Franklin v. State
Decision Date | 26 June 2019 |
Docket Number | No. 4D18-1410,4D18-1410 |
Citation | 275 So.3d 192 |
Parties | Lewis Darren FRANKLIN, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Timothy Wang, Assistant Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Lewis Franklin, appeals his convictions and ten-year sentence for fleeing or attempting to elude causing serious bodily injury; leaving the scene of a crash involving serious bodily injury; resisting an officer without violence; leaving the scene of a crash involving property damage; and driving while license suspended. We write only to address Appellant's challenge to Florida Standard Jury Instruction (Criminal) 3.6(k)6., as applied to his affirmative defense of duress. On that argument and all others raised, we affirm.
The State presented the following evidence at trial. A Riviera Beach police officer saw Appellant's vehicle fail to come to a complete stop at a stop sign. The officer activated her lights and siren, and the vehicle pulled over but did not stop; it then returned to the road. A pursuit ensued, during which Appellant's car reached 70 miles per hour ("mph") in a 25 mph speed zone. Appellant drove through five stop signs until "t-boning" another car in an intersection and then veering off the road and crashing into a Popeye's restaurant.
Immediately after the crash, Appellant climbed out of the driver's side window and ran across the street, running into a police car as he fled. Appellant kept running away from the accident scene as uniformed officers told him to stop. Appellant did not stop until an officer "tased" him. The driver of the car that was hit by Appellant's vehicle was transported away in a coma. He sustained a traumatic brain injury and is now disabled.
The State's theory of the case was that Appellant fled because he was on probation and driving on a suspended license. Appellant's theory of defense was that he acted out of duress. He testified that his front seat passenger, who he knew only as "Black," compelled him to flee at gunpoint. He claimed to have fled the scene after the crash because Black was still pointing a gun at him.
Appellant's son, the son's fiancée, and another woman were in the backseat. The fiancée testified that Black said he had guns, but admitted she failed to so inform the police when questioned after the crash. The State submitted police dash-cam video which shows that the backseat passengers were much slower to exit the SUV than Appellant and they did not flee. An individual matching Appellant's description of Black was seen running from Appellant's vehicle. He was never located by police.
During the charge conference, defense counsel affirmatively agreed to the standard jury instruction on duress, requesting only one additional sentence (italicized below). The trial court so instructed the jury on duress as follows:
(Emphasis added); see Fla. Std. Jury Instr. (Crim.) 3.6(k).
The jury found Appellant guilty on all counts.
On appeal, Appellant argues that the inclusion of element 6 in the jury instruction on duress was fundamental error. He concedes that this element is part of the standard jury instruction, but contends that it is not a correct statement of the common law defense of duress.
Jury instructions "are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred." Martinez v. State , 981 So. 2d 449, 455 (Fla. 2008) (quoting State v. Delva , 575 So. 2d 643, 644 (Fla. 1991) ). However, "[t]he invited error doctrine provides that fundamental error may be waived where defense counsel affirmatively agrees to an improper jury instruction." Morgan v. State , 146 So. 3d 508, 512 (Fla. 5th DCA 2014) (citing Universal Ins. Co. of N. Am. v. Warfel , 82 So. 3d 47, 65 (Fla. 2012) ). The rationale is that "a party may not make or invite error at trial and then take advantage of the error on appeal." Id. (quoting Sheffield v. Superior Ins. Co. , 800 So. 2d 197, 202 (Fla. 2001) ); see also Joyner v. State , 41 So. 3d 306, 307 (Fla. 1st DCA 2010) () (citation and internal quotation marks omitted)).
Here, Appellant not only failed to object to the now challenged element of the jury instruction, he affirmatively agreed to the entire instruction—with the addition of one sentence which was included at his request. Thus, any error in the instruction was waived, and we affirm on this issue.
We nonetheless address Appellant's contention that the inclusion of element 6 in instruction 3.6(k) is in derogation of the common law with respect to the defense of duress. No Florida statute authorizes "duress" as a defense to any of the crimes with which Appellant was charged. Thus, courts must look to the common law. See § 2.01, Fla. Stat. (2017). Prior to the 1998 adoption of instruction 3.6(k), this court articulated the defense of duress as follows:
Aljak v. State , 681 So. 2d 896, 897 (Fla. 4th DCA 1996) ( )(quoting Corujo v. State , 424 So. 2d 43, 44 (Fla. 2d DCA 1982), rev. denied, 434 So. 2d 886 (Fla. 1983) ). In neither Hall nor Koontz was the "outweigh the harm" element included in the discussion of the defense of duress (also referred to as "compulsion" or "coercion"). See Hall , 187 So. at 408-09 ; Koontz , 204 So. 2d at 226-27. These cases provide support for an argument that, prior to the adoption of standard jury instruction 3.6(k), element 6 was not traditionally part of the common law defense of coercion or duress.1
On the other hand, in Driggers v. State , 917 So. 2d 329 (Fla. 5th DCA 2005), the Fifth District said that Instruction 3.6(k) "derives from the common law" and "encapsulate[s]" the "defense of duress." Id. at 331. We followed Driggers in Mickel v. State , 929 So. 2d 1192, 1196 (Fla. 4th DCA 2006) and quoted that...
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