Bouie v. State, Case No. 2D18-2705

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SALARIO, Judge.
• Citation: 292 So.3d 471
• Parties: Robert BOUIE, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: Case No. 2D18-2705
• Decision Date: 26 February 2020

292 So.3d 471

Robert BOUIE, Petitioner,
v.
STATE of Florida, Respondent.

Case No. 2D18-2705

District Court of Appeal of Florida, Second District.

Opinion filed February 26, 2020.

Lee Pearlman of The Law Offices of Denmon Pearlman, St. Petersburg, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa; and C. Todd Chapman, Assistant Attorney General, Tampa (substituted as counsel of record), for Respondent.

SALARIO, Judge.

This is a case involving Florida's "Stand Your Ground" law. §§ 776.012, .032, Fla. Stat. (2017). Robert Bouie shot Jeno Favors in a South Tampa parking lot and was charged with attempted second-degree murder, aggravated battery, and shooting at a vehicle. Mr. Bouie says he was defending his brother, Jermaine McGee, and filed a motion to dismiss asserting that he is immune from prosecution under the stand-your-ground law. After an evidentiary hearing, the trial court denied the motion, concluding that the State proved by clear and convincing evidence that Mr. Bouie was not entitled to immunity because (1) he "initially provoke[ed]" the confrontation under section 776.041(2) and (2) he did not "reasonably believe[ ]" that the use of deadly force was "necessary to prevent imminent death and great bodily harm to himself, herself, or another" under section 776.012(2). Mr. Bouie petitions for a writ of prohibition arguing that both reasons are erroneous. We agree and grant the petition.

The Stand-Your-Ground Law

It is helpful to understand the statutory provisions that govern Mr. Bouie's claim of immunity before diving into the case. As a starting point, everyone in this case agrees that Mr. Bouie used deadly force against Mr. Favors. Section 776.012(2) regulates the use of deadly force and provides that a person's use of such force is justified "if he ... reasonably believes that [it] 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." The statute also says that when those circumstances exist, the person using deadly force "does not have a duty to retreat and has the right to stand

292 So.3d 474

his ... ground if [he] is not engaged in a criminal activity and is in a place where he ... has a right to be." No one in this case has contended that Mr. Bouie was engaged in criminal activity or not entitled to be where he was when he shot Mr. Favors.

The justification for the use of deadly force provided by section 776.012(2) is subject to statutory exceptions. One of those exceptions is contained in section 776.041(2), which states that "[t]he justification described in [section 776.012(2) ] is not available to a person who ... [i]nitially provokes the use or threatened use of force against himself." Here, it is undisputed that Mr. Bouie was not responding to force used against himself, but rather was responding to force used against his brother.

Section 776.032 provides that a person who is justified in using deadly force under section 776.012(2) is "immune from criminal prosecution and civil action for the use ... of such force." (Emphasis added.) This provision "effectively ‘grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial.’ " State v. Gallo, 76 So. 3d 407, 409 (Fla. 2d DCA 2011) (quoting Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010) ).

Prior to 2017, a criminal defendant asserting that immunity was required to make a motion to dismiss under Florida Rule of Criminal Procedure 3.190(b), after which the trial court would hold an evidentiary hearing where the defendant would be required to prove his entitlement to the immunity—i.e., that his use of deadly force was justified—by a preponderance of the evidence. See Bretherick v. State, 170 So. 3d 766, 768 (Fla. 2015) (dealing with the burden of proof); Dennis, 51 So. 3d at 462 (dealing with the appropriate procedural vehicle for asserting immunity). During its 2017 session, however, the legislature amended the stand-your-ground law to provide that "once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution." § 776.032(4). Our court has held that a pretrial assertion of immunity under the statute requires that (1) the defendant file a rule 3.190(b) motion to dismiss that makes allegations that establish a prima facie claim to immunity and that (2) if the defendant makes a sufficient motion, the trial court must hold an evidentiary hearing at which the State must prove by clear and convincing evidence that the defendant is not entitled to immunity. Jefferson v. State, 264 So. 3d 1019, 1029 (Fla. 2d DCA 2018). Here, everyone agrees that Mr. Bouie filed a sufficient motion. The question is whether the State proved by clear and convincing evidence that Mr. Bouie was not entitled to immunity.

The Proceedings In The Trial Court

The charges in this case stem from a late-night incident that ended with Mr. Bouie shooting Mr. Favors in the parking lot of a shopping center. Mr. Bouie, Mr. McGee, and Mr. Favors each arrived at the parking lot in separate vehicles. Mr. McGee's girlfriend, Christina Zocchi, was in Mr. Bouie's truck. A juvenile we refer to as B.J. rode in Mr. Favors' car. After the shooting, a bystander found Mr. Favors lying in the parking lot and called 911. He had been shot six times and run over by his own car. The police discovered twelve shell casings and a black, eight-inch-long can of mace in the parking lot. Mr. Bouie admits shooting Mr. Favors but says he did so because he reasonably believed Mr. Favors was going to attack Mr. McGee with a gun.

292 So.3d 475

The defense version of events: At the evidentiary hearing on Mr. Bouie's motion to dismiss, Mr. McGee and Ms. Zocchi testified that they were targeted by Mr. Favors in a harrowing high-speed pursuit in the hours before the shooting. Mr. McGee and Ms. Zocchi—who was pregnant at the time—were driving on Oklahoma Avenue when they noticed another car following them. Mr. McGee testified that he pulled into someone's driveway to see if the car would pass. When the trailing car came to a stop and blocked them in, Mr. McGee and Ms. Zocchi feared trouble. They recognized the driver as Mr. Favors. Mr. McGee and Mr. Favors had known each other since they were children, and the two men had a history of acrimony and violent confrontations.

Mr. McGee pulled through the front yard of the residence where he was parked and made his way to Wyoming Avenue and then Wisconsin Avenue, reaching speeds upwards of eighty miles per hour and trying to elude Mr. Favors. From Wisconsin, the cars turned onto South Dale Mabry Highway, heading north. When both vehicles were at a red light at Dale Mabry and Gandy Boulevard, Mr. Favors got out of his vehicle and approached Mr. McGee's vehicle wielding what appeared to be a gun. Mr. McGee took off and sped through the red light, turning left onto Gandy. Mr. Favors got back in his car, crossed a lane of traffic, turned right, and drove the other direction.

Mr. McGee and Ms. Zocchi sought refuge at the home of Mr. McGee's mother, Dolores McGee. Mr. Bouie was there when they arrived. They told Mr. Bouie and Ms. McGee that Mr. Favors had been chasing them around the neighborhood and that he had approached their car with a gun when they were at a stoplight.

After an hour or so, it was decided that Mr. Bouie would drive Ms. Zocchi home while Mr. McGee drove his car separately. But as the two vehicles traveled west on Bay Avenue, Mr. Favors was waiting for them in a grassy area off a side street with his headlights off. Mr. Favors flipped his headlights on and gave chase. The three vehicles traveled single file for a short distance before they separated. Mr. McGee and Mr. Bouie turned right onto Sterling Avenue while Mr. Favors continued straight.

According to Mr. McGee, when he turned onto Wisconsin from Sterling, Mr. Favors drove straight at him from the other direction. Mr. McGee cut through a grass median to avoid a collision and pulled into the parking lot of a shopping center on Dale Mabry where he saw Mr. Bouie's pickup truck. He parked behind the truck, facing north. Mr. Favors pulled into the parking lot about five seconds later and parked next to Mr. McGee's vehicle, facing the opposite direction (driver's door to driver's door).

Mr. Favors got out of his vehicle and began banging on Mr. McGee's window with a black object and shouting threats. According to Ms. Zocchi, Mr. Bouie went into a panic, exclaiming repeatedly "[h]e's going to hurt my brother!" Mr. Bouie testified that fearing for his brother's life, he took his gun out of its lockbox, exited his truck, and fired seven or eight rounds at Mr. Favors. Mr. Bouie described what happened when he started shooting:

He was facing my brother's car first and he was banging on the window and when he started banging, that's when I started shooting. That's when he turned and went back to his car and dove in. I seen [sic] the car drive off so I didn't think I hit Mr.

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