Krause v. State, 98 So. 3d 71

Krause killed the victim and set her residence on fire after prior threats and a crisis of arguments with the victim.
A juror asked whether Krause was intoxicated during the investigation; the court ruled intoxication was not a defense and did not permit such questions.
After a nurse testified, more questions about intoxication prompted the court to consider an instruction that voluntary intoxication is not a defense.
During charge conference, Krause objected to the voluntary intoxication instruction; the court overruled without further explanation.
The State argued for the instruction; Krause did not raise intoxication as a defense in closing; the trial court later discovered that voluntary intoxication would have been a viable defense at the time, August 21, 1999.
Krause agreed, on the record, that he did not want the voluntary intoxication instruction and did not request the proper instruction; trial did not give the curative instruction; the court held Krause waived the error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the erroneous instruction was fundamental error	Krause argued the instruction was fundamental error	State maintained no fundamental error	Not fundamental; did not negate the defense
Whether Krause waived the error by agreement	Krause agreed not to seek the intoxication instruction	Waiver by defense agreement	Error waived; affirmance on waiver

Bassallo v. State, 46 So.3d 1205 (Fla. 4th DCA 2010) (fundamental-error standard for prejudice to trial validity)
Lawrence v. State, 831 So.2d 121 (Fla. 2002) (limits on fundamental error review in jury instructions)
Wagner v. State, 88 So.3d 250 (Fla. 4th DCA 2012) (fundamental-error test for defense negation by erroneous instruction)
Brown v. State, 59 So.3d 1217 (Fla. 4th DCA 2011) (standard for determining if instruction negated sole defense)
Armstrong v. State, 579 So.2d 734 (Fla.1991) (fundamental-error waiver by defense alteration of instruction)