On July 13, 2011, the Fourth DCA issued an opinion in Abdel Odeh v. State, 4D09-994, affirming Odeh’s conviction and sentence for first degree murder. In the opinion, the Court addressed several concepts which are important to criminal appeals: preservation, invited error, fundamental error, and attempts to raise ineffective assistance of counsel for the first time on appeal.
With regard to invited error and fundamental error, at trial, jury was allowed to hear a comment made by a Detective, during the interrogation of Odeh, that Odeh could not legally claim the defense of justifiable use of deadly force. Although the Court agreed that it was error to have allowed the jury to hear the comment, the Court found that the error was invited because he responded to a question on cross examination. Moreover, the Court rejected Odeh’s claim that the error was fundamental because the opinion testimony did not permeate the entire trial. The Court also found that the trial court erred in its jury instructions on the justifiable use of deadly force. However, Court determined that the error, which had not been preserved by a contemporaneous objection, was not fundamental because the State made no use of the trial court’s erroneous instruction. The Court also noted that Odeh’s counsel agreed to the erroneous instructions.
Finally, the Court addressed Odeh’s claim of ineffective assistance of counsel. In so doing, the Court observed the longstanding rule that such claims cannot properly be raised for the first time on appeal unless they are apparent on the face of the record. Because Odeh’s claims were not apparent on the face of the record, the Court declined to reverse Odeh’s conviction on such basis.
For previous posts on preservation and fundamental error, click here. For a discussion on filing motions for postconviction relief in state court as a prerequisite to federal habeas review, click here and here.