Eady v. State , 229 So. 3d 434 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
NICHOLAS EADY, )
)
Appellant, )
)
v. ) Case No. 2D15-3153
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed October 20, 2017.
Appeal from the Circuit Court for Pasco
County; Pat Siracusa, Judge.
Howard L. Dimmig, II, Public Defender, and
Lauren R. Kiley, Special Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa, for
Appellee.
BADALAMENTI, Judge.
Nicholas Eady, a juvenile tried as an adult, appeals his jury conviction for
attempted second-degree murder. He argues that the trial court erred by instructing the
jury, over his timely objection, that he had a duty to retreat if the jury determined he was
engaged in unlawful activity while defending himself during a brawl. He claims that this
jury instruction deprived him of his sole defense, which was self-defense pursuant to
section 776.012(1), Florida Statutes (2012). Eady asserts that the trial court's refusal to
omit the instruction was erroneous because the circumstances underlying Eady's
attempted-murder conviction occurred in 2012, whereas the self-defense statute which
Eady had invoked did not suggest a duty to retreat until 2014. We agree. Because we
cannot conclude that the trial court's error was harmless, we reverse Eady's conviction
and remand for a new trial.
I. FACTS AND PROCEDURAL BACKGROUND
A. The Trial Testimony
In the early morning hours of July 8, 2012, a seventeen-year-old Eady was
with a group of his friends at a house party. During the party, some beer belonging to
one of Eady's friends went missing. Eady's group confronted a second group of guests
about the missing beer, suggesting they might have stolen it. This initial confrontation
did not become violent. Eventually, both groups left the first party and proceeded to a
second house party.
Joshua Febus and Ryan Leavitt were among the guests in this second
group accused of stealing the beer. Outside the location of the second house party, the
issue of the missing beer resurfaced between the two groups, and this time, tensions
boiled over. Febus testified that he threw the first punch, causing an all-out brawl
involving approximately fifteen or twenty people. Eady testified that he tried to break up
the brawl but ended up getting attacked by "[a] bunch of people" and stabbed in the
hand. Eady further testified that as he was being attacked, he pulled a pocket knife he
used for fishing from his pocket to defend himself. Specifically, Eady testified that he
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began swinging the pocket knife around at people "in self-defense" because he was
"scared for [his] life" and "didn't know what else to do." During the brawl, Febus was
stabbed five times in the back and Leavitt was stabbed in the neck. The State charged
Eady with attempted second-degree murder for stabbing Leavitt.1
B. The Jury Instructions
During the charge conference, Eady's counsel objected to the inclusion of
any jury instruction language suggesting that Eady had a duty to retreat if he was
engaged in an "unlawful activity." He asserted that he was proceeding under a self-
defense theory pursuant to the 2012 version of section 776.012(1), which had no such
language. Over defense counsel's timely objection, the trial court instructed the jury that
Eady had a duty to retreat if he was "engaged in an unlawful activity," a requirement
that did not exist in the 2012 version of section 776.012(1). The court's instruction went
as follows:
If the defendant was not engaged in an unlawful
activity and was attacked in any place where he had a right
to be, he had no duty to retreat and had the right to stand his
ground and meet force with force, including deadly force, if
he reasonably believed that it was necessary to do so to
prevent death or great bodily harm to himself or to prevent
the commission of a forcible felony.
(Emphasis added.)
Eady argues that the trial court's inclusion of the "not engaged in an
unlawful activity" charge to the jury undercut his sole defense, which was that he was
1The State charged Eady with one count of attempted second-degree
murder (for stabbing Leavitt) and one count of aggravated battery (for stabbing Febus).
After the State's case-in-chief, the trial court granted Eady's motion for judgment of
acquittal as to the aggravated battery count. Accordingly, the only charge presented to
the jury was for the attempted second-degree murder of Leavitt.
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acting in self-defense and had no duty to retreat pursuant to the 2012 version of section
776.012(1).
II. DISCUSSION
"Where there is any evidence which supports a theory of the defense, a
defendant is entitled to have the jury instructed on the law applicable to his theory when
he so requests." Wenzel v. State, 459 So. 2d 1086, 1087 (Fla. 2d DCA 1984) (citing
Bryant v. State, 412 So. 2d 347, 350 (Fla. 1982)). While a trial court's refusal to give an
instruction in the form requested by the defendant is normally reviewed for abuse of
discretion, "the trial court's discretion is limited [in criminal cases] because 'a criminal
defendant is entitled to have the jury instructed on his or her theory of defense if there is
any evidence to support this theory,' " assuming the defendant's theory is legally valid.
Williams v. State, 34 So. 3d 768, 770-71 (Fla. 2d DCA 2010) (quoting Worley v. State,
848 So. 2d 491, 492 (Fla. 5th DCA 2003)).
Under the 2012 version of Florida's Stand Your Ground Law,2 section
776.032(1) provides for immunity from criminal prosecution for any person who uses
force as permitted in section 776.012, section 776.013, or section 776.031. Here, Eady
raised his theory of self-defense under the 2012 version of section 776.012. Although
section 776.013 precludes immunity where a person engages in unlawful activity at the
time they use force, the version of section 776.012 in effect in 2012 did not. See Little
v. State, 111 So. 3d 214, 221-22 (Fla. 2d DCA 2013).
At the time of Eady's charged criminal conduct in 2012, section 776.012(1)
read, in relevant part, as follows:
2§§ 776.032, .012, .013, Fla. Stat. (2012).
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A person is justified in using force, except deadly force,
against another when and to the extent that the person
reasonably believes that such conduct is necessary to
defend himself or herself or another against the other's
imminent use of unlawful force. However, a person is
justified in the use of deadly force and does not have a
duty to retreat if:
(1) He or she reasonably believes that such force is
necessary to prevent imminent death or great bodily harm
to himself or herself or another or to prevent the imminent
commission of a forcible felony . . . .
§ 776.012(1). Construing the identical text of section 776.012(1) set forth above, our
court has held that this version of section 776.012(1) did not impose a duty to retreat
upon a defendant engaged in unlawful activity. See Andujar-Ruiz v. State, 205 So. 3d
803, 806-07 (Fla. 2d DCA 2016) (citing, inter alia, Little, 111 So. 3d at 220-22; Dorsey v.
State, 149 So. 3d 144, 147 (Fla. 4th DCA 2014)); cf. Miles v. State, 162 So. 3d 169,
171-72 (Fla. 5th DCA 2015) ("[U]nder the prior Stand Your Ground law, a defendant
could assert immunity under section 776.012 even if he or she was engaged in an
unlawful act at the time."); Garrett v. State, 148 So. 3d 466, 471 (Fla. 1st DCA 2014)
("The fact that [defendant] was a convicted felon in unlawful possession of a firearm did
not apply to the jury's consideration of whether [defendant] had a duty to retreat under
section 776.012(1)."); Hill v. State, 143 So. 3d 981, 985-86 (Fla. 4th DCA 2014) (en
banc) (holding that the application of section 776.012 is not limited to persons not
engaged in unlawful activity); Pages v. Seliman-Tapia, 134 So. 3d 536, 539 (Fla. 3d
DCA 2014) (holding that defendant need not establish that he was not engaged in
unlawful activity under section 776.012). Indeed, our court explained that an individual
may assert self-defense by the use of deadly force under this version of section
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776.012(1) with no duty to retreat, even if that defendant was engaged in unlawful
activity while standing his ground. See Andujar-Ruiz, 205 So. 3d at 805.3
In Little, this court granted a writ of prohibition in favor of the defendant,
holding that the trial court improperly denied his motion for pretrial Stand Your Ground
immunity and therefore lacked continuing jurisdiction to prosecute him. 111 So. 3d at
216. The defendant, Aaron Little, shot an acquaintance in self-defense. Id. at 217.
Little moved for pretrial immunity and argued that his use of deadly force in self-defense
was justified under section 776.012(1). Id. at 217-18. Little, however, was a convicted
felon who could not legally possess a firearm and thus was engaged in unlawful activity
at the time of the shooting. Id. at 219. The trial court denied his motion, and he
appealed. Id. at 217. On appeal to our court, the State argued that Little was not
entitled to immunity because he was engaged in unlawful activity under section
776.013(3). Id. at 218-19. Our court disagreed and held (1) that a person may pursue
immunity if they qualify "under either section 776.012(1) or 776.013(3)"; (2) that section
776.012(1) does not preclude immunity where the person who uses force engaged in
unlawful activity; and (3) that any person who did not meet the requirements of section
776.013(3) could look to section 776.012(1) as "another means of obtaining immunity."
See id. at 219-22.
Three years later, our court applied the holding of Little to the identical
versions of section 776.012(1) and section 776.013(3) that are at operation here. In
3In2014, the legislature amended section 776.012 to conform with section
776.013 so as to require the person using force or threatening to use force not be
engaged in unlawful activity. See ch. 2014-195, § 3, Laws of Fla.; Andujar-Ruiz, 205
So. 3d at 806 n.3. We note that our opinion is limited to application of those charged for
conduct occurring prior to implementation of the 2014 amendments.
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Andujar-Ruiz, the trial court used nearly identical language as the instruction at issue in
the case at bar to instruct the jury that Andujar-Ruiz had a duty to retreat if he was
engaged in unlawful activity. 205 So. 3d at 805. Our court held that an appellate public
defender gave ineffective assistance to Andujar-Ruiz where he failed to argue on direct
appeal that the trial court's instruction was fundamental error. Id. at 805-06. We
reasoned that because Andujar-Ruiz wished to base his theory of self-defense solely on
section 776.012(1), "[t]he trial court's instruction misled the jury by informing it that it
was required to find that Andujar-Ruiz retreated before resorting to force, contrary to the
plain language of section 776.012(1)." Id. at 807 (emphasis added). We held that this
flawed jury instruction negated the defendant's only defense—self-defense. Id. (citing
Williams v. State, 982 So. 2d 1190, 1194 (Fla. 4th DCA 2008)).
Our holdings in Little and Andujar-Ruiz dictate the outcome of this appeal.
Eady's counsel made it clear that Eady wished for his theory of self-defense to be
rooted in section 776.012(1) and objected to the inclusion of any language suggesting
that Eady had a duty to retreat were the jury to determine he was engaged in unlawful
activity. Although defense counsel alerted the trial court of our decision in Little, the trial
court nevertheless instructed the jury that Eady had a duty to retreat if he was engaged
in unlawful activity. The plain language of the applicable 2012 version of section
776.012(1) required no such thing. As in Andujar-Ruiz, the trial court here erroneously
charged the jury that if it determined that Eady was engaged in unlawful activity, he had
a duty to retreat. The only real point of contention at trial was the role Eady played in
the fight. As the trial court itself mused, it was unclear "whether the jury would consider
the fight [to be Eady's] fault or someone else's fault." Eady openly admitted that he took
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part in the brawl outside the location of the second house party and that he swung his
knife around in a manner that could have hurt others. The jury may have concluded
that Eady's use of deadly force was inappropriate because he was engaged in unlawful
activity of wielding his pocket knife and therefore had a duty to retreat. By charging the
jury that Eady had a duty to retreat were it to determine Eady was engaged in unlawful
activity, the trial court impermissibly negated Eady's sole defense at trial—self-defense.
Although the trial court's jury instruction may have been proper had Eady's conduct
occurred after the legislature's 2014 amendment of section 776.012, his conduct in fact
occurred prior to that amendment. We therefore reverse Eady's conviction for
attempted second-degree murder and remand for a new trial.
III. CONCLUSION
The trial court erred by incorrectly charging the jury that Eady had a duty
to retreat if he was engaged in unlawful activity while attempting to stand his ground.
This negated Eady's sole defense at trial, which was self-defense. We therefore
reverse Eady's conviction and remand for a new trial.
Reversed and remanded for a new trial.
CASANUEVA and KHOUZAM, JJ., Concur.
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