Dias v. State, 4D99-4033.

• Decision Date: 13 March 2002
• Docket Number: No. 4D99-4033.,4D99-4033.
• Citation: 812 So.2d 487
• Parties: Robert DIAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

812 So.2d 487

Robert DIAS, Appellant, v. STATE of Florida, Appellee.

No. 4D99-4033.

District Court of Appeal of Florida, Fourth District.

March 13, 2002.

Rehearing Denied April 19, 2002.

Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant challenges his conviction for attempted second degree murder, raising four issues. First, he claims that the court should have granted a judgment of acquittal because his claim of self-defense was unrebutted. Second, he contends that the jury instructions on his defenses were misleading and constituted fundamental error. Third, he argues that the court erroneously admitted a knife found in his van that was not definitively identified as the weapon used in the assault. Finally, he argues that the court erred in admitting impeachment evidence that was used substantively in the prosecutor's closing argument. We find no reversible error in any of these issues and affirm.

The charges against appellant arose when the victims, Verret and Pescherine, arrived at appellant's home to retrieve Verret's guitar. Appellant had borrowed the guitar some months before. Verret had demanded its return on several occasions, but appellant kept putting him off. In fact, appellant had sold the guitar. When Verret and Pescherine arrived at the home, appellant told his wife, Anna, to tell whoever was at the door that he was not at home. Appellant then locked himself in the music room, which was in the back of the house. Anna told Verret and Pescherine that appellant was at work. Although the testimony conflicted as to whether the victims were invited into the home, they both testified that they were invited in by Anna.

Verret explained that he was there to retrieve his guitar and asked to look around for it. Anna replied that it was most likely in the locked music room. From inside the music room, appellant could hear Verret become loud and upset. Pescherine asked Anna for a pen or nail to open the door, but she did not have one. Anna testified that Pescherine then used several different objects to get the music room door open, including scissors, but the victims testified that Pescherine only jiggled the door knob. While they were working on the door, Anna told them several times to stop and wait until appellant got home. Verret admitted that she could have said that; however, Pescherine testified that he never heard Anna ask them to leave.

The evidence was disputed as to what happened next. According to the state's case, as Pescherine was jiggling the door, it flew open and appellant charged out of the room with a knife, stabbing Pescherine in the neck and chest. Pescherine backed away from appellant toward the living room, where Verret came to his aid. Appellant then began stabbing Verret, too. Appellant continued to stab at both victims as they backed away and out of the house, where they collapsed on the front lawn. According to Pescherine, when they were lying on the ground, appellant said, "[t]hat'll teach you [expletive deleted] to mess with me. You got what you deserve." Each victim received multiple stab wounds. Pescherine received a wound which cut his artery, nearly causing his death and leaving one arm paralyzed.

Appellant's story varied significantly from the account of the victims. Upon hearing the commotion outside of the music room, appellant got a knife ready to use if the door was opened. Appellant claimed Pescherine opened the door and lunged at him with the scissors. Only after he pushed Pescherine away did appellant grab his knife. He forced Pescherine into the living room, but at that point he said that he had not stabbed anyone. Verret then charged appellant, and a struggle ensued. It was during the struggle with both victims that they received their stab wounds.

After the victims collapsed on the lawn, Anna called the police, reporting that appellant had just stabbed two of his friends. Appellant fled the scene. When he was finally apprehended three weeks later, the officers found a knife in his van approximately fifteen inches in length. Appellant described the knife he had in the music room as being ten inches in length, with a four to six inch blade. The victims described the knife as having a long, steel blade, and Verret said it was about a foot long. The sheath for the knife found in the van was not the same sheath as was found in the music room, but there is nothing in the record regarding the size of either sheath. The detective testified that Verret also described a point on the handle of the knife appellant used to stab him. The knife in the van also had a point on the handle. No testing was done on the knife, and the detective could not say that the knife in the van was the weapon used in the attack. No other knife was found at the scene similar to the weapon used by appellant in the attack.

At trial, appellant claimed self-defense and defense of burglary. He testified that he knew the victims were members of motorcycle gangs and that Verret had a violent nature. Therefore, when he heard Verret outside the music room speaking belligerently with his wife, he was afraid for the both of them. The trial court denied a motion for judgment of acquittal, and the jury found appellant guilty of two counts of attempted second degree murder.

Appellant first argues that because he did not invite the victims into his home, he was under the reasonable belief that they were engaged in the commission of a burglary in his dwelling, justifying his use of deadly force against them. He relies on both section 782.02, Florida Statutes (1997), and the "castle doctrine." Section 782.02 provides "[t]he use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which such person shall be."

Similarly, the "castle doctrine" states:

[A] person's dwelling house is a castle of defense for himself and his family, and an assault on it with intent to injure him or any lawful inmate of it may justify the use of force as protection, and even deadly force if there exist reasonable and factual grounds to believe that unless so used, a felony would be committed.

Falco v. State, 407 So.2d 203, 208 (Fla. 1981) (citations omitted). However, "[a] homeowner is not entitled to use deadly force to protect his person or dwelling in all instances. A homeowner may use deadly force to protect himself or his dwelling only if there exists a reasonable belief that such force is necessary." Butler v. State, 493 So.2d 451, 453 (Fla.1986) (emphasis added).

The question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed. See Scholl v. State, 94 Fla. 1138, 115 So. 43, 44 (1927); Reimel v. State, 532 So.2d 16, 18 (Fla. 5th DCA 1988); Payton v. State, 200 So.2d 255, 255 (Fla. 3d DCA 1967). In discussing the question of the reasonableness of the force used, the court in Reimel stated:

A jury question is presented when the evidence is reasonably susceptible of two views, either that the defendant's action in shooting was justifiable self-defense or that such action evinced a depraved mind without proper regard for the life of the victim. The defendant is mistaken that the issue is whether he believed that he was in danger. The law does not ascribe a subjective standard as to a defendant's state of mind, but concerns a reasonably prudent person's state of mind.

532 So.2d at 18 (citations omitted). In this case, the evidence is susceptible to two different views regarding the use of force. Appellant's position is that he feared for his wife when he heard the victims' belligerent tone of voice and their attempts to enter the music room. On the other hand, if the version of the victims is believed, while they were trying to enter the music room, they were unarmed and never threatened harm to anyone. They did not know appellant was in the music room and were surprised when he burst out brandishing a knife and stabbing the victims as they retreated. The duration of the struggle, the number of stab wounds on both victims, and appellant's leaving the scene of the incident after telling the victims they got what they deserved, all point to the work of a depraved mind rather than an act done out of a reasonable belief that it was necessary to prevent further harm. On this record, the issue of appellant's reasonable belief as to the necessity of the use of deadly force was one for the jury. We do not overlook the fact that the victims' conduct did not constitute the commission of a burglary. The victims, one of whom was a friend of appellant and his wife, were invited into the home by appellant's wife. Any intent to commit a crime, e.g., criminal mischief by breaking the lock on the music room, was formed after their entry and therefore could not be the basis of a burglary charge. See Delgado v. State, 776 So.2d 233, 240 (Fla. 2000)

. If the victims were not attempting to commit a felony while in the home, then the statutory justifiable use of force would not apply.

Appellant next argues it was fundamental error for the court to give the standard jury instructions on the use of deadly force. He complains that the instruction first informs the jury that the defendant was required to retreat and then instructs on the privilege of non-retreat in the home. The instruction given was as follows:

The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased his own danger to retreat then his use of

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