Smiley v. State, TT-357

Decision Date10 March 1981
Docket NumberNo. TT-357,TT-357
PartiesBrenda C. SMILEY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Brian T. Hayes, Monticello, for appellant.

Jim Smith, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., and Dan McKeever, Asst. State Atty., for appellee.

SHIVERS, Judge.

Defendant appeals from her conviction and sentence for attempted first degree murder. We affirm.

From the conviction and sentence, defendant raises the following points on appeal:

(1) Whether the trial court erred in refusing to instruct the jury on the elements of self defense?

(2) Whether defendant's motion for mistrial should have been granted because of improper comments by the State during final argument?

(3) Whether there was error in allowing the jury to consider proof of attempted murder with a "firearm" where the Information alleged only the use of a .22 caliber pistol?

(4) Whether the imposition of the mandatory minimum sentence under Section 775.087, Fla.Stat., was lawful when the Information did not charge the commission of a crime with a firearm?

Defendant, Brenda C. Smiley, was charged by Information with attempted first degree murder after she shot her husband, John Smiley, with a .22 caliber pistol four times in the early morning hours of July 6, 1979, at their home while he was asleep. Other than the defendant and her husband, there were no witnesses to the shooting. Although the defendant initially reported to the police that her husband had been shot by a burglar who had also assaulted her, she later admitted through her counsel at trial that she shot her husband and gave a false report to the police. The defendant did not testify at trial. Instead, she introduced evidence that the parties had a "stormy marriage," which included bouts of "overdrinking" by her husband and previous threats and beatings by John Smiley against the defendant. After testifying that the defendant shot him several times with his .22 caliber pistol while he was sleeping, John Smiley denied being an alcoholic and further denied either threatening or beating the defendant over the course of the marriage. He testified that immediately prior to the shooting, the parties did not have an argument and he did not threaten the defendant. Defendant was subsequently convicted of attempted first degree murder with a firearm and sentenced to seven years in prison.

First, the defendant contends that the trial court erred in refusing to instruct the jury on the elements of self-defense although the jury was instructed on justifiable homicide and use of deadly force. She argues that there was sufficient evidence to justify the self-defense instruction in light of testimony concerning the violent character of John Smiley and his prior assaults and threats upon the defendant.

We conclude that the trial court did not commit reversible error in refusing to instruct the jury on the elements of self-defense. A person is justified in the use of deadly force to defend himself only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. Section 776.012, Fla.Stat.; State v. Coles, 91 So.2d 200 (Fla.1956). When considering the matter of threats in relation to proof of self-defense, there must be some evidence of an overt act expressing an intention to immediately execute the threats so that the person threatened has a reasonable belief that he will lose his life or suffer serious bodily harm if he does not immediately take the life of his adversary. Delagado v. State, 361 So.2d 726 (Fla. 4th DCA 1978); Coles, supra. However, in order to be entitled to instruction on self-defense, there must be some evidence that the defendant acted out of self-defense.

If any evidence of a substantial character is adduced, either upon cross-examination of State witnesses or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury's function to determine that issue. Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1973).

In the present case, there is no evidence in the record that defendant shot her husband in self-defense. The defendant and her husband were the only witnesses to the shooting and the defendant did not testify. The uncontradicted testimony at trial was that the defendant began shooting her husband while he was sleeping in bed. Two of the four bullets that struck John Smiley entered his body in the back of the head and shoulder. Although there was evidence that the parties had a stormy marriage and conflicting evidence as to threats by John Smiley against the defendant in the past, there was no evidence of an argument or threats on the night of the shooting and no evidence that the defendant was threatened with imminent death or serious bodily harm by her sleeping husband at the time she shot him.

As to the second point on appeal, the...

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22 cases
  • Lige v. Fla. Dep't of Corr.
    • United States
    • U.S. District Court — Northern District of Florida
    • 22 Octubre 2015
    ...2d 1149 (Fla. 1980). Additionally, prosecutorial comment upon a general lack of defense evidence is permissible. See Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981). When the prosecutor voices a personal opinion but indicates this belief is based on evidence in the record, the comment i......
  • Crenshaw v. Jones, Case No.: 3:15cv253/LAC/EMT
    • United States
    • U.S. District Court — Northern District of Florida
    • 22 Noviembre 2016
    ...2d 1149 (Fla. 1980). Additionally, prosecutorial comment upon a general lack of defense evidence is permissible. See Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981). Attempts to bolster a witness by vouching for his or her credibility are improper "if the jury could reasonably believe t......
  • McDavid v. Fla. Dep't of Corr.
    • United States
    • U.S. District Court — Northern District of Florida
    • 18 Mayo 2017
    ...2d 1149 (Fla. 1980). Additionally, prosecutorial comment upon a general lack of defense evidence is permissible. See Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981). Attempts to bolster a witness by vouching for his or her credibility are improper "if the jury could reasonably believe t......
  • Mitchell v. Fla. Dep't of Corr. Sec'y
    • United States
    • U.S. District Court — Northern District of Florida
    • 26 Julio 2017
    ...2d 1149 (Fla. 1980). Additionally, prosecutorial comment upon a general lack of defense evidence is permissible. See Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981). However, it should be noted that "[t]he prohibition against vouching does not forbid prosecutors from arguing credibility......
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