In May 2012, Marissa Alexander was convicted of aggravated assault for having fired a gun at her estranged husband and his two children. Under Florida’s “10-20-Life” law she received the mandatory 20-year-sentence for having fired a gun in the commission of a felony.
We wrote about the Alexander case here some weeks ago– The Marissa Alexander Case Wasn’t About “Stand-Your-Ground” Either–following increased attention it received in the aftermath of the Zimmerman acquittal.
Marissa Alexander wins new trial on aggravated assault shooting.
Today, Florida’s 1st District Court of Appeals reversed Alexander’s conviction and ordered that she receive a new trial. The court’s basis for this decision is what they characterize as fundamental error in the jury instructions on self-defense given at trial. See Alexander v. State, 1D12-2469 (FL Ct. App. 2013).
Under Florida law, the defense bears the burden of production on self-defense. That is, there must be some minimal evidence in the record to support a claim of self-defense before the issue may be introduced at trial. Where there is insufficient evidence suggesting self-defense, the defendant will not be permitted to argue self defense.
Importantly, the record must possess this minimal degree of evidence to meet the burden of production on all five of the fundamental principles of the law of self-defense. That is, there must be this minimal degree of evidence showing that the defendant was not the aggressor, that the threat defended against was imminent and otherwise unavoidable, that the degree of force used was proportional to the threat faced, that the defendant violated no duty to retreat, and that the defendant’s conduct was reasonable under the circumstances.
If the record fails to provide at least some evidence on any one of these elements, then whatever force was used cannot be justified as self-defense and the defendant will not be permitted to argue self-defense at trial.
In Florida, however, the amount of evidence needed for each of these five principles is very slight, even if contested by more credible or a greater volume of contrary evidence. Florida case law describes the amount of such evidence needed as being only “prima facie” (literally “on it’s face”) or merely enough to show that it is possible that the defendant acted in self-defense. See State v. Rivera, 719 So.2d 335 (Fla. Dist. Ct. App. 2001) and Murray v. State, 937 So.2d 277 (Fla. 4th Dist. 2006).
Under this standard there was never any serious question, in the instant case, that Marissa Alexander would be permitted to argue self-defense at trial, and indeed that was her primary defense to the aggravated assault charge.
In terms of the defendant’s burden of production, Florida law is pretty much consistent with that of the rest of the country (although some states, such as Maryland, tend to require a higher quantity of convincing evidence than is typically required in Florida courts).
Once the defendant has met their burden of production on self-defense, and thereby successfully gotten self-defense introduced as an issue for the trial court to consider, the question then arises as to which party–the defendant or the State–bears the burden of persuasion for convincing the jury on the merits of the defense.
In Florida and 48 other states, the burden of persuasion lies with the State, which bears the burden of disproving self-defense beyond a reasonable doubt. See Monsanky v. State, 33 So.3d 756 (Fla. Dist. Ct. App. 1998).
As a practical matter, of course, this means that the State need merely disprove one of the five principles of self-defense, prove beyond a reasonable doubt that the defendant was the aggressor OR that the threat defended against was not imminent OR that the force used by the defendant was disproportional to the threat OR that the defendant violated a duty to retreat OR that the defendant’s conduct was unreasonable under the circumstances. If they are successful on any one of these, then self-defense has been successfully disproved. (The exception to this is Ohio, in which the defendant retains the burden of persuasion on each element of self-defense by a preponderance of the evidence.)
In between the very slight evidence on each element of self-defense needed for the defendant to meet his burden of production and the considerably greater degree of evidence that the state needs to disprove at least one element of the self-defense beyond a reasonable doubt, Florida also introduces a middle ground in the form of its self-defense immunity statute.
Under this statute, if the defendant can produce not just some slight evidence in support of every element of self-defense but can instead produce a preponderance of evidence in support of every element of self-defense, they are entitled to immunity from criminal prosecution, and even arrest. This determination can be sought at either the pre-trial stage or during the trial itself. See 776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
In the instant case, Marissa Alexander successfully met her burden of production and was able to have self-defense introduced at trial as her primary legal defense.
She was unable, however, to show the trial court a preponderance of the evidence in support of each element of self-defense, and was therefore denied immunity and was compelled to continue to trial. (It is noteworthy that the State had offered Alexander a three-year plea agreement, which she declined in favor of taking her chances at the trial which resulted in her 20-year mandatory sentence.)
At trial, the jury found her guilty, implicitly concluding that she had failed to raise a reasonable doubt on even one element of the law of self-defense. It was here, however, that the appellate court concluded a fatal error had taken place in her trial, an error of such fundamental proportions that it required her conviction to be reversed and a new trial to be ordered.
Marissa Alexander at original trial.
The error, the appellate court unanimously agreed, was in the trial court’s jury instructions regarding the burden of persuasion on matters of self-defense. As quoted in the appellate decision, the jury was instructed that:
A person is justified in using deadly force if she reasonably believes that such force is necessary to
prevent:
1. imminent death or great bodily harm to herself or another, or
2. the imminent commission of Aggravated Battery against herself or another.AGGRAVATED BATTERY
To prove the crime of Aggravated Battery, the following two elements must be proven beyond a
reasonable doubt. The first element is a definition of battery.
1. Rico Gray Sr. intentionally touched or struck MARISSA DANIELLE ALEXANDER against her will.
2. Rico Gray Sr. in committing the battery intentionally or knowingly caused great bodily harm to MARISSA DANIELLE ALEXANDER.
The first part of that instruction is a perfectly correct statement of the Florida law of self-defense, in that one may use deadly force to defend against the imminent commission of an aggravated battery. See FLJI 3.6(f) Justifiable Use of Deadly Force.
The difficulty arises in the context of the section labelled “AGGRAVATED BATTERY.” Specifically, the instruction would seem to suggest that in order for the defendant to avail themselves of the right to use deadly force to defend against the imminent commission of an aggravated battery they are required to “prove the crime of aggravated batter”, and in particular that they must “prove beyond a reasonable doubt” that their attacker “touched or struck” the defendant.
This misstatement introduces multiple errors. First, as discussed above, the burden of persuasion on the issue of self-defense rests solely on the State, not on the defendant. It is the state that must disprove self-defense beyond a reasonable doubt in Florida.
To put it another way, it is not a condition of self-defense under Florida law that the defendant produce evidence beyond a reasonable doubt that they were facing an imminent aggravated battery. Rather, once self-defense has successfully been introduced at trial, the burden shifts to the state to prove beyond a reasonable doubt that the aggravated battery that forms the basis of the self-defense justification did NOT occur.
Finally, one of the elements the instruction improperly places upon the defendant is that there was an intentional touching of the defendant by the victim (the person claimed to be committing the aggravated battery). There is no requirement under the self-defense law of any state, however, that one must wait until one is actually struck or injured before one may act in self-defense. Rather, you can act in self-defense to prevent the imminent striking or harm. Simply put, you need not allow yourself to be shot by your attacker before you can shoot them in self-defense, assuming all the other elements of self-defense are present.
In addition, there was also difficulty with another part of the instruction read to the jury. Alexander’s claim of self-defense was, of course, a legal defense to the crime with which she was charged, aggravated assault. The trial court instructed the jury that:
JUSTIFIABLE USE OF DEADLY FORCE
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which MARISSA DANIELLE ALEXANDER is charged if the injury to Rico Gray Sr. resulted from the justifiable use of deadly force.
This instruction would seem to imply that Alexander’s use of defensive force may be excused as self-defense only if Gray suffered an injury. In fact, Alexander was charged with aggravated assault rather than aggravated battery precisely because none of the victims of her use of force was actually injured. Thus, this instruction, on the facts of this case, would seem to strip Alexander of her right to justify her use of force as self-defense from the start. Clearly this is incorrect.
It seems clear, then, that the reversal of Alexander’s conviction was fair and appropriate, and that justice is best served if she receives a new trial with correct and proper instructions on the law of self-defense.
Having said that, it is important to note that the evidence in support of Alexander’s claim of self-defense was never very great. She failed in her bid for self-defense immunity, indicating that the trial court deemed her to have failed to show a preponderance of the evidence favored her on at least one of the five elements of self-defense (on the issue of retreat). In addition, much of the evidence she introduced in support of her failure to retreat seems incredible on its face.
For example, a key facet of Alexander’s claim of self-defense was that she was forced to confront Mr. Gray and his two young children with a firearm retrieved from the garage because she was unable to exit the garage due to the doors being inoperable.
However, the evening before, Alexander had driven into and parked in that garage, closing the garage door behind her. Further, there was no evidence introduced that the garage doors had ever failed to operate properly before or after the shooting. In addition, Alexander also had clear opportunity to vacate the home through either the front of back doors, neither of which was obstructed.
In addition, Alexander had been required to physically pass by Gray to enter the garage, where she retrieved a pistol and returned to the confrontation. As the trial court wrote in its rejecting of Alexander’s claim of self-defense immunity, “this is inconsistent with a person who is in genuine fear for his or her life.”
Indeed, even though the appellate court ordered Alexander receive a new trial, they unanimously agreed that whatever evidence supported her claim to self-defense remained below that of a preponderance of the evidence, as they affirmed the trial court’s rejection of Alexander’s claim for self-defense immunity. Such immunity will therefore not be available for Alexander on her re-trial, as a matter of law.
In addition, the fact that it took the jury a mere 12 minutes to convict her at trial of the aggravated assault charge would suggest they did not see even a close call on the issue of self-defense. To what degree such a rapidity of conviction can be attributed to the incorrect jury instruction is, of course, hard to say.
Finally, it is worth noting that the Alexander case has been awash with much of the disinformation of the type that characterized the Zimmerman trial, and has become a target for very similar efforts of political and racial activism.
In hindsight of the conviction, Alexander might well have wondered whether it would have been more prudent for her to accept the three-year plea deal offered her rather than proceed to the trial that resulted in her 20-year sentence. It remains to be seen whether the State, facing the prospect of a re-trial and the political pressures now certain to accompany such a trial, will be able or willing to re-engage Alexander in a plea agreement she may now be more likely to view favorably.
–Andrew, @LawSelfDefense
Andrew F. Branca is an MA lawyer in his third decade of practice, an attorney member of the Armed Citizen Legal Defense Network, and a Guest Instructor on the Law of Self Defense at the Sig Sauer Academy. He is the author of the seminal book “The Law of Self Defense, 2nd Edition”.
Andrew conducts Law of Self Defense Seminars all around the country, and he has also launched a series of LOSD State-Specific Supplements that dive deep into every relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state.
You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.
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Comments
This appeal was decided in record time. It shows that politics played a role.
In Falwell v Florida 5D10-2011 the Appeal Court affirmed a conviction with an erroneous jury instruction that read
The Court “reasoned” that the Defendant had waived a fundamental constitution right (my words) because his lawyer failed to object at trial to the instructions.
a reasonable doubt .
http://www.ebony.com/black-listed/news-views/angela-corey-defends-marissa-alexander-ruling#.UkSuxvnD_3g
Lemme’ see now, Angela Whorey..umm Corey, where have I heard that name before, hmmmmmmm!?
Good to see the fingers Branca 😉
Oh, great analysis..
Yep, she’s still whoring for the black vote. The hypocrisy of her ever-changing positions in relation to the races and status of the parties is crystal clear. The same is true of Pam Bondi.
In your rush to condemn her as a “whore” for “the black vote”, you miss the bit where she stands by the prosecution and stands by the conviction. She thought the jury got it right, and she defended the 10-20-Life laws. This was an appeals court decision, nothing to do with Corey.
Anyway: A black woman shot at a black man and two black kids. How do you figure she’s “whoring for the black vote” by seeking a conviction for the black female shooter?
What do you suppose her position would be if the would-be victims had been white? Or, heaven forbid, “white Hispanics”?
Oh. Such people do not constitute “a lovely family” in her political world.
She learned her lesson well in that boot camp case. Pervert justive to all lengths necessary to appease the black shakedown artists such as the NBPP and the other race hustlers……and all on our dime…..no, make that million$.
I’m just pointing out, she was responsible for sending a black woman to prison for 20 years for firing a warning shot. I’m struggling to see how that was a calculated move to pander to the black community.
BTW, “mandatory 20” seemed rather overly harsh.
Secondly, So friggin’ glad that I broke free from Floriduh, ‘ceptin I do miss my Gators! Chomp..
What about the twelve year old she tried as an adult?
Corey’s grandstanding in that case cost us millions, and in the end Cristian was tried as a child anyway and sentenced to a juvenile facility, which is where he belonged all along, and where I pray he’s getting some much-needed help. His mother recently pleaded guilty to first degree aggravated manslaughter to a child by neglect, and she was released on probation with time served.
A sad, messy case all around.
The mother is a moron and her kid is a monster. May they both rot. The mother is too stupid to be breeding and the kid is a savage who should be locked away from society. We haven’t seen the last of him.
The mother was 16, just a child herself, and in foster care, when she gave birth to the child. The child has been through more hell than I’d wish on any 12-year-old kid, including extreme neglect, rape, and having his father blow his brains out right in front of him. Like I said, sad and messy all around. But I can’t agree with your harsh judgment. We don’t just throw damaged 12-year-old children away in this society. That’s not who we are, that’s not what we do.
That may all well be true–but if this “12-year-old child” is a genuine threat to the rest of us in society, what do you propose? That we NOT lock him away?
I’ve got a wife and three kids out there in the world, I’d prefer there were as few predators, of whatever age, stalking them as possible.
A predator’s sad story of how they came to be a predator, however true and heart-rending, however young they may be today, is no excuse to allow them to continue being a predator.
–Andrew, @LawSelfDefense
Is he really a “predator”, though, or a little kid with no parenting or socialization who, when left alone yet again with his baby half-brother, got fed up and swung him against a bookcase? Maybe if their Mom hadn’t waited 8 hours to get medical attention for the unconscious-but-alive toddler, things might have been different?
I don’t know what the answer is. Statistically, a fatherless boy with his background WILL probably get into trouble again. But I don’t think we can justify locking him away for life based on what happened and the circumstances under which it happened, and I don’t think we can justify locking him away for life based on what he “might” do in the future.
It’s obviously just my opinion, but I still think we should have one serious try at salvaging him. A child like him might still be redeemable.
Anyway, I don’t mind people disagreeing with me. I’m also one of only about eight Floridians who is against capital punishment, so I’m kinda used to it 🙂
Amy I agree with your take on this particular case. I am pleased that in the end he was tried as a child. They should never have considered first degree murder though… it was inappropriate. A lesser charge of assualt of something was more suitable.
The mother should have only been charged with neglect that led to the toddler’s death. Anything else was overkill.
The poor, misunderstood “child”, who is now about 18-19, killed his own toddler brother, his own flesh and blood after already seriously injuring him onve when left alone with him. Most serious repeat offenders have similar histories. I refuse to molly-coddle them. I, you, and other good citizens who have done nothing to deserve a violent attack, or death, should have our lives cut short or live in comas or as paraplegics because of them. We each have only one life. It belongs to us as individuals. We should not, nor will I, silently tolerate these people walking freely among us to visit their violence on the unsuspecting and the vulnerable. If your heart bleeds for them, bleed on. But don’t expect everyone else to share your position. Every so often, actually rather frequently, society produces a demon. They need to be locked away. Consider it the societal “Lemon Law.” If you can’t see that this woman lacks the judgment to make rational and informed decisions about what to do about a violent child large enough and old enough to seriously harm another person, then maybe you should offer yourself up as a mentor to her and her murdering spawn. Move in with them. Let us know how that works out. But if that notion gives you fear, then you are just droning the leftist NIMBY line.
“That’s not who we are, that’s not what we do.” In my opinion, this sentence is a largely meaningless abstraction because you can’t speak for everyone, and the object of the sentence is vague. You have one viewpoint on a matter of public policy not necessarily shared by others. Some of us think that we need protection from dangerous people regardless of age. It’s time to get rid of the therapeutic state, and punish evil. Yes there is such a thing as evil people, and I don’t care how they got that way. I don’t want them running around loose and killing people.
“The poor, misunderstood “child”, who is now about 18-19…”
He turned 14 in January. And he was still 12 when he snapped and caused the injuries to his little brother which eventually led to his death. Trayvon Martin, at 17 years old, was an (air-quotes) “child”. Cristian Fernandez, at 12 years old, actually was a child, no need for air-quotes.
And by the way, there was a mistake in my original comment. His mother was only a 12-year-old child herself when she gave birth to him. Not 16.
—
“…don’t expect everyone else to share your position.” —
Your flamboyantly pugilistic stance would have made more sense if I hadn’t just written, “Anyway, I don’t mind people disagreeing with me. ” I put my beliefs and opinions out there, and you and others put your beliefs and opinions out there, and we don’t agree on this issue, and that’s actually okay!
Now go have a lovely Friday and keep fighting for your vision of Truth, Justice and the America Way, and I’ll do the same 🙂
“However, the evening before, Alexander had driven into and parked in that garage, closing the garage door behind her. Further, there was no evidence introduced that the garage doors had ever failed to operate properly before or after the shooting. In addition, Alexander also had clear opportunity to vacate the home through either the front of back doors, neither of which was obstructed.”
This is where her self defense claim fails.
As to an appeal on the jury instructions, I’m sure the State will be happy to address that in the next trial.
Thank you for the analysis!
I hope Corey offers her another plea, and I hope this time she takes it. I just can’t see with our laws as they’re written how she can claim “self-defense” here, but our mandatory minimums that kick in are ridiculous for crimes like this.
Like Trademark, all she had to do was leave. Instead, she walked past them to retrieve a gun from the garage, just as Trademark chose to brutally assault GZ with his fists. There was no evidence, then, that she acted in fear of her life but rather in anger or retribution.
The appellate decision is probably right, for the reasons stated. But this woman is no martyr of self-defense. I sincerely hope she gets hung out to dry because she is a negative face for self-defense and her actions give impetus to the gun-grabbers.
I never claimed that she was “martyr of self-defense”. I don’t believe she acted in self-defense, and neither did the original jury, and I suspect neither will the next jury. But neither do I think it fair to lock someone away for 20 years – whether it’s a black female like Alexander or a white male like Wollard – for firing a warning shot at someone. People do need to be punished for misusing their firearms, but 20 years imprisonment is ridiculous.
Warning shot? Oh, please. More like poor shot. Maybe you should read Andrew’s newest post: https://legalinsurrection.com/2013/09/the-myth-of-marissa-alexanders-warning-shot/#comments
This was attempted murder. Alexander has a history of other violent acts toward and disturbances with her intended victim. Twenty years is not too much. Is it too much when compared to some sentences for murder? Yes, but those sentences are way too short. The problem is not with this sentence. The problem is with the sentences it’s been compared to.
No it was not. That’s not what she was charged with, that’s not was she was found guilty of, and that’s not what she was sent to prison for 20 years for.
In your opinion, twenty years is not too much for a conviction of aggravated assault, where no one even gets hurt? So Ronald Thompson’s and Orville Lee Wollard’s sentences were righteous as well?
You know, you’re a lot more like Angela Corey than you give yourself credit for.
I know what she was charged with and convicted of. She was undercharged because she’s black. The aggravated assault charge was a gift. She was also rewarded for being a poor shot. She tried to kill the guy. Period.
As for your snotty little Corey remark, stick it, sweetie.
Good grief. Corey charged her with a crime that could get her 20 years if convicted, she was convicted, and she got 20 years. Corey charged her, a black female, exactly the same as she’s charged white males. And she got the same sentence as those white males. Aggravated assault, use of a firearm, 20 years.
And you’re claiming that Corey went easy on her?
What would you have suggested if anyone had actually been injured in this heinous crime, like if her ex ended up with a splinter from the wood paneling… the death penalty?
Well, in fairness she was charged with a 20-year crime, then offered a 3-year plea. I’m sure no one was more astonished than the prosecutors when the plea was rejected, but once they’ve been publicly slapped in the face what are they going to do but move forward with the prosecution.
Firing a handgun at close range at a man with his hands in the air, barely missing his head, and his two small children (who would have witnessed his violent death had the bullet been a few inches one way or the other) would seem to warrant something more than 3 years to my mind, but I suppose reasonable people can differ on that issue.
–Andrew, @LawSelfDefense
Rather than the SYG law, perhaps people should be reconsidering mandatory sentences generally, and mandatory sentences for use of a firearm specifically. Is it really “better” to be beaten with a baseball bat, or to have your head smashed onto a sidewalk, than to be shot?
There are good arguments to be made that Florida’s mandatory minimums are excessive or poorly drafted.
It is worth keeping in mind, however, why they came into existence in the first place.
Florida judges, using their discretion, were giving minimal or “time served” sentences to society’s worst miscreants–killers, rapists, child molesters–and the citizenry got fed up. There’s a reason why the people go to the trouble of stripping the people elected to make decisions of their decision-making authority–because the decisions being made suck.
Surely there’s a better approach than what is in place now, but simply doing away with mandatory minimums without addressing the underlying problem doesn’t seem the best approach.
–Andrew
Personally, I have never seen anybody sentenced overly severely for a true crime of violence, especially repeat offenders.
AFAIC, we should dig a huge pit out in Death Valley, line it with 20′ of conccrete, build a 500′ high concrete or electrified wall around it, fly a chopper over once a week to drop some food and water, and let ’em fight it out among themselves.
Why do you hate Death Valley? It’s a wonder of the natural world.
Couldn’t we just build a wall around Detroit for that purpose? Can’t imagine who’d miss that place.
–Andrew, @LawSelfDefense
Touche, lol! 🙂
That is well argued and I mostly agree, but at the same time I think it would be appropriate to somehow blunt the force of these sort of laws. I’m not sure that leaving it to the discretion of the prosecutor–quis custodiet ipsos custodes? Especially with people like Corey, where the outcome of a case is just a number on her scorecard.
One of the first ways I would modify the law is to add other weapons to the rule. I know people who have been robbed at knifepoint. Believe me it is just as nasty having a knife at your throat.
I think the best modification of the rule might be to apply a lesser rule to crimes where the perpetrator did not carry the weapon explicitly for use in crimes. Or rather the rule can only applied to crimes where the weapon was being carried by someone who carried it or acquired it knowing that they may use it for criminal purposes.
Another aspect is that juries need to be told the truth in trials.
I understand certain things should be withheld from a jury, but the jury should not be told outright lies by the judge. In particular a jury should not be told that they can find a person guilty of whatever type of murder, or they can find a person guilty of the lesser included charge of manslaughter.
It’s not a “lesser” charge when the punishment is the same or almost the same.
Death is dead. It makes no difference if one is shot to death, stabbed to death, or bludgeoned to death. Perhaps you were speaking of any weapon, but I take your words to mean firearms as “weapons.”
The real issue in this case is the mandatory sentence structure, which was intended to assure serious jail time for hardened criminals but which also snares people like Alexander and Ronald Thompson, people with no past offenses who injured no one. In Alexander’s case she’s a mother with young children and an abusive husband who was sure to get custody of the kids if she agreed to any prison time at all in a plea deal. A more discreet prosecutor might not charge such cases. They certainly wouldn’t hardnose the plea deal by insisting on some prison time. Yet consider that Aaron Alexis wasn’t even charged in two cases in two other states in which he apparently fired shots in anger and no one got hurt. If he had been charged perhaps a dozen people would be alive today.
Sometime the law is indeed an ass.
There’s also the case of Orville Lee Wollard:
http://famm.org/orville-lee-wollard/
That was a travesty as well.
The big question, why hasn’t the governor pardoned him?
The concept of “intent” seems to have fallen by the wayside.
If she’s smart, she’ll take the deal this time around.
If the DA is smart, he’ll up the ante to five years.
Given the facts in this case, it would be difficult for a reasonable person to conclude she acted in self-defense. The evidence is more consistent with someone who was angry, went to the car for her gun, retrieved it and with malice aforethought returned to the house to shoot at the guy.
What seems to have impressed ordinary persons (that is, those NOT intent on grinding their political axes) about this case is how an apparently reasonable verdict was followed by an apparently unreasonable sentence. The explanation, that Florida has some strict sentencing guidelines, may be true enough but is hardly satisfactory considering that a real person, and not some abstraction, will be locked up in a cage for a couple of decades.
How might this second go-around be conducted such that an apparently guilty defendant won’t be so horribly abused by mandatory sentencing laws when a guilty verdict is again returned? Is the plea bargain the only way to do it?
Sadly, the Law doesn’t appear to give a flying fart about real people. It is an intellectual game played by lawyers. The defendant is only a prop. A good example of this, is the abuse of drunk driving laws to persecute the mope riding home on the sidewalk on a lawn mower, or on horseback. It’s not that we must convict him for public safety, but that we can convict him, so we will.
One of the lessons, here, is never to fire warning shots. A warning shot indicates that your life is not in the imminent danger that allows use of a deadly weapon in self defense. By trying to “scare the guy away,” you commit assault with a deadly weapon, even if you fire straight down into the mud. The perp could, indeed, be justified in returning deadly fire in self defense. If you need to shoot, shoot center of mass. There is also the issue of the rounds impacting out of your control, although that risk is minimal with a shotgun.
I used to have a “warning shot round” on my gun belt. It was a No 9 low brass skeet load. Fired up into the air, it is almost perfectly harmless. But it’s too legally dangerous, so I’ve replaced it with buckshot.
This case was so going to result in a conviction of Alexander. The facts at issue in the case do not support the contention that she was in any significant danger of physical attack, when she fired the pistol. Therefor, it was going to require an extreme emotion-based appeal to the jury to win.
The jury instructions WERE fatally flawed and the 1st DCA was correct in their decision to remand the case back to the court for retrial. However, the likelihood of her prevailing in a second trial are no better than in the first.
I am by no means a supporter of Angela Corey. However, she took advantage of a loophole in the mandatory sentencing guidelines that is widely used by prosecutors in Florida. She presented the defendant with a plea bargain which would have reduced her sentence to three years in prison. I really can’t paint Corey as the bad guy in this one.
Mr. Branca explained why minimum mandatory sentences exist in Florida. Judicial abuse was running rampant in the 1980s and 90s and the people became fed up and took some of the discretion out of the hands of judges.