Tag Archives: stand your ground

Zimmerman Not to Have Pre-trial Hearing on Stand Your Ground Defense, and Martha Stewart Trial Testimony: It’s (not) a Good Thing

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I’m not sure if you’re following the George Zimmerman case, but I thought I’d share a report I saw.  Apparently, his defense team has decided to forego the pre-trial hearing on the Stand Your Ground defense.   If you’re a Florida attorney who handles criminal defense work or criminal appeals, then you probably know that the pre-trial hearing isn’t necessarily required.  According to the news reports, the defense team has decided to just to go to trial and perhaps raise it there.  I suppose it’s a perfectly sound strategy, but for some reason, it just seems more risky to me.  What do you think?  (To see my latest post on possible amendments to the Stand Your Ground defense, click here).

Being that it’s Wednesday, I though you might need a little laugh.  A CNN Money report had a funny list of quotes from none other than Martha Stewart in her latest round of litigation.  I can almost see the smirk on her face as I read some of the lines. . . .

Could Florida’s Stand Your Ground Law Be Amended?

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According to an article in the Palm Beach Post yesterday, in response to the Trayvon Martin shooting earlier this year, Florida Senate Democratic Leader Chris Smith of Fort Lauderdale has filed SB 136 in an attempt to curtail the current stand your ground law.  Florida criminal defense and criminal appeals attorneys might like to follow this bill as it travels through the bowels of the Legislature.  The gist of the amendment appears to limit the stand your ground defense in the case of pursuit of an alleged trespasser or assailant, or if the person claiming the stand your ground defense leaves a place of safety to place him or herself in proximity to a situation that might call for the use of force.  To view the text of the bill, which was just filed on December 19, 2012, click here.

Broward Man Wins Stand Your Ground Decision

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Heads up, South Florida criminal defense attorneys: the Sun Sentinel reports that a Broward man, Nour Badi Jarkas, has beat first degree murder charges after relying on Florida’s Stand Your Ground law.  According to the report, Jarkas went to trial on the charge of murder after he shot and killed the boyfriend of his estranged wife, John Concannon.  At the trial, Jarkas testified that he was invited to his wife’s home in Plantation, Florida, and that she left the residence when Concannon  arrived.  Jarkas also testified that he shot Concannon after Concannon taunted and grabbed Jarkas, and threatened to kill him.  The jury found Jarkas not guilty of armed kidnapping and aggravated assault with a firearm, but could not reach a unanimous verdict on the murder count.  In support of her ruling, Judge Holmes cited the testimony of the medical examiner and Jarkas.  Although Jarkas remains in custody at the Broward County Jail, awaiting a hearing on Thursday, December 15, 2011, his lawyer hopes to secure his release before such time.

The Sun Sentinel’s report also states that another Broward man relying on the Stand Your Ground law, Patrick Wonder, is facing manslaughter charges in the death of a federal agent following a road rage incident in 2008.  In an Order issued May 26, 2011, the Florida Supreme Court ruled that Wonder was entitled to an evidentiary hearing on the Stand Your Ground defense.  Wonder’s Stand Your Ground motion is reportedly set for January, 2012.  For more on the Patrick Wonder case, click here and here.

For some of my previous posts on Florida’s Stand Your Ground law, click here, here, and here.

Florida’s Fourth DCA Reverses Conviction for Second Degree Murder, Addresses Stand Your Ground and Duty to Retreat: Dorsey v. State, 4D09-1940

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Florida’s criminal defense attorneys know that jury instructions are often the basis for an appeal and reversal.  Dorsey v. State, 4D09-1940, issued on October 18, 2011, is the latest jury instruction opinion issued by the Fourth DCA.

Dorsey had been convicted of second degree murder and weapons charges after he shot and killed two individuals in a fight at a keg party.  Concluding that the evidence would only support a conviction for manslaughter, the Court noted that it would ordinarily reverse and remand for the entry of a judgment of conviction for manslaughter.  However, based on an error in the jury instructions, a retrial on the charge of manslaughter was required.

As can be seen from the opinion, the Court was presented with the issue of how Florida’s Stand Your Ground statute should apply in conjunction with the jury instruction on justifiable use of deadly force when the defendant is engaged in an unlawful activity at the time of the use of deadly force.  In Dorsey’s case, because he was a convicted felon in possession of a firearm at the time he shot the two victims, defense counsel requested that the Court not instruct the jury on today’s standard instruction based on the Stand Your Ground statute.  The trial court disagreed, and defense counsel then requested that the court instruct the jury based on the pre-2005 standard jury instruction on the justifiable use of deadly force.  The trial court refused the request, and gave the standard jury instructions.  In finding that the trial court erred, the Court noted that today’s standard jury instructions simply did not  address the  situation where a defendant is engaged in unlawful activity at the time the deadly force is used.  As a result, the Court held that based on the unique circumstances of the case, the trial court should have given today’s standard jury instruction based on the Stand Your Ground law, as well as the pre-2005 instruction because the pre-2005 instruction properly addressed the duty to retreat in situations where the defendant was engaged in unlawful activity.  In the alternative, the trial court could have simply omitted today’s instruction based on the Stand Your Ground statute, and instructed the jury on the pre-2005  instruction alone.  The Court also reaffirmed the principle that where deadly force is used while a defendant is engaged in unlawful activity, or is attacked at a place where he did not have the right to be, the common law duty to retreat still applies.

Palm Beach County Court Follows Proper Procedure, Dismisses First Degree Murder Charges Pursuant to Florida’s “Stand Your Ground” Statute

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The Sun Sentinel reports that Palm Beach County Circuit Court Judge Oftedal recently granted a motion to dismiss first degree murder charges that had been filed against a 65 year-old individual named Michael Monahan.  Although the Order is not publicly available, the Sun Sentinel reports that Judge Oftedal concluded that the case involved “a clear case of justified force” under Florida’s “Stand your Ground” statute.  As a result of the Order, Monahan was released from jail.

While the Court’s Order may not sit well with the family of the victim, the fact remains that the Court followed the procedure which is required by law.  For starters, let’s consider what the statute actually says.  The Stand Your Ground statute provides,

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.  As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Basically, section 1 of the statute states that if a person is justified in using force under sections 776.012, 776.013, or 776.031, to defend himself or another, his residence, or a member of his family or household, then that person is generally immune from criminal prosecution.  So, the issue becomes: who determines whether the force used was justified?

In a previous post, I noted that, pursuant to the Florida Supreme Court case of Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010), courts (that is, Judges) are required to make that determination whenever a defendant files a motion to dismiss in reliance on the Stand Your Ground statute, and that the determination is to be made prior to any trial.  The Sun Sentinel report on Michael Monahan’s case shows the practical effect of how the Dennis decision requires courts to handle motions to dismiss filed under the Stand Your Ground Statute.  If a court grants the motion to dismiss, the Defendant goes free.

The Florida Supreme Court only issued the Dennis decision in December of 2010.  Since the statute can be such a strong weapon in the criminal defense arsenal, I think it’s a pretty safe bet that Florida criminal defense attorneys will continue to file motions to dismiss based on the Stand Your Ground statute in cases where their client’s use of force becomes an issue.  Even if a motion to dismiss is denied, the mere filing of the motion should preserve the issue for any appeal down the road.

Dennis v. State, 51 So. 3d 456 (Fla. 2010): Pre-Trial Evidentiary Hearing is Required for Motions to Dismiss Raising Immunity From Prosecution Under Florida’s “Stand Your Ground” Statute, Section 776.032

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In December of 2010, the Florida Supreme Court held that when a Defendant files a motion to dismiss claiming immunity from prosecution under Florida statute section 776.032, otherwise known as Florida’s”Stand Your Ground” statute, the trial court is required to hold a pre-trial evidentiary hearing to “decide the factual question of the applicability of the statutory immunity.”  See Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010).  According to the Court, while a motion to dismiss based on section 776.032 should properly be filed pursuant to Fla. R. Crim. P. 3.190(b), the trial court is still required to hold an evidentiary hearing even if the motion to dismiss is mistakenly filed pursuant to Fla. R. Crim. P. 3.190(c)(4).  Finally, the Court noted that any motions to dismiss mistakenly filed under Rule 3.190(c)(4) should be treated as having been properly filed under Rule 3.190(b).  Where the trial court fails to hold a pre-trial evidentiary hearing, any appeal of the failure to hold the hearing should be analyzed under the “harmless error test” of State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).  See Dennis, 51 So. 3d 464 (noting that an error is harmless if “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.”)

This issue continues to be a hot topic.  On August 31, 2011, Florida’s Fourth District Court of Appeal was the latest court to issue an opinion on the issue.  See Govoni v. State, No. 4D09-2371 (remanding case for trial court to conduct evidentiary hearing pursuant to Dennis) (slip opinion).