State v. Moore

• Decision Date: 02 March 2022
• Docket Number: 3D21-273
• Citation: 337 So.3d 876
• Parties: The STATE of Florida, Appellant, v. Gary Charles MOORE, II, Appellee.
• Court: Florida District Court of Appeals

337 So.3d 876

The STATE of Florida, Appellant,

v.Gary Charles MOORE, II, Appellee.

No. 3D21-273

District Court of Appeal of Florida, Third District.

Opinion filed March 2, 2022

Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellee.

Before EMAS, GORDO and LOBREE, JJ.

EMAS, J.

I. INTRODUCTION

The State appeals from an order granting the motion of defendant, Gary Charles Moore, II, to dismiss criminal charges against him based upon self-defense immunity conferred by Florida's Stand Your Ground law, section 776.032, Florida Statutes (2016).

We reverse and remand the cause for reinstatement of the criminal charges, because defendant's motion failed to meet the threshold pleading requirement for raising a prima facie claim of self-defense immunity.

II. FACTS AND PROCEDURAL BACKGROUND

The State charged Moore by information with second-degree murder of Jonathan Stevens, alleging Moore shot and killed Stevens with a shotgun on December 23, 2016. On August 22, 2018, Moore filed a motion entitled "Motion to Dismiss Based on Statutory Immunity" alleging that Moore acted in self-defense in shooting and killing Stevens. Section 776.032, entitled "Immunity from criminal prosecution and civil action for justifiable use or threatened use of force" provides in pertinent part:

(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution .... As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

* * *

(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

(Emphasis added).

Given the central importance of the factual allegations asserted in support of the immunity claim, the fifteen numbered paragraphs contained in Moore's motion are set forth below. Emphasis has been added to those portions most relevant to a determination of whether Moore has alleged sufficient facts to raise a prima facie claim of self-defense immunity pursuant to section 776.032(4), thereby shifting the burden to the State to establish, by clear and convincing evidence, that Moore is not entitled to self-defense immunity from criminal prosecution for shooting and killing Jonathan Stevens.

The Allegations in Defendant's Motion to Dismiss

1. The Defendant is charged by Information with Second Degree Murder with a Firearm.

2. On December 23, 2016, the Defendant called 911 and reported that he had shot Jonathan Stevens with a shotgun. The Defendant provided his full name and address, and he requested that medics respond. The Defendant further reported to the 911-operator that Stevens had threatened him.

3. When the police arrived, after initially responding to the wrong location, they located the Defendant on scene. The Defendant informed the responding deputies that he was the one who called the police.

4. The police also located Stevens lying unconscious on the ground with a single shotgun wound to his abdomen . Despite life-saving efforts on scene, Stevens succumbed to his injuries. (The medical examiner testified in his deposition that Stevens most likely did not live more than two minutes after he was shot.)

5. The shooting occurred at 10660 7th Ave. Gulf, Marathon, Florida, where there is located a two-bedroom, single family home owned and occupied by Robert McElroy. (McElroy was not home at the time of the shooting, having gone to visit family for the holidays.) Several months prior to the shooting, the Defendant moved into the home where he occupied one of the bedrooms and paid rent to McElroy. (The Defendant and McElroy had known each other approximately fifteen years.)

6. Shortly after the Defendant moved in with McElroy, Stevens [the decedent] moved into a travel trailer situated on the property, which was also owned by McElroy. The Defendant facilitated this arrangement at the request of a mutual friend.

7. Between the house and the travel trailer, there was an area in the front yard, including a picnic table, where the men would often congregate to eat, drink and otherwise enjoy the outdoors. While Stevens had been inside the [Defendant's] house on a couple of occasions as a guest, his tenancy in the travel trailer did not grant him general access to the interior of the house.

8. When the police arrived following Defendant's 911 call, the Defendant had two cuts on his face that were bleeding. Paramedics cleaned the cuts, and the Defendant was advised he might need stitches. The Defendant informed the police that Stevens had caused the cuts. This was not the first act of violence perpetrated by Stevens upon the Defendant.

9. On or about December 7, 2016, about two weeks prior to the shooting, an incident occurred at the house where Stevens unexpectedly punched the Defendant, knocking him out cold. This was precipitated by Stevens extinguishing his cigarette in a bowl of chili offered to him by the Defendant, which caused the Defendant to curse at Stevens. Stevens then punched the Defendant, knocking him out for 2-3 minutes. This incident was witnessed by McElroy, and, to some extent, by McElroy's guest, Catherine Bell. Following the incident, McElroy asked Stevens to move out by the end of the year.

10. Robert Dosh, who was then a detective, responded to the scene of the shooting to investigate. This was the first homicide case he worked as the lead detective. Other than Moore and Stevens, no witnesses to the shooting were ever located. Several drops of blood were located by the doorway to the house, and a shotgun shell was located under a truck parked close to the front porch of the house. (Upon their arrival, the police located the shotgun leaning up against the house near the front door. The shotgun was unloaded and the muzzle was pointing upward.) Stevens was lying within close proximity to the front porch. Dosh concluded that the Defendant was on his front porch when the shotgun was fired.

11. The police obtained no information as to what occurred immediately prior to the shooting. The police have no information as to how long the Defendant was on the property prior to the shooting. The police have no information as to whether Stevens was moving toward the Defendant, or otherwise threatening him, prior to the shooting. The police have no information to refute that Stevens caused the cuts on Defendant's face, nor do the police have any information as to how the cuts were caused. The police developed no evidence that Defendant's use of deadly force was unlawful.

12. The Defendant told at least one deputy on scene that he acted in self-defense. [Deputy] Dosh has testified that he has no evidence that the shooting did not occur in self-defense:

Q: Do you have any evidence that this shooting did not occur in self- defense?

A: No.

(Arthur Hearing, p.70, lines 13-15).

Dosh has further testified that he does not exclude the possibility that the shooting occurred in self-defense:

Q: [A]re you saying then that you don't exclude the possibility that this was self-defense?

A. I'm not excluding anything.

(Dosh deposition, p.107, lines 2-4).

13. Prior to making an arrest, Dosh conferred with ASA Val Winter. According to Dosh, he and ASA Winter did not discuss the possibility that the shooting was the result of lawful self-defense.

14. Stevens was larger and more physically capable than the Defendant. Stevens was 6'2" and weighed 210 lbs. (Medical Examiner's report, p.1.) The Defendant is 5'7" and weighs 195 lbs. Furthermore, the Defendant has had multiple back surgeries, the result of which is permanent rods and screws in his back and a 25% permanent impairment rating in his lumbar spine.

15. According to the toxicology report, Stevens’ blood alcohol level was twice the legal limit (.16). Stevens also tested positive for cannabinoids in his urine, and cannabis was located in Stevens’ trailer.

The motion was signed by Moore's attorney, but not by Moore. The motion was not sworn to by Moore, his counsel, or anyone else.¹ The State objected and moved to strike the motion because it failed to contain sufficient allegations to meet the threshold requirement for raising a prima facie claim of immunity under section 776.032(4) (providing: "[O]nce a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).") The trial court denied the State's motion to strike based on legal insufficiency and proceeded to an evidentiary hearing on the motion, ultimately granting Moore's motion and dismissing the charges. This appeal follows.

III. DISCUSSION AND ANALYSIS

A determination of the legal sufficiency of a motion to dismiss is a question of law, which we review de novo. Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006) ; State v. Espinoza, 264 So. 3d 1055 (Fla. 3d DCA 2019). The first step in seeking dismissal based on self-defense immunity requires that "a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant." § 776.032(4), Fla. Stat. Once a defendant has met this threshold, "the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution." Id. Our sister court in Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018), addressed the significance of the statutory phrase requiring a defendant to "raise" a "prima facie claim of self-defense immunity":

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