
    Daniel R. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. AZ-250.
    District Court of Appeal of Florida, First District.
    Oct. 2, 1985.
    Rehearing Denied Nov. 7, 1985.
    
      Michael E. Allen, Public Defender, and Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

The defendant, Daniel R. Butler, appeals from his conviction and sentence for burglary with a firearm and attempted first degree murder. The issue before the court is whether it was error for the trial court to instruct the jury on a modified form of Florida Standard Jury Instruction (Criminal) 3.04(d), pertaining to the justifiable use of force. We hold that it was error to so instruct, but such error under the circumstances of this case was harmless.

The evidence before the jury was conflicting as to whether the defendant, at the time of the offense, had a status of either invitee or trespasser. Wendy Jones, the sister of the defendant’s long-time girlfriend, Christie Johnson, testified that at approximately 3:30 a.m., she discovered defendant in her living room, without anyone’s permission for him to be there. Following a scuffle between the defendant and Wendy, the victim came into the room, unarmed. It was at that point, according to her, that the defendant shot Gene Jones. The victim’s testimony corroborates Wendy’s.

The defendant’s version of the incident, as may be expected, sharply conflicts with that of the State’s witnesses. Defendant had earlier that evening agreed to pick up both Christie and their fourteen-month-old daughter, Danielle. When he arrived at the house, Wendy opened the front door and invited him inside. Following an argument between the defendant and Wendy, Gene Jones, the victim, came into the room with a shotgun pointed at the defendant. The latter fired two shots at Jones, ostensibly, according to the defendant, to scare Jones so that he would put the shotgun down.

The above facts disclose issues as to whether the defendant or the victim was the aggressor, and whether the defendant was justified in the use of the force involved. The court, in its instructions to the jury, gave Florida Standard Jury Instruction (Criminal) 3.04(d), pertaining to the justifiable use of force. However, instead of deleting from the Standard Jury Instruction that portion relating to the defendant’s right to defend himself in his own home, the court departed from the instructions, and gave the following charge to the jury:

If a person is attacked in his own home or on his own premises, he has no duty to retreat and has a lawful right to stand his ground and meet force with force, even to the extent of using force likely to cause death of great bodily harm if it was necessary to prevent death or great bodily harm to himself or another,

(emphasis supplied)

The above instruction was irrelevant to any fact in issue. The Standard Jury Instruction, which the lower court modified, was applicable only to a defendant’s theory of self-defense. The jury, if it had accepted the victim’s testimony, could have found that the victim was not armed with any weapon at the time of the encounter, and, if it did so find, the above instruction would be irrelevant. If, on the other hand, it had accepted defendant’s testimony that the victim was armed and was advancing on him in a threatening manner, the instruction again was irrelevant to any fact in issue. The victim did not assert the defense of self-defense, and it was not he, but the defendant, who was on trial for the offenses charged.

A thorough review of the record and of the totality of instructions given satisfies us that, although the instruction was not proper, it was harmless error in this case.

AFFIRMED.

WENTWORTH, J., concurs.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Judge,

concurring and dissenting.

I thoroughly agree with the majority’s opinion that the instruction given by the lower court was irrelevant to any fact in issue, and that the giving of it, under the circumstances, was error. I strongly disagree, however, with the conclusion that, while error, it can be considered only harmless error. The Florida Supreme Court, in a number of recent opinions, State v. Marshall, 476 So.2d 150 (Fla.1985); State v. DiGuilio, 10 F.L.W. 430 (Fla. August 29, 1985); State v. Murray, 443 So.2d 955 (Fla.1984), has adopted the harmless error rule announced by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The test to be applied in determining whether the error can be considered harmless is, but for the specific error involved, “ ‘is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?’ ” State v. Marshall, 476 So.2d at 152 (quoting United States v. Hasting, 461 U.S. at 510-11, 103 S.Ct. at 1981-82). Additionally, “[t]he burden to demonstrate that the error is harmless rests on the state but, if the state can demonstrate that the error was harmless beyond a reasonable doubt, a new trial is not mandated.” State v. DiGuilio, 10 F.L.W. at 432. I submit that it is impossible to conclude on the basis of this record that the error is harmless beyond a reasonable doubt.

The lower court’s instruction in the present case was in effect an improper comment on the evidence, by advising the jury that because the defendant was the aggressor, the victim had the right not to retreat but rather had the right to meet the defendant’s use of deadly force with equal force. The impression such an instruction conveys is to negate the only defense that defendant had available to him — that of self-defense. The charge implicitly told the jury that the defendant had no right to be where he was or to use the force employed, contrary to the established principle that trial courts should ordinarily refrain from commenting on the weight, character or credibility of the evidence adduced. Raulerson v. State, 102 So.2d 281 (Fla.1958); Abrams v. State, 326 So.2d 211 (Fla. 4th DCA 1976).

The devastating effect the court’s instruction had upon the defendant’s defense of self-defense was compounded by the arguments made by the prosecutor before the jury, stating that defendant had no right of self-defense:

He doesn’t have the right to claim self-defense_ [S]o in summary the defendant cannot believe that the victim is that violent a person, armed himself, going to that victim’s home and go in that when that victim exercises his real right to defend his home. That’s the law, and you are under an obligation to follow that.
So even if you believe the defendant’s story as I said earlier, if you believe his story, he is still guilty because if you carefully follow the law of self-defense it doesn’t apply in this case, but I am not suggesting, ladies and gentlemen, that you should believe this story because I think you will find it’s inconsistent once you examine it carefully.
I told you earlier that even if Gene had the shotgun this man was not justified in shooting him because it was Gene’s own home, and he has a right to defend his home....

Because the instruction as given was confusing and contradictory, I consider that it must be held prejudicial, requiring reversal of the conviction and a remand of the case for a new trial. See Finch v. State, 116 Fla. 437, 156 So. 489 (1934); Swindle v. State, 254 So.2d 811 (Fla. 2d DCA 1971).  