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FOURTH JUDICIAL CIRCUIT, IN AND
FOR DUVAL COUNTY, FLORIDA
STATE OF FLORIDA
CASE NO. DIVISION:
MARISSA DANIELLE ALEXANDER
AUG' , 20H
The undersigned Granting
attorney hereby gives Notice of Filing Defendant's of Immunity
Defenses Motion for Determination
from Prosecution and Motion to
Dismiss, which was filed with this Court on July 29,2011.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of Defendant's Proposed Order Granting
Defenses Motion for Determination of Immunity from Prosecution and Motion to Dismiss has
been to the Office of The State Attorney, Division CR-G, by Us Mail
Ke\4£M:CObbiI1: Esquire Florida Bar No. 0645206
525 N_Newnan Street
Jacksonville, Florida 32202 Tel. (904) 357-8448 Fax (904) 357-8446 Attorney for Petitioner
IN THE CIRCUIT COURT OF THE FOURTH JUDiCIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA
STATE OF FLORIDA
DIVISION: MARISSA DANIELLE ALEXANDER
201 O-CF-008~79 CR-G
DEFENDANT'S PROPOSED ORDER GRANTING DEFENSES MOTION FOR DETERMINATION OF IMMUNITY FROM PROSECUTION AND MOTION TO DISMISS
This matter came before this Court on the Defense "Motion for Determination of Immunity from Prosecution and Motion to Dismiss" filed on May 24, 2011. A hearing was held on the Defense Motion on July 1, 2<H\ and July 1t>,1m 1. Upon consideration of the evidence presented (live testimony from Marissa Alexander,_
y and the sworn
deposition of _
having considered the arguments 'Q.lli.\ the au"fuorities presented
by the parties, and having otherwise been fully advised, this Court finds as follows: The Defendant is charged with three counts of Aggravated Assault with a Deadly Weapon. It is further stated in the information that Defendant possessed and discharged a firearm during the commission of the underlying offense. Pursuant to sections 776.012, 776.013 and 776.032 of the Florida Statutes, a person is justified in the use of force and can even use deadly force against another individual if that person reasonably believes that such conduct is necessary to defend him or herself. The Defense requested an evidentiary hearing to determine if Marissa Alexander was immune from prosecution under these statutes in what has come to be known as the "Stand Your Ground" defense. In the Defense Motion, and at the evidentiary hearing the Defense requested that this Court prohibit the State from further prosecution in this matter and dismiss all three
counts charged in the Information because the Defendant is immune from prosecution for the charged crimes.
STATEMENT OF FACTS
The defense relies on the testimony of Marissa Alexander at the evidentiary hearing on
the Defense Motion and on the sworn deposition of to establish the facts in this matter.
. taken on November 22,2011
I. Ms. Alexander, the Defendant, is a 31- year -old black female, standing approximately 5'2" in height and weighing approximately married to . _, the alleged victim. _ the alleged victim, is a 37-year-old black male, standing approximately 140 pounds. At the time of this incident she was
5 '9in height and weighing approximately 245 pounds. Ms. Alexander has been charged with three (3) counts of Aggravated that she intentionally and unlawfully Assault with a threatened to
Deadly Weapon, based on the allegations
harm her husband and two of his minor children by firing a gun. 4. Ms. Alexander has known _ _. for approximately three years. They married
on May 14, 2010. 5. In 2009, physically abused Ms. Alexander for the first time'. Since that
time Ms. Alexander has been a victim of physical, mental, and verbal abuse by has witnessed and heard of numerous instances in which
'! lost his temper and
committed violent acts upon others.
has been violent and threatened violence against
past girlfriends, family members, his children and others''. 6. In September 2009, Ms. Alexander obtained an Injunction for Protection against Mr. which prohibited violent contact. This followed an incident where Ms. Alexander was put in the hospital after a beating by During this incident pushed Ms. Alexander
into the toilet and bathtub causing injuries to her head and back. Four children were present for the aforementioned incident, and Ms. Alexander's daughter called 9-1-1. The injunction was
obtained after the aforementioned charged in the Infonnation.
incident, and was still in effect on August 1, 2010, the date
I (Exhibit "A') November 22,2010, Deposition of . = (Exhibit "A") November 22,2010, Deposition of (Exhibit "A") November 22, 2010, Deposition of 4 Please see Exhibit "B" Shand's meaice) recoms
page 7, lines 15-25, page 8 line 1-25
page 9, lines 2-25, page IO line 1-18
page 10, lines 19-25, page II line 1-24
In his sworn deposition
taken on November
domestic violence and even admitted to making threats of great bodily harm and
death against Ms. Alexander if she tried to leave hims.
Among the incidents
of domestic violence
Alexander, was a head butt by
inflicted upon Ms. Alexander while she was pregnant,
causing a biack eye.
9. Considering the incidents of abuse outlined above, it is evident that I for domestic
history of domestic violence. Additionally, he has a conviction several prior arrests for domestic violence". 10.
battery" and has
At some point prior to the e'fents tnat gave rise to the ffis+tantcase, Ms. Alexander
became pregnant with
was born premature
and kept in the
neonatal intensive care unit at the time of the events that gave rise to the instant case.
Due to _
_'s history of domestic violence, Ms. Alexander was living with
her mother on and around August 1, 2010 in an effort to feel safe and secure during pregnancy. 12. On August 1,2010 Ms. Alexander went to the house located at 4044 Woodley Creek Road, Jacksonville, Florida 32218. This is the home she had previously shared with
Mrs. Alexander desired to pay the rent for the house, as the house was being leased in her name. 13. On Sunday, August 1, 2010, the day of the incident, Ms. Alexander bedroom when taking her first bath, as _ was in the
, came home from the previous night. She shared photos of their baby .y had yet to see I either in person or media . .y with her about Ms.
Ms. Alexander left the bedroom and entered the bathroom, leaving cell phone. Alexander leaving Lincoln Alexander. After reading the message, _.. looked through her cell phone and read a text message
. The message was between Ms. Alexander and her ex -husband,
entered the bathroom where Ms. Alexander was and exited the bathroom and then
began to question her about the subject of the text. _ returned in a violent rage.
y, at that point, clearly enraged, gained entry to the bathroom
by violently banging on the door, and began screaming at Ms. Alexander. Ms. Alexander asked
to leave the bathroom, but instead '"
y shoved himself into and through the door.
(Exhibit "A") November 22,20 I0, Deposition of Please see Exhibit "C" "s prior conviction 7 (Exhibit "A") November 22, 2DW, Depasit,'oa ot
( page 10, lines 19-22 page I'a, fines i9-72
Ms. Alexander then ran to the bedroom where
began to strangle her. :.:,. repeatedly told 's two
was cursing and screaming at Ms. Alexander during this confrontation.
Ms. Alexander that "if he could not have her, ain't nobody going to have her"s. children were in the
bouse at the time and came to see what was happening. At this moment Mr.
put his hands up and used his body to restrain and confine Ms. Alexander.
was finally ahle to get flee and quickiy ran out of the bedroom and through the kitchen into the attached garage. Ms. Alexander did not 11lH-'e her cell paone (
y had the phone) or her keys (in her
breast pump bag) and therefore could not call the police or anyone else for help. Ms. Alexander also discovered that the garage door was locked 'and would not open. Fearing great bodily injury and/or her life, Ms. Alexander then retrieved a registered gun for protection and went back into her home. Ms. AJexander was begging far but instead
her and said, "Bitch,
I'll kill you." Ms. Alexander,
reasonably fearing for her safety at that time, fired one single shot high and tQ. the right of }vir.
and his two children exited the house and later called 9-] - L Ms. Alexander
was then arrested and taken into custody. During this hearing, ~_ testified on the stand that he" lied under oath and that He also denied ever beating any women and
nothing he said was true in his sworn deposition.
being a violent person. He testified that none of his family would say he was a violent person. He also testified that, during the incident which caused Ms. Alexander to seek medical treatment at the hospital, Ms. Alexander had threatened him with a gun and that he was fleeing to get away from her shooting him. While he admitted to pushing her during that incident, he said that he did not know she fell or was hurt and left the house before she got out of the bathroom, all because he was afraid that she would get the gun out of her car and shoot him. However, he also testified that Ms. Alexander had never used the gun against him in any way, that she had never threatened him with it, and that she had the gun for her protection. Regarding the incident of August I, 2010,
that Ms. Alexander
attacking him and told him that she would "Show him better than she could tell him," before retrieving the gun.
8(Exhibit "A") November22, 2[)W, DepGSitl\m of Rico Gray page fT, fine 2-15
testified that he never put his hands on Ms. Alexander and that she was always the one attacking him. This included the last incident for which she was arrested when he testified that his sons witnessed her hitting him her. He did however admit to picking her up and physically removing her from the house on two different occasions. got upset and stuttered often on the stand when he answered
questions about abusing Ms. Alexander.
SUPPORTING TESTIMONY , The ten year old daughter of the Defendant testified about being
present with her brother during the incident when her mother went to the hospital.
testimony she talks about how her mother h.ad given her a <.;afe W\}Id, "Spon.ge B\)o" and ad-vised. her to call 9-1-1 if that word was ever used, because mommy was hurt or in danger and she did not want to know she was calling the police, The word was only taught to protect
mommy when she was in danger. She was taught the word a few weeks prior to the incident. During this particular event she was left in the car with her brother, as the Defendant went into house for something. A few minutes later
saw her mom bang on the window with one
hand and then fall to the ground. The Defendant then gave the safe word to her daughter who ran inside to call the police. . then she went to call 9-1-1. testified that she saw F
in the house looking angry and
She testified that she also called her father and grandmother.
she returned to the garage where her mom was, she saw
_ leaving with his two sons, as
he made no attempts to help. The police arrived and Mrs. Alexander was taken to the hospital via stretcher and ambulance. Havalin and her brother were also taken to the hospital by their father,
but they were not allowed to go in and see their mother.
Helen Jenkins: The Defendant's
mother testified about seeing the fresh bruises on her
daughter when she arrived at the hospital following Havalin's 9-1-1 call. She testified that she saw bruises on her daughter's
arm and neck and that she also had lumps on her scalp. The
injuries appeared to be fresh. Ms. Jenkins also testified that the Defendant was living with her on August 1, 2010 due to the domestic abuse by
Helena Jenkins: The Defendant's
sister testified to seeing visible injuries on her sister on arms, back and
several occasions. She also mentioned seeing fresh bruises on the Defendant's
neck after her sister got back from the hospital as a result of the incident during which . called 9-1-1. She also testified t\} seemg Defen.dan.t' s black eye from the head butt that took
place when the Defendant was pregnant. She said that she took her sister to the MAC cosmetic store at the mall to get some concealer to hide her righr black eye.
testified that she has known
. for over
20 years. She testified that she associates with his family and people that know him and in the
community ( he has a reputation for violence. After being questioned by the state about -. her
fighting her husband, his own brother, she acknowledged
that as well, supporting
testimony that he is violent. This directly contradicts the testimony of
_ . that his
family would not say he is a violent person. She also testified that she has known Defendant for
about 3-4 years and her reputation is one of being a sweet lady (peaceful).
The state called this witness to testify about the events that occurred on
August 1,2010. testified that he had never seen Ms. Alexander hit his dad at any time. He
also testified that he heard his dad yeUmg and <:-1J.!sing M<&. at Alexander.
He further testifled that
he could not make out what his dad was saying but knows he was cursing at her and that he was mad. He testified that he did not see Ms. Alexander fire the gun, but only beard the noise and
then ran out of the house. He testified that he was in the living room with his brother
and did not see her hitting his dad. : The state also called this witness to testify about the events that occurred
on August 1, 2010.
testified that his dad was yelling and cursing at Ms. Alexander. He
also testified that he was in the living room with his brother. He said that he saw Ms. Alexander hitting his dad, but that did not match the testimony of his older brother. He further testified that
his dad was not attacking Ms. Alexander and that he never has told anyone anything different. He did talk about the incident where Ms. Alexander was taken to the hospital and said that his dad had pushed her. He also said that he saw Ms. Alexander lying on the ground, which
impeached his father's testimony about leaving before Ms. Alexander got outside. He also said that his dad made no efforts to help Ms. Alexander, but was trying to get away. - also
stated this incident and an incident where he had to wash the dishes which made him upset with Ms. Alexander. He testified that during the incident where his dad got a black eye, he heard his dad yelling at Ms. Alexander and went to see what was going on. His testimony was that he
opened the door and closed it back really quickly because of what he saw. He further testified that he did not see Ms. Alexander hitting his dad on that day. : The motaer of ., ~ .y testified that bad come to her and
talked about the shooting incident. She testified that he first told her that Ms. Alexander had shot
at him. She testified that this made fie! angry at Ms. Alexar,de.r. H'Uwever, her son came back in
the room and said he lied. He asked his mother not to tell his dad and then told her, «Ms. Alexander did not fire at us, but rather fired in the air, because my dad was besting her, "
OF LAW justified with the use of deadly force in her home against
Question: Was Defendant
another co-occupant and has she met her burden in this hearing? Applicable Florida Statues reads: 776.012. Use of force in defense of person: A person is j\lstifi~d in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes. that s\.K:hfOi<;:,'C is nec~':mry to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s. 776.013 to the relevant statute, Ms. Alexander is
IS justified in the
In the instant case, 776.012 applies. According
permitted to use force in her home. The history of violence between Ms. Alexander and Mr. would clearly make a reasonable person in Ms. Alexander's shoes believe that her of a forcible already had a
action was necessary to prevent great bodily harm, death, or the commission
felony. In this case, that felony would be felony domestic' battery as prior domestic battery conviction. 776.013. Home protection; use of deadly force; presumption harm:
of fear of death or great bodily
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if: (a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another
against that person's will from the dwelling, residence, or occupied vehicle; and (2) The
presumption set forth in subsection (l) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, rel>\den.ce, m ",elide, '5u.ch as an owner, lessee, or titleholder, and there is not an injunction for protection
from domestic violence or a written pretrial
supervision order of no contact against that person.
In the instant case, Ms. Alexander's presumption
actions were lawful pursuant
of death or great bodily harm exists. In this case, Ms. Alexander
attack by an individual in her home. The law states that the presumption person against whom the force
attaches even if the
IS used is a co-occupant or has legal right to be there, if there
that an injunction for protection against domestic violence
exists a valid, active injunction against domestic violence. In this case, both Ms. Alexander and Mr. _ acknDwledge
existed against Mr. _
. The history of the co-occupant and the duty to retreat has
been an issue with the Florida courts for years. The Court in State v. Bobbitt, held that an individual could not use force without first trying to retreat from the premises assailant was a co-occupant. when the
414 So.2d 724 \\9%2). However, the Courts had to come to
The Courts the
grips with instances in which a husband and wife were the two combatants. thought that to make the wife retreat might be
much. In light of that consideration,
Courts then modified that holding to state that a co-occupant
has a limited duty to retreat.
Rippie v. State, 404 So.2d 162 (2d DCA 1981). The Courts wanted a co-occu.pant to retreat to another room in the house. Jd. 162. However, the Court has realized the danger in which those laws were placing co-occupants, v. State held that a wife (co-occupant) occupant, even especially wives and girlfriends. The Court in Weiand has no duty to retreat in her own home from
is her husband or child. 732 So.2d" 1044 (1999).
Court reasoned that domestic violence situations are often the most dangerous type of attacks and to require the woman to retreat would increase the likelihood of her putting herself in more danger. Presently, Courts in Florida permit a wife or co-occupant to stand her ground, even against her spouse, with no duty to retreat. Id. In the instant case, Ms. Alexander is the person whose name is on the lease and Mr. i lives there as well. Even though they both when faced with Mr.
occupy the home with equal rights, Ms. Alexander,
attacker, had no duty to retreat to another room, the garage, or out of the house, and was lawfully permitted to protect herself without first retreating. Ms. Alexander in this case used a bit of the old and the new as she originally tried to retreat, but, when she was unable to do so, she acted in a way that is justified as she had no duty to retreat. 776.032. Immunity from criminal prosecution and civil action for justifiable use of force
(l) A person who uses force as permitted in s. 776.012, s.776.013, or s.776.031 is justified in
using force and is immune from criminal PI~~ecutioT1 and crvu action for the use of such force, unless the person against whom force was used is a law enforcement officer, as
defined in s. 94310(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 enforcement should have known that the person was a law includes
officer. As used in the subsection, the term "criminal prosecution"
arresting, detaining in custody, and charging or prosecuting the defendant. Ms. Alexander's conduct tails within the language of 776.032, as it is applied by using both md the use of deadly force was of her fear of death force or
776.012 and 776.013. Therefore, her actions were justified, lawful because of the statutory presumption great bodily harm.
of the reasonableness
When an individual brings a motion for Immunity under sections 777.0612, 775.6013, and/or 776.032, the burden of proof rests
The trial court must determine
whether the defendant has shown by a preponderance Peterson v. State, 983 So.2d 27 (Jsr DCA 2008). testimony impeached, and provided deposition transcripts The victim's
of the evidence that immunity attaches.
In the instant case, Ms. Alexander has put on to the court. testimony Her testimony has not been and he has
but rather supported.
has been impeached
admitted to lying under oath and has numerous inconsistent statements.
The Courts in Florida have also applied the Stand Your Ground Law to mean that the
immunity that exists is stronger in the home that outside of it. presumption for the immunity is applied when the defendant Courts have held that the
is in the zone of uncertainty.
Montanez v. Florida, 24 So.3d 799 (2 DCA 2010).
In Montanez v. Florida, the defendant was
outside and the victim drove his car toward him. The defendant fired a shot but it was after the car had gone past. The court found that this was beyond the zone of uncertainty. In the instant
case, Ms. Alexander is in her home where her right to defend herself is the strongest. Second, the incident took place in the kitchen and Ms. Alexander was blocked from the front door, which left
her face to face with Mr.
_ who was threatening
her and advancing
toward her. Ms.
Alexander was clearly within the zone of uncertainty as the distance
between them was just a
few feet and the setting was a small kitchen area with the door blocked off and the attacker advancing toward her.
FINDINGS It is clear to the Court that there was a history of domestic violence in the relationship
between Ms. Alexander and very credible and there was Ettie to
The court finds that the testimony of Ms. Alexander is tef>tlmooy that contradicted Ms. Alexander's it or would have led the court
to believe her testimony was untruthful. and supported
testimony was eyewitness testimony and by her hospital stay.
bf her securing an Iniunction
all of the witnesses who came in to testify supported the fact that
verbally abusive, has a serious temper and a reputation for violence.
The incident during which
called 9-1-1 is very convincing to the Court for the following reasons. First, when a mother has to give her young daughter a safe word for the mother's protection,
presumably there is a reason for doing so - in this case, there was a history of domestic violence. This demonstrates Second. to the Court that Ms. Alexander was wj)m~d aoo\lt the violence continuing.
.in his testimony, denied knowing that Ms. Alexander had fallen on the day of
the incident that led to her being admitted to the hospital and tried to .suggest that he departed in such a hurry that he left before she fell and exited the house before she did so. The Court finds this hard to believe, especiaUy when im~
by both :
. and _
_', who stated that his dad did not try to help Ms. Alexander and was trying
to get away. On the instant matter, the court has issue with why Ms. Alexander did not go out of the front door and with the functionality of the garage, but the law does not require either of those
questions to be answered. It is clear from the testimony that this shooting took place inside the
home of Ms. Alexander. It is also clear that the argument which led to the altercation was started
by , and Ms. Alexander tried to diffuse the situation by going into the bathroom. , who was enraged, continued to escalate the matter. It eventually
led to some sort of
physical combat in the bathroom that carried over to the bedroom. to deal with the disputed Alexander and facts. However, taking into account
Here is where the Court has the testimony of both Ms.
, again the Court fmds her testimony more credible. The court fmds it
hard to believe that after _
found the text message and was clearly enraged that he was
not the aggressor. Ms. Alexander was breast feeding and had just given birth to a child a few days before. She was spending nights at her mother's residence because of the violence, and the supporting testimony impeached testimony. Furthermore, the court finds that it is more than reasonable that a ?C!son who had been i's story and did not challenge the credibility of her
beaten, head butted, physically thrown out of the house, and been put in the hospital with visible injuries would most likely fear bodily injury in this situation. The fact that Ms. Alexander by over 100 pounds, was in an obvious rage (as stated by his
outweighed two sons and
backed up by his comments about not knowing what he may do because he was that angry) could have reasonably made that fear of injury rise to the level fear of great bodily harm or even death. While the court does oot generaJJy advocate the use of weapons, in the instant case the use of
deadly force by Ms. Alexander was justified as she was in her home facing an attacker against whom she had an injunction and was cornered in a the small confines of the kitchen. The Court finds that the Defendant has met her burden of showing that her actions were justified by a preponderance of the evidence. and
reasonable under these circumstances
Thelefole, based on
the evidence and the testimony from the two day hearing it is hereby:
ORDERED At~DADJUDGED that Defendant's "Motion for Determination of Immunity
from Prosecution and Motion to Dismiss" 1'5GRANTED.
DONE AND ORDERED in C1w.mbers in Jacksonville, Duval County, Florida on this __
ELIZABETH A. SENTERFITT
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