Orando Ricardo Thompson v. State of Florida , 257 So. 3d 573 ( 2018 )


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  •            FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-2012
    _____________________________
    ORANDO RICARDO THOMPSON,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Bay County.
    Michael C. Overstreet, Judge.
    October 15, 2018
    ROWE, J.
    Orando Ricardo Thompson challenges his conviction for
    second-degree murder and his sentence of life imprisonment. We
    affirm, but write to address three of his arguments on appeal.
    Facts
    In the summer of 2015, tempers started to simmer when Caleb
    Halley, a long-time employee of Buddy’s Seafood Market, learned
    that Orando Thompson, a newer employee, added hot sauce and
    other seasonings to the gumbo Halley prepared earlier that day.
    Halley confronted Thompson about adding seasoning to the
    gumbo, and the argument escalated to a physical altercation
    outside of the market. At one point, Thompson left the fight,
    reentered the market, retrieved a sword on display in a backroom
    of the market, and returned outside to stab Halley three times in
    the abdomen. These wounds ultimately led to Halley’s death.
    Before trial, Thompson moved to dismiss the charge, arguing
    that he was immune from prosecution pursuant to the Stand Your
    Ground Law. The trial court conducted an evidentiary hearing
    and denied the motion. Thompson challenged this denial via a writ
    of prohibition. This Court denied the petition without prejudice to
    Thompson’s ability to raise the affirmative defense of self-defense
    at trial. Thompson v. State, 
    204 So. 3d 990
    , 991 (Fla. 1st DCA
    2016).
    The altercation between Halley and Thompson, which
    occurred directly behind the business, was recorded from two
    different angles by the surveillance equipment installed at
    Buddy’s Seafood Market. Although the video has no sound, it
    depicts Halley approaching Thompson and the two beginning to
    argue. Thompson testified at trial that when Halley first
    approached him, Halley said, “[D]on’t touch my fucking gumbo
    again.”
    The physical altercation began with the two men puffing out
    their chests and pushing at each other. Halley appears to pull
    something from his pocket (Thompson later testified that it was a
    knife) and Thompson arms himself with a discarded piece of
    lumber. When Thompson dropped the piece of lumber, the two
    men resumed pushing each other. Thompson then armed himself
    with a discarded broom handle, and Halley picked up the piece of
    lumber Thompson had dropped. At this point, the men appear to
    be in an heated verbal exchange, and although armed, the men
    still only push each other with open palms.
    After about ninety seconds, Thompson can be seen leaving the
    fight and going inside the market. Halley, under an apparent
    belief that the altercation was over, picked up his belongings and
    started walking towards his vehicle. A video from a different angle
    shows that when Thompson entered the market, he walked
    directly to the backroom and grabbed a sword that was displayed
    on the wall. The sword had a fifteen-inch blade.
    2
    After about twenty seconds, Thompson returned outside to
    confront Halley with the sword. Halley used the nearby broom
    handle to defend himself. The men continued to scuffle and swing
    their respective weapons at each other. Thompson can be seen
    making stabbing motions with the sword. The altercation
    continues until two employees exit the market and break up the
    fight. When the men were finally separated, a witness testified
    that Halley said, “He stabbed me, bro,” and a portion of Halley’s
    intestines was visibly protruding from one of his wounds.
    Halley was taken to the hospital, but he died as a result of
    complications from the abdominal stab wounds. Halley suffered a
    total of three stab wounds. Two of the wounds were deep enough
    to penetrate the abdominal cavity.
    When he was interviewed by the police after the stabbing,
    Thompson told Lt. Eusebio Talamantez, the lead investigator, that
    Halley pulled out a knife and threatened to cut him. He explained
    that he felt that he had to defend himself so he grabbed the sword
    from the backroom. When asked why he went back outside with
    the sword, Thompson explained it was because he was mad and
    upset with Halley.
    At trial, during direct examination, Lt. Talamantez referred
    to some of the statements made by Thompson during the recorded
    interview as “inaccurate” and “not true.” On cross-examination,
    defense counsel, in an attempt to challenge the thoroughness of
    the investigation, asked Lt. Talamantez about the proper method
    of investigating a self-defense case, and the lieutenant responded,
    “This case wasn’t self-defense, it was the exact opposite of self-
    defense.” Defense counsel did not object to this statement.
    After the trial court denied Thompson’s motion for judgment
    of acquittal, Thompson testified on his own behalf. He explained
    that he was authorized to spice the gumbo. Thompson testified
    that, in his capacity as an employee at Buddy’s Seafood Market, he
    had known and worked with Halley for four or five years. While
    he characterized their relationship as good, Thompson also
    testified that Halley would often complain about the quality of
    Thompson’s work.        Thompson and several other employees
    testified that Halley was known to carry a small knife around his
    3
    neck that he used to open boxes. He explained that he went inside
    to get the sword because Halley was coming towards him with a
    board and he was scared.
    At the charge conference, defense counsel asked the court to
    include an instruction on the justifiable use of non-deadly force.
    The State objected to the inclusion of the instruction, arguing that,
    under the facts of this case, there was no support for the assertion
    that the sword was used in a non-deadly manner. The trial court
    denied the request.
    Defense counsel also asked the court to refrain from
    instructing the jury that the use of deadly force was not justified if
    Thompson initially provoked the use of force against himself
    because Halley was the initial aggressor. The State argued that
    Thompson provoked the use of force against himself when he left
    the fight, went inside the market to retrieve the sword, and
    returned outside to confront Halley. The trial court overruled the
    objection.
    The jury found Thompson guilty of second-degree murder and
    he was sentenced to life imprisonment. This timely appeal follows.
    Analysis
    On appeal, Thompson raises three issues that merit
    discussion. First, he argues that fundamental error occurred or,
    in the alternative, trial counsel was ineffective when the lead
    investigator was permitted to comment on Thompson’s credibility
    and testify that this was not a self-defense case. Second,
    Thompson contends that the trial court should have granted his
    motion for judgment of acquittal because the evidence showed no
    more than an impulsive overreaction to Halley’s attack. Third, he
    asserts that the trial court erred in refusing to instruct the jury on
    the justifiable use of non-deadly force and erred in instructing the
    jury on the initial aggressor exception to the use of deadly force.
    Fundamental Error/Ineffective Assistance of Counsel
    Thompson argues that fundamental error occurred or, in the
    alternative, trial counsel was ineffective when the lead
    4
    investigator was allowed to testify that this was a self-defense case
    and to comment on Thompson’s credibility. We review these
    arguments de novo. Elliot v. State, 
    49 So. 3d 269
    , 270 (Fla. 1st
    DCA 2010).
    As a general rule, “a witness’ opinion as to the credibility,
    guilt, or innocence of the accused is inadmissible.” Jackson v.
    State, 
    107 So. 3d 328
    , 339 (Fla. 2012). “[I]t is especially
    troublesome when a jury is repeatedly exposed to an interrogating
    officer’s opinion regarding the guilt or innocence of the accused.”
    
    Id. at 340
    ; Martinez v. State, 
    761 So. 2d 1074
    , 1080 (Fla. 2000)
    (“[T]here is an increased danger of prejudice when the
    investigating officer is allowed to express his or her opinion about
    the defendant’s guilt.”).      Here, Lt. Talamantez repeatedly
    commented on Thompson’s credibility by asserting that many of
    the statements made during Thompson’s interview were
    inaccurate and untrue. Had defense counsel objected to any of
    Talamantez’s above-mentioned statements, then the trial court
    would have been required to sustain the objection as they were
    impermissible comments on Thompson’s guilt. See Battle v. State,
    
    19 So. 3d 1045
    , 1048 (Fla. 4th DCA 2009) (noting that if defense
    counsel had properly objected to the detective’s statement that he
    was certain that the defendant was the person that committed the
    burglary, then the trial court would have been required to exclude
    the testimony as impermissible opinion on the defendant’s guilt).
    Further, it is impermissible for an investigator to testify that
    a case does not involve self-defense. Bartlett v. State, 
    993 So. 2d 157
     (Fla. 1st DCA 2008). In Bartlett, the investigating officer
    testified that he ruled out self-defense before signing a complaint
    for murder.      
    Id. at 158
    .     This Court held that this was
    impermissible testimony because the testimony improperly
    invaded the province of the jury and allowed the investigator to
    serve as a fact-finder by determining that self-defense was not a
    viable defense. 
    Id. at 161
    . Here, Lt. Talamantez acted as a fact-
    finder by stating his personal conclusion that this case did not
    involve self-defense. Again, had defense counsel objected to this
    testimony, the trial court would have been required to sustain the
    objection.
    5
    But merely because the lead investigator’s testimony was
    admitted in error does not mean that it rises to the level of
    fundamental error. Rarely will an error be deemed fundamental.
    F.B. v. State, 
    852 So. 2d 226
    , 229 (Fla. 2003). The supreme court
    has stated, “in order to be of such fundamental nature as to justify
    a reversal in the absence of timely objection the error must reach
    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.” 
    Id.
     (quoting Brown v. State, 
    124 So. 2d 481
    , 484
    (Fla. 1960)).
    Under the specific facts of this case, the investigator’s
    statements do not rise to the level of fundamental error. Rather,
    they are harmless because there is no reasonable possibility that
    these statements contributed to the jury’s verdict. See State v.
    DiGuilio, 
    491 So. 2d 1129
    , 1135 (Fla. 1986). Here, the jury’s guilty
    verdict would be easily attainable without the investigator’s
    statements because the jury was able to watch a video of the
    altercation. Unlike most surveillance videos, this one was crisp,
    clear, and in color. The jury was able to view the altercation from
    two different angles and was able to watch Thompson leave the
    fight, enter the business to obtain the sword, and return to the
    fight. The video demonstrates that Thompson had multiple
    opportunities to end the altercation and he, instead, chose to
    reinitiate the fight with Halley.
    In the alternative, Thompson argues that defense counsel’s
    failure to object to the lieutenant’s statements was ineffective
    assistance of counsel on the face of the record. “An appellate court
    initially reviewing a conviction will only grant relief for ineffective
    assistance of counsel where the ineffectiveness of counsel is
    apparent from the face of the record before the appellate court and
    a waste of judicial resources would result from remanding the
    matter to the lower court for further litigation.” Monroe v. State,
    
    191 So. 3d 395
    , 403 (Fla. 2016). To establish a claim of ineffective
    assistance of counsel, a defendant must show that counsel’s
    performance was deficient and that he was actually prejudiced by
    the deficient performance. Strickland v. Washington, 
    466 U.S. 668
    , 687-88, 691-92 (1984). “The benchmark for judging claims of
    ineffectiveness . . . is whether the conduct of counsel ‘so
    undermined the proper functioning of the adversarial process that
    6
    the trial cannot be relied on as having produced a just result.’”
    Cabrera v. State, 
    766 So. 2d 1131
    , 1133 (Fla. 2d DCA 2000)
    (quoting Downs v. State, 
    453 So. 2d 1102
    , 1106 (Fla. 1984)).
    Although defense counsel’s performance was deficient because
    he should have objected to several portions of the investigator’s
    testimony, Thompson cannot establish that he was prejudiced by
    the failure to object because the video of the altercation would still
    have been admissible. The jury was able to watch the entire
    altercation – from two different angles – when determining
    whether Thompson was guilty of second-degree murder. Thus,
    Thompson is unable to show that there is a reasonable probability
    that the outcome of his trial would have been different if defense
    counsel had objected to the investigator’s testimony.
    Judgment of Acquittal
    Next, Thompson contends that the trial court should have
    granted his motion for judgment of acquittal because the evidence
    did not support a conviction for second-degree murder but showed
    no more than an impulsive overreaction to Halley’s attack. We
    review this argument de novo. Dunn v. State, 
    206 So. 3d 802
    , 804
    (Fla. 1st DCA 2016). The legal test for determining whether a
    judgment of acquittal should be granted is “whether after all
    conflicts in the evidence and all reasonable inferences therefrom
    have been resolved in favor of the verdict on appeal, there is
    substantial, competent evidence to support the verdict and
    judgment.” Tibbs v. State, 
    397 So. 2d 1120
    , 1123 (Fla. 1981). Legal
    sufficiency alone, as opposed to evidentiary weight, is the sole
    concern of an appellate court. 
    Id.
    “In the context of second-degree murder, an act is imminently
    dangerous to another and evinces a ‘depraved mind’ if it is an act
    or series of acts that: (1) a person of ordinary judgment would know
    is reasonably certain to kill or do serious bodily injury to another;
    and (2) is done from ill will, hatred, spite or an evil intent; and (3)
    is of such a nature that the act itself indicates an indifference to
    human life.” Wiley v. State, 
    60 So. 3d 588
    , 591 (Fla. 4th DCA 2011).
    However, an impulsive overreaction to an attack is insufficient to
    support a second-degree murder conviction. Antoine v. State, 
    138 So. 3d 1064
    , 1073 (Fla. 4th DCA 2014). This is so because “(a) a
    7
    defendant who at worst acts recklessly does not satisfy the
    ‘depraved mind’ element of the crime; and (b) conduct in the form
    of an immediate overreaction to an assault is generally insufficient
    to prove ill will, hatred, spite, or evil intent, as those mental states
    usually require more than an instant to develop.” Henry v. State,
    
    145 So. 3d 924
    , 927 (Fla. 4th DCA 2014).
    Here, the evidence did not support a finding that Thompson’s
    stabbing of Halley was an impulsive overreaction because
    Thompson had time to consider the nature of his act. Antoine, 
    138 So. 3d at 1073
    . The surveillance video shows that it took
    Thompson at least twenty seconds to leave the fight, go inside the
    market, retrieve the sword, and return outside to reinitiate the
    fight. Thompson admitted during his recorded interview that he
    went back outside because he was mad and upset. Thompson’s use
    of the sword was clearly an “overreaction,” but it was not
    “impulsive” as he had ample time to consider the ramifications of
    returning outside to reengage in the fight with Halley. The video
    shows that Halley made no attempt to pursue Thompson and that
    Halley had prepared to leave the fight by gathering his belongings.
    There was competent, substantial evidence from which the jury
    could, and did, conclude that Thompson acted with a deliberate
    disregard for human life; thus, the trial court properly denied the
    motion for judgment of acquittal.
    Jury Instructions
    Finally, Thompson asserts that the trial court erred in
    refusing to instruct the jury on the justifiable use of non-deadly
    force and also erred in instructing the jury on the initial aggressor
    exception to the use of deadly force. We review arguments
    concerning the giving or withholding of jury instructions for an
    abuse of discretion. Kervin v. State, 
    195 So. 3d 1181
    , 1182 (Fla. 1st
    DCA 2016).
    When determining whether to give an instruction on deadly
    or non-deadly force, the trial court should focus on the nature of
    the force used, not on the weapon itself, because a deadly weapon
    can be used without deadly force. Brown v. State, 
    113 So. 3d 103
    ,
    104 (Fla. 5th DCA 2013). If the force used is clearly deadly or non-
    deadly as a matter of law, only the applicable jury instruction
    8
    should be given. Larsen v. State, 
    82 So. 3d 971
    , 974 (Fla. 5th DCA
    2011). “Where the evidence at trial does not establish that the
    force used by the defendant was deadly or non-deadly as a matter
    of law, the question is a factual one to be decided by the jury, and
    the defendant is entitled to jury instructions on the justifiable use
    of both types of force.” 
    Id.
     (quoting Cruz v. State, 
    971 So. 2d 178
    ,
    182 (Fla. 5th DCA 2007)).
    “Although Florida courts have clearly and consistently
    emphasized that the determination of whether a weapon is deadly
    is a question to be decided by a jury, this general rule is applicable
    only where the evidence of a particular case does not establish that
    the weapon used was deadly as a matter of law.” Id. at 975. The
    act of “thrusting a knife into someone’s chest cavity, home of many
    vital organs” has been found to be deadly force because it is likely
    to cause death or great bodily harm. Id. (citing Waldo v. State, 
    728 So. 2d 280
    , 281 (Fla. 3d DCA 1999)). The act of using a sharp knife
    to strike the victim’s neck was determined to be deadly force as a
    matter of law. 
    Id.
     In contrast, the act of making “a single slashing
    motion with a razor blade towards the victim’s hand” was
    determined to be non-deadly force because death was not the
    natural, probable and foreseeable consequence of the defendant’s
    action. 
    Id.
     (citing DeLuge v. State, 
    710 So. 2d 83
    , 84 (Fla. 5th DCA
    1998)).
    Here, Thompson’s use of a sword with a fifteen-inch blade was
    deadly force as a matter of law because death is a natural and
    foreseeable consequence of slashing and stabbing another person
    with a sword. Brown, 
    113 So. 3d at
    105 n.1 (“[A] defendant is
    engaged in the use of deadly force where the ‘natural, probable and
    foreseeable consequences of the defendant’s acts are death.’”)
    (quoting Garramone v. State, 
    636 So. 2d 869
    , 871 (Fla. 4th DCA
    1994)). This is especially true here because the video shows that
    Thompson was stabbing Halley’s torso where many vital organs
    are located. Therefore, the evidence did not support the trial court
    giving a jury instruction on non-deadly force because the evidence
    showed that Thompson used the sword in a deadly manner as a
    matter of law.
    Thompson’s argument that the trial court erred in giving the
    initial aggressor exception to the use of deadly force instruction is
    9
    also without merit. “Under [stand your ground and justifiable use
    of deadly force], a person is justified in the use of deadly force and
    has no duty to retreat if: (1) he is in a place where he has the right
    to be; (2) he reasonably believes such force is necessary to prevent
    death or great bodily harm or the imminent commission of a
    forcible felony; (3) he did not initially provoke the use of force
    against himself (he was not the initial aggressor); and (4) he was
    not himself attempting to commit, committing, or escaping after
    the commission of a forcible felony.” Wyche v. State, 
    170 So. 3d 898
    , 905 (Fla. 3d DCA 2015). Thompson argues that the trial court
    erred in giving the initial aggressor portion of the justifiable use of
    deadly force instruction because he did not initiate the fight with
    Halley.
    An initial aggressor instruction is proper when there is
    evidence in the record that the defendant may have initially
    provoked the use of force against himself. Johnson v. State, 
    65 So. 3d 1147
    , 1149 (Fla. 3d DCA 2011). The evidence in this case
    demonstrates that there were essentially two altercations between
    Thompson and Halley. Halley was the initial aggressor of the first
    altercation because he confronted Thompson about adding spices
    to the gumbo and was first to lay hands on Thompson. This
    altercation ended when Thompson left the fight and entered the
    market to retrieve the sword. Halley did not follow Thompson into
    the market to try to continue the fight. Rather, he was outside
    gathering his belongings and appeared to be prepared to leave.
    Thompson, on the other hand, went inside the market with the
    express purpose of arming himself with the sword. He returned
    outside and initiated the second fight by swinging the sword and
    stabbing Halley. These facts lead to the conclusion that any threat
    to Thompson was over by the time that Thompson armed himself
    with the sword; thus, Thompson was the initial aggressor during
    the second altercation. See Cruz v. State, 
    189 So. 3d 822
    , 827 (Fla.
    4th DCA 2015) (recognizing that an altercation can be viewed as
    two separate events).
    Finding no error, we affirm Thompson’s conviction and
    sentence for second degree murder.
    AFFIRMED.
    10
    B.L. THOMAS, C.J., and M.K. THOMAS, J., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Andy Thomas, Public Defender, and M. J. Lord, Assistant Public
    Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris,
    Assistant Attorney General, Tallahassee, for Appellee.
    11