Third District Court of Appeal
State of Florida
Opinion filed May 3, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-852
Lower Tribunal No. 06-27519
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Roque Esteban Calafell,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler
Mendez, Judge.
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for appellee.
Before SALTER, EMAS and LOGUE, JJ.
SALTER, J.
Roque Calafell appeals his adverse jury verdict, conviction and sentences for
first degree murder and robbery. We reverse his robbery conviction and remand
that charge for a new trial, concluding that his request for a special jury instruction
on the afterthought defense was well taken and erroneously denied.
We affirm his conviction on the first degree murder charge because it rests
on competent, substantial evidence establishing premeditation irrespective of the
robbery conviction. The jury rendered a general verdict subsuming both first
degree premeditated murder and felony murder. The evidence independently
establishing premeditation is sufficient to warrant affirmance despite the reversal
of the robbery conviction as a basis for a conviction for felony murder.
The Afterthought Instruction
Calafell’s defense counsel made a timely request for a special instruction on
his “afterthought” defense, based on evidence that Calafell removed the victim’s
property as an afterthought to the use of force in the criminal incident. While the
trial court has discretion on whether to give a particular instruction, “in a criminal
proceeding, the trial court's discretion is limited by the defendant's right to have the
jury instructed on any valid theory of defense supported by record evidence.” Cliff
Berry, Inc. v. State, 116 So. 3d 394, 406 (Fla. 3d DCA 2012).
The defendant is entitled to a special jury instruction if: “(1) the special
instruction was supported by the evidence;1 (2) the standard instruction did not
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adequately cover the theory of defense; and (3) the special instruction was a correct
statement of the law and not misleading or confusing.” Wheeler v. State, 4 So. 3d
599, 605 (Fla. 2009) (quoting Stephens v. State, 787 So. 2d 747, 756 (Fla. 2001)).
In this case, the three requirements were present and the robbery conviction must
be reversed.1
Premeditated Murder
The reversal of the robbery conviction would require the reversal of a
special interrogatory verdict for felony murder predicated on robbery as the
underlying felony, as conviction by the jury on a lesser charge of theft (pursuant to
the afterthought instruction and evidence) would not have supported a felony
murder conviction. Here, however, the defense did not seek or obtain special
interrogatories regarding premeditated first degree murder and felony murder.
1 The trial court acknowledged that the evidence was sufficiently close to permit
the jury to determine that the victim’s property was taken as an afterthought after
Calafell attacked the victim. This colloquy took place during the discussion of
whether the felony murder charge could be submitted to the jury.
1 At the time of trial, defense counsel proposed an afterthought instruction at
variance with the then-extant standard instruction in Criminal Jury Instructions
15.1. In re Standard Inst. In Crim. Cases— Report No. 2012-09, 122 So. 3d 263,
284 (Fla. 2013). In the event that the State continues to prosecute the robbery
charge on remand and the defense seeks an afterthought instruction, the standard
form should be considered.
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In San Martin v. State, 717 So. 2d 462, 470 (Fla. 1998), the Supreme Court
of Florida followed the opinion of the Supreme Court of the United States in
Griffin v.
United States, 502 U.S. 46 (1991), regarding a general jury verdict grounded on an
alternative theory of guilt for which the evidence is sufficient. The Fifth District
applied San Martin to the facts of a case similar to the case at hand in Davis v.
State, 922 So. 2d 438, 444 (Fla. 5th DCA 2006). In that case, the defendant sought
reversal of his conviction for robbery and for first degree (premeditated and felony)
murder based on the trial court’s erroneous denial of his request for an afterthought
instruction.
The Fifth District reversed the robbery conviction based on the denial of the
instruction, observing as well that if the afterthought theory “were believed by the
jury, the robbery necessary to support the felony murder theory would be negated.”
Id. Upon a review of the evidence of premeditation in the record, however, the
Fifth District found “sufficient evidence to support the first degree premeditated
murder conviction independent of the error relating to the felony murder
conviction.” Id. at 445.
In the present case, Calafell told his girlfriend (who testified at trial and
participated by luring the victim to the apartment shared by Calafell and the
girlfriend) that he wanted to kill the victim. The victim told the couple he could
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obtain fraudulent social security cards for them, but did not deliver on that
promise.
Calafell’s presentation of evidence that the theft of the victim’s property was an
afterthought—with its premise that the murder, not the theft, was the basis for
luring the victim to Calafell’s and his girlfriend’s apartment—only provides
additional indicia of premeditation regarding the murder.
Finally, Calafell’s reliance on Perkins v. State, 814 So. 2d 1177 (Fla. 4th
DCA 2002), is unavailing. That case also involved the erroneous denial of an
afterthought instruction and evidence which would have supported a conviction of
first degree murder under the separate charges of premeditated or felony murder.
The defendant in Perkins testified to a “different version of events” based on self-
defense and his claim “that he had never intended to rob the victim and had only
stabbed him in selfdefense.” Id. at 1178. The victim and defendant in that case
had met in a bar that evening, in contrast to the longer course of dealing between
Calafell and the victim in the case at hand, and in contrast to the defendant’s
specific plan and preparation to murder (the kind of evidence detailed in Davis). In
the case under review, Calafell did not testify, and thus did not contradict his
girlfriend’s testimony regarding premeditation.
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For these reasons, we reverse and remand the case for a new trial on Count
II of the indictment, and we affirm the conviction and sentence for first degree
murder.
We find no merit in Calafell’s other issues on appeal.
Reversed in part, affirmed in part, and remanded for further proceedings on
Count II.
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