Jackson v. State

• Decision Date: 13 November 2015
• Docket Number: No. 5D14–1400.,5D14–1400.
• Citation: 179 So.3d 443
• Parties: Kenneth Earl JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

179 So.3d 443

Kenneth Earl JACKSON, Appellant,

v.STATE of Florida, Appellee.

No. 5D14–1400.

District Court of Appeal of Florida, Fifth District.

Nov. 13, 2015.

Tad A. Yates and Christine A. Wasula, of Tad A. Yates, P.A., Orlando, and William R. Ponall, of Snure & Ponall, P.A. Winter Park, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips and Kristen L. Davenport, Assistant Attorneys General, Daytona Beach, for Appellee.

LAWSON, C.J.

Kenneth Earl Jackson appeals the judgment and sentence imposed by the trial court after his conviction, by a jury, of battery and aggravated assault with a firearm. Jackson argues fundamental error as to three jury instruction issues relating to his sole defense of self-defense; fundamental error in two misstatements of law during the prosecutor's closing argument, also relating to the self-defense issue; and, ineffective assistance of counsel for failing to request a use of deadly force self-defense instruction. Although the State concedes errors in the jury instructions and the prosecutor's closing statement (but not with respect to the last issue, arguing instead that trial counsel might have a reasonable explanation for her apparent error), it also argues that none of the admitted errors rise to the level of fundamental error. While any one of these errors, in isolation, might not warrant relief, we readily conclude that the combination of errors was significant enough to undermine confidence in the trial's outcome, at its foundation. See Barnett v. State, 121 So.3d 643, 647 (Fla. 4th DCA 2013) ("Courts must analyze the totality of the record to determine if an errant instruction is fundamental error." (quoting Dempsey v. State, 72 So.3d 258, 261 (Fla. 4th DCA 2011) )); Jassan v. State, 749 So.2d 511, 512 (Fla. 2d DCA 1999) ("A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process." (citing Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) )). We will briefly outline the errors to aid the parties and the trial court on remand.

To give context, Jackson was originally charged with aggravated battery and aggravated assault. The State alleged that Jackson struck the victim with a small handgun in the face or head (the battery) and pointed the gun at the victim (the assault). Jackson admitted the conduct, but claimed that he acted in self-defense after the alleged victim, Mordechai Saygyaya, attacked him. The incident occurred in Jackson's apartment, which was solely occupied by Jackson and Saygyaya at the time of the incident. Saygyaya testified that he did not attack Jackson or threaten Jackson in any way before Jackson assaulted and battered him. Although the battery caused a surface laceration, which bled profusely, Saygyaya did not need or seek medical attention-and the parties agreed at trial (in discussions outside the presence of the jury) that Saygyaya did not suffer "great bodily harm."

Jackson's trial counsel decided not to request an instruction on the use of deadly force in self-defense based upon the State's concession that Saygyaya did not suffer "great bodily harm." The problem with this decision is that it was still possible that the jury might have determined that Jackson used deadly force by striking Saygyaya in the head with the gun. See Cruz v. State, 971 So.2d 178, 182 (Fla. 5th DCA 2007) (citing DeLuge v. State, 710 So.2d 83, 83–84 (Fla. 5th DCA 1998) ); Dawson v. State, 338 So.2d 242, 243 n. 2 (Fla. 3d DCA 1976) ("We note that a gun may be used as a club, stick or bludgeon, and thus is a deadly weapon in this capacity as well as in discharging bullets." (citing Wade v. Wainwright, 266 So.2d 378 (Fla. 4th DCA 1972) )).¹ And, the prosecutor argued to the jury that it should find Jackson's striking of Saygyaya, with the firearm, to be deadly force. If Jackson's counsel believed that the force used in the attack was so minimal that it could not constitute deadly force as a matter of law, she should have objected to this argument or otherwise sought a legal ruling on the issue before foregoing the jury instruction. On appeal, however, both parties agree that this portion of the prosecutor's argument was not improper because they agree that the level of force used by Jackson, when striking Saygyaya with the gun, was a jury question.

The problem (of no deadly force instruction) was further exacerbated by the first admitted error in the prosecutor's argument. That is, the prosecutor also told the jury that Jackson used deadly force in the assault by pointing the gun at Saygyaya. Although this probably sounded correct to a lay jury, both parties agree that it was a misstatement of law—because the mere display of a gun, or even pointing a gun at another's head or heart without firing it, is not deadly force as a matter of law.See Cunningham v. State, 159 So.3d 275, 277–78 (Fla. 4th DCA 2015) (citing Carter v. State, 115 So.3d 1031, 1037 n. 3 (Fla. 4th DCA 2013) ); Rivero v. State, 871 So.2d 953, 954 (Fla. 3d DCA 2004) ("The use-of-force statute looks to the amount of force which is actually used. Pointing a firearm (without firing it) amounts to the use of nondeadly force." (emphasis omitted) (citing Stewart v. State, 672 So.2d 865, 868 (Fla. 2d DCA 1996) )). Jackson's counsel did not object to this misstatement of law, and it was not corrected by any jury instruction. So, with respect to the assault charge, the prosecutor's error very likely misled the jury into believing that Jackson used deadly force. And, with no use of deadly force self-defense instruction given, the jury could have also concluded that Jackson's use of deadly force could not be excused as self-defense under any circumstance—thereby depriving Jackson of his sole defense to the charge.

Further compounding the problem was the wording of one of the paragraphs in the standard instruction on the use of nondeadly force in self-defense, which incorporated the language in section 776.013(3), Florida Statutes (2012), concerning circumstances when there is no duty to retreat before using deadly force. This error has been thoroughly explained in Neal v. State, 169 So.3d 158, 164 (Fla. 4th DCA 2015), Martin v. State, 154 So.3d 1161 (Fla. 2d DCA 2015), Sims v. State, 140 So.3d 1000, 1005 n. 7 (Fla. 1st DCA 2014), Rangel v. State, 132 So.3d 844, 847–48 (Fla. 2d DCA 2013), and Talley v. State, 106 So.3d 1015, 1017–18 (Fla. 2d DCA 2013). In summary, this error results in an instruction explaining to the jury that "a defendant has no duty to retreat and has the right to stand his ground and meet force with force only if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony." Talley, 106 So.3d at 1017. This error was further exacerbated by the other admitted error in the prosecutor's closing statement where, without objection, the prosecutor quoted the erroneous portion of the instruction verbatim and commented:

Ladies and Gentlemen, there was absolutely no testimony here that, at any point in time, did the defendant feel that the—that the victim's actions would cause death or great bodily harm. Quite the opposite. Mr. Saygyaya had told you that he had no weapons, he had no guns; he had nothing. He had nothing that would cause death or great bodily harm to defendant.

The prosecutor's express reliance on the erroneous jury instruction imported the standard for using deadly force into the instruction on nondeadly force, and increased the likelihood that the jury would conclude that Jackson was not justified in using any force against Saygyaya unless Jackson thought that he was being threatened with deadly force.

Next, the standard jury instruction on the justifiable use of nondeadly force given to the jury in this case contained a section stating, "[a]n issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Kenneth Jackson is charged if the injury to Mordechai Saygyaya resulted from the justifiable use of non-deadly force." (emphasis added). Although Saygyaya did suffer an injury in connection with the battery charge, injury was not an element of...