Redondo v. State

• Decision Date: 04 March 1980
• Docket Number: No. 79-116,79-116
• Citation: 380 So.2d 1107
• Parties: Ricardo REDONDO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1107

380 So.2d 1107

Ricardo REDONDO, Appellant, v. The STATE of Florida, Appellee.

No. 79-116.

District Court of Appeal of Florida, Third District.

March 4, 1980.

Henry R. Carr, Miami, and Peter Kutner, for appellant.

Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.

Before PEARSON, HUBBART and SCHWARTZ, JJ.

HUBBART, Judge.

The central issue presented for review is whether Fla.Std. Jury Instr. (Crim.) 2.11(d) (para. 10) on self defense (concerning the defendant's lack of a duty to retreat when "unlawfully attacked in his own home or on his own premises") applies in an aggravated battery and possessory firearm case when the defendant presents evidence at trial tending to show that he was assaulted with a deadly weapon while lawfully engaged in his occupation at a place of business owned by his employer. We hold that the above instruction lies in such a case and the failure to give same in this cause constitutes reversible error requiring a new trial as to both the battery and firearm convictions.

I

The facts pertinent to the above issue are as follows. The defendant Ricardo Redondo who was charged in a two-count information with aggravated battery (§ 784.045, Fla.Stat. (1979)) and unlawful possession of a firearm while engaged in the commission of a felony (§ 790.07(2), Fla.Stat. (1979)), in the Circuit Court for the Eleventh Judicial Circuit of Florida. Upon the defendant's plea of not guilty, the case was tried in the trial court before a jury. The evidence adduced at trial tended to show that on July 3, 1978, at approximately 11:00 p. m. the defendant was at work employed as a clerk in a U-Totem store in Miami, Florida. The defendant and his wife, who was also a U-Totem employee at the time, were stationed behind the counter of the store next to the cash register. The complainant Jeffery Jessup and his companion George DiNisco entered the store at that time to purchase some beer. After removing a six-pack of beer from the cooler, Jessup and DiNisco went to the check-out counter to pay for the intended purchase. The versions of the episode conflict at this point.

The defendant testified that Jessup became angry upon learning the price of the beer and began using some profane language in front of the defendant's wife who had rung up the purchase. When asked to refrain from the use of such language, the defendant testified that Jessup picked up a bottle of beer from the six-pack on the counter, lifted it above his head and attempted to hit the defendant with it. Upon observing these actions, the defendant pulled out a gun from a bag under the cash register and shot Jessup in the chest.

Mr. Jessup testified at trial that while he was at the counter with his six-pack of beer, the defendant became very upset for some reason, that the defendant began waiving a round paper bag at Jessup trying to hit Jessup in the face, that the defendant put his hand in the bag which he was waving, that Jessup believed the defendant had a weapon in the bag and grabbed a bottle out of the six-pack on the counter to defend himself. At this point, Jessup testified that the defendant shot Jessup in the chest. Jessup admitted engaging in profanity at the counter but testified that he never had an opportunity to raise the bottle at the defendant. After the defendant had fired the gun, the defendant allegedly stated to Jessup, "I'm going to kill you." Thereafter, Jessup stated that he ran out of the store.

Mr. DiNisco, complainant's companion, testified that Jessup became angry at the counter when he realized what the price of the beer was, that DiNisco did not understand what Jessup said to the defendant and his wife, that thereafter he heard the defendant tell Jessup, "How dare you curse in front of a lady," indicating the defendant's wife at the cash register, that the defendant became more upset and attempted to hit Jessup in the head with a paper bag, screaming, "God damn you. I'll kill you," that thereafter the defendant attempted to strike Jessup with a paper bag four or five times, that the defendant thereafter opened the paper bag, pulled out a gun and shot Jessup in the chest. DiNisco testified that Jessup had armed himself with a bottle taken out of a six-pack on the counter prior to the defendant taking the gun out of the paper bag, but that Jessup had never raised the bottle above his waist level. DiNisco testified that thereafter Jessup ran out of the store with the defendant in pursuit screaming.

Based on the above testimony, the defendant requested the trial court to charge the jury in accord with Fla.Std. Jury Instr. (Crim.) 2.11(d) (para. 10) on self defense concerning the defendant's lack of a duty to retreat when unlawfully attacked in his own home or on his own premises. That standard jury instruction reads as follows:

"One unlawfully attacked in his own home or on his own premises has no duty to retreat and may lawfully stand his ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to himself or another."

The state objected to the above instruction on the ground that the instruction was only applicable to a home and not to business premises. The trial court sustained this objection and declined to give the instruction to the jury.

The court did charge the jury in accord with Fla.Std. Jury Instr. (Crim.) 2.11(d) (para. 9) as follows:

"If attacked by another, even though the attack is wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of using deadly force without increasing his own danger, but a person placed in a position of imminent danger, of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm."

The trial court also instructed the jury on other appropriate self defense instructions, none of which pertained to the duty to retreat.

The jury acquitted the defendant on the aggravated battery charge, but returned a verdict of guilty on the lesser included offense of simple battery (§ 784.03, Fla.Stat. (1979)). The jury also returned a verdict of guilty on the charge of possession of a firearm during the commission of a felony. The trial court entered a judgment upon both convictions, but subsequently, upon proper motion and hearing, arrested the judgment of conviction as to possession of a firearm during the commission of a felony. The trial court concluded that because the jury had acquitted the defendant of the underlying felony, to wit: aggravated battery, the conviction on the said firearm charge was inconsistent with such acquittal.

The defendant appeals the conviction of simple battery. The state cross-appeals the arrest of judgment on the firearm conviction.

II

It is the established law of this state that a person may use deadly force (i. e., "force which is likely to cause death or great bodily harm," § 776.06, Fla.Stat. (1979)) to repel an unlawful attack upon himself if "he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself . . .." § 776.012 Fla.Stat. (1979). Moreover, Florida, in accord with a strong minority of jurisdictions throughout the country, has imposed an additional requirement that the defender against such a violent attack has a duty to avoid the difficulty and retreat from the affray, before using deadly force, if he can do so consistent with his own safety without exposing himself to death or great bodily harm. ¹ The policy reason behind this retreat rule is to insure more fully that human life will not be taken by a person who is unlawfully attacked except as a last resort to save himself from imminent death or great bodily harm. Pell v. State, 97 Fla. 650, 665, 122 So. 110, 116 (1929); Linsley v. State, 88 Fla. 135, 101 So. 273, 275 (1924) (court syllabus no. 1); Doke v. State, 71 Fla. 633, 71 So. 917, 918 (1916) (court syllabus no. 1); Owens v. State, 64 Fla. 383, 60 So. 340 (1912) (court syllabus no. 2); King v. State, 54 Fla. 47, 44 So. 941, 942 (1907) (court syllabus no. 1); Danford v. State, 53 Fla. 4, 43 So. 593 (1907) (court syllabus no. 1); W. LaFave & A. Scott, Jr., Criminal Law 395-396 (1972); Perkins on Criminal Law, 1005-1012 (2d ed. 1969).

An exception to the general duty to retreat before using deadly force in self defense has long been recognized in this state. The Florida Supreme Court in Danford v. State, 53 Fla. 4, 13, 19, 43 So. 593, 596-597, 598 (1907), states that exception as follows:

(A) man violently assaulted in his own house, or on his premises near his house, is not obliged to retreat, but may stand his ground and use such force as may appear to him as a cautious and prudent man to be necessary to save his life or to save himself from great bodily harm. (citation omitted). . . .

The doctrine that a man assaulted on his own premises is under no duty to retreat, but may stand his ground and resist the assault with whatever force may be necessary, even to the taking of life, has its origin in the common-law theory that a man's house was his castle. (citation omitted). This doctrine has been by some courts extended to the premises immediately adjoining the dwelling house, and other buildings, such as an office or place of business.

Indeed, the prevailing rule throughout the country among those jurisdictions which, like Florida, have adopted a general duty to retreat doctrine is that a defendant is under no duty to retreat prior to using deadly force in self defense when violently attacked in his home or business premises, which includes inter alia his place of employment while lawfully engaged in his occupation. Annot., 41 A.L.R.3d 584, 589-602 (1972); Perkins on Criminal Law 1009-1012 (2d ed. 1969). We adopt this prevailing rule as the law in this state. In our view, business or employment premises should enjoy the same sanctity as a home for...