Phillips v. State

• Decision Date: 19 December 2007
• Docket Number: No. 4D06-1824.,4D06-1824.
• Citation: 972 So.2d 233
• Parties: Allen PHILLIPS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

972 So.2d 233

Allen PHILLIPS, Appellant, v. STATE of Florida, Appellee.

No. 4D06-1824.

District Court of Appeal of Florida, Fourth District.

December 19, 2007.

Rehearing Denied February 5, 2008.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

EMAS, KEVIN M., Associate Judge.

In this case, we consider whether an erroneous but agreed-upon jury instruction on an affirmative defense constitutes fundamental error. Under the totality of the circumstances of this case, we find no fundamental error and affirm.

Broward County Sheriff Deputy Washecka was in uniform and on patrol in the late evening hours when she encountered Allen Phillips riding a bicycle without a headlight. Deputy Washecka stopped Phillips for this violation and called in Phillips' name to dispatch to determine whether Phillips had any outstanding warrants. Washecka received preliminary information indicating that Phillips had an outstanding warrant. Phillips grew increasingly fidgety and nervous, and Deputy Washecka became so concerned that she decided to handcuff Phillips while awaiting further confirmation of Phillips' warrant status. As Washecka attempted to handcuff Phillips, he pulled away from her, grabbing Washecka's leg above the ankle and causing her to fall. Phillips then hit Deputy Washecka in the face and fled the scene. Washecka issued a BOLO with Phillips' description and a K-9 unit arrived to help locate and apprehend Phillips.

Police soon determined Phillips' location, and uniformed K-9 Deputies James and Olarte responded to a house where Phillips was hiding. James and Olarte went inside the house with the police dog. At some point during the encounter in the house, the police dog was released to subdue Phillips. Deputies James and Olarte attempted to restrain and arrest Phillips, who was flailing, kicking, resisting and otherwise attempting to get away from the deputies and the dog. During this struggle, an additional deputy arrived (Deputy Maio) and entered the house to assist in Phillips' capture. At different points in the struggle, Phillips bit Deputies James and Maio. Deputy Washecka remained outside the house during the entire episode.

Phillips was charged by information with ten counts: four counts of battery on a law enforcement officer; four counts of felony battery; and two counts of resisting an officer with violence. Following trial, Phillips was convicted of one count each of battery on a law enforcement officer, felony battery, and resisting an officer with violence (each of those counts involving the same victim, Deputy Washecka). The jury acquitted Phillips of one count of battery on a law enforcement officer and one count of resisting an officer with violence (involving the same alleged victim, Deputy Maio); and deadlocked on the five remaining counts (involving alleged victims Deputies James and Olarte).¹ Phillips has raised four issues on appeal, only one of which merits discussion.

At trial, Phillips relied upon the affirmative defense of duress or necessity. Phillips attempted to establish that his actions toward the deputy inside the house were necessitated by the police releasing the dog that attacked and bit him, forcing him to protect himself. Phillips argued that anything he might have done to Deputies Maio, James and Olarte was simply an effort to get away from the unwarranted assault of the police dog.

The State and defense agreed upon the following jury instruction, which was read to the jury. A written set of the entire instructions was provided to the jury during its deliberations:

3.6(k) Duress or Necessity

An issue in this case is whether Allen Phillips acted out of duress/necessity in committing the crimes of Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, or Battery.

It is a defense to the crimes of Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, or Battery, if the defendant acted out of duress/necessity. In order to find the defendant committed the crimes of Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, or Battery out of duress/necessity, you must find the following six elements:

1.. . . .

2.. . . .

3.. . . .

4.. . . .

5.. . . .

6.. . . .

. . . .

If you find from the evidence that the defendant committed the Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, and Battery out of duress/necessity, you should find the defendant not guilty.

However, if you find that the defendant committed the Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, and Battery out of duress/necessity[,] you should find the defendant guilty if all the elements of the charge have been proved. (emphasis added).²

Phillips acknowledges that he agreed to the wording of the instruction above and failed to object or otherwise preserve this issue. He contends, however, that the erroneous instruction constitutes fundamental error and warrants a new trial. We disagree.

Jury instructions are subject to the contemporaneous objection rule, see Fla. R.Crim. P. 3.390(d), and in the absence of a contemporaneous objection at trial, relief regarding an error in an instruction will be granted only if the appellate court determines the error is fundamental. Archer v. State, 673 So.2d 17 (Fla.1996). To be considered fundamental, "`the error must reach 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.'" State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). The concept of fundamental error is rooted in notions of due process, Sochor v. State, 619 So.2d 285 (Fla.1993), and appellate courts have been cautioned to exercise "`very guardedly'" their discretion concerning fundamental error, and to apply the doctrine only in rare cases. Ray v. State, 403 So.2d 956, 960 (Fla.1981) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)); Smith v. State, 521 So.2d 106 (Fla.1988). Where, as in the present case, the alleged error relates to a flawed affirmative defense instruction, the error will be considered fundamental only if the instruction was so flawed that it denied the defendant asserting the affirmative defense a fair trial. See Holiday v. State, 753 So.2d 1264, 1269 (Fla.2000) (quoting Smith, 521 So.2d at 107-08).

Whether an erroneous jury instruction constitutes fundamental error cannot be made in a vacuum; it must be based upon the totality of the circumstances of each individual case. As this court has previously stated: "[T]he determination of whether fundamental error occurred requires that the . . . instructions be examined in the context of the other jury instructions, the attorneys' arguments, and the evidence in the case. . . ." Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006), review granted, 956 So.2d 455 (Fla. 2007); see also Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), review granted, 959 So.2d 717 (Fla.2007); Harris v. State, 937 So.2d 211 (Fla. 3d DCA), review dismissed, 942 So.2d 413 (Fla. 2006); Pratt v. State, 429 So.2d 366 (Fla. 1st DCA 1983).

Although not an exhaustive list, the following are relevant circumstances to consider:

— the nature of the offense(s) charged and the defense(s) raised by the defendant, McJimsey v. State, 959 So.2d 1257 (Fla. 4th DCA 2007); Grier v. State, 928 So.2d 368, 369-70 (Fla. 3d DCA 2006), review denied, 952 So.2d 1191 (Fla.2007), and cases cited;

— the issues disputed at trial and whether any factual issues, including any elements of the offense, were conceded or necessarily admitted at trial, Reed v. State, 837 So.2d 366 (Fla.2002); State v. Delva, 575 So.2d 643 (Fla.1991); Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001);

— the evidence presented and arguments made by counsel during trial, Floyd v. State, 850 So.2d 383 (Fla. 2002); Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), review granted, 956 So.2d 455 (Fla.2007); Palazzolo v. State, 754 So.2d 731 (Fla. 2d DCA 2000); Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), review granted, 959 So.2d 717 (Fla.2007);

— the nature of the erroneous instruction (e.g., element of the crime, affirmative defense), Garcia v. State, 901 So.2d 788, 793 (Fla.2005), and cases cited; Sochor v. State, 619 So.2d 285 (Fla.1993); whether the erroneous instruction negated defendant's sole defense, Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004); Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985); — whether the error is one of inclusion or omission (e.g., adding an uncharged element or omitting an essential element), or is a failure to give an instruction entirely, State v. Weaver, 957 So.2d 586 (Fla.2007); Martinez;

— the other instructions given to the jury and the effect of those instructions on the erroneous instruction, State v. Wilson, 686 So.2d 569 (Fla. 1996); Diecidue v. State, 131 So.2d 7 (Fla.1961); and

— the relationship of the erroneous instruction to the verdict rendered, State v. Lucas, 645 So.2d 425 (Fla. 1994); Martinez.³

The circumstances listed above simply represent an extension of the concept that "fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict." Stewart v. State, 420 So.2d 862, 863 (Fla. 1982). Phillips is required to demonstrate that, in light of the totality of the circumstances, the instruction was so erroneous it "must [have] affect[ed] the validity of the trial to the extent that the verdict would not have been the same if the error had not occurred." Pena v. State, 901 So.2d 781, 786 (Fla.2005).

A...