The opinion
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DENEAL BROWN, )
)
Petitioner, )
)
v. ) Case No. 2D14-1166
)
STATE OF FLORIDA, )
)
Respondent. )
)
Opinion filed March 30, 2016.
Petition Alleging Ineffective Assistance
of Appellate Counsel. Pinellas County;
Joseph A. Bulone, Judge.
Dane K. Chase of Chase Law Firm, for
Petitioner.
No appearance for Respondent.
KELLY, Judge.
On remand from the Florida Supreme Court, we reconsider Deneal
Brown's petition alleging ineffective assistance of appellate counsel in light of the
subsequent decision in Griffin v. State, 160 So. 3d 63 (Fla. 2015). Our conclusion that
Mr. Brown is entitled to no relief is unchanged.
Mr. Brown was charged with second-degree murder. His counsel told the
jury in his opening statement: "I believe that the evidence is going to show that this was
self-defense, that what turned into a verbal confrontation then turned into gun play, . . .
but the person who shot [the victim] was just quicker than he was." Mr. Brown testified
at trial that as he was driving out of the victim's apartment complex, the victim engaged
him in a verbal altercation. Mr. Brown started to drive away but returned when the
victim challenged him and his friend, who was a passenger in the car, to a fight. Mr.
Brown testified that his friend shot the victim when the victim reached for his gun.1
Nevertheless, Mr. Brown's counsel argued in closing, "I told you this was a case about
self-defense, and I told you that's what the evidence is going to show. This is a case of
self-defense."
The State disputed the presence of Mr. Brown's friend and Mr. Brown's
argument that the shooting was in self-defense, arguing that Mr. Brown's acts of driving
back to the victim and then shooting him in the torso demonstrated a depraved mind
without regard for human life. The jury found Mr. Brown guilty as charged, and the trial
court sentenced him to life in prison with a twenty-five-year mandatory minimum term in
accordance with the jury's findings that Mr. Brown discharged a firearm during the
commission of the offense and that the discharge caused the victim's death.
"Claims of self defense and defense of another involve 'an admission and
avoidance'." Keyes v. State, 804 So. 2d 373, 375 (Fla. 4th DCA 2001) (quoting
Williams v. State, 588 So. 2d 44, 45 (Fla. 1st DCA 1991)). By arguing without
qualification that he or his friend acted in self-defense, Mr. Brown necessarily conceded
that either intentionally caused the victim's death. "[A] defective instruction in a criminal
1
Mr. Brown testified that his friend was killed shortly after this homicide
occurred.
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case can only constitute fundamental error if the error pertains to a material element
that is disputed at trial." Daniels v. State, 121 So. 3d 409, 418 (Fla. 2013). Thus, the
manslaughter by act instruction that the supreme court held to be erroneous in State v.
Montgomery, 39 So. 3d 252 (Fla. 2010), was not fundamental error in Mr. Brown's case
because it did not prevent the jury from considering whether the evidence fit the
elements of manslaughter. Cf. Daniels, 121 So. 3d at 418-19 (holding the faulty
manslaughter by act instruction was fundamental error because the defendant admitted
to shooting the gun to scare someone but insisted he did not aim at anyone and did not
intend to kill); Horne v. State, 128 So. 3d 953, 956-57 (Fla. 2d DCA 2013) (holding that
because the defendant testified that he felt his life was threatened and that he intended
to shoot the victim in the leg but did not intend to kill the victim, the faulty instruction was
fundamental error).
Petition denied.
ALTENBERND and WALLACE, JJ., Concur.
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