Marrero v. State

• Decision Date: 15 December 1987
• Docket Number: No. 86-2325,86-2325
• Citation: 516 So.2d 1052,12 Fla. L. Weekly 2833
• Parties: 12 Fla. L. Weekly 2833 Hipolito MARRERO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1052

516 So.2d 1052

12 Fla. L. Weekly 2833

Hipolito MARRERO, Appellant, v. The STATE of Florida, Appellee.

No. 86-2325.

District Court of Appeal of Florida,

Third District.

Dec. 15, 1987.

Edward F. McHale, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Hipolito Marrero appeals his conviction and sentence for unlawful possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1985), contending that, first, the evidence was insufficient to sustain a conviction and, second, the trial court's instruction to the jury on Marrero's necessity defense was erroneous.

The evidence before the jury was as follows. On the date of the offense, Marrero, returning to his van in a parking lot of a Miami Beach hotel, was confronted by a man who stuck a pistol against Marrero and demanded his money. Marrero grabbed the gun from him and pushed it downward. During the ensuing struggle, the gun went off, a bullet or bullets striking the assailant and disabling him.

Marrero continued to hold the gun. He testified that he was filled with terror; he thought he might have killed his assailant and remembered a prior occasion when he had been robbed and shot.

Apparently moments later, Marrero was observed acting "strange" by a uniformed off-duty police officer who knew nothing of the struggle and shooting. The officer testified that he was about to start following Marrero when a young woman came up to him and told him that Marrero had just put a gun in his pocket. Hearing that, the officer drew his revolver. Marrero testified that he, Marrero, had not put the gun in his pocket, but was holding it in his hand, and when he saw the officer draw his revolver, Marrero held his gun up high. According to the officer, Marrero pulled the gun from his pocket when he saw the officer, started to run away, and threw the gun toward an adjacent hotel. Marrero, in contrast, testified that he ran toward the officer and dropped his gun to the ground.

Finally, the officer testified that Marrero said to him in Spanish, "I have just shot a man who ... robbed me" and added, "Please don't say anything about the gun. I'm cooperating with you. Don't say anything about the gun.... You're Cuban just like me. Please don't say anything about the gun." Marrero denied making these statements.

Viewing the evidence most favorably to the State, as we must, we conclude that because a reasonable-minded jury could find therefrom that Marrero had time to reflect on the consequences of his continued possession of the firearm and nonetheless possessed it after the necessity which justified his initial possession had passed--as will be seen, requisites for conviction--the jury's verdict is supported by sufficient evidence. Although Marrero's throwing away of the gun--circumstantial evidence of his state of mind--is arguably consistent with the hypothesis of innocence that Marrero was fearful about being charged with the shooting of his assailant, rather than with being charged with the crime of possession of a weapon by a convicted felon, a jury could readily infer from Marrero's beseeching of the officer not to say anything about the gun that Marrero was concerned about his continued possession of the weapon even before he disposed of it upon seeing the police officer. Thus we must reject Marrero's argument that he was, and is, entitled to the entry of a judgment of acquittal.

We are, however, of the view that Marrero is entitled to a new trial because of the trial court's failure to properly instruct the jury on Marrero's defense. The jury was instructed that "[a] convicted felon may temporarily take a firearm from an armed attacker if necessary to prevent death or great bodily injury. He may not, however, retain possession of the firearm after the necessity which justified his taking of the firearm has passed." Marrero contends that this was an incomplete statement of the law in that it permitted the jury to find him guilty for his failure to immediately dispossess himself of the firearm after disabling his attacker, notwithstanding that a properly instructed jury could have found from the evidence that Marrero did not have time to reflect on the consequences of his possession of the firearm during the brief period of time when he possessed the firearm after his attacker was disabled. He argues that because the lawfulness of his initial possession of the firearm in defense of himself was never a disputed issue, and because the entire focus of the case was the lawfulness of his possession after he disabled his attacker, the incomplete instruction eviscerated his defense. We agree with Marrero, and reverse. ¹

Although Section 790.23, Florida Statutes (1985), makes it unlawful for "any person who has been convicted of a felony ... to have in his care, custody, possession, or control any firearm," the law has long recognized that there may be circumstances under which a convicted felon's possession of a firearm would be justified and his conduct declared not criminal. ² , ³ While Florida courts have not offered an explicit definition of this justification defense, a recent and workable definition is found in State v. Crawford, 308 Md. 683, 699, 521 A.2d 1193, 1200-01 (1987):

"(1) the defendant must be in present, imminent, and impending peril of death or serious bodily injury, or reasonably believe himself or others to be in such danger; (2) the defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; (3) the defendant must not have any reasonable, legal alternative to possessing the handgun; (4) the handgun must be made available to the defendant without preconceived design, and (5) the defendant must give up possession of the handgun as soon as necessity or apparent necessity ends."

The first four elements are clearly satisfied in the present case; it is the fifth--that the weapon be given up as soon as the necessity or the apparent necessity ends--that is our concern on this appeal.

We begin our discussion with Mungin v. State, 458 So.2d 293 (Fla. 1st DCA 1984). During a fight between the defendant Mungin and a prisoner named Williams, Williams dropped his knife, Mungin retrieved it, and in the fight stabbed Williams three times. Correctional officers arrived, subdued Williams, and told Mungin to surrender the knife. Mungin refused until Williams' inmate friends, who had thrown chairs at Mungin during the fight, were removed from the room. The First District receded from earlier cases that had held that self-defense can never be a defense to unlawful possession of a weapon, ⁴ and found instead that the statute did not divest an inmate of his right to defend himself against "the peril of death or serious bodily injury, even to the extent of removing the offending weapon from the hands of the would-be aggressor." Mungin v. State, 458 So.2d at 295. It thus held that the trial court erred in refusing to admit evidence of Williams' prior attack on Mungin and the circumstances of the fight between the two inmates, and reversed Mungin's conviction for violating the statute prohibiting prisoners from possessing weapons. Significantly, the court added that the result would be different if the defendant had had "sufficient time to reflect on the consequences of [his] possession...." Id. (emphasis added). ⁵

In Ambrister v. State, 462 So.2d 43 (Fla. 1st DCA 1984), the First District once again made clear that a defendant who does not give up possession of a firearm as soon as necessity or apparent necessity has ended may be convicted of a possession charge only if it is found that the defendant had sufficient time to reflect on the consequences of his possession. At trial, Ambrister, charged with carrying a concealed firearm, unsuccessfully requested a jury instruction on the defense of necessity. On the appeal of his conviction, the First District reversed, finding that Ambrister, having maintained that he "did not have time to reflect on the consequences of concealing the firearm," was entitled to a new trial with the jury to be instructed on the defense of necessity. Ambrister v. State, 462 So.2d at 45.

It is apparent from Mungin that although the necessity justifying the initial possession of the weapon had passed, a defendant is nonetheless entitled to have the jury consider whether his actions after that moment evinced a knowing possession of the weapon in violation of the law. Other courts have likewise found the defense to exist, despite evidence that the necessity may have passed, and have reversed convictions obtained where the jury had not been instructed on the defense. See People v. Mizchele, 142 Cal.App.3d 686, 191 Cal.Rptr. 245 (1983) (defendant took gun away from his wife, whom he feared, and after the gun went off, put it in the closet); People v. Furey, 13 A.D.2d 412, 217 N.Y.S.2d 189 (N.Y.App.Div.1961) (defendant found a gun on the street, picked it up, and carried it about a block when he saw a police officer and either "dropped" the gun or "threw it" over his shoulder); People v. LaPella, 272 N.Y. 81, 4 N.E.2d 943 (1936) (defendant found the weapon in a public bathroom, kept an appointment, and then, twenty minutes after first finding the weapon, brought it to the police); People v. Coffey, 153 Mich.App. 311, 395 N.W.2d 250 (1986) (defendant may have wrestled gun away from victim, put it in his pocket for safekeeping, and walked towards arresting officer, indicating possible intent to relinquish the weapon). Similarly, in State v. Hardy, 60 Ohio App.2d 325, 397 N.E.2d 773 (1978), where the defendant used a gun in self-defense, took the victim to the hospital, and only then called the police, the conviction in a bench trial was reversed...