Peruchi v. State

• Decision Date: 07 May 2021
• Docket Number: Case No. 2D19-3535
• Court: Florida District Court of Appeals
• Parties: Thomas PERUCHI, Appellant, v. STATE of Florida, Appellee.

317 So.3d 1262

Thomas PERUCHI, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-3535

District Court of Appeal of Florida, Second District.

Opinion filed May 7, 2021.

Howard L. Dimmig, II, Public Defender, and Deana K. Marshall, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.

STARGEL, J.

Thomas Peruchi challenges his conviction for second-degree murder and his resulting life sentence. Based on fundamental error that occurred in the giving of the jury instruction related to the justifiable use of deadly force, we reverse his conviction and sentence and remand for a new trial.¹

Peruchi, who had an ongoing dispute with a drug dealer to whom he owed money that he could not repay, arranged for a meeting with that dealer, ostensibly to buy drugs, and brought a knife to that meeting after his attempts to find a gun failed. During the encounter an argument ensued. Peruchi stabbed the dealer and then struck him with his car as both fled the scene. The dealer died and Peruchi was charged with first-degree murder, under both premediated and felony-murder theories. In addition to eyewitness testimony of the encounter, the State presented evidence to show that Peruchi made advance plans with the dealer to meet in order to purchase drugs, that he owed money to the dealer, and that he sought a weapon to take to that meeting. Under the State's theories, Peruchi either planned to kill the dealer or planned to rob the dealer of drugs or money and the dealer was killed in the process. Peruchi, however, maintained that he was not there to purchase drugs or to rob the dealer, that he was hoping to resolve an ongoing dispute over monies owed to the dealer, that the dealer had previously threatened him with a gun and appeared to be reaching for one during the encounter, and that he acted in self-defense that day. The State did not charge Peruchi with robbery, carrying a concealed weapon, or any offense related to the purported attempt to purchase drugs. The State's presentation of evidence on the alleged commission of these uncharged offenses was relevant to either the charge of felony murder, the lesser included offenses, or the claimed affirmative defense of justifiable use of deadly force. Prior to trial, Peruchi filed a motion for pretrial immunity under section 776.032, Florida Statutes (2017), Florida's Stand Your Ground statute, and section 776.012(2), Florida Statutes (2017)—which was denied. Ultimately, the jury did not find that the State had proven either of its theories of first-degree murder and instead found that Peruchi had committed the lesser included offense of second-degree murder.

Similar to his pretrial claims of immunity, Peruchi's primary defense at trial was self-defense on the theory of justifiable use of deadly force to protect against imminent bodily harm based on the acrimony with the victim and his belief that the victim was reaching for a gun during their altercation. See § 776.012(2). The State asserted that Peruchi was not entitled to claim this defense because he was committing a crime—either the prearranged purchase of drugs or the carrying of a concealed weapon—at the time that the altercation between the two men began, thereby necessitating a duty to retreat before using deadly force in self-defense.

Jury instructions were given for the charged offense, the lesser included offenses of second-degree murder (for which he was convicted) and manslaughter, and his affirmative defense of justifiable use of deadly force. These instructions contained several errors, but Peruchi's counsel did not object to all of them. We address only two instruction-related errors raised on appeal that require a fundamental error analysis. See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991) ("Instructions, however, are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.").

The standard jury instructions for a homicide and for lesser included offenses were given in this case. The latter provides a definition for justifiable use of deadly force, which was at issue within Peruchi's defense. See Fla. Std. Jury Instr. (Crim.) 3.6(f). The jury was also given the instructions related to a drug sale or possession and carrying a concealed weapon—offenses for which he was not charged—for the sole purpose of allowing the State to rebut Peruchi's claim of entitlement to use deadly force. The State asked the jury to consider whether Peruchi was committing any of those crimes at the time of the stabbing through the instructions given on the drug and weapon crimes in relation to the affirmative defense of justifiable use of deadly force. If yes, then he had a duty to retreat before using deadly force. See § 776.012(2).

An exception to the justifiable use of deadly force, apart from the duty to retreat if possible during the commission of a crime, is the forcible felony exception. § 776.041 ("The justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony ...."). Among other things, Peruchi specifically argues that there was an error given on the instruction for justifiable use of force related to the forcible felony exception portion and the uncharged drug and weapon crimes.² The relevant portion of the instruction given was as follows:

Based on appearances, Thomas Peruchi must have actually believed that the danger was real. However, the defendant had no duty to retreat if he was not otherwise engaged in criminal activity and was in a place where he had the right to be.

However, the use of deadly force is not justified if you find that Thomas Peruchi was attempting to commit, committing, or escaping after the commission of a robbery, purchase or attempted purchase of cocaine, or unlicensed carrying of a concealed weapon.

Peruchi correctly argues that the second paragraph erroneously included possession of cocaine and carrying a concealed weapon, see § 776.08, in its listing of forcible felonies that, if committed, would not have entitled Peruchi to assert justifiable use of deadly force at all and that therefore could have misled the jury into believing it could not find that he was justified in his use of force regardless of whether he was able to retreat before defending himself if it believed he either possessed drugs or was carrying a concealed weapon at the time of the altercation. See Montgomery v. State, 291 So. 3d 170, 179 (Fla. 2d DCA 2020) ("Thus, to instruct the jury on the forcible-felony exception in this circumstance amounted to informing the jury that although it might conclude that Martinez acted in self-defense ..., the use of deadly force was not...