Elder v. State, s. 4D18-2891

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Gross, J.
• Citation: 296 So.3d 440
• Parties: Demetrius ELDER, Appellant, v. STATE of Florida, Appellee.
• Docket Number: 4D18-2892,Nos. 4D18-2891,s. 4D18-2891
• Decision Date: 27 May 2020

296 So.3d 440

Demetrius ELDER, Appellant,
v.
STATE of Florida, Appellee.

Nos. 4D18-2891
4D18-2892

District Court of Appeal of Florida, Fourth District.

[May 27, 2020]

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

Gross, J.

The rejection of a proposed jury instruction and the exclusion of relevant evidence, both pertaining to the defense in this case, require that we reverse and remand for a new trial.

Appellant Demetrius Elder was charged by information with manslaughter with a deadly weapon for the stabbing death of the victim, Fakhradeen Muhammad Knight. His defense at trial was that he stabbed the victim in defense of his codefendant, Armando Baptista.

At the time of the manslaughter charge, Elder was on probation for twenty counts of grand theft. The probation was imposed as part of a 2006 sentence in which the trial court withheld adjudication on forty counts of grand theft and one count of petit theft. As to the grand theft counts, the trial court sentenced Elder to concurrent terms of five years of probation on twenty counts, followed by concurrent terms of five years of probation on the remaining twenty counts.

Following the victim's death, a probation officer filed a violation-of-probation affidavit, alleging that Elder violated his probation by, among other things, committing a homicide offense.

Although Elder did not testify at trial, his pretrial testimony from a Stand Your Ground hearing was played for the jury. The stabbing occurred in a Chevrolet Impala stopped at a stop sign. Elder testified that he was behind the wheel, experiencing a coughing fit caused by a serious medical

296 So.3d 443

condition. His codefendant sat in the front passenger seat. The victim walked to the passenger side of the car. One thing led to another and a tussle ensued. Both men ended up on the front seat of the Impala, with the victim on top. Elder got out of the car, walked around to the passenger side, and tried to pull the victim off the codefendant, without success.

According to Elder, the codefendant screamed that the victim was trying to kill him. Elder could not separate the two men. He saw a knife on the floorboard, picked it up, and stabbed the victim once in the back. The victim ultimately died from multiple stab wounds.

The State presented the eyewitness testimony of the victim's girlfriend, who gave a different version of the struggle in the Impala. The girlfriend testified that the victim was a passenger in her car. The Impala was in front of them and stopped at a stop sign for "a couple of minutes," even though the Impala "had plenty of opportunity to go." The victim approached the Impala. The codefendant got out of the car. A discussion ensued outside the car. When the victim attempted to shake hands with the codefendant, the codefendant attacked him. The victim then grabbed the codefendant in a "bear hug," and both men wound up inside the Impala.

Elder got out of the driver side of the Impala, came around behind the car, and told the girlfriend, "You better come get your man." The girlfriend went to the passenger side and tried to get the victim off the codefendant, but the victim was still holding the codefendant in a bear hug. Elder was standing behind the girlfriend. As the girlfriend was tugging at the back of the victim's shirt, the victim screamed, "He's got a f—ing knife." The girlfriend yelled at Elder to get the knife from the codefendant. He reached into the car and the codefendant handed him the knife. The girlfriend pulled the victim off the codefendant and saw that the victim was covered in blood. The girlfriend pulled the victim's wrist and said, "Baby, come on, let's go." However, Elder and the codefendant "both start[ed] pounding him." The girlfriend held up her phone and said that she was calling 911. At that point, Elder and the codefendant left. The girlfriend lifted the victim's shirt and saw multiple stab wounds. An ambulance took the victim to the hospital, where he later died.

The jury found Elder guilty of the lesser-included offense of culpable negligence, a misdemeanor. At the sentencing hearing, the trial court gave full and thoughtful consideration of an appropriate sentence. As to culpable negligence, the trial court sentenced Elder to time served. On the violation of probation, the prosecutor asked the judge to sentence Elder to five years on all twenty counts, for a total of 100 years in prison. The court declined to sentence Elder to prison, terminated Elder's probation unsuccessfully, and adjudicated him guilty on twenty counts of grand theft and one count of petit theft.

Elder raises five points on appeal. We affirm on two without comment. We reverse for a new trial on the culpable negligence charge and for a new hearing on the violation of probation.

The trial court abused its discretion in denying Elder's request for a jury instruction on the presumption of fear for justifiable use of deadly force, as established by section 776.013(1), Florida Statutes (2013)

During the charge conference, defense counsel requested that the court give the standard jury instruction modeled on section 776.013, Florida Statutes, which creates a presumption of reasonable fear of death or great bodily harm if "the person against whom the defensive force was used" was in the process of unlawfully and

296 So.3d 444

forcefully entering an occupied vehicle or had already done so.

The standard jury instruction on the presumption of reasonable fear states:

(Defendant) is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to [himself] [herself] [another] when [using] [or] [threatening to use] defensive force that was intended or likely to cause death or great bodily harm to another if:

a. The person against whom the defensive force was [used] [or] [threatened to be used] was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

b. (Defendant) knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

Fla. Std. Jury Instr. (Crim.) 3.6(f) (emphasis added); see also § 776.013(1), Fla. Stat. (2013).¹

Discussion

"We review a trial court's decision to give or withhold a proposed jury instruction for an abuse of discretion." Calkins v. State , 170 So. 3d 888, 889 (Fla. 4th DCA 2015).

A trial court's failure to give a requested instruction constitutes reversible error if: (1) the requested instruction accurately states the law; (2) the facts of the case support the instruction; and (3) the instruction is necessary to allow the jury to properly resolve all issues in the case. Campbell v. State , 812 So. 2d 540, 544 (Fla. 4th DCA 2002).

"A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where...