State v. Bobbitt, II-467

• Citation: 389 So.2d 1094
• Decision Date: 07 November 1980
• Docket Number: No. II-467,II-467
• Parties: STATE of Florida, Appellant, v. Elsie Virginia BOBBITT, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1094

389 So.2d 1094

STATE of Florida, Appellant, v. Elsie Virginia BOBBITT, Appellee.

No. II-467.

District Court of Appeal of Florida, First District.

Nov. 7, 1980.

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

Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellee.

BOOTH, Judge.

This cause is before us on appeal from the order of the trial court granting defendant a new trial following conviction of manslaughter in the death of defendant's husband. The basis of the trial court's award of a new trial was the court's failure to instruct, over objection, that defendant had no duty to retreat from her home before justifiably acting in self-defense, as set forth in Florida Standard Jury Instructions in Criminal Cases 2.11(d):

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 trial court gave the Standard Jury Instruction on duty to retreat prior to use of deadly force, ¹ but denied the requested charge, supra, on the exception to duty to retreat, sometimes known as the "castle doctrine." The State contends that such an instruction is inapplicable where, as here, the victim is not an intruder. Defendant argues the contrary position and further contends that the trial court should have granted motion for a judgment of acquittal at the close of all the evidence.

Evidence for the State established that Mr. Bobbitt died from a single bullet wound to the chest fired at a distance of greater than 12 to 18 inches; that the weapon was a .22 caliber revolver found in the kitchen in the home; that the deceased's blood alcohol at the time of death was sufficient to cause mental confusion and loss of critical judgment; and that there were liver changes probably due to alcoholism. Further evidence was that the gun was purchased by Mr. Bobbitt and given to defendant some three years previously for protection, as she attended night courses. Defendant had not fired it nor any other gun prior to the events in question.

The State also introduced the testimony of 10-year-old Tracy Bobbitt, daughter of the parties, who, together with her baby brother, were present in the house. Tracy was in the kitchen but could see into the den when Mr. Bobbitt pushed defendant into the door, hurting her face and leg. Tracy testified that, "by turning and twisting," the defendant was able to back into the kitchen and away from the deceased. There, she pulled a gun out of her pocketbook, which she had carried on her shoulder since entering the house, and, as the deceased came toward her, shot him when he was six to seven feet away.

Further evidence established that the deceased habitually became drunk and beat his wife and children. The history of abuse includes one incident where the deceased chased defendant around the house with a hammer. A family friend testified to having seen bruises on Mrs. Bobbitt on several occasions. A neighbor who was present in the yard of the house immediately prior to the shooting, testified that when the deceased came home, he had been drinking and that he threatened Mrs. Bobbitt while they were in the yard in such a manner that the neighbor felt impelled to leave and call the police. ²

The officer who arrived at the scene after the shooting observed that the defendant was limping and had a swelling on the left temple at about the cheekbone. Subsequent medical examination revealed a fractured left cheekbone, torn nerves in the upper jaw and injuries to her leg causing a limp. Medical testimony was that injuries to the face were of the type caused by a fist or a baseball bat to the cheekbone.

Initially, we must determine whether the jury instruction on self-defense was properly limited to the duty to retreat omitting the instruction as to the "castle doctrine" exception. In this regard, we agree with the trial court's holding that the law did not require Mrs. Bobbitt to retreat from her home prior to acting in self-defense and that the jury should have been so instructed.

The Florida Supreme Court in Hedges v. State, 172 So.2d 824 (Fla.1965), expressly rejected the State's argument "that the home rule exception to the requirement (of retreat) is not available when, as in that case, the attacker does not enter as a trespasser." In Hedges, the trial court gave a self-defense instruction requiring the accused "to use all reasonable means within his power and consistent with his own safety to avoid the danger and avert the necessity of taking human life," but failed to instruct that there is no duty to retreat in one's own home. In reversing the conviction of manslaughter, the Florida Supreme Court held (172 So.2d at 826) The quoted language (of self defense instruction) placed upon the accused the duty to use all reasonable means consistent with her own safety to avoid the danger and avert the necessity of taking human life. To the lay mind this well could be construed to mean the duty to run or to get out of the way. There is no such duty when one is assaulted in his own home, despite the common law duty to "retreat to the wall" when one is attacked elsewhere. Pell v. State, 97 Fla. 650, 122 So. 110. While Pell involved a trespasser, it clearly states the rule to be that when one is violently assaulted in his own house or immediately surrounding premises, he is not obliged to retreat but may stand his ground and use such force as prudence and caution would dictate as necessary to avoid death or great bodily harm. When in his home he has "retreated to the wall." Pell further decides that such an instruction should be an element of the charge of self defense where the evidence supports it. Other courts have held that a man is under no duty to retreat when attacked in his own home. His home is his ultimate sanctuary.

The Supreme Court in Hedges cites State v. Grantham, 224 S.C. 41, 77 S.E.2d 291, 292 (1953), in support of its holding. In the Grantham case, the husband's conviction of murder in the death of his wife was reversed because the trial court erred in failing to instruct on the "privilege of non-retreat" in a case where the accused pleaded self-defense to an attack by the wife in the marital home. ³ We agree and hold, as do the majority of jurisdictions, that the castle doctrine or privilege of non-retreat in the home applies regardless of whether co-occupants or intruders are involved. ⁴ As stated in Redondo v. State, 380 So.2d 1107, 1111 (Fla. 3d DCA 1980), cert. granted, Case No. 59,032 (Fla. September 8, 1980): "(O)ur normal solicitude for the life of the attacker is somewhat dampened when he chooses such historically protected premises on which to make his murderous assault."

Having determined that there was no duty to retreat from the house and, consequently, that any finding by the jury regarding a failure to retreat is irrelevant, we now consider whether, as a matter of law, the evidence supports the manslaughter conviction in light of appellee's plea of self-defense.

Appellee was justified in the use of deadly force only if she reasonably believed that such force was necessary to prevent imminent death or great bodily harm to herself. The test is whether a reasonably cautious and prudent person situated as she was would have believed, and did believe, that the use of such force was necessary to protect herself. She must have used all reasonable means within her power and consistent with her own safety to avoid the danger without the necessity of using deadly force. However, if she was unlawfully attacked in her own home, she had no duty to retreat from her home but, rather, could lawfully stand her ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to herself. See § 782.02, Fla.Stat. (1977); Hedges, supra; State v. Coles, 91 So.2d 200, 203 (Fla.1956); Stinson v. State, 245 So.2d 688 (Fla. 1st DCA 1971); Fla.Std.Jury Instr. (Crim.) 2.11(d).

Here, defendant's evidence as to self-defense was sufficient to generate reasonable doubt as to guilt. The Supreme Court, in Lane v. State, 44 Fla. 105, 32 So. 896, 899 (1902), held that a jury instruction requiring the defendant to prove self-defense "to the jury's satisfaction" was erroneous, since evidence raising a reasonable doubt was sufficient, holding: "(The instruction) imposes upon the defendant the duty of satisfying the jury that the defense was necessary. The jury need not be satisfied. If the evidence raises a reasonable doubt, it will be sufficient." The defendant who relies on self-defense has the burden of going forward with the evidence, but the ultimate burden of proving guilt beyond a reasonable doubt never shifts from the State. Thu...