           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D17-2012
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ORANDO RICARDO THOMPSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

                       October 15, 2018


ROWE, J.

     Orando Ricardo Thompson challenges his conviction for
second-degree murder and his sentence of life imprisonment. We
affirm, but write to address three of his arguments on appeal.

                             Facts

    In the summer of 2015, tempers started to simmer when Caleb
Halley, a long-time employee of Buddy’s Seafood Market, learned
that Orando Thompson, a newer employee, added hot sauce and
other seasonings to the gumbo Halley prepared earlier that day.
Halley confronted Thompson about adding seasoning to the
gumbo, and the argument escalated to a physical altercation
outside of the market. At one point, Thompson left the fight,
reentered the market, retrieved a sword on display in a backroom
of the market, and returned outside to stab Halley three times in
the abdomen. These wounds ultimately led to Halley’s death.

     Before trial, Thompson moved to dismiss the charge, arguing
that he was immune from prosecution pursuant to the Stand Your
Ground Law. The trial court conducted an evidentiary hearing
and denied the motion. Thompson challenged this denial via a writ
of prohibition. This Court denied the petition without prejudice to
Thompson’s ability to raise the affirmative defense of self-defense
at trial. Thompson v. State, 204 So. 3d 990, 991 (Fla. 1st DCA
2016).

     The altercation between Halley and Thompson, which
occurred directly behind the business, was recorded from two
different angles by the surveillance equipment installed at
Buddy’s Seafood Market. Although the video has no sound, it
depicts Halley approaching Thompson and the two beginning to
argue. Thompson testified at trial that when Halley first
approached him, Halley said, “[D]on’t touch my fucking gumbo
again.”

      The physical altercation began with the two men puffing out
their chests and pushing at each other. Halley appears to pull
something from his pocket (Thompson later testified that it was a
knife) and Thompson arms himself with a discarded piece of
lumber. When Thompson dropped the piece of lumber, the two
men resumed pushing each other. Thompson then armed himself
with a discarded broom handle, and Halley picked up the piece of
lumber Thompson had dropped. At this point, the men appear to
be in an heated verbal exchange, and although armed, the men
still only push each other with open palms.

     After about ninety seconds, Thompson can be seen leaving the
fight and going inside the market. Halley, under an apparent
belief that the altercation was over, picked up his belongings and
started walking towards his vehicle. A video from a different angle
shows that when Thompson entered the market, he walked
directly to the backroom and grabbed a sword that was displayed
on the wall. The sword had a fifteen-inch blade.


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     After about twenty seconds, Thompson returned outside to
confront Halley with the sword. Halley used the nearby broom
handle to defend himself. The men continued to scuffle and swing
their respective weapons at each other. Thompson can be seen
making stabbing motions with the sword. The altercation
continues until two employees exit the market and break up the
fight. When the men were finally separated, a witness testified
that Halley said, “He stabbed me, bro,” and a portion of Halley’s
intestines was visibly protruding from one of his wounds.

     Halley was taken to the hospital, but he died as a result of
complications from the abdominal stab wounds. Halley suffered a
total of three stab wounds. Two of the wounds were deep enough
to penetrate the abdominal cavity.

    When he was interviewed by the police after the stabbing,
Thompson told Lt. Eusebio Talamantez, the lead investigator, that
Halley pulled out a knife and threatened to cut him. He explained
that he felt that he had to defend himself so he grabbed the sword
from the backroom. When asked why he went back outside with
the sword, Thompson explained it was because he was mad and
upset with Halley.

     At trial, during direct examination, Lt. Talamantez referred
to some of the statements made by Thompson during the recorded
interview as “inaccurate” and “not true.” On cross-examination,
defense counsel, in an attempt to challenge the thoroughness of
the investigation, asked Lt. Talamantez about the proper method
of investigating a self-defense case, and the lieutenant responded,
“This case wasn’t self-defense, it was the exact opposite of self-
defense.” Defense counsel did not object to this statement.

     After the trial court denied Thompson’s motion for judgment
of acquittal, Thompson testified on his own behalf. He explained
that he was authorized to spice the gumbo. Thompson testified
that, in his capacity as an employee at Buddy’s Seafood Market, he
had known and worked with Halley for four or five years. While
he characterized their relationship as good, Thompson also
testified that Halley would often complain about the quality of
Thompson’s work.        Thompson and several other employees
testified that Halley was known to carry a small knife around his

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neck that he used to open boxes. He explained that he went inside
to get the sword because Halley was coming towards him with a
board and he was scared.

     At the charge conference, defense counsel asked the court to
include an instruction on the justifiable use of non-deadly force.
The State objected to the inclusion of the instruction, arguing that,
under the facts of this case, there was no support for the assertion
that the sword was used in a non-deadly manner. The trial court
denied the request.

     Defense counsel also asked the court to refrain from
instructing the jury that the use of deadly force was not justified if
Thompson initially provoked the use of force against himself
because Halley was the initial aggressor. The State argued that
Thompson provoked the use of force against himself when he left
the fight, went inside the market to retrieve the sword, and
returned outside to confront Halley. The trial court overruled the
objection.

    The jury found Thompson guilty of second-degree murder and
he was sentenced to life imprisonment. This timely appeal follows.

                              Analysis

     On appeal, Thompson raises three issues that merit
discussion. First, he argues that fundamental error occurred or,
in the alternative, trial counsel was ineffective when the lead
investigator was permitted to comment on Thompson’s credibility
and testify that this was not a self-defense case. Second,
Thompson contends that the trial court should have granted his
motion for judgment of acquittal because the evidence showed no
more than an impulsive overreaction to Halley’s attack. Third, he
asserts that the trial court erred in refusing to instruct the jury on
the justifiable use of non-deadly force and erred in instructing the
jury on the initial aggressor exception to the use of deadly force.

      Fundamental Error/Ineffective Assistance of Counsel

     Thompson argues that fundamental error occurred or, in the
alternative, trial counsel was ineffective when the lead

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investigator was allowed to testify that this was a self-defense case
and to comment on Thompson’s credibility. We review these
arguments de novo. Elliot v. State, 49 So. 3d 269, 270 (Fla. 1st
DCA 2010).

     As a general rule, “a witness’ opinion as to the credibility,
guilt, or innocence of the accused is inadmissible.” Jackson v.
State, 107 So. 3d 328, 339 (Fla. 2012). “[I]t is especially
troublesome when a jury is repeatedly exposed to an interrogating
officer’s opinion regarding the guilt or innocence of the accused.”
Id. at 340; Martinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000)
(“[T]here is an increased danger of prejudice when the
investigating officer is allowed to express his or her opinion about
the defendant’s guilt.”).      Here, Lt. Talamantez repeatedly
commented on Thompson’s credibility by asserting that many of
the statements made during Thompson’s interview were
inaccurate and untrue. Had defense counsel objected to any of
Talamantez’s above-mentioned statements, then the trial court
would have been required to sustain the objection as they were
impermissible comments on Thompson’s guilt. See Battle v. State,
19 So. 3d 1045, 1048 (Fla. 4th DCA 2009) (noting that if defense
counsel had properly objected to the detective’s statement that he
was certain that the defendant was the person that committed the
burglary, then the trial court would have been required to exclude
the testimony as impermissible opinion on the defendant’s guilt).

     Further, it is impermissible for an investigator to testify that
a case does not involve self-defense. Bartlett v. State, 993 So. 2d
157 (Fla. 1st DCA 2008). In Bartlett, the investigating officer
testified that he ruled out self-defense before signing a complaint
for murder.      Id. at 158.     This Court held that this was
impermissible testimony because the testimony improperly
invaded the province of the jury and allowed the investigator to
serve as a fact-finder by determining that self-defense was not a
viable defense. Id. at 161. Here, Lt. Talamantez acted as a fact-
finder by stating his personal conclusion that this case did not
involve self-defense. Again, had defense counsel objected to this
testimony, the trial court would have been required to sustain the
objection.



                                 5
     But merely because the lead investigator’s testimony was
admitted in error does not mean that it rises to the level of
fundamental error. Rarely will an error be deemed fundamental.
F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003). The supreme court
has stated, “in order to be of such fundamental nature as to justify
a reversal in the absence of timely objection 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.” Id. (quoting Brown v. State, 124 So. 2d 481, 484
(Fla. 1960)).

     Under the specific facts of this case, the investigator’s
statements do not rise to the level of fundamental error. Rather,
they are harmless because there is no reasonable possibility that
these statements contributed to the jury’s verdict. See State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Here, the jury’s guilty
verdict would be easily attainable without the investigator’s
statements because the jury was able to watch a video of the
altercation. Unlike most surveillance videos, this one was crisp,
clear, and in color. The jury was able to view the altercation from
two different angles and was able to watch Thompson leave the
fight, enter the business to obtain the sword, and return to the
fight. The video demonstrates that Thompson had multiple
opportunities to end the altercation and he, instead, chose to
reinitiate the fight with Halley.

     In the alternative, Thompson argues that defense counsel’s
failure to object to the lieutenant’s statements was ineffective
assistance of counsel on the face of the record. “An appellate court
initially reviewing a conviction will only grant relief for ineffective
assistance of counsel where the ineffectiveness of counsel is
apparent from the face of the record before the appellate court and
a waste of judicial resources would result from remanding the
matter to the lower court for further litigation.” Monroe v. State,
191 So. 3d 395, 403 (Fla. 2016). To establish a claim of ineffective
assistance of counsel, a defendant must show that counsel’s
performance was deficient and that he was actually prejudiced by
the deficient performance. Strickland v. Washington, 466 U.S.
668, 687-88, 691-92 (1984). “The benchmark for judging claims of
ineffectiveness . . . is whether the conduct of counsel ‘so
undermined the proper functioning of the adversarial process that

                                  6
the trial cannot be relied on as having produced a just result.’”
Cabrera v. State, 766 So. 2d 1131, 1133 (Fla. 2d DCA 2000)
(quoting Downs v. State, 453 So. 2d 1102, 1106 (Fla. 1984)).

     Although defense counsel’s performance was deficient because
he should have objected to several portions of the investigator’s
testimony, Thompson cannot establish that he was prejudiced by
the failure to object because the video of the altercation would still
have been admissible. The jury was able to watch the entire
altercation – from two different angles – when determining
whether Thompson was guilty of second-degree murder. Thus,
Thompson is unable to show that there is a reasonable probability
that the outcome of his trial would have been different if defense
counsel had objected to the investigator’s testimony.

                       Judgment of Acquittal

     Next, Thompson contends that the trial court should have
granted his motion for judgment of acquittal because the evidence
did not support a conviction for second-degree murder but showed
no more than an impulsive overreaction to Halley’s attack. We
review this argument de novo. Dunn v. State, 206 So. 3d 802, 804
(Fla. 1st DCA 2016). The legal test for determining whether a
judgment of acquittal should be granted is “whether after all
conflicts in the evidence and all reasonable inferences therefrom
have been resolved in favor of the verdict on appeal, there is
substantial, competent evidence to support the verdict and
judgment.” Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981). Legal
sufficiency alone, as opposed to evidentiary weight, is the sole
concern of an appellate court. Id.

     “In the context of second-degree murder, 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;
and (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, 60 So. 3d 588, 591 (Fla. 4th DCA 2011).
However, an impulsive overreaction to an attack is insufficient to
support a second-degree murder conviction. Antoine v. State, 138
So. 3d 1064, 1073 (Fla. 4th DCA 2014). This is so because “(a) a

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defendant who at worst acts recklessly does not satisfy the
‘depraved mind’ element of the crime; and (b) conduct in the form
of an immediate overreaction to an assault is generally insufficient
to prove ill will, hatred, spite, or evil intent, as those mental states
usually require more than an instant to develop.” Henry v. State,
145 So. 3d 924, 927 (Fla. 4th DCA 2014).

     Here, the evidence did not support a finding that Thompson’s
stabbing of Halley was an impulsive overreaction because
Thompson had time to consider the nature of his act. Antoine, 138
So. 3d at 1073. The surveillance video shows that it took
Thompson at least twenty seconds to leave the fight, go inside the
market, retrieve the sword, and return outside to reinitiate the
fight. Thompson admitted during his recorded interview that he
went back outside because he was mad and upset. Thompson’s use
of the sword was clearly an “overreaction,” but it was not
“impulsive” as he had ample time to consider the ramifications of
returning outside to reengage in the fight with Halley. The video
shows that Halley made no attempt to pursue Thompson and that
Halley had prepared to leave the fight by gathering his belongings.
There was competent, substantial evidence from which the jury
could, and did, conclude that Thompson acted with a deliberate
disregard for human life; thus, the trial court properly denied the
motion for judgment of acquittal.

                          Jury Instructions

     Finally, Thompson asserts that the trial court erred in
refusing to instruct the jury on the justifiable use of non-deadly
force and also erred in instructing the jury on the initial aggressor
exception to the use of deadly force. We review arguments
concerning the giving or withholding of jury instructions for an
abuse of discretion. Kervin v. State, 195 So. 3d 1181, 1182 (Fla. 1st
DCA 2016).

     When determining whether to give an instruction on deadly
or non-deadly force, the trial court should focus on the nature of
the force used, not on the weapon itself, because a deadly weapon
can be used without deadly force. Brown v. State, 113 So. 3d 103,
104 (Fla. 5th DCA 2013). If the force used is clearly deadly or non-
deadly as a matter of law, only the applicable jury instruction

                                   8
should be given. Larsen v. State, 82 So. 3d 971, 974 (Fla. 5th DCA
2011). “Where the evidence at trial does not establish that the
force used by the defendant was deadly or non-deadly as a matter
of law, the question is a factual one to be decided by the jury, and
the defendant is entitled to jury instructions on the justifiable use
of both types of force.” Id. (quoting Cruz v. State, 971 So. 2d 178,
182 (Fla. 5th DCA 2007)).

     “Although Florida courts have clearly and consistently
emphasized that the determination of whether a weapon is deadly
is a question to be decided by a jury, this general rule is applicable
only where the evidence of a particular case does not establish that
the weapon used was deadly as a matter of law.” Id. at 975. The
act of “thrusting a knife into someone’s chest cavity, home of many
vital organs” has been found to be deadly force because it is likely
to cause death or great bodily harm. Id. (citing Waldo v. State, 728
So. 2d 280, 281 (Fla. 3d DCA 1999)). The act of using a sharp knife
to strike the victim’s neck was determined to be deadly force as a
matter of law. Id. In contrast, the act of making “a single slashing
motion with a razor blade towards the victim’s hand” was
determined to be non-deadly force because death was not the
natural, probable and foreseeable consequence of the defendant’s
action. Id. (citing DeLuge v. State, 710 So. 2d 83, 84 (Fla. 5th DCA
1998)).

     Here, Thompson’s use of a sword with a fifteen-inch blade was
deadly force as a matter of law because death is a natural and
foreseeable consequence of slashing and stabbing another person
with a sword. Brown, 113 So. 3d at 105 n.1 (“[A] defendant is
engaged in the use of deadly force where the ‘natural, probable and
foreseeable consequences of the defendant’s acts are death.’”)
(quoting Garramone v. State, 636 So. 2d 869, 871 (Fla. 4th DCA
1994)). This is especially true here because the video shows that
Thompson was stabbing Halley’s torso where many vital organs
are located. Therefore, the evidence did not support the trial court
giving a jury instruction on non-deadly force because the evidence
showed that Thompson used the sword in a deadly manner as a
matter of law.

     Thompson’s argument that the trial court erred in giving the
initial aggressor exception to the use of deadly force instruction is

                                  9
also without merit. “Under [stand your ground and justifiable use
of deadly force], a person is justified in the use of deadly force and
has no duty to retreat if: (1) he is in a place where he has the right
to be; (2) he reasonably believes such force is necessary to prevent
death or great bodily harm or the imminent commission of a
forcible felony; (3) he did not initially provoke the use of force
against himself (he was not the initial aggressor); and (4) he was
not himself attempting to commit, committing, or escaping after
the commission of a forcible felony.” Wyche v. State, 170 So. 3d
898, 905 (Fla. 3d DCA 2015). Thompson argues that the trial court
erred in giving the initial aggressor portion of the justifiable use of
deadly force instruction because he did not initiate the fight with
Halley.

     An initial aggressor instruction is proper when there is
evidence in the record that the defendant may have initially
provoked the use of force against himself. Johnson v. State, 65 So.
3d 1147, 1149 (Fla. 3d DCA 2011). The evidence in this case
demonstrates that there were essentially two altercations between
Thompson and Halley. Halley was the initial aggressor of the first
altercation because he confronted Thompson about adding spices
to the gumbo and was first to lay hands on Thompson. This
altercation ended when Thompson left the fight and entered the
market to retrieve the sword. Halley did not follow Thompson into
the market to try to continue the fight. Rather, he was outside
gathering his belongings and appeared to be prepared to leave.
Thompson, on the other hand, went inside the market with the
express purpose of arming himself with the sword. He returned
outside and initiated the second fight by swinging the sword and
stabbing Halley. These facts lead to the conclusion that any threat
to Thompson was over by the time that Thompson armed himself
with the sword; thus, Thompson was the initial aggressor during
the second altercation. See Cruz v. State, 189 So. 3d 822, 827 (Fla.
4th DCA 2015) (recognizing that an altercation can be viewed as
two separate events).

    Finding no error, we affirm Thompson’s conviction and
sentence for second degree murder.

    AFFIRMED.


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B.L. THOMAS, C.J., and M.K. THOMAS, J., concur.

                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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