Lusk v. State
| Decision Date | 30 September 1988 |
| Docket Number | No. 86-2985,86-2985 |
| Citation | 13 Fla. L. Weekly 2253,531 So.2d 1377 |
| Parties | 13 Fla. L. Weekly 2253 Charles W. LUSK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Laura Griffin, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Lusk appeals his judgments and sentences for burglary, aggravated battery, false imprisonment, and petit theft. We agree there was error and reverse.
At Lusk's trial, the alleged victim, William Pancoast, offered the following testimony. Three days prior to the day of these asserted offenses by Lusk, Pancoast observed Lusk near Pancoast's trailer during the time that circuit breakers were being switched on and off causing the lights inside the trailer to be extinguished three or four times repeatedly. Later that day, Pancoast found that his pickup truck had four flat tires.
At about midnight on the day resulting in the present charges, Pancoast walked through the front door of his mobile home carrying a loaded gun supposedly for protection. According to Pancoast, as he stepped inside the trailer, Lusk pounced on Pancoast forcing him out of the trailer. Once in the front yard, both men struggled for the gun. Pancoast was able to fire the gun, causing the bullet to strike the ground. Pancoast testified that Lusk had stated he (Lusk) had a knife, but Pancoast never saw a knife. During the course of the struggle, Lusk bit Pancoast's ear. At this point, Lusk and Pancoast mutually agreed to discard the gun and talk. Lusk invited himself into Pancoast's mobile home where they sat at a table and talked for several hours while drinking. Pancoast claims that Lusk struck and kicked him several times during this conversation until he finally pushed Lusk and ran to a neighbor's house where he called the police. When he returned to the trailer, Pancoast found that his watch and keys were missing.
While testifying, Pancoast stated he did not fight back because he was not that type of person, and it was not in his nature to fight with anyone. When the defense attempted to elicit from Pancoast on cross-examination the fact that he had committed prior acts of violence against his ex-wife, which acts were substantiated by police reports, the trial court excluded the evidence once more 1 holding that it was immaterial and irrelevant unless the other incidents occurred under circumstances similar to those present in this case.
Defense counsel further sought to impeach Pancoast by showing that Pancoast was on probation for committing a battery on the person of Connie Mallette by ransacking her place of residence and striking her on the head with a telephone. The defense proffered the testimonies of Deputy Gonzalez, who investigated the Mallette battery, and Connie Mallette to establish the battery incident on Mallette. The defense unsuccessfully argued that the fact that Pancoast had a battery charge pending against him during the trial of this case was admissible to show a possible motive for Pancoast not to be truthful. The trial court excluded this attempt at cross-examination ruling that it constituted impeachment on a collateral matter for the reason that the evidence was not relevant to show Pancoast's tendency to be violent with another six-foot individual such as Lusk.
At the close of the state's case and outside the jury's presence, the court called Pancoast as a court witness. In response to the trial court's questions, Pancoast testified he was not on probation at the time of the incident with Lusk, but that at the time of the trial he had been on probation for a period of one month after he pled no contest for the battery on Mallette.
Lusk admitted going to Pancoast's home on the night of the shooting incident to discuss Pancoast's beating of his ex-wife which had occurred a week earlier. Lusk testified that he had observed bruises and cuts on Pancoast's ex-wife the day of the beating and also was aware of another incident involving Pancoast striking a woman, not his ex-wife, on the head with a telephone.
Lusk's version of events was that as he was walking away from Pancoast's mobile home after knocking on the door, Pancoast arrived armed with an automatic pistol which he pointed at Lusk. Lusk stated that he jumped Pancoast to disarm him, and during a struggle in which Lusk eventually got the gun away from Pancoast, Lusk bit Pancoast's ear in an effort to distract Pancoast from shooting Lusk. In that exchange the gun fired but the bullet entered the ground. Lusk discarded the gun, and they proceeded inside the trailer for a drink, which according to Lusk was Pancoast's suggestion. Lusk related another confrontation between the two men which took place inside the trailer in which Pancoast pushed Lusk against the bathroom door and Lusk responded by slapping Pancoast. Moments later, Pancoast pushed Lusk and ran out of the trailer. Lusk stated he left then because he believed Pancoast had gone to retrieve the gun.
At the jury charge conference which followed, the judge entered these rulings as a matter of law:
1. The defendant was a trespasser.
2. Pancoast did not use any unlawful force against the defendant by merely pointing a loaded pistol at defendant upon finding him outside or inside Pancoast's home about midnight.
3. In every claim of self-defense, there must of necessity be unlawful force by the victim against the defendant.
4. Thus, there was no evidence whatsoever, much less any evidence of a substantial character, going to the element of self-defense.
The court, over a defense objection, refused to give Lusk's requested written jury instruction on self-defense taken from the Florida Standard Jury Instruction on the justifiable use of deadly force. Instead, the court gave the following court-authored special jury instruction:
It is lawful for a property owner to enter his home with a loaded pistol. It is also lawful for a property owner to merely point a loaded pistol at anyone who is not authorized to be on his property late at night. Consequently, Charles William Lusk may not claim self-defense under any version of the facts involved in this case.
As support for that instruction, the judge cited Rounds v. State, 382 So.2d 775 (Fla.3d DCA 1980), "for the sole proposition that evidence may not establish defense of self-defense as a matter of law." Defense's objections as to the court's rulings on these instructions were renewed once again at the close of all the evidence and later in a motion for new trial, all of which were denied.
First, Lusk argues and the state concedes there was error in the adjudication of guilt by Lusk on the burglary count. The court improperly instructed the jury only as to a third-degree burglary, i.e., burglary with intent to commit an assault, also listing the lesser included crime of trespass to a structure, and not first-degree burglary of a "dwelling" as charged in the information. The jury returned a verdict of guilty of burglary with intent to commit an assault. The judge orally adjudicated Lusk guilty of "[b]urglary with intent to commit assault under Count I of the Information," which charged a first-degree felony. The written judgment, however, adjudicated Lusk guilty of a second-degree felony under count I, the burglary count.
Under the authority of Williams v. State, 511 So.2d 1017 (Fla.2d DCA 1987), review denied, 519 So.2d 988 (Fla.1987), the written judgment and sentence on the burglary count should be corrected to comport with the jury verdict as supported by the instructions, but since we find other error requiring reversal of Lusk's convictions, no such correction is necessary. We note, however, that because of the potential for exposure of the defendant to double jeopardy in a new trial of these charges, the state may seek and the court may instruct only on simple burglary under count I of the state's information and any lesser included offenses. See Redondo v. State, 380 So.2d 1107 (Fla.3d DCA 1981), rev'd on other grounds 403 So.2d 954 (Fla.1981) (citing Greene v. City of Gulfport, 103 So.2d 115 (Fla.1958).
Next Lusk contends that the court erred both in denying the defense request for a standard self-defense...
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Robertson v. State
...and to show that he was not being truthful on the stand. See Allred v. State, 642 So.2d 650 (Fla. 1st DCA 1994); Lusk v. State, 531 So.2d 1377 (Fla. 2d DCA 1988). See also Howard v. State, 228 Ga.App. 775, 492 S.E.2d 683 (1997) (evidence defendant shot prior girlfriend 12 years earlier held......
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Perez v. State
...827 (Fla.2003); Gore v. State, 784 So.2d 418, 433 (Fla.2001); Carter v. State, 687 So.2d 327 (Fla. 1st DCA 1997); Lusk v. State, 531 So.2d 1377, 1382 (Fla. 2d DCA 1988). 10. The remaining aspect of Perez's claim implicates the Enmund/Tison analysis, see discussion supra pp. 365-72, along wi......
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Butler v. State, SC95158.
...where the defendant has testified on direct examination that he has not or would not participate in such misconduct. See Lusk v. State, 531 So.2d 1377 (Fla. 2d DCA 1988). In this case, Butler took the stand and testified he would never hurt the victim. The evidence concerning the 1993 incid......
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Robertson v. State
...statements and to show that he was not being truthful on the stand. See Ivey v. State, 132 Fla. 36, 180 So. 368 (1938); Lusk v. State, 531 So.2d 1377 (Fla. 2d DCA 1988). It is important for the legal profession and the judiciary to send a strong message that domestic violence in our communi......