Estevez v. State, 4D03-4874.

• Decision Date: 11 May 2005
• Docket Number: No. 4D03-4874.,4D03-4874.
• Parties: George ESTEVEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

901 So.2d 989

George ESTEVEZ, Appellant, v. STATE of Florida, Appellee.

No. 4D03-4874.

District Court of Appeal of Florida, Fourth District.

May 11, 2005.

Steven J. Hammer, Fort Lauderdale, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

George Estevez appeals a conviction and sentence for aggravated battery, and argues that the trial court committed fundamental error by instructing jurors in a single aggravated battery case that the defendant's use of force was not justifiable if he was attempting to commit, committing, or escaping after commission of an aggravated battery. We agree and reverse for a new trial.

Estevez was charged with one count, aggravated battery, for a stabbing occurring at a bar. In the course of his jury trial, Estevez claimed self-defense, alleging he was in fear of the victim, Walter Burgos, based on a 1993 incident in which Burgos had stabbed him four times. When Estevez saw Burgos enter the bar with four other men, he was afraid there would be trouble and believed Burgos was going to start a fight. The men approached Estevez and Burgos began making verbal threats at Estevez from about two feet away. Burgos told him something like, "I ought to beat your ass." Before Burgos got close, Estevez tried to move to his left, but the group of men encircled him in a semi-circle, boxing him in. As Estevez testified, "I'm with my back to the bar, no way out. I had to protect myself." It was when Burgos came toward Estevez aggressively with his hands up, balled into fists, that Estevez pulled out his knife and stabbed Burgos once in the stomach and then ran out of the building.

In delivering the jury instructions, the trial court instructed the jury on self-defense as follows:

Now, an issue in this case is whether the defendant acted in self defense. It is a defense to the offense with which the defendant is charged if the injury to Walter Burgos 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 any attempt to commit felony battery or aggravated battery upon him.

* * *

However, the use of force likely to cause death or great bodily harm is not justifiable if you find, No. 1, the defendant was attempting to commit, committing or escaping after the commission of aggravated battery; . . .

(Emphasis added.)

After the jury rendered a guilty verdict, the trial court adjudicated Estevez guilty and sentenced him accordingly.

We hold that the trial court committed fundamental error by instructing jurors in a single aggravated battery case that the defendant's use of force was not justifiable if he was attempting to commit, committing, or escaping after commission of an aggravated battery. The fundamental error that occurred here was clearly harmful and deprived Estevez of a fair trial, as his sole defense was self-defense.

"Trial judges have wide discretion in decisions regarding jury instructions, and the appellate courts will not reverse a decision regarding an instruction in the absence of a prejudicial error that would result in a miscarriage of justice." Lewis v. State, 693 So.2d 1055, 1058 (Fla. 4th DCA 1997). "A court's decision to give a particular instruction should not be reversed `unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.'" Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002) (citation omitted).

Giles is very instructive to the result in the instant case. Estevez's case is essentially the same as that of the defendant in Giles, except that the self-defense involved in Giles was the use of non-deadly force rather than the use of deadly force, and Giles' trial counsel objected while Estevez's did not. However, the type of force has no bearing upon the resolution of this issue, and, moreover, even though Giles' counsel objected to the instruction, this court held in Giles that the error in that case constituted fundamental error.

The instruction given by the court (see infra) is based on section 776.041(1), Fla. Stat., which provides in pertinent part as follows:

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony[.]

While the charged offense of aggravated battery is indeed a "forcible felony" under section 776.08, Florida Statutes, this court noted in Giles that "the plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self defense is engaged in another, independent `forcible felony' at the time." Id. at 1265. Nevertheless, just as in Giles, the present case "was not one where the alleged aggravated battery occurred while [the defendant] was attempting to commit, committing, or escaping after the commission of some other independent forcible felony." Id.

While Estevez was alleged to have committed only one act, aggravated battery, the trial court gave an instruction that "is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self defense and a separate forcible felony." Id.; see Marshall v. State, 604 So.2d 799 (Fla.1992) (holding that section 776.041 jury instruction was proper on...