final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
Haughwout, Public Defender, and Paul Edward Petillo,
Assistant Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
Gregory appeals his convictions and sentences. He alleges
numerous errors, but we affirm because his arguments are
either unpreserved or without merit, or both. However, we
write to address his argument that the trial court
fundamentally erred by failing to instruct the jury on the
justifiable use of deadly force.
was charged with robbery with a weapon and battery after
stealing a bottle of liquor from a liquor store and getting
into a physical altercation with the store owner outside of
the store. The store owner jumped into Gregory's car in
an effort to detain him until police arrived. Gregory smashed
the glass liquor bottle over the store owner's head. The
store owner survived the attack, but sustained a serious cut
on his head.
trial, Gregory's defense theory centered around his
claimed belief that he was being randomly attacked, since the
store owner was not wearing a uniform and did not identify
himself as the store owner, and that Gregory was merely
acting in self-defense. Gregory presented evidence at trial
to support this theory, including a videotape of his
interview by a detective.
did not request an instruction on the justifiable use of
deadly force and the jury was instructed on the
justifiable use of non-deadly force. The jury found
Gregory guilty as charged.
appeal, Gregory argues that the failure to instruct the jury
on the justifiable use of deadly force was fundamental error,
since the jury may have found that Gregory used deadly force
in smashing the store owner over the head with a glass
bottle. Although Gregory correctly asserts that he introduced
evidence to support giving the deadly force instruction, we
disagree with his assertion that this error rises to the
level of fundamental error.
error is error which goes to the foundation of the case.
Failure to give an instruction unnecessary to prove an
essential element of the crime charged is not fundamental
error." Sochor v. State, 619 So.2d 285, 290
(Fla. 1993) (internal citation omitted) (finding no
fundamental error in failure to instruct on voluntary
intoxication defense to felony murder based on kidnapping);
see also Alfaro v. State, 837 So.2d 429, 430 (Fla.
4th DCA 2002) (finding no fundamental error in failing to
give unrequested "claim of right" instruction in
relation to grand theft auto conviction). Justifiable use of
deadly force is a defense to robbery and battery, not an
essential element of those crimes. In other words, the
omitted defense instruction did not go to the foundation of
the state's case. Following the reasoning of
Sochor, "[b]ecause the complained-of
instruction went to [Gregory]'s defense and not to an
essential element of the crime charged, an objection was
necessary to preserve this issue on appeal." See
Sochor, 619 So.2d at 290.
further note that the case at hand is distinguishable from
Shedd v. State, 137 So.3d 456 (Fla. 4th DCA 2014),
and Ramirez v. State, 125 So.3d 171 (Fla. 4th DCA
2013). In those cases, this court reversed convictions for
possession of and trafficking in controlled substances,
respectively, where the court failed to charge the jury with
a "prescription" defense. In Ramirez, this
court found fundamental error "where a question from the
jury should have highlighted the absence of the instruction
for the trial court and defense attorney."
Ramirez, 125 So.3d at 173. In both Shedd
and Ramirez, this court indicated that the failure
to request the prescription defense was ineffective
assistance of counsel. Shedd, 137 So.3d at 457;
Ramirez, 125 So.3d at 175 n.1. Unlike in
Shedd and Ramirez, no jury questions here
alerted the trial court to the omission of a justifiable use
of deadly force instruction, nor was ineffective assistance
of counsel apparent from the face of the record. Thus,
"[t]o find fundamental error in this case would place an
unrealistic burden on the trial judge concerning trial
tactics and strategy that should be left to defense
counsel." Shells v. State, 642 So.2d 1140, 1141
(Fla. 4th DCA 1994).