Weiand v. State

• Decision Date: 11 March 1999
• Docket Number: No. 91,925.,91,925.
• Citation: 732 So.2d 1044
• Parties: Kathleen WEIAND, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

732 So.2d 1044

Kathleen WEIAND, Petitioner, v. STATE of Florida, Respondent.

No. 91,925.

Supreme Court of Florida.

March 11, 1999.

Rehearing Denied April 30, 1999.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Scott A. Brown, Assistant Attorney General, Tampa, Florida, for Respondent.

Peter Margulies, Professor of Law, St. Thomas University School of Law, Miami, Florida, for Amici Curiae, Center Against Spouse Abuse (CASA), et al.

PARIENTE, J.

We have for review a decision of the Second District Court of Appeal certifying the following question to be of great public importance:

SHOULD THE RULE OF STATE v. BOBBITT, 415 So.2d 724 (Fla. 1982),

BE CHANGED TO ALLOW THE CASTLE DOCTRINE INSTRUCTION IN CASES WHERE THE DEFENDANT RELIES ON BATTEREDSPOUSE SYNDROME EVIDENCE (AS NOW AUTHORIZED BY STATE V. HICKSON, 630 So.2d 172 (Fla. 1994)[)] TO SUPPORT A CLAIM OF SELF-DEFENSE AGAINST AN AGRESSOR WHO WAS A COHABITANT OF THE RESIDENCE WHERE THE INCIDENT OCCURRED?

Weiand v. State, No. 95-01121, on rehearing from 701 So.2d 562 (Fla. 2d DCA 1997).

We rephrase the question as follows:

SHOULD THE LAW IMPOSE A DUTY TO RETREAT FROM THE RESIDENCE BEFORE A DEFENDANT MAY JUSTIFIABLY RESORT TO DEADLY FORCE IN SELF-DEFENSE AGAINST A CO-OCCUPANT, IF THAT FORCE IS NECESSARY TO PREVENT DEATH OR GREAT BODILY HARM?

As rephrased, we answer the certified question in the negative and recede from our contrary holding in Bobbitt.

I. JURISDICTION

We first address our jurisdiction. Article V, section 3(b)(4) of the Florida Constitution, vests this Court with the discretionary jurisdiction to review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance.

On appeal to the Second District, the defendant asserted as error the trial court's refusal to grant her request to instruct the jury on the privilege of nonretreat from the home, characterized as the "castle doctrine instruction" in the certified question. In affirming the conviction, and rejecting all claims of error asserted by the petitioner, the Second District specifically held: "We have examined each [issue raised] together with the entire trial transcript and conclude that none of the errors asserted require reversal." Id. at 563. In so holding, the Second District necessarily ruled upon the question it certified, which was a dispositive issue in Weiand's case.¹

These circumstances distinguish this case from Gee v. Seidman & Seidman, 653 So.2d 384, 385 (Fla.1995), which held that jurisdiction had been improvidently granted because "the question certified by the district court d[id] not reflect the issue actually ruled upon by the court." This case can also be distinguished from Revitz v. Baya, 355 So.2d 1170, 1171 (Fla.1977), where we discharged jurisdiction because "the District Court specifically found, it unnecessary to pass upon" the question certified. (Emphasis supplied.)

In this case, the Second District was bound by our precedent in Bobbitt to reject Weiand's argument concerning the jury instruction because a district court of appeal does not have the authority to overrule a decision of this Court. See Hoffman v. Jones, 280 So.2d 431, 440 (Fla. 1973)

. Thus, certification of the question to this Court was the only available judicial means by which Bobbitt could be overruled. While a discussion in the Second District's opinion of the issues raised by the certified question would have been helpful to this Court, it was not a necessary predicate to our exercise of jurisdiction.²

After briefing and oral argument, Weiand filed a notice of voluntary dismissal in this Court because she was granted executive clemency on December 23, 1998. As we have done in the past, we exercise our discretion to retain jurisdiction because we consider this issue to be of great public importance. See State v. Schopp, 653 So.2d 1016, 1018 (Fla.1995)

; Holly v. Avid, 450 So.2d 217, 218 n. 1 (Fla.1984).

II. FACTS

Kathleen Weiand was charged with first-degree murder for the 1994 shooting death of her husband Todd Weiand. Weiand shot her husband during a violent argument in the apartment where the two were living together with their seven-week-old daughter. At trial Weiand claimed self-defense and presented battered spouse syndrome³ evidence pursuant to Hickson in support of her claim. Weiand testified that her husband had beaten and choked her throughout the course of their three-year relationship and had threatened further violence if she left him.

Two experts, including Dr. Lenore Walker, a nationally recognized expert on battered women, testified that Weiand suffered from "battered woman's syndrome." Dr. Walker detailed Weiand's history of abuse by her husband and testified about the effect of the abusive relationship on Weiand. Based on her studies, her work with Weiand and Weiand's history of abuse, Dr. Walker concluded that when Weiand shot her husband she believed that he was going to seriously hurt or kill her.

Dr. Walker opined that there were several reasons why Weiand did not leave the apartment that night during the argument, despite apparent opportunities to do so: she felt that she was unable to leave because she had just given birth seven weeks earlier; she had been choked unconscious; she was paralyzed with terror; and experience had taught her that threats of leaving only made her husband more violent.

At the charge conference following the close of the evidence, defense counsel requested that the following standard jury instruction be given:

If the defendant was attacked in [his][her] own home or on [his][her] own premises, [he][she] had no duty to retreat and had the lawful right to stand [his][her] ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent either death or great bodily harm.

Fla. Std. Jury Instr. (Crim.), "Justifiable Use of Deadly Force," § 3.04(d), at 49 (brackets in original). In accordance with this Court's opinion in Bobbitt, the trial court refused the request to give this "defense of home" instruction. Instead, the trial court only gave the instruction applicable in all self-defense cases regarding the duty to retreat:

The fact that the defendant was wrongfully attacked cannot justify her use of force likely to cause death or great bodily harm if by retreating she could have avoided the need to use that force.

See Fla. Std. Jury Instr. (Crim.), "Justifiable Use of Deadly Force," § 3.04(d), at 48.

During closing arguments, the prosecutor used this standard instruction to the State's advantage by emphasizing Weiand's duty to retreat. The prosecutor stressed as "critical" that the killing could not be considered justifiable homicide unless Weiand had exhausted every reasonable means to escape the danger, including fleeing her home:

She had to exhaust every reasonable means of escape prior to killing him. Did she do that? No. Did she use the phone that was two feet away? No. Did she go out the door where her baby was sitting next to? No. Did she get in the car that she had driven all over town drinking and boozing it up all day? No.

The jury found Weiand guilty of second-degree murder and the trial court sentenced her to eighteen years' imprisonment. The Second District affirmed her conviction and sentence, see Weiand, 701 So.2d at 565, but on rehearing certified the question of whether this Court should recede from Bobbitt.

III. THE PRIVILEGE OF NONRETREAT FROM THE RESIDENCE

Under Florida statutory and common law, a person may use deadly force in self-defense if he or she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm. See § 776.012, Fla. Stat. (1995); Wilson v. State, 30 Fla. 234, 255, 11 So. 556, 561 (1892); DeLuge v. State, 710 So.2d 83, 84 (Fla. 5th DCA 1998); Fla. Std. Jury Instr. (Crim.) § 3.04(d), at 46. Even under those circumstances, however, a person may not resort to deadly force without first using every reasonable means within his or her power to avoid the danger, including retreat. See Bobbitt, 415 So.2d at 725; Hedges v. State, 172 So.2d 824, 827 (Fla.1965). The duty to retreat emanates from common law, rather than from our statutes. See Hedges, 172 So.2d at 827

.⁴

There is an exception to this common law duty to retreat "to the wall," which applies when an individual claims self-defense in his or her own residence. See id. at 827; Pell v. State, 97 Fla. 650, 665, 122 So. 110, 116 (1929); Danford v. State, 53 Fla. 4, 13, 43 So. 593, 597 (1907). An individual is not required to retreat from the residence before resorting to deadly force in self-defense, so long as the deadly force is necessary to prevent death or great bodily harm. See Hedges, 172 So.2d at 827

; Pell, 97 Fla. at 665, 122 So. at 116; Danford, 53 Fla. at 13, 43 So. at 597.

The privilege of nonretreat from the home, part of the "castle doctrine,"⁵ has early common law origins. See Bobbitt, 415 So.2d at 725; Hedges, 172 So.2d at 827; Pell, 97 Fla. at 665, 122 So. at 116; Danford, 53 Fla. at 13, 43 So. at 597; New York v. Tomlins, 213 N.Y. 240, 107 N.E. 496, 497-98 (1914). In Tomlins, the defendant claimed self-defense when attacked in his home by his son. 107 N.E. at 496. In reversing the defendant's conviction because the duty to retreat instruction was given, Justice Cardozo explained the historical basis of the privilege of nonretreat from the home:

It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. More than 200 years ago it was said by Lord Chief

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