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Cherfrere v. State

Florida Court of Appeals, Fourth District

July 17, 2019


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 11-012613CF10A.

          Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez, Assistant Attorney General, West Palm Beach, for appellee.

          Conner, J.

         Appellant, Michel Cherfrere, appeals his convictions and sentence, contending the trial court erred by: (1) allowing the jury to deliberate on two separate acts of attempted first-degree murder, after he was charged with only one count for the offense; (2) failing to hold a proper Nelson[1]hearing; (3) failing to hold the necessary competency hearing and make an independent determination of Appellant's competency; (4) considering Appellant's lack of remorse during sentencing; (5) failing to grant a mistrial after a law enforcement officer gave an opinion when there was no accident investigation; and (6) allowing Appellant to represent himself during part of the trial. We affirm as to all issues raised. We choose to write only on Issue 1, explaining our reasoning.


         This appeal arises out of Appellant's third trial on the charges in this case. The first two trials resulted in mistrials.

         The information charged Appellant with attempted first-degree murder, aggravated child abuse, and child abuse. In its opening statement, the State explained that the evidence would show that Appellant tried to murder the victim, his wife, after she moved out and ended their relationship. According to the State, the night before the incident, the wife had gone back to Appellant's house to get some of her belongings, and she brought some people and the police with her to keep the peace as she removed her belongings. Appellant was very upset about the wife's actions. Appellant vented his anger the next morning, while the wife and her daughter sat in her SUV at the child's bus stop waiting for the school bus. Appellant rammed his truck into the driver's side of the wife's SUV, tried to push her vehicle farther with his truck after the initial impact, and then got out and started hitting her vehicle with a machete. When the wife fled from her SUV, Appellant chased and stabbed the wife and attacked her daughter as she tried to shield her mother.

         The State presented the testimony of neighbors who witnessed the incident and called 911. Witnesses testified to hearing Appellant's truck accelerating from up the street before hearing the crash as he collided with the driver's side of the wife's SUV, which had been waiting at the curb where they had seen it every morning waiting for the school bus. Witness testimony corroborated that Appellant tried to push the SUV a little farther by ramming it once again with his truck after the initial impact. Witnesses testified that Appellant then exited his truck with a machete and began chopping at the wife's SUV. When the wife ran out of the SUV, witnesses testified she screamed for help as Appellant chased her. According to the witnesses, Appellant eventually got on top of the wife on the ground, with her daughter in between them. At that time, Appellant was making jabbing or stabbing motions towards the wife with a big knife in his hand and the wife was covered in blood. Witnesses testified the daughter was trying to shield her mother and that she was covered in blood as well. The witnesses testified that they did not see the wife attack or chase Appellant at any time. They testified that Appellant went back to his truck and grabbed a bottle of liquor and started drinking, and then pursued the wife and daughter again, but neighbors intervened and an ambulance and police arrived.

         The wife also testified to the entire incident, and further testified that while Appellant was stabbing her repeatedly, he kept saying, "I'm going to kill you." She also testified that she eventually grabbed the sharp end of the knife Appellant was holding while he was on top of her, cutting her finger, but that she managed to take the knife from Appellant, after which Appellant bit her, attempted to choke her, and punched her before going back to his truck.

         The defense theory of the case was one of self-defense. The defense asserted the wife was angry that she had been unable to get a restraining order on Appellant that would force him out of the house so she could remain in the house herself. Appellant testified that on the morning of the incident, the wife came back into Appellant's house and attacked him with a kitchen knife and that Appellant fled in his truck. Appellant asserted that the wife pursued him in her SUV, and that when he tried to make a U-turn, he accidentally hit her SUV. Appellant testified that the wife was armed with a steak knife and chased Appellant, so he armed himself with a machete in self-defense. Despite the evidence introduced showing the multiple lacerations the wife suffered from the incident, Appellant denied stabbing her or ever taking the knife from her, asserting she had the knife the whole time, and testified he did not know how the wife got her wounds. Notably, witnesses testified that Appellant did not appear to be injured at all, but rather, that he was the one chasing the wife and attacking her.

         In closing argument, the State explained to the jury that it had to prove that Appellant did some act intended to cause the wife's death, and argued that Appellant had done such an act:

STATE: Well, he did do some act. He did crashing [sic] into her car, which was his first attempt to try to kill her, right into the driver's side of her car, and then getting out, chasing her down ...

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