Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-4981 _____________________________ PATRICK BERRANE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Francis Allman, Judge. February 16, 2022 PER CURIAM. A jury convicted Patrick Berrane of third-degree murder with a firearm, two counts of false imprisonment by use of a firearm, and grand theft of a motor vehicle after he shot and killed a man who had threatened his friend on social media. Appellant argues that the homicide was self-defense and that a jury instruction given at trial regarding the justifiable use of deadly force constituted fundamental error. We disagree and affirm. I. 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 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 pill- supplier’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 self- defense, but also that the shooting was accidental. 2 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. 3 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 self- defense theory provided a weak and baseless justification at trial 4 for having committed the various forcible felonies involved. Thus, it was not fundamental error for the trial court to give the forcible- felony 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 5 guilt as part of the harmless-error analysis where guilt has been established by evidence not related to the claimed error). AFFIRMED. OSTERHAUS and M.K. THOMAS, JJ., concur; B.L. THOMAS, J. dissents with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ B.L. THOMAS, J., dissenting with opinion. The majority focuses on whether the forcible-felony instruction at issue constituted fundamental error but does not address whether the instruction was erroneous. Here, based on the evidence, the forcible felony-instruction was provided in error. A forcible-felony instruction is erroneous where a defendant is not charged with a forcible felony separate from the felony he committed. Martinez v. State, 981 So. 2d 449, 453–54 (Fla. 2008); see also Santiago v. State, 88 So. 3d 1020, 1023 (Fla. 2d DCA 2012); Crimins, 113 So. 3d at 948 (holding it was fundamental error to give the forcible-felony instruction when an aggravated battery charge and attempted murder charge arose from the same underlying facts and the defendant’s claim of self-defense was asserted for both charges). Appellant was charged with four criminal acts, the relevant charges for this analysis being first-degree murder and two counts of kidnapping. The felonies listed in the forcible-felony instruction (first-degree murder, second-degree murder, third-degree murder, manslaughter, kidnapping, robbery, aggravated battery, aggravated assault, and sale, purchase or delivery of a controlled substance) were all included in the first-degree felony murder charge or the lesser-included offense of third-degree murder. See Fla. Std. Jury Instr. (Crim.) 7.2. Because the underlying alleged 6 felonies were all either an essential element of the first-degree felony murder charge or a lesser-included offense, it follows that those felonies were not “separate and independent” offenses in this context. See Martinez, 981 So. 2d at 453–54; see also Lindo v. State, 283 So. 3d 867, 870–71 (Fla. 3d DCA 2019) (holding the defendant was charged with a single crime for purposes of the forcible-felony instruction even though the jury was also instructed on two lesser- included offenses). As a result, the only forcible felonies for this Court to consider are first-degree murder and kidnapping. Appellant’s theory of defense was that he had to defend himself and others from a robbery at Mr. Briggs’s residence. The first-degree murder and kidnapping charges were both the result of actions Appellant took to allegedly defend himself from the imminent commission of a robbery. All three charges arose from the same underlying set of facts, and Appellant’s claim of self- defense was asserted for all three charges. Appellant argued that he was defending himself from a robbery, when he ordered the victim and his friend to get on the ground and shot the deceased during the ensuing altercation. (Whether a jury would accept this defense is not pertinent here, given that some evidence supports the argument.) As a result, there was no independent forcible felony to justify giving the forcible-felony instruction. See Martinez, 981 So. 2d at 453–54. The majority concludes that this erroneous forcible-felony instruction does not constitute fundamental error. I respectfully disagree. “In the context of jury instructions, fundamental error occurs only when an omission is pertinent or material to what the jury must consider in order to convict.” Elliot v. State, 49 So. 3d 269, 270 (Fla. 1st DCA 2010). The majority correctly states 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.” Martinez, 981 So. 2d at 455–57. Our Court and other district courts have not hesitated to hold that a trial court committed fundamental error by giving an erroneous forcible-felony instruction. Smith v. State, 76 So. 3d 379, 386–87 (Fla. 1st DCA 2011) (holding forcible-felony instruction reached the level of fundamental error and significantly prejudiced the 7 defense where the jury had to resolve conflicts in the evidence to determine whether the appellant acted in self-defense and the substance of the misleading instruction effectively gutted the appellant’s key defense); Gregory v. State, 141 So. 3d 651, 655 (Fla. 4th DCA 2014) (holding reading of forcible-felony instruction was fundamental error where self-defense was the appellant’s only theory of defense and the appellant’s self-defense claim was not “extremely weak”); Crimins v. State, 113 So. 3d 945, 949 (Fla. 5th DCA 2013) (holding Crimins’ sole defense for aggravated battery was self-defense and the claim of self-defense was not “extremely weak,” so the trial court fundamentally erred by giving the forcible-felony instruction). The majority first determines that Appellant’s self-defense claim is weak. However, based on the conflicting evidence presented at trial, I disagree, for purposes of this analysis. See Smith, 76 So. 3d at 386–87 (holding the trial court’s inclusion of the forcible-felony instruction reached the level of fundamental error where the jury had to resolve conflicts in the evidence to determine whether the appellant acted in self-defense). Appellant presented evidence that shortly before the incident, Mr. Briggs read Facebook messages from the deceased stating that he was going to rob Mr. Briggs. Based on the fear that he was going to be robbed, Mr. Briggs, Appellant, and the other codefendants planned to confront the deceased. They armed themselves for what they believed could be a dangerous encounter, based on the deceased’s reputation as testified by a witness. When two cars and five people arrived at Mr. Briggs’s residence, including the deceased, Mr. Briggs and the other codefendants became even more suspicious. They ordered the deceased and his friend to get on the ground when they entered the residence. The deceased did not obey the order and fought Appellant and the other codefendants. (The other victim did comply and was not physically injured.) During the altercation, Appellant shot the deceased. Thus, Appellant presented evidence that he engaged in self- defense to defend himself and the other codefendants from what he believed was the imminent commission of a robbery. See Smith, 76 So. 3d at 386–87. 8 Next, the majority determines that in addition to Appellant’s self-defense claim being weak, it was not Appellant’s sole or primary defense, because his accident defense was his strongest defense. But there is no requirement that self-defense be Appellant’s “strongest” defense to justify precluding the forcible- felony instruction. See Martinez, 981 So. 2d at 455–57. Additionally, self-defense was one of Appellant’s primary defenses and it was his sole defense to the lesser-included offense of third- degree murder. * When laying the foundation for his defense during opening statements, Appellant’s counsel stated: “So that will show you that there is no premeditation in this case; that the death of [the deceased] was caused by the justifiable use of deadly force or by accident, one of those two things, either self-defense or possibly manslaughter, but certainly not murder.” Thus, defense counsel made it clear that his theories of defense were accident and self- defense. Defense counsel continued to rely on those theories during closing arguments and dedicated a large portion of his closing argument to the theory of self-defense. Self-defense was the sole defense to Appellant’s third-degree murder and manslaughter charges. The jury found Appellant guilty of third-degree murder. As a result, the forcible-felony instruction given here constitutes fundamental error. See Martinez, 981 So. 2d at 455–57. Because we are bound by the precedent of Martinez, and must hold the instruction was error, and based on the facts, I would remand for a new trial on the first-degree murder and kidnapping charges. Therefore, I respectfully dissent. _____________________________ Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant. * Third degree murder is defined as the unlawful killing of a human being without any design to effect death while committing or attempting to commit a felony. § 782.04(4), Fla. Stat. (2017) (emphasis added). Thus, under third degree murder, an accidental defense would not be a proper defense to this charge. See Hieke v. State, 605 So. 2d 983, 983 (Fla. 4th DCA 1992). 9 Ashley Moody, Attorney General, Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 10