Fuller v. State, Case No. 5D16-2646

CourtCourt of Appeal of Florida (US)
Writing for the CourtEDWARDS, J.
Parties Bruce FULLER, Appellant, v. STATE of Florida, Appellee.
Docket NumberCase No. 5D16-2646
Decision Date28 September 2018

257 So.3d 521

Bruce FULLER, Appellant,
v.
STATE of Florida, Appellee.

Case No. 5D16-2646

District Court of Appeal of Florida, Fifth District.

Opinion filed September 28, 2018


William R. Ponall, of Ponall Law, Maitland, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

EDWARDS, J.

Bruce Fuller appeals his judgment and sentence for manslaughter with a firearm. We hold that Fuller is entitled to a new trial because of the independent and cumulative effects of several rulings that permitted the State to introduce unfairly prejudicial evidence. Although we agree that the trial court gave an inappropriate Stand Your Ground jury instruction, we find that did not constitute fundamental error because the instruction was given at defense counsel's request.1 Additionally, we hold that Fuller is entitled to a new Stand Your Ground pretrial immunity hearing where the State will bear the burden of proof in accordance with section 776.032(4), Florida Statutes (2017), which should be applied retrospectively in this pending case. Accordingly, we reverse and remand with instructions to the trial court regarding further proceedings. Because we are reversing and remanding for a new trial, we need not address the remaining issues raised by Fuller.

I. BACKGROUND INFORMATION

Fuller was charged with the first-degree murder of Furrukh Shan Alam, whom he admittedly shot with Alam's pistol in Fuller's home on the morning of August 10, 2011. Fuller claimed that he shot Alam in self-defense during a struggle with Alam. The State also charged Fuller with sexual battery of a helpless person, S.G., based upon allegations that Fuller molested her at his home during the night of August 9, or the early morning of August 10, 2011, while she was incapacitated due to her voluntary alcohol and drug use. The sexual battery charge was severed for a separate trial.

257 So.3d 525

A. Pretrial Stand Your Ground Immunity Hearing

Fuller moved to dismiss the murder charge, claiming that he was immune from prosecution under section 776.032, Florida Statutes (2011), a part of the Stand Your Ground law. Because that statute as originally enacted did not provide procedural guidance, the supreme court in Dennis v. State , 51 So.3d 456 (Fla. 2010), "approved the procedure of a pretrial evidentiary hearing ... for evaluating a claim of immunity under the Stand Your Ground law." Bretherick v. State , 170 So.3d 766, 768 (Fla. 2015). Five years later, in Bretherick , the supreme court adopted "the procedure that has been followed by all of the district courts of appeal after Dennis ," which placed "the burden of proof on the defendant to prove entitlement to immunity from prosecution by a preponderance of the evidence at a pretrial hearing." Id. at 771. Fuller's Stand Your Ground hearing took place on March 1, 2016, in accordance with the procedure adopted in Bretherick .

At this hearing, Fuller testified that while working as a travel and real estate agent in 2001, he met Alam, who was one of his clients on a group cruise. They continued their acquaintance by occasional phone calls and visits. According to Fuller, in 2004, Alam left a pistol at Fuller's home because he could not take it with him while traveling. Several days before the shooting, Alam called Fuller from Jacksonville and then spent a long weekend at Fuller's house in Maitland. Alam was acting his "normal jovial self" over the weekend while they went to dinner and shopped together and during a party on Saturday night at Fuller's house when Alam met some of Fuller's friends.

Fuller said that on Tuesday night, Alam began to make "bizarre" negative comments. Meanwhile, S.G., a woman Fuller had dated, came to his house for dinner. Both Fuller and S.G. had several glasses of wine before they each took an Ambien and went to bed. Fuller testified that he and S.G. engaged in intimate mutual touching.

Early the next morning, Fuller awoke to the sound of Alam and an unknown man speaking angrily in an unrecognized foreign language. Fuller testified that Alam ignored him as Fuller tried to find out who the stranger was and what was going on. Fuller claimed that the way Alam and the stranger were acting concerned him, and made him feel threatened, uncomfortable, nervous, and unsafe. Neither man actually made threatening gestures or comments to Fuller.

Fuller noticed Alam's pistol in the home office where Fuller claimed they had put it on Tuesday afternoon after Alam had told Fuller he wanted his gun back. Fuller said that he felt uncomfortable having the gun out in the open Wednesday morning while Alam and the stranger were arguing. Fuller said he emptied the clip's cartridges onto a chair, then took the pistol and empty clip to Alam's room and placed it on Alam's suitcase. At some point that morning, Alam told Fuller that the stranger had left the house, but then followed and mocked Fuller as he searched the house to see if the stranger was really gone. Alam wound up in the garage alone with Fuller. A little later, S.G. walked through the garage, where Fuller and Alam still were, to go to work.

Fuller testified that Alam became agitated, gesturing, pacing, speaking in a foreign language, and displaying completely unusual personality traits. Fuller told Alam this was scaring him and that he was going to call the police. According to Fuller, Alam prevented him from calling the police, blocked his access to a telephone, and interfered when one of Fuller's business

257 So.3d 526

associates called, because Fuller asked her to call the police.

Fuller testified that Alam made aggressive moves towards him. As Alam backed Fuller into a corner, Alam grabbed his gun and pointed it at Fuller, which led to a struggle for the pistol. Fuller testified that he wrestled the gun away and hit Alam in the head with it because Alam was blocking his exit. As they wrestled for control of the gun again, Fuller said, it fired, hitting Alam, who fell to the ground. Fuller then called 911. At the Stand Your Ground hearing, Fuller said that he was neither drunk nor under the influence of alcohol or drugs when he went to bed or woke up. Fuller denied consuming any drugs other than the one Ambien pill before bed. On cross-examination, Fuller testified that Alam's pistol had been in its case until two days before the shooting, when they took it out and put it in Fuller's home office.

The trial court denied Fuller's Stand Your Ground motion and request for immunity, specifically finding that Fuller had failed to meet his burden of proof.

B. Trial

Prior to and during trial, Fuller objected to and moved to exclude any evidence relating to the previously severed sexual battery prosecution in which S.G. was the alleged victim. The State agreed that it would not refer to any of the sexual conduct or events as "sexual battery." However, the State argued that it needed to admit testimony about Fuller's sexual activity with S.G. on the night before, or early morning of, the shooting to explain how her DNA came to be found on both the gun and its case.

The trial court overruled Fuller's objections and permitted the State to elicit testimony from S.G. that she had three or four glasses of wine and felt too woozy to drive. She took an Ambien provided by Fuller. S.G. said she went to sleep in Fuller's bed alone while he went back out into the house. She testified that she was asleep in less than ten minutes; the next thing she knew it was morning; she awoke to a distant noise like a garage door opening, and heard voices. S.G. said that as she left for work that morning, she saw Fuller and Alam in the garage. The two men stopped whatever discussion they were having when she approached. She noticed that Fuller had a perturbed or annoyed look on his face. In response to the prosecutor's questions, S.G. testified she did not engage in any sexual conduct with Fuller that night.

S.G. related that months after the shooting, the police requested her to provide DNA samples, a request she did not understand. S.G. testified that she later received a text message from Fuller in which he said, "It's been bothering me, I had my fingers in you. Your DNA was on my hands. I don't mean to be bold but it's true. I'm so sorry."

Forensic testimony was presented by the State to the effect that S.G.'s DNA was found on the gun case and on the gun itself, which would be consistent with what the State's witnesses referred to as a wet transfer via Fuller's fingers following the conduct described in that text message. The State argued that this evidence eliminated S.G. as the suspected shooter despite her DNA being on the gun and its case. The lead detective testified that Fuller had not mentioned anything to him about a woman spending the night before the shooting at his house until the woman's DNA was discovered on the gun and its case.

Fuller also moved to prevent and objected to the State introducing testimony and photographs concerning (1) drug paraphernalia, empty liquor bottles, and cocktail glasses found in the house after the shooting;

257 So.3d 527

(2) both recent and older text messages...

To continue reading

Request your trial
12 practice notes
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) ; Boston v. State , 260 So. 3d 445 (Fla. 1st DCA 2018) ; Fuller v. State, 257 So. 3d 521, 539 (Fla. 5th DCA 2018) (reversing judgment and sentence for new immunity hearing applying new burden of proof). In these cases, if appli......
  • Derossett v. State, Case No. 5D19-0802
    • United States
    • Court of Appeal of Florida (US)
    • November 7, 2019
    ...Courts, ruling that the amendment to section 776.032 was to be applied retroactively in pending cases. See311 So.3d 890 Fuller v. State , 257 So. 3d 521, 537 (Fla. 5th DCA 2018). To the trial court's credit, while it believed that the statutory amendment did not apply retroactively, it reco......
  • Mency v. State, No. 1D18-1993
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...Fla. L. Weekly D1016, ––– So.3d ––––, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), review pending, No. SC18-789 (same); Fuller v. State , 257 So. 3d 521, 536-38 (Fla. 5th DCA 2018) (same); Love v. State , 247 So. 3d 609, 611-12 (Fla. 3d DCA 2018), review granted, No. SC18-747 (finding the sta......
  • Mayers v. State, No. 1D18-2926
    • United States
    • Court of Appeal of Florida (US)
    • December 17, 2018
    ...the amendment retroactively." The retroactive application of the statute was also approved by the Fifth District in Fuller v. State , 257 So.3d 521 (Fla. 5th DCA Sept. 28, 2018).The Third and Fourth Districts have set forth cogent arguments that the retroactive application of the amendment ......
  • Request a trial to view additional results
12 cases
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...Fla. L. Weekly D1016, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018) ; Boston v. State , 260 So. 3d 445 (Fla. 1st DCA 2018) ; Fuller v. State, 257 So. 3d 521, 539 (Fla. 5th DCA 2018) (reversing judgment and sentence for new immunity hearing applying new burden of proof). In these cases, if appli......
  • Derossett v. State, Case No. 5D19-0802
    • United States
    • Court of Appeal of Florida (US)
    • November 7, 2019
    ...Courts, ruling that the amendment to section 776.032 was to be applied retroactively in pending cases. See311 So.3d 890 Fuller v. State , 257 So. 3d 521, 537 (Fla. 5th DCA 2018). To the trial court's credit, while it believed that the statutory amendment did not apply retroactively, it reco......
  • Mency v. State, No. 1D18-1993
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...Fla. L. Weekly D1016, ––– So.3d ––––, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), review pending, No. SC18-789 (same); Fuller v. State , 257 So. 3d 521, 536-38 (Fla. 5th DCA 2018) (same); Love v. State , 247 So. 3d 609, 611-12 (Fla. 3d DCA 2018), review granted, No. SC18-747 (finding the sta......
  • Mayers v. State, No. 1D18-2926
    • United States
    • Court of Appeal of Florida (US)
    • December 17, 2018
    ...the amendment retroactively." The retroactive application of the statute was also approved by the Fifth District in Fuller v. State , 257 So.3d 521 (Fla. 5th DCA Sept. 28, 2018).The Third and Fourth Districts have set forth cogent arguments that the retroactive application of the amendment ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT