Derossett v. State, Case No. 5D19-0802

• Court: Court of Appeal of Florida (US)
• Writing for the Court: LAMBERT, J.
• Citation: 311 So.3d 880
• Decision Date: 07 November 2019
• Docket Number: Case No. 5D19-0802
• Parties: John DEROSSETT, Petitioner, v. STATE of Florida, Respondent.

311 So.3d 880

John DEROSSETT, Petitioner,
v.
STATE of Florida, Respondent.

Case No. 5D19-0802

District Court of Appeal of Florida, Fifth District.

Opinion filed November 7, 2019

Michael Panella, of Panella Law Firm, Orlando, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.

LAMBERT, J.

In 1892, the Florida Supreme Court explained that

one's home is the castle of defense for himself and his family, and that an assault upon it with an intent to injure him, or any of them, may be met in the same way as an assault upon himself, or any of them, and that he may meet the assailant at the threshold, and use the necessary force for his and their protection against the threatened invasion and harm ....

Wilson v. State , 30 Fla. 234, 11 So. 556, 561 (1892). Under this common law "castle doctrine," a person's home was his or her ultimate sanctuary. If violently attacked there, an individual had no duty to retreat, could stand his or her ground, and could use such force, even deadly force, as necessary to avoid death or great bodily harm or to prevent the commission of a felony. Falco v. State , 407 So. 2d 203, 208 (Fla. 1981) ; Danford v. State , 53 Fla. 4, 43 So. 593, 596–97 (1907). The applicability of these more-than-century-old principles, as now broadened and codified in Florida's present "Stand Your Ground" laws,¹ is before us today.

WHAT HAPPENED IN THIS CASE—

Petitioner, John Derossett, a sixty-five-year-old retired General Motors autoworker, owned a home in Brevard County, Florida. Derossett's adult niece, Mary Ellis, lived with him in this home. Derossett had no criminal record, worked part-time as a security guard at Port Canaveral, and lawfully possessed a concealed weapons permit. He had also apparently taken a firearms training course.

On August 20, 2015, at approximately 9:30 p.m., Ellis answered a knock on the front door. As she opened the door, a man reached inside the threshold of the house, grabbed her arm, and began pulling Ellis out of the home and onto the covered front porch. Ellis struggled to resist her apparent abduction and screamed to her uncle (Derossett) that she needed help. At this point, two other men approached to physically assist the first man in pulling Ellis off

311 So.3d 883

the porch of the home and into the front yard.

Derossett, having heard his niece's screams for help, hurried from his bedroom to the front porch. He was armed. One of the three men saw Derossett rapidly advancing to the front door with his firearm and announced to the other two men that a man with a gun was approaching. The three men abruptly released Ellis, pushing her towards the front door, and scattered on the front lawn. Derossett immediately came out of his front door and stood under "the canopy part of the porch."

At this point, Derossett raised his gun, called out to the men, and fired a warning shot up in the air. The three men, now at diverse points on Derossett's front yard, and likewise armed, immediately shot their respective firearms at him. Derossett fired back. In total, more than forty rounds were exchanged. Despite being fairly close to each other, because it was dark at the time, none of the four men engaged in this incident had a clear view of the others. Derossett and his niece were both struck by gunfire, as was one of the three men in Derossett's front yard, who was severely wounded in the abdomen.

DEROSSETT'S RIGHTS THAT EVENING UNDER FLORIDA'S STATUTORY "STAND YOUR GROUND" LAWS—

In 2005, the Florida Legislature enacted a number of statutes that codified and strengthened individuals' right to defend themselves and their families.² Section 776.013 specifically addressed the right to defend one's self and family from attack at home. At the time of the above-described incident, this statute provided, in pertinent part:

776.013. Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

....

(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) "Residence" means a dwelling in which a person resides either temporarily

311 So.3d 884

or permanently or is visiting as an invited guest.

The plain language of the above-cited portions of section 776.013 arguably evinces that the actions taken by Derossett that evening were well within his statutory right to stand his ground. Notably, Derossett was in his dwelling with his niece, Ellis, who was also a resident there. The first man reached inside the threshold of the front door and forcibly removed Ellis from the home. The three men were then standing immediately on the attached front porch where they removed Ellis onto the yard against her will. Thus, these men had just been in Derossett's dwelling, as that term is defined in section 776.013(5)(a), and had removed Ellis. See id. § 776.013(1)(a). Moreover, their collective actions in first reaching inside the threshold of the front door and forcibly removing Ellis from the home, and in then physically removing Ellis off the front porch, were presumed to have been done with the intent to commit an unlawful act involving force or violence. See id. § 776.013(4).

Next, under section 776.013(1)(b), Derossett, as the person using the defensive force, had reason to believe that an unlawful and forcible act had just occurred to his niece. Thus, under subparagraph (1) of this statute, Derossett was entitled to the presumption that he had a reasonable fear of imminent peril of death or great bodily harm to his niece when he first fired his warning shot as part of a rapid sequence of ongoing events beginning with the removal of Ellis from his dwelling against her will. Lastly, and not insignificantly, assuming for the sake of argument that the alleged abduction or kidnapping of Ellis had "ended" when the three men, cognizant that Derossett was quickly coming to his front door with a firearm, released her and scattered onto the front yard, Derossett had no duty to retreat. He was within his rights to use the deadly defensive force³ that he used seconds later because the three men had removed his niece from the home against her will and Derossett knew or had reason to believe that this unlawful or forcible act against his niece had occurred . See § 776.013(1)(a)–(b).

SO WHY IS DEROSSETT BEING PROSECUTED?—

Although section 776.013 was seemingly written both to justify and authorize the actions Derossett took that evening based on the circumstances that he faced, he is presently being prosecuted. The State filed an information charging Derossett with one count of attempted premeditated first-degree murder of a law enforcement officer while discharging a firearm and inflicting great bodily harm and two separate counts of attempted premeditated first-degree murder of a law enforcement officer while discharging a firearm.⁴

The three men who came to Derossett's home that night were, in fact, deputy sheriffs with the Brevard County Sheriff's Office Special Investigations Unit conducting a "sting" operation directed at Ellis, whom they believed had been performing acts of prostitution in Derossett's home. They arrived at the home in unmarked vehicles and parked on the street away from the home.⁵ The deputy who first approached

311 So.3d 885

the home posed as Ellis's customer and was in plain clothes. He had made arrangements with Ellis earlier that day to meet and engage in a sexual act with her for money. This deputy was the individual whom Ellis first greeted at the door as her anticipated customer and who then entered the home by grabbing Ellis by the arm inside the threshold and pulling her out of the dwelling.⁶ The other two deputies were not in uniform and were the individuals who assisted the first deputy in attempting to subdue the now-screaming Ellis in order to make the warrantless, late-night arrest for solicitation of prostitution.⁷ As previously indicated, the three deputies removed Ellis from the porch...