Mungin v. State, AT-468

• Decision Date: 06 April 1984
• Docket Number: No. AT-468,AT-468
• Citation: Mungin v. State, 458 So.2d 293 (Fla. App. 1984)
• Parties: Harry MUNGIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 293

458 So.2d 293

Harry MUNGIN, Appellant, v.STATE of Florida, Appellee.

No. AT-468.

District Court of Appeal of Florida First District.

April 6, 1984.

On Rehearing and Rehearing En Banc

Nov. 9, 1984.

James M. Donohoe, Jr., Gainesville, for appellant.

Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Chief Judge.

Mungin appeals his conviction of inmate possession of a weapon in violation of Section 944.47(1)(c), Florida Statutes, ¹ following a jury trial at which the trial court excluded from admission into evidence proffered defense testimony relating to the defenses of self-defense, necessity and duress.We reverse, finding that such testimony was improperly withheld from the jury's consideration.

At trial, Correctional Officer Smith testified that while he was on duty at Florida State Prison on December 11, 1982, he observed an altercation between inmates Mungin and Williams.Smith grabbed Williams, who to him appeared to be the aggressor, and then turned to look at Mungin, standing approximately three or four feet away, holding a homemade knife.At that time Correctional Officers Marshall and Shaw arrived, and Marshall instructed Mungin to hand him the knife.Mungin responded that he would do so as soon as the room was cleared of inmates.After Smith had led Williams out, he saw Mungin hand the knife to Marshall.

At trial, when counsel for the defense attempted to question Smith about any problems that might have occurred between the two inmates on the day preceding the incident, the state entered an objection on grounds of irrelevancy, which was sustained by the trial court.When the same objection was made by the state to testimony by Mungin on the subject of recent prior disputes with Williams, a proffer of the following facts was made by defense counsel outside the jury's presence: On December the tenth, Mungin saw Williams harassing his friend, another inmate named Stark.In an attempt to end the dispute, Mungin told Williams that he had money and would pay the debt.Williams' response was to stab at Mungin twice with a knife, missing both times.Mungin testified that the attempted assault upset him greatly because he had nearly died of a stab wound to his throat, inflicted a month earlier.Fearful of another such attack, he tried, unsuccessfully, to obtain an apology from Williams and settle the matter.The following day, as Mungin entered the day-room, Williams stood up, approached him, reached under his shirt and seized a knife, which he used again to attack him.During the ensuing scuffle, and while Williams' friends were throwing chairs at Mungin, the knife was dropped and Mungin retrieved it.At that point Correctional Officer Smith came in and subdued Williams.Mungin at first refused to surrender the knife until the other hostile inmates were removed.On this proffer, the trial court sustained the state's objection, explaining that such a defense was not justification for Mungin's possession of a deadly weapon.Defense counsel then stated for the record that had the proffer been allowed, Stark and another inmate would have been called to the stand to corroborate Mungin's testimony.He then requested that such additional testimony, as well as Officer Smith's proposed testimony relating to the prior dispute, be proffered.The trial court replied that defense counsel should consider it proffered.

Under the unique circumstances presented by this case, we hold that the trial court erred in excluding the proffered testimony.The determination of whether the accused committed the offense charged, acting in his own defense, is a matter for consideration by the jury, see, e.g., Hall v. State, 136 Fla. 644, 187 So. 392(Fla.1939);Stevens v. State, 397 So.2d 324(Fla. 5th DCA1981), not the trial judge.The jury was entitled to consider the testimony concerning the recent events which led to Mungin's temporary possession of the knife.Such testimony clearly tended to demonstrate that Mungin acted in self-defense.See, e.g., Moyers v. State, 400 So.2d 769(Fla. 1st DCA1981), affirmedState v. Moyers, 406 So.2d 1120(Fla.1981);Wright v. State, 442 So.2d 1058(Fla. 1st DCA1983).It, moreover, could have established to the jury's satisfaction Mungin's well-founded fear that if he had not used all available resources at his disposal to remove the knife from the hands of his aggressor, he might have suffered death or great bodily harm.

In so concluding we have not overlooked our prior opinion in Carter v. State, 312 So.2d 494(Fla. 1st DCA1975), holding that the defense of necessity is not available to one charged with possession of a deadly weapon in his capacity as a prisoner, even though its possession is for the sole purpose of defending himself against other inmates.It does not appear from the court's very brief opinion in Carter that the inmate came about his possession of the knife as the result of his forced removal of it from his aggressor while defending himself against the use of immediate, deadly force.Had the facts in the case at bar demonstrated that Mungin had sufficient time to reflect on the consequences of possession, so that he caused to have manufactured or imported into the prison system the knife in question, we consider that the Carter interpretation of section 944.47(1)(c) would be fully applicable in the instant case.The possession of the weapon under such circumstances would be clearly at variance with the legislative purpose expressed in the statute to bar the introduction of deadly weapons into the grounds of the state penal institutions.We do not consider, however, that section 944.47(1)(c) dispossesses an inmate's 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.

Reversed and remanded for new trial.

ZEHMER, J., concurs.

BOOTH, J., dissents with written opinion.

BOOTH, Judge, dissenting:

The trial court correctly sustained the State's objection to the evidence in question, stating:

THE COURT: Now, Mr. Replogle [defense counsel], you would have a more valid point if the Defendant had surrendered the knife to the officers after the officers had gotten in there and had Williams under complete domination and control.

Now, I must not let the fact about whether I believe or not believe that Williams [victim of stabbing by defendant] had this knife influence me.

But when and if it had been limited solely to a situation in which a knife from another had been secured by an accused and then surrendered when the officers got there, you may have had a more valid legal status.

But to permit this Defendant's theory of defense would turn what is already a bad situation in the prisons of Florida into an absolute dangerous jungle of armed criminals slashing and killing other human beings.

Now, this Defendant, Harry Mungin, had administrative remedies.He didn't tell Officer Smith of any difficulty that he was having, if any.And then he would not turn the weapon over until he got ready to, which he identified as being the time when the officers cleared the day room.

This proffered defense cannot be justification for the possession of a weapon.

The objection of the State is sustained.

The judgment of conviction should be sustained.

ON MOTION FOR REHEARING AND REHEARING EN BANC

ERVIN, Chief Judge.

The appellee, state of Florida, has filed motions for rehearing and rehearing en banc, urging that this court erred in releasing its opinion filed April 6, 1984, which recognized that the defense of self-defense, or necessity and duress, was, under the unique circumstances presented by this case, permissible.The state urges that this court's opinion conflicts with its prior opinions in Carter v. State, 312 So.2d 494(Fla. 1st DCA1975), andDardy v. State, 324 So.2d 178(Fla. 1st DCA1975), and therefore rehearing en banc should be granted pursuant to the provisions of Florida Rule of Appellate Procedure 9.331.The full court has considered the motion for rehearing en banc and has granted it in part insofar as the opinion conflicts with that in Carter, but otherwise adheres to the original opinion, as modified.

We agree that our former opinion requires clarification.Omitted from it was the fact that Williams himself was the victim of three stab wounds by appellant during the altercation.Appellant, however, as previously stated, was only tried on a charge of inmate possession of a weapon, as proscribed by Section 944.47(1)(c), Florida Statutes.Omitted also from the opinion were the lower court's comments explaining its denial of the proffered defense.The lower court, somewhat inconsistently, apparently accepted the view that the defense of necessity might be appropriate under certain circumstances, but found it inapplicable to the facts before it, saying, "I am putting out of my mind the believeability of that defense.That is up to the jury.But in this case, because he[the defendant] has testified that he would not surrender the weapon until he got ready to, this defense is not applicable and the objection is sustained."

Obviously the court's interpretation of the defense was incorrect.The defense of necessity or duress was either available to the defendant or it was not.If it was one recognized by law then the jury had the right to weigh the credibility of the explanation offered by the defendant as to why he did not immediately hand over the knife, particularly in view of his proffered testimony that he had been attacked not only by the victim Williams but by other hostile inmates, and had finally agreed to surrender the knife when all were removed from the room.Clearly, if the defense is available, the jury--not the judge--has the right to decide whether the explanation is reasonable.SeeHall v. State, 136 Fla. 644, 187 So. 392(Fla.1939);Stevens v. State, 397 So.2d 324(...