Opinion
No. 2D19-3639
07-30-2021
Jorge Luis CLAUDIO-MARTINEZ, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and William Stone, Jr., Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and William Stone, Jr., Assistant Attorney General, Tampa, for Appellee.
SMITH, Judge.
Jorge Luis Claudio-Martinez appeals from his conviction and fifteen-year prison sentence entered after a jury found him guilty of aggravated battery with a deadly weapon. Because we find Mr. Claudio-Martinez's trial counsel rendered ineffective assistance on the face of the record by failing to obtain a jury instruction on the justifiable use of nondeadly force, we reverse and remand for a new trial.
"Generally, claims of ineffective assistance of counsel cannot be raised on direct appeal; rather, claims of ineffective assistance of counsel are properly made by seeking postconviction relief under Florida Rule of Criminal Procedure 3.850." Booker v. State , 301 So. 3d 432, 434 (Fla. 2d DCA 2020) (citing Hills v. State , 78 So. 3d 648, 652 (Fla. 4th DCA 2012) ). However, "[o]n rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable." Corzo v. State , 806 So. 2d 642, 645 (Fla. 2d DCA 2002). A claim of ineffective assistance of counsel will be reviewed on direct appeal if "the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue." Blanco v. Wainwright , 507 So. 2d 1377, 1384 (Fla. 1987). Mr. Claudio-Martinez's claim of ineffective assistance of counsel is properly considered on direct appeal. Because the issue of counsel's ineffective assistance is dispositive, we decline to address Mr. Claudio-Martinez's other arguments on appeal.
This case arose out of a physical altercation between Mr. Claudio-Martinez's cousin and a neighbor, the victim. The details of the fight were disputed, but it is clear that at some point during the fight the victim armed himself with a broomstick, while the cousin may have been armed with a screwdriver. At some point, Mr. Claudio-Martinez joined the fight, after which the victim was stabbed in the back. While the victim invoked his Fifth Amendment right to remain silent, Mr. Claudio-Martinez testified.
Mr. Claudio-Martinez testified that he came to the defense of his cousin after an altercation ensued between his cousin and the victim. He testified that he was inside when he saw his cousin being beaten with a broomstick by the victim. The victim was physically bigger than both Mr. Claudio-Martinez and his cousin. Mr. Claudio-Martinez remembered grabbing the first things he saw in the kitchen and running outside to defend his cousin, but he could not remember what happened next. The altercation was broken up after the police were called.
Mr. Claudio-Martinez was charged with aggravated battery with a deadly weapon under section 784.045(1)(a)2, Florida Statutes (2018). His theory of defense at trial was that he acted in defense of his cousin during the altercation. Standard jury instructions for both the justifiable use of deadly and nondeadly force, Fla. Std. Jury Instr. (Crim.) 3.6(f), (g), are to be given as applicable under such circumstances. Fla. Std. Jury Instr. (Crim.) 3.6(g) ("[U]nless the evidence establishes the force used was deadly or non[ ]deadly as a matter of law, both 3.6(f) and 3.6(g) must be given.").
At the jury instruction conference, however, neither the issue of self-defense nor the defense of another was raised. When the jury instructions were discussed after the defense rested, the trial court announced that it had included the standard instruction related to the justifiable use of deadly force. There was no mention of the justifiable use of nondeadly force, and defense counsel did not request an instruction on the justifiable use of nondeadly force.
During the State's closing argument, the prosecutor began giving the jury an explanation of justifiable use of nondeadly force. Counsel for Mr. Claudio-Martinez objected, and a sidebar conference was held whereby everyone agreed that the jury instructions included only an instruction on deadly force. Again, defense counsel did not request an instruction on the justifiable use of nondeadly force. As a result, the jury was instructed only on the justifiable use of deadly force. On appeal, Mr. Claudio-Martinez argues defense counsel provided ineffective assistance by failing to request a jury instruction on the justifiable use of nondeadly force, and we agree.
To establish ineffective assistance of counsel Mr. Claudio-Martinez must show: "(1) that counsel's performance was outside the wide range of reasonable professional assistance, and (2) that such conduct prejudiced the outcome of the trial because without it, there is a reasonable probability that the outcome would have been different." Mathis v. State , 973 So. 2d 1153, 1156–57 (Fla. 1st DCA 2006) (first citing Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; then citing Spencer v. State , 842 So. 2d 52, 61 (Fla. 2003) ; and then citing Betts v. State , 792 So. 2d 589, 589–90 (Fla. 1st DCA 2001) ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the trial]." Id. at 1157 (quoting Spencer , 842 So. 2d at 61 ). It is undisputed that Mr. Claudio-Martinez's counsel failed to request the standard instruction on the justifiable use of nondeadly force or otherwise object when it was not included within the jury instructions. On the face of this record it is clear that Mr. Claudio-Martinez was entitled to this instruction and that the failure to request it prejudiced him.
In Florida, a person is justified in using deadly force if that person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another person or to prevent the imminent commission of a forcible felony. § 776.012(2), Fla. Stat. (2018). Whereas nondeadly force is justified if the person reasonably believes that the use of force is necessary to defend himself or another against the imminent use of unlawful force. § 776.012(1). "Deadly force" is defined as force likely to cause death or great bodily harm. § 776.06(1). "[T]he use of a deadly weapon in self-defense does not summarily equate to the use of deadly force." Copeland v. State , 277 So. 3d 1137, 1140 (Fla. 5th DCA 2019) (citing DeLuge v. State , 710 So. 2d 83, 84 (Fla. 5th DCA 1998) ). In fact, "[t]he only act that has been deemed deadly as a matter of law is that of firing a firearm." Caruthers v. State , 721 So. 2d 371, 372 (Fla. 2d DCA 1998) (citing Stewart v. State , 672 So. 2d 865, 868 (Fla. 2d DCA 1996) ).
Where the evidence at trial does not establish that the force used by the defendant was deadly or nondeadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force.
Cruz v. State , 971 So. 2d 178, 182 (Fla. 5th DCA 2007) ; see also Caruthers, 721 So. 2d at 371–72 ("[W]hen the evidence fails to establish whether the force used was deadly or nondeadly as a matter of law, the question must be determined by the jury.").
When focusing on the nature of the force used by a defendant, "even a deadly weapon, such as a knife, can be used without deadly force." See DeLuge , 710 So. 2d at 84. In the instant case, the victim was stabbed in the back near his shoulder blade. These facts, as a matter of law, do not constitute deadly force, and the question of whether the force used was deadly or nondeadly was then a question for the jury. See McComb v. State , 174 So. 3d 1111, 1113 (Fla. 2d DCA 2015) (finding ineffective assistance of counsel on the face of the record where counsel's failure to request an instruction on the justifiable use of nondeadly force deprived the defendant of a defense); Michel v. State , 989 So. 2d 679, 681 (Fla. 4th DCA 2008) (same).
Counsel therefore should have requested the standard instruction on the justifiable use of nondeadly force. We can conceive of no reasonable tactical decision that would justify counsel's acquiescing to the omission of an instruction when doing so would make it more difficult for Mr. Claudio-Martinez to prove that he was justified in his actions under his theory of defense. See McComb , 174 So. 3d at 1113 ("[T]his was ineffective assistance of counsel on the face of the record because 'it is patently unreasonable to fail to request an instruction that provides a legal defense to undisputed facts.' " (quoting Michel , 989 So. 2d at 681 )). Accordingly, the face of the record shows that counsel was deficient for failing to request an instruction on the justifiable nondeadly use of force.
We next consider whether defense counsel's failure to request the instruction on the justifiable use of nondeadly force prejudiced Mr. Claudio-Martinez. Counsel's failure to have the jury instructed on the justifiable use of nondeadly force, while also agreeing to the instruction on the justifiable use of deadly force, deprived Mr. Claudio-Martinez of a defense. See id. In fact, providing the jury with only the justifiable use of deadly force instruction, when it is, arguably, inapplicable to the facts of this case, may have actually made it more difficult for Mr. Claudio-Martinez to prevail on his theory of defense because the use of deadly force is permitted in a narrower set of circumstances than the use of nondeadly force. Compare § 776.012(2) (requiring a reasonable belief "that using or threatening to use [deadly force] is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony" for it to be justified), with § 776.012(1) (requiring only a reasonable belief "that [the use of nondeadly force] is necessary to defend himself or herself or another against the other's imminent use of unlawful force" for it to be justified). As we explained in McComb :
As instructed, the jury could have believed that [the victim] was the aggressor but rejected McComb's self-defense claim because [the victim] did not present
a threat of "imminent death or great bodily harm" that would justify resorting to deadly force. If the jury had been instructed on the justifiable use of nondeadly force, it would have been called on to decide whether McComb faced an imminent use of unlawful force that justified his resort to nondeadly force in self-defense.
McComb, 174 So. 3d at 1113. Similarly, based on the undisputed facts and the only instruction given in this case, the jury could have believed the victim was the initial aggressor and Mr. Claudio-Martinez was coming to the aid of his cousin but rejected Mr. Claudio-Martinez's claim of self-defense because the victim's actions were not of the type to cause "imminent death or great bodily harm" that would justify Mr. Claudio-Martinez's actions in defending his cousin using deadly force. See § 776.012(2). Had the jury also been instructed on the justifiable use of nondeadly force, it also would have had to consider whether Mr. Claudio-Martinez's use of force was reasonably necessary to defend his cousin "against the imminent use of unlawful force" by the victim. See § 776.012(1). "Instead, the jury was left with no choice but to decide [Mr. Claudio-Martinez's] fate without the benefit of a proper instruction to evaluate his best, and arguably only, defense." See Copeland , 277 So. 3d at 1142.
Mr. Claudio-Martinez has established that counsel's performance was both deficient and sufficiently prejudicial so as to warrant relief on direct appeal and has satisfied both prongs under Strickland. Accordingly, we reverse his judgment and sentence and remand this case for a new trial.
Reversed and remanded.
KELLY and LaROSE, JJ., Concur.