AKEL v. STATE (2021)

This is an appeal from an order denying Appellant's motion for postconviction relief following an evidentiary hearing. We affirm in all respects and write only to address Appellant's assertion that the trial court committed reversible error in denying his claim that defense counsel was ineffective for failing to preserve the trial court's error in instructing the jury on the forcible felony exception to self-defense.

At the evidentiary hearing, Appellant's postconviction counsel conceded that defense counsel “did a thorough job of objecting to jury instructions including objecting [to] the forcible felony.” However, postconviction counsel asserted that defense counsel “should have argued for an instruction that if you acquit on the forcible felonies then the exception forcible felony rule does not apply at all, so there's no confusion about that.” When the court inquired whether there was any authority requiring such an instruction, postconviction counsel only responded that it was a correct statement of the law and that it would have been necessary to prevent any confusion in the event that the jury acquitted on all of the forcible felonies. When the court inquired whether the closing arguments sufficiently communicated to the jury that the forcible felony exception would not apply if the jury found Appellant not guilty of the forcible felonies, postconviction counsel responded, “I don't think the jury would know to reach that conclusion.”

In denying this claim, the trial court found that defense counsel was not ineffective where the trial court overruled counsel's objection to the forcible felony instruction, there was no evidence of juror confusion, and the State explained that if the jurors did not find that Appellant committed any of the forcible felonies, they would need to consider whether Appellant's actions were justifiable and reasonable under the circumstances. Importantly, at trial, both sides informed the jury that the forcible felony exception would not apply if the jury did not find that Appellant committed any of the forcible felonies.

Because there is no authority requiring the giving of the proposed special instruction and no evidence that the jury was confused by the standard instruction, the trial court properly concluded that Appellant failed to show either deficient performance or prejudice. See McCrae v. State, 510 So. 2d 874, 878 (Fla. 1987) (holding that defense counsel is not ineffective for failing to request special instructions not recognized in the standard instructions where the standard instructions are sufficient to apprise the jury of the applicable principles).

Affirmed.

Per Curiam.

Jay, M.K. Thomas, and Nordby, JJ., concur.