MARCUS PAULK, APPELLANT/CROSS-APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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The court held that the trial court erred in giving a jury instruction on flight because the evidence did not support it, and this error was not harmless.
[1] An objection to a jury instruction on flight as an improper comment on the evidence is not preserved for appellate review if it was not presented to the trial court.
[2] A jury instruction on flight is improper if the evidence does not show an attempt to elude capture, but merely a departure from the scene of a crime.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of attempted murder and shooting within a building. He was temporarily in Orlando for a sporting event and returned home t…
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COBB, Judge.
The appellant, Marcus Paulk, who was convicted as a principal of two counts of attempted murder and one count of shooting within a building, contends the trial court should not have given a jury instruction on flight, and cites the recent case of Fenelon v. State, 594 So. 2d 292 (Fla.1992), wherein the supreme court disapproved the instruction as constituting a judicial comment upon the evidence.
The state contends, and we agree, that the objection that the flight instruction was an improper comment upon the evidence was not presented to the court; hence it has not been preserved for appellate review. Steinhorst v. State, 412 So. 2d 332 (Fla.1982); Thomas v. State, 424 So. 2d 193 (Fla. 5th DCA 1983). The objection made to the trial court was that the evidence of flight was insufficient to warrant an instruction. That issue is preserved for appeal, and we agree with the appellant. The evidence was that Marcus Paulk was temporarily in Orlando to attend a sporting event at the time of the shooting. Afterward, he returned to his hotel and on the following day, as scheduled, he went home to Miami. There were no facts indicating an attempt to elude capture. Webb v. State, 609 So. 2d 728 (Fla. 5th DCA 1992); Shively v. State, 474 So. 2d 352 (Fla. 5th DCA 1985). As stated in Jackson v. State, 575 So. 2d 181, 188-189 (Fla.1991), “Departure from the scene of a crime, albeit hastily done, is not the flight to which the jury instruction refers.”
The state argues that even if the flight instruction was improper, the error was harmless because of the quantum of evidence against the defendant. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). We cannot make that finding beyond a reasonable doubt because there was conflicting testimony as to the extent, if any, of Marcus’s involvement in the procurement and firing of the pistol that was used in this incident. As in Webb, we reverse and remand for a new trial.
REVERSED and REMANDED.
HARRIS and THOMPSON, JJ., concur.
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Citator
Cited By
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Brown v. State (15th Cir. Ct. App. Div. 2014)…me of battery and the uncharged crime of passing a bad check, we cannot find beyond a reasonable doubt that the flight instruction did not contribute to the verdict. See Crocker v. State, 616 So. 2d 1180 (Fla. 1st DCA 1993); see also Paulk v. State, 618 So. 2d 795, 796 (Fla. 5th DCA 1993). Accordingly, we REVERSE Defendant's conviction and REMAND for a new trial. CROW, MILLER, and KROLL JJ. concur.…
Authorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Steinhorst v. State, 412 So. 2d 332 (Fla. 1982)
- Jackson v. State, 575 So. 2d 181 (Fla. 1991)
- King Anthony Green v. State, 594 So. 2d 292 (Fla. 1992)
- Winzer Leon Thomas v. State, 424 So. 2d 193 (Fla. 5th DCA 1983)
- Shively v. State, 474 So. 2d 352 (Fla. 5th DCA 1985)
- Webb v. State, 609 So. 2d 728 (Fla. 5th DCA 1992)