Self defense, as changed by the 2005 amendment to Chapter 776, Florida Statutes, includes an immunity from prosecution if one acts in self defense. The laws on this subject matter are still in a state of flux.
Section 776.032 provides that an individual is immune from criminal prosecution if that person acted in self defense, including the use of deadly force to protect oneself from death or great bodily harm, or to prevent a forcible felony. This is one of the major changes to the self defense statute under the laws of Florida.
The other major change concerns when deadly force can be used in self defense. Under section 776.013, an individual no longer needs to retreat, but may meet force with force, including deadly force, if that person is defending against death or great bodily harm and/or a forcible felony in any place where that person has a right to be.
Section 776.013(1)(a) also sets forth a presumption that a person held a reasonable fear of imminent death or great bodily harm if the person against whom the force was used was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered a dwelling, residence or occupied vehicle.
The immunity set forth in section 776.032(1) defines "criminal prosecution" as including "arresting, detaining in custody, and charging or prosecuting the defendant."
It further sets forth in section 776.032(2) that a "law enforcement agency may use standard procedures for investigating the use of force," and an arrest may not occur unless the law enforcement agency "determines there is probable cause that the force that was used was unlawful."
The case of Bartlett v. State, 993 So. 2d 157 (Fla. 1st DCA 2008), presented a situation where the prosecution attempted to use section 776.032(2) to justify testimony by the investigating officer that, in his opinion, the defendant did not act in self defense.
At the trial, the prosecutor advised the trial court of the intention of putting this opinion testimony before the jury because section 776.032(2), required the officer to find probable cause that the force used was unlawful. The chief investigating officer was asked whether he ruled out self defense when he signed the complaint. Over objection, he was allowed to answer that he had.
The defense counsel preserved this issue for appeal by making a timely objection based upon opinion, speculation, relevancy and hearsay.
The appellate court rejected the state's argument that section 776.032(2) made the officer's opinion on self defense admissible. It stated :
Appellant correctly asserts that the mere fact that section 776.032(2) required the investigator(s) to determine whether 'there is probable cause that the force that was used was unlawful' does not automatically bootstrap this information into admissible evidence.
Bartlett at 164.
The issue of immunity under section 776.032 is one ultimately for the judge to determine. It is not relevant in the jury's determination. The jury is called upon to determine whether the defendant acts in self defense when that defense is raised.
The court ruled that the officer's testimony was not expert testimony, as he was not qualified as an expert. The court noted the a distinction between the investigating officer testifying about what he saw, compared with a medical examiner's expert opinion on wounds inflicted being consistent or inconsistent with self defense. The police officer's opinion was nothing more than a lay opinion, and his opinion on that subject matter went to the heart of what the jury had to decide. The court then considered whether the admission of the police officer's opinion that the defendant did not act in self defense constituted harmless error.
The court rejected the state's argument that there was ample evidence of the defendant's guilt, saying that the harmless error test is not merely a review of the evidence to see if it is sufficient to justify a conviction. The following language indicates the significant prejudice that a defendant suffers when the investigating officer testifies:
We note too that the jury could have held the opinions of the lead investigator in higher regard than the testimony of any other lay witness, thereby reinforcing the prejudice caused by Investigator Walton's conclusions. Also, the jury could have inferred that Walton knew certain information that had not been disclosed to the jury, leading the jury impermissibly to speculate as to matters outside the record. SeeMartinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000) (noting "there is an increased danger of prejudice when the investigating officer is allowed to express his...opinion about the defendant's guilt," and the "error in admitting improper testimony may be exacerbated where the testimony comes from a police officer.")
Bartlett at 166-167.
The implications of Chapter 776, and its immunity provision is still being tested in appellate courts.
This firm is presently involved in an appeal to determine the proper standard of proof and burden of proof to be applied in determining whether immunity should be applied to prevent a trial of a defendant based upon self defense. The trial has been stayed while a petition for a writ of certiorari was taken to the Fifth District Court of Appeals. The appellate court has ordered the state to show cause why the writ should not be granted. All briefs have been filed and we are awaiting an opinion.