Stand Your Ground Immunity at the Gas Station
At 3:00 a.m. in Tampa, Marcus Hill is charged with aggravated battery with a deadly weapon after striking Travis Boone with a tire iron. Hill claims Boone approached his car, shouted threats, and reached toward his waistband as if for a gun. Surveillance video shows Boone walking toward Hill's car but does not clearly show a reach. Hill has a concealed-weapons permit and a 2018 misdemeanor battery conviction. At a pretrial immunity hearing under section 776.032, Hill testifies he saw a gun. Boone testifies he had no gun and was only asking Hill to move his car. The State calls a detective who says no gun was found. Defense counsel moves for immunity. The judge says, 'I don't believe Hill; he has a prior battery conviction. Motion denied.' The defense asks for a written order and immediate review. The court must address the burden of proof, the use of Hill's prior conviction, and the effect of the denial on the upcoming trial.
1. Who bears the burden at the immunity hearing, and what standard applies? Did the judge apply the correct legal standard?
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Under section 776.032(4), the defendant must first make a prima facie showing that he used force in self-defense. The burden then shifts to the State to prove by clear and convincing evidence that the defendant's use of force was not justified. The judge may weigh evidence and assess credibility at the pretrial hearing. But the judge's stated reason-'I don't believe Hill; he has a prior battery conviction'-is not a sufficient legal basis. A 2018 misdemeanor battery conviction does not automatically impeach Hill's credibility under section 90.610, which generally permits impeachment by a felony or a crime involving dishonesty. The court must consider the totality of the evidence, including the surveillance video, Hill's testimony, Boone's testimony, and the absence of a gun. The State must do more than show a prior conviction; it must clearly and convincingly prove that Hill was not acting in self-defense.
2. If the court denies immunity, how does that affect the trial? What self-defense instruction and burden apply?
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A denial of pretrial immunity does not relieve the State of its trial burden. At trial, the defendant may still raise self-defense, and the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. The defendant has the burden of producing evidence to support the defense, but not the burden of persuasion. If the defense is properly raised, the court must give the jury a self-defense instruction. Under section 776.012, a person may use deadly force if he reasonably believes it is necessary to prevent imminent death or great bodily harm. Under section 776.013, there is no duty to retreat if the person is in a lawful place and is not engaged in criminal activity. The jury should be instructed that the State must disprove self-defense beyond a reasonable doubt.
3. During the hearing, Hill tells defense counsel that he did not actually see a gun; he only saw Boone reach toward his waistband. What must counsel do if Hill insists on testifying at trial that he saw a gun?
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Counsel cannot elicit testimony that counsel knows is false. Under Florida Rule of Professional Conduct 4-3.3(a)(3), a lawyer must not offer evidence the lawyer knows to be false. If the client insists on testifying falsely, counsel must first try to persuade him to testify truthfully. If he refuses, counsel must take reasonable remedial measures, which may include withdrawing from representation if withdrawal can be accomplished without prejudicing the client, and, if necessary, disclosing the false testimony to the court. Counsel should not use the false testimony to bolster the immunity motion. The duty of candor to the tribunal overrides confidentiality when the client is using the lawyer's services to commit a fraud on the court. Counsel should document the advice and consider moving to withdraw.