Muteei v. State

• Decision Date: 18 March 1998
• Docket Number: No. 96-3050,96-3050
• Citation: 708 So.2d 626
• Parties: 23 Fla. L. Weekly D767 Abdullah Hakeem MUTEEI, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 626

708 So.2d 626

23 Fla. L. Weekly D767

Abdullah Hakeem MUTEEI, Appellant, v. The STATE of Florida, Appellee.

No. 96-3050.

District Court of Appeal of Florida Third District.

March 18, 1998.

Bennett H. Brummer, Public Defender, and Louis K. Nicholas, II, Special Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Sandra S. Jaggard, Assistant Attorney General, for appellee.

Before GERSTEN, FLETCHER and SORONDO, JJ.

FLETCHER, Judge.

Abdullah Hakeem Muteei appeals his convictions for attempted first-degree murder, use of a firearm in the commission of a felony, shooting into an occupied vehicle, and battery, contending that the trial court committed fundamental error by failing to give a self-defense jury instruction. We affirm his convictions.

On the fateful day of Muteei's offenses, his ex-wife, Naomi Collins, drove her friend Neville Blake's car, picking up her son ¹ from day care and Blake from his place of work. When they arrived at Collins' home Muteei was there waiting. When Collins opened the back door of her car to remove her son, she saw that Muteei was holding a gun. Muteei and Collins began to argue and then struggle. Both fell to the ground and fought to get the gun which had fallen, until Muteei dragged Collins away from the gun and picked it up. He then ran to the front passenger side of the car where Blake had remained sitting and shot three times into the car through the side window and twice through the front windshield, hitting Blake several times. Muteei took Collins' son out of the back of the car, then rode off alone on his bicycle.

At trial, Muteei testified that he had found the gun that day while working on a customer's yard and was taking it to his cousin, only stopping at Collins' house to see if she was there so that he could take their daughter home. He claimed that he struggled with Collins when she attempted to take the gun away from him. He also claimed that he saw Blake moving inside the car and shot at him only when he saw him raise his arms, believing that Blake had a gun and was about to shoot.

The evidence also reflected that the driver's side window was shattered by two bullets coming from inside the car. However, it could not be determined whether the bullets originated from inside the car or traveled through the car from the passenger side window before exiting out the driver's side. No second firearm was found.

Muteei's defense counsel did not request a self-defense jury instruction, and did not object to the instructions as given to the jury, which included instructions on justifiable and excusable attempted homicide, ² but not self-defense. In closing argument defense counsel claimed that Muteei was defending himself and asked the jury to rely on the justifiable attempted homicide instruction.

Muteei contends that, as the evidence was sufficient to warrant a self-defense jury instruction, which instruction would have been the basis of the only real defense raised and argued at trial, the trial court's failure to give the self-defense instruction constitutes fundamental error. Reversal would thus be required notwithstanding the defense's failure to request the instruction or to object to the instructions as given. In support of his argument, Muteei relies principally upon Thomas v. State, 526 So.2d 183 (Fla. 3d DCA), rev. denied, 536 So.2d 245 (Fla.1988). Indeed, in Thomas, we concluded that it was fundamental error to fail to instruct the jury on a defense that was the foundation of the defendant's position at trial, where there was evidence which, if believed, would support that defense. As a consequence the conviction was reversed even though the defendant did not submit an adequate proposed jury instruction on the subject for consideration by the court. ³ , ⁴

Our decision to affirm here is predicated upon the clear and unequivocal language of the supreme court in Sochor v. State, 619 So.2d 285, 290 (Fla.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 596 (1993).

"Fundamental error is error which goes to the foundation of the case. Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but not an essential element of, kidnapping. Therefore, the state did not have to disprove voluntary intoxication in order to convict Sochor of felony murder based on the underlying felony of kidnapping. Because the complained-of instruction went to Sochor's defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal." (e.s.) (citation omitted).

The supreme court's holding in Sochor is diametrically opposed to that of Thomas, therefore Sochor governs, not Thomas. Thus, because the "missing" instruction went to Muteei's defense, and not to an essential element of the crimes charged, Muteei was required to request the self-defense instruction, and object to the instructions as given, in order to preserve the issue.

We think it supremely wise to hold fast to this rule. Muteei is attempting to obtain a reversal because of the absence of a jury instruction that, if given, would have made his acquittal even more difficult to attain. The "self-defense" jury instruction, ⁵ which is lengthy, has a beginning which is reminiscent of the justifiable homicide instruction. If the self-defense instruction is given the trial court must in all cases read the following language: ⁶

"An issue in this...