Morgan v. State, Case No. 5D12-1829

CourtCourt of Appeal of Florida (US)
PartiesDONTE TERELL MORGAN, Appellant, v. STATE OF FLORIDA, Appellee.
Docket NumberCase No. 5D12-1829
Decision Date22 November 2013


Appeal from the Circuit Court

for Orange County,

Janet C. Thorpe, Judge.

James S. Purdy, Public Defender, and

Kevin R. Holtz, Assistant Public Defender,

Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Anthony J. Golden,

Assistant Attorney General, Daytona

Beach, for Appellee.


Donte T. Morgan appeals his convictions of second-degree murder with a firearm.1 Morgan argues that the trial court's self-defense jury instructions werefundamentally flawed and that the court should have granted his motions for judgment of acquittal. We affirm in part and reverse in part.


Benjamin Hamilton shared a three-bedroom apartment with Michael Wittig and his girlfriend, Amanda Hines. In the early morning of August 17, 2011, Hamilton was at a local bar with Wittig, Hines, Joel Abbott, and Cassandra Word. While at the bar, Hamilton met Morgan. When the bar closed, the group, including Morgan, went back to the shared apartment. There, Hamilton and Morgan went into Hamilton's bedroom. As they did, Abbott left the apartment and went to his car for cigarettes, while Word, Wittig, and Hines remained in the living room. Word and Wittig did not know why Morgan went into Hamilton's bedroom, but knew that Hamilton sold cocaine.

No one saw Morgan or Hamilton carrying any firearms as they entered the bedroom, but, according to Wittig, Hamilton did not own a gun. About a minute after the men entered the bedroom, there was a loud pop. Hines went to investigate the noise, thinking that it might have come from the kitchen, located near Hamilton's bedroom. While Hines was in the kitchen, there was a second loud pop. Hines knocked on Hamilton's bedroom door, called his name, and opened the door. Almost immediately, Wittig heard Hines squeal and, a second or two later, he heard a third loud pop. Wittig estimated that the last two pops were between two and four seconds apart. Word described the time between the initial gunshot and the second gunshot as less than ten seconds, with the third gunshot following within a few seconds after Hines entered into Hamilton's bedroom.

Morgan then calmly entered the living room. He said nothing to indicate that Hamilton or Hines attacked or threatened him and had no visible injuries or indication that he had been in a struggle. Instead, he pointed a gun at Word and Wittig, and demanded their driver's licenses. He put the gun in his pocket, "moseying on out" of the apartment, nonchalantly passing Abbott in the stairwell. Wittig and Abbott entered Hamilton's bedroom, saw Hines on the bedroom floor and Hamilton leaning against the dresser. Abbott attempted CPR on Hamilton, while Word contacted police. Hamilton was pronounced dead at the scene and Hines died at the hospital.

Morgan was subsequently arrested after Wittig, Word, and Abbott positively identified him from a photo lineup. Wittig's and Word's driver's licenses were found in Morgan's apartment. In Hamilton's bedroom, the crime scene investigator found two baggies on the dresser containing a white, powdery substance, and three spent projectiles, all fired from the same .40 caliber firearm, though no firearm was recovered. The medical examiner determined that Hamilton was shot twice, once in the abdomen and once through the upper back. However, she could not determine the distance between Morgan and Hamilton during the shooting or which wound was inflicted first. The medical examiner determined that Hines was shot once in the lower back from a distance of two feet. Neither Hamilton, Hines nor Morgan had any injuries consistent with a struggle.

Morgan claimed that he acted in self defense. According to him, while at the bar, Hamilton agreed to sell him an ounce of cocaine. They went to Hamilton's apartment and entered his bedroom. Only then did Hamilton disclose that he only had a half ounce of cocaine and offered to call another person to bring more cocaine. Morgandeclined and agreed to purchase just the half ounce. He had $1,000 with him, and when he started to retrieve the money from his pocket, Hamilton pulled a gun and attempted to rob him. They struggled, and as the gun turned toward Hamilton, it fired, hitting him. As Hamilton fell, Morgan said he "reflexively" fired the gun again, this time striking Hamilton in the back. As he moved away from Hamilton with his back to the bedroom door, he was struck from behind. He spun around, firing the gun without looking at his target. He then ran back out into the living room with the gun and robbed Wittig and Word. He denied bringing a gun to the apartment.

Morgan was indicted on two counts of first-degree murder with a firearm in the shooting deaths of Hamilton and Hines, and two counts of robbery with a firearm for taking Word's and Wittig's driver's licenses. At trial, the primary issue for the jury's consideration was whether Morgan acted in self defense. Morgan moved for a judgment of acquittal on the murder charges, which the court denied. The trial court also denied Morgan's requested special jury instruction on the duty to retreat for an individual engaged in an unlawful activity. Instead, without objection, the trial court instructed the jury on the forcible-felony exception to self defense and the standard jury instruction on the "Stand Your Ground" law, section 776.013(3), Florida Statutes (2011). The jury found Morgan guilty of two counts of the lesser-included offense of second-degree murder and two counts of robbery with a firearm, with the additional findings that Morgan discharged a firearm in the commission of the murders and possessed a firearm when robbing Wittig and Word. He received two consecutive life sentences for the murders and concurrent ten-year minimum mandatory sentences for each robbery conviction.

Jury Instructions

The first issue we address is whether the trial court erred by instructing the jury on the forcible-felony exception to the justifiable use of deadly force. Self defense is "an affirmative defense that has the effect of legally excusing the defendant from an act that would otherwise be a criminal offense." Mosansky v. State, 33 So. 3d 756, 758 (Fla. 1st DCA 2010). In asserting self defense, the defendant acknowledges doing the act charged, but seeks to justify it as necessary to protect himself from harm. See Hopson v. State, 168 So. 810, 811 (Fla. 1936). The forcible-felony instruction on self defense explains that a claim of self defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony. § 776.041, Fla. Stat. (2011); Fla. Std. Jury Instr. (Crim.) 3.6(f) (2011). Its plain language makes clear this instruction should be given only when the person is engaged in another, independent "forcible felony" at the time that person allegedly acted in self defense. Although section 776.041(1) disallows self defense to a person "attempting to commit, committing, or escaping after the commission of a forcible felony," the decisional law holds the statute applies only when the defendant is charged with a separate independent felony. See Martinez v. State, 981 So. 2d 449, 457 (Fla. 2008) (holding that it is error for trial court to read forcible-felony instruction to jury where defendant is not charged with independent forcible felony); In re Standard Jury Instructions in Criminal Cases—Report No. 2007-3, 976 So. 2d 1081, 1087 (Fla. 2008) (expressly stating that "forcible-felony" instruction is to be given only if defendant is charged withindependent forcible felony); see also Stewart v. State, 113 So. 3d 914, 916 (Fla. 2d DCA 2013); Sloss v. State, 45 So. 3d 66, 68 (Fla. 5th DCA 2010).

In this case, since Morgan was not charged with robbing (or attempting to rob) Hamilton, the trial court erred by instructing the jury that, if they found that Morgan was "attempting to commit, committing, or escaping after the commission of robbery," he could not use deadly force in self defense. The robberies of Word and Wittig occurred after the time Morgan claims to have acted in self defense. As a result, those robberies could not serve as the independent crime needed to allow the forcible-felony jury instructions. See, e.g., Crimins v. State, 113 So. 3d 945, 948 (Fla. 5th DCA 2013) (finding fundamental error in instructing jury on forcible-felony exception where aggravated battery and attempted battery charges arose from same underlying facts and defendant raised self defense against both charges, based on theory that alleged victim initiated physical violence by attacking defendant with baseball bat); Santiago v. State, 88 So. 3d 1020 (Fla. 2d DCA 2012) (holding that where defendant shot at three individuals, killing one and injuring another, and was charged with one count of murder and two counts of attempted murder, it was error to give forcible-felony instruction as defendant who claimed self defense regarding all three counts was not engaged in separate and independent forcible felony at time he allegedly acted in self defense).

Because Morgan did not object to the forcible-felony exception instruction, we must determine whether its use constituted fundamental error. Jury instructions are subject to the contemporaneous objection rule. Absent an objection at trial, erroneous instructions can be considered on appeal only if fundamental error occurred. See State v. Weaver, 957 So. 2d 586, 588 (Fla. 2007). However, not all instructional errors arefundamental. E.g., Garzon v. State, 980 So. 2d 1038, 1042 (Fla. 2008). When a challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs when a jury instruction is so flawed as...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT