       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).




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       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

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. 2

       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




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.
2
   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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conviction. Here, however, the defense did not seek or obtain special interrogatories

regarding premeditated first degree murder and felony murder.

       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


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girlfriend) that he wanted to kill the victim. The victim told the couple he could

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.

      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.


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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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