        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                          KENDRICK C. SILVER,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D11-335

                              [July 16, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 2007CF008020CXX.

  Carey Haughwout, Public Defender, and John M. Conway, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Defendant Kendrick Silver (“Defendant”) was convicted of three counts
of attempted second-degree murder and two other misdemeanors.
Defendant now appeals his convictions and sentences, alleging that the
trial court erred by: (1) improperly allowing the State to impeach
Defendant with questions about prior robberies; (2) giving an incomplete
jury instruction; (3) allowing the State to strike a potential juror without a
valid, race-neutral reason for doing so; and (4) denying his motion to
suppress his post-arrest confession to investigators. We find none of
Defendant’s arguments on appeal warrant a reversal. We write to address
only Defendant’s argument regarding the incomplete jury instruction.
With regard to this issue, we hold that any error was waived and that
giving the requested jury instruction did not constitute fundamental error;
thus, the instruction cannot be a basis for reversal on appeal.

                                Background
   Defendant was an employee at Picasso’s Pizza for about four months
prior to the events occurring on June 1, 2007. That evening, Defendant
and another individual entered the restaurant wearing masks and armed,
with one individual carrying a revolver and one with a rifle. The masked
men initially concentrated on controlling the restaurant’s employees and
owner. When the owner pleaded with one gunman to just take the money
from the register, the gunman responded: “Just be quiet; you don’t want
to get shot, Papa.” The owner later testified that only Defendant referred
to the owner as “Papa.” Based on this, and what the owner could see of
this gunman’s face through his mask, the owner realized that this gunman
(with the revolver) was Defendant.

   The owner was then ordered off the ground and into the back of the
restaurant in order to open a safe. Both gunmen came to the back room
where the safe was located. The owner then heard the back door of the
restaurant slam shut, so he knew that one of the other employees had
“took off running through the back door.”

    Once the safe was open, the owner told the gunman, “I told you there
was no money in there.” The gunmen then saw that the employees were
all running out the back door, leaving the owner by himself for a few
seconds. At this point, the owner took off running and heard gunshots.
After reaching the front door, the owner heard the man with a revolver yell
“stop,” then the gunman shot the owner in the arm. The owner kept
running and finally saw police who were responding to the robbery.

    One of the employees ran toward a storage warehouse that was located
directly behind the pizza restaurant. The owner of the warehouse was
present at the warehouse the night of the robbery and heard the fleeing
employee yelling that the restaurant was being robbed. The warehouse
owner then dialed 911 and also pulled the escaping employee into the
warehouse, shutting the warehouse door behind him as he noticed a
person wearing a mask emerge from the back of the restaurant. Gunfire
followed, with both the warehouse owner s and the employee being shot.

   After law enforcement officers arrived on the scene of the shooting, a
search for the suspects began. Eventually, Defendant and another
individual were found hiding inside a boat.

   After being given Miranda1 warnings, Defendant confessed that he was
part of the robbery of the pizza restaurant that “went bad.” He also
admitted to both shooting at the owner and at “the wall” of the storage unit

1   Miranda v. Arizona, 384 U.S. 436 (1966).

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when he saw the employee run inside with the other man. At his trial,
however, Defendant provided a very different story, contending that he was
at the restaurant the night of the robbery only because he was picking up
his paycheck, and that he left once two men with whom he came to the
restaurant announced their intention to rob it.

    The initial jury instructions read to the jury were agreed upon by both
parties. These instructions included a brief statement designating the
charge of attempted manslaughter as a lesser-included offense of first-
degree murder (“[Y]ou will then consider the circumstances around the
attempted killing in deciding if it was attempted first-degree murder or . .
. attempted voluntary manslaughter.”). The instructions did not include
any further mention of attempted voluntary manslaughter.

    After reading a substantial portion of the instructions to the jury, the
trial court noticed the instructions had a number of typos and other errors.
The judge then addressed the prosecutor and defense counsel: “These jury
instructions really are not acceptable. Why don’t we do it this way; why
don’t we adjourn, you can go back . . . you make the corrections, we’ll
come back tomorrow, we’ll do the jury instructions.” When the parties
arrived in court on the following day with the revised/corrected
instructions, the statement about attempted voluntary manslaughter was
omitted completely, and defense counsel affirmatively stated that he was
“in agreement with these instructions.” Thereafter, the instructions were
read to the jury.

   Defendant was convicted of three counts of attempted second-degree
murder (as lesser included offenses of attempted first-degree murder) and
two other misdemeanors.

                            Standard of Review

   “‘Generally speaking, the standard of review for jury instructions is
abuse of discretion,’ but that ‘discretion, as with any issue of law is strictly
limited by case law.’” Krause v. State, 98 So. 3d 71, 73 (Fla. 4th DCA 2012)
(quoting Lewis v. State, 22 So. 3d 753, 758 (Fla. 4th DCA 2009)). Any
objection to a jury instruction must be specific; without a specific objection
during the jury charge conference, the issue is reviewed to determine if
any error was fundamental. Id. In the instant case, Defendant did not
object to the jury instructions.

    Fundamental error is error that “reaches 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 Bassallo v. State,

                                       3
46 So. 3d 1205, 1209 (Fla. 4th DCA 2010)). “[T]he fundamental error
doctrine should be applied ‘only in rare cases where a jurisdictional error
appears or where the interests of justice present a compelling demand for
its application.’” Nesbitt v. State, 889 So. 2d 801, 802 (Fla. 2004) (quoting
Ray v. State, 403 So. 2d 956, 960 (Fla. 1981)).

                                 Analysis

   Defendant argues that it was fundamental error for the jury to not have
been instructed on attempted manslaughter as a lesser-included offense
of attempted first-degree murder. The State responds that this argument
was waived by defense counsel because defense counsel did not object and
agreed to the instructions as given.

   A. Failure to instruct on lesser included offenses is not necessarily
      fundamental error.

   In non-capital cases, the “failure to instruct on necessarily lesser-
included offenses (even category 1 lesser-included offenses) . . . is not
fundamental error.” Generazio v. State, 727 So. 2d 333, 335 (Fla. 4th DCA
1999). In addressing a similar scenario, the Florida Supreme Court has
stated:

      In formulating his argument, petitioner asks us to apply the
      label “fundamental error” to this case, thereby allowing this
      Court to stray from the long and unbroken lines of precedent
      conditioning a right to jury instructions on lesser included
      offenses upon a request for such instructions, State v. Bruns,
      429 So. 2d 307 (Fla. 1983); Griffin v. State, 414 So. 2d 1025
      (Fla. 1982); Chester v. State, 441 So. 2d 1165 (Fla. 2d DCA
      1983); Wheat v. State, 433 So. 2d 1290 (Fla. 1st DCA 1983),
      review denied, 444 So. 2d 418 (Fla. 1984), and requiring a
      contemporaneous objection as predicate to proper appellate
      review, Harris v. State, 438 So. 2d 787 (Fla. 1983), cert.
      denied, 466 U.S. 963, 104 S. Ct. 2181, 80 L. Ed. 2d 563
      (1984); Ray v. State, 403 So. 2d 956 (Fla. 1981).

Jones v. State, 484 So. 2d 577, 579 (Fla. 1986). In Harris, a capital case,
the supreme court held that criminal defendants have a fundamental right
to have the jury instructed on all necessarily lesser-included offenses.
However, the supreme court in Jones expressly declined to extend Harris
to non-capital cases. Id. (“[r]ecognizing that the role of defense counsel
necessarily involves a number of tactical decisions and procedural
determinations inevitably impacting on a defendant’s constitutional

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rights,” and finding “no personal waiver [with respect to jury instructions
on lesser-included offenses] is required in order to guarantee fundamental
fairness in the non-capital context”).

   This court recently found that the failure of the trial court to give a
lesser-included offense instruction (in that case, the omitted instruction
also was “attempted manslaughter”) was not fundamental error, as the
defendant failed to request the instruction. Cosme v. State, 89 So. 3d
1096, 1097 (Fla. 4th DCA 2012). Cosme cited to Gomez v. State, 5 So. 3d
700, 702 (Fla. 5th DCA 2009), for the proposition that, “[w]hen there is no
timely request made by the defendant, a trial court's failure to instruct on
a necessarily-lesser included offense in a non-capital case does not
constitute fundamental error.” Cosme, 89 So. 3d at 1097.

   Our sister court has reached a similar conclusion. In Firsher v. State,
834 So. 2d 921, 922 (Fla. 3d DCA 2003), the defendant was charged with
attempted second degree murder. The jury was not instructed on the
category 1 lesser included offense, attempted manslaughter; instead, as in
the instant case, defense counsel requested an instruction on aggravated
battery. The court noted:

      [I]t is not fundamental error to convict a defendant under an
      erroneous lesser included charge when he had an opportunity
      to object to the charge and failed to do so if: 1) the improperly
      charged offense is lesser in degree and penalty than the main
      offense or 2) defense counsel requested the improper charge or
      relied on that charge as evidenced by argument to the jury or
      other affirmative action. Failure to timely object precludes
      relief from such a conviction.

Id. at 922 (quoting Armstrong v. State, 579 So. 2d 734, 735 (Fla. 1991)) (in
turn, quoting Ray, 403 So. 2d at 961 (emphasis supplied by Armstrong));
see also Nesbitt, 889 So. 2d at 803 (quoting Ray, 403 So. 2d at 961). Thus,
consistent with Jones, the exception to fundamental error exists “where
defense counsel affirmatively agreed to or requested the incomplete
instruction.” State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994). A defendant
in a non-capital case must specifically request instructions on lesser-
included offenses, or object to the omission; otherwise, any error in failing
to give an instruction that was not requested is not preserved for appellate
review and is not fundamental error.

   Such was the case here. Defense counsel did not request an instruction
on attempted voluntary manslaughter, and in fact was a participant in
modifying the initial instructions and deleting the instruction on

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attempted voluntary manslaughter. Thus, no such instruction was given.
To hold that such an omission constitutes fundamental error would “stray
from the long and unbroken lines of precedent conditioning a right to jury
instructions on lesser included offenses upon a request for such
instructions.” See Jones, 484 So. 2d at 579.

     The initial instructions in the instant case briefly discussed attempted
voluntary manslaughter as a lesser included offense: “[Y]ou will then
consider the circumstances surrounding the attempted killing in deciding
if it was attempted first-degree murder or attempted second-degree murder
or attempted third-degree murder or attempted voluntary manslaughter or
. . . .” (emphasis added). These initial instructions did not include
instructions about the specific elements of attempted manslaughter,
although the specific elements of the other lesser-included offenses were
discussed therein. After the trial court noticed typos, confusing language,
and errors in other parts of the jury instructions, it adjourned so that the
parties could “make the corrections” to the jury instructions. When the
parties arrived in court on the following day with the revised/corrected
instructions, any mention of attempted voluntary manslaughter was
omitted completely, and defense counsel affirmatively stated that he was
“in agreement with these instructions.”

   By all indications, counsel was alerted to the fact that the initial
instructions were incomplete; instead of requesting a complete instruction,
however, counsel agreed to remove any mention of attempted voluntary
manslaughter completely. The record indicates defense counsel, like the
jury instructions he agreed to, purposefully neglected to mention/discuss
a jury instruction regarding attempted manslaughter when making his
closing argument to the jury:

      This is what’s there: aggravated battery with a firearm, that’s
      there . . . . There was an aggravated battery committed here
      with a firearm; there was no attempted first-degree murder;
      there was no attempted second-degree murder.

As delineated in the transcript, defense counsel’s strategy (at least in part)
was to argue that the facts demonstrated only an aggravated battery with
a firearm rather than the charged offenses, i.e., Defendant was merely
shooting at the wall of the warehouse, with no intent to kill the warehouse
owner or the fleeing employee (and arguing that he never shot at the
owner). Accordingly, the record demonstrates not only defense counsel’s
affirmative agreement with respect to the omission, but also reliance on
the instructions as read. As in Armstrong, defense counsel modified the


                                      6
instruction to “tailor it to the defense . . . .” Armstrong, 579 So. 2d at 735.
It was “a tactical decision.” Id. at 735 n.1. As stated in Armstrong,

      By affirmatively requesting the instruction he now challenges,
      [the defendant] has waived any claim of error in the
      instruction. Any other holding would allow a defendant to
      intentionally inject error into the trial and then await the
      outcome with the expectation that if he is found guilty the
      conviction will be automatically reversed.

Id. at 735 (footnote omitted). Similar to Armstrong, defense counsel in the
instant case relied on the charge as evidenced by approval of the
submission of the revised jury instructions, which deleted attempted
manslaughter as a lesser included charge.            See id.    Thus, the
Armstrong/Ray exception to “the general rule” is applicable in the instant
case.

   B. The jury had an opportunity to exercise its “pardon” capacity.

   “As a general rule, ‘the failure to instruct on the next immediate lesser-
included offense (one-step removed) constitutes error that is per se
reversible.’” Firsher, 834 So. 2d at 922 (quoting State v. Abreau, 363 So.
2d 1063, 1064 (Fla. 1978)). The instant case does not involve “the failure
to instruct on the next immediate lesser-included offense (one step
removed).” Id. The jury was instructed on the next immediate lesser-
included offense of attempted second degree murder. Moreover, the jury
in this case was instructed on the lesser-included offense of aggravated
battery with a firearm which, like the omitted instruction of attempted
manslaughter with a firearm, is a second degree felony. Thus, the jury
was provided “a fair opportunity to exercise its inherent ‘pardon’ power by
returning a verdict of guilty as to the next lower crime.” Id. at 923 (quoting
Abreau, 363 So. 2d at 1064).

   C. The jury instructions did not contain erroneous definitions of
      the charged offenses.

   We are aware of our supreme court’s recent decision in Williams v.
State, 123 So. 3d 23 (Fla. 2013), but find this case distinguishable. In
Williams, the court found that the standard jury instruction for attempted
manslaughter by act constituted fundamental error because it included
an intent to kill element. In that case, the defendant was convicted of
attempted second degree murder, and the supreme court held
fundamental error existed in the following context:


                                      7
      [B]ecause the jury found Williams guilty of attempted second-
      degree murder, an offense not requiring proof of intent to
      cause the death of the victim, it must have determined that
      Williams did not intend to cause the victim’s death. And,
      because the instruction given for attempted manslaughter by
      act erroneously included an intent to kill element, the jury
      was left with attempted second-degree murder as the only
      viable lesser included offense under the instructions given.

Id. at 28. Williams and the earlier decision in State v. Montgomery, 39 So.
3d 252 (Fla. 2010), as well as the supreme court’s decision in Haygood v.
State, 109 So. 3d 735 (Fla. 2013), addressed the issue of whether the
standard jury instruction for attempted voluntary manslaughter and
voluntary manslaughter, as read in those cases, constituted fundamental
error by erroneously including an intent to kill element. The issue in the
instant case, however, is whether fundamental error – if any – was waived
when defense counsel chose to omit the attempted manslaughter
instruction altogether (presumably in order to steer the jury to the lesser-
included offense of aggravated battery).            Accordingly, Williams,
Montgomery, and Haygood are distinguishable and do not warrant a
reversal.

                               Conclusion

    In this case, counsel was alerted to an incomplete instruction on
attempted manslaughter when it was included in the haphazard initial
jury instructions. When asked to amend these instructions because of
typos and other errors contained therein, counsel did not seek a complete
instruction on attempted manslaughter, but instead agreed to an omission
of the attempted manslaughter instruction altogether. Moreover, counsel
then relied on the omission during his closing argument to the jury. It is
not fundamental error in non-capital cases to omit an instruction on a
lesser-included offense (particularly when an instruction on the “next
immediate lesser-included offense” is given) when that instruction is
neither requested nor objected to. See Jones, 484 So. 2d at 579. As
discussed above, we find the record reflects a situation where any
fundamental error in omitting the attempted manslaughter instruction
was waived in the instant case via strategic decisions made by counsel
below.

   Moreover, we find that defense counsel in this case went beyond mere
acquiescence in the erroneous omission. Instead, the record reflects that
defense counsel’s “failure to object has been coupled with affirmative acts
either seeking or acquiescing in the erroneous instructions.” See Nesbitt,

                                     8
889 So. 2d at 803 (quoting Ray, 403 So. 2d at 961). Based on the
foregoing, we find no reversible error occurred by failing to give an
instruction on attempted voluntary manslaughter. We also find no merit
in the other issues raised by Defendant on appeal. Accordingly, we affirm
Defendant’s convictions and sentences.

   Affirmed.

TAYLOR and MAY, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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