Nancy A. Daniels, Public Defender, Tallahassee; and Ira David Karmelin, Special Assistant Public Defender, West Palm Beach, for Appellant.
Pamela Jo Bondi, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
Duane Lamar Smith (Appellant) challenges the judgment and sentence entered pursuant to the jury's verdict finding him guilty of felony battery, contending he is entitled to a new trial on two grounds. First, after Circuit Judge Wright allegedly orally indicated bias against Appellant immediately before jury selection, defense counsel did not move to disqualify the judge, and the same judge presided over voir dire, after which a successor judge conducted the guilt and sentencing phases of the trial. Because the record demonstrates the attorneys, with Appellant's knowledge and affirmative agreement, acquiesced to Judge Wright's decision to preside over jury selection, and defense counsel did not seek to disqualify the judge, we conclude without further discussion that the first issue was affirmatively waived for appeal and did not involve fundamental error. See Denmark v. State, 656 So.2d 166 (Fla. 1st DCA 1995). On the second issue, the trial court gave an
inapplicable jury instruction and misread another instruction and, in so doing, denied Appellant a fair trial and committed fundamental error. We are constrained to reverse the judgment and sentence and remand for a new trial. See Vowels v. State, 32 So.3d 720 (Fla. 5th DCA 2010).
FACTS AND PROCEDURAL BACKGROUND
An amended information charged Appellant with aggravated battery, a second-degree felony, arising from an August 15, 2009, incident involving him and Mandy Lynn Young. The charging document alleged Appellant " did actually and intentionally touch or strike" Young against her will, " and in so doing intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement," in violation of section 784.045(1)(a)1., Florida Statutes (2009).
Appellant and Young were dating at the time of the incident that led to the charge. When Young confirmed Appellant was also seeing other women and, in fact, had fathered children with several of them, she decided to tell Appellant she was seeing someone else too. Appellant and Young agreed to meet and discuss their relationship. On August 14, 2009, the couple drove together to a motel. At the trial, their stories diverged significantly concerning what happened inside the motel room and in the nearby breezeway.
Young testified that as she and Appellant, who had been drinking alcohol, sat in the room discussing their relationship, he became upset and threw a liquor bottle at her, hitting her left hip. He then beat her on the face and sides, drawing blood. When Young hid in the bathroom, Appellant attacked her again and yelled that he felt tempted to " slice her up." When Young returned to the bedroom, Appellant threw the bottle again, shattering the glass. Appellant complied when Young asked him to leave the room, but he soon texted her to say he had left his keys in her locked car. Young exited the room and was walking along the breezeway to the parking lot when Appellant approached and asked her whether things were over between them. When she responded, " Yes, we're done," Appellant punched her three or four times in the right eye, knocking her against the wall and causing her to fall. Running toward the motel office, Young flagged a deputy and was transported to the hospital. She received stitches to her right eye and had bruises over several parts of her body. Young attributed all of her injuries to Appellant and denied hitting him at any time as he physically attacked her.
The defense, on the other hand, asserted that Young's injuries arose solely from her own anger-induced acts and carelessness, or from Appellant's self-defense. Appellant testified that in the motel room, he had listened to what Young had to say but, at some point, he gave a sarcastic " bye." Young stood in front of him and started poking his head with both of her hands. As Appellant grabbed Young's wrists, she pulled back, and when he released her, Young hit herself on the ear and drew blood. When Appellant picked up the unopened liquor bottle and tried to leave, Young grabbed him, pulled him back into the room, and scratched his neck as he resisted. After a brief argument, he announced, " I'm gone," and threw the bottle to the floor before walking out. Appellant denied beating Young.
According to Appellant, after leaving the room, he texted Young about retrieving his keys from her car. When Appellant knocked on the room door, Young came out and followed him toward the parking lot. On the breezeway, she grabbed Appellant's hand and wrist and said, " Wait,
can we talk about it, can we work this out?" He urged her to leave him alone, and as Appellant turned to leave, Young delivered the first lick, catching Appellant off-guard and striking his neck. When Young threw her fist toward him, Appellant ducked, grabbed her by the wrist and back, and pushed her toward the wall. Young lunged toward him but slipped, falling face-forward to the ground. When Appellant tried to lift her, Young told him to leave her alone. He retrieved his keys and returned to where Young had fallen, but she was gone. He went to the door of the motel room, called Young's name (getting no response), and left her car keys at the door. Appellant denied hitting Young in the eye or head, using his hands and fists to beat her, intentionally touching her with the intent to cause her any bodily harm, or making threatening remarks to Young. He admitted having seven prior felony convictions, one involving a crime of dishonesty.
Deputy Allen testified he had encountered Young running and screaming for help on the motel breezeway. Blood covered the right side of her face, and she had a large cut and swelling around her eye. The deputy retraced the couple's path and found blood drops on the walkway outside the room and a shattered liquor bottle inside. Otherwise, he said the motel room did not appear to be in disarray.
After denying the motion for judgment of acquittal, the trial court orally instructed the jury on the aggravated battery charge and the lesser-included offenses of felony battery and battery. After informing the jury that an issue in this case was whether Appellant acted in self-defense, the court read Florida Standard Jury Instructions (Criminal) § 3.6(g) (on the justifiable use of non-deadly force), including the following language:
The use of non-deadly force is not justified if you find Duane Lamar Smith was attempting to commit, committing, or escaping after the commission of an aggravated battery.
Id. This instruction appeared also in the written jury instructions. Defense counsel did not object, and the instructions continued. The court defined aggravated battery and instructed that the " [u]se of non-deadly force is not justified if you find [Appellant] initially provoked the use of force against himself, unless the force asserted towards the defendant was so great that he reasonably believed that he was in imminent death or great bodily [sic] and had exhausted every reasonable means to escape the danger, other than using non-deadly force" ; or " in good faith the defendant withdrew from physical contact with Mandy Young and indicated clearly to Mandy Young that he wanted to withdraw and stop the use of non-deadly force, but Mandy Young continued or resumed the use of force." In determining whether Appellant was justified in using non-deadly force, the jury was to " judge him by the circumstances by which he was surrounded at the time the force was ...