RICARDO MARTINEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2011-09-21
No. 3D10-792
Before SUAREZ, CORTINAS, and EMAS, JJ.
69 So. 3d 1062 Florida District Court of Appeal, Third District (2011)

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Synopsis

Ricardo Martinez appeals his conviction for improper exhibition of a weapon, arguing that a jury instruction containing erroneous language (using "aggravated assault" instead of "improper exhibition of a weapon") constituted fundamental error that nullified his defense-of-others theory. The Florida Third District Court of Appeal affirms, finding no fundamental error where the jury instructions as a whole clearly conveyed the necessary elements and the defendant's available defenses.


Holding

The court affirmed the conviction, holding that the erroneous language in the jury instruction did not constitute fundamental error. Although the instruction contained an incorrect phrase, when read in context with all other jury instructions (particularly the justifiable use of non-deadly force instruction), the instruction clearly conveyed the elements necessary for conviction and did not eliminate the defendant's defense-of-others theory.


Headnotes

[1] An erroneous jury instruction constitutes fundamental error only when it reaches down into the validity of the trial itself such that the guilty verdict could not have be…

[2] An erroneous jury instruction is fundamental error when the omission is pertinent or material to what the jury must consider in order to convict.

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Key Quotes

“an erroneous jury instruction constitutes fundamental error "when the omission is pertinent or material to what the jury must consider in order to convict."”

Establishes the legal standard for determining when a jury instruction error rises to the level of fundamental error requiring reversal.

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Facts & Procedural History

Martinez pulled a gun on Moisés Godoy, who was walking his dog near an elementary school where Martinez was picking up his daughters. Martinez claimed…

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

Ricardo Martinez appeals from his conviction and sentence for improper exhibition of weapon pursuant to section 790.10, Florida Statutes (2009). We affirm.

Martinez was initially charged with aggravated assault with a weapon following an incident in which he pulled a gun on Moisés Godoy, who was walking his dog on a leash near an elementary school. Martinez was at the school to pick up his young daughters; he asserted that he retrieved his gun to protect his daughters, who he believed were being threatened by Godo/s dog. The jury convicted Martinez of the lesser included offense of improper exhibition of a weapon. Martinez was sentenced to sixty days in county jail followed by ten months of probation.

The State and the defense agreed upon a set of jury instructions and defense counsel made no objection to the wording. The instruction as given for the lesser included offense mistakenly substituted the phrase “aggravated assault” instead of “improper exhibition of a weapon” in the concluding sentence of that jury instruction.1 Martinez contends that this error effectively *1064nullified his “defense of others” theory, which led to an erroneous guilty verdict and deprived him of a fair trial. He concludes that the error is fundamental. We disagree.

Because counsel did not contemporaneously object to the wording of the jury instruction, we must determine whether the error reaches “down into the validity of the trial itself to the extent that the verdict of guilty could not have been obtained without the assistance of the alleged error.” State v, Delva, 575 So.2d 643, 644-45 (Fla.1991). Moreover, an erroneous jury instruction constitutes fundamental error “when the omission is pertinent or material to what the jury must consider in order to convict.” Id. at 645.

In this case, Martinez asserted a “defense of others” theory below, and argues that the incorrect phrase in the jury instruction nullified his defense. Despite the incorrect terminology, used only once, that instruction in context and read together with the jury instructions as a whole made it quite clear as to the elements necessary to convict Martinez of the crime of improper exhibition beyond a reasonable doubt.2 The incorrect language did not eliminate the appellant’s “sole defense” and is not fundamental, reversible error. See Grier v. State, 928 So.2d 368, 370 (Fla. 3d DCA 2006); cf. Smith v. State, 521 So.2d 106, 108 (Fla.1988) (finding that the inadequacy of the old standard jury instruction on the insanity defense was not so flawed as to deprive the defendant of his defense or of a fair trial). Furthermore, the error was ameliorated by the trial court’s instructions on justifiable use of force.3

*1065This Court follows the Florida Supreme Court’s analysis of challenged jury instructions as set forth in Garzon v. State, 980 So.2d 1038, 1043 (Fla.2008), and reviews the “totality of the record” for fundamental error. Brown v. State, 35 So.3d 148, 152 (Fla. 3d DCA 2010). The totality of the instructions provided to the jury in this case, including the “justifiable use of non-deadly force” instruction, put all of the other instructions in the proper context. See id. at 151. The instructions when read as a whole sufficiently cured the error in the language of the “improper exhibition of a weapon” jury instruction and clearly articulated that if the jury had “a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force” they should find him not guilty.4 Accordingly, we find no fundamental error in the jury instruction and affirm the conviction for improper exhibition of a weapon.

Affirmed.


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