Valdes v. State, 3D19-0570

• Court: Court of Appeal of Florida (US)
• Writing for the Court: LOBREE, J.
• Citation: 320 So.3d 235
• Parties: Anthony Joseph VALDES, Appellant, v. The STATE of Florida, Appellee.
• Docket Number: No. 3D19-0570,3D19-0570
• Decision Date: 14 April 2021

320 So.3d 235

Anthony Joseph VALDES, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D19-0570

District Court of Appeal of Florida, Third District.

Opinion filed April 14, 2021

Carlos J. Martinez, Public Defender, and Manuel Alvarez, Miami, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Ivy R. Ginsberg, Aventura, Assistant Attorney General, for appellee.

Before EMAS, C.J., and SCALES and LOBREE, JJ.

ON MOTION FOR REHEARING

LOBREE, J.

On December 18, 2019, we affirmed the judgment of conviction and sentence of Anthony Valdes ("Valdes") for aggravated battery with a firearm, a lesser included offense of the charge of attempted second-degree murder with a firearm. Prior to his trial, Valdes moved to dismiss the information based on section 776.032, Florida Statutes (2017), Florida's "Stand Your Ground" law. In affirming Valdes’ judgment, we cited our decision in Love v. State, 247 So. 3d 609 (Fla. 3d DCA 2018) (" Love I"), which the supreme court quashed the following

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day in Love v. State, 286 So. 3d 177 (Fla. 2019) (" Love II").

We now withdraw our December 18, 2019 decision and substitute this opinion in its stead. Specifically, we write to address Valdes’ contention he is entitled to a new Stand Your Ground hearing because the trial court failed to apply the correct burden when considering his self-defense immunity claim. This issue also requires us to determine whether this error was rendered harmless or cured by Valdes’ subsequent presentation of the self-defense claim to the jury at trial, which the state overcame by meeting the trial burden of proof beyond a reasonable doubt. For the reasons articulated below, we hold that Valdes is not entitled to a new Stand Your Ground hearing under the facts of this case, and certify conflict with Nelson v. State, 295 So. 3d 307 (Fla. 2d DCA 2020).

Facts and Procedural Background

The underlying case arose from a physical altercation in October 2015 between Valdes and his friend, Ray Anthony Alvarez, Jr. ("Alvarez"). During the altercation, Valdes shot Alvarez twice (first in the back and then in the thigh), leaving him paralyzed after the first shot. Valdes claimed self-defense. At the time, the burden was on the defendant to show entitlement to self-defense immunity at a pretrial immunity hearing by a preponderance of the evidence. See Maddox v. State, 288 So. 3d 1223, 1224 (Fla. 5th DCA 2019) (citing Bretherick v. State, 170 So. 3d 766, 779 (Fla. 2015) ). Effective June 9, 2017, the legislature amended the Stand Your Ground statute by placing the burden on the state to rebut the defendant's prima facie claim of self-defense immunity by clear and convincing evidence. See § 776.032(4), Fla. Stat. (2017).

In April 2018, Valdes moved to dismiss the information on the ground he was immune from criminal prosecution pursuant to the amended statute. The trial court conducted the evidentiary hearing in June and July 2018. At the outset of the hearing, the court acknowledged that the issue of retroactivity of the amendment to section 776.032(4) was then under review by the Florida Supreme Court. Bound by this court's decision in Love I, however, the trial court found the amended statute inapplicable to Valdes’ claim, and stated it would consider Valdes’ entitlement to immunity based on the pre-amendment standard. The court then heard testimony from Valdes, his girlfriend and mother of their three children, Alvarez, Valdes’ neighbor, and responding law enforcement officers.

Valdes testified that in the evening of October 14, 2015, Alvarez visited him at his house, where he lived with his girlfriend and their two baby daughters. They had about $500 in cash at home, which went missing shortly after Alvarez's arrival. After Alvarez denied taking the money, Valdes, his girlfriend, and Alvarez got into a verbal altercation. Valdes then went to his bedroom to retrieve his .32 caliber handgun, which he put in his pocket. Alvarez left the house shortly thereafter, and Valdes followed him outside. While arguing about the money in the yard, Alvarez struck Valdes on the side of his head. As Alvarez was attempting to leave, Valdes pulled the back of his shirt. Alvarez turned around, grabbed Valdes by his head, and put his arm around his neck. Valdes tried to defend himself, but could not do so properly, as his left hand was injured as a result of an accident (severing his thumb) he suffered earlier that day. Not being able to "break free," Valdes reached into his pocket, took out his gun, and discharged the gun from behind his back. Although he was not aiming at Alvarez, the bullet hit him, and Alvarez immediately fell to the ground. While on the ground, Alvarez told Valdes he could not feel his

320 So.3d 238

legs. However, as Alvarez started crawling across the grass and shouting at Valdes, Valdes shot Alvarez in the back of his thigh "to neutralize th[e] threat," fearing that Alvarez would get up and attack him again. Valdes then located the stolen money in Alvarez's right shoe. Valdes reenacted the fight and the shooting at the hearing.

Valdes’ account was partially corroborated by his girlfriend. She heard the argument between Valdes and Alvarez in the yard. After she observed Alvarez throw the first punch, she returned to the house to call the police. While inside, she heard a gunshot. When she came back outside, she saw Alvarez "pushing himself off the ground" and making threats toward Valdes. As Alvarez was trying to get up, Valdes shot him in the back of his leg.

Alvarez testified differently. He admitted he stole some cash from Valdes and his girlfriend, which he hid in his shoe, but claimed he returned the money while still at their house, after Valdes pointed the gun at him. Alvarez then left the house, and, as he was walking to his bicycle, which he had left in the yard, Valdes shot him in the back, paralyzing him from the waist down. At the time, Valdes was about ten to twelve feet behind him. Alvarez said that he immediately lost feeling in his legs and told Valdes, "You ... paralyzed me." He pleaded with Valdes to call 911, but instead Valdes yelled at his girlfriend that he shot Alvarez and asked her to bring him a knife. While Alvarez remained lying on the ground, Valdes walked around him for about a minute, and then shot him in the leg. He then picked up the bicycle and threw it on the top of him.

Valdes’ neighbor was walking her dog when she heard an argument about money coming from Valdes’ yard. During the argument, she heard someone say, "[d]on't touch my hand," and "[t]he hand is already messed up." Later, when she finished walking the dog and was sitting in her patio, she heard a gunshot. When she stood up to see what happened, she saw Valdes shoot Alvarez the second time.

Law enforcement officers arrived at the scene to find Alvarez lying on his stomach in the grass. He had a large blood spot on the back of his shirt, was not moving, and there was a bicycle on top of him. At the scene, the officers recovered Valdes’ gun, two bullet casings, and a knife, which was found stabbed into the ground next to Alvarez. The officers observed dried blood on Valdes’ head and several cuts on his arm. After Valdes waived his Miranda ¹ rights, the officers conducted several interviews with him about the events of that evening.

The trial court found that Valdes was not immune from prosecution, concluding that he "did not possess a reasonable belief that his use of deadly force against [Alvarez] was necessary to prevent imminent death or great bodily harm to himself, [his girlfriend,] or their children." While the court reiterated that it was applying the pre-amendment burden of proof, the court expressed the view the case was not even a close one. The court did not find Valdes’ testimony and his version of what transpired during the altercation to be credible or supported by the evidence. The court found that the shooting during the physical altercation was not justified, as Valdes’ prior injury did not incapacitate him to the extent that he had no alternative but to shoot Alvarez. As to Valdes’ second shot, the court specifically observed:

You know, you shot a man in the back and, when he's on the ground, you shoot him again, and somehow the presentation

320 So.3d 239

is that ... you had a reasonable belief that the use of such force was necessary to prevent imminent death or great bodily harm. The Court finds that's just not supported by the evidence.

Following the denial of the motion to dismiss, the case proceeded to a jury trial. Valdes did not testify in his defense, but his self-defense claim was presented to the jury through his recorded interviews, as well as a video depicting the reenactment of the shooting, which were played to the jury. Valdes’ recollection of the events during the interviews was essentially the same as his Stand Your Ground testimony. Valdes’ girlfriend...