2015 #29 self defense weekly law report

Law of Self Defense: Weekly Law Report 2015 #29 (July 6-July 10, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 23

Frequently Asked Questions

Q: What is the Law of Self Defense: Law Report Weekly?

A: Each week Law of Self Defense staff review self-defense court decisions from around the country. Those we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents

and then by individual case.

Q: The Law of Self Defense is well-known for translating the legalese of self-defense law into plain English easily understood by non-lawyers, as you do in your books, seminars, online training, and blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain English?

A: Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for weekly reports of this type. Therefore we consider these reports a graduate-level product, for people who already have a solid understanding of the legal principles of self-defense law. To get up to speed we

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A: No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we only summarize the portions of the cases that directly involve issues of self-defense law. What we do include are the case citation, a list of the key self-defense law issues covered in that case, the date of the

decision, and the text of the decision that discusses the specific self-defense laws of interest.

The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.

Q: What if I want to read the entire case?

A: Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact, strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best

way to understand the fullest context of the courts decisions.



Table of Contents

FLORIDA

Bretherick v. State, 2015 Fla. LEXIS 1470 (FL Supreme Court 2015)

Key issues:

self-defense immunity, burden of proof and standard of evidence Defendant at pre-trial self-defense immunity hearing has burden of proving self-defense by

a preponderance of the evidence

Date: July 9, 2015

INDIANA

Quarles v. State, 2015 Ind. App. Unpub. LEXIS 747 (IN Ct. App. 2015)

Key issues:

Self-defense, elements Burden of production, on the defendant Burden of persuasion, on the State, beyond a reasonable doubt Innocence, first aggressor, mutual combat Innocence, regaining innocence, withdrawal

Date: July 7, 2015

TEXAS

Bonner v. State, 2015 Tex. App. LEXIS 7013 (TX Ct. App. 2015)

Key issues:

Self-defense, elements Burden of production, on the defendant

Date: July 9, 2015

Page

4

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FLORIDA

Bretherick v. State, 2015 Fla. LEXIS 1470 (FL Supreme Court 2015)

Key issues:

self-defense immunity, burden of proof and standard of evidence

Defendant at pre-trial self-defense immunity hearing has burden of proving self-defense by a preponderance of the evidence

Date: July 9, 2015

Decision:

The issue in this case arises from Florida's "Stand Your Ground" law, section 776.032, Florida Statutes

(2011), which provides for immunity from prosecution when a defendant has used force in accordance with

certain specified statutory circumstances. Specifically, we address the burden of proof in a pretrial

evidentiary hearing where the defendant has filed a motion to dismiss, claiming this statutory immunity

from prosecution.[1]

In Bretherick v. State, 135 So. 3d 337, 340 (Fla. 5th DCA 2013), the Fifth District Court of Appeal held that

the defendant has the burden to prove, by a preponderance of the evidence at the pretrial

evidentiary hearing, that he or she is entitled to immunity from prosecution. The Fifth District then

certified the following question of great public importance for this Court's review as to whether the

defendant or State bears the burden of proof under the Stand Your Ground law:

ONCE THE DEFENSE SATISFIES THE INITIAL

BURDEN OF RAISING THE ISSUE, DOES THE STATE HAVE THE BURDEN OF DISPROVING A

DEFENDANT'S ENTITLEMENT TO SELF-

DEFENSE IMMUNITY AT A PRETRIAL HEARING AS IT DOES AT TRIAL?

Id. at 341. We have jurisdiction. See art. V, 3(b)(4),

Fla. Const.[2] We conclude that the Fifth District correctly

determined that the defendant bears the burden of proof, by a preponderance of the evidence, to

demonstrate entitlement to Stand Your Ground immunity at the pretrial evidentiary hearing. We

therefore answer the certified question in the negative and approve the Fifth District's decision.

In Dennis v. State, 51 So. 3d 456 (Fla. 2010), we

approved the procedure of a pretrial evidentiary hearing set forth in Peterson v. State, 983 So. 2d 27

(Fla. 1st DCA 2008), for evaluating a claim of immunity under the Stand Your Ground law. Although

in Dennis we did not separately discuss the burden of proof, we quoted extensively from the First District

Court of Appeal's opinion in Peterson, including portions in which the First District explicitly stated that

the defendant would bear the burden of proving, by a preponderance of the evidence, entitlement to



immunity from prosecution at the pretrial evidentiary hearing. See Dennis, 51 So. 3d at 459-60.

We now make explicit what was implicit in Dennis-the

defendant bears the burden of proof by a preponderance of the evidence at the pretrial

evidentiary hearing. This is the conclusion reached by every Florida appellate court to consider this issue

both before and after Dennis, and it is a conclusion fully consistent with the legislative intent to provide

immunity to a limited class of defendants who can satisfy the statutory requirements.

We therefore reject Bretherick's position and the

position advanced by the dissent that the State must disprove entitlement to Stand Your Ground immunity

beyond a reasonable doubt at the pretrial evidentiary hearing, as is the State's burden to obtain a

conviction at trial. The dissent's view has never previously been embraced by any state with an

analogous immunity law and is actually inconsistent with the procedure for resolving motions to dismiss

involving other types of statutory immunity. Placing the burden of proof on the defendant at the pretrial

evidentiary hearing is principled, practical, and supported by our precedent.

FACTS AND PROCEDURAL HISTORY

The defendant, Jared Bretherick, was charged by

information with aggravated assault with a firearm under section 784.021(1)(a), Florida Statutes (2011),

for his conduct during an encounter with another driver on a highway in 2011. Bretherick filed a motion

to dismiss under Florida Rule of Criminal Procedure 3.190(b), claiming immunity from prosecution under

section 776.032, Florida Statutes, Florida's "Stand Your Ground" law. The Stand Your Ground law

provides that when a person uses force as permitted

by sections 776.012, 776.013, or 776.031, Florida Statutes (2011), the person is entitled to immunity

from criminal prosecution. Bretherick sought a pretrial evidentiary hearing on his motion to dismiss,

consistent with this Court's decision in Dennis, 51 So. 3d at 463, which approved the procedure of a pretrial

evidentiary hearing to consider a defendant's claim of entitlement to stand Your Ground immunity.

The Fifth District summarized the trial court's factual

findings based on the evidence elicited at the evidentiary hearing as follows:

On December 29, 2011, the Bretherick family was

on vacation in Central Florida, driving toward Downtown Disney, on a heavily travelled, six-lane

divided road in Osceola County. Ronald Bretherick, the father, was driving in the middle

lane westbound when, in his rearview mirror, he saw a blue truck rapidly approaching them. The

truck almost side-swiped them as it passed in the right lane. As the truck passed the Brethericks, the

driver, Derek Dunning, "stared at them in a threatening manner," but made no statements or

gestures.

Dunning's truck cut in front of the Bretherick vehicle in the middle lane, slammed on the brakes,

and came to a complete stop. There was no traffic or other impediment that required this action.

Ronald Bretherick also stopped his vehicle, one to two car lengths behind Dunning's truck. Dunning

got out of his truck and walked toward the Bretherick vehicle. He was unarmed. Without

exiting, Ronald Bretherick held up a holstered handgun, and Dunning returned to his truck

without uttering a word.



After Dunning got back into his truck, the Defendant, Ronald's adult son, got out of the rear

passenger's seat. He approached the driver's side of Dunning's truck within a few feet of the driver,

while pointing the handgun at Dunning. The Defendant told Dunning to move his truck or he

would be shot. Dunning misunderstood, and believed that the Defendant told him that if he

moved, he would be shot. This slight but critical misunderstanding explains everyone's subsequent

actions.

The Defendant returned to his own vehicle and took up various positions, continuing to point the

gun at Dunning. The Brethericks, Dunning, and several passersby all called 911. The Defendant's

mother and sister exited their vehicle and took refuge in a ditch on the north side of the road.

The Defendant told his family that Dunning said he had a gun, but no one saw Dunning with a

weapon, and the trial court found this not to be credible.[[3]] At some point, Dunning's truck rolled

back twelve to eighteen inches toward the Brethericks' vehicle. The police arrived and

diffused the volatile encounter.

Bretherick, 135 So. 3d at 338-39.

Based on its factual findings following the evidentiary hearing, the trial court concluded that Bretherick did

not establish entitlement to immunity by a preponderance of the evidence and denied

Bretherick's motion to dismiss. The trial court explained as follows:

This Court finds that the actions of Derek

Dunning did not rise to the level of a forcible felony (Aggravated Assault or False

Imprisonment) as defined in section 776.08, Fla.

Stat. At best, Mr. Dunning's driving pattern was reckless and his threatening act of getting out of

his truck and approaching the Defendant's vehicle was an assault. It would have been reasonable,

under the circumstances in this case, for anyone of the Brethericks to use non-deadly force as Mr.

Dunning exited his vehicle, in the middle lane of a divided 6 lane highway, and approached their

vehicle. The use of non-deadly force could have included brandishing a firearm to repel the

imminent threat of unlawful force facing them at that moment. The Defendant must prove by a

preponderance of the evidence that the threat was imminent and his fear was reasonable.

However, the facts of this case show just the opposite; that Dunning retreated to his truck when

he saw Ronald hold up the holstered handgun. The threat was no longer imminent, and in fact,

the possible volatile situation had been diffused. The Defendant's subjective fear was no longer

reasonable.

(Footnotes omitted.)

After the trial court subsequently denied Bretherick's motion to reconsider its denial of his motion to

dismiss, Bretherick filed a petition for writ of prohibition in the Fifth District. The Fifth District

concluded that under the procedure for Stand Your Ground pretrial evidentiary hearings set forth in

Dennis, "the trial court properly placed the burden of proof on [Bretherick]." Id. at 340. The Fifth District

then concluded that Bretherick was not entitled to Stand Your Ground immunity, determining that "based

on the trial court's findings of fact, which are supported by competent, substantial evidence, . . .

the motion to dismiss was properly denied." Id. The Fifth District reasoned as follows:



The trial court correctly found that Dunning's actions did not rise to the level of false imprisonment,

aggravated assault, or any other forcible felony, and therefore, the Defendant could not justify his use of

force on this basis. No one saw Dunning with a gun. Dunning retreated to his vehicle when Ronald

Bretherick held up a holstered weapon. The trial court also properly determined that there was no longer an

imminent threat and that the Defendant's subjective fear at that point was objectively unreasonable.

There was at least one car length between Dunning's

vehicle and the Brethericks' vehicle. When Dunning's truck rolled back not more than eighteen inches, that

action standing alone did not constitute the act of false imprisonment as the Defendant contends.

Notably, the Defendant's mother and sister exited the vehicle and took refuge nearby. Several other cars

passed by in the two lanes on either side of the middle lane where the Dunning and Bretherick

vehicles sat. It was not reasonable for the Defendant to believe that it was necessary for him to approach

Dunning's truck with a gun drawn in order to defend himself or his family.

Id. at 340-41. The Fifth District also noted, in certifying

the question for this Court's consideration, that "[t]he issue of who bears the burden of proof may well be

significant where the case is an extremely close one, or where only limited evidence is presented for the

trial court's consideration." Id. at 341. While both the trial court and the Fifth District agreed that Bretherick

had not sustained his burden of proof at the pretrial stage, neither court held that Bretherick was

foreclosed from raising self-defense as an affirmative defense to be considered by the jury at trial.

Judge Schumann concurred specially and

commented that if she had not felt "bound" by Dennis,

she "would find that the trial court erred in placing the burden of proof at the pretrial hearing on the

Defendant." Id. at 341, 344 (Schumann, J., concurring specially). Judge Schumann stated that she would

follow the reasoning of courts in Kentucky and Kansas and place the burden of proof upon the State

at the pretrial stage to demonstrate that the use of force was unjustified, because, she reasoned,

"[p]lacing the burden of proof on the State throughout each phase of criminal prosecution best fulfills the

legislative intent to create a broad grant of immunity." Id. at 344.

ANALYSIS

The certified question asks this Court whether the

State or the defendant bears the burden of proof with respect to demonstrating entitlement to immunity

under the Stand Your Ground law. This is an issue of statutory interpretation, which we review de novo.

See J.A.B. v. State, 25 So. 3d 554, 557 (Fla. 2010).

In analyzing this issue, we begin by reviewing the statute and this Court's decision in Dennis. Then, we

determine whether the burden of proof was decided as part of the Dennis holding. After concluding that

the burden of proof was not a specific holding of Dennis, we consider whether placing the burden of

proof on the defendant to prove entitlement to immunity from prosecution by a preponderance of the

evidence at a pretrial evidentiary hearing-the procedure that has been followed by all of the district

courts of appeal after Dennis-is both appropriate and consistent with the statutory scheme.

I. Section 776.032 & This Court's Decision in Dennis



Florida's Stand Your Ground law provides in pertinent part as follows:

Immunity from criminal prosecution and civil

action for justifiable use of force.-

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031[[4]] is justified

in using such force and is immune from criminal prosecution and civil action for the use of such

force, unless the person against whom force was used is a law enforcement officer, as defined in s.

943.10(14), who was acting in the performance of his or her official duties and the officer identified

himself or herself in accordance with any applicable law or the person using force knew or

reasonably should have known that the person was a law enforcement officer. As used in this

subsection, the term "criminal prosecution" includes arresting, detaining in custody, and

charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as

described in subsection (1), but theagency may not arrest the person for using force unless it

determines that there is probable cause that the force that was used was unlawful.

776.032, Fla. Stat. (emphasis added).

This Court has explained that the "[l]egislative intent

guides statutory analysis." Fla. Dep't of Children & Family Servs. v. P.E., 14 So. 3d 228, 234 (Fla. 2009)

(citing Knowles v. Beverly Enterprises-Fla., Inc., 898 So. 2d 1, 5 (Fla. 2004)). In discerning legislative

intent, we look first to the actual language used in the statute because "the statute's text is the most reliable

and authoritative expression of the Legislature's

intent." Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So. 2d 815, 820 (Fla. 2007) (quoting V.K.E. v. State,

934 So. 2d 1276, 1286 (Fla. 2006)). Further, statutory enactments "are to be interpreted so as to accomplish

rather than defeat their purpose." Reeves v. State, 957 So. 2d 625, 629 (Fla. 2007) (quoting Lewis v.

Mosley, 204 So. 2d 197, 201 (Fla. 1967)).

In order to effectuate legislative intent, we held in Dennis that "the plain language of section 776.032

grants defendants a substantive right to assert immunity from prosecution and to avoid being

subjected to a trial." 51 So. 3d at 462. Recognizing that the statute was silent as to how to best effectuate

the defendant's substantive right to this immunity from prosecution, we rejected the Fourth District Court of

Appeal's decision in Dennis v. State, 17 So. 3d 305 (Fla. 4th DCA 2009), thereby also rejecting the

argument advanced by the State, that the existence of disputed issues of material fact required the denial

of a defendant's motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4).[5] Dennis, 51 So.

3d at 462.

This Court reasoned in Dennis that "treating motions to dismiss pursuant to [the Stand Your Ground law] in

the same manner as rule 3.190(c)(4) motions would not provide criminal defendants the opportunity to

establish immunity and avoid trial that was contemplated by the Legislature." 51 So. 3d at 462. In

addition, this Court specifically "reject[ed] the State's contention that the pretrial hearing on immunity in a

criminal case should test merely whether the State has probable cause to believe the defendant's use of

force was not legally justified." Id. at 463. As this Court explained:

Prior to the enactment of chapter 2005-27, Laws

of Florida (2005), Florida law defined certain types



of justified force, see 776.12, 776.031, Fla. Stat. (2004), and the Florida Rules of Criminal

Procedure mandated that a trial judge make a pretrial nonadversarial probable cause

determination either before or shortly after a defendant was taken into custody, see Fla. R.

Crim. P. 3.133 (2004). "It is a basic rule of statutory construction that 'the Legislature does

not intend to enact useless provisions, and courts should avoid readings that would render part of a

statute meaningless.' " Martinez v. State, 981 So. 2d 449, 452 (Fla. 2008) (quoting State v. Bodden,

877 So. 2d 680, 686 (Fla. 2004)). Accordingly, the grant of immunity from "criminal prosecution" in

section 776.032 must be interpreted in a manner that provides the defendant with more protection

from prosecution for a justified use of force than the probable cause determination previously

provided to the defendant by rule.

Id.

Regarding the applicable procedure for claiming Stand Your Ground immunity, this Court determined

that "Florida Rule of Criminal Procedure 3.190(b)-rather than rule 3.190(c)(4)-provides the appropriate

procedural vehicle for the consideration of a claim of section 776.032 immunity." Id. at 462. This Court thus

rejected the Fourth District's view that all the State had to do to defeat a motion to dismiss was to

demonstrate, under a rule 3.190(d) traverse or demurrer, the existence of a factual dispute as to

whether the defendant's use of force was justified. Id. at 458. Instead, we agreed with the First District's

approach in Peterson that provided for an evidentiary hearing during which the trial court would determine

whether the defendant is entitled o statutory immunity. Id. at 463. We stated as follows:

We conclude that where a criminal defendant files a motion to dismiss on the basis of section

776.032, the trial court should decide the factual question of the applicability of the statutory

immunity. Accordingly, we disapprove the Fourth District's reasoning in Dennis and approve the

reasoning of Peterson on that issue.

Id. at 458.

The burden of proof was discussed in both initial and supplemental briefing in Dennis, and the defendant,

who was represented by the Public Defender's Office, urged that we adopt the remedy of an evidentiary

hearing where the defendant proves by a preponderance of the evidence that the charges

should be dismissed because he or she is entitled to Stand Your Ground immunity. This position was

confirmed by counsel for the defendant during oral argument in Dennis.[6]

Yet, the only mention of the burden of proof in the

Dennis opinion is within the following extensive excerpt from Peterson, in which this Court recited the

district court's holding:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must

decide the matter by confronting and weighing only factual disputes. The court may not deny a

motion simply because factual disputes exist. Here, the trial court did what was required.

Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his

criminal trial.

In the absence of a procedure for handling these matters, we find guidance from the Colorado

Supreme Court's decision in People v. Guenther,



740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado's similar immunity statute

authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not

merely create an affirmative defense for adjudication at trial. Id. at 976. The court further

determined that a defendant raising the immunity would have the burden of establishing the factual

prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The

court imposed the same burden of proof as it would in motions for postconviction relief or

motions to suppress. Id.

Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when

such a claim is raised, the trial court must determine whether the defendant has shown by a

preponderance of the evidence that the immunity attaches. As noted by the trial court, courts have

imposed a similar burden for motions challenging the voluntariness of a confession. See, e.g.,

McDole v. State, 283 So. 2d 553, 554 (Fla. 1973). We reject any suggestion that the procedure

established by rule 3.190(c) should control so as to require denial of a motion whenever a material

issue of fact appears.

51 So. 3d at 459-60 (emphasis added) (quoting Peterson, 983 So. 2d at 29-30).

After analyzing the appropriate procedure for pretrial

claims of Stand Your Ground immunity, we concluded that the procedure set forth in Peterson "best

effectuates the intent of the Legislature." Id. at 463. However, although this Court adopted the Peterson

procedure and quoted the Peterson court's discussion of the burden of proof, an analysis of the burden of

proof was not an explicit part of our direct holding in

Dennis. Rather, the issue this Court resolved was whether the defendant was entitled to an evidentiary

hearing on the motion to dismiss. Thus, because this Court in Dennis did not directly address the burden of

proof, we proceed to analyze and decide that issue.

II. The Burden of Proof

After our decision in Dennis, each of the district courts, in reliance on either Peterson or Dennis, have

placed the burden of proof on the defendant to establish entitlement to immunity by a preponderance

of the evidence at the pretrial evidentiary hearing. See, e.g., Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st

DCA 2012); State v. Gallo, 76 So. 3d 407, 409 & n.2 (Fla. 2d DCA 2011); State v. Vino, 100 So. 3d 716,

717 (Fla. 3d DCA 2012); Joseph v. State, 103 So. 3d 227, 230 (Fla. 4th DCA 2012); Bretherick, 135 So. 3d

at 340. Even before this Court's decision in Dennis, all of Florida's district courts other than the Fourth

District had addressed this issue and had explicitly agreed with the First District in Peterson to require a

pretrial evidentiary hearing, in which the defendant has the burden to prove entitlement to Stand Your

Ground immunity by a preponderance of the evidence. See McDaniel v. State, 24 So. 3d 654, 656

(Fla. 2d DCA 2009); State v. Yaqubie, 51 So. 3d 474, 475 (Fla. 3d DCA 2010); Gray v. State, 13 So. 3d 114,

115 (Fla. 5th DCA 2009).

We now agree with all of the district courts and hold that the defendant bears the burden of proof, by a

preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at the

pretrial evidentiary hearing. Numerous reasons support our conclusion.

First, in providing for the Stand Your Ground

immunity, the Legislature did not confer upon every



person in Florida blanket immunity from criminal prosecution, but instead provided immunity only to

those whose use of force was justified, as specified by statute. See 776.032, Fla. Stat. (providing that

the use of force is justified only when used as permitted by sections 776.012, 776.013, or 776.031).

Although the Legislature did not set forth a procedure to test a defendant's claim of statutory immunity, the

procedure this Court adopted in Dennis gave effect to the Legislature's intent to provide an eligible

defendant with statutory protection extending beyond the ability to assert at trial the affirmative defense of

self-defense. The resulting procedure allows a defendant to establish, at a pretrial evidentiary

hearing, that he or she acted in accordance with the statutory requirements and is thus entitled to the

immunity, in order to avoid criminal prosecution.

Second, as the State points out, no court in this country has required, at a pretrial evidentiary hearing,

the prosecution to disprove beyond a reasonable doubt that the use of force by a defendant was

justified. The highest courts in three states-Colorado, Georgia, and South Carolina-agree with a procedure

similar to that described in Peterson, as approved by Dennis. See State v. Duncan, 709 S.E.2d 662, 665

(S.C. 2011); Bunn v. State, 667 S.E.2d 605, 608 (Ga. 2008); People v. Guenther, 740 P.2d 971, 972 (Colo.

1987). These courts have adopted a procedure in which the defendant bears the burden of proof, by a

preponderance of the evidence at a pretrial evidentiary hearing, in the context of their analogous

immunity laws.

Bretherick's reliance on cases from Kentucky and Kansas is misplaced because neither of those states

has adopted a procedure in which the burden of proof is on the prosecution beyond a reasonable doubt at

the pretrial stage. In Rodgers v. Commonwealth, 285

S.W.3d 740, 755 (Ky. 2009), the Supreme Court of Kentucky explicitly rejected the defendant's argument

that he was entitled to a pretrial evidentiary hearing to determine his entitlement to immunity. Instead, the

Supreme Court of Kentucky held that the prosecution had to establish only that there was probable cause

that the defendant's use of force was not legally justified. Id. at 754. This Court rejected this procedure

in Dennis as inconsistent with the legislative intent in Florida to provide greater protection from prosecution

to defendants who have used justifiable force. 51 So. 3d at 462.

The Supreme Court of Kansas similarly concluded

that the prosecution merely had to establish probable cause that the defendant's use of force was unlawful,

but declined to address whether the defendant was entitled to a pretrial evidentiary hearing. See State v.

Ultreras, 295 P.3d 1020, 1031 (Kan. 2013). In reaching its decision, the Supreme Court of Kansas

specifically distinguished the Kansas statute from the Florida statute and concluded that the Rodgers

rationale from Kentucky was more consistent with the Kansas statute than the decisions from Florida and

Colorado. Id. at 1030-31. Because the Florida Legislature intended to foster more protection from

prosecution, Florida's statute is distinguishable, and the decisions from Kansas and Kentucky therefore do

not support Bretherick's position.

Third, placing the burden of proof on the defendant is consistent with how other types of motions to dismiss

are handled under Florida Rule of Criminal Procedure 3.190(b). Rule 3.190(b) sets out procedures for the

filing and consideration of a motion to dismiss in a criminal proceeding. As then-Chief Judge Gross

explained in his special concurrence in Govoni v. State, 17 So. 3d 809 (Fla. 4th DCA 2009), quashed,

67 So. 3d 1048 (Fla. 2011), the procedure set forth in



rule 3.190(b) is well-suited for motions to dismiss based on statutory immunity and is consistent with

jurisprudence that requires the defendant, who is seeking the immunity, to bear the burden of proof by a

preponderance of the evidence:

A motion to dismiss under rule 3.190(c)(4) is not well-suited to resolve a claim of "true immunity"

from prosecution. In most cases, where a prosecutor has elected to file charges, there will

be a factual dispute about whether section 776.032 immunity applies. Rule 3.190(c)(4) is

structured to avoid a judge's resolution of factual disputes, leaving those matters to the finder of

fact at a trial. A rule 3.190(c)(4) motion to dismiss is similar to a motion for summary judgment in a

civil case, and as such "[b]oth should be granted sparingly." State v. Bonebright, 742 So. 2d 290,

291 (Fla. 1st DCA 1998); see State v. Kalogeropolous, 758 So. 2d 110, 111 (Fla. 2000).

Yet, forcing disputed immunity claims to trial undercuts the concept of immunity adopted by the

legislature.

Rule 3.190 allows for contested hearings on motions to dismiss. The rule does not limit the

grounds upon which a motion to dismiss may be filed. . . . The rule uses the terms "defenses" and

"defense" broadly, so that it encompasses a claim to section 776.032 immunity. The four grounds

specified in rule 3.190(c)(1)-(4)-that the defendant has been pardoned, previously been placed in

jeopardy, previously been granted immunity, or that the undisputed facts do not establish a prima

facie case of guilt-are not the exclusive grounds allowed under the rule. Rather, the rule states that

those four grounds "may at any time [be] entertain[ed]" by the court. Rule 3.190(d)

expressly contemplates hearings to resolve

disputed issues of fact when it says, "[t]he court may receive evidence on any issue of fact

necessary to the decision on the motion." . . . The first district held that "when immunity

under this law is properly raised by a defendant," the trial court "may not deny a motion [to dismiss]

simply because factual disputes exist." Id. Faced with a factual conflict, a court must hold a hearing

to confront and weigh the factual disputes, so that it can "determine whether the defendant has

shown by a preponderance of the evidence that the immunity attaches." Id. Peterson's procedure

for a contested evidentiary hearing fits within the framework of rule 3.190.

Holding a hearing on a section 776.032 immunity

claim is not a oddity in the criminal law. A court performs a similar function when it resolves a claim

involving a different type of immunity under rule 3.190(c)(3), a claim that prosecution is barred

because the defendant has transactional immunity. See, e.g., State v. Toogood, 349 So. 2d 1203 (Fla. 2d

DCA 1977) (involving statutory transactional immunity under section 914.04, Florida Statutes (1975)). When

a defendant moves to dismiss under rule 3.190(c)(3), he must offer evidence to support his motion. See

State v. Montgomery, 310 So. 2d 440 (Fla. 3d DCA 1975). Also, courts resolve disputed fact issues when

considering motions to suppress under subsections 3.190(h) and (i). The existing rule can thus embrace

the procedure established by the first district in Peterson.

17 So. 3d at 810-11 (Gross, C.J., concurring

specially) (alterations in original). As explained by Judge Gross, the procedures for pretrial motions to

dismiss, based on this Court's precedent, all require the defendant to offer the evidence in support of the

motion, rather than placing the burden on the State.



Fourth, to place the burden on the State to prove,

beyond a reasonable doubt, that the defendant was not entitled to immunity would require the State to

establish the same degree of proof twice-once pretrial and again at trial. This would essentially result in two

full-blown trials: one before the trial judge and then another before the jury. Additionally, the pretrial

evidentiary issue focuses not on whether the defendant has committed the crime with which he or

she is charged, but rather on whether the defendant was justified in "standing his or her ground." As the

Colorado Supreme Court has recognized, "the accused presumably has a greater knowledge of the

existence or nonexistence of the facts which would call into play the protective shield of the statute and,

under these circumstances, should be in a better position than the prosecution to establish the

existence of those statutory conditions which entitle him to immunity." Guenther, 740 P.2d at 980.

Placing the pretrial burden on the State beyond a

reasonable doubt would provide no disincentive for a defendant to file a motion to dismiss in order to obtain

a complete preview of the State's entire case, including its rebuttal of the defendant's potentially

meritless argument-which may not be supported by any evidence-that the use of force was justified. If, at

the pretrial stage of litigation, the State did not possess all the evidence to refute the alleged

justifications for a defendant's use of force, the defendant would be found immune from prosecution

because the State could not disprove the justifications for the use of force beyond a reasonable doubt. The

State has aptly described the result: "a process fraught with potential for abuse."

Requiring the State to prove its case twice would also

cause a tremendous expenditure of time and

resources. Undoubtedly, interests in practicality, expense, and judicial economy do not outweigh the

defendant's right to a fair determination of guilt or innocence. See State v. Williams, 453 So. 2d 824,

825 (Fla. 1984). However, the defendant's opportunity for a fair determination of guilt or innocence is not

diminished by placing upon him or her the burden of proof at the pretrial stage, as the State still has to

prove its case and all of the elements of the crime beyond a reasonable doubt at trial.

Finally, we reject Bretherick's argument that the

standard for determining immunity for claims brought under 42 U.S.C. 1983 should be applied in the

context of immunity under the Stand Your Ground law. This argument lacks merit. Bretherick has not

presented this Court with a single case in which the standard for determining immunity from claims

brought under 42 U.S.C. 1983 was applied in the context of a criminal defendant seeking immunity from

prosecution in state court.

The considerations involved in determining immunity from suit in the context of 1983 for law enforcement

officials are different from those involved in evaluating claims of immunity from prosecution under the Stand

Your Ground law. The two statutes concern different actors operating in completely different capacities and

were enacted by different legislative bodies based upon vastly different policy rationales. See, e.g.,

Wyatt v. Cole, 504 U.S. 158, 167 (1992) (noting that "special policy concerns" mandating qualified

immunity for government officials under 1983 included the need to "preserve their ability to serve

the public good or to ensure that talented candidates were not deterred by the threat of damages suits from

entering public service"). Even in cases involving 1983 immunity, however, the individuals claiming

immunity carry the initial burden of establishing that



they were qualified for immunity at the time of the incident. See, e.g., Gentile v. Bauder, 718 So. 2d 781,

784 (Fla. 1998) (explaining that a government official claiming qualified immunity has the initial burden of

demonstrating that he was acting within his discretionary authority before the burden shifts to the

plaintiff).

In conclusion, although the Legislature has not explicitly stated which party should bear the burden of

proof in establishing whether a defendant is entitled to immunity under the Stand Your Ground law, there is

nothing in the statutory scheme, in our prior jurisprudence, or in jurisprudence throughout the

country that would dictate placing the burden at the pretrial evidentiary hearing on the State to disprove

the claim of immunity beyond a reasonable doubt. Not only does the defendant have the opportunity to

challenge the initial probable cause determination for the arrest, he or she has an additional opportunity to

avoid a trial altogether by proving entitlement to immunity at the pretrial evidentiary hearing and, if the

immunity is denied, to challenge the trial court's denial of the motion to dismiss via a petition for writ of

prohibition to the appellate court. These procedures are available to the defendant who is unsuccessful at

each stage of establishing immunity, before the trial has even begun. Then, if the motion to dismiss and

the petition for writ of prohibition are denied, as in Bretherick's case, the defendant has yet another

opportunity to claim self-defense as an affirmative defense at trial. Thus, we effectuate the legislative

intent to provide this immunity to eligible defendants while not unduly hampering the State's ability to

prosecute violations of Florida's legislatively enacted criminal law.[7]

CONCLUSION

We conclude that placing the burden of proof on the defendant to establish entitlement to Stand Your

Ground immunity by a preponderance of the evidence at the pretrial evidentiary hearing, rather than on the

State to prove beyond a reasonable doubt that the defendant's use of force was not justified, is

consistent with this Court's precedent and gives effect to the legislative intent. While we recognize that the

Stand Your Ground law is intended to be an immunity from prosecution as opposed to just an affirmative

defense, the immunity is not a blanket immunity, but rather, requires the establishment that the use of

force was legally justified.

Accordingly, for the reasons we have explained, we answer the certified question in the negative, approve

the decision of the Fifth District, and remand this case for proceedings consistent with this opinion.[8]

It is so ordered.

LABARGA, C.J., and QUINCE and PERRY, JJ.,

concur.

LEWIS, J., concurs in result.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION, AND IF FILED, DETERMINED.

CANADY, J., dissenting.

I would answer the certified question in the

affirmative, quash the Fifth District's decision, and disapprove the other decisions that have held that a

defendant has the burden of establishing entitlement



to Stand Your Ground immunity in order to avoid trial. Accordingly, I dissent.

As the majority recognizes, our core holding in Dennis

v. State, 51 So. 3d 456, 458 (Fla. 2010), was that "where a criminal defendant files a motion to dismiss

on the basis of section 776.032, the trial court should decide the factual question of the applicability of the

statutory immunity." We reached this conclusion because "the plain language of section 776.032

grants defendants a substantive right to assert immunity from prosecution and to avoid being

subjected to a trial." Id. at 462.

The majority's decision here, however, fails to recognize the essential nature of the factual question

that the trial court must decide. The factual question raised by the assertion of Stand Your Ground

immunity in a pretrial evidentiary hearing is the same as the factual question raised by a Stand Your

Ground defense presented at trial: whether the evidence establishes beyond a reasonable doubt that

the defendant's conduct was not justified under the governing statutory standard. The State does not

dispute that a defendant presenting a Stand Your Ground defense can only be convicted if the State

proves beyond a reasonable doubt that the defense does not apply. See, e.g., Alexander v. State, 121 So.

3d 1185, 1188 (Fla. 1st DCA 2013); Leasure v. State, 105 So. 3d 5, 13 (Fla. 2d DCA 2012); Montijo v. State,

61 So. 3d 424, 427 (Fla. 5th DCA 2011); see also Fla. Std. Jury Inst. (Crim.) 3.6(f)-(g). By imposing the

burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails

the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law. There

is no reason to believe that the Legislature intended for a defendant to be denied immunity and subjected

to trial when that defendant would be entitled to

acquittal at trial on the basis of a Stand Your Ground defense. But the majority's decision here guarantees

that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of

immunity from trial.

The majority's argument that the burden should be placed on the defendant because it is easier for a

defendant to prove entitlement to immunity than it is for the State to disprove entitlement to immunity has

no more force in the context of a pretrial evidentiary hearing than it does in the context of a trial, where it

admittedly has no application. That argument has no basis in the text of the Stand Your Ground law.

Similarly, the majority's concern that placing the burden of proof on the State in the pretrial evidentiary

hearing will potentially result in "two full-blown trials"-by no means a specious concern-cannot justify

curtailing the immunity from trial under the Stand Your Ground law for those individuals whose use of force

or threat of force is legally justified under the governing statutory standard. Practical problems

raised by the Stand Your Ground law are a matter for the Legislature to consider and resolve.

The State has conceded that if the certified question

is answered in the affirmative, this case should be remanded to the trial court for reconsideration in light

of the appropriate burden of proof. Having concluded that the certified question should be answered in the

affirmative, I would therefore quash the decision on review and remand the case for reconsideration by

the trial court.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance

Fifth District - Case No. 5D12-3840



(Osceola County)Eric J. Friday of Fletcher & Phillips, Jacksonville,

Florida; and Dawn L. Drellos-Thompson, Naples, Florida, for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Harold Heidt, Bureau Chief, Criminal

Appeals, and Kristen Lynn Davenport, Assistant Attorney General, Daytona Beach, Florida, or

RespondentJohn C. Frazer, National Rifle Association of America,

Fairfax, Virginia; and Jason Brent Gonzalez of Shutts & Bowen LLP, Tallahassee, Florida, for Amicus Curiae

National Rifle Association of America

Lesley Rickard McKinney of McKinney, Wilkes, & Mee, PLLC, Jacksonville, Florida, for Amicus Curiae

Florida Carry, Inc.Arthur Ivan Jacobs of Jacobs Sholz & Associates,

LLC, Fernandina Beach, Florida, for Amicus Curiae the Florida Prosecuting Attorneys Association, Inc.

__________________________________________________________________________________________



INDIANA

Quarles v. State, 2015 Ind. App. Unpub. LEXIS 747 (IN Ct. App. 2015)

Key issues:

Self-defense, elements

Burden of production, on the defendant

Burden of persuasion, on the State, beyond a reasonable doubt

Innocence, first aggressor, mutual combat

Innocence, regaining innocence, withdrawal

Date: July 7, 2015

Decision:

Case Summary

Vincent D. Quarles Jr. was convicted of Class B felony aggravated battery for shooting a victim in the

face during a group fight outside a bar in Kokomo, Indiana. Quarles now appeals arguing that the State

failed to rebut his claim of self-defense. Although Quarles was not a part of the original fight, he willingly

became part of the fight when he retrieved a gun from a parked car and followed the victim to his car and

shot him in the face. Because the evidence is sufficient to rebut Quarles' self-defense claim, we

affirm.

Facts and Procedural History

The facts most favorable to the verdict reveal that in the early morning hours of July 6, 2012, Debriel

Scales, his cousin Durone Parker, and his sister Danielle Scales left a strip club, and Danielle drove

them to Rock Bottom Grill in Kokomo to continue drinking. A surveillance camera at the front entrance

of the bar captured most of the events that unfolded.

See Ex. 2 (surveillance footage from Camera 1). Upon arrival, Debriel and Durone exited Danielle's car

and walked toward the front entrance of the bar. Four men, including Tyson Deckard, were standing outside

the front entrance; Quarles was inside the bar. Tr. p. 236. As Debriel and Durone walked past the group,

Tyson came up from behind Durone and punched him, knocking him to the ground. Id. at 236-37; Ex. 2

(2:45:55 a.m. on surveillance video). When Debriel went to help his cousin Durone, he became involved

in the fight too. Tr. p. 193. Danielle got out of her car to see what was going on. After realizing that Debriel

and Durone were being jumped, she returned to her car to get some five-pound hand weights in an

attempt to stop the fight and pulled her car near the front entrance of the bar. Id. at 76. But the fighting

continued.

A few minutes later, a man in a blue-striped shirt--later identified as Quarles--exited the bar and walked

toward the fight. Id. at 239; Ex. 2 (2:49:38 on the surveillance video). At this point, Debriel had just

gotten in and out of Danielle's car.1 Tr. p. 239; Ex. 2



(2:49:43-2:49:52 on surveillance video). When Debriel approached the group, Quarles ran through the bar's

parking lot and across Plate Street to where his car was parked. Tr. p. 239, 320. Quarles then ran back

across the street to the bar's parking lot. Id. at 240. When Quarles rejoined the group, he had a gun in his

hand. Id.; Ex. 2 (2:51:26 on surveillance video); Ex. 16 (still shot taken from surveillance video showing

gun in Quarles' hand). As Debriel walked to Danielle's car, the group, including Quarles, closed in on him.

Multiple shots were fired; Debriel was shot in the face but survived. Danielle saw Quarles shoot Debriel but

did not know his name at that time. Tr. p. 95. She later identified Quarles as the shooter. Debriel, Durone,

and Danielle did not have guns on them, and no guns were found in Danielle's car or on the scene. Quarles

later gave police the gun he used to shoot Debriel.

The State charged Quarles with Class A felony attempted murder and Class B felony aggravated

battery. Appellant's App. p. 12. Quarles argued self-defense at trial. Following a jury trial, the jury found

Quarles not guilty of attempted murder but guilty of aggravated battery. Id. at 126. The trial court

sentenced Quarles to fifteen years, with thirteen years executed in the Indiana Department of Correction and

two years executed through Howard County Community Corrections for in-home detention. Id. at

132.

Quarles now appeals his aggravated-battery conviction.

Discussion and Decision

Quarles contends that the State failed to rebut his

claim of self-defense. The standard of review for a challenge to the sufficiency of evidence to rebut a

claim of self-defense is the same as the standard for

any sufficiency-of-the-evidence claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh

the evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to

support the conclusion of the trier of fact, then the verdict will not be disturbed. Id.

A valid claim of self-defense is legal justification for an

otherwise criminal act. Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). Indiana Code section

35-41-3-2 provides:

(c) A person is justified in using reasonable force against any other person to protect the person or a

third person from what the person reasonably believes to be the imminent use of unlawful force.

However, a person:

(1) is justified in using deadly force; and(2) does not have a duty to retreat; if the person

reasonably believes that that force is necessary to prevent serious bodily injury to the person or a

third person or the commission of a forcible felony. No person in this state shall be placed in legal

jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means

necessary.

In order to prevail on a claim of self-defense, a defendant must show: (1) he was in a place where he

had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of death or great bodily harm.

Coleman, 946 N.E.2d at 1165. Once a defendant claims self-defense, the State bears the burden of

disproving at least one of these elements beyond a reasonable doubt for the defendant's claim to fail.

Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). The State may meet this burden by rebutting the defense

directly, by affirmatively showing the defendant did not



act in self-defense, or by simply relying upon the sufficiency of its evidence in chief. Id. Whether the

State has met its burden is a question of fact for the fact-finder. Id. Self-defense is generally unavailable to

a defendant who has entered into combat with another person or is the initial aggressor, "unless the

person withdraws from the encounter and communicates to the other person the intent to do so

and the other person nevertheless continues or threatens to continue unlawful action." See Ind. Code

35-41-3-2(g)(3); see also Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999) ("An 'initial aggressor' and

those who 'enter into combat' (i.e., mutually willing combatants) [must] declare an armistice before they

may claim self-defense."), reh'g denied.

We find that the State has negated at least one element of Quarles' self-defense claim--that Quarles

did not act without fault. The evidence shows that Quarles was not involved in the initial fight. Instead,

Quarles exited the bar while the fight was occurring and ran across the street to his parked car. When

Quarles ran back across the street, he had a gun in his hand. As Debriel walked to Danielle's car, Quarles

approached the unarmed Debriel and shot him in the face. Tr. p. 320. Because Quarles participated

willingly in the violence, we conclude that the evidence is sufficient to rebut his self-defense claim.

Affirmed.

__________________________________________________________________________________________



TEXAS

Bonner v. State, 2015 Tex. App. LEXIS 7013 (TX Ct. App. 2015)

Key issues:

Self-defense, elements

Burden of production, on the defendant d

Date: July 9, 2015

Decision:

By one issue, appellant Dedrick Roy Bonner alleges the trial court committed reversible error by not

including an instruction on self-defense in the jury charge. We affirm.

I. Background

Bonner and a co-defendant, Donnell Dilworth, were

both charged by a shared indictment with two counts. The first count was for the capital murder of Jerry

Paul James, and the second count was for the aggravated assault of Allaceia Stephany. See Tex.

Penal Code Ann. 19.03, 22.02. (West, Westlaw through Chapter 46 2015 R.S.) Both co-defendants

pleaded not guilty and were tried together in a consolidated trial before a jury.1

The evidence showed that on April 24, 2012, Bonner

and Dilworth visited James's apartment because, according to Bonner, James had wanted to fight

Dilworth for calling him a "snitch." The men resolved their differences and everyone left. However, Bonner

asserts that James later called him and told Dilworth and Bonner to return because he wanted to fight

Dilworth after all. Bonner and Dilworth returned and approached James's apartment. Although the events

that followed were disputed by witnesses at trial, all concede that Dilworth and James were going to

engage in a physical fight to resolve their differences.

Bonner testified during the jury trial and stated that James ran out of his apartment at Dilworth, but then

turned and came at Bonner, clutching knives in both hands. Bonner testified that he started

"backpedaling", fearing for his life, pulled the handgun he carried out of his waistband, and shot at James.

Bonner also testified he saw Stephany coming at him and shot in her direction.

Stephany disputed Bonner's testimony and said that

Dilworth and James were "squaring off" to fight when Bonner walked up and "just shot James in the head".

She stated she yelled at Bonner, and he turned, pointed the gun at her, and shot her in the leg.

At the conclusion of the trial, both Bonner and

Dilworth requested a self-defense instruction in the jury charge and filed their shared version of the

proposed instruction with the trial court. The State objected to the proposed instruction arguing that both

defendants had committed actions that denied their right to raise a self-defense claim. The trial court



agreed with the State and did not include a self-defense instruction in the jury charge. The jury found

Bonner guilty of capital murder and aggravated assault. He was sentenced to life without parole and

thirty-five years imprisonment, respectively, in the Texas Department of Criminal Justice--Institutional

Division. This appeal followed.

II. Self Defense In The Jury Charge

By his sole issue, Bonner alleges that the trial court committed reversible error by not including his

requested instruction on self-defense in the jury charge.

A. Standard of Review

[ . . . ]

B. Applicable Law

Self-defense is defined by the use of force.

(a) A person is justified in using force against

another when and to the degree the actor reasonably believes the force is immediately

necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's

belief that the force was immediately necessary as described by this subsection is presumed to be

reasonable if the actor:. . . .

(2) did not provoke the person against whom the force was used; and (3) was not otherwise

engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or

ordinance regulating traffic at the time the force was used.

Tex. Penal Code Ann. 9.31(a)(2),(3).

(b) The use of force against another is not justified:

. . . .(4) if the actor provoked the other's use or

attempted use of unlawful force. . . .

or (5) if the actor sought an explanation from or discussion with the other person concerning the

actor's differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

Tex. Penal Code Ann. 9.31(b)(4),(5)(A,B).

"Reasonable belief" is defined as "a belief that would

be held by an ordinary and prudent man in the same circumstances as the actor." Tex. Penal Code Ann.

1.07(a)(42). In order to invoke the use of deadly force, Bonner must show he met the elements under 9.31

in addition to the elements under 9.32. See Tex. Penal Code Ann. 9.31, 9.32. The elements of self-

defense involving the use of deadly force are:

(a) a person is justified in using deadly force against another: (1) if the actor would be justified

in using force against another under Section 9.31 and (2) when and to the degree the actor

reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force.

Tex. Penal Code Ann. 9.32(a)(1),(2)(A). However,

the belief that:



(b) deadly force was immediately necessary as

described by that subdivision is presumed to be reasonable if the actor:

. . . .(2) did not provoke the person against whom the

force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C

misdemeanor that is a violation of a law. . . .

Id. at (b)(2),(3).

It is well settled that if the evidence raises the issue of self-defense, the accused is entitled to have it

submitted to the jury. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984) (en banc). However, even

if the evidence viewed in the light most favorable to the defendant raises a "prima-facie defense, no error

is shown in the denial of a defensive instruction if the evidence establishes as a matter of law that the

defendant is not entitled to rely on this defense." Johnson v. State, 157 S.W.3d 48, 50 (Tex. Crim.

App.--Waco 2004, no pet.); see Dyson, 672 S.W.2d at 463-65. A defendant is "not entitled to a self-defense

instruction if the evidence establishes as a matter of law that one of the exceptions to self-defense listed in

section 9.31(b) applies." Id.; see also Tex. Penal Code Ann. 9.31(b).

C. Analysis

Bonner argues that he was entitled to a self-defense

instruction in the jury charge, his attorney requested one, and the trial court erred in denying the

instruction. The State challenges that assertion stating that Bonner was not entitled to a self-defense

instruction based on the exceptions found in section 9.31(b) of the penal code. Id. We agree with the

State's assertions.

Although there were factual disputes in the testimony

as to how the shooting occurred, Bonner himself testified to facts that did not entitle him to a self-

defense instruction. Bonner testified that he and Dilworth went over the James's apartment to "resolve

an issue" of Dilworth calling James a "snitch." Both defendants believed that James had spoken to the

police regarding a robbery that occurred a short time before this altercation. Bonner testified that Dilworth

and he were involved in that robbery and thought James had "snitched" to the police. Bonner also

testified that he was in "a bad life" and always carried a gun for his protection. He admitted he was affiliated

with a gang, although he stated he was not a member.

Even though Bonner initially claims the men resolved

their differences, Dilworth and Bonner returned to James's apartment again because James wanted to

"fight it out". In other words, Bonner and Dilworth returned to James's apartment knowing that an

altercation would take place. A "defendant is not entitled to a self-defense instruction if the evidence

establishes as a matter of law that one of the exceptions to self-defense listed in section 9.31(b)

applies." Johnson, 157 S.W.3d at 50; Williams v. State, 35 S.W.3d 783, 786 (Tex. App.--Beaumont

2001, pet. ref'd); see also Tex. Penal Code Ann. 9.31(b). And "force used in self-defense is not

justified...if the actor provoked the other's use or attempted use of unlawful force." Dyson, 672 S.W.2d

at 463. By returning to James's apartment, Dilworth and Bonner both provoked the victim's use of force,

thereby extinguishing any possible claim of self-defense. See id.

Additionally, by going to the apartment, Dilworth and

Bonner sought out the victim to discuss their



differences while Bonner was carrying a handgun. Under Section 9.31(b)(5)(A), the use of force or

deadly force would not be justified. Tex. Penal Code Ann. (5)(A). If the "evidence is undisputed that force

was not justified as a matter of law because of section 9.31(b)(5), then a self-defense instruction is barred."

Williams, 35 S.W.3d at 786. In contrast, if Bonner had sought out another person to discuss a problem with,

and gotten into an altercation with James, he could have been entitled to the self-defense instruction. In

Johnson v. State, the court found the defendant was entitled to a self-defense instruction. Johnson, 157

S.W.3d at 51-52. Johnson had gone to his ex-girlfriend's residence looking to speak with her, and

got into an altercation with her current boyfriend who was residing there. Id. A scuffle ensued, and Johnson

shot the boyfriend. Id. The Waco Court held that because Johnson had gone to discuss an issue with a

person other than the victim, he was entitled to a self-defense instruction in the jury charge. Id. Here,

Bonner testified that the men went to the apartment

seeking out James, so the proper scenario that would have entitled Bonner to the instruction does not apply.

Even though Bonner's attorney requested a defensive

instruction on self-defense, the testimony from Bonner himself solidified the fact that he was not

entitled to such instruction. See Tex. Penal Code Ann. 9.31. The trial court did not abuse its discretion in

refusing to include the proposed instruction in the jury charge. Because we do not find error, there is no

need to further evaluate for harm. Almanza, 686 S.W2d at 174.

III. Conclusion

We affirm the judgment of the trial court.

____________________________________________________________________________________________________________________________________________________________________________________



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