State v. Wagner
| Decision Date | 30 November 2022 |
| Docket Number | 1D21-3802 |
| Parties | State of Florida, Appellant, v. Kristen Wagner, Appellee. |
| Court | Court of Appeal of Florida (US) |
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Okaloosa County. Michael A Flowers, Judge.
Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief, and Daren L. Shippy, Assistant Attorney General, Tallahassee Anne N. Izzo, Assistant State Attorney, Shalimar, for Appellant.
Elliot H. Scherker and Katherine M. Clemente of Greenberg Traurig P.A., Miami, for Appellee.
For acts Appellee committed in 2014, a jury convicted her of the attempted first-degree murder of her then-husband, and discharge of a firearm resulting in his great bodily harm. We affirmed her judgment and sentence. Wagner v. State (Wagner I), 240 So.3d 795, 796-98 (Fla. 1st DCA 2017) (). The case comes to us again on the State's appeal from an order granting Appellee's postconviction motion for new trial under Florida Rule of Criminal Procedure 3.850, in which she alleged ineffective assistance of trial counsel. We reverse.
Facts.
On the night in question, Appellee was drinking. She and her husband got into an argument that started in the living room and moved to the bedroom. As the argument escalated, he took his pillow and a blanket back to the living room couch. Appellee took her gun, a Ruger .380-caliber semi-automatic pistol with a laser sight, out of a safe in the bedroom, and put it in her pocket, with a fully loaded magazine, a round chambered and the safety off. She dressed to leave, but he convinced her to stay because she had been drinking.
The couple continued fighting in the bedroom. The incident became a physical fight that the husband testified Appellee started by hitting him repeatedly while screaming at him. She said he choked her, pushed her down, and slapped her; he denied much of that. The evidence included pictures of red marks on Appellee's arm and neck. He admitted he threw her cell phone against the wall and the phone broke.
During the fighting, Appellee did not pull the gun out of her pocket or use it. Her husband did not know she had the gun on her. He was never armed that night and there was evidence that there were no other guns in the house.
Appellee left the house, still armed, and walked to a house across the cul-de-sac. Her husband stepped outside the front door and watched her. She knocked on the neighbors' door and waited a while, but they did not answer. They testified that they heard a knock but were slow coming to the door because they had already gone to bed. By the time they got to their door she was walking away, and she turned around and looked at them but did not go back or say anything to them. Though there were many other houses close to hers, she did not go to any of them. She walked back across the street.
Appellee checked the door of her car parked in the driveway. It was locked. Appellee said her husband was outside the front door in what she described as an aggressive posture. The front door was inset to form a vestibule or small porch. The light over the door was on. Appellee was in a grassy area or flower bed about 30 feet away from the door. She demanded her car keys, and said her husband told her to come and get them. She testified that she pulled out the gun at this point, held it with both hands, and pointed it at her husband. He went back in the house, got the keys, and tossed them to her from the front door. They landed a few feet from her. Her husband turned around, went back in the house, and shut the glass storm door behind him, and walked away, leaving the wooden front door open.
Appellee has steadfastly maintained, and testified at trial, that when she bent down to pick up the keys with her left hand, the gun in her right hand fired accidentally. In contrast, the neighbors testified that they saw her pick up the keys first, and that the gun fired after that.
Appellee testified that the gun had jammed once before. Ballistics testing after the shooting indicated that the gun was working normally and had a 6%-to-7-pound trigger pull, making it about 40% harder to fire it than to open a soda can.
The bullet shattered the closed glass storm door and struck Appellee's husband in the back as he was walking away, farther into the house. It seriously wounded him. Appellee walked to the car and put the gun in the center console. She started the car and backed up a few feet, then stopped, according to her testimony. The neighbors testified that she actually left the driveway and drove down the road a short distance before driving back.
After parking the car, Appellee went back in the house, but did not search for her husband or call 911. Her husband was locked in his son's bedroom while the son was calling 911 and applying pressure to the gunshot wound. Appellee rummaged around in the couple's bedroom searching for her wallet, ultimately taking her husband's phone, wallet, and work badge. She drove west down Interstate 10 from Crestview to Holt, then doubled back through town past the courthouse, ending up behind the Wal-Mart, where police located her about an hour and forty-five minutes after the shooting. She did not stop and ask for help, and did not call 911 at any time although she had her husband's phone with her. She used the phone only to call her ex-husband, who did not answer.
At trial, Appellee attempted to assert a battered-spousesyndrome (BSS) defense, but the trial court excluded it for lack of supporting evidence. She proceeded on theories of self-defense and accidental discharge. The trial court instructed the jury on justifiable attempted homicide, excusable attempted homicide, justifiable use of deadly force, and self-defense. The court did not instruct the jury on the "no duty to retreat" portion of Florida's Stand Your Ground law. See § 776.012(2), Fla. Stat. (2014).
The jury rejected Appellee's defenses and found her guilty of attempted first-degree murder with discharge of a firearm. The trial court sentenced her to 35 years in prison with a 25-year mandatory minimum for the firearm charge. Wagner I, 240 So.3d at 796-97.
On direct appeal, Appellee argued that the trial court erred in refusing to admit BSS evidence. We rejected her argument and affirmed her judgment and sentence, reasoning that her defense of accidental discharge was fundamentally inconsistent with BSS. Id. at 796-98.
Among other postconviction proceedings, Appellee filed a motion under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of trial counsel. 1[] She asserted that her trial counsel was ineffective for failing to request a "no duty to retreat" instruction from Florida's Stand Your Ground law. The omitted statutory language was as follows:
A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
§ 776.012(2), Fla. Stat. After an evidentiary hearing, the trial court granted this postconviction motion in an unelaborated order that we now reverse.
Applying the Strickland Standards.
A party asserting ineffective assistance of trial counsel has the burden of establishing both deficient attorney performance and prejudice. Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). The deficiency prong asks whether counsel performed "outside the wide range of reasonable professional assistance." Betts v. State, 792 So.2d 589, 590 (Fla. 1st DCA 2001). The prejudice prong requires the claimant to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"; i.e., "a probability sufficient to undermine confidence in the outcome." Hunter v. State, 817 So.2d 786, 794 (Fla. 2002).
Our standard of review is de novo in applying the law to the facts. See Sochor v. State, 883 So.2d 766, 772 (Fla. 2004). When a trial court makes findings of fact in resolving a postconviction motion, we defer to findings that have support in competent, substantial evidence. Cummings-El v. State, 863 So.2d 246, 250 (Fla. 2003) (quoting Porter v. State, 788 So.2d 917, 923 (Fla. 2001)).
Although Appellee at times both below and before this Court has argued broadly that trial counsel was ineffective as defined under Strickland because the jury was not instructed on "self-defense," that is not entirely accurate. More precisely, the jury instructions omitted only the last sentence of the Stand Your Ground statute, quoted above, which eliminates any duty to retreat under certain circumstances. Nevertheless, the trial court robustly instructed the jury on self-defense within the instructions on justifiable use of deadly force, again with respect to excusable homicide, and again under justifiable attempted homicide. The jury was instructed as follows:
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