Mitch Sandler (not his real name) was arrested for domestic battery on 3/31/12. He retained Attorney Jeffrey H. Garland on 4/3/12. Attorney Garland immediately spotted the potential applicability of Florida’s “Stand Your Ground” law, which appears, in relevant part, at Section 776.013(3):

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonable believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

On being retained, Attorney Garland made a public records request to 911 for a computerized printout and a recording of the original call. Mitch reported that he was, in fact, the one who called 911 to report his estranged wife, Polly (not her real name).

After some 15 years of marriage, Polly moved out on 11/24/11 to reside with her new boyfriend. This provable fact was a predicate to establishing the applicability of the Stand Your Ground law. Because she had moved out, Polly was no longer a resident of Mitch’s home.

On 3/12/12, Mitch agreed that Polly could come retrieve various items which she had not previously taken. Polly was demanding to take items which were in dispute. During this process, Polly wanted to take several large pillows from the master bed. Polly would later testify that Mitch “threw” the pillows “at” her. Mitch would testify that he “tossed” the pillows “to” her as she requested.

Mitch called 911 in order to report the situation as it was developing. Fortunately, the 911 recording was preserved for use as evidence. The 911 recording documented that Polly was told to leave and not return to the house.

Attorney Garland filed a motion to dismiss based upon the immunity from criminal prosecution created in Section 776.032(1) for the justifiable use of force. A hearing was held before St. Lucie County Court Judge Clifford H. Barnes on 5/30/12. The 911 recording was placed into evidence and played for the Court. Mitch testified as to what happened. Polly admitted that she left the house to put boxes into her pickup truck; and that she understood that Mitch had told her not to return to the house. Polly, however, attempted to force her way into the house in order to get the items she thought that she was entitled to get. Polly testified that Mitch blocked the front door and pushed her into the door jamb as she attempted to force her reentry into the house. Polly testified that she was bruised as a result of being pushed into the door jamb. Mitch could plainly be heard on the 911 recording telling Polly, “Get out of my house.”

Based upon the evidence presented, Judge Barnes granted the defense motion to dismiss as to Polly’s attempted reentry into the house after she had been told to leave. Judge Barnes found that the Stand Your Ground law created an immunity which applied, because Polly was no longer a resident and was attempting to force entry into someone else’s home without consent.

The State contended that Stand Your Ground did not apply to the pillow throwing incident. Judge Barnes agreed and set the pillow throwing incident for jury trial on 7/19/12. The State elected to drop all charges against Mitch on 7/17/12, rather than try to prove that Mitch meant to throw the pillows “at” Polly instead of “to” her.

OBSERVATIONS

A person charged with domestic battery should promptly consult with counsel as to their rights. There may be items of evidence which can be preserved through prompt action. In Mitch’s case, Attorney Garland knew that St. Lucie County 911 would keep the recordings for only 30 days. A timely request for the recordings preserved the key evidence necessary to establish the defense, towit: that Mitch was immunized from criminal prosecution, because Polly was attempting to force reentry after being told to leave.

The Stand Your Ground law is presented via a motion to dismiss. The criminal defendant has the burden of establishing the facts necessary for his claim of immunity. The facts must be established by a “more likely than not” standard. The court is to decide the claim of immunity in a pre-trial evidentiary hearing. Dennis v. State, 51 So.3d 456 (Fla. 2010).

Mitch was prepared to try the pillow charge. Polly never called the police about the entire incident until two days later. She then gave a detailed written statement which did not even mention the pillow throwing charge. Most jurors would have seen through the changing testimony. No wonder that the State chose to “wash” the pillow case.