The defendant, John Dorsey, appeals his convictions for two counts of second degree murder, possession of a firearm by a convicted felon, and carrying a concealed firearm. His charges arose from a confrontation at a high school “keg” party that ended in tragedy — the loss of two young lives. We affirm the defendant’s convictions for the weapons charges. However, after reviewing the evidence in the light most favorable to the State, we conclude that the evidence was insufficient to sustain convictions for second degree murder. Instead, the evidence established an impulsive overreaction to an attack, which warranted convictions for manslaughter. We further find that the trial court erred in instructing the jury on the justifiable use of deadly force, specifically regarding the duty to retreat under the “Stand Your Ground” law. Accordingly, we reverse the defendant’s convictions for second degree murder and remand for a re-trial on manslaughter charges.
The defendant was charged by indictment with first degree murder for the shooting death of Stephen “Bo” Bunting and second degree murder for the shooting *523 death of John Lott. At trial, the evidence established that on August 25, 2006, the defendant attended a large “keg” party, where most of the guests were high school students or had recently finished high school. During the party, Bunting and Lott approached the defendant, who was either sitting on the hood of his SUV or leaning against the vehicle. Lott was angry that someone had bumped him earlier while walking past him. Lott and Bunting, along with Lott’s brother and several of their friends, formed a group which surrounded the defendant in a half-circle. A short time before the confrontation, the defendant had armed himself with a gun in the midst of an apparently unrelated dispute with other individuals regarding a keg.
The defendant had his hand in his pocket, and it appeared to witnesses that a confrontation was imminent. One witness claimed that the defendant was smirking as he was leaning against his vehicle and that he did not appear to be afraid. Lott and the defendant began cursing at each other. A prosecution witness acknowledged that it looked like Lott was trying to start a fight with the defendant. Bunting, who was trying to encourage the fight, asked Lott whether he was “going to let him [the defendant] talk to you like that?” At that point, Lott struck the defendant in the face with his fist. The defendant was hit “pretty hard” and fell back against his vehicle.
After the defendant was punched, he quickly pulled out a gun, shot Lott once and shot Bunting once. 1 Lott and Bunting were, at most, two or three feet away from the defendant. Lott died from a single gunshot wound to the chest, and Bunting died from a single gunshot wound to the abdomen. After the shootings, the defendant jumped into his vehicle and drove away.
According to the medical examiner, the path of the gunshot wounds was consistent with the decedents leaning forward as they were shot. Lott and Bunting were both at least one foot away from the shooter. Lott had a blood alcohol level of 0.249 grams per deciliter, over three times the legal limit for driving. Bunting had a blood alcohol level of 0.05 grams per deciliter, and also had Xanax in his blood, in an amount described as being within a therapeutic range. Lott, who was heavily tattooed, had a roll of coins wrapped in black electrical tape in his pants pocket. There was also evidence at trial that both Lott and Bunting had a reputation for violence. One witness claimed that Lott and Bunting were known to jump people and they liked to fight, not always fairly.
At the conclusion of both the State’s case and at the close of all the evidence, the trial court denied the defendant’s motions for judgment of acquittal. One of defense counsel’s arguments in support of the motion for judgment of acquittal was that the defendant could not be convicted of murder as a matter of law; rather the jury should consider only manslaughter charges, as the evidence showed only that the defendant had an impulsive overreaction when being attacked.
Following deliberations, the jury returned its verdict, finding the defendant guilty of second degree murder as a lesser included offense on Count I, guilty of second degree murder as charged in Count II, and guilty of possession of a firearm by a convicted felon and carrying a concealed firearm as charged in Counts III and IV.
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The first issue we address is whether the evidence was sufficient to sustain the defendant’s convictions for second degree murder. A de novo standard of review applies to our review of the denial of a motion for judgment of acquittal.
Turner v. State,
The crime of second degree murder is defined as the “unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04, Fla. Stat. (2006). An act is imminently dangerous to another and evinces a “depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (2) is done from ill will, hatred, spite or an evil intent; and (3)is of such a nature that the act itself indicates an indifference to human life.
Wiley v. State,
Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent.
See, e.g., Light v. State,
While the jury may reasonably reject the theory of self-defense in a case involving a defendant’s impulsive overreaction to a victim’s attack, such a case warrants a conviction for manslaughter, not second degree murder.
See Poole v. State,
*525 In the present case, the evidence in the light most favorable to the State is insufficient to sustain the defendant’s convictions for second degree murder. Here, it was uncontested at trial that the defendant had his back against his vehicle when he was confronted by multiple men, including the victims, Lott and Bunting. The victims had both been drinking and Lott, in particular, was heavily intoxicated. After the defendant and Lott exchanged words, Lott punched the defendant in the face, with Bunting’s encouragement, causing the defendant to fall back against his vehicle. Although a jury could reasonably find that the defendant’s use of a gun was excessive, thereby negating a finding of self-defense, no evidence was presented that the defendant acted out of ill will, hatred, spite, or an evil intent. Furthermore, we reject the State’s argument that the defendant’s demeanor before the confrontation was sufficient to prove beyond a reasonable doubt that he acted with a depraved mind. The defendant’s use of deadly force occurred only after he was attacked, and the State has pointed to no record evidence that the defendant had any previous grudge against these victims or any ongoing disputes between them.
In short, this case is not materially distinguishable from Poole, Rayl, and McDaniel, where second degree murder charges were reduced to manslaughter because the evidence established an impulsive overreaction to a victim’s attack or injury rather than an act out of ill will, hatred, spite, or an evil intent. Here, the evidence similarly showed an impulsive overreaction to an attack, warranting convictions for manslaughter but not second degree murder. The trial court thus erred in denying the defendant’s motions for judgment of acquittal on the murder charges.
Ordinarily, we would simply direct that the trial court reduce the second degree murder convictions to manslaughter convictions. However, in this case, an error in the jury instructions on self-defense warrants a new trial. 2
By way of background, section 776.012, Florida Statutes (2006), provides that a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such 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; or
(2) Under those circumstances permitted pursuant to s. 776.013.
§ 776.012, Fla. Stat. (2006).
Section 776.013(3), Florida’s so-called “Stand Your Ground” law, in turn provides:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
§ 776.013(3), Fla. Stat. (2006).
During the charge conference, the defense requested that the “Stand Your Ground” instruction, based on section 776.013(3), not be given. He did so be *526 cause the defendant was presumably “engaged in an unlawful activity” at the time he used deadly force; he was a convicted felon in possession of a firearm and he was carrying a concealed firearm. Thus, the “Stand Your Ground” instruction did not apply to him. The trial court denied the defendant’s request and ultimately gave the jury the standard jury instruction, which is consistent with the “Stand Your Ground” law set forth in section 776.013(3).
After the court denied the defense request that the “Stand Your Ground” instruction be omitted from the jury instructions, the defendant requested that the jury receive the following instruction:
If you find that the defendant was engaging in an unlawful activity or was attacked in a place where he did not have the right to be then you must consider if the defendant had a duty to retreat. If the defendant was placed in a position of imminent danger or death or great bodily harm and it would have increased his own danger to retreat then his use of force likely to cause death or great bodily harm was justifiable.
The emphasized portion of the above instruction was taken from the pre-2005 standard jury instruction on the justifiable use of deadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(f) (2004). The prosecutor initially agreed to the requested instruction, but later announced an objection, believing that it would be error for the court to give anything other than the current standard instruction. The trial court declined to give the specially requested instruction.
A criminal defendant is entitled to a special jury instruction if the following three elements are satisfied: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.
Stephens v. State,
Prior to the enactment of section 776.013, Florida common law provided that, with the notable exception of the “castle doctrine,” a person could not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat “to the wall.”
See Weiand v. State,
However, even under the common law rule, where a defendant has retreated to the wall or retreat would be futile, deadly force is justifiable.
See Thompson v. State,
The legislature’s creation of section 776.013 in 2005 “expanded the right of self-defense and abolished the common law duty to retreat when a person uses deadly force in self-defense to prevent imminent great bodily harm or death.”
McWhorter v. State,
For offenses occurring after the effective date of section 776.013, several cases have found fundamental error where the jury received the pre-2005 standard instruction on the justifiable use of deadly force.
See Williams v. State,
Under the unique circumstances of this case, the trial court erred in instructing the jury as to the “Stand Your Ground” law over the defendant’s objection, without also instructing the jury as to the scope of the duty to retreat in situations where the defendant was engaged in unlawful activity-
The plain language of section 776.013(3) provides that the “no duty to retreat” rule applies only where a person “is not engaged in an unlawful activity.” We need not decide the exact scope of the statutory term “unlawful activity” under section 776.013(3). Whatever the scope of that term, we hold that possession of a firearm by a convicted felon qualifies as “unlawful activity” within the meaning of the Stand Your Ground law.
3
Cf Dawkins v. State,
Accordingly, where, as here, a defendant was engaged in an unlawful activity or was in a place where he did not have a right to be at the time he was attacked, the common law duty to retreat still applies.
See Ady v. Am. Honda Fin. Corp.,
Here, the requested instruction on the duty to retreat was supported by the evidence (i.e., that the defendant was unlawfully possessing a firearm), the standard instruction did not adequately address the scope of the duty to retreat in cases where the defendant was engaged in unlawful activity, and the special instruction, which was derived from the pre-2005 standard jury instruction, was a correct statement of the common law duty to retreat and was not misleading or confusing.
Because there was evidence that the defendant was engaged in unlawful activi
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ty, the trial court should not have given the standard instruction on the Stand Your Ground law over the defendant’s objection, without also giving the defendant’s specially requested instruction. Alternatively, in light of the defendant’s objection to the Stand Your Ground instruction and the evidence that the defendant was engaged in unlawful activity at the time he was attacked, the court could have simply omitted the Stand Your Ground instruction and given the pre-2005 standard instruction on the justifiable use of deadly force.
4
Either approach would have served to explain to the jury the parameters of the duty to retreat in cases where the defendant was engaging in unlawful activity at the time he was attacked. Although the defendant’s claim of self-defense was arguably weak in this case, he was nevertheless entitled to a proper instruction on the law.
See Wright v. State,
Based on the foregoing, we reverse for a new trial on charges of manslaughter.
Affirmed in part, Reversed in part, and Remanded for a new trial on charges of manslaughter.
Notes
. The testimony at trial varied as to whether the defendant fired two or three shots. One of the victims’ friends claimed that after the defendant shot both victims, the defendant fired a third shot, directed at him, but missed.
. As to all other issues raised, they are either rendered moot by our disposition or they are otherwise without merit.
. In a separate point on appeal, the defendant makes an alternative argument that the term “unlawful activity" in the Stand Your Ground statute should be interpreted to apply only to forcible felonies. We reject this argument without further discussion. Nothing in this opinion, however, should be read as limiting a convicted felon's right to raise a defense of necessity to an unlawful possession of a firearm charge in an appropriate case.
See Marrero v. State,
. That instruction provides in pertinent part: The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if, by retreating, he could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm, and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.