Mohammed v. State, Case No. 5D19-1341

CourtCourt of Appeal of Florida (US)
Writing for the CourtTRAVER, J.
Citation309 So.3d 269
Docket NumberCase No. 5D19-1341
Decision Date11 December 2020
Parties Rashad MOHAMMED, Appellant, v. STATE of Florida, Appellee.

309 So.3d 269

Rashad MOHAMMED, Appellant,

STATE of Florida, Appellee.

Case No. 5D19-1341

District Court of Appeal of Florida, Fifth District.

Opinion filed December 11, 2020
Rehearing Denied January 11, 2021

Michelle Medina, of The Baez Law Firm, Miami, and Michelle R. Walsh, of Law Offices of Michelle R. Walsh, P.A., Miami, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.


Rashad Mohammed appeals his judgment and sentence for the attempted second-degree murder of Samantha Klein. We affirm without prejudice for Mohammed to pursue relief under Florida Rule of Criminal Procedure 3.850.

I. Background

Mohammed and Alicia Klein are the unmarried parents of a two-year-old girl. He and Alicia quarreled, and she ended their engagement. Alicia and her sister, Samantha, subsequently went to Mohammed's house to retrieve Alicia's belongings. Mohammed answered the front door and then walked back to the house's small kitchen, where he was eating. Although Mohammed and Alicia had argued the evening before, his demeanor was calm. Alicia entered the kitchen with the couple's daughter and noticed a shotgun next to the refrigerator. She asked Mohammed to disassemble it. By this time, Samantha had entered the kitchen and stood next to Alicia.

Alicia testified that rather than disassemble the shotgun, Mohammed picked it up and pointed it at her and their daughter. She heard him say, "This is how it has to be." Alicia stepped forward and pushed the gun away. The gun discharged, hitting Samantha in the face and shoulder. Alicia moved forward with her hand on the gun's barrel so Mohammed would not raise it again. He backed away, eventually leaving the house with the shotgun and speeding off.

When apprehended, Mohammed waived his right to remain silent and informed law enforcement that he had been trying to comply with Alicia's request to disassemble the shotgun when it discharged. He explained he held the gun at a forty-five-degree angle to clear it by pressing a release located near the trigger and racking the action to eject the shells. Mohammed also told law enforcement that when he tried to eject the ammunition, Alicia and Samantha ran toward him. Mohammed insisted he did not intend to shoot anyone, and the gun discharged because Alicia pushed it. Mohammed's defense at trial was that the shooting was accidental.

The trial court delivered the standard instruction for attempted second-degree murder, but failed to read the standard instruction "Introduction to Attempted Homicide," which defines both excusable and justifiable homicide. Fla. Std. Jury Instr. (Crim.) 6.1. Mohammed never requested the introductory instruction and lodged no objection following the incomplete charge. 1

The jury found Mohammed guilty of attempted second-degree murder, finding he had discharged a firearm and caused Samantha great bodily harm. The jury also found Mohammed guilty of aggravated assault

309 So.3d 272

with a firearm and child abuse, convictions that are not at issue here. The trial court sentenced Mohammed to twenty-five years in prison, the minimum-mandatory sentence.

II. Jury Instructions and Fundamental Error

"Jury instruction errors are subject to the contemporaneous objection rule." Knight v. State , 286 So. 3d 147, 151 (Fla. 2019) (first citing State v. Weaver , 957 So. 2d 586, 588 (Fla. 2007) ; and then citing State v. Delva , 575 So. 2d 643, 644 (Fla. 1991) ). If, as here, there is no contemporaneous objection at trial, a defendant is entitled to relief only if fundamental error occurred. See id . Fundamental error "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." Id. (quoting Brown v. State , 124 So. 2d 481, 484 (Fla. 1960) ).

A trial court's failure to instruct the jury on an element of the offense of conviction is fundamental error only if the defendant disputes the element at trial. See Delva , 575 So. 2d at 645. If the instructional error involves a defense, the existence of fundamental error depends on whether the trial court issued an incorrect instruction or issued no instruction. Fields v. State , 988 So. 2d 1185, 1189 n.4 (Fla. 5th DCA 2008). If the trial court issues an incorrect defense instruction, "fundamental error only occurs where the instruction is so flawed as to deprive the defendant claiming the defense of a fair trial." Woods v. State , 95 So. 3d 925, 927 (Fla. 5th DCA 2012) (citing Smith v. State, 76 So. 3d 379, 385 (Fla. 1st DCA 2011) ). If the trial court issues no instruction, no fundamental error occurs because "[f]ailure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error." Sochor v. State , 619 So. 2d 285, 290 (Fla. 1993) ; see also Gregory v. State , 211 So. 3d 292, 293 (Fla. 4th DCA 2017) (finding no fundamental error when defendant did not request, and trial court did not issue, a self-defense instruction); Bridges v. State , 878 So. 2d 483, 484 (Fla. 4th DCA 2004) (same); Muteei v. State , 708 So. 2d 626, 628–29 (Fla. 3d DCA 1998) (same).

In Knight , the Florida Supreme Court announced a new test to determine fundamental error in jury instructions:

Properly understood, the fundamental error test for jury instructions cannot be met where, as in this case, there was no error in the jury instruction for the offense of conviction and there is no claim that the evidence at trial was insufficient to support that conviction. In such circumstances, one cannot plausibly claim that the conviction ‘could not have been obtained’ without the erroneous lesser included offense instruction or that the error vitiated the basic validity of the trial.

286 So. 3d at 151 ; see Roberts v. State , 299 So. 3d 9, 12 (Fla. 4th DCA 2020) (describing the Knight test as a "new rule of law").

In Knight ’s wake, we must now determine whether it is fundamental error not to issue the Introduction to Attempted Homicide instruction when the jury returns a conviction for attempted second-degree murder. We begin by observing that Florida's standard criminal jury instructions direct trial courts to deliver the standard instruction for Introduction to Attempted Homicide in all cases involving attempted murder and attempted manslaughter. Fla. Std. Jury Instr. (Crim.) 6.1 ("Read in all attempted murder and attempted manslaughter by act cases."); Fla. Std. Jury Instr. (Crim.) 6.4 ("In the absence of an express concession that the attempted homicide was not excusable or

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justified, the trial judge must also read Instruction 6.1, Introduction to Attempted Homicide."). The instruction defines both excusable and justifiable homicide. Fla. Std. Jury Instr. (Crim.) 6.1; see also §§ 782.02 (defining justifiable homicide), 782.03 (defining excusable homicide), Fla. Stat. (2019).

We have recently observed, though, that failing to issue the parallel "Introduction to Homicide" standard instruction is not always fundamental error. See Melendez v. State , 45 Fla. L. Weekly D1281, ––– So.3d –––– (Fla. 5th DCA May 29, 2020). Like Mohammed, Melendez relied on a Florida Supreme Court case finding fundamental error when a trial court issued a manslaughter...

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