       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 3, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-852
                         Lower Tribunal No. 06-27519
                            ________________


                          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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