Thompson v. State

• Decision Date: 15 October 2018
• Docket Number: No. 1D17-2012,1D17-2012
• Parties: Orando Ricardo THOMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

257 So.3d 573

Orando Ricardo THOMPSON, Appellant,

v.STATE of Florida, Appellee.

No. 1D17-2012

District Court of Appeal of Florida, First District.

October 15, 2018

Rehearing Denied November 19, 2018

Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.

Rowe, J.Orando Ricardo Thompson challenges his conviction for second-degree murder and his sentence of life imprisonment. We affirm, but write to address three of his arguments on appeal.

Facts

In the summer of 2015, tempers started to simmer when Caleb Halley, a long-time employee of Buddy's Seafood Market, learned that Orando Thompson, a newer employee, added hot sauce and other seasonings to the gumbo Halley prepared earlier that day. Halley confronted Thompson about adding seasoning to the gumbo, and the argument escalated to a physical altercation outside of the market. At one point, Thompson left the fight, reentered the market, retrieved a sword on display in a backroom of the market, and returned outside to stab Halley three times in the abdomen. These wounds ultimately led to Halley's death.

Before trial, Thompson moved to dismiss the charge, arguing that he was immune from prosecution pursuant to the Stand Your Ground Law. The trial court conducted an evidentiary hearing and denied the motion. Thompson challenged this denial via a writ of prohibition. This Court denied the petition without prejudice to Thompson's ability to raise the affirmative defense of self-defense at trial. Thompson v. State , 204 So.3d 990, 991 (Fla. 1st DCA 2016).

The altercation between Halley and Thompson, which occurred directly behind the business, was recorded from two different angles by the surveillance equipment installed at Buddy's Seafood Market. Although the video has no sound, it depicts Halley approaching Thompson and the two beginning to argue. Thompson testified at trial that when Halley first approached him, Halley said, "[D]on't touch my fucking gumbo again."

The physical altercation began with the two men puffing out their chests and pushing at each other. Halley appears to pull something from his pocket (Thompson later testified that it was a knife) and Thompson arms himself with a discarded piece of lumber. When Thompson dropped the piece of lumber, the two men resumed pushing each other. Thompson then armed himself with a discarded broom handle, and Halley picked up the piece of lumber Thompson had dropped. At this point, the men appear to be in an heated verbal exchange, and although armed, the men still only push each other with open palms.

After about ninety seconds, Thompson can be seen leaving the fight and going inside the market. Halley, under an apparent belief that the altercation was over, picked up his belongings and started walking towards his vehicle. A video from a different angle shows that when Thompson entered the market, he walked directly to the backroom and grabbed a sword that was displayed on the wall. The sword had a fifteen-inch blade.

After about twenty seconds, Thompson returned outside to confront Halley with the sword. Halley used the nearby broom handle to defend himself. The men continued to scuffle and swing their respective weapons at each other. Thompson can be seen making stabbing motions with the sword. The altercation continues until two employees exit the market and break up the fight. When the men were finally separated, a witness testified that Halley said, "He stabbed me, bro," and a portion of Halley's intestines was visibly protruding from one of his wounds.

Halley was taken to the hospital, but he died as a result of complications from the abdominal stab wounds. Halley suffered a total of three stab wounds. Two of the wounds were deep enough to penetrate the abdominal cavity.

When he was interviewed by the police after the stabbing, Thompson told Lt. Eusebio Talamantez, the lead investigator, that Halley pulled out a knife and threatened to cut him. He explained that he felt that he had to defend himself so he grabbed the sword from the backroom. When asked why he went back outside with the sword, Thompson explained it was because he was mad and upset with Halley.

At trial, during direct examination, Lt. Talamantez referred to some of the statements made by Thompson during the recorded interview as "inaccurate" and "not true." On cross-examination, defense counsel, in an attempt to challenge the thoroughness of the investigation, asked Lt. Talamantez about the proper method of investigating a self-defense case, and the lieutenant responded, "This case wasn't self-defense, it was the exact opposite of self-defense." Defense counsel did not object to this statement.

After the trial court denied Thompson's motion for judgment of acquittal, Thompson testified on his own behalf. He explained that he was authorized to spice the gumbo. Thompson testified that, in his capacity as an employee at Buddy's Seafood Market, he had known and worked with Halley for four or five years. While he characterized their relationship as good, Thompson also testified that Halley would often complain about the quality of Thompson's work. Thompson and several other employees testified that Halley was known to carry a small knife around his neck that he used to open boxes. He explained that he went inside to get the sword because Halley was coming towards him with a board and he was scared.

At the charge conference, defense counsel asked the court to include an instruction on the justifiable use of non-deadly force. The State objected to the inclusion of the instruction, arguing that, under the facts of this case, there was no support for the assertion that the sword was used in a non-deadly manner. The trial court denied the request.

Defense counsel also asked the court to refrain from instructing the jury that the use of deadly force was not justified if Thompson initially provoked the use of force against himself because Halley was the initial aggressor. The State argued that Thompson provoked the use of force against himself when he left the fight, went inside the market to retrieve the sword, and returned outside to confront Halley. The trial court overruled the objection.

The jury found Thompson guilty of second-degree murder and he was sentenced to life imprisonment. This timely appeal follows.

Analysis

On appeal, Thompson raises three issues that merit discussion. First, he argues that fundamental error occurred or, in the alternative, trial counsel was ineffective when the lead investigator was permitted to comment on Thompson's credibility and testify that this was not a self-defense case. Second, Thompson contends that the trial court should have granted his motion for judgment of acquittal because the evidence showed no more than an impulsive overreaction to Halley's attack. Third, he asserts that the trial court erred in refusing to instruct the jury on the justifiable use of non-deadly force and erred in instructing the jury on the initial aggressor exception to the use of deadly force.

Fundamental Error/Ineffective Assistance of Counsel

Thompson argues that fundamental error occurred or, in the alternative, trial counsel was ineffective when the lead investigator was allowed to testify that this was a self-defense case and to comment on Thompson's credibility. We review these arguments de novo. Elliot v. State , 49 So.3d 269, 270 (Fla. 1st DCA 2010).

As a general rule, "a witness' opinion as to the credibility, guilt, or innocence of the accused is inadmissible." Jackson v. State , 107 So.3d 328, 339 (Fla. 2012). "[I]t is especially troublesome when a jury is repeatedly exposed to an interrogating officer's opinion regarding the guilt or innocence of the accused." Id. at 340 ; Martinez v. State , 761 So.2d 1074, 1080 (Fla. 2000) ("[T]here is an increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant's guilt."). Here, Lt. Talamantez repeatedly commented on Thompson's credibility by asserting that many of the statements made during Thompson's interview were inaccurate and untrue. Had defense counsel objected to any of Talamantez's above-mentioned statements, then the trial court would have been required to sustain the objection as they were impermissible comments on Thompson's guilt. See Battle v. State , 19 So.3d 1045, 1048 (Fla. 4th DCA 2009) (noting that if defense counsel had properly objected to the detective's statement that he was certain that the defendant was the person that committed the burglary, then the trial court would have been required to exclude the testimony as impermissible opinion on the defendant's guilt).

Further, it is impermissible for an investigator to testify that a case does not involve self-defense. Bartlett v. State , 993 So.2d 157 (Fla. 1st DCA 2008). In Bartlett , the investigating officer testified that he ruled out self-defense before signing a complaint for murder. Id. at 158. This Court held that this was impermissible testimony because the testimony improperly invaded the province of the jury and allowed the investigator to serve as a fact-finder by determining that self-defense was not a viable defense. Id. at 161. Here, Lt. Talamantez acted as a fact-finder by stating his personal conclusion that this case did not involve self-defense. Again, had defense counsel objected to this testimony, the trial court would have been required to sustain the objection.

But merely because the lead investigator's testimony was admitted in error does not mean that it rises to the level of fundamental error. Rarely will an error be deemed fundamental. F.B. v. State , 852 So.2d 226, 229 (Fla. 2003). The supreme court has stated, "in order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent...