Weaver v. State

• Citation: 220 So.2d 53
• Decision Date: 26 February 1969
• Docket Number: No. 68--236,68--236
• Parties: James E. WEAVER, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 53

220 So.2d 53

James E. WEAVER, Appellant, v. STATE of Florida, Appellee.

No. 68--236.

District Court of Appeal of Florida, Second District.

Feb. 26, 1969.

Rehearing Denied March 25, 1969.

Robert E. Jagger, Public Defender, and Joseph F. McDermott, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

McNULTY, Judge.

James E. Weaver appeals his conviction of the premeditated murder of a police officer. The jury recommended mercy.

Appellant does not deny that he shot the officer; but the thrust of his defense is that he was justified in killing the officer for the reason that the officer was threatening to make an unlawful entry to search appellant's dwelling. In the alternative, appellant contends that even if the killing was unlawful it can be of a no higher degree of unlawful homicide than manslaughter.

The essential facts in this case are largely undisputed and are as follows:

At approximately 8:08 P.M. on the tragic night, Officer Charles Lee Eustis of the St. Petersburg Police Department responded to a radio dispatch to investigate a disturbance at the appellant's home. When he arrived, whatever the disturbance, if any there was, it had terminated; and there was nothing apparent which would give probable cause to believe a felony had theretofore been committed. The appellant did not testify; and that which occurred after the arrival of Officer Eustis, and prior to the shooting, was described by the only eye witness to that part of the incident, one Frank Biezell, who lived in the apartment above the appellant and who was called by the defense. The material portion of his testimony follows:

'Q. Did--would you tell what you did upon hearing the police officer knock on the door?

A. I went downstairs.

Q. All right, what did the police officer do then?

A. Well, Weaver came to the door and the police asked him what was going on, and so Weaver say him and his wife were having a little discussion.

Q. Yes.

A. Well, then the police officer asked him could he come in.

Q. What--and what happened then?

A. So then--so he asked Weaver could he come in, so Weaver told him no, that he couldn't come in his house, so the police officer say, 'well, I want to see how your wife's doing.' So Weaver said, 'I said you couldn't come into my house. I know my rights.' So then that's when the police officer made a step towards Weaver.

Q. All right, then what occurred?

A. Weaver pushed him back.

Q. Pushed him back where?

A. Towards the bannister.

Q. All right, did the officer go over the bannister?

A. No, sir.

Q. Then what happened?

A. Well, then he went on the side and pulled this Mace.

Q. The officer did?

A. Yes, sir.

Q. All right, then what happened?

A. Well, then when he pulled his Mace, Weaver asked him were he 'going to spray me?' So then the officer say yes, so he sprayed it.

Q. In the face?

A. I don't know did he spray it in his face or not.

Q. Did you get any of it?

A. Yes, sir.

Q. What did it do to you?

A. It burned, made my eyes run to water.

Q. And then what did you do or then what happened?

A. Then I ran back upstairs.

Q. Then what happened between he and Weaver?

A. Well, like I say, he squirted it, and like I say, some of it got on the face, and I went to turn around, and that's when they was up towards the bannister.

Q. What were they doing up towards the bannister?

A. Sort of like a wrassling.

Q. Tussling with each other?

A. Yes, sir.

Q. Then did you see anything further?

A. No, sir.

Q. You went--what did you do, went back upstairs?

A. Yes, sir.'

From this point on the record reveals no way by which we can determine precisely what occurred until the joint arrival of Officers Lee and Harrell, who arrived in the area in response to the same radio dispatch to which Officer Eustis had responded. Nor can we reasonably compute the critical intervals of time, except that Officer Harrell testified the radio dispatch was airborne at approximately 8:08 P.M., and Officer Lee testified he checked his watch upon arrival in the area and saw that it was 8:13 P.M. Approximately, then, everything which occurred there that evening between appellant and Officer Eustis, until the death of Officer Eustis, transpired in something less than five minutes.

When Officers Lee and Harrell arrived, they both heard a woman scream; Lee heard a man's voice, which he identified as that of the deceased officer, exclaim: 'No! No!'; and each then heard a sporadic series of shots. As the two officers approached the immediate scene they saw the appellant standing in front of an automobile pointing a revolver toward the ground, and both officers testified they saw the flash of the last shot as appellant held the gun pointed toward the ground under the car. Officer Lee said he then heard the gun clicking several times on empty cylinders. He further testified that as he approached the appellant the latter threw the gun to the ground and said, 'Yes, G_ _ D_ _ it, I killed him.', at which point Officer Lee then noticed Officer Eustis' body lying under the aforementioned car. The revolver involved was later positively identified as belonging to the deceased officer, and it was established that the fatal bullets were fired from that gun. Three bullet wounds were found in the body; two, significantly, having entered in the back. It was also established by an expert that there were nitrate deposits on the deceased officer's right hand which could have been caused by a discharging firearm.

The corpus delecti was, in other respects, firmly established, and at the conclusion of all the evidence the trial judge denied appellant's motion for directed verdict of acquittal on all degrees of unlawful homicide above manslaughter, and also denied appellant's requested instructions pertaining to the law of defense of habitat. Altogether, appellant raises four points on appeal, only two of which merit discourse.

I.

We consider first whether the court erred in denying appellant's requested instructions pertaining to the law of defense of habitat as it may apply in a homicide case. The basis for such an instruction is found in § 782.02(2)(a), F.S.A., which section defines justifiable homicide and provides as follows:

'(2) Homicide is justifiable when committed by any person in either of the following cases:

(a) When resisting any attempt to murder such person, or to commit any Felony upon him, or upon or in any dwelling house in which such person shall be; * * *' (Italics supplied)

The requested instructions in the instant case are substantially those prescribed in Russell v. State. ¹ That case did not involve the killing of a police officer who apparently was exceeding his authority, however; and the evidence therein clearly presented a question of fact for the jury as to whether the defendant Trixie Russell was reasonably apprehensive that a Felony was being threatened either upon her or in her dwelling. If the jury could find that her fears were reasonable, either as to the imminence of a Felony to her person or to her dwelling, the homicide would be justifiable. Therefore, in that case, failure to give such a charge was reversible error.

In this case, there is not one scintilla of evidence which would justify a finding that appellant was reasonably apprehensive that Officer Eustis was about to commit a Felony on or about him or his dwelling. The officer only wanted to go into the dwelling to see how the appellant's wife was. The threatened action of the police officer, even if it were unlawful and over the objection of the appellant, was merely a trespass and not Felonious. In such case, the simple trespass does not constitute an aggravated provocation which would render justifiable the killing of the officer in resistance thereto. ² Nor do we think the use of chemical Mace as testified to herein, changes the law on the point, the gravamen of which is that a threatened misdemeanor will not, of itself, justify killing the offender. It is almost a precept, which gathers force by repetition, that men do not hold their lives at the peril of unreasonable fears or disproportionate resistance to real or imagined threats. At most, the threatened use of Mace as testified to in this case, even if carried out, could amount to no more than assault and battery, another misdemeanor. For these reasons, and for those apparent hereinafter, the appellant was not entitled to the requested charges and they were properly refused.

II.

We come now to the question of whether the trial court erred in denying appellant's motion for judgment of acquittal on all degrees of unlawful homicide above manslaughter.

The one case found in Florida, in which a purported police officer was killed in the perpetration of illegal entry and search, is not helpful here since it turned on other points. ³ But there are several cases dealing with an officer being killed from resistance to an illegal arrest; ⁴ and we perceive no substantive difference between resistance to a mere unlawful arrest and resistance to a mere illegal entry for search when no greater threat of harm exists in either case than the resultant trespass of the person or premises. ⁵

The law in Florida on the subject is most clearly summarized in Roberson v. State, Supra. In reliance upon, and quoting from, Briggs v. Commonwealth, ⁶ the Florida Supreme Court in Roberson set forth the principles as follows:

'The deceased was without authority to make the arrest, and the plaintiff in error was not bound to submit to an unauthorized arrest. The law upon this subject is stated by Mr. Bishop as follows: 'If one, even an officer, undertakes to arrest another unlawfully, the latter may resist him. He has no protection from his office, or from the fact that the other is an offender. But the doctrine * * * that nothing short of an endeavor to destroy life will justify the taking of life prevails in this case. Consequently, if the...