IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MICHAEL TRAMEL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-2285
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed May 12, 2015.
An appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.
Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Michael Tramel seeks reversal of his convictions and sentences for attempted
second-degree murder and aggravated battery with a deadly weapon raising several
issues. We affirm the aggravated battery conviction and sentence without
discussion. However, finding fundamental error in the jury instructions given on the
justifiable use of deadly force, we reverse the attempted second-degree murder
conviction and sentence, and remand for a new trial on that count.
According to witnesses at Tramel’s trial, Tramel fought with and stabbed
victim Jonathan Key during the funeral for Tramel’s half-brother, Enoch. Tramel
and Key got into a graveside argument and scuffle, which Tramel initiated by first
pushing then punching Key. The fight was broken up by fellow mourners. Several
witnesses testified they saw Tramel in possession of a small knife or a pocketknife
during the fight. After Tramel and Key were separated, Tramel went to his car and
returned with what some witnesses testified was another, larger knife. The fight
between the two men resumed, and ended with Key being stabbed. Testifying in
his own defense, Tramel said that it was Key who initiated the first altercation, that
Key had a knife, that Tramel armed himself with a knife after the fight broke up
when he became aware Key and others were chasing him, that Key reinitiated the
fight, and that he did not purposely stab Key.
Tramel claimed self-defense pursuant to the “stand your ground” law.1 In
accordance with the discussion between the parties and the court during the charge
1
See §776.013(3), Fla. Stat. (2011).
2
conference, the trial court instructed the jury as follows, 2 in pertinent part, regarding
the use of deadly force in self-defense and the duty to retreat:
An issue in this case is whether the Defendant acted in
self-defense. It is a defense to the offense with which
MICHAEL GARRICK TRAMEL is charged if the injury
to Jonathan Key resulted from the justifiable use of deadly
force.
“Deadly force” means force likely to cause death or great
bodily harm.
A person is justified in using deadly force if he reasonably
believes that such force is necessary to prevent imminent
death or great bodily harm to himself or another.
However, the use of deadly force is not justifiable if you
find:
MICHAEL GARRICK TRAMEL initially provoked the
use of force against himself unless:
a. The force asserted toward the Defendant was so great
that he reasonably believed that he was in imminent
danger of death or great bodily harm and had exhausted
every reasonable means to escape the danger, other than
using deadly force on Jonathan Key.
b. In good faith, the Defendant withdrew from physical
contact with Jonathan Key and clearly indicated to
Jonathan Key that he wanted to withdraw and stop the use
of deadly force, but Jonathan Key resumed the use of
deadly force.
...
2
See Fla. Std. Jury Instr. (Crim.) 3.6(f).
3
If the Defendant was not engaged in an unlawful activity
and was attacked in any place where he had a right to be,
he had no duty to retreat and had the right to stand his
ground and meet force with force, including deadly force,
if he reasonably believed that it was necessary to do so to
prevent death or great bodily harm to himself.
If you find that the Defendant who because of threats or
prior difficulties with Jonathan Key had reasonable
grounds to believe that he was in danger of death or great
bodily harm at the hands of Jonathan Key then the
Defendant had the right to arm himself. However, the
Defendant cannot justify the use of deadly force, if after
arming himself he renewed his difficulty with Jonathan
Key when he could have avoided the difficulty, although
as previously explained if the Defendant was not engaged
in an unlawful activity and was attacked in any place
where he had a right to be, he had no duty to retreat.
Relying on this court’s decision in Floyd v. State, 151 So. 3d 452 (Fla. 1st
DCA 2014), rev. granted, ____ So. 3d ____, 2014 WL 7251662 (Fla. Dec. 16, 2014),
Tramel argues the trial court gave conflicting instructions when it told the jury both
that he had no duty to retreat in the face of imminent death or great bodily harm, and
that he had to exhaust every reasonable means to escape danger before using deadly
force. In doing so, he argues, the court committed fundamental error.
“[F]or jury instructions to constitute fundamental error, the error must ‘reach
down into the validity of the trial itself to the extent that a verdict of guilty could not
have been obtained without the assistance of the alleged error.’” Garzon v. State,
980 So. 2d 1038, 1042 (Fla. 2008) (quoting Brown v. State, 124 So. 2d 481, 484
(Fla. 1960)). “In determining whether the jury instructions constituted fundamental
4
error, we must consider ‘the effect of the erroneous instruction in the context of the
other instructions given, the evidence adduced in the case, and the arguments and
trial strategies of counsel.’” Floyd, 151 So. 3d at 454 (citing Smith v. State, 76 So.
3d 379, 383 (Fla. 1st DCA 2011)).
As in this case, the defendant in Floyd claimed self-defense under the “stand
your ground” law, and the trial court gave the standard justifiable-use-of-deadly-
force instructions that (1) the use of deadly force was not justified if the defendant
initially provoked the use of force unless he exhausted every reasonable means to
escape the danger and (2) if the defendant was not engaged in an unlawful activity
and attacked in a place he had a right to be, he had no duty to retreat and could stand
his ground with force. Floyd at 453-54. On appeal from his convictions, Floyd
argued the first instruction negated the second one because the jury was told he had
no duty to retreat, on one hand, but on the other, he had to exhaust every reasonable
means of escape. Id. at 454. We agreed, reasoning:
[T]he jury was instructed that if the use of deadly force is
necessary to prevent imminent death or great bodily harm
to oneself or others, then deadly force is justified without
regard to any effort to retreat so long as the defendant is
not engaged in unlawful activity. A defendant may not use
deadly force if the defendant provoked another showing
force; however, if the defendant provoked another, who
then uses force so great as to put the defendant in fear of
death or great bodily harm, then the defendant may use
deadly force, but only if the defendant has first exhausted
every means of escape. In effect, the jury instruction here
5
provided that Floyd did not have to retreat before meeting
deadly force with deadly force if in fear of death or great
bodily harm and did have a duty to try to retreat before
using deadly force if in fear of death or great bodily harm.
Id. (emphasis in original). We concluded the contradiction in the instructions
effectively negated possible application to Floyd’s only defense, resulting in
fundamental error and requiring reversal of Floyd’s convictions. Id. (citing Carter
v. State, 469 So. 2d 194, 196 (Fla. 2d DCA 1985)).
Our reasoning and conclusion in Floyd dictate the same result in this factually
indistinguishable case. The State contends that Tramel asserted defenses at trial
other than self-defense, and therefore, even if the instructions were inconsistent,
Tramel did not lose his sole defense and the error is not fundamental. The trial
transcript does not support the State’s argument, however. The only defense clearly
asserted by Tramel and argued by defense counsel was self-defense. Based on our
decision in Floyd, 3 we conclude the justifiable-use-of-deadly-force instructions
given in this case inconsistently provided that Tramel did not have to retreat before
meeting deadly force with deadly force if in fear of death or great bodily harm and
did have a duty to try to retreat before using deadly force if in fear of death or great
3
The Florida Supreme Court, having granted the State’s petition for discretionary
review of the decision in Floyd, issued an order on December 11, 2014, granting the
State’s motion to recall this court’s mandate, and staying proceedings until
disposition of the petition for review. Order, State v. Floyd, No. SC14-2162 (Fla.
Dec. 11, 2014) (order staying proceedings).
6
bodily harm. This inconsistency rendered the instructions inapplicable to Tramel’s
sole defense, and consequently, fundamental error occurred. For this reason, we
reverse Tramel’s conviction and sentence for attempted second-degree murder, and
remand for a new trial on that count only.
AFFIRMED, in part; REVERSED, in part; and REMANDED.
ROBERTS, MARSTILLER and SWANSON, JJ., CONCUR.
7