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Legal Pleadings:

Statutory Immunity from Prosecution: “Stand Your Ground”

COMES NOW the Defendant, by and through his undersigned counsel, and hereby files this Motion To Dismiss for Statutory Immunity from Prosecution, pursuant to Rule 3.190(b), Fla. R. Crim. P. and §§ 776.012 and 776.032, Fla. Stat., and respectfully requests the Court to dismiss the charge of second degree murder, and in support thereof, states as follows:

Introduction

1. The defendant was arrested and charged with second degree murder, in violation of F.S. §§ 782.04(2), 775.087(1), and 775.087(2)(a)3.
2. The defendant, at all times relevant, was acting in self-defense, and justifiably used deadly force therein, pursuant to § 776.012, Fla. Stat.
3. As more fully discussed below, at the time he used deadly force to defend himself from Mr. G, the defendant did not have a duty to retreat and had the right to stand his ground because he was not engaged in a criminal activity and was in a place where had a right to be. Thus, he is immune from prosecution for the charged offense, pursuant to § 776.032, Fla. Stat.
4. Pursuant to recent amendments to §776.032, Fla. Stat., the State has the burden of proving whether a defendant is immune from criminal prosecution based on claimed justifiable use of force, beyond a reasonable doubt.

Justified Use of Deadly Force

Section 776.012(2), Fla. Stat., provides as follows:
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.

No Duty to Retreat

When he was attacked by Mr. G on September 15, 2016, the defendant did not have a duty to retreat, and had the right to stand his ground because he was not engaged in criminal activity and was in a place where he had a right to be.

Not Engaged in a Criminal Activity

At the time of the shooting, the defendant was not engaged in illegal activity. He was lawfully visiting his daughter. The defendant was also lawfully carrying a concealed weapon, as permitted by his valid concealed weapons permit.

Right to be at the Location

The alleged incident occurred on September 15, 2016, in the front yard of the home located at _____________, Jacksonville, Florida. This was a single family dwelling, leased by the defendant and his wife, since March 2015.
On September 15, 2016, the defendant and his wife were not formally divorced or separated. There was no court order in place which granted either one exclusive possession or access to the marital home or gave either parent primary residential custody of their daughter. Both parents had agreed the child would live with her mother, and that the defendant could regularly spend time with her.

Reasonable Belief Deadly Force was Necessary

Mr. G – Threats of Death, Great Bodily Harm or Forcible Felony (#1)

On the morning of September 15, 2016, Mr. G was released from the Duval County Jail. That afternoon, he, his girlfriend, and their two minor children, traveled to the defendant’s residence to visit the defendant’s wife and her friend.
That afternoon, when the defendant arrived to spend time with his daughter at his home, he met Mr. G for the first time, and learned Mr. G had just been released from jail. While they were both at the home, Mr. G became angry with the defendant and threatened him with death, great bodily harm, or a forcible felony. A video recording of the incident is attached as Ex. C.
The defendant stood near his car as Mr. G shouted at him, threatening to cause him death or great bodily harm. At one point Mr. G swung at the defendant, trying to strike him. During the short recording, Mr. G threatened seven (7) times, to “beat your [the defendant’s] ass;” and threatened twice to “break your [the defendant’s] neck.” Ex. C.
As was his practice, the defendant was lawfully carrying his firearm during this time. However, the video shows, and the eyewitnesses confirm, he did not display or threaten to use his firearm, despite the threats from Mr. G, and Mr. G’s attempt to strike him. Ex. C.
The video shows Mr. G’s girlfriend standing in front of him, physically restraining him, to keep him from attacking the defendant. Ex. C. She then pushed him away from the defendant, and continued to push him across the yard, and into the house. Id. All the while, Mr. G shouted threats at the defendant. Id.
As Mr. G shouted threats at the defendant, he also stated he did not care if the defendant had a gun, and he did not care if he had to go to jail for attacking him. Id. He demonstrated no fear of the defendant, despite his knowledge that the defendant carried a gun. Id. He also expressed no fear of the law, because he did not care if he returned to jail. Id. Finally, he did not care that others witnessed his behavior, or that his children were present. Id.
The video recording shows the defendant did not engage in or escalate the argument, instead he voluntarily left his home. Id. The defendant had no injuries to his face when he arrived at his home that afternoon. Ex. C.

Mr. G – Threats of Death, Great Bodily Harm or Forcible Felony (#2)

Shortly before the shooting on the evening of September 15, 2016, Mr. G again threatened the defendant with death, great bodily harm, or a forcible felony. That evening, the defendant returned to his home, to see his daughter. Before going to his home, he called and sent electronic messages to his wife, but she did not respond. Ex. D. He eventually went to their home, arriving at approximately 8:30 p.m.
Because he had not communicated with his wife, the defendant did not know whether or not Mr. G was still at his home. The defendant was interviewed by JSO detectives later that night, after the shooting. He stated during his interview that he did not know Mr. G was there, and “was wishing he wasn’t.” Ex. H. When the defendant arrived at his home, his wife’s vehicle was in the driveway, but the vehicle Mr. G had arrived in earlier that day was gone. Thus, the defendant had no reason to believe Mr. G was still at his home.
When the defendant knocked on the door, Mr. G opened the door. The defendant asked where his wife and daughter were. Mr. G told him his wife was gone, but would return shortly. He stated he was babysitting for the defendant’s daughter and the other children The defendant asked to see his daughter. Mr. G told him he could not enter his home, and could not see his daughter. Mr. G physically blocked the front door, and prevented the defendant from entering his home. When the defendant insisted he be allowed to see his daughter, Mr. G began threatening the defendant, for the second time that day. He made the following threats, among others: (1) “I will beat your ass to death;” (2) “As soon as the girls come back, I can come out there and handle any problems you have;” (3) “Wait till the girls come back, I do not want to do anything in front of the kids and I will then beat your ass;” (4) “As soon as they pull up, I’m going to fuck you up;” and (5)“I am going to come out there and drag you, you just wait, wait for it and I am going to give you an ass whooping.”
Instead of forcing his way into his home, engaging in further hostilities, or threatening Mr. G with his firearm, the defendant returned to his vehicle to wait for his wife. While he was waiting by the truck, his neighbor came out and spoke to him. The defendant asked her about his wife and daughter. She offered to find out who was in the home, and went into the home.
The neighbor stated that while she was inside, Mr. G went to the front doorway, and began “talking smack” to the defendant. She heard Mr. G make the following statements to the defendant: (1) “You’re not shit,” (2) “You’re not going to do anything;” (3) “You’re a pussy” and (4) You’re “going to get your ass kicked.” Because there were four children present in the home, she shut the door behind Mr. G, as he stood on the porch.
As the defendant began to walk away from Mr. G, down the porch steps, Ms. G’s vehicle pulled into the yard, the doors flew open, and four occupants exited. He heard Mr. G shout: “OK, they’re back, it’s time, I’m going to whoop your ass!” Mr. G came charging after him, pulling off his shirt, and hiking up his pants as he ran. The defendant told the detective: “As soon as this car full of people pulled up, he took his shirt off and ran out of the house and ran up on me…” Ex. H.
The eyewitnesses confirm the defendant was walking away from Mr. G when the vehicle arrived. Thus, for the second time that day, the defendant walked away from Mr. G, and Mr. G followed. The eyewitnesses also confirm Mr. G was angry, and quickly followed after the defendant.

Mr. G Physically Attacked the Defendant

The defendant explained to the detective that after Mr. G charged at him, removing his shirt, he physically attacked him as follows:
(Mr. G) stuck his finger in my face, knocked the hat off my head, and when I went to go pick up my hat, I don’t know if he punched me or kneed me, but he caught me off guard. I told him to step away from me, I told him I didn’t want anybody to get hurt and “get away from me.” He came at me and tried to grab me again.
The eyewitnesses and physical evidence confirm that Mr. G made the first physical contact when he tipped the defendant’s hat off of his head. The defendant’s hat was later found at the scene, near the front of Ms. G’s vehicle, where the shooting occurred. Ex. E.
The eyewitnesses and physical evidence also confirm that after he knocked his hat off, Mr. G struck the defendant again. The defendant told the detective that as he bent down to pick up his hat, Mr. G jabbed him or kneed him in the face. Ex. H. He did not see the blow coming, because he was bending down, but he believed Mr. G struck him with his knee or his fist. Id.
The witnesses confirm Mr. G struck the defendant. The physical evidence also confirms Mr. G delivered a blow to the defendant’s right eye, which brought him to his knees. The evidence technician reported the defendant had a “swollen right eye/right side of forehead,” scrapes to both knees, and a bruise on his right knee. Ex. F. The E.T. photographed those injuries. Ex. G. In addition to swelling and bruising, nausea and vomiting are consistent with symptoms of a concussion, as confirmed by both WedMD and mayoclinic.org. (Ex. J). The JSO Officer who took the defendant into custody shortly after the shooting, testified the defendant was pale and nauseous. He stated he had to open the door of his police vehicle so that the defendant could vomit, approximately five times. Later, when the defendant was at the PMB in an interview room, he was recorded on the video surveillance vomiting into a trash can. Ex. H. Thus, after he was struck by Mr. G, The defendant displayed symptoms consistent with a concussion.

Mr. G Continued to Attack After the Defendant Displayed Weapon

The defendant explained to the detectives during his interview that when he pulled out his gun, Mr. G kept coming at him. Ex. H. He also explained that he warned Mr. G to stand back. He stated: “I told him that this was getting a little…to back up, I had my firearm, and I didn’t want to use it.” Id. The neighbor also told the detective that when the defendant showed the gun to Mr. G he stated: “I am not trying to fight you” and that he just wanted his daughter. Mr. W testified that after Mr. G “pushed” the defendant back, he pulled out his firearm and pointed it at Mr. G. He testified that the defendant did not fire right away, and it was only after Mr. G kept coming at him, stating, “You ain’t going to shoot me,” that the defendant fired the first shot.
According to the witnesses, despite the defendant’s threat to use deadly force, Mr. G showed by his words and his actions that he was not in fear, and was not going to stop his attack. It was only after Mr. G continued to come at him, that the defendant fired his weapon in order to defend himself, and keep Mr. G from causing him death or great bodily harm.

The Defendant was Outnumbered

During his deposition, Mr. W stated that he was standing very close to the two men when Mr. G “pushed” the defendant. He also confirmed he went toward the defendant, after he pulled his gun. He stated, “When [the defendant] pulled the gun, I walked right up to him.”
Thus, Mr. W confirmed that after the defendant pulled out the gun, both he and Mr. G were going toward him. Under those circumstances, given the previous threats the defendant had received from both men, the defendant reasonably believed that both men intended to attack him, despite the fact that he was armed. The defendant reasonably believed either Mr. G and/or Mr. W could easily disarm him, and turn the gun on him. The defendant also reasonably believed that none of the witnesses at the scene would come to his assistance.

Physical Capabilities Not Equal

Due to prior injuries, the defendant has physical limitations which prevented him from being able to defend himself from a physical attack by Mr. G and/or Mr. W. He reasonably believed he would not be able to defend himself from an attack by one man, who was physically bigger and stronger than himself, much less two men. He reasonably believed he needed to use his weapon to prevent Mr. G, and Mr. W, from disarming him, attacking him, and causing him death or great bodily harm, or committing a forcible felony against him.

Multiple Shots – Justified

The defense anticipates the State will argue that the defendant fired multiple shots at Mr. G, including firing shots after Mr. G fell to the ground, and that those shots were not justified. However, the State cannot establish beyond a reasonable doubt that the defendant was not acting in self defense when he fired the fatal shot at Mr. G, because the evidence does not establish (1) that the fatal gun shot wound was fired after Mr. G fell to the ground, (2) that Mr. G was no longer an imminent threat after he fell to the ground, or (3) that the defendant knew Mr. G was no longer a threat after he fell to the ground.

No Physical Evidence of Sequence of Gunshot Wounds

According to the Medical Examiner, Mr. G sustained four (4) gunshot wounds. The medical examiner testified the entrance wounds were to the left cheek, the right temple, the right forearm, and the left wrist. The medical examiner could not determine the sequence of the gunshot wounds. Therefore, he could not determine which gunshot was fired first, second, third, or fourth.

Two Potentially Fatal Gunshot Wounds

The medical examiner testified that the bullet which entered Mr. G’s left cheek lodged in the tissue behind the left side of his skull, causing skull fractures and acute hemorrhaging on the surface of the brain. He testified this was a “potentially fatal injury” and a “potentially survivable wound.” Id. 25-26. The medical examiner testified the bullet which entered Mr. G’s right temple lodged in his brain, and caused fatal injuries. Thus, because both gun shot wounds to Mr. G’s head could have been fatal, there is no conclusive evidence regarding which of the two gun shot wounds actually caused the fatal wound to Mr. G.

No Physical Evidence re Position of Mr. G

The medical examiner could not give an opinion regarding whether Mr. G was standing up or on the ground when any of the gun shots were fired, including either of the fatal gun shot wound(s) to the head. The crime scene investigation did not reveal any indentations in the driveway, which would indicate shots fired down toward the ground.

Substantial Evidence that Fatal Shot was First Shot Fired

All of the eyewitnesses agreed it was dark outside at the time of the shooting. The witnesses provided contradictory testimony regarding where they were when the shots were fired, the number of shots fired, whether there was a pause between the shots, and where on Mr. G’s body the shots hit. Their testimony regarding the gun shots also conflicts with the physical evidence observed by the medical examiner.
Two of the eyewitnesses testified that the first shot fired by the defendant hit Mr. G in the head, while he was still standing. As noted above, the medical examiner testified that the wound to the left cheek was “potentially fatal” and the wound to his right temple was “definitely fatal.” Thus, regardless of whether the first shot entered Mr. G’s left cheek or his right temple, it was a potentially fatal shot, which was fired while Mr. G was standing, and still coming at the defendant.

No Reasonable Belief Threat was Neutralized

There is no evidence the defendant had reason to believe the threat from Mr. G had been neutralized after he fired the first shot, for the following reasons:
a. The witnesses agree it was dark outside – and that the darkness made it difficult to see. During darkness the muzzle flash of a weapon firing can interfere or diminish normal vision, and or cause momentary blindness.
b. The defendant sustained a violent blow to his head, which caused him to stagger backward, and drop down to his knees. After the incident, he showed symptoms of a concussion, including a bruise and swelling to his eye, and vomiting. Other symptoms of a concussion commonly include confusion, dizziness, fuzzy or blurry vision, and difficulty thinking clearly. Ex. J.
c. The witnesses, including neighbors who only heard the shots, testified everything happened very quickly, within a matter of seconds.
d. Several witnesses testified that Mr. G continued to try to stand up, after he had fallen to the ground, and they had to tell him to stay down on the ground. Thus, it was reasonable for The defendant to believe Mr. G continued to be a threat, even after he fired the first shot.
e. When he fired the shots, not only was Mr. G a threat, but Mr. W was still a threat.
The defendant fired shots at Mr. G in quick succession, in order to neutralize the threat, and ensure Mr. G would not continue his attack of him or disarm him, and cause him great bodily harm or commit a forcible felony against him, with the assistance of Mr. W. The defendant explained to the detective during his interview that he fired quickly, and that, “I figured if I didn’t defend myself then I wouldn’t have a chance to. Just one, two, three.” Ex. H.
Mr. G’s attack, and the blow to the defendant’s head, which likely caused a concussion, combined with the darkness and the flashes of gunfire, caused the defendant to feel confusion, panic, shock, and disorientation. Under those circumstances, the defendant’s action in firing multiple shots in order to defend himself was reasonable, and therefore, justified, and the State cannot establish beyond a reasonable doubt that his actions were not justified, and that he is not immune from prosecution. Therefore, he should be immune from prosecution, pursuant to Florida’s Stand Your Ground law.

MEMORANDUM OF LAW

Pursuant to §776.032, Fla. Stat., Florida’s Stand Your Ground law, a defendant may raise the question of statutory immunity pretrial. “Florida’s Stand Your Ground law is intended to establish a true immunity from charges and does not exist as merely an affirmative defense. Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008) and Rosario v. State, 165 So.3d 852 (Fla. 1st DCA 2015).” The procedure for raising immunity under section 776.032 is to file a pretrial motion to dismiss under Florida Rule of Criminal Procedure 3.190(b). See Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012). When a defendant claims Stand Your Ground immunity, a trial court “is to conduct an evidentiary hearing, the purpose of which is to consider factual disputes.” Id. See also Dennis v. State, 51 So.3d 456, 461–64 (Fla. 2010).
According to the recent amendments to Florida’s Stand Your Ground Law, the trial court must determine whether the State has proved beyond a reasonable doubt that the defendant is not immune from criminal prosecution. This burden of proof is the same burden imposed on the
State in the prosecution of criminal cases, including cases in which self-defense is raised at trial. Florida Senate, Bill Analysis and Fiscal Impact Statement.
When immunity under justifiable use of force law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes; the court may not deny a motion to dismiss on the basis of such immunity simply because factual disputes exist. Id. In other words, this matter is not resolved as with a motion to dismiss, filed under Rule 3.190(c)(4), Fla. R. Crim. P., where the motion can be denied, if the State files a good faith dispute as to the factual basis for the motion. Rather, here, the court must conduct an evidentiary hearing, weigh the evidence, and make a determination by the preponderance of the evidence standard. Id.
An objective standard is applied to determine whether the immunity attaches. Mobley v. State, 132 So. 3d 1160, 1164 (Fla. 3rd DCA 2014); Montanez v. State, 24 So. 3d 799, 803 (Fla. 2d DCA 2010) (confirming that in determining whether the immunity accorded by section 776.032 attaches, “the objective, reasonable person standard by which claims of justifiable use of deadly force are measured” should be applied). That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. See Mobley at 1164-65 and Toledo v. State, 452 So.2d 661, 663 (Fla. 3d DCA 1984) (“[A] person in the exercise of his right of self defense may use ‘only such force as a reasonable person, situated as he was and knowing what he knew, would have used under like circumstances.’” (quoting People v. Moody, 62 Cal.App.2d 18, 143 P.2d 978, 980 (1943)); see also Chaffin v. State, 121 So.3d 608 (Fla. 4th DCA 2013) (confirming that the standard to be applied for determining whether a person is justified in using deadly force in self defense is not a subjective standard as to the defendant’s state of mind, but an objective standard as to a reasonably prudent person’s state of mind); Price v. Gray’s Guard Service, Inc., 298 So.2d 461, 464 (Fla. 1st DCA 1974) (“The conduct of a person acting in self defense is measured by an objective standard, but the standard must be applied to the facts and circumstances as they appeared at the time of the altercation to the one acting in self defense.”).
Here, based upon the undisputed facts, the State cannot prove beyond a reasonable doubt that The defendant was not justified in using deadly force to prevent imminent death or great bodily harm to himself or to prevent Mr. G from causing him death or great bodily harm or the imminent commission of the forcible felony of aggravated assault, aggravated battery or murder.
In reviewing an attacker’s intent, courts look to the “extent and nature of a victim’s injuries,” the “circumstances peculiar to each situation,” the “amount of force used,” and “the manner of attack.” Montero v. State, 2017 WL 3161066 (Fla. 3d DCA 2017); State v. Gee, 624 So. 2d 284, 285 (Fla. 2d DCA 1993); McKnight v. State, 492 So. 2d 450, 451 (Fla. 4th DCA 1986). Even a single punch to the face, reviewing these factors, can be enough to constitute an aggravated battery. See Gee, 624 So.2d at 285 (reversing trial court’s dismissal where the facts showed “[a] crowded barroom confrontation culminated with defendant striking the victim with a single blow to the right side of his face, causing him to fall to the floor”); McKnight, 492 So.2d at 451 (affirming aggravated battery conviction where “only a single blow was struck”).
In Montero, the court held there was sufficient evidence to establish the defendant intended to cause the manager great bodily harm, where he (1) angrily confronted the manager and security guard about being thrown out of the bar and cursed at them, (2) spit and hit the security guard, (3) kept coming at him even after being pushed away, (4) the force of Montero’s punch was hard enough to cause a concussion and permanent brain damage, and (5) he threatened to kill the manager. Montero at 3.
Based upon the circumstances by which he was surrounded, the defendant here reasonably believed he was in imminent danger of death, great bodily harm, or a forcible felony from Mr. G and Mr. W, and he was justified in using his weapon to defend himself. Furthermore, the State cannot prove beyond a reasonable doubt that he was not justified in continuing to fire his weapon, because he did not know the threat from Mr. G was neutralized after the first shot was fired. Finally, the State cannot prove beyond a reasonable doubt that the first shot the defendant fired was not the fatal shot to Mr. G. Thus, pursuant to §776.032, Fla. Stat., the defendant was entitled to stand his ground, and should be immune from prosecution in this matter.
WHEREFORE, Defendant respectfully prays this Honorable Court enter an Order granting the defendant immunity from prosecution, and dismissing the charges against him.