TROY MCJIMSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal affirmed Troy McJimsey's conviction for armed attempted first-degree murder despite a trial court error in instructing the jury on the self-defense justification. Following Supreme Court guidance in Martinez v. State, the court held that while the erroneous forcible-felony instruction was error, it was not fundamental error because it did not deprive the defendant of a fair trial.
The erroneous instruction was not fundamental error. Although it was error for the trial court to read the forcible-felony instruction when the defendant was not charged with an independent forcible felony, such error constitutes fundamental error only when it deprives the defendant of a fair trial, which did not occur here.
[1] The erroneous reading of the forcible felony instruction to the jury, when a defendant is not charged with an independent forcible felony, constitutes fundamental error o…
[2] A defendant's claim of self-defense may be considered weak when the defendant sustains no visible injuries and subsequently attacks the victim multiple times.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it is error for the trial court to read the forcible felony instruction to the jury where the defendant is not charged with an independent forcible felony. However, the erroneous reading of this instruction constitutes fundamental error only when it deprives the defendant of a fair trial.”
States the controlling legal standard from Martinez that erroneous jury instruction is fundamental error only if it deprives defendant of fair trial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcJimsey was charged with armed attempted first-degree murder and claimed self-defense. The trial court erroneously instructed the jury on the forcibl…
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ON REMAND FROM THE FLORIDA SUPREME COURT
In McJimsey v. State, 959 So.2d 1257 (Fla. 4th DCA 2007), we reversed for a new trial, holding that the trial court committed fundamental error when it gave an incorrect self-defense jury instruction on the justifiable use of deadly force. However, our opinion was quashed by the Florida Supreme Court and remanded for reconsideration in light of Martinez v. State, 981 So.2d 449 (Fla.2008). State v. McJimsey, 999 So.2d 1062 (Fla.2009). In Martinez, the supreme court stated that “it is error for the trial court to read the forcible felony instruction to the jury where the defendant is not charged with an independent forcible felony. However, the erroneous reading of this instruction constitutes fundamental error only when it deprives the defendant of a fair trial.” Martinez, 981 So.2d at 457 (emphasis in original).
Appellant was charged with armed attempted first-degree murder, to which he *798asserted a claim of self-defense. Although the trial court erroneously read the forcible-felony portion of the self-defense instruction to the jury, we determine that such error was not fundamental. See Martinez, 981 So.2d 449; Permenter v. State, 978 So.2d 277 (Fla. 4th DCA 2008); Farmer v. State, 975 So.2d 1275 (Fla. 4th DCA 2008), rev. denied, 988 So.2d 621 (Fla.2008). A review of the record fails to show that the instruction deprived appellant of a fair trial. Appellant’s claim of self-defense was weak. Appellant received no visible injuries when the victim allegedly bashed his head against the floor in the foyer by the front door. He returned to the living area to retrieve his knife and then stabbed the victim on the back of his shoulder and multiple times in the abdomen, with enough force to kill him. The record further shows that the state did not argue the forcible-felony exception to self-defense in its closing argument. We thus affirm appellant’s judgment of conviction and sentence.
Affirmed.
WARNER, TAYLOR and HAZOURI, JJ., concur.
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Citator
Cited By
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Alton D. Johnson v. State, 268 So. 3d 806 (Fla. 4th DCA 2019)…to car and victim died from four gunshot wounds to his back); Phippen v. State, 389 So. 2d 991, 993-94 (Fla. 1980) (finding sufficient evidence to sustain murder conviction where defendant shot victims multiple times in the back); McJimsey v. State, 31 So. 3d 797, 798 (Fla. 4th DCA 2009) (characterizing self-defense claim as “weak” where defendant sustained no visible injuries, defendant returned to another room to retrieve a knife, and defendant stabbed the victim multiple times in the back and abdomen).…
Authorities Cited
- Martinez v. State, 981 So. 2d 449 (Fla. 2008)
- Farmer v. State, 975 So. 2d 1275 (Fla. 4th DCA 2008)
- McJIMSEY v. State, 959 So. 2d 1257 (Fla. 4th DCA 2007)
- Permenter v. State, 978 So. 2d 277 (Fla. 4th DCA 2008)
- State v. McJIMSEY, 999 So. 2d 1062 (Fla. 2009)