Wyche v. State

170 So. 3d 898, 2015 Fla. App. LEXIS 11042, 2015 WL 4464474
CourtDistrict Court of Appeal of Florida
DecidedJuly 22, 2015
Docket3D13-3177
StatusPublished
Cited by11 cases

This text of 170 So. 3d 898 (Wyche v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wyche v. State, 170 So. 3d 898, 2015 Fla. App. LEXIS 11042, 2015 WL 4464474 (Fla. Ct. App. 2015).

Opinions

ROTHENBERG, J.

Quentin Rashad Wyche (“the defendant”) appeals his conviction and sentence for the second degree murder■ of Kendall Berry (“Berry”) on the campus of Florida International University (“FIU”), where [900]*900the defendant and Berry were students. The defendant claims that: (1) the trial court committed fundamental error by instructing the jury on both the law on justifiable use of deadly force and stand your ground, and thus, he should be granted a new trial; (2) defense counsel provided ineffective assistance of counsel by failing to move for a judgment of acquittal based on the State’s failure to rebut his theory of self-defense; and (3) the State failed to prove the elements of second degree murder, and thus, his conviction should be reduced to manslaughter. We affirm. As will be demonstrated below: (1) the defendant failed to object to the instructions given, and therefore, he must establish fundamental error in order to obtain a new trial on a jury instruction error; (2) the jury instructions given were not error at all, much less fundamental error, and in fact, the defendant benefitted from the instructions given; (3) the State clearly rebutted the defendant’s self-defense claim; and (4) there is ample evidence in this record to support the jury’s verdict finding the defendant guilty of second degree murder.

The Evidence

It is undisputed that on the evening of March 25, 2010, the defendant fatally stabbed Berry outside of FIU’s recreation center and that the confrontation between the defendant and Berry was the result of an earlier altercation between the defendant and Berry’s girlfriend, Regina Johnson (“Regina”). The altercation between the defendant and Regina occurred after the defendant tried to catch a ride on the campus tram that Regina was driving. When Regina refused to give the defendant a ride on the tram, the defendant became angry and yelled at her, an argument broke out, Regina took a swing at the defendant, and the defendant smashed a cookie in Regina’s face. Regina reported the incident to Berry.

That evening, there were several intramural basketball games being played at the recreation center. Many of the players and spectators were current and former FIU football players. After the games had concluded, Berry approached a window of the recreation center and called Antoine Bell (“Bell”), an FIU football player who worked at the recreation center, over to the window. Although Bell could not hear what Berry was saying, based on the earlier altercation between Regina and the defendant, Bell believed Berry wanted to fight the defendant. Bell told the defendant that Berry wanted to fight him, but Bell advised the defendant not to “go out there.”

Despite Bell’s warning, the defendant, who was himself an intramural basketball player and a former FIU football player, left the recreation center with Bell, Anthony Cooper (“Cooper”) (the defendant’s best friend), Garrett Cottom (“Cottom”), and Gib Jenkins (“Jenkins”).

When the defendant and his friends exited the recreation center, it was dark and there were a lot of people outside because the basketball games had just ended. It is undisputed that when the defendant left the recreation center with his friends, they saw Berry standing at least fifty yards away with a group of young men, some of whom were FIU football players. Thus, many of the people in the approaching' group (the defendant, Bell, Cottom, Cooper, and Jenkins) and the people in the group being approached (Berry, Marquis Rolle (“Rolle”), and others) were basketball players and current and former FIU football players.1

[901]*901As the defendant and the defendant’s friends approached Berry and his group, Rolle, noticed that the defendant’s friend, Cooper, had his hands balled up into fists. As the defendant approached Berry, Berry asked the defendant to tell him what had happened between the defendant and Regina earlier that day. The defendant did not respond, and thereafter, the defendant and Berry squared off to fight. Because Rolle had seen Cooper’s clenched fists as the defendant and the defendant’s friends approached Berry, and Rolle saw the defendant and Berry preparing to fight each other, he blocked Cooper and told him that if the defendant and Berry were going to fight each other, no one was going to “jump in.” Rolle testified as follows:

Q. What happened when the defendant approached the group?
A. He walked up and, you know, [Berry] was like, you got to show me one, like pretty much trying to talk to him, you know....
[[Image here]]
Q. Did it appear to you that it was a friendly encounter or a friendly exchange at that point or did it seem different from that?
A. Well, I know it wasn’t friendly from the jump because [Cooper] had his hands balled up when he walked up.
Q. So [Cooper] had his hands balled up into fists?
A. Yeah.
Q. And what was the defendant doing at the time?
A. Nothing. Just standing there.
Q. Did there come a point in time when it appeared Kendall [Berry] and the defendant were going to fight?
A. Yes, sir.
Q. How did that come about?
A. When they started squaring off.
[[Image here]]
Q. Sort of like a boxing type stance?
A. Yes.
Q. For the record, with your fists balled up in the air?
A. Yes, sir.
Q. What happened once they squared up and it appears that they were going to fight?
A. I approached. I approached [Cooper] and I let him know if something was to go down that it wasn’t going to be any jumping in.
Q. Were you afraid — what was your concern at that point?
A. My concern was they were going to jump [Berry] you know. And me, by me knowing [Cooper], you know what I am saying, I tried to talk to him, like if you jump in, you know what I am saying, it’s going to be a problem.
Q. Did you ever tell him anything like it will be a one-on-one?
A. Yes, sir.

During cross-examination, Rolle further explained that he and Berry had gone to the recreation center to watch the basketball game and, after the game, when the defendant, Cooper, and the defendant’s friends came out of the recreation center, he believed that the defendant and his friends were going to attack Berry:

A. We went there to watch basketball, sir.
Q. Not your intention. [Berry’s] intention.
[902]*902A. When [Berry] called me from the SEC, he said come to the rec so we can watch TJ play.
Q. Uh-uh. And when you got there, you managed to cover his back for him, right?
A. Yes, sir.
Q. Because you’re his good friend?
A. Yes, sir.
Q.

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Cite This Page — Counsel Stack

Bluebook (online)
170 So. 3d 898, 2015 Fla. App. LEXIS 11042, 2015 WL 4464474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyche-v-state-fladistctapp-2015.