Martinez v. State

• Decision Date: 10 May 2006
• Docket Number: No. 3D04-1521.,3D04-1521.
• Parties: Eric MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

933 So.2d 1155

Eric MARTINEZ, Appellant, v. The STATE of Florida, Appellee.

No. 3D04-1521.

District Court of Appeal of Florida, Third District.

May 10, 2006.

Rehearing and Rehearing En Banc Denied July 5, 2006.

COPYRIGHT MATERIAL OMITTED

Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before GREEN, CORTIÑAS, and ROTHENBERG, JJ.

ROTHENBERG, Judge.

The sole issue raised in this appeal is whether the self-defense or justifiable use of deadly force instruction provided to the jury constitutes reversible error. The information charges the defendant with committing an attempted first degree premeditated murder upon his girlfriend, Ms. Rijo, and in the course of committing the attempted premeditated murder upon her, committing an aggravated battery with a deadly weapon. In charging the jury on the laws applicable to the case, the trial court included an instruction on Justifiable Use of Deadly Force, as set forth in the Florida Standard Jury Instruction (Criminal) 3.6(f). While the defendant did not object below, he now objects to a portion of the instruction given, and seeks reversal of his conviction on that basis. The section in question may be given when there is evidence that the defendant may have been the initial aggressor, and appears as follows in the Standard Jury Instructions:

Aggressor § 776.041, Fla. Stat.

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:

Give if applicable

1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or

Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given.

2. (Defendant) initially provoked the use of force against [himself] [herself], unless:

a. The force asserted toward the defendant was so great that [he][she] reasonably believed that [he][she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using force likely to cause death or great bodily harm to (assailant).

b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he][she] wanted to withdraw and stop the use of force likely to cause death or great bodily harm, but (assailant) continued or resumed the use of force.

In reading this portion of the instruction, the trial court inserted the offenses of attempted murder and/or aggravated battery as the applicable forcible felonies. Therefore, the instruction that was given reads as follows:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:

1. Eric Martinez was attempting to commit, committing, or escaping after the commission of an Attempted Murder and/or an Aggravated Battery . . . .

We agree that to give this instruction absent an independent forcible felony is error. Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). See also Carter v State, 889 So.2d 937 (Fla. 5th DCA 2004), review denied, 903 So.2d 190 (Fla.2005); Cleveland v. State, 887 So.2d 362 (Fla. 5th DCA 2004); Hernandez v. State, 884 So.2d 281 (Fla. 2d DCA 2004); Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA), review denied, 891 So.2d 553 (Fla.2004); Hickson v. State, 873 So.2d 474 (Fla. 4th DCA 2004); Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004); Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003); Estevez v. Crosby, 858 So.2d 376 (Fla. 4th DCA 2003).

The issue we must resolve, however, is whether the error constitutes fundamental error, which if not considered, would result in a miscarriage of justice. After a careful review of the complete record, we conclude that the error was not fundamental error and, therefore, affirm.

The Florida Supreme Court has consistently held that jury instructions are subject to the contemporaneous objection rule. See Archer v. State, 673 So.2d 17 (Fla.), cert. denied, 519 U.S. 876, 117 S.Ct. 197, 136 L.Ed.2d 134 (1996); Armstrong v. State, 642 So.2d 730 (Fla.1994), cert. denied, 514 U.S. 1085, 115 S.Ct. 1799, 131 L.Ed.2d 726 (1995); Parker v. State, 641 So.2d 369 (Fla.1994), cert. denied, 513 U.S. 1131, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995). Absent an objection at trial, the complained-of instruction may be raised on appeal only if fundamental error has occurred. See Sochor v. State, 619 So.2d 285 (Fla.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 596 (1993); White v. State, 446 So.2d 1031 (Fla.1984).

In the instant case, the defendant and his attorney did not object to the instruction as read. In fact, the defendant's attorney affirmatively agreed to the specific wording of the instruction given. As the defendant did not object to the instruction, and in fact affirmatively agreed to it, the claimed error was not preserved for appeal and, therefore, not reversible error unless we conclude that it was fundamental error.

The defendant argues that the instruction given, constitutes fundamental error because it "negated his only defense of self-defense." Interestingly, while this was the defendant's argument and position on appeal, that the error was fundamental error because it negated his sole defense of self-defense, the dissent appears to have overlooked that this was the defendant's argument, and overlooks the fact that self-defense was not the defendant's sole defense, a distinction we find extremely relevant in our determination that the instructional error did not constitute fundamental error. In fact, were we to conclude that the erroneous instruction had "negated his only defense of self-defense" we most likely would have agreed that fundamental error occurred. A careful review of the entire record, however, reflects that self-defense was not the defendant's sole defense, it was not even his primary defense, this defense was unsupported by the evidence, and self-defense was all but abandoned by the defendant's attorney in closing argument.

WHAT IS FUNDAMENTAL ERROR?

Fundamental error is error which "reach[es] 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." State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)(quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). See also Archer, 673 So.2d at 20. "Thus, for error to meet this standard, it must follow that the error prejudiced the defendant. Therefore, all fundamental error is harmful error." Reed v. State, 837 So.2d 366, 370 (Fla.2002). Fundamental error is an error that would result in a miscarriage of justice if not considered, Am. Sur. Co. of N.Y. v. Coblentz, 381 F.2d 185 (5th Cir.1967), and is of such a nature that it essentially amounts to a denial of due process. Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So.2d 1231 (Fla. 1st DCA 1995). Fundamental error, therefore, refers to error that goes to the very heart of the judicial process, not to mistakes as to which arguably correct law or rule applies, or as to the application of such a rule of law to the facts in a case. Fleischer v. Fleischer, 586 So.2d 1253 (Fla. 4th DCA 1991). Thus, fundamental error occurs if the error extinguishes a party's right to a fair trial. Hooters.

DO ERRORS IN JURY INSTRUCTIONS NECESSARILY CONSTITUTE FUNDAMENTAL ERROR?

The Florida Supreme Court has consistently answered this question in the negative:

This Court recently reiterated longstanding principles concerning preservation of instructional error:

Instructions . . . are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. To justify not imposing the contemporaneous objection rule, 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. In other words, fundamental error occurs only when the omission is pertinent or material to what the jury must consider to convict.

Cardenas v. State, 867 So.2d 384, 390-91 (Fla.2004)(quoting Reed v. State, 837 So.2d 366, 370 (Fla.2002)(quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (citations and quotation marks omitted)(emphasis added))).

The dissent, however, appears to disagree with this long-standing principle, as well as with the wealth of law on the subject, and seeks for this court to apply a per se reversible error standard whenever an unobjected-to instruction is given regarding a defense at trial. This position is not only contrary to the law, but, in this case, is all the more glaringly an improper application of the fundamental error analysis where the instruction was agreed to by trial counsel, and self-defense was not the defendant's sole defense, not his primary defense, and was only half-heartedly argued by his lawyer at trial.

THE DISTINCTION BETWEEN ERRORS RELATING TO THE CRIME CHARGED AND THOSE WHICH RELATE TO A DEFENSE

A review of the cases decided by the Florida Supreme Court reflects that there is a distinction between jury instruction errors which relate to a crime charged and those which relate to a defense raised at trial.

In Sochor v. State, 619 So.2d 285 (Fla.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 596 (1993), the Florida Supreme Court upheld a sentence of death, despite the trial court's failure to instruct the jury on voluntary intoxication as a defense to felony murder based upon the underlying felony of kidnapping, a specific intent crime. Sochor's attorney, as in the instant case, failed to object or to request an alternative instruction. The defendant urged that because this was a capital murder prosecution, requiring "heightened" scrutiny, the contemporaneous objection requirement should carry less weight. See Swafford...