160 So. 3d 167
Fla. Dist. Ct. App.2015Background
- In 2011 McGriff shot and killed a man after an argument during a backyard dice game; he was charged with manslaughter (count I), possession of a firearm by a convicted felon (count II), and carrying a concealed firearm (count III).
- At trial McGriff asserted self-defense under section 776.012(1), which provides a no-duty-to-retreat defense when the defendant reasonably believes deadly force is necessary to prevent imminent death, great bodily harm, or a forcible felony.
- The trial court instructed the jury that if McGriff was engaged in unlawful activity his use of deadly force was not justified if he could have reasonably and safely avoided deadly force by retreating; prosecutor emphasized this duty to retreat in closing argument.
- The trial court initially severed count II but later re-joined (consolidated) the felon-in-possession count with the other counts over McGriff’s objection based on relevance to self-defense.
- On appeal the First DCA granted rehearing, concluded the retreat instruction misstated the law and prejudiced McGriff’s sole defense, and held the court erred by re-joining count II; it reversed counts I and III for new trial and affirmed count II.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction that a defendant engaged in unlawful activity had a duty to retreat | The prosecutor argued McGriff (a felon with a gun) had a duty to retreat; thus instruction was proper | McGriff argued the instruction misapplied section 776.012(1) and eliminated his no-duty-to-retreat defense | Instruction was erroneous and prejudicial; reversed counts I and III because instruction effectively eliminated McGriff’s sole defense |
| Re-joining (joinder) of count II with other counts for trial | State argued felon status was relevant to self-defense and justified re-joining | McGriff argued count II should remain severed because his self-defense claim under §776.012(1) did not depend on unlawful-activity status | Re-joining was error; count II should have been severed for trial; reversal of counts I and III and remand for new trial without count II evidence |
| Validity of conviction on count II (felon-in-possession) given prejudice | McGriff argued prior-conviction evidence prejudiced murder/concealed-firearm counts and warranted reversal of all convictions | State argued the prior conviction was relevant and admissible for count II and did not warrant reversing that count | Affirmed count II; the proof of prior conviction was admissible and not unfairly prejudicial as to the felon-possession count |
| Other appellate challenges (e.g., sufficiency, sentencing) | McGriff raised additional issues on appeal (inc. other trial rulings) | State defended those rulings | Court rejected other challenges; only the retreat instruction and joinder errors warranted reversal/remand |
Key Cases Cited
- Garrett v. State, 148 So. 3d 466 (Fla. 1st DCA 2014) (no-duty-to-retreat under §776.012(1) applies notwithstanding defendant’s unlawful possession of a firearm)
- Dorsey v. State, 149 So. 3d 144 (Fla. 4th DCA 2014) (in later Dorsey opinion, it is fundamental error to instruct duty to retreat when defense is §776.012(1))
- Rios v. State, 143 So. 3d 1167 (Fla. 4th DCA 2014) (discussing duty-to-retreat and interaction with statutory defenses)
- Hardison v. State, 138 So. 3d 1130 (Fla. 1st DCA 2014) (addressing retreat instruction and unlawful activity issues)
- Hill v. State, 143 So. 3d 981 (Fla. 4th DCA 2014) (en banc) (section 776.012(1) abrogated common-law duty to retreat under its circumstances)
- Little v. State, 111 So. 3d 214 (Fla. 2d DCA 2013) (distinguishing availability of §776.012(1) defense from immunity under §776.013(3))
- Vazquez v. State, 419 So. 2d 1088 (Fla. 1982) (prior conviction proof may be admissible and relevant in felon-possession counts despite prejudice to other counts)
- Monson v. State, 627 So. 2d 1301 (Fla. 1st DCA 1993) (joinder/severance principles)
- Shuler v. State, 929 So. 2d 645 (Fla. 1st DCA 2006) (joinder/severance principles)