Garrett v. State
148 So. 3d 466
Fla. Dist. Ct. App.2014Background
- Garrett (a convicted felon) shot and killed Jerry Ford after a nighttime confrontation; Garrett admitted firing multiple .45-caliber rounds and led police to the hidden pistol. Ford died of multiple gunshot wounds to his back; no firearm was found on Ford at autopsy though a rifle was found in the yard.
- Garrett’s defense at trial was justifiable use of deadly force (self-defense) to prevent imminent death/great bodily harm or the imminent commission of a forcible felony (attempted second-degree murder / aggravated battery).
- The parties stipulated Garrett had a prior felony conviction; the trial court, over objection, instructed the jury that possession of a firearm by a convicted felon “constitutes unlawful activity.”
- The jury received standard instructions on deadly-force/self-defense including provisions on no duty to retreat if not engaged in unlawful activity and a duty to retreat if engaged in unlawful activity; the jury convicted Garrett of first-degree murder and felon-in-possession.
- On appeal Garrett argued the unlawful-activity instruction was erroneous because under section 776.012(1) a person who reasonably uses deadly force to prevent imminent death or the imminent commission of a forcible felony has no duty to retreat—even if engaged in unlawful activity.
- The court agreed the unlawful-activity sentence was an improper instruction as to whether a duty to retreat existed under section 776.012(1), but held the error was not fundamental because, viewed with the complete instructions and the evidence, the jury could still properly assess Garrett’s self-defense claim.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Garrett) | Held |
|---|---|---|---|
| Whether instructing the jury that felon-in-possession is "unlawful activity" was reversible/fundamental error | The ‘‘Stand Your Ground’’ protection should be limited to those not engaged in unlawful activity; telling jury possession is unlawful was proper and required duty-to-retreat analysis if unlawful | Garrett: section 776.012(1) allows no duty to retreat to prevent imminent death/great bodily harm or imminent forcible felony, regardless of unlawful activity; the jury instruction wrongly invited retreat analysis | Court: Instruction that possession is "unlawful activity" was erroneous as to 776.012(1), but error not fundamental because, in context of all instructions and evidence, jury could still consider self-defense and retreat futility |
| Whether error was preserved or reviewable | State relies on lack of preservation to argue harmless | Garrett failed to preserve specific legal argument; appellate review limited to fundamental error | Court reviewed for fundamental error and found none |
| Whether evidence supported giving 776.012 self-defense instruction | State implied immunity not available to felons; jury properly instructed | Garrett presented evidence supporting an instruction under 776.012(1) (claimed rifle pointed at him) | Court: Garrett was entitled to an instruction reflecting 776.012(1) when evidence supported it |
| Whether jury was precluded from excusing Garrett by combined instructions | State argued instructions properly limited defense | Garrett argued combined instructions forced retreat analysis even where none exists | Court: Combined instructions still allowed jury to find retreat futile/imminent danger; no fundamental error |
Key Cases Cited
- Occhicone v. State, 570 So.2d 902 (Fla. 1990) (failure to object at trial limits appellate review absent fundamental error)
- Bertolotti v. Dugger, 514 So.2d 1095 (Fla. 1987) (preservation requirement for charge objections)
- Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013) (776.012 immunity may apply even if defendant engaged in unlawful activity)
- Hill v. State, 143 So.3d 981 (Fla. 4th DCA) (en banc) (similar analysis endorsing Little's reasoning)
- Hardison v. State, 138 So.3d 1130 (Fla. 1st DCA 2014) (holding combined instructions did not constitute fundamental error where jury could still assess imminence/retreat futility)
- Smith v. State, 424 So.2d 726 (Fla. 1982) (defendant entitled to jury instruction on theory of defense if any evidence supports it)
- Maddox v. State, 760 So.2d 89 (Fla. 2000) (definition and standard for fundamental error)
- Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985) (an instruction that negates the defendant’s only defense is fundamental error)
- Mosansky v. State, 33 So.3d 756 (Fla. 1st DCA 2010) (self-defense is an affirmative defense that legally excuses otherwise criminal conduct)