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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
CASE NO. 1D12-2469
STATE OF FLORIDA,
Opinion filed September 26, 2013.
An appeal from the Circuit Court for Duval County.
James H. Daniel, Judge.
Bruce A. Zimet of Bruce A. Zimet, P.A., Fort Lauderdale, Faith Gay, Alex
Rossmiller, and Molly Alana Karlin of Quinn, Emanuel, Urquhart & Sullivan,
LLP, New York, New York, and for Appellant.
Pamela Jo Bondi, Attorney General, Giselle D. Lylen, Assistant Attorney General,
and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
Convicted of aggravated assault with a deadly weapon for firing what she
described as a warning shot intended to make her husband desist from physical
abuse, Marissa Alexander argues the judgment against her (and her twenty-year
sentence) should be reversed on multiple grounds. We reject her contention that
the trial court erred in declining to grant her immunity from prosecution under
Florida’s Stand Your Ground law, but we remand for a new trial because the jury
instructions on self-defense were erroneous.
Appellant stood trial only after the trial court denied her pretrial motion
seeking immunity from prosecution. 1 She maintains the trial court abused its
discretion in giving a self-defense instruction to the jury that, among other things,
improperly shifted the burden to her to establish, beyond a reasonable doubt, that
Mr. Gray was committing or was about to commit an aggravated battery when she
discharged her pistol. At trial, the only real issue was whether she had acted in
self-defense when she fired the gun. Because the jury instructions on self-defense
were fundamental error, we reverse.
In his opening statement, defense counsel told the jury the appellant was
When the issue has been properly raised, the trial court must “determine
whether the defendant has shown by a preponderance of the evidence that the
immunity attaches.” Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008).
See also Hair v. State, 17 So. 3d 804, 805 (Fla. 1st DCA 2009). The Stand Your
Ground law provides in relevant part:
. . . [A] person is justified in the use of deadly force and
does not have a duty to retreat if:
(1) He or she reasonably believes that 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[.]
§ 776.012, Fla. Stat. (2010). The court may not deny a motion simply because
factual disputes exist; indeed the “court must decide the matter by confronting and
weighing only factual disputes.” Peterson, 983 So. 2d at 29. See Dennis v. State,
51 So. 3d 456, 463 (Fla. 2010). We decline appellant’s invitation to reweigh the
forced to defend herself by firing the gun.
(In closing, he described her as
“terrified.”) After Mr. Gray accused her of infidelity and questioned the paternity
of her week-old baby, she testified, she locked the bathroom door, yelling at him to
leave, but Mr. Gray broke through the door, grabbed her by her neck, and
demanded to know when she last had sexual relations with her ex-husband. She
tried to push past him but he shoved her hard into the bathroom door. After
struggling for what felt like an “eternity,” she testified, he relented and she ran
from the bathroom straight to the garage.
Once inside the garage, appellant testified, she tried to leave the premises
altogether but could not get the garage door open, and instead retrieved a gun (for
which she had a permit) from the glove compartment of a vehicle in the garage.
She then walked back into the house, she said, holding the gun by her side because
she did not know whether Mr. Gray had left or not. As she walked into the
kitchen, Mr. Gray saw the gun, and charged her “in a rage,” saying, “Bitch, I’ll kill
you.” Startled, she raised the gun into the air and fired. Mr. Gray ran. According
to appellant, she was forced to fire her gun into the air as a warning shot because it
was the “lesser of two evils.”
For appellant, she testified, the firing of the gun was the culmination of a
year-and-a-half’s abuse at her husband’s hands. She recounted for the jury at least
three other incidents of physical abuse, beginning shortly after she moved in with
him in early 2009. She described Mr. Gray’s choking her, attempting to strangle
her, almost causing her to lose consciousness, and another occasion, six months
later, when Mr. Gray shoved her repeatedly and violently, causing injuries that
required hospitalization. That time she called law enforcement and Mr. Gray was
arrested. She subsequently obtained a domestic violence injunction against him.
In 2010, she testified, five months after she had become pregnant with Mr. Gray’s
child, he “head-butted” her twice, tore her clothes, and threw her to the ground.
During all these episodes—and at other times, as well—he threatened to kill her,
Several witnesses, including appellant’s daughter, younger sister, mother,
and ex-husband all testified they had seen appellant’s injuries, injuries they
understood Mr. Gray had inflicted. Two of Mr. Gray’s sisters-in-law also testified
that he had a reputation for violence in the community. The final defense witness,
Mia Wilson, Ph.D., testified that the appellant met the criteria for “battered
person’s syndrome.” The prosecution agreed the central question at trial was selfdefense, and argued in closing: “Now at issue is self-defense in this case. . . .
Remember at issue, really at issue in this case is whether Mr. Gray ran towards her,
charged her and said, ‘Bitch I’m going to kill you.’ You have to decide if that
actually happened.” . . . “What this case is about, ladies and gentlemen, is
whether this defendant under the law was justified in her actions of discharging
that gun.” The fundamental question before the jury, the issue on which the jury’s
verdict hinged, was self-defense.
To guide their deliberations, the trial judge instructed the jury on selfdefense but did so in language that was problematic in two important respects, and
which constituted fundamental error as a result.
First, as regards aggravated
battery, the jury was instructed as follows:
A person is justified in using deadly force if she
reasonably believes that such force is necessary to
imminent death or great bodily harm to
herself or another, or
the imminent commission of Aggravated
Battery against herself or another.
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
Rico Gray Sr. intentionally touched or
struck MARISSA DANIELLE ALEXANDER
against her will.
Rico Gray Sr. in committing the battery
intentionally or knowingly caused great bodily
harm to MARISSA DANIELLE ALEXANDER.
(Emphasis added.) By including the phrase “beyond a reasonable doubt” when
giving the instruction on the aggravated battery prong of the self-defense
instruction, the trial court improperly transmuted the prosecution’s burden to prove
guilt beyond a reasonable doubt into a burden on the appellant to prove selfdefense beyond a reasonable doubt, depriving her of a trial under the correct rule.
The defendant’s burden is only to raise a reasonable doubt concerning selfdefense. 2
The defendant does not have the burden to prove the victim guilty of
the aggression defended against beyond a reasonable doubt. “When a defendant
claims self-defense, the State maintains the burden of proving the defendant
committed the crime and did not act in self-defense.” Montijo v. State, 61 So. 3d
424, 427 (Fla. 5th DCA 2011). “The burden never shifts to the defendant to prove
In deciding Montijo v. State, 61 So. 3d 424 (Fla. 5th DCA 2011), the Fifth
District relied on Murray v. State, 937 So. 2d 277 (Fla. 4th DCA 2006), which
involved facts similar to those in the present case. The defendant in Murray
asserted self-defense, alleging he sought to prevent his roommate’s commission of
an aggravated battery, Murray, 937 So. 2d at 278, and the court instructed the jury
that Murray, the defendant, had to prove the elements of aggravated battery beyond
a reasonable doubt. Id. at 279-80. In reversing the conviction, the court’s opinion
asked whether Murray had to “prove the additional facts for self-defense beyond a
reasonable doubt?” The court answered its own question, rhetorical or not:
No, he did not have to prove self-defense beyond a
reasonable doubt. He did not have to prove even that his
additional facts were more likely true than not. The real
nature of his burden concerning his defense of
justification is that his evidence of additional facts need
merely leave the jury with a reasonable doubt about
whether he was justified in using deadly force. Hence, if
he wanted his self-defense to be considered, it was
necessary to present evidence that his justification might
be true. It would then be up to the jury to decide whether
his evidence produced a reasonable doubt about his claim
Id. at 279 (footnote omitted). See also Alvarado v. State, 98 So. 3d 80, 81 (Fla. 5th
DCA 2012) (reaffirming Montijo on similar self-defense instructions).
self-defense beyond a reasonable doubt. Rather, he must simply present enough
evidence to support giving the instruction.” Id.
We reject the state’s argument that the erroneous instructions on self-defense
were not fundamental because self-defense was not appellant’s sole defense.
While not every erroneous jury instruction on an affirmative defense is
fundamental error, see Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008), some
errors reach down into “the legality of the trial itself.” Hamilton v. State, 88 So. 2d
606, 607 (Fla. 1956). Fundamental error occurs where the instruction is “so flawed
as to deprive defendants claiming the defense . . . of a fair trial.” Smith v. State,
521 So. 2d 106, 108 (Fla. 1988). On the evidence adduced below in the present
case, it is entirely possible “that a verdict of guilty could not have been obtained
without the assistance of the error alleged.” Hamilton, 88 So. 2d at 607.
We also agree with appellant, moreover, that the trial court erred in giving
the self-defense instruction when it indicated self-defense applied only if the victim
suffered an “injury.” The appellant was charged with aggravated assault but—
under any possible view of the evidence—inflicted no injury. 3 See Brown v. State,
The jury instruction provided:
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.
59 So. 3d 1217, 1218 (Fla. 4th DCA 2011) (holding standard self-defense jury
instructions which authorized self-defense only if the victim suffered injury did not
adequately state the law and negated appellant’s self-defense theory where no
injury occurred). See also Garrido v. State, 97 So. 3d 291, 294 (Fla. 4th DCA
2012) (citing Brown and Bassallo v. State, 46 So. 3d 1205 (Fla. 4th DCA 2010)).
Under the cases, the jury instructions’ requirement of an injury should have been
eliminated. Since no injury occurred in the present case as a result of appellant’s
firing her gun,4 the trial court erred in giving the standard jury instruction on
justifiable use of deadly force in defense of self.
The defendant was “entitled to have the jury correctly instructed on selfdefense.” Montijo, 61 So. 3d at 427. The trial court committed fundamental error
in requiring proof beyond a reasonable doubt that appellant’s husband committed
aggravated battery immediately before she fired the warning shot, or would have
done so but for the shot. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
LEWIS, C.J., CONCURS; WETHERELL, J., CONCURS IN RESULT WITH
The state argued that “injury” encompasses psychological or emotional
injury such as fear. If so, such a definition should have been made explicit in the
instructions. See Garrido v. State, 97 So. 3d 291, 294-95 (Fla. 4th DCA 2012).
WETHERELL, J., concurring in result.
I agree based on the case law cited in the majority opinion that this case
must be reversed and remanded for a new trial as a result of the fundamentally
erroneous jury instructions pertaining to the issue self-defense, which was the
central issue in this case.
I write separately to emphasize that the facts summarized in the majority
opinion describe the shooting and the events leading up to it in the light most
favorable to Appellant. The jury also heard testimony that painted Appellant as the
aggressor during the incident and directly contradicted Appellant’s version of the
events, including her all-important claim that she only fired the gun because her
husband charged at her in a rage while threatening to kill her.
It was the
prerogative of the jury to determine which version of events to believe and, by its
verdict, it appears that the jury rejected Appellant’s version of events. 5
The trial court likewise rejected Appellant’s version of events when it denied her
claim of immunity under the Stand Your Ground law after making the following
On August 1, 2010, the Defendant shot at or near Rico
Gray Sr. [and his two sons]. The Defendant had not
been living in the marital home for the two months
leading up to the shooting. On the evening of July 31,
2010, the Defendant drove herself to the marital home
and parked in the garage, closing the garage door after
parking her vehicle. The Defendant stayed the night in
the marital home. The next morning, on August 1, 2010,
Rico Gray Sr. arrived at the marital home with his two
sons  and the children entered the home through the
garage door. Rico Gray Sr. made the family breakfast
and nothing went awry.
After breakfast, the Defendant went into the master
bedroom. Before entering the bathroom, the Defendant
handed her phone to Rico Gray Sr. to show him pictures
of their newborn baby , who was still in the hospital.
At that point, the Defendant went into the master
bathroom while Rico Gray Sr. looked through the phone.
While going through the phone, Rico Gray Sr. observed
texts from the Defendant to her ex-husband Lincoln
Alexander prompting Rico Gray Sr. to question whether
the newborn baby was his. At this point, Rico Gray Sr.
opened the bathroom door to confront the Defendant
regarding the texts. A verbal argument ensued between
the Defendant and Rico Gray Sr. For this reason, Rico
Gray Sr. stepped out of the bathroom and yelled for his
sons to put their shoes on because they were leaving.
Rico Gray Sr. returned to the bathroom and demanded
that the Defendant explain the texts and the verbal
argument continued. During the verbal argument Rico
Gray Sr. stood in the doorway to the bathroom and the
Defendant could not get around him. Either Rico Gray
Sr. moved from the doorway or the Defendant pushed
around him to exit the bathroom.
Rico Gray Sr. moved to the living room where his
children were. Subsequently, the Defendant emerged
from the master bedroom and went into the garage where
her car was parked. The Defendant testified she was
trying to leave the residence but could not get the garage
door to open. (The Court notes that despite the
Defendant's claim she was in fear for her life at that point
and trying to get away from Rico Gray she did not leave
the house through the back or front doors which were
unobstructed. Additionally, the garage door had worked
previously and there was no evidence presented to
support her claim.) The Defendant then retrieved her
firearm from the glove box of the vehicle. The
Defendant returned to the kitchen with the firearm in her
hand and pointed it in the direction of all three Victims.
Rico Gray Sr. put his hands in the air. The Defendant
shot at Rico Gray Sr., nearly missing his head. The
bullet traveled through the kitchen wall and into the
ceiling in the living room. The Victims fled the
residence and immediately called 911. The Defendant
stayed in the marital home and at no point called 911.
The Defendant was arrested on the date of the incident.
The Defendant posted bail prior to arraignment and was
ordered by the Court and signed a document through
Pretrial Services stating she was to have no contact with
the Victims in the instant case. However, the Defendant
continued to have contact with the Victims in this case,
more specifically with Rico Gray Sr. Prior to Rico Gray
Sr.'s deposition, the Defendant and Rico Gray Sr.
discussed what he should say at deposition.
Shortly after Rico Gray Sr.'s deposition, the Defendant
drove to Rico Gray Sr. 's new house where his two
children  were staying (not the Defendant's home).
While there, the Defendant physically attacked Rico
Gray Sr., causing injury to Rico Gray Sr.'s face. Again,
Rico Gray Sr. immediately called 911 after the incident
and the Defendant did not. The Defendant was arrested
on new charges and her bond was revoked.
* * *
There is insufficient evidence that the Defendant
reasonably believed deadly force was needed to prevent
death or great bodily harm to herself, another or to
prevent the commission of a forcible felony. During the
date in question, the Defendant alleged that while in the
bathroom Rico Gray Sr. pushed her, and the bathroom
door hit her in the leg when it swung open. Per the
Defendant's own testimony, she did not suffer serious
The same will be true if Appellant is retried upon remand: the jury will have
to resolve the conflicts in the evidence and determine whether Appellant is guilty
of the crimes charged (or a lesser included offense) or whether her actions were
justified in the name of self-defense. But the question as to whether Appellant is
entitled to immunity from prosecution under the Stand Your Ground law is no
longer open for debate because that issue was definitively resolved against
Appellant after a full and fair evidentiary hearing in a ruling that has now been
affirmed by this court. See footnote 1, supra.
With these observations, I concur in the disposition of this case.
bodily injury as a result of the altercation that took place
in the bathroom. Further, after Rico Gray Sr. exited the
master bedroom, the Defendant intentionally passed by
the Victims and entered the garage where she
immediately armed herself and proceeded back into the
home. This is inconsistent with a person who is in
genuine fear for his or her life.
After weighing the credibility of all witnesses and other
evidence, this Court finds that the Defendant has not
proved by a preponderance of the evidence that she was
justified in using deadly force in defense of self. Hence,
the Defendant has not met her burden of establishing her
right to immunity as a matter of fact or law.