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Talley v. State - 106 So. 3d 1015 (Fla. Dist. Ct. App. 2013)

Rule:

Fla. Std. Jury Inst. Crim. 3.6(g) follows the language of § 776.013(3), Fla. Stat. (2012) but sets off the phrase "including deadly force" with an additional comma. This additional comma is erroneous because under the rules of grammatical construction it makes the phrase "including deadly force" a nonessential part of the sentence and thus changes the meaning by indicating that a defendant has no duty to retreat and has the right to stand his ground and meet force with force only if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.

Facts:

Defendant Douglas Wayne Talley was charged with aggravated battery (great bodily harm) and battery (domestic violence). A jury trial was held in Florida state court. Talley's only defense was that the alleged victim, John Mullendore, had attacked him with nondeadly force and thus Talley was justified in using nondeadly force in self defense. Mullendore testified that Talley stabbed him with something sharp two times without provocation and that he punched Talley in the jaw as he pushed Talley away from him. Talley, on the other hand, testified that Mullendore started the altercation by punching him in the jaw and that Mullendore was injured as the two men wrestled against a chain link fence. The jury found Talley guilty of the lesser-included offense of felony battery. The battery (domestic violence) charge was nolle prossed. Talley was sentenced to 68.25 months in prison, and he timely appealed. On appeal, Talley argued that the standard self defense jury instructions given concerning the term "including deadly force" were fundamentally erroneous because they were misleading and eviscerated Talley's only defense.

Issue:

Did the court err in giving the jury instructions?

Answer:

Yes.

Conclusion:

The appellate court found that there was a comma after the phrase "including deadly force" in the instruction, but not in the statute on which the instruction was based, § 776.013, Fla. Stat. This comma was erroneous because it made the phrase "including deadly force" a nonessential part of the sentence and thus changed the meaning by indicating that an accused had no duty to retreat and had the right to stand his ground and meet force with force only if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony. The erroneous comma eliminated Talley's sole defense by suggesting that he had no right to defend himself with any force whatsoever unless the victim threatened him with deadly force. The State further misled the jury by relying on the erroneous instruction in closing argument. The justifiable use of nondeadly force was Talley's only defense and confusion caused by the instruction may have deprived him of a fair trial. Thus, the court reversed the judgment and the case was remanded for a new trial.

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