Cruz v. State
| Citation | 971 So.2d 178 |
| Decision Date | 28 December 2007 |
| Docket Number | No. 5D07-1639.,5D07-1639. |
| Parties | Jose Jaramillo CRUZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Defendant.
Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
After a jury trial, the defendant, Jose Cruz, was convicted of two counts of aggravated battery with a deadly weapon. On appeal, he contends that the trial court erred in failing to give the jury a justifiable use of non-deadly force instruction. We agree.
On November 18, 2004, the defendant struck Austin McGreal and Elmer Chambers with his van in the parking lot of the Shady Road Lounge located in Ocala, Florida. McGreal and Chambers provided fairly consistent testimony. McGreal testified that earlier in the evening, Chambers and the defendant had a brief argument inside the Shady Road Lounge. Shortly thereafter, McGreal witnessed a physical altercation between the defendant and an unidentified individual. McGreal advised the lounge owner of the physical altercation and the lounge owner instructed the defendant and the unidentified individual to leave. Both men complied with the lounge owner's directive.
Later that evening, McGreal saw Chambers standing in the parking lot in front of the lounge. He then saw the defendant in his van arguing with another individual. Chambers had his back to the defendant's van and told McGreal "that guy's back again." McGreal then heard the sound of gravel and spinning wheels and assumed the defendant was leaving. Instead, McGreal witnessed the defendant run Chambers over, dragging him under the van. McGreal tried to help Chambers and was also hit by the defendant's van. The defendant then struck Chambers a second time with his van. McGreal suffered significant injuries to his wrist, shoulder, and knee.
Chambers testified that earlier in the evening, he had an argument with the defendant because the defendant was walking in front of dart players instead of walking around them. Chambers also heard the lounge owner tell the defendant and the unidentified individual to leave the premises after a physical scuffle between the two. Shortly thereafter, Chambers spotted the defendant's van parked across the street. Chambers notified the lounge owner and the two went outside. The defendant was standing in the Shady Road Lounge's parking lot but returned to his van when he saw Chambers and the lounge owner. There was no confrontation or physical altercation.
Approximately one-half hour later, Chambers saw the defendant's van parked in the lounge's parking lot. Chambers heard hollering and told McGreal that "it looks like the same van that was here earlier that we told to leave." While standing in the parking lot, Chambers was struck by the defendant's van. When Chambers tried to stand up, the defendant ran over Chambers' foot. Chambers' foot, shoulder and knee were injured. The knee injury required surgery.
The lounge owner, Gary Harter, testified that Chambers and the defendant had briefly argued because the defendant kept walking in front of dart players. He further stated that he told the defendant to leave the lounge after the defendant was involved in a wrestling match with another individual. According to Harter, the defendant drove away but later returned and was watching the bar from across the street. Several minutes later, the defendant was in his van in the lounge's parking lot. Harter was inside when he heard the "commotion" in the parking lot. He went outside and saw Chambers and McGreal on the ground. The defendant floored his van and ran over Chambers and McGreal again.
The defendant was stopped later that evening, approximately fifteen to twenty miles from the Shady Road Lounge, because he was driving erratically. The deputy who stopped the defendant testified that the defendant smelled of alcohol, had watery eyes, and was bleeding in the upper shoulder and arm area. It appeared that the defendant had been stabbed three times. There was blood on the interior of the van. The blood was located in and around the driver's seat, including on the interior of the driver's door. The defendant told the deputy that he had been involved in a fight in a bar. The defendant was transported by ambulance to the hospital. A paramedic's testimony confirmed that the defendant had several stab wounds.
At the hospital, the defendant was interviewed by Investigator John Tilley. Tilley testified that the defendant stated that he had been involved in a physical altercation with two males. The defendant told Tilley that one man was choking him and the other one stabbed him.1 The defendant further told Tilley that he "was trying to get away, and they were hitting while he was trying to get away." The defendant had not called the police to report that he had been attacked. Tilley further testified that the defendant was intoxicated at the time of the interview.
Significantly, there was evidence contradicting McGreal's and Chambers' testimony that Chambers had simply been standing in the parking lot when he was unexpectedly struck by the defendant's van. A lounge patron, Daniel Vanorden, testified that he had seen McGreal and at least one other individual standing next to the defendant's van by the driver's window. It appeared that there was an argument. Another lounge patron, Katherine Gamet, testified that she had seen Chambers approach the driver's side of the van a few minutes before the incident.
Furthermore, Tilley had taken a statement from the lounge owner, Gary Harter, on the evening in question. Harter told Tilley that Chambers and McGreal had gone to the parking lot to talk to the defendant. (At trial, Harter admitted to making such statement to Tilley, but stated it had just been an assumption on his part.) Another deputy testified that on the evening in question, McGreal's wife told him that Chambers and McGreal had walked over to the defendant's van to tell the defendant to leave the parking lot. (At trial, McGreal's wife denied having made that statement.)
The defendant did not testify.
During the charge conference, defense counsel specifically requested the instruction on justifiable use of non-deadly force. The trial judge denied the request, stating:
I'm not giving it. We can give justifiable use of deadly force or you can have justifiable use of non-deadly force. I don't see the necessity of giving both. To me it's either one or the other. And my intention is to give justifiable use of deadly force.
Defense counsel stated that if the trial court would not give both instructions, he would request the instruction on justifiable use of deadly force. However, defense counsel maintained his objection...
To continue reading
Request your trial
-
Durousseau v. State
...is the sole prerogative of the jury and the trial court should give an instruction without weighing the evidence.” Cruz v. State, 971 So.2d 178, 182 (Fla. 5th DCA 2007) (citing Mathews v. State, 799 So.2d 265, 266 (Fla. 1st DCA 2001)). When collateral crime evidence is introduced, the trial......
-
State v. Ouellette
...as a matter of law, the court's jury instructions must contain an explanation of that form of self-defense. Cruz v. State, 971 So.2d 178, 182 (Fla.Dist.Ct.App.2007). [¶ 16] In some instances, however, the issue of self-defense is generated by the evidence, but determining whether the defend......
-
Durousseau v. State Of Fla., SC08-68
...is the sole prerogative of the jury and the trial court should give an instruction without weighing the evidence." Cruz v. State, 971 So. 2d 178, 182 (Fla. 5th DCA 2007) (citing Mathews v. State, 799 So. 2d 265, 266 (Fla. 1st DCA 2001)). When collateral crime evidence is introduced, the tri......
-
Antoine v. State
...the theory is recognized as valid under Florida law.” Vila v. State, 74 So.3d 1110, 1112 (Fla. 5th DCA 2011) (citing Cruz v. State, 971 So.2d 178, 181–82 (Fla. 5th DCA 2007)). Generally, “standard jury instructions are presumed correct and are preferred over special instructions.” Stephens ......
-
Appeals
...the defendant has the right to have the jury instructed on his theory of defense if there is any evidence to support it. Cruz v. State, 971 So. 2d 178 (Fla. 5th DCA 2007) A decision regarding the constitutionality of a statute is reviewed de novo. Miller v. State, 971 So. 2d 951 (Fla. 5th D......