State v. Chambers

• Citation: 890 So.2d 456
• Decision Date: 29 December 2004
• Docket Number: No. 2D03-2058.,2D03-2058.
• Parties: STATE of Florida, Appellant, v. Herman CHAMBERS, Appellee.
• Court: Court of Appeal of Florida (US)

890 So.2d 456

STATE of Florida, Appellant, v. Herman CHAMBERS, Appellee.

No. 2D03-2058.

District Court of Appeal of Florida, Second District.

December 29, 2004.

Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.

NORTHCUTT, Judge.

Herman Chambers was charged with attempted first-degree murder and with being a felon in possession of a firearm, stemming from the same incident. After Chambers was acquitted of the attempted murder charge, the circuit court dismissed the felon-in-possession count, holding that the State was collaterally estopped to proceed. We reverse. The charges were severed, and Chambers was first tried on the attempted murder count. When testifying in his own behalf, he admitted that he shot the victim, Stephen Johnson, but he claimed that he did so in self-defense. The jury acquitted him. Thereafter, Chambers moved to dismiss the felon-in-possession charge. First, he maintained that the prosecution was barred by collateral estoppel because the jury's finding that he had acted in self-defense also established his necessity defense to the felon-in-possession charge. Second, Chambers cited Florida Rule of Criminal Procedure 3.190(c)(4) and argued that the undisputed facts in his motion proved the defense of necessity. The court dismissed the charge based on collateral estoppel.

"When an issue of ultimate fact has once been determined by a valid and final judgment in a criminal case it cannot be again litigated between the same parties." State v. Short, 513 So.2d 679, 681 (Fla. 2d DCA 1987) (citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). "[W]hen a verdict of not guilty is rendered, the fact sought to be foreclosed must necessarily have been determined in the defendant's favor...." Id. In this case, the State argues that the court erred in dismissing the felon-in-possession charge because the question of whether Chambers knowingly possessed a firearm by preconceived design was not necessarily decided by the jury's verdict on the attempted murder charge. We agree.

Chambers was charged under section 790.23(1), Florida Statutes (2000), which makes it a second-degree felony for a convicted felon to own a firearm or to have one in his care, custody, possession, or control. Still, "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." Marrero v. State, 516 So.2d 1052, 1054 (Fla. 3d DCA 1987). The Third District has described this "necessity" or "justification" defense to a violation of section 790.23 as follows:

(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 [firearm]; (4) the [firearm] must be made available to the defendant without preconceived design[;] and (5) the defendant must give up possession of the [firearm] as soon as necessity or apparent necessity ends.

Marrero, 516 So.2d at 1055 (quoting State v. Crawford, 308 Md. 683, 521 A.2d 1193, 1200-01 (1987)); see also Smith v. State, 729 So.2d 496 (Fla. 5th DCA 1999)

(setting forth same necessity instruction to charge of possession of a firearm by convicted felon). As recognized by Marrero, a "defendant may very well be excused from his assault upon his assailant by reason of ... self-defense without being excused from his possession of the firearm, because he ... possessed it beforehand." Marrero, 516 So.2d at 1054 n. 3; see also State v. Mateen, 678 So.2d 449, 451 (Fla. 2d DCA 1996) (noting that collateral estoppel did not bar prosecution for possession of firearm charge after acquittal on murder, attempted murder, and attempted armed robbery charges when defendant failed to carry burden of showing that the "not guilty verdict was based on the jury's determination that he did not have a firearm").

The record of the attempted murder trial reveals that Chambers argued with members of the Johnson family earlier in the day and was chased from their house. When he arrived home later that evening, several members of this family were there. Chambers was again threatened. He reached under the seat of his truck, seeking some sort of weapon...