Opinion
Case No. 5D18-3795
07-24-2019
STATE OF FLORIDA, Appellant, v. BRANDON REMELL KIRKLAND, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellant. No Appearance for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Orange County, Gail A. Adams, Judge. Ashley Moody, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellant. No Appearance for Appellee. HARRIS, J.
The State appeals the trial court's order granting Brandon Remell Kirkland's motion to dismiss, arguing that Kirkland was not entitled to statutory immunity under section 776.032, Florida Statutes (2018), commonly referred to as "Florida's Stand Your Ground Law." Because we find that Kirkland was engaged in criminal activity at the time he discharged a firearm, we conclude that the trial court erred in finding that he was entitled to statutory immunity and reverse.
The State charged Kirkland with one count of shooting at, within, or into a building. Kirkland filed a motion to dismiss, arguing that, pursuant to section 776.012, Florida Statutes (2018), he acted in justifiable defense. The motion alleged that after Kirkland exited his vehicle, an unknown male from an apartment began firing a semi-automatic handgun towards him, that Kirkland simply returned fire, and continued firing as two additional males exited an upstairs apartment and began shooting at Kirkland.
At the hearing on Kirkland's motion to dismiss, neither the State nor Kirkland presented live testimony. However, by stipulation, a video of the incident was entered into evidence. This video showed a black SUV pulling into the parking lot of a two-story apartment building. Several men were seated outside the apartment building. The video depicts Kirkland exiting the vehicle from the rear passenger door while carrying a large semi-automatic handgun and waving the gun around as though he intended to threaten or frighten the men. As Kirkland walked towards the seated men, an unknown male appeared from another apartment, pointed a gun towards Kirkland, fired a shot, and then retreated inside the building. Kirkland immediately returned fire, firing several shots towards the apartment building.
Conceding that Kirkland was shot at, the State nonetheless argued that Kirkland was not immune from prosecution because he was engaged in criminal activity. Kirkland responded that the State did not charge him with any additional crimes and further argued that he was not engaged in criminal activity at the time he was fired upon and therefore, he was entitled to respond with deadly force.
After reviewing the video, the trial court granted the motion to dismiss, finding that at the time Kirkland discharged his firearm, he reasonably believed that using such force was necessary to prevent imminent death or great bodily harm to himself. Without further elaboration, the court found that Kirkland was not engaged in criminal activity at the time of the incident. This appeal followed.
When a defendant files a motion to dismiss based upon the Stand Your Ground Law, the trial court must conduct an evidentiary hearing and weigh the factual evidence presented. Dennis v. State, 51 So. 3d 456, 458 (Fla. 2010). Once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at the pretrial immunity hearing, the burden shifts to the State to prove, by clear and convincing evidence, that the defendant is not entitled to immunity from criminal prosecution. § 776.032(4), Fla. Stat. (2018). Under the appellate court's standard of review in a Stand Your Ground case, the trial court's findings of fact are "presumed correct and can be reversed only if they are not supported by competent substantial evidence, while the trial court's legal conclusions are reviewed de novo." Mobley v. State, 132 So. 3d 1160, 1162 (Fla. 3d DCA 2014) (citing State v. Vino, 100 So. 3d 716 (Fla. 3d DCA 2012)).
In this appeal, the State correctly argues that immunity pursuant to section 776.012(2) is unavailable if Kirkland was involved in criminal activity just prior to the shooting. The State further argues that the video clearly established that, in the moments leading up to the shooting, Kirkland was committing any of several crimes, including open carry of a fire arm (a misdemeanor), improper exhibition of a firearm (a misdemeanor), or an aggravated assault with a deadly weapon (a felony). Thus, the State contends, because Kirkland was engaged in criminal activity, he was not entitled to immunity.
Section 776.012(2), provides in pertinent part that:
A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to
use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.In order for Kirkland to be immune from prosecution, the trial court must find from the evidence that, at the time Kirkland used deadly force, "he (1) reasonably believed that using such force was necessary to prevent imminent death or great bodily harm to himself or to prevent the imminent commission of a forcible felony, (2) was not engaged in a criminal activity, and (3) was in a place he had a right to be." State v. Chavers, 230 So. 3d 35, 39 (Fla. 4th DCA 2017). While competent substantial evidence may support the trial court's finding that Kirkland reasonably believed that using such force was necessary to prevent imminent death or great bodily harm to himself and that he was in a place he had a right to be, the evidence does not support the court's finding that Kirkland was not engaged in criminal activity.
We agree with the State that the uncontroverted evidence showed that Kirkland was committing either the crime of open carry of a firearm in violation of section 790.053(1), Florida Statutes (2018) (the video clearly shows, and Kirkland did not dispute, that he was carrying an automatic weapon as he approached the group of men who were seated); or the crime of improper exhibition of a firearm, in violation of section 790.10, Florida Statutes (2018) (Kirkland exited the SUV with an AK-47 in his left hand as he walked towards the group of seated men; he brandished the firearm in such a way that it appeared as though he intended to threaten or frighten the men). This same conduct could also constitute aggravated assault with a firearm in violation of section 784.021(1)(a), Florida Statutes (2018). The fact that Kirkland was not charged with these crimes does not alter our analysis. Because Kirkland was engaged in illegal activity at the time he used or threatened to use deadly force, he is not entitled to benefit from the provisions of the Stand Your Ground Law and the trial court erred in dismissing the State's charges.
REVERSED and REMANDED for further proceedings. BERGER and GROSSHANS, JJ., concur.