Neal v. State

• Decision Date: 03 June 2015
• Docket Number: No. 4D13–3403.,4D13–3403.
• Citation: 169 So.3d 158
• Parties: Bryant Daniel NEAL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

169 So.3d 158

Bryant Daniel NEAL, Appellant

v.STATE of Florida, Appellee.

No. 4D13–3403.

District Court of Appeal of Florida, Fourth District.

June 3, 2015.

Rehearing En Banc Denied July 29, 2015.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

Opinion

KLINGENSMITH, J.

Bryant Daniel Neal (“appellant”) appeals the final order of the trial court finding him guilty of two counts of battery on a law enforcement officer and one count of resisting arrest with violence following a jury trial. Before deliberations, the jury was provided with a written set of jury instructions that included an instruction on the justifiable use of non-deadly force. Appellant asserts it was fundamental error to include the word “injury” in the jury instruction for justifiable non-deadly force. Additionally, appellant claims that offsetting the phrase “including deadly force” with commas in the written jury instructions also constituted fundamental error. We disagree with appellant on both of these issues under the facts of this case, and affirm the trial court. We also find appellant's remaining issue on appeal to be without merit.

Officers Yermanos and Negron arrived at appellant's address in response to a missing persons report regarding appellant's wife. According to the testimony of Officer Yermanos, appellant appeared aggravated while they were questioning him. When appellant began yelling and started to approach Yermanos, appellant was asked to calm down. Yermanos testified that he placed his hand on appellant's chest to create more distance between them whereupon appellant responded by slapping Yermanos's hand out of the way, striking the officer in the face and poking him in the eye. An altercation involving both officers quickly ensued, and after a third police officer arrived on the scene, appellant was eventually subdued.

Appellant took the stand in his own defense and described a much different version of events. He claimed that the officers did not appear to take his complaints seriously, and when appellant voiced his displeasure, Yermanos said to him, “Stop yelling at me or else I'm going to swing on you.” Appellant then replied, “I would like to see (you) try,” at which point Yermanos swung at him and grazed his face. Appellant said he then grabbed Yermanos's shoulders, and was in turn grabbed by Negron, then repeatedly punched by Yermanos. Appellant's theory of defense was that he acted in lawful self-defense in response to the officer's actions.

Both appellant and the State agreed to a jury instruction for the justifiable use of non-deadly force before it was read to the jury, and a printed copy was also provided to the jurors during their deliberation. This instruction stated the following:

3.6(g) JUSTIFIABLE USE OF NON–DEADLY FORCE

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Bryant Neal is charged if the injury to CARLOS YERMANOS or JERRELL NEGRON resulted from the justifiable use of non-deadly force.

“Non-deadly” force means force not likely to cause death or great bodily harm.

BRYANT NEAL would be justified in using non-deadly force against CARLOS YERMANOS or JERRELL NEGRON if the following two facts are proved:

1. BRYANT NEAL must have reasonably believed that such conduct was necessary to defend himself against CARLOS YERMANOS' or JERRELL NEGRON'S imminent use of unlawful force against the defendant.

2. The use of unlawful force by CARLOS YERMANOS or JERRELL NEGRON must have appeared to BRYANT NEAL to be ready to take place.

If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

As used with regard to self defense,

A person does not have a duty to retreat if the person is in a place where he has a right to be.

A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend himself, but only to the extent he reasonably believes such force is necessary.

In deciding whether the defendant was justified in the use of non-deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

Fla. Std. Jury Instr. (Crim.) 3.6(g) (emphasis added). Since appellant did not object to the jury instructions at the time of trial, we review both issues for whether the error was fundamental. Bassallo v. State, 46 So.3d 1205, 1209 (Fla. 4th DCA 2010) (“ ‘Issues pertaining to jury instructions are not preserved for appellate review unless a specific objection has been voiced at trial,’ ..., and absent an objection at trial, can be raised on appeal only if fundamental error occurred.” (quoting Lawrence v. State, 831 So.2d 121, 137 (Fla.2002) )). We address both of appellant's arguments in turn.

a. Reference to Injury

The first alleged error involves the reference to an “injury,” which appears in the section of the jury instructions that states: “An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Bryant Neal is charged if the injury to CARLOS YERMANOS or JERRELL NEGRON resulted from the justifiable use of non-deadly force.” (emphasis added). Appellant contends that it was fundamental error to include any reference to an “injury” in these instructions because none of the officers were injured.

This court has previously considered the same challenge to an identical set of jury instructions given in a similar case. In Brown v. State, 59 So.3d 1217, 1218 (Fla. 4th DCA 2011), as in this case, the defendant was charged with and convicted of battery upon a police officer. At trial, the defendant's sole defense to this crime was self-defense. Brown, 59 So.3d at 1218. There, we stated:

On appeal, appellant maintains that the standard jury instruction on self-defense is fundamentally flawed, because it erroneously indicates that an injury to the victim is required before a jury may find that a defendant acted in self-defense. Recently, in Bassallo ..., we decided this very issue and held that the trial court fundamentally errs in giving the standard jury instruction on self-defense, which included the word “injury,” where injury was not an element of the crime and the state presented no evidence of injury to the victim. In that case, as in this one, the prosecutor also used the “no injury” response to the claim of self-defense in closing argument. Bassallo concluded that the error in the instruction was fundamental error, because it negated the defendant's sole defense to the crime charged. Id. at 1211 (citing Martinez v. State, 933 So.2d 1155, 1166 (Fla. 3d DCA 2006) ). Just as in Bassallo, injury was not an essential element of any of the crimes, and there was no evidence of injury to the deputy. Because the jury instruction on self-defense indicated that the defense applied only if the victim suffered an “injury,” and the state argued that the instruction did not apply because no injury occurred to the victim, fundamental error occurred in the instruction on self-defense, negating appellant's sole defense.

Because of the error, we reverse for a new trial on battery on a law enforcement officer.

Id. at 1219.

As we stated in Brown, the crime of battery upon a law enforcement officer does not require proof of injury. Id. ; see also § 784.07(2), Fla. Stat. (2013). In contrast to what occurred in Brown and Bassallo, the State presented evidence in the instant case that Yermanos was injured, both through his testimony and other evidence. Further, the prosecutor did not use the “no injury” response during closing argument to negate appellant's claim of self-defense. Therefore, including the reference to an “injury” did not rise to the level of fundamental error.¹ Bassallo, 46 So.3d at 1209 (quoting Lawrence, 831 So.2d at 137 ).

b. Offsetting the Phrase “Including Deadly Force”

To determine whether a jury instruction deprived the defendant of a fair trial, a court should conduct a “totality of the circumstances analysis.” See Croom v. State, 36 So.3d 707, 709 (Fla. 1st DCA 2010). “[I]f the totality of the circumstances indicates there is no reasonable possibility an alleged jury instruction error contributed to the verdict, the error is not fundamental.” Id. “In considering the effect of an erroneous instruction under the fundamental error analysis, the court reviews the instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel.”Sims v. State, 140 So.3d 1000, 1004 (Fla. 1st DCA 2014).

Appellant argues that offsetting the phrase “including deadly force” with commas in the jury instructions was fundamental error, because it served to destroy his sole defense of self-defense. Two of our sister courts have considered the same...