Marty v. State
| Decision Date | 16 September 2016 |
| Docket Number | No. 2D15–1218.,2D15–1218. |
| Citation | 210 So.3d 121 |
| Parties | Stephen MARTY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jean Marie Henne, of Jean M. Henne, P.A., Winter Haven, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
This is a direct appeal from a final criminal judgment and sentence. Stephen Marty was convicted of aggravated assault with a deadly weapon and sentenced to a mandatory minimum sentence of three years' imprisonment. On appeal, Marty argues that the trial court erred by: (1) failing to instruct the jury as to the legal use of nondeadly force; (2) failing to grant his motion for judgment of acquittal; and (3) failing to give an instruction on the presumption of reasonable fear of death or great bodily harm, pursuant to section 776.013(1), Florida Statutes (2014). We accept Marty's invitation to construe his first argument as an ineffective assistance of counsel claim and reverse. The face of the record demonstrates that Marty's trial counsel was ineffective for neglecting to request a jury instruction on the justifiable use of nondeadly force, the only self-defense instruction supportable by the undisputed facts presented at trial. Instead, Marty's counsel requested a self-defense instruction on the justifiable use of deadly force, which is applicable in a narrower set of circumstances as compared to nondeadly force. We can see no strategic reason to make the burden of proving self-defense more difficult, especially because self-defense was essential to Marty's theory of defense at trial. Because Marty's trial counsel's failure to request the proper self-defense jury instruction infringed on Marty's right to a fair trial, we vacate Marty's conviction and remand for a new trial. We need not address Marty's remaining arguments.
Marty and his wife were sitting in a hot tub in their backyard. Marty noticed an eleven-year-old neighbor boy sitting on a roof overlooking Marty's backyard and watching Marty and his wife. Marty told the boy to get off the roof and the boy complied. The boy then told his twenty-year-old sister, Paula Valenzuela, that something happened between him and Marty. Valenzuela went to Marty's house, accompanied by her mother, her brother who had observed Marty and his wife in the hot tub, and another younger brother. Valenzuela knocked on the screen door to Marty's front porch. After getting no answer, Valenzuela pounded on Marty's kitchen window, yelling profanity at Marty and suggesting he did not have the gumption to confront her. Still getting no answer, Valenzuela and her family left Marty's property.
Marty did not hear Valenzuela because he was still in the hot tub. But Marty's wife, who had gone inside to get dressed, told Marty that someone outside had been yelling and pounding on the window. Marty went to retrieve his cellphone and handgun from his car, which was parked in the driveway. From his driveway, Marty began calling the Polk County Sheriff's Office (PCSO). While Marty was outside, Valenzuela was driving away from her mother's house and saw Marty as she drove by. Accounts differ as to what happened next.
Valenzuela testified that she stopped her car on the side of the road in front of Marty's house, rolled down her window, and resumed insulting Marty. Valenzuela testified that Marty then pointed his gun at her and said he would kill her if she got out of the car. Valenzuela claims she told Marty that she was going to call the police, but Marty replied that he was already calling the police. At that point, Valenzuela drove around the corner and contacted the police.
Marty testified that Valenzuela parked her car on his lawn, got out of the car, and quickly approached him with both fists raised. Marty further testified that Valenzuela again profanely exclaimed that Marty did not have the gumption to face her and threatened to have her husband do physical harm to Marty's person. Marty stated that when Valenzuela got within stabbing distance, he told her that he had a gun and showed her the butt of his gun with the barrel pointed away. Marty then told Valenzuela to leave the area, at which point she left. Marty testified that his gun was loaded, but there was no round in the chamber. Marty explained that although he was not afraid of Valenzuela killing him, he was concerned that she might try to harm him or his wife or damage his property.
A PCSO Deputy responded to calls from both Marty and Valenzuela, which were made within one minute of each other. The deputy testified that Marty admitted to pointing his gun in the air and at the ground but not at Valenzuela. The deputy explained that Marty told him he showed Valenzuela the gun to let her know "he meant business." The deputy testified that Marty was extremely cooperative and turned his handgun over as soon as he was asked to do so. The deputy noted that Valenzuela was crying and hysterical when he arrived, and he had to tell Valenzuela to back away while he was interviewing Marty.
Marty was charged with aggravated assault with a deadly weapon, which carries a three-year mandatory minimum sentence. During the jury trial, Marty's counsel requested Florida's standard jury instruction on the justifiable use of deadly force in self-defense. See Fla. Std. Jury Instr. (Crim.) 3.6(f). But Marty's counsel neglected to request a jury instruction on the justifiable use of nondeadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(g). As modified for Marty's trial, instruction 3.6(f) read as follows:
Conversely, instruction 3.6(g) which addresses the justifiable use of nondeadly force, reads as follows:
To summarize, "[a] person is justified in using ... deadly force if he or she reasonably believes that using ... such force is necessary to prevent imminent death or great bodily harm to himself ... or another or to prevent the imminent commission of a forcible felony." § 776.012(2). However, nondeadly force may be used when the defendant "reasonably believes that such conduct is necessary to defend himself ... or another against ... imminent use of unlawful force." § 776.012(1). Nondeadly force may also be used where the defendant "reasonably believes that such conduct is necessary to prevent or terminate ... trespass on, or other tortious criminal interference with, either real property ... or personal property. " § 776.031(1) (emphasis added).
The jury found Marty guilty of aggravated assault with a deadly weapon. During Marty's sentencing hearing, Marty's counsel referenced a presentencing report which contained a statement from Valenzuela explaining that she did not want Marty to be imprisoned. The transcript from the sentencing hearing also indicates that the trial court expressed dismay at sentencing Marty to any term of incarceration. The trial court stated, Failing to find a way around the mandatory minimum sentence, the trial court sentenced Marty to three years in prison. Marty now timely appeals.
Marty presents his argument primarily as one of fundamental error. However, in the alternative, Marty suggests that this court may also reverse based on ineffective assistance of counsel. We believe that ineffective assistance is the proper ground for addressing the core of Marty's issues on appeal.
Claims of ineffective assistance of counsel are "not normally cognizable on direct appeal." Forget v. State, 782 So.2d 410, 413 (Fla. 2d DCA 2001). They may be reviewable, however, on direct appeal where "the ineffectiveness is apparent from the face of the record and it would be a waste of judicial resources to require the trial court to address the issue." Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987) (). To establish ineffective assistance of counsel a defendant "must show that counsel's performance was deficient" and "that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, 466 U.S. 668, 687, 104...
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