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Tallahassee, FL - Divorce lawyer represented defendant with third-degree murder, two counts of false imprisonment, and grand theft of a motor vehicle.

On the day of the fatal shooting, a friend of Appellant, Mr.
Briggs, discovered Facebook messages in which the murder victim
discussed robbing Briggs and taking his drugs and dog. After
reading the messages, Briggs learned that the victim and two
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strangers had stopped by his house when Briggs was not there.
Briggs responded by convening a group at his home, including
Appellant and a few other friends, and hatching a plan to have his
girlfriend invite the victim back over to his house where the group
would confront him about his online threat and beat him up.
The group executed the plan with Briggs’s girlfriend asking
the victim to return to Briggs’s house to sell her some pills. The
victim agreed and returned to Briggs’s house with another man
who supplied the pills. When the victim and the pill-supplier
entered the house, Briggs, Appellant, and others converged on the
invitees from various hiding spots while heavily armed and few of
them in tactical gear. They ordered the invitees to the ground
removing their wallets and cell phones. When the victim resisted,
one of Briggs’s friends hit the victim with a hammer and others
punched him as he fell to the ground.
Things seemed to settle down once the victim was on the
ground with Appellant standing over him with an AK-47. But all
that changed when Appellant suddenly shot the victim in the
chest. According to witnesses, the shooting was an accident. Briggs
remembered Appellant “freaking out” and becoming “ghost white”
because he had shot the victim accidentally. Briggs heard
Appellant say the victim tried to grab the gun and it went off.
Another witness also saw Appellant visibly shaking and
distraught and heard him say that it was an accident.
The victim’s body was removed to the trunk of the pillsupplier’s car, which Appellant and one of the others drove away
while taking the pill-supplier with them. The pill supplier
eventually escaped and called police. And police later found the car
abandoned with the victim’s body still in the trunk. Ultimately,
Appellant and others involved at the crime scene were
apprehended and tried together.
Regarding the jury instruction issue challenged here, the
parties discussed the justifiable use of deadly force instruction
thoroughly at the charge conference and again before the
instructions were given to the jury. The defendants’ attorneys took
an active role in editing the instruction and approving it. At closing
arguments, Appellant argued that his actions were taken in selfdefense, but also that the shooting was accidental.
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The jury ultimately found Appellant guilty of the four crimes
described at the outset. Accompanying Appellant’s third-degree
murder conviction were special findings that (1) the killing
occurred during the commission of a false imprisonment, an
aggravated battery, and an aggravated assault; (2) Appellant
actually possessed and discharged a firearm causing great bodily
harm or death to the victim; and (3) Appellant personally carried,
displayed, used, threatened to use, or attempted to use a firearm
or weapon. As to the two false imprisonment counts, the jury’s
verdict included special findings that Appellant personally carried,
displayed, used, threatened to use, or attempted to use a firearm
or weapon. Appellant was sentenced to forty years under the
10-20-Life statute on Count I, a consecutive ten years on Counts II
and III, and a consecutive five years on Count IV.
II.
Appellant argues that the trial court committed fundamental
error by giving the justifiable use of deadly force instruction where
there was no independent forcible felony, and that the instruction
prevented the jury from accepting his self-defense theory. An
argument that a jury instruction constitutes fundamental error is
reviewed de novo. Elliot v. State, 49 So. 3d 269, 270 (Fla. 1st DCA
2010). The forcible-felony instruction in this case stated as follows:
However, the use of deadly force is not justified if you find
that the Defendant was attempting to commit,
committing, or escaping after the commission of First
Degree Murder, Second Degree Murder, Third Degree
Murder, Manslaughter, Kidnapping, Robbery,
Aggravated Battery, Aggravated Assault, or Sale,
Purchase or Delivery of a Controlled Substance.
Appellant claims that the trial court erred in giving this
instruction because the felonies listed in the instruction were the
same ones for which he claims self-defense. It is error to give a
forcible-felony instruction when a defendant is not charged with a
forcible felony separate from actions taken in self-defense.
Martinez v. State, 981 So. 2d 449, 453–54 (Fla. 2008). And if a
defendant claims self-defense as to every forcible felony with which
he is charged, there may not be a separately charged crime that
can support the instruction. See, e.g., Woodsmall v. State, 164 So.
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3d 696, 698 (Fla. 5th DCA 2015); Santiago v. State, 88 So. 3d 1020,
1023 (Fla. 2d DCA 2012).
But in this case, we find no fundamental error to have been
made by the trial court with respect to the instruction.
Fundamental error is error that reaches “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 Florida Supreme Court
recognized in Martinez that an erroneous forcible-felony
instruction is not fundamental unless it vitiates a defendant’s sole
or primary defense strategy and the self-defense theory put forth
by the defense is not “weak.” 981 So. 2d at 455–57; see also Day v.
State, 119 So. 3d 485, 489–90 (Fla. 1st DCA 2013) (deciding against
applying the fundamental error doctrine where the instruction
jeopardized the defendant’s sole prescription defense strategy, but
the strategy was considered to be a weak theory of defense).
Considering all that occurred here, including the other jury
instructions given to the jury, the evidence presented, and
counsel’s arguments and trial strategies, see Moorer v. State, 278
So. 3d 181, 187 (Fla. 1st DCA 2019), we see two problems with
Appellant’s fundamental error argument. First, his self-defense
theory is extremely weak. Remember, it was Appellant and his
friends who were the aggressors here. They schemed a plan to
invite, ambush, and beat up the victim at Briggs’s house for
making threats through an electronic messaging application. They
had Briggs’s girlfriend lure the victim to Briggs’s house with an
offer to buy pills. When the victim arrived with another man (the
pill-supplier who had threatened no one), they were invited into
the house by Briggs’s girlfriend to do the deal. After she locked the
door behind her guests, Appellant’s group sprung from their hiding
places all suited up in tactical gear and with many firearms. They
violently subdued the victim and the pill-supplier using their
firearms, fists, and a hammer or brass knuckles. They also stole
their guests’ belongings, taped them up, and held them captive.
The plan only went awry when Appellant shot and killed the
unarmed victim, apparently accidentally, while standing over him
with an AK-47. Under these circumstances, Appellant’s selfdefense theory provided a weak and baseless justification at trial
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for having committed the various forcible felonies involved. Thus,
it was not fundamental error for the trial court to give the forciblefelony instruction. Any error made with this instruction did not
deprive Appellant of a fair trial.
Second, no fundamental error occurred here with respect to
the murder charge because the forcible felony instruction did not
impair Appellant’s sole or primary defense strategy. Rather, the
record shows that Appellant’s accident defense was his strongest
defense. The trial evidence indicated that Appellant was standing
over the victim when the victim reached for the firearm held by
Appellant, which triggered an accidental shooting and the victim’s
death. According to various witnesses, Appellant reacted with
shock and surprise that the victim had been shot. Further,
Appellant argued during opening statements and then repeatedly
at closing that uncontroverted evidence showed that the victim
was shot and killed accidentally during the confrontation. And so,
Appellant’s fundamental error arguments on the instruction falls
short not only because his self-defense claims were weak, but also
because Appellant was not deprived of his sole or primary defense
strategy on the murder charge. In reaching these conclusions we
disagree with the dissent’s view that Appellant’s self-defense
theory was credible and primary.
Finally, we reject Appellant’s other argument that the trial
court abused its discretion by excluding rumor-oriented evidence
of the victim’s violent reputation for robbing others in the drug
community. At trial, Appellant’s defense included showing
messages of the victim’s apparent plan to rob Briggs and other
testimony about violent acts committed by the victim such as
robbing easy targets, assault, burglary, and other drugs- and
weapons-related offenses. This evidence, which was allowed by the
trial court after proper foundation was laid, covered much the
same ground as the generic reputation-for-robbing evidence
Appellant sought to introduce about the victim. Any error made by
the trial court in excluding other similar reputational evidence was
harmless. This is particularly true under the circumstances here
where Appellant and his friends were the ambushing aggressors.
Additional reputational evidence disparaging the victim would not
have contributed to the verdict. See Thorne v. State, 271 So. 3d 177,
184–85 (Fla. 1st DCA 2019) (allowing overwhelming evidence of
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guilt as part of the harmless-error analysis where guilt has been
established by evidence not related to the claimed error).

Outcome: AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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