Wileme Baptiste v. State of Florida

Supreme Court of Florida
____________

No. SC20-1083
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WILEME BAPTISTE,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

August 26, 2021

LAWSON, J.

We accepted review of the Third District Court of Appeal’s

decision in Baptiste v. State, 306 So. 3d 306 (Fla. 3d DCA 2020),

because it expressly and directly conflicts with the Fourth District

Court of Appeal’s decision in Rubi v. State, 952 So. 2d 630 (Fla. 4th

DCA 2007), on the same question of law. See art. V, § 3(b)(3), Fla.

Const. The conflict turns on whether a jury charge, requested by

defense counsel but argued on appeal to be coercive, is reviewable

for fundamental error. For the reasons below, we agree with the
Third District’s conclusion in Baptiste that the invited error

precludes review and disapprove the Fourth District’s holding to the

contrary in Rubi.

BACKGROUND

Petitioner Wileme Baptiste shot three victims and was

subsequently charged with one count of second-degree murder, two

counts of attempted second-degree murder, and one count of

unlawful possession of a firearm by a minor. Baptiste, 306 So. 3d

at 307. Baptiste was ultimately convicted of the “lesser included

offenses of manslaughter with a deadly weapon, two counts of

attempted manslaughter, and unlawful possession of a firearm by a

minor.” Id.

Baptiste appealed to the Third District, arguing that “the jury’s

verdict was coerced by the trial court’s issuance of a second,

modified Allen[1] charge.” Baptiste, 306 So. 3d at 308. The Third

District explained the relevant portions of the trial and highlighted

1. Allen v. United States, 164 U.S. 492 (1896). An Allen
charge is “an instruction that is given when it appears that the jury
is having difficulty reaching a verdict.” Blanding v. State, 298 So.
3d 712, 714 (Fla. 1st DCA 2020).

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the fact that Baptiste’s counsel requested the jury charge that

Baptiste challenged on appeal:

[H]aving already given an Allen charge, and upon being
informed that a unanimous verdict had been reached,
the court had the clerk read the verdict and poll the jury.
One of the jurors, however, denied agreeing with the
verdict. After the jury left the courtroom, the court took
a recess so that defense counsel could confer with
Baptiste. Thereafter, the defense requested that the jury
be sent a note instructing them to continue deliberating,
along with the jury instructions and a new verdict form.
The court stressed to the parties that because it had
already given an Allen charge, it did not intend for the
jury to continue to deliberate. The court explained that
writing a note with such an instruction might give rise to
misinterpretation. Rather, the court advised the parties
that it would instruct the jury solely to memorialize on a
new form what their verdict was, if they had one.
Defense counsel replied, “that’s fine.” The court again
asked counsel if the parties were in agreement, and both
responded affirmatively. Thereafter, the court instructed
the jury in open court that it was giving them a new set
of verdict forms and asking them to go back to fill them
out. The court advised the jury: “If you have a
unanimous verdict, please fill out the verdict accordingly.
If you do not have a unanimous verdict . . . we’ll bring
you back out here.” The jury then returned a unanimous
verdict for the lesser included offenses of the primary
charges, and the firearm count as charged.

Id. at 308 (emphases added) (footnote omitted).

Although the Third District agreed with Baptiste that the

charge was coercive, it held that Baptiste was not entitled to relief,

explaining:

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Baptiste failed to move for mistrial after the non-
unanimous jury poll, or object to the subsequent,
modified Allen charge . . . . Even if we were to consider
this error to be fundamental, Baptiste waived it by
agreeing to the modified charge. Because Baptiste
cannot invite error and then seek to take advantage of it
on appeal, we affirm.

Id. at 309 (citations omitted).

Similarly, in Rubi, defense counsel suggested the jury charge

that the defendant challenged as coercive on appeal. 952 So. 2d at

632-33. There, however, “[e]ven though defense counsel agreed

with the charge,” the Fourth District reversed the defendant’s

conviction based on its conclusion that the coercive charge was

“fundamental error, and per se reversible.” Id. at 635 (quoting

Scoggins v. State, 691 So. 2d 1185, 1189 (Fla. 4th DCA 1997),

approved, 726 So. 2d 762 (Fla. 1999)).

We granted review to resolve the conflict between Baptiste and

Rubi. See art. V, § 3(b)(3), Fla. Const.

ANALYSIS

To resolve the conflict, we must decide whether a jury charge

requested by defense counsel is reviewable for fundamental error

when the defendant challenges the charge as coercive on appeal.

We review this legal question de novo, see Daniels v. State, 121 So.

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3d 409, 413 (Fla. 2013), and agree with the Third District that the

invited error precludes fundamental error review.

Generally, an alleged error is not reviewable on direct appeal

unless the record reflects that trial counsel preserved the issue by

lodging a valid, contemporaneous objection and securing an

adverse ruling from the trial court. Walls v. State, 926 So. 2d 1156,

1180 (Fla. 2006) (citing State v. Delva, 575 So .2d 643, 644 (Fla.

1991)). Although unpreserved issues generally may be reviewed for

fundamental error, “[f]undamental error is waived where defense

counsel requests an erroneous instruction . . . [or] defense counsel

affirmatively agrees to an improper instruction.” Universal Ins. Co.

of N. Am. v. Warfel, 82 So. 3d 47, 65 (Fla. 2012).

More specifically, this Court has explained that:

[I]nvited error occurs when a party either proposes (i.e.,
requests) an instruction and therefore cannot argue
against its correctness on appeal, or when a party is
aware a standard instruction or an instruction proposed
by another party is incorrect but agrees to its use anyway
and as a result of having affirmatively agreed to the
instruction cannot argue against its correctness on
appeal.

Allen v. State, 46 Fla. L. Weekly S158, S164 n.4 (Fla. June 3, 2021).

In contrast, merely “acquiescing to an incorrect instruction

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constitutes a failure of preservation that does not preclude

fundamental-error review.” Id. at S163 n.4.

Here, rather than merely acquiescing to the trial court’s jury

charge, Baptiste’s counsel agreed to the jury charge as an

alternative to his own proposed charge, which was arguably even

more coercive because it would have instructed the jury to continue

deliberations. Baptiste, 306 So. 3d at 308. Baptiste’s counsel

thereby invited the alleged error, precluding fundamental error

review on direct appeal. See Warfel, 82 So. 3d at 65; Allen, 46 Fla.

L. Weekly at S161-62. Accordingly, the Third District correctly

affirmed Baptiste’s convictions.

In contrast, in Rubi, after holding that defense counsel invited

a coercive jury charge, the Fourth District was wrong to grant relief

on the basis that the charge was “fundamental error, and per se

reversible.” Rubi, 952 So. 2d at 635 (quoting Scoggins, 691 So. 2d

at 1189). Rather, the Fourth District should have held that the

invited error precluded fundamental error review. See Warfel, 82

So. 3d at 65; Allen, 46 Fla. L. Weekly at S161-62. 2

2. The Fourth District’s decision in Rubi also wrongly
conflates fundamental error, which applies when an issue is not

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Finally, Baptiste urges us to hold that the “waiver of the right

to an uncoerced verdict must be made personally by the defendant

and cannot be made by defense counsel.” However, he did not raise

this argument before the Third District, and it is not the conflict

issue on which our jurisdiction is based. Accordingly, we do not

decide it. See Savoie v. State, 422 So. 2d 308, 312 (Fla. 1982)

(explaining that this Court’s “authority to consider issues other

than those upon which jurisdiction is based is discretionary with

this Court and should be exercised only when these other issues

have been properly briefed and argued”).

CONCLUSION

A jury charge, requested by defense counsel but argued on

appeal to be coercive, is not reviewable for fundamental error

because any error in the charge was invited. See Warfel, 82 So. 3d

at 65; Allen, 46 Fla. L. Weekly at S161-62. Accordingly, we approve

the Third District’s decision in Baptiste to the extent that it is

preserved, and per se reversible error, which requires preservation.
See Johnson v. State, 53 So. 3d 1003, 1007 & n.5 (Fla. 2010).

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consistent with this opinion and disapprove the Fourth District’s

decision in Rubi.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
– Direct Conflict of Decisions

Third District - Case No. 3D18-2403

(Miami-Dade County)

Carlos J. Martinez, Public Defender, Maria E. Lauredo, Chief
Assistant Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, Eleventh Judicial Circuit, Miami, Florida,

for Petitioner

Ashley Moody, Attorney General, Amit Agarwal, Solicitor General,
Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and Evan
Ezray, Deputy Solicitor General, Tallahassee, Florida; and Michael
Mervine, Chief Assistant Attorney General, and Brian H. Zack,
Assistant Attorney General, Miami, Florida,

for Respondent

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