       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       LEWIS DARREN FRANKLIN,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-1410

                              [June 26, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;     Glenn    Kelley,     Judge;     L.T.    Case     No.
502017CF001725AXXX-MB.

  Carey Haughwout, Public Defender, and Timothy Wang, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant, Lewis Franklin, appeals his convictions and ten-year
sentence for fleeing or attempting to elude causing serious bodily injury;
leaving the scene of a crash involving serious bodily injury; resisting an
officer without violence; leaving the scene of a crash involving property
damage; and driving while license suspended. We write only to address
Appellant’s challenge to Florida Standard Jury Instruction (Criminal)
3.6(k)6., as applied to his affirmative defense of duress. On that argument
and all others raised, we affirm.

                               Background

   The State presented the following evidence at trial. A Riviera Beach
police officer saw Appellant’s vehicle fail to come to a complete stop at a
stop sign. The officer activated her lights and siren, and the vehicle pulled
over but did not stop; it then returned to the road. A pursuit ensued,
during which Appellant’s car reached 70 miles per hour (“mph”) in a 25
mph speed zone. Appellant drove through five stop signs until “t-boning”
another car in an intersection and then veering off the road and crashing
into a Popeye’s restaurant.

   Immediately after the crash, Appellant climbed out of the driver’s side
window and ran across the street, running into a police car as he fled.
Appellant kept running away from the accident scene as uniformed officers
told him to stop. Appellant did not stop until an officer “tased” him. The
driver of the car that was hit by Appellant’s vehicle was transported away
in a coma. He sustained a traumatic brain injury and is now disabled.

   The State’s theory of the case was that Appellant fled because he was
on probation and driving on a suspended license. Appellant’s theory of
defense was that he acted out of duress. He testified that his front seat
passenger, who he knew only as “Black,” compelled him to flee at gunpoint.
He claimed to have fled the scene after the crash because Black was still
pointing a gun at him.

   Appellant’s son, the son’s fiancée, and another woman were in the
backseat. The fiancée testified that Black said he had guns, but admitted
she failed to so inform the police when questioned after the crash. The
State submitted police dash-cam video which shows that the backseat
passengers were much slower to exit the SUV than Appellant and they did
not flee. An individual matching Appellant’s description of Black was seen
running from Appellant’s vehicle. He was never located by police.

   During the charge conference, defense counsel affirmatively agreed to
the standard jury instruction on duress, requesting only one additional
sentence (italicized below). The trial court so instructed the jury on duress
as follows:

         An issue in this case is whether LEWIS DARREN
      FRANKLIN acted out of duress in committing the crimes of
      Fleeing or Attempting to Elude (Serious Injury or Death)
      and/or Leaving the Scene of a Crash Involving Serious Bodily
      Injury and/or Resisting Officer Without Violence and/or
      Leaving the Scene of a Crash with Damage.

         It is a defense to the crimes charged if the defendant acted
      out of duress. The defense of duress should be considered for
      each of these charged crimes independently. In order to find
      the defendant committed the charged crimes out of duress,
      you must find the following six elements:

            1. The defendant reasonably believed a danger

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            existed which was not intentionally caused by
            himself.

            2. The danger threatened significant harm to
            himself or a third person.

            3. The threatened harm must have been real,
            imminent, and impending.

            4. The defendant had no reasonable means to
            avoid the danger except by committing the crime
            of Fleeing or Attempting to Elude (Serious Injury
            or Death) and/or Leaving the Scene of a Crash
            Involving Serious Bodily Injury and/or Resisting
            Officer Without Violence and/or Leaving the
            Scene of a Crash with Damage.

            5. The Fleeing or Attempting to Elude (Serious
            Injury or Death) and/or Leaving the Scene of a
            Crash Involving Serious Bodily Injury and/or
            Resisting Officer Without Violence and/or
            Leaving the Scene of a Crash with Damage must
            have been committed out of duress to avoid the
            danger.

            6. The harm that the defendant avoided must
            outweigh the harm caused by committing the
            Fleeing or Attempting to Elude (Serious Injury or
            Death) and/or Leaving the Scene of a Crash
            Involving Serious Bodily Injury and/or Resisting
            Officer Without Violence and/or Leaving the
            Scene of a Crash with Damage.

(Emphasis added); see Fla. Std. Jury Instr. (Crim.) 3.6(k).

   The jury found Appellant guilty on all counts.

                                 Analysis

   On appeal, Appellant argues that the inclusion of element 6 in the jury
instruction on duress was fundamental error. He concedes that this
element is part of the standard jury instruction, but contends that it is not
a correct statement of the common law defense of duress.


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    Jury instructions “are subject to the contemporaneous objection rule,
and, absent an objection at trial, can be raised on appeal only if
fundamental error occurred.” Martinez v. State, 981 So. 2d 449, 455 (Fla.
2008) (quoting State v. Delva, 575 So. 2d 643, 644 (Fla. 1991)). However,
“[t]he invited error doctrine provides that fundamental error may be waived
where defense counsel affirmatively agrees to an improper jury
instruction.” Morgan v. State, 146 So. 3d 508, 512 (Fla. 5th DCA 2014)
(citing Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 65 (Fla. 2012)).
The rationale is that “a party may not make or invite error at trial and then
take advantage of the error on appeal.” Id. (quoting Sheffield v. Superior
Ins. Co., 800 So. 2d 197, 202 (Fla. 2001)); see also Joyner v. State, 41 So.
3d 306, 307 (Fla. 1st DCA 2010) (“[W]here defense counsel agrees to a
standard jury instruction and then challenges the conviction based upon
fundamental error in that instruction, reversal would have the unintended
consequence of encouraging defense counsel to stand mute and, if
necessary, agree to an erroneous instruction or sacrifice his client’s
opportunity for a second trial.”) (citation and internal quotation marks
omitted)).

    Here, Appellant not only failed to object to the now challenged element
of the jury instruction, he affirmatively agreed to the entire instruction—
with the addition of one sentence which was included at his request. Thus,
any error in the instruction was waived, and we affirm on this issue.

   We nonetheless address Appellant’s contention that the inclusion of
element 6 in instruction 3.6(k) is in derogation of the common law with
respect to the defense of duress. No Florida statute authorizes “duress”
as a defense to any of the crimes with which Appellant was charged. Thus,
courts must look to the common law. See § 2.01, Fla. Stat. (2017). Prior
to the 1998 adoption of instruction 3.6(k), this court articulated the
defense of duress as follows:

      In Hall v. State, 136 Fla. 644, 187 So. 392 (1939), our supreme
      court held that one may be excused from the commission of a
      crime if his acts were done under the compulsion or coercion
      of a real, imminent and impending danger or of what he had
      reasonable grounds to believe was a real, imminent and
      impending danger. . . .

                                 ***

      One of the requirements of the defense is that the coercion
      must be continuous and that the defendant must have no

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      reasonable opportunity to escape the compulsion without
      committing the crime. Koontz v. State[, 204 So. 2d 224 (Fla.
      2d DCA 1967)]. The threat of future harm does not suffice.
      Cawthon v. State, 382 So. 2d 796 (Fla. 1st DCA 1980).

Aljak v. State, 681 So. 2d 896, 897 (Fla. 4th DCA 1996) (second omission
in original) (quoting Corujo v. State, 424 So. 2d 43, 44 (Fla. 2d DCA 1982),
rev. denied, 434 So. 2d 886 (Fla. 1983)). In neither Hall nor Koontz was
the “outweigh the harm” element included in the discussion of the defense
of duress (also referred to as “compulsion” or “coercion”). See Hall, 187
So. at 408-09; Koontz, 204 So. 2d at 226-27. These cases provide support
for an argument that, prior to the adoption of standard jury instruction
3.6(k), element 6 was not traditionally part of the common law defense of
coercion or duress. 1

    On the other hand, in Driggers v. State, 917 So. 2d 329 (Fla. 5th DCA
2005), the Fifth District said that Instruction 3.6(k) “derives from the
common law” and “encapsulate[s]” the “defense of duress.” Id. at 331. We
followed Driggers in Mickel v. State, 929 So. 2d 1192, 1196 (Fla. 4th DCA
2006) and quoted that opinion’s recitation of the six elements of duress,
including element six. Accord Turner v. State, 29 So. 3d 361, 364-65 (Fla.
4th DCA 2010). Moreover, the cases discussed in Driggers predated
Instruction 3.6(k) but nonetheless discussed what became element 6,
which Driggers termed the “choice of evils rationale.” Driggers, 917 So. 2d
at 332. In both Hunt v. State, 753 So. 2d 609, 613 (Fla. 5th DCA 2000)
and Wright v. State, 402 So. 2d 493, 498 (Fla. 3d DCA 1981), the defense
of duress was found nonapplicable because the crime charged was
homicide. Both cases quoted a 1977 Missouri opinion:

      Legal recognition of duress as a defense to crimes other than
      homicide necessarily assumes a working hypothesis that a
      harm or crime of greater magnitude is avoided when the
      subjected person succumbs to the duress. This hypothesis



1 Commentators likewise have not always included a “choice of evils” rationale
akin to element 6 in their discussion of the common law defense of duress. See,
e.g., Wayne R. LaFave, Duress, 2 SUBST. CRIM. L. § 9.7 (3d ed. 2018) (“The
rationale of the defense of duress is that the defendant ought to be excused when
he ‘is the victim of a threat that a person of reasonable moral strength could not
fairly be expected to resist.’” (footnote omitted) (quoting Joshua Dressler,
Exegesis on the Law of Duress: Justifying the Excuse and Searching for its Proper
Limits, 62 SO. CAL. L. REV. 1331, 1367 (1989))); 21 AM. JUR. 2D Criminal Law §
137 (2019); Duress, 1 WHARTON’S CRIMINAL LAW § 52 (15th ed. 2018).

                                        5
       disappears when duress is sought to be invoked as a defense
       in a homicide case.

Jackson v. State, 558 S.W.2d 816, 820 (Mo. Ct. App. 1977) (emphasis
added).

    Thus, it is unclear as to whether one can definitively say that the
“choice of evils” concept that is now element 6 of instruction 3.6(k) derives
from what is considered to be “the common law” with respect to the defense
of duress. 2 In any case, we are unaware of any challenge to the inclusion
of element 6 in the jury instruction for duress during the more than two
decades history of that instruction. Moreover, as noted above, Appellant
affirmatively agreed to the entire jury instruction on duress, thus waiving
any argument of error with respect to that instruction.

                                    Conclusion

   Appellant waived his fundamental error challenge to the standard jury
instruction on duress by affirmatively agreeing to the entire standard
instruction. The trial court’s judgment and sentence are affirmed.

    Affirmed.

WARNER and GROSS, JJ., concur.

                               *          *          *

    Not final until disposition of timely filed motion for rehearing.




2 As noted above, element 6 of the jury instruction requires a factfinder to weigh
criminal conduct against a harm sought to be avoided. One authority indicates
that such a weighing process is a part of both the duress and necessity defenses.
“The rationale of the defense of duress is that, for reasons of social policy, it is
better that the defendant, faced with a choice of evils, choose to do the lesser evil
(violate the criminal law) in order to avoid the greater evil threatened by the other
person.” Wayne R. LaFave & Austin W. Scott, Jr., HANDBOOK ON CRIMINAL LAW §
49 (1972). Similarly, the rationale of the necessity defense is one of social policy:
“[I]f the harm which will result from compliance with the law is greater than that
which will result from violation of it, [a person] is justified in violating it.” Id. §
50.

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