State v. Floyd

• Decision Date: 10 March 2016
• Docket Number: No. SC14–2162.,SC14–2162.
• Citation: 186 So.3d 1013
• Parties: STATE of Florida, Petitioner, v. Robert Franklin FLOYD, Respondent.
• Court: Florida Supreme Court

186 So.3d 1013

STATE of Florida, Petitioner,

v.Robert Franklin FLOYD, Respondent.

No. SC14–2162.

Supreme Court of Florida.

March 10, 2016.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Giselle Denise Lylen, Assistant Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, FL, for Petitioner.

Michael Robert Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, FL, for Respondent.

Karen Marcia Gottlieb, Coconut Grove, FL, and Sonya Rudenstine, Gainesville, FL, for Amicus Curiae Florida Association of Criminal Defense Lawyers.

LEWIS, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014). In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

DOES FLORIDA STANDARD JURY INSTRUCTION (CRIMINAL) 3.6(F) PROVIDE CONFLICTING INSTRUCTIONS WITH RESPECT TO THE DUTY TO RETREAT?

Order Granting Mot. to Certify at 1, Floyd v. State, No. 1D11–4465 (Fla. 1st DCA Oct. 17, 2014). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

BACKGROUND

Robert Franklin Floyd, the Respondent, was charged with one count of second-degree murder and one count of shooting at, into, or within an occupied vehicle in connection with the death of Getyron Lopez Benjamin. Floyd asserted that he shot at the vehicle in which Benjamin was a passenger both in self-defense and defense of others.

Floyd was hosting a party at his residence on the night of the shooting. With approximately fifty people in attendance and nearly as many witness accounts, there were abundant questions of fact regarding the incident. It is not disputed, however, that Benjamin and his friend Gerald Banton were confronted and surrounded by several of Floyd's friends and asked to leave; that Floyd pushed Banton; and that Banton quickly flashed, but did not point, a handgun.¹ It is also undisputed that Floyd then ran to his truck to arm himself with his rifle while Benjamin and Banton ran in the opposite direction toward a vehicle, purportedly to leave the party. What was heavily disputed in a he-said-she-said affair—very common in self-defense cases—included whether Floyd was the first to shoot and whether Benjamin and Banton were driving away in retreat when the shooting started. After hearing the testimony of nearly fifty witnesses, the jury convicted Floyd of both crimes, for which he was sentenced to thirty years' imprisonment.

Prior to deliberating, the jury was instructed in pertinent part:

Jury Instruction 3.6(f). Justifiable use of Deadly Force.

An issue in this case is whether the defendant acted in self defense. It is a defense to all of the offenses with which Robert Franklin Floyd is charged if the death of [Getyron] Lopez Benjamin resulted from the justifiable use of deadly force.

The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself or another while resisting:

1. Another's attempt to murder him or another. Or.

2. Any attempt to commit aggravated battery or aggravated assault upon him or another.

"Deadly force" means force likely to cause death or great bodily harm.

A person is justified in using deadly force only if he reasonably believes that such force is necessary to prevent:

1. Imminent death or great bodily harm to himself or another. Or.

2. The imminent commission of aggravated battery or aggravated assault against himself or another.

....

However, the use of deadly force is not justifiable if you find:

1. Robert Franklin Floyd initially provoked the use of force against himself, unless.

A. The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger other than using deadly force. Or.

B. In good faith the defendant withdrew from physical contact with another person and clearly indicated to that person that he wanted to withdraw and stop the use of deadly force. But that person continued or resumed the use of force.

In deciding whether a defendant was justified in the use of deadly force you must judge him by 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 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 the danger could only be avoided through the use of that force.

Based upon appearances the defendant must have actually believed that the danger was real.

If the defendant was not engaged in any 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 another, or to prevent the commission of a forceable [sic] felony.

(Emphasis supplied.)

With regard to the instructions, Floyd's counsel did not raise a contemporaneous objection, or any objection for that matter. Instead, as evidenced in the jury charge conference, Floyd's trial counsel agreed to the instructions and actively participated in tailoring Florida Standard Jury Instruction (Criminal) 3.6(f) to the circumstances of the case:

The Court:I expect you'll be looking at this tonight and if there's an issue, you'll let me know. Thankfully we've got computers and we can adjust.

All right. Justifiable Use of Deadly Force. That's one we probably want to spend a little time on. Have you looked at it?

[Defense Counsel]:I have, Your Honor.

The Court:Do you like the way they've done it here and agree with it?

[Defense Counsel]:Yes, Your Honor. I'll just comment on I have read the first section of that—

....

The Court: Anything else?

[Defense Counsel]: —yes, Judge. Just moving down we get into, "However the use of deadly force is not justifiable, if you find 1(A)—" and look at the standard jury instruction. We kind of fill in the blank, and it has the assailant, and you identify that person. The State has identified the assailant as—okay, Getyron Lopez Benjamin. And I don't agree that's applicable, Judge, not just Mr. Benjamin—identify the individuals. The evidence suggests that the threat was coming from Gerald Banton, Judge.

I don't know if it's a typo or if the State has—

[Prosecutor]: Well—

[Defense Counsel]:—there's a reason why the State was including Mr. Benjamin.

[Prosecutor]: —the deadly force was used on Getyron Benjamin. So that's why I put his name in there.

Now, you know, I don't want to get in a situation where we're having to define transferred intent, if we can help it. So there may be a way that we can word this to avoid that.

What if we just said, "Other than using deadly force," and stop, and then went on "or?" I mean, we know where he used the deadly force. He used it at the vehicle—at the flashes. And that's his testimony. We know where the bullets wound up, so nobody is going to be confused about that. The issue is was he justified in using deadly force, firing the gun at the vehicle?

And so I think that it would probably be less confusing and require less explanation if we just said, "And had exhausted every reasonable means to escape the danger other than using deadly force," skip out on who, and then put "or," and then go on to B.

[Defense Counsel]:I agree with that, Judge.

The Court: Okay. And just for the record I agree I think that clears it up without having to get into transferred intent and create instructions so we might spend a lot of time doing that might be confusing. I think this makes sense. You agree?

[Defense Counsel]: I do, Your Honor.

The Court: All right. [Prosecutor], you agree as well?

[Prosecutor]: Yes, Judge.

The Court: All right. So (B) is correct. And then we come down to "inciting [sic] whether the defendant was justified."

[Prosecutor]: Well, let's talk about (B) first real quick.

The Court: (B), okay.

[Prosecutor]: What I wrote in there, talking about who the assailant was, was I put in another person.

The Court: Right.

[Prosecutor]: I did not know whether, you know, Judge, there were some people who said the passenger window, some—you know, Gus Benjamin had gunshot residue on his hands. I didn't know what I was faced with. I didn't know if there was going to be a claim that maybe someone else was firing, so I just put another person.

And so that's the law. And it's applicable both to when he's in physical contact with Gerald Banton as well as when he's in the gunfire with the vehicle, whoever is firing from the vehicle. And so I've just made it generic. I just wanted everybody to realize that.

The Court: Any objection to the use of another person?

[Defense Counsel]: No, Your Honor.

The Court:You think that's clear as well?

[Defense Counsel]:I do, Judge.

The Court: Okay.

[Defense Counsel]:Judge, I've read through the remaining portion of this instruction. And the only—again, [the Prosecutor] might be anticipating and this the only thing I'd like to clarify, is on the next page, Judge, which will be the third paragraph at the bottom.

The Court: "In considering?"

[Defense Counsel]: Yes, Your Honor, "Considering the issue of self defense you may take into account the relative physical abilities and capacities of the defendant," and the State has put in there, "his alleged attacker or attackers."

The Court: What is it about that?

[Defense Counsel]: Judge, I'm just looking at it to make sure there's no—not a more appropriate description, but the more I look at it, I think that—

[Prosecutor]: Assailants?

[Defense Counsel]: If you look at the paragraph preceding this one, "If the defendant was not engaged in unlawful activity and was attacked in any place—"

[Prosecutor]: Yeah.

[Defense Counsel]: —it's consistent

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