“The failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial.” (citing Ray v. State, 403 So.2d 956 (Fla.1981))
How later courts described this case
- “The failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial.” (citing Ray v. State, 403 So.2d 956 (Fla.1981))
Written by the judges who cited it.
The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GREG D. BROWN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-2498
[June 8, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Robin Rosenberg, Judge; L.T. Case No. 12CF007635AMB.
Carey Haughwout, Public Defender, and Richard B. Greene, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Greg D. Brown appeals from a final judgment of conviction and
sentence. Initially charged by information with one count of aggravated
assault with a firearm (“count I”) and one count of aggravated battery
with a firearm (“count II”), he was found guilty of the lesser-included
offense of improper exhibition of a firearm for count I, and guilty for
count II. Brown asserts that the trial court committed fundamental error
by instructing the jury that the right to stand his ground was vitiated if
he was engaged in unlawful activity, and by giving contradictory jury
instructions regarding the duty to retreat. For the reasons set forth
below, we affirm.
In State v. Floyd, 186 So. 3d 1013, 1019-22 (Fla. 2016), our Florida
Supreme Court recently considered the following question certified by the
First District Court of Appeal:
WHETHER FLORIDA STANDARD JURY INSTRUCTION
(CRIMINAL) 3.6(f) IS CONFUSING, CONTRADICTORY, OR
MISLEADING WITH RESPECT TO THE DUTY TO RETREAT
WHEN THERE IS A QUESTION AS TO WHETHER THE
DEFENDANT WAS THE INITIAL AGGRESSOR.
Concluding that it was not, the court explained that both Chapter 776 of
the Florida Statutes (2010), and the standard jury instructions “employ
nearly identical language,” and clarified that “[t]he same can be said of
the language pertaining to the right to stand one’s ground.” Id. at 1021.
Further, in both section 776.041(2)(a), Florida Statutes (2010), and the
standard jury instructions, the court found “no basis to doubt that the
‘every reasonable means to escape’ language only applies if the jury finds
the defendant to be the initial aggressor.” Id. at 1021.
Ultimately, the court concluded that the instruction “accurately and
correctly explains this law to the jury with regard to the factually
complex situations where the jury must unwind the facts to determine
who was the initial aggressor.” Id. at 1020.
Other facts described by the court in Floyd mirror the situation
presented to us in the instant case, and also support our decision to
affirm:
Floyd’s failure to object or raise concerns belies his
contention that the instructions were confusing, misleading,
or contradictory. A failure to raise a concern or object is an
indication that Floyd’s counsel did not perceive a problem.
See Barker v. State, 518 So. 2d 450, 452 (Fla. 2d DCA 1988)
(“The failure to object is a strong indication that, at the time
and under the circumstances, the defendant did not regard
the alleged fundamental error as harmful or prejudicial.”
(citing Ray v. State, 403 So. 2d 956 (Fla. 1981))).
Indeed, the record suggests that Floyd had no such
concern. In this case, Floyd’s counsel discussed the
instructions, specifically “the every reasonable means” part
of the instructions; repeatedly agreed to the instructions;
played an active role in tailoring the instructions; and offered
various comments. He even had an opportunity to reflect on
the instructions overnight. Despite this extensive
participation in the tailoring of the jury instructions, Floyd’s
counsel never once raised any concern or objected regarding
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the interplay between the “Stand Your Ground” language
and the “Initial Aggressor” language.
Id. at 1023.
Brown’s counsel had ample opportunity to suggest edits to the jury
instructions, but did not object to the issues now raised on appeal.
Because the unobjected-to jury instructions accurately communicated
the law to the jury and did not constitute fundamental error, we affirm
Brown’s judgment and sentence.
Affirmed.
WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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