Gilchrist v. State
| Decision Date | 11 October 2006 |
| Docket Number | No. 4D05-1851.,4D05-1851. |
| Citation | 938 So.2d 654 |
| Parties | Freddie Allen GILCHRIST, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Freddie Gilchrist, appeals his conviction of two counts of aggravated battery on a pregnant woman. For the reasons that follow, we reverse and remand for a new trial. In addition, we remand the order of probation to the trial court for correction. We also reverse the imposition of prosecutorial and investigative costs and remand for the trial court to determine if the statutory requirements have been met to reimpose the costs.
According to the eyewitness testimony presented at trial, two pregnant women were arguing with Gilchrist outside, in front of a house. Apparently, the argument was a confrontation about Gilchrist impregnating both women. Gilchrist hit one of the women, Kimberly Hooper, in the face with an open-hand slap. When Hooper told Gilchrist to stop and leave her alone, Gilchrist hit her again in the same manner. Hooper attempted to push him away from her, and she eventually managed to get away and retrieve a tire iron from the trunk of a car. Hooper told him not to touch her, to leave her alone, and that she wanted her money, but Gilchrist snatched the tire iron from her and slapped her again. He then picked up a garden stone and threw it at her stomach, but it landed at her feet. Gilchrist also slapped Noracis Brown, the other pregnant woman, and grabbed both women in choke-holds by their necks, hitting their heads together. As Brown started to walk away, he snatched her by the arm and pulled her head down. He slapped her several times and snatched the weave track from her hair as Brown was crying for help. The eyewitnesses agreed that although the women tried to defend themselves, neither woman attacked Gilchrist.
Contrary to the testimony of the State's eyewitnesses, Gilchrist testified that all of his actions were taken in self-defense and that Brown and Hooper instigated the attack. According to Gilchrist, he had an argument with Hooper, and when he tried to leave, Brown grabbed him by the arm. Hooper grabbed him by the neck and was choking him. Because Gilchrist could not breathe and was about to pass out, he bit her on the arm. Hooper then tried to bust the windows of Gilchrist's car with a jack, so he grabbed the jack and threw it by a tree. According to Gilchrist, Hooper hit him, and he grabbed her by the neck. Hooper also snatched his jewelry and was holding his shirt. Meanwhile, Brown came up from behind and hit him. Gilchrist explained that he pulled Brown's hair to stop her from getting the jack thrown by Hooper.
During the charge conference, Gilchrist requested that the court instruct the jurors on self-defense and justifiable use of non-deadly force. The instruction read in part:
Freddie Gilchrist would be justified in using force not likely to cause death or great bodily harm against Kimberly Hooper or Noracis Brown if the following two facts are proved: Number one, Freddie Gilchrist must have reasonably believed that such conduct was necessary to defend himself against Kimberly Hooper's or Noracis Brown's imminent use of unlawful force against Freddie Gilchrist; number two, the use of unlawful force by Kimberly Hooper or Noracis Brown must have appeared to Freddie Gilchrist ready to take place.
The use of force not likely to cause death or great bodily harm is not justifiable if you find: one, that Freddie Gilchrist was attempting to commit, committing, or escaping after the commission of aggravated battery upon a pregnant woman; two, Freddie Gilchrist initially provoked the use of force against himself, unless the force asserted toward the Defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger other than using force not likely to cause death or great bodily harm to Kimberly Hooper or Noracis Brown; (B) in good faith, the defendant withdrew from physical contact with Kimberly Hooper or Noracis Brown and indicated clearly to them that he wanted to withdraw and stop the use of force not likely to cause death or great bodily harm but Kimberly Hooper or Noracis Brown continued or resumed the use of force.
The jury returned a verdict of guilty as charged on both counts. In pronouncing the sentence, the trial court stated, The trial court sentenced him to seventy-two months in prison for both counts, to run concurrently, followed by one year of probation. Without objection, the trial court also assessed costs of investigation of $50 and costs of prosecution of $24.
On appeal, Gilchrist challenges his conviction and sentence on several grounds. First, Gilchrist argues that this court should reverse his convictions for aggravated battery because the instruction as given negated his self-defense claim. Specifically, the challenged instruction reads as follows:
The use of force not likely to cause death or great bodily harm is not justifiable if you find: one, that Freddie Gilchrist was attempting to commit, committing, or escaping after the commission of aggravated battery upon a pregnant woman....
We agree that the instruction was erroneous. A court's decision to give a particular instruction should not be reversed "unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury." Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002). In Giles, we concluded that this particular instruction was misleading and confusing such that the effect was to negate the defendant's only defense to the charge of aggravated battery. Id. Similarly, in Williams v. State, 901 So.2d 899, 900 (Fla. 4th DCA 2005), we held that where a defendant is charged only with an aggravated battery, and the defendant claims that the aggravated battery was in self-defense, giving the instruction improperly negates the self-defense claim. The instruction is applicable "only in circumstances where the person claiming self-defense is engaged in another, independent forcible felony at the time" and is normally given in situations where the...
To continue reading
Request your trial
-
Peters v. State
...See Hannum v. State, 13 So.3d 132, 135–36 (Fla. 2d DCA 2009); Donaldson v. State, 16 So.3d 314 (Fla. 4th DCA 2009); Gilchrist v. State, 938 So.2d 654 (Fla. 4th DCA 2006) (defendant maintained that he acted in self-defense); Lyons v. State, 730 So.2d 833, 834 (Fla. 4th DCA 1999); Exposito v.......
-
Davis v. State
...a defendant's due process rights, and cannot serve as a constitutionally permissible sentencing consideration."); Gilchrist v. State, 938 So. 2d 654, 657-58 (Fla. 4th DCA 2006) ("When a court predicates the length of a sentence on the defendant's failure to show any inclination toward repen......
-
Whitmore v. State
...refusal to admit guilt was but one of several factors considered by the court in imposing sentence."); Gilchrist v. State, 938 So.2d 654, 657-58 (Fla. 4th DCA 2006) ("When a court predicates the length of a sentence on the defendant's failure to show any inclination toward repentance, the c......
-
Barnes v. State
...So.2d 1210 (Fla. 4th DCA 2003). The mere fact that the self-defense claim borders absurdity is irrelevant. See Gilchrist v. State, 938 So.2d 654, 656-57 (Fla. 4th DCA 2006); Bevan v. State, 908 So.2d 524, 525 (Fla. 2d DCA 2005); Bates v. State, 883 So.2d 907, 907-08 (Fla. 2d DCA 2004). The ......
-
Avoiding fundamentally erroneous jury instructions: pointers for counsel in criminal trials and appeals.
...900 So. 2d 733, 733-34 (Fla. 4th D.C.A. 2005); Bates v. State, 883 So. 2d 907, 908 (Fla. 2d D.C.A. 2004). (26) See Gilchrist v. State, 938 So. 2d 654, 656-57 (Fla. 4th D.C.A. 2006) (holding self-defense instruction was fundamentally erroneous where defendant convicted of battering two pregn......