Billy Joe Darby v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
BILLY JOE DARBY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-3153
[March 4, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward 	County; 	Peter 	Holden, 	Judge; 	L.T. 	Case 	No.
062021CF011805A88810.
Daniel Eisinger, Public Defender, and Robert Gerald Porter, Assistant
Public Defender, West Palm Beach, for appellant.
James Uthmeier, Attorney General, Tallahassee, and Joseph Mollica,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER , J.
The defendant appeals from his conviction and sentence for attempted
manslaughter by act, as a lesser included offense of attempted first-degree
murder. 	The defendant argues the circuit court erred in two respects by:
(1) 	denying 	the 	defendant’s 	requested 	jury 	instruction 	on 	the 	lesser
included offense of misdemeanor battery; and (2) during the state’s closing
argument, overruling the defendant’s objection to the state incorrectly
implying the defendant had a duty to retreat. 	On the first argument, we
affirm without further discussion. 	On the second argument, we conclude
the circuit court erred in overruling the defendant’s objection. 	However,
the error was harmless. 	Thus, we affirm on the second argument as well.
Relevant Procedural History
At trial, the victim testified as follows. 	While the victim was at a
restaurant one night, the defendant spit in the victim’s face. 	The victim
head-butted the defendant, who ran away. 	The victim went into the
bathroom to clean himself up. When the victim tried to exit the bathroom,

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the defendant was holding the door closed. 	The victim’s friend came over
to open the door, and the defendant ran away for a second time.
The victim followed the defendant into an alley behind the restaurant.
The victim saw the defendant yelling and walking back towards the victim.
The victim then saw the defendant, from 35-40 feet away, pick up a gun
from the ground and begin shooting. 	As the victim ran to the restaurant,
he was struck by two shots, one to his knee and one below his knee.
The defendant chose to testify, and pertinently testified as follows. After
the victim had head-butted the defendant, they began to fight, which
spilled out into the alley. 	At that point, two of the victim’s friends, who
were bigger than the defendant, joined the fight. The defendant eventually
fell to the ground and was being kicked and stomped on. The men, one of
whom 	was 	swinging 	a 	blade, 	threatened 	to 	kill 	the 	defendant. 	The
defendant managed to get up and run away down the alley. 	The men
chased the defendant, but he was able to get away.
The defendant went to his scooter that was parked a short distance
away. 	However, his wallet, cellphone, and keys—which he had when the
fight had started—were gone. The defendant realized he needed to go back
to the alley to look for those items. 	He grabbed his gun from the scooter
as a precaution. 	As he walked down the alley, he saw the door to the
restaurant open and two men come out. 	At first, he thought the two men
might have been the police, so he put his gun on the ground to not look
like a threat. However, as the men started moving quickly toward him, he
realized they were not the police, but instead were the men who had
jumped him earlier. He thought they were going to attack him again, and
he heard the victim yell, “I’m going to kill you.” According to the defendant,
after seeing and hearing this, he was scared for his life. 	He grabbed his
gun off the ground and started firing warning shots into the ground in
front of him with the intention of scaring the men away. 	He continued to
fire warning shots as the men ran away because he was still scared.
During closing argument, the prosecutor pertinently told the jury:
[Y]ou’ll 	be 	given 	… 	the 	justifiable 	use 	of 	deadly 	force
instruction, which is what the [d]efense claims happened in
this case …. 	[The defendant] was permitted to [s]tand [his]
[g]round. 	He did not have a duty to retreat. 	And you will be
provided … this instruction, which says, the [d]efendant was
justified in using deadly force if he … reasonably believed that
such force was necessary to prevent imminent death or great
bodily harm to himself or another.

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….
… But the question is imminency. Was there an imminent
threat to [the defendant] that required the use of deadly force?
The answer is no, because [the defendant] put himself back in
that alley.
And remember how far apart [the defendant] even was from
[the victim]. 	[The defendant] tells you … that he walked into
that alley … with the firearm. … The alley that he could have
turned around and left. 	So when we hear about the duty to
retreat, the [d]efendant had no duty to retreat, it’s not in this
situation. It’s not after you put yourself in the situation and
said, oh, well—well, now I think [the victim is] coming for me.
I don’t have to go anywhere. 	I can start shooting.
(emphases added).
The defendant objected, arguing “[m]isstatement of the law.” 	The
circuit court told the jury: 	“[Y]ou’ll get the law from me. 	Lawyers have a
right to talk about the law. 	I’m going to overrule the objection. 	There’s
wide latitude during closing arguments.”
Later, during the reading of the jury instructions, the circuit court
correctly recited the justifiable use of deadly force standard instruction,
which pertinently included:
The Defendant was justified in using deadly force if he
reasonably believed that such force was necessary to prevent
imminent death or great bodily harm to himself or another.
Defendant had no duty to retreat before using deadly force. In
deciding whether the Defendant was justified in the use of
deadly force, you must consider the circumstances at the time
the force was used. 	The danger need not have been actual.
However … the appearance of imminent danger must have
been so real that the Defendant actually believed that the use
of deadly force was necessary.
(emphases added). The jury took that written instruction to the jury room
during deliberations, along with the other written instructions.
The jury convicted the defendant of attempted manslaughter by act, as
a lesser included offense of attempted first-degree murder.

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This Appeal
This 	appeal 	followed. 	As 	stated 	above, 	the 	defendant’s 	second
argument is that the circuit court erred by overruling the defendant’s
objection to the prosecutor’s closing argument, which had incorrectly
implied the defendant had a duty to retreat under the evidence presented.
“We review trial court rulings regarding the propriety of comments
made during closing argument for an abuse of discretion.” 	Cardona v.
State, 185 So. 3d 514, 520 (Fla. 2016). 	“Where the comments were
improper 	and 	the 	defense 	objected, 	but 	the 	trial 	court 	erroneously
overruled 	defense 	counsel’s 	objection, 	we 	apply 	the 	harmless 	error
standard of review.” 	Id. 	“This standard involves placing the burden on
the state, as the beneficiary of the error, to prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict or,
alternatively stated, that there is no reasonable possibility that the error
contributed to the conviction.” Id. (citations and internal quotation marks
omitted).
Here, we agree the circuit court erred by overruling the defendant’s
objection to the prosecutor’s closing argument, which had incorrectly
implied the defendant had a duty to retreat under the evidence presented.
Section 776.012(2), Florida Statutes (2021), provides:
A person is justified in using or threatening to use deadly force
if he or she reasonably believes that using or threatening to
use such force is necessary to prevent imminent death or
great bodily harm to himself or herself or another or to prevent
the imminent commission of a forcible felony. 	A person who
uses or threatens to use deadly force in accordance with this
subsection does not have a duty to retreat and has the right
to stand his or her ground if the person using or threatening to
use the deadly force is not engaged in a criminal activity and is
in a place where he or she has a right to be.
§ 776.012(2), Fla. Stat. (2021) (emphases added).
The 	defendant, 	when 	he 	returned 	to the 	alley 	with 	his handgun,
arguably was not engaged in criminal activity, and was in a place where
he had a right to be. 	Thus, the defendant did not have a duty to retreat,
and had the right to stand his ground, if he reasonably believed the victim
was using or threatening to use deadly force. 	As such, the circuit court

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erred in overruling the defendant’s objection to the prosecutor’s argument
that “Defendant had no duty to retreat, it’s not in this situation.”
However, the error was harmless. Where a trial court errs in overruling
a defense objection to a prosecutor’s incorrect statement of law, the error
can be harmless if:
(1) The misstatement was presented to the jury in the context
of closing argument by an advocate, not in the context of an
instruction by the court; (2) the misstatement was an innocent
one—the prosecutor was struggling with a subtle rule of law
that 	is 	difficult 	to 	articulate; 	(3) 	although 	the 	prosecutor
repeated the incorrect statement to the jury … [the prosecutor]
minutes later read the proper instruction … ; (4) immediately
following the prosecutor’s … improper statement, the court
announced 	before 	the 	jury 	that 	(a) 	the 	court 	would 	be
instructing them on the law, (b) they were to follow only its
instructions, and (c) what the lawyers say is neither evidence
nor law; (5) before the jury retired, the court also read the
standard instruction to the jury; and (6) the jury took a copy
of 	the 	standard 	instruction 	into 	the 	jury 	room 	during
deliberations.
Almeida v. State, 748 So. 2d 922, 927 (Fla. 1999).
Here, five of the six Almeida factors are met. 	First, the prosecutor, not
the circuit court, misstated the defendant’s duty to retreat. 	Second, the
prosecutor’s misstatement appears to have been an innocent mistake,
because only one minute earlier, the state had told the jury that the
defendant “did not have a duty to retreat.” Third, although the prosecutor
did not state the proper standard after misspeaking, the prosecutor had
stated 	the 	proper 	standard 	before 	misspeaking. 	Fourth, 	after 	the
prosecutor misspoke, the circuit court announced to the jury: “[Y]ou’ll get
the law from me. 	Lawyers have a right to talk about the law.” 	Fifth, the
circuit court later read the proper instruction to the jury: “Defendant had
no duty to retreat before using deadly force.” 	Sixth, the jury took that
proper instruction to the jury room during deliberations.
Based on the foregoing, the circuit court’s error in overruling the
defendant’s objection to the prosecutor’s closing argument—which had
incorrectly implied the defendant had a duty to retreat under the evidence
presented—was harmless beyond a reasonable doubt.

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The defendant nevertheless argues “[h]armful error has regularly been
found when a jury is incorrectly instructed that a defendant had a duty to
retreat,” relying on McGriff v. State, 160 So. 3d 167, 168-69 (Fla 1st DCA
2015), and Andujar-Ruiz v. State, 205 So. 3d 803, 806-07 (Fla. 2d DCA
2016). 	However, McGriff and Andujar-Ruiz are distinguishable because
both cases involved the trial court incorrectly instructing the jury on the
duty to retreat. Here, the prosecutor incorrectly implied the defendant had
a duty to retreat.
The defendant further argues the prosecutor’s comment was harmful
because it went directly to “the only element at issue,” citing Owens v.
State, 261 So. 3d 585, 589 (Fla. 4th DCA 2018), and Young v. State, 137
So. 3d 532, 535 (Fla. 4th DCA 2014). 	However, Owens and Young are
distinguishable because neither case indicates that, after the prosecutor
had misstated the law, the trial court later provided the correct law. Here,
only the prosecutor had incorrectly implied the defendant had a duty to
retreat, while the circuit court later correctly instructed the jury that the
defendant had no duty to retreat.
Conclusion
In sum, the circuit court’s error in overruling the defendant’s objection
to the prosecutor’s closing argument—which had incorrectly implied the
defendant 	had 	a 	duty 	to 	retreat 	under 	the 	evidence 	presented—was
harmless beyond a reasonable doubt. Therefore, we affirm the defendant’s
conviction and sentence.
Affirmed.
FORST and S HEPHERD , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.