March 24, 2006.
Appeal from the Circuit Court for Volusia County, Julianne Piggotte, Judge.
James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellant.
Bernard Sloss, Chipley, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
ON MOTION FOR REHEARING EN BANC
We grant the appellee's motion for rehearing en banc and certify a question of great public importance to the Florida Supreme Court. See Fla. R.App. Proc. 9.030.
This court reversed Sloss's conviction for aggravated battery with a deadly weapon and remanded for a new trial. Sloss v. State, 30 Fla. L. Weekly D 2328 (Fla. 5th DCA 2005). The State moved for rehearing en banc and to certify a question to the Florida Supreme Court. The State contends that the decision in Sloss is not in conformity with the Florida Supreme Court decisions in State v. Delva, 575 So.2d 643 (Fla. 1991), Sochor v. State, 619 So.2d 285 (Fla. 1993), and Battle v. State, 911 So.2d 85 (Fla. 2005). We grant the motion for rehearing and certify the following question to the supreme court:
DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?
Sloss's jury instructions stated:
A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the imminent commission of aggravated battery.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find [Sloss] was attempting to commit, committing or escaping after the commission of aggravated battery, or [Sloss] initially provoked the use of force against himself unless 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. . . .
This instruction was based on section 776.041(1), Florida Statutes (2003), which provided that the justification of self-defense or defense of others is not available to a person who "[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony." The issue was whether giving an instruction on the forcible felony exception to self-defense constitutes fundamental error, where the defendant allegedly engaged in two forcible felonies, but is charged with a single crime. We held that the forcible felony instruction should be given only where the defendant claiming self-defense engaged in an independent forcible felony at the time.
REHEARING GRANTED; QUESTION CERTIFIED.
SHARP, W., THOMPSON and PALMER, JJ., concur.
GRIFFIN, J., concurs and concurs specially with opinion, in which SHARP, W., THOMPSON, PALMER and MONACO, JJ., concur.
ORFINGER, J., concurs, in part, and dissents, in part, with opinion in which PLEUS, C.J., SAWAYA, TORPY and LAWSON, JJ., concur.
I agree with the original panel decision. I write only to explain why I believe that giving the instruction was fundamental error.
Judge Orfinger, in his partial dissent, acknowledges that this Court has already held that it constitutes fundamental error to give the instruction under the circumstances of this case. Hawk v. State, 902 So.2d 331, 333 (Fla. 5th DCA 2005); Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004). However, he contends that these decisions are wrong because the instruction involves an affirmative defense (self-defense) and not an element of the offense. This distinction appears to be drawn from cases such as Sochor v. State, 619 So.2d 285, 290 (Fla. 1993), in which the court had found that the complete failure to give an instruction on voluntary intoxication was not fundamental error because voluntary intoxication was a defense to, but not an essential element of the charged offense. The Sochor court reasoned that:
Fundamental error is error which goes to the foundation of the case. Sanford v. Rubin, 237 So.2d 134 (Fla. 1970). Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but not an essential element of, kidnapping. Therefore, the state did not have to disprove voluntary intoxication in order to convict Sochor of felony murder based on the underlying felony of kidnapping. Because the complained-of instruction went to Sochor's defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal. Moreover, there was sufficient evidence of attempted sexual battery, a general-intent crime to which voluntary intoxication is not a defense, upon which to base a conviction of felony murder.
Id. at 290 (footnote omitted) (emphasis added).
The instruction that was given in this case does not involve a failure to instruct on Sloss' defense of self-defense. The jury received that instruction. The problem is that the jury was given an additional (erroneous) instruction in avoidance of the affirmative defense. The self-defense instruction derives from Section 776.012, Florida Statutes, entitled "Use of Force in Defense of Person." Section 776.041, however, creates an avoidance of the defense: "The justification described in the preceding section 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. . . ." The instruction given effectively relieved the State of proving what was essentially an element of its proof — that defendant did not act in self-defense. See generally State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998) ("If a defendant establishes a prima facie case of self-defense, the state must overcome the defense by rebuttal, or by inference in its case in chief."); Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986) ("The state has the burden of proving guilt beyond a reasonable doubt, which includes proving beyond a reasonable doubt that the defendant did not act in self-defense."), citing Brown v. State, 454 So.2d 596, 598 (Fla. 5th DCA 1984).
It is clear that self-defense is an affirmative defense, as the defense essentially concedes the charged offense, but then seeks to interpose other facts as a valid excuse or justification for the conduct in question. State v. Cohen, 568 So.2d 49 (Fla. 1990). As the court explained in Cohen, "An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, `Yes, I did it, but I had a good reason.'" Id. at 52. The instruction here concerns the State's obligation to disprove the defendant's right to the avoidance or defense.
Sloss was justified under Florida law in using non-deadly force in self defense "when and to the extent that [he] reasonably believe[d] that such conduct [was] necessary to defend himself . . . against such other's imminent use of unlawful force." § 776.012, Fla. Stat. However, the erroneous instruction that was given informed the jury that Sloss was not justified in the use of non-deadly force if he was attempting to commit, committing, or escaping after the commission of aggravated battery. The instruction thus operated to relieve the State of its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.
Even if viewed as an erroneous instruction on a defense, the error is still fundamental. Sochor involved a failure to instruct the jury on a defense; it does not apply where an erroneous instruction has been given. See, e.g., Holiday v. State, 753 So.2d 1264 (Fla. 2000) (finding Sochor inapplicable to situation in which erroneous instruction was given). The appropriate analysis where an erroneous instruction on a defense has been given is to ask whether the instruction was so flawed as to deprive the defendant of a fair trial. Holiday; Smith v. State, 521 So.2d 106 (Fla. 1988). The errors in Holiday and Smith, cited by the dissent, involved an improper shifting of the burden of proof, not a total deprivation of a defense, so that the courts refused to find the instructions were fundamentally flawed.
Unlike Holiday and Smith, this case involves an instruction which operated to deprive the defendant of his only defense. Florida courts have frequently recognized that the giving of an erroneous instruction on a defense is fundamental error if the instruction effectively negates the defendant's only defense. See Thomas v. State, 831 So.2d 253, 253 (Fla. 3d DCA 2002) ("An incorrect jury instruction on the defense of justifiable use of deadly and nondeadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction."); Lester v. State, 813 So.2d 106 (Fla. 3d DCA 2002) (instructing jury in prosecution for burglary of a conveyance and grand theft to use caution in relying on accomplice's testimony for defendant was fundamental error; instruction was applicable only when accomplice testified against defendant, and instruction negated defendant's only defense); Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001) (error in jury instruction that negated defendant's entrapment defense in her cocaine trafficking and conspiracy to commit cocaine trafficking trial was fundamental, and thus reviewable, although defendant did not object to the instructions in open court, where error negated defendant's sole defense of entrapment); Carter v. State, 469 So.2d 194, 196 (Fla. 2nd DCA 1985) (instruction on self-defense which was incorrect and misleading and which had effect of negating defendant's only defense was fundamental error). By operating to deprive Sloss of his only defense, the instruction deprived Sloss of his right to a fair trial and was properly found to be fundamental error which requires reversal even in the absence of an objection. This analysis is also consistent with that of the Second and Fourth District Courts of Appeal, which have both previously held, as we have, that the error made in this case is fundamental. Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA), review denied, 890 So.2d 1115 (Fla. 2004); Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA), review denied, 891 So.2d 553 (Fla. 2004); Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). See also York v. State, 891 So.2d 569 (Fla. 2d DCA 2004) (appellate counsel was ineffective for failing to raise issue on direct appeal as fundamental error); Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003) (same).
SHARP, W., THOMPSON, PALMER, and MONACO, JJ., concur.
I agree with the majority decision to certify the question to the supreme court. However, I respectfully dissent from the remainder of the majority opinion, although I acknowledge that the opinion is consistent with Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005). In Hawk, this Court held that giving the forcible felony exception as part of the self-defense jury instruction, when the only charge against the defendant was aggravated battery, which was also the same act alleged to have been done in self-defense, improperly negated a self-defense claim and constituted fundamental error, reversible even in the absence of a contemporaneous objection. I disagree with that conclusion because I think Hawk fails to distinguish between the failure to give an instruction requiring proof of an essential element of the crime and the failure to give an instruction relevant to an affirmative defense.
In State v. Delva, 575 So.2d 643 (Fla. 1991), the supreme court said:
"[I]t is an inherent and indispensable requisite of a fair and impartial trial . . . that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence." Gerds v. State, 64 So.2d 915, 916 (Fla. 1953). 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. Castor v. State, 365 So.2d 701 (Fla. 1978); Brown v. State, 124 So.2d 481 (Fla. 1960). To justify not imposing the contemporaneous objection rule, "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." Brown, 124 So.2d at 484. In other words, "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) cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983).
In State v. Cohen, 568 So.2d 49, 51-52 (Fla. 1990), the court explained:
An "affirmative defense" is any defense that assumes the complaint or charges to be correct but raises other facts that, if true, would establish a valid excuse or justification or a right to engage in the conduct in question. An affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, "Yes, I did it but I had a good reason."
Florida case law holds that the use of force exception to the self-defense instruction should not have been given under the circumstances of this case, as the majority opinion correctly observes. However, when, as here, the erroneous instruction goes to an affirmative defense and not to an essential element of the crime, I believe that controlling precedent holds that such an error should generally not be considered fundamental, but, rather, should be treated like any other unpreserved trial error.
In Sochor v. State, 619 So.2d 285 (Fla. 1993), the defendant claimed that the trial court committed fundamental error when it failed to instruct the jury on voluntary intoxication as a defense to felony murder based on kidnapping. In rejecting that contention, our supreme court said:
[F]ailure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but not essential element of, kidnapping. . . . Because the complaint of instruction went to Sochor's defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal.
Id. at 290; accord Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005) (stating that trial court's failure to sua sponte instruct jury on guilty knowledge did not constitute fundamental error in prosecution for possession of cocaine; availability of affirmative defense did not obviate defendant's responsibility to request instruction, issue of defendant's knowledge was not disputed at trial, and evidence did not support a finding of lack of guilty knowledge); Bridges v. State, 878 So.2d 483 (Fla. 4th DCA 2004) (explaining that unlike the failure to instruct on an essential element of a crime, the failure to instruct on a defense cannot be raised for the first time on appeal); Goode v. State, 856 So.2d 1101 (Fla. 1st DCA 2003) (reiterating that a trial court's failure to give an instruction unnecessary to prove an element of a crime, such as affirmative defense of self-defense, is not fundamental error); Alfaro v. State, 837 So.2d 429 (Fla. 4th DCA 2002) (holding that court's failure to instruct jury on good faith defense to charge of grand theft of a motor vehicle was not fundamental error, as instruction did not go to an essential element of theft); Muteei v. State, 708 So.2d 626 (Fla. 3d DCA 1998) (determining that defendant, who did not request self-defense instruction in attempted first-degree murder prosecution or object to instructions given, failed to preserve such issue for appellate review, where instruction went to defense, not to essential element of crime charge). But see Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005) (holding that jury instruction that use of force likely to cause death or great bodily harm was not justifiable if defendant was attempting to commit, committing or escaping after commission of aggravated battery was fundamental error); Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA 2004) (holding that where a separate forcible felony is not involved, giving the use of force exception as part of the self-defense jury instruction negates the defense and constitutes fundamental error).
Unlike the situation in Sochor where the trial court did not instruct the jury on an affirmative defense, in this case, the trial court did give the jury an instruction on self-defense, albeit, an erroneous one. Consequently, this case may be more similar to Holiday v. State, 753 So.2d 1264 (Fla. 2000), and Smith v. State, 521 So.2d 106 (Fla. 1988), than Sochor. In Holiday, the supreme court considered whether fundamental error occurred when the court erroneously instructed the jury, without objection, regarding the affirmative defense of entrapment. In Smith, the court confronted the same issue relating to the affirmative defense of insanity. In both cases, the court rejected the argument that fundamental error had occurred. In Smith, the court reasoned:
The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interest of justice presents a compelling demand for its application. Ray v. State, 403 So.2d 956 (Fla. 1981). While we do recede from our view in Yohn [ v. State, 476 So.2d 123 (Fla. 1985),] concerning the inadequacy of the old standard jury instruction on insanity, we cannot say that it was so flawed as to deprive defendants claiming the defense of insanity of a fair trial. Despite any shortcomings, the standard jury instructions, as a whole, made it quite clear that the burden of proof was on the state to prove all of the elements of the crime beyond a reasonable doubt.
Thus, it appears that our supreme court views the complete failure to instruct the jury on an affirmative defense somewhat differently than erroneously instructing the jury on an affirmative defense. In the former situation, the supreme court has concluded that no fundamental error occurs. See Sochor. In the latter situation, it appears that fundamental error may occur if the erroneous jury instruction results in a serious deprivation of due process. See Holiday; Smith.
Another consideration in my analysis is the salutary purpose served by the contemporaneous objection rule. Requiring a defendant to make a contemporaneous objection to an erroneous jury instruction relating to an affirmative defense prevents a defendant from agreeing to the jury instructions at trial, and then objecting to the instructions on appeal, as has happened here. "Orderly procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (footnotes omitted).
We should be cautious when expanding the concept of fundamental error. Fundamental error, in the jury instruction context, occurs only when "the omission is pertinent or material to what the jury must consider in order to convict," Delva, 575 So.2d at 645 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla. 1982)) (emphasis added), or if the jury instructions as a whole, are so flawed as to deprive the defendant of due process, Smith; Holiday. See also Battle v. State, 911 So.2d 85 (Fla. 2005) (explaining that fundamental error only occurs when the omission is pertinent or material to what the jury must consider in order to convict).
Here, the jury instruction error did not relieve the State of its burden to prove each element of the offense charged beyond a reasonable doubt. Consequently, I do not believe the defendant was deprived of due process. Instead, a contemporaneous objection was required to preserve the issue for review.
Because I believe Hawk is inconsistent with the supreme court's opinions in Smith, Delva, Sochor, Holiday, and Battle, I respectfully dissent.
PLEUS, C.J., SAWAYA, TORPY and LAWSON, JJ., concur.