Legal Practitioner Pointers

If You Stand Your Ground, You Open the Door to Criminal History!

-Marc Consalo

It is well settled precedent that in criminal trials an accused’s prior criminal history has limited value.  In fact, for years, the type of inquiry regarding this topic has been limited to three questions:  Have you ever been convicted of a felony?  Have you ever been convicted of a crime involving dishonesty or untruthfulness?  And if the answer to either of these questions is yes, then how many times have you been convicted of these crimes?  These questions were rarely even reached unless the Defendant took the stand.  Yet, despite Florida’s constantly evolving self-defense statute, it was always thought that going beyond these three questions was taboo.  However, this belief has recently been called into question under Florida’s Stand Your Ground law.

As most practitioners know under Florida Statutes Sections 776.012 and 776.013, Florida retreated from the Castle Doctrine in favor of a less restrictive standard.  Under Stand Your Ground, there are two scenarios where an individual is justified in the use of deadly force.  The first is if the person reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to himself or herself, or another, or to prevent the imminent commission of a forcible felony.  See Fla. Stat. Sect. 776.012 (2018).  The second circumstance is where the person acts under and with a reasonable belief as to the necessity of force in the context of dwellings, residences, or vehicles.  See Fla. Stat. Sect. 776.013 (2018).  In both cases, it is no longer necessary for the individual to be within the confines of his or her home nor is there any duty to retreat.  See Fla. Stat. Sect. 776.012(2) (2018).

Yet at the core of the Stand Your Ground defense is the belief that the person invoking the defense is not engaged in any illegal activity.  Indeed, evidence of illegal activity on the part of the accused can be entered into the record to negate the protection of Stand Your Ground forcing a trial on the merits.  Of course, this begs the question when presented with a client who possesses a criminal background, more specifically a convicted felon, is he or she prevented from raising stand your ground at all without the fact finder hearing something about a prior criminal history when a firearm is involved?  For a convicted felon to stand his ground with a gun doesn’t it require the commission of the crime of possession of a firearm by a convicted felon?

The defense attorney in this scenario is stuck in a metaphoric Catch-22.  Should she avail herself of this defense to help her client or will the mere knowledge that the individual is committing the crime of possession of a firearm by a convicted felon result in an unintended and unfavorable outcome?

Florida Statute Section 790.23 states in relevant part that it is unlawful for an individual to possess “any firearm” if they are a convicted felon.  Id.  Of further concern is that in many jurisdictions in Florida there is no exception to this crime for convicted felons acting in self-defense.  For instance, in Coleman v. State, the Fourth District Court of Appeal clearly ruled that under no circumstance should a convicted felon possess a firearm.  See Coleman v. State, 345 So.2d 1093, 1093 (Fla 4th DCA 1977).  Relying upon a decision out of the First District, the court held, “self-defense is not a viable defense to the offense of possession of a firearm by a convicted felon.”  Id. and see Dardy v. State, 324 So.2d 178, 178 (Fla 1st DCA 1975).

However, the First District later retreated slightly from Dardy in the case of Munigin v. StateSee Mungin v. State, 458 So.2d 293, 295 (Fla 1st DCA 1984).  There a trial court erred in excluding testimony of self-defense by a DOC inmate who had picked up a knife in a prisoner scuffle where he was not the aggressor.  See id.  Yet the Munigan case seemed to focus on a defendant’s time to reflect on his possession of a weapon more than on whether the action was necessitated by self-protection from harm.   See id.

The Third District Court of Appeal for Florida also seemed to veer marginally away from an all-out ban on convicted felons asserting self-defense claims through the case of Marrero v. State, 516 So.2d 1052, 1056 (3rd DCA 1987).  Here a convicted felon accidently shot a would be attacker after the firearm was wrestled from the aggressor.  See id. at 1053.  While there was a discrepancy between the defendant’s testimony and law enforcement’s recount of the events, the trial court failed to properly instruct the jury on self-defense.  See id. at 1054.  The issue focused again on time for self-reflection.  See id. at 1056.  Specifically, the DCA concluded that a jury could have found from the facts that enough time had passed between the necessity of protecting himself from his attacker and Marrero’s interaction with law enforcement.  See id. Nonetheless he was still entitled to a proper jury instruction requesting that the fact finder specifically determine he could have recognized the consequences of his continued possession.  See id.  “While Mungin does not expressly announce that the defendant's cognitive appreciation of the consequences of his possession is to be part of the required necessity instruction, we have no difficulty in concluding that the jury must be instructed that where the defendant retains the weapon after the necessity ends, he may not be convicted unless the jury finds that he continued to possess the weapon after he had sufficient time to reflect on the consequences of his possession.” Id.

Yet despite the Third DCA’s seemingly pro defense ruling in the previous cases, in 2012 this court ventured clearly into unchartered territory with its ruling in the Darling case. See Darling v. State, 81 So.3d 574, 579 (3rd DCA 2012).  Here the appeals court reviewed whether a trial court erred when it permitted evidence into the record that the defendant was a convicted felon.  See id.  The basis for the admission was the defendant’s assertion of a Stand Your Ground defense.  See id. at 576.  The court’s rationale focused on the language in the statute about a person not being “engaged in an unlawful activity.” Id. at 577.  Since the defendant was a convicted felon, he committed the crime of possession of a firearm by a convicted felon when he tried to stand his ground against his attacker with a gun.  See id. at 579.  This would be an “unlawful activity” under the statute and as such, the jury needed to know these facts to determine that Stand Your Ground was not a viable defense.  See id.  The trial court permitted the jury to know the defendant was a convicted felon because the door had been opened simply by asserting Stand Your Ground.  See id.

Therefore, moving forward, practitioners should be wary in raising Stand Your Ground when representing convicted felons who protected themselves with firearms.  A question exists if such a defense practically even exists for this population after the Darling ruling.  While the Florida Supreme Court has yet to weigh in, recognizing that this pitfall is out there will enable defense attorneys to ensure they are providing competent, legal representation.