the instruction include the additional language: "harm caused to an unintended victim is also justified if the shot fired was the proper and prudent exercise of self-defense or in the defense of others." The trial court acquiesced to both requests and endeavored to draft a single combined instruction.
The jury was instructed on transferred intent as follows:
Hence, the reference to "defense of others" was omitted.
In the State's initial summation, the prosecutrix focused heavily upon the pure happenstance that the uninvolved victims were visiting Key West. She emphasized the enduring trauma resulting from the crimes, ultimately synthesizing the victims’ status as tourists with the nature of the injuries inflicted. During her argument, she characterized the bullet wounds
as souvenirs, "given" by David. Repeated objections to this line of argument were overruled.
Later, in the rebuttal closing, the second-chair prosecutor implored the jury to return "a verdict that also speaks the truth and speaks justice" for each of the individually named victims. The defense failed to raise an objection.
Following deliberations, the jury found David guilty of three counts of attempted manslaughter with a firearm, one count of aggravated assault with a firearm, one count of improper exhibition of a firearm, and the four related misdemeanors, as charged. David was subsequently sentenced to an eighteen-year term of incarceration. The instant appeal followed.
On appeal, David asserts reversible error in jury selection, two separate jury instructions, and closing argument. Our analysis focuses on the unwitting omission of the critical phrase in the transferred intent instruction and a combination of preserved and unpreserved error in closing argument.
"[A] defendant is entitled to have a jury instruction on any valid defense supported by the evidence." Mora v. State, 814 So. 2d 322, 330 (Fla. 2002) (citation omitted). It is well-established Florida law that "[i]f the killing of the party intended to be killed would, under all the circumstances, have been excusable or justifiable homicide upon the theory of self-defense, then the unintended killing of a bystander, by a random shot fired in the proper and prudent exercise of such self-defense, is also excusable or justifiable." Brown v. State, 84 Fla. 660, 661, 94 So. 874, 874 (1922) (citing Pinder v. State, 27 Fla. 370, 8 So. 837 (1891) ); see 16 Fla. Jur. 2d Criminal Law § 470 (); McCray v. State, 89 Fla. 65, 66, 102 So. 831, 831 (1925) () (citation omitted); V.M. v. State, 766 So. 2d 280, 281 (Fla. 4th DCA 2000) () (citations omitted).
In the instant case, David sought to transfer his defense of others claim by instructing the jury "unintended harm to an unintended victim is also justified if the shot was fired in the proper and prudent exercise of the defense of others." Because unintended injury to a bystander is indeed justifiable if resulting from shots fired in the proper and prudent defense of another, and, here, there was sufficient "evidence in the record to support [this theory of] defense, [David] was entitled to the requested instruction." Riles v. State, 33 So. 3d 808 (Fla. 1st DCA 2010) (citation omitted).
Nonetheless, as the defense failed to alert the trial court to the flaw in the final instructions, we engage a fundamental error analysis.3 See Bush v. State, 295 So.3d 179, 212 (). "The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment." Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, 48 L.Ed. 2d 126 (1976) (citation omitted). Hence, "the preservation of a fair trial—the most fundamental of all freedoms—must be maintained at all costs." Estes v. Texas, 381 U.S. 532, 540, 85 S. Ct. 1628, 1632, 14 L.Ed. 2d 543 (1965). Nevertheless, "to justify a reversal in the absence of [a] timely objection 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 v. State, 124 So. 2d 481, 484 (Fla. 1960) ; see Card v. State, 803 So. 2d 613, 622 (Fla. 2001) () (citation omitted). "In other words, ‘fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.’ " State v. Delva, 575 So. 2d 643, 645 (Fla. 1991) (quoting Stewart v. State, 420 So. 2d 862, 863 (Fla. 1982) ).
In order "[t]o determine whether a jury instruction deprived the defendant of a fair trial, a court should conduct a ‘totality of the circumstances analysis.’ " Neal v. State, 169 So. 3d 158, 161 (Fla. 4th DCA 2015) (quoting Croom v. State, 36 So. 3d 707, 709 (Fla. 1st DCA 2010) ). "In considering the effect of...
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