ROSLY DESOUZA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed Rosly DeSouza's attempted first-degree murder conviction because the trial court gave a jury instruction that improperly substituted "victim" for "defendant" in the standard self-defense instruction, which confused the jury and shifted the focus away from the defendant's self-defense claim.
The modified instruction was improper and not harmless error. The substitution of "victim" for "defendant" was an incorrect statement of law that confused the jury by focusing on the victims' right to use force rather than the defendant's self-defense claim, requiring reversal and a new trial.
[1] A jury instruction that substitutes the word "victim" for "defendant" in the context of a "stand your ground" defense is an incorrect statement of the law and may confuse…
[2] An improper jury instruction that shifts the focus from the defendant's self-defense claim to the victim's right to use force can negate the defendant's only defense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The court's substitution of the word "victim" for the word "defendant" was an incorrect statement of the law and may have confused the jury.”
Establishes that the modified instruction was legally improper and confusing to the jury.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDeSouza and a codefendant were charged with attempted first-degree murder in the stabbing of Silvio Ferreira and Zilma Silomao. The stabbings occurred…
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STONE, Judge.
Appellant’s convictions and sentence are reversed. Appellant, along with a codefend-ant, was charged with attempted first degree murder in the stabbing of Silvio Ferreira and Zilma Silomao. The stabbings occurred in Ferreira’s and Silomao’s apartment during a dispute over repayment of a loan. The defense argued that the stabbings were conducted in self defense.
The court gave the following instruction, which is a modification of the standard jury instruction on duty to retreat:
If you find that the victim was attacked in his own home or on his own premises, he had no duty to retreat, and had the lawful right to stand his ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm, if it was necessary to prevent death or great bodily harm to himself or another. (emphasis supplied). Appellant objected to the instruction, arguing that since they were not on trial, an instruction regarding the victims’ duty to retreat or their right to use force was inappropriate. Florida Standard Jury Instruction 3.04(d) begins: “If the defendant was attacked in his own home or on his own premises, he had no duty to re-treat_”
The court’s substitution of the word “victim” for the word “defendant” was an incorrect statement of the law and may have confused the jury. See Butler v. State, 493 So. 2d 451 (Fla.1986).
In Butler, the defendant shot the victim in the victim’s own living room. As in this case, the defendant claimed “self-defense.” The trial court thereafter gave a modified version of the standard instruction, substituting the word “person” for the word “defendant.” On appeal, the disputed instruction was held improper. Id. The Florida Supreme Court explained:
The instruction on justifiable use of force in one’s own home was misleading and contradictory_ [Since] the improper instruction would naturally lead a reasonable jury to conclude that the victim had an abstract right to be armed and use force against the defendant, [t]he instruction improperly shifted the focus of the ease from the applicability of the defense of self-defense to the right of the victim to fight force with force. As a result, the confusing and misleading instruction virtually negated the defendant’s only defense, that of self-defense.
Id. at 453. See also, Lusk v. State, 531 So. 2d 1377 (Fla. 2d DCA.1988). We can discern no reason to reach a contrary conclusion here.
Also, upon examining the record, and considering the final argument by the state and the disputed evidence as to what occurred, we cannot conclude that the instruction was harmless error. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). As to the other issues raised, we find no error in the court’s denial of Appellant’s motions to dismiss and sever. All other issues raised on appeal are moot. Therefore, we reverse and remand for a new trial.
POLEN, J., and DONNER, AMY STEELE, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cangusso v. State, 650 So. 2d 172 (Fla. 4th DCA 1995)…PER CURIAM. We reverse Appellant’s conviction and sentence, and remand for a new trial, on the grounds set forth in the companion appeal DeSouza v. State, 650 So. 2d 170 (Fla. 4th DCA 1995), issued contemporaneously with this opinion. STONE and POLEN, JJ., and DONNER, AMY STEELE, Associate Judge, concur.…
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Wilson v. State, 707 So. 2d 1200 (Fla. 4th DCA 1998)…that defendant need not retreat within his own home or curtilage to justify any use of deadly force to protect himself within that special location, on the other. Defendant relies on Butler v. State, 493 So. 2d 451 (Fla.1986), and Desouza v. State, 650 So. 2d 170 (Fla. 4th DCA 1995). In both of those eases, however, the trial court changed “defendant” to “person” in the retreat instruction, thus altering its meaning. Moreover as the court held in Butler, the mere fact that defendant was on his home ground do…
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Hansen v. State, 898 So. 2d 201 (Fla. 2d DCA 2005)…victim to fight force with force. As a result, the confusing and misleading instruction virtually negated the defendant’s only defense, that of self-defense. Id. at 453; see also Lusk v. State, 531 So. 2d 1377 (Fla. 2d DCA 1988); Desouza v. State, 650 So. 2d 170 (Fla. 4th DCA 1995). The same reasoning applies here. The trial court’s modified instruction shifted the focus of the case from the defendant to the victim and-her- right to use force. The instruction also implied that Henshaw was “faced with the w…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Butler v. State, 493 So. 2d 451 (Fla. 1986)
- Lusk v. State, 531 So. 2d 1377 (Fla. 2d DCA 1988)