West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          According to Florida law, a person cannot be arrested for using force--even deadly force--unless the police first determine that there is probable cause to believe that the force used was unlawful.  But what happens in those situations in which the police believe that the force used was unlawful?  Are the police allowed to actually state their belief to a jury at the person's trial?  According to Florida's First District Court of Appeal, the answer is no. 

          In the case of Bartlett v. State of Florida, Laurie Lynn Bartlett was charged with second-degree murder for killing her boyfriend with a knife.  At her trial, the lead detective was allowed to testify that before he arrested Ms. Bartlett, he ruled out the possibility that she stabbed her boyfriend in self-defense.  Bartlett was ultimately convicted of manslaughter and sentenced to ten years in prison.

          Bartlett appealed her conviction arguing that the detective should not have been allowed to express his belief to the jury that she did not act in self-defense.  The appellate court agreed and reversed her conviction.  The court stated that although Florida law requires the police to decide whether the force used by someone was unlawful before arresting that person, the police are not allowed to testify about that finding to a jury precisely because the final decision as to whether someone acted in self-defense is to be made by a jury, not by the police.  As the court of appeals stated, "[B]y allowing the [prosecutor's] questions and [the detective's] detailed answers on a matter within the realm of an ordinary juror's knowledge and understanding, the trial [judge] improperly invaded the province of the jury as the fact-finder and allowed the detective to serve as a fact-finder . . . by determining that self-defense was not a viable defense for [Bartlett]." 

          The appellate court went on to state that although the detective was allowed to testify about what he actually saw when he arrived at the scene of the stabbing (for example, a knife, blood, the boyfriend's wounds), he should not have been allowed to express his opinion about whether Bartlett stabbed her boyfriend in self-defense.  That particular issue was for the jury--and the jury alone--to decide.

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          Several Florida cases in which defendants claimed self-defense have been overturned on appeal because the trial judge incorrectly read to the jury what is sometimes referred to as a forcible-felony jury instruction.  According to this particular jury instruction, a defendant may not claim that he acted in self-defense if he did so while "attempting to commit, committing, or escaping after the commission of, a forcible felony."

          Perhaps an example taken from the Florida Supreme Court case of Martinez v. State of Florida would help to clarify this rather difficult jury instruction. 

          Suppose a person were to go into a convenience store and point a knife at the clerk while demanding all of the money in the cash register.  As the clerk is emptying the register, a customer approaches the robber from behind and hits him on the head with a bottle.  The robber then turns around and stabs the customer.

          At his trial, the robber would not be allowed to argue that he stabbed the customer in self-defense because the Florida Legislature has decided that a person who is committing a separate and independent forcible felony (in this particular example, the forcible felony of robbery), is not entitled to use deadly force  (which Florida law defines as "force likely to cause death or great bodily harm.")  That is to say, because the crime of robbery is a separate and independent forcible felony, the trial judge should read to the jury the forcible-felony jury instruction which would result in the defendant not being able to argue to the jury that he stabbed the customer in self-defense.

         Where trial judges sometimes get into trouble on appeal is when they read to the jury the forcible-felony jury instruction even though the person on trial is not accused of having committed a separate and independent forcible felony.  Perhaps another example from the same Martinez case would help to explain what I mean.

          In Martinez, the defendant was charged with committing the two crimes of attempted premeditated murder and aggravated battery with a deadly weapon for the single act of stabbing his girlfriend.  At his trial, one of the defenses that Martinez relied upon for both crimes was that of self-defense.  However, the trial judge read to the jury the forcible-felony jury instruction even though Martinez was not charged with a separate and independent forcible felony.  The result was that the forcible-felony jury instruction essentially negated Martinez' self-defense claim.

          On appeal, the Florida Supreme Court ruled that although the trial judge in Martinez' case erred when he read the forcible-felony instruction to the jury, the case would not be reversed because Mr. Martinez' lawyer did not object when the judge read that particular instruction at trial.

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          It is the law in Florida that when a person accused of committing a crime claims that he acted in self-defense, the case should be dismissed by the trial judge when the prosecution's evidence is legally insufficient to rebut the claim of self-defense.

          For example, in the case of G.T.J. v. State of Florida the undisputed evidence showed:

          1.  G.T.J. was outside an apartment occupied by two individuals named Hernandes and Miranda;

          2.  G.T.J. and a friend of his got into a fight with Hernandes and Miranda;

          3.  Hernandes and Miranda chased G.T.J.;

          4.  G.T.J. turned and struck one of the men who was chasing him in the face with a stick; and

          5.  G.T.J. swung his belt at both Hernandes and Miranda but missed.

          In deciding that the trial judge should have dismissed this case, the appellate court noted that G.T.J. presented unrebutted testimony that:

          a.  He swung a rod at Hernandes and Miranda only after Hernandes first swung a knife at him and then proceeded to chase after G.T.J. while accompanied by Miranda; and

          b.  He swung his belt at the two men only after one of the men began choking him.

          The appellate court continued on by observing that the evidence presented by the prosecution did not rebut G.T.J.'s testimony regarding the violent, aggressive behavior of Hernandes and Miranda insofar as neither of the latter two individuals denied that Hernandes had threatened G.T.J. with a knife.  Nor did they deny that G.T.J. had been choked. 

          Accordingly, the appellate court concluded that trial judge should have granted G.T.J.'s request that his case be dismissed.

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          The Second Amendment to the United States Constitution states that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  Earlier this year, the United States Supreme Court decided the case of District of Columbia v. Heller in which the Court held that a District of Columbia ban on handgun possession in the home violated the Second Amendment as did a prohibition against rendering any lawful gun in the home operable for the purpose of immediate self-defense.

          The relevant facts in the Heller case are that Dick Heller was a District of Columbia special police officer who was authorized to carry a handgun while on duty at the Federal Judicial Center.  He applied to register a handgun that he wanted to keep at his home, but the District of Columbia denied his request.  Heller then filed a lawsuit in federal court in which he sought to prevent the District of Columbia from doing the following three things:

          1.  Enforcing a ban on the registration of handguns;

          2.  Enforcing a licensing requirement that prohibited the carrying of a firearm in the home without a license; and 

          3.  Enforcing a trigger-lock requirement that prohibited using an operable firearm within a home.                                                                                                                  

          Although the U.S. Supreme Court ultimately ruled in favor of Officer Heller, it nevertheless pointed out that the Second Amendment, like most constitutional rights, does have its limits.  For example, the Court noted that the law has long prohibited such things as:

• concealed firearms
• the possession of guns by convicted felons
• the possession of guns by mentally-ill individuals
• carrying guns in places like schools and government buildings
• the commercial sale of firearms without restriction

         If one looks today at the website for the District of Columbia Metropolitan Police Department, one sees that the following eight restrictions apply to anyone who is currently attempting to register a firearm in the District of Columbia:

          1.  He cannot have been convicted of a crime of violence or have any prior weapons offenses; 

          2.  He cannot currently be under indictment for a crime of violence or weapons offense;
 

          3.  He cannot have been convicted within the past five years of a narcotics or dangerous drug offense, threats to do bodily harm, or assault;
 

          4.  He cannot have been found not guilty of any criminal charge by reason of insanity or adjudicated as a chronic alcoholic by any court within the past five years;
 

          5.  He cannot have been voluntarily or involuntarily committed to any mental hospital or institution within the past five years;
 

          6.  He cannot suffer from a physical defect which would make it unsafe for that individual to possess and use a firearm safely and responsibly;
 

          7.  He cannot have been found negligent in any firearm mishap causing death or injury to another human being;

          8.  She cannot have been convicted of any felony or prostitution-related offense.

          Additionally, this website states that properly registering a gun still does not permit a person to carry that gun outside her home or place of business except to move it for a lawful recreational purpose.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

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