Reversing a conviction for attempted second degree murder and shooting at/within/into an occupied vehicle, the trial court fundamentally erred by giving contradictory instructions on the duty to retreat (3.6(f)), thereby negating the possible application of appellant’s only defense (self-defense).
The jury was instructed that “the deadly use of force is not justifiable if you find: [the defendant] initially provoked the use of force against himself, unless [:] . . . [he] had exhausted every reasonable means to escape the danger other than using deadly force.” The jury was also instructed that “[i]f the defendant was not engaged in unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force . . . .” This instruction is conflicting because the stand-your-ground provision states the defendant had no duty to retreat so long as he was not engaged in unlawful activity; however, the “aggressor” portion stated he had a duty to retreat if he provoked. Thus, the instruction stated the defendant “did not have to retreat . . . and did have a duty to retreat before using deadly force.” The Court concluded the instruction negated the defendant’s only theory of defense – self-defense.
Ross v. State, 1D13-4401 (Fla. 1st DCA Feb. 3, 2015)
Leon Judge Hankinson