                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

JAMES ROBERT WATERS,                NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D13-4936

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 8, 2015.

An appeal from the Circuit Court for Duval County.
Suzanne Bass, Judge.

Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for
Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.




SWANSON, J.

      James Robert Waters appeals his convictions and sentences for manslaughter

and possession of a firearm by a convicted felon. Under both points raised on

appeal, Waters urges fundamental error occurred in the giving of select standard

jury instructions bearing on his claim of self-defense as provided in section
776.013(3), Florida Statutes (2012), Florida’s “Stand Your Ground” law. Any

claim of fundamental error in the giving of jury instructions, however, can be

waived “[b]y [the defendant’s] affirmatively requesting the instruction he now

challenges[.]” Armstrong v. State, 579 So. 2d 734, 735 (Fla. 1991) (“Fundamental

error may be waived where defense counsel requests an erroneous instruction[.]”);

see also Joyner v. State, 41 So. 3d 306, 307 (Fla. 1st DCA 2010) (holding

defendant could not claim fundamental error under State v. Montgomery, 39 So. 3d

252 (Fla. 2010), “because the defense not only failed to object to the standard jury

instruction on manslaughter, he specifically agreed to that instruction at the

charging conference and incorporated the instruction into his closing argument to

the jury”). Here we find the record establishes that Waters waived both claims of

fundamental error by unequivocally requesting the instructions he now challenges,

and by incorporating those instructions in his closing argument.

      Alternatively, we conclude that any error the trial court may have committed

in giving either of the challenged instructions did not vitiate Waters’ trial by

negating his only theory of defense, thereby rendering his trial fundamentally

unfair. Waters’ defense was not that he had no duty to retreat, but that the victim

had thwarted his every effort to flee the escalating violence, leaving him no option

but to use deadly force because the force asserted against him by the victim “was

so great that he reasonably believed he was in imminent danger of death or great

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bodily harm.” In this regard, the instructions as given would not have precluded

the jury from finding, under the evidence presented, that Waters’ use of deadly

force was justifiable, had it believed retreat was futile and Waters “was in

imminent danger of death or great bodily harm.” Cf. Garrett v. State, 148 So. 3d

466, 471 (Fla. 1st DCA 2014) (“Despite the improper instruction, we do not

conclude that the error reached down into the validity of the trial so as to render

Garrett’s trial fundamentally unfair. When the entirety of the jury instructions

relating to Garrett’s claim of self-defense are considered, the jury was not

precluded from considering Garrett's affirmative defense, regardless of his

unlawful activity.”). See also, Pean v. State, 154 So. 3d 1171, 1171 (Fla. 4th DCA

2015) (affirming and citing Garrett).

      AFFIRMED.

RAY and MAKAR, JJ., CONCUR.




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