210 So. 3d 121
Fla. Dist. Ct. App.2016Background
- Marty (defendant) and his wife were in a backyard hot tub when an 11-year-old neighbor on a roof was told to leave; the boy’s sister, Paula Valenzuela (age 20), later confronted Marty at his house, yelling and pounding on windows.
- Marty retrieved his handgun from his car and, according to his testimony, displayed the gun (but did not fire; no round in the chamber) when Valenzuela approached aggressively; he testified he feared unlawful force or property damage but not death.
- Valenzuela testified that Marty pointed the gun at her and threatened to kill her; both parties called police within a minute of each other; deputy testified Marty admitted pointing the gun but not at her and surrendered it cooperatively.
- Marty was charged with aggravated assault with a deadly weapon (three-year mandatory minimum) and was convicted by a jury.
- At trial defense counsel requested only the jury instruction on justifiable use of deadly force (Fla. Std. Jury Instr. 3.6(f)), but did not request the instruction on justifiable use of nondeadly force (3.6(g)), despite undisputed evidence that Marty never fired his weapon.
- On appeal the Second District construed Marty’s challenge as an ineffective-assistance-of-counsel claim, found counsel deficient for requesting the inapplicable deadly-force instruction (and omitting the proper nondeadly-force instruction), reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Marty) | Held |
|---|---|---|---|
| Whether counsel’s failure to request nondeadly-force instruction was ineffective assistance | Counsel’s failure was not reversible; conviction stands | Counsel was ineffective on the face of the record for requesting only deadly-force instruction when facts supported only nondeadly force | Court reversed: counsel was deficient and prejudice shown; new trial ordered |
| Whether the evidence supported a conviction for aggravated assault with a deadly weapon | The State argued self-defense did not apply because Marty was not in reasonable fear of death or great bodily harm | Marty argued his display of the gun was nondeadly self-defense justified to prevent unlawful force or property interference | Court held undisputed facts showed no deadly force (gun not fired), so deadly-force instruction was inapplicable and prejudicial |
| Whether the error was fundamental so as to require reversal without a postconviction claim | State implied error was not plain reversible error | Marty contended error was apparent on record and reviewable directly as ineffective assistance | Court treated as ineffective assistance cognizable on direct appeal because error obvious on the face of the record |
| Whether the omission of nondeadly-force instruction likely affected the verdict (prejudice) | State argued outcome would be same | Marty argued reasonable probability jury would have acquitted if proper instruction given | Court found reasonable probability of different outcome; prejudice established |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987) (ineffective-assistance claims may be decided on direct appeal when apparent on the record)
- Michel v. State, 989 So. 2d 679 (Fla. 4th DCA 2008) (failure to give nondeadly-force instruction was ineffective assistance when that defense fit undisputed facts)
- McComb v. State, 174 So. 3d 1111 (Fla. 2d DCA 2015) (failure to object to omission of nondeadly-force instruction constituted ineffective assistance)
- Rivero v. State, 871 So. 2d 953 (Fla. 3d DCA 2004) (display of a weapon without firing is not necessarily deadly force)
- Howard v. State, 698 So. 2d 923 (Fla. 4th DCA 1997) (display of a deadly weapon, without more, is not ‘‘deadly force’')
- Miller v. State, 613 So. 2d 530 (Fla. 3d DCA 1993) (discharging a firearm as a warning shot may constitute deadly force)
- Toledo v. State, 452 So. 2d 661 (Fla. 3d DCA 1984) (discussing weapon display and deadly-force concepts)