Domestic Violence

A little jurisdictional divide on pre-trial Stand-your-ground Immunity hearings

I have previously suggested that Alabama courts should follow the uniform persuasive authority of other states (Colorado, Georgia, Florida, South Carolina) concerning immunity from prosecution for Stand-Your-Ground type cases. (See here, here, here, and here.) I suggested further that the procedures of these immunity hearings from these other jurisdictions was uniform.

However, two states (Kentucky and Kansas), with copycat Stand-Your-Ground immunity statutes, have shifted the burden onto the prosecution. More importantly, though, they have adopted a different standard of proof: probable-cause. The Kansas Supreme Court ruled in State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020, 1031 (2013)

In summary, we find that the standard of proof for whether a defendant is entitled to immunity from criminal prosecution under K.S.A. 21–3219 is probable cause. We further find that the State bears the burden of establishing proof that the force was not justified as part of the probable cause determination required under K.S.A. 21–3219(b) and (c).
The Kansas Court largely followed the precedent of Kentucky. The Kentucky Court in Rodgers v. Com., 285 S.W.3d 740, 755 (Ky. 2009) adopted a probable-cause type hearing position.
The sole remaining issue is how the trial courts should proceed in determining probable cause. The burden is on the Commonwealth to establish probable cause and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record. Although Rodgers advocates an evidentiary hearing at which the defendant may counter probable cause with proof “by a preponderance of the evidence” that the force was justified, this concept finds no support in the statute. The legislature did not delineate an evidentiary hearing and the only standard of proof against which a defendant’s conduct must be measured is the aforementioned probable cause.
My thoughts of these divergent jurisdictions:
First, regardless of this potentially important divide between jurisdictions, one thing is clear: we have two more states affirming the right to a pre-trial Stand-Your-Ground immunity hearing.
By declaring that one who is justified in using force “is immune from criminal prosecution,” and by defining “criminal prosecution” to include “arresting, detaining in custody, and charging or prosecuting the defendant,” the General Assembly has made unmistakably clear its intent to create a true immunity, not simply a defense to criminal charges.
Rodgers v. Com., 285 S.W.3d 740, 753 (Ky. 2009)
Secondly, shifting the burden of proof onto the prosecution may be better policy. Commenting on the burden of proof issue, one concurring Florida court judge stated the following:
Kentucky and Kansas, states with statutes that were modeled directly on our “Stand Your Ground” law, have found that the burden of proof properly rests with the State at the pretrial stage to demonstrate that the use of force in self-defense was unjustified. This construction creates a better procedural vehicle to test the State’s case at the earliest possible stage of a criminal proceeding. Self-defense immunity statutes are designed to relieve a defendant from the burdens of criminal prosecution from arrest through trial. Placing the burden of proof on the State throughout each phase of criminal prosecution best fulfills the legislative intent to create a broad grant of immunity.

Bretherick v. State, 135 So. 3d 337, 344 (Fla. Dist. Ct. App. 2013) review granted, 145 So. 3d 821 (Fla. 2014) (However, in any other case involving immunity, the burden rests with the Defendant and the standard of proof is preponderance of the evidence.) Third, the shift to a probable-cause style pretrial immunity hearing would gut the statute and make the immunity provision meaningless. The Florida Supreme addressed this well:

We also reject the State’s contention that the pretrial hearing on immunity in a criminal case should test merely whether the State has probable cause to believe the defendant’s use of force was not legally justified. Prior to the enactment of [the Stand-Your-Ground statute], Florida law defined certain types of justified force… and the Florida Rules of Criminal Procedure mandated that a trial judge make a pretrial nonadversarial probable cause determination either before or shortly after a defendant was taken into custody. “It is a basic rule of statutory construction that ‘the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’ ” Martinez v. State, 981 So.2d 449, 452 (Fla.2008) (quoting State v. Bodden, 877 So.2d 680, 686 (Fla.2004)). Accordingly, the grant of immunity from “criminal prosecution” in [the Stand-Your-Ground statute must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule.
Dennis v. State, 51 So. 3d 456, 463 (Fla. 2010)

 

Lose your right to self-defense defense? ITS INCONCEIVABLE

A new twist has arisen on the Stand-Your-Ground immunity hearings debate. ISSUE: If a Defendant is actually granted an immunity hearing and then loses, has he forfeited his right to raise self-defense at trial. The answer is a resounding NO.
First, there are differing standards of proof and burdens of proof at the pre-trial immunity hearing and in the guilt phase at trial. As discussed on the blog posts about Alabama’s Stand-Your-Ground statute, at the immunity hearing, the standard of proof is preponderance of the evidence and the burden of proof is on the Defendant.
“We hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is 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. Dist. Ct. App. 2008)
Whereas at trial, the state has the burden to prove beyond a reasonable doubt that the accused did not act in self defense:
“Once the issue of self-defense [merely] is raised, the State ‘must prove that the accused did not act in self-defense in the sense that the State must prove a prima facie case of unjustified homicide.’ Booker v. State, 645 So. 2d 355, 358 (Ala. Crim. App. 1994)
Second, each other appellate court within states adopting a Florida-copycat Stand-Your-Ground statute (like Alabama’s), have declared that there is no preclusive effect of an immunity hearing.  The trial court in Peterson granted him a pretrial hearing and then denied his Motion for insufficient evidence. Nevertheless, the Peterson appellate court, while sustaining the denial of immunity, specifically held “Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.” Peterson v. State, 983 So. 2d 27, 29 (Fla. Dist. Ct. App. 2008)
The Colorado court in  People v. Guenther, 740 P.2d 971, 981 (Colo. 1987) is more direct:

If, on the other hand, the court determines that the defendant has not met his burden of proof and denies the motion to dismiss the charges, there is nothing in [the Stand-Your-Ground statute to suggest that the defendant should somehow be precluded from raising the same statutory conditions for immunity as an affirmative defense to the charges at trial. Since the legislature clearly intended [the Stand-Your-Ground” to operate as a complete immunity to criminal charges when an occupant of a dwelling used physical force against an intruder under the conditions set forth in the statute, it cannot plausibly be argued that the legislature thereby intended to deprive an accused of the lesser benefit of an affirmative defense at trial when those same statutory conditions are established under appropriate standards of proof applicable to the trial of a criminal case. Thus, if the pretrial motion to dismiss on grounds of statutory immunity is denied, the defendant may nonetheless raise at trial, as an affirmative defense to criminal charges arising out of the defendant’s use of physical force against an intruder into his home. . .

Third, such a preclusion would deny him his constitutional rights to due process and a jury trial:

“Evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury.Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952)

When the accused have exercised their constitutional right to a trial by jury, their right to present a full and complete defense includes the right to have a jury consider and weigh all relevant and probative evidence in support of his defense. See United states v. Scheffer, 523 U.S.  303, 315 (1998); Crane v Kentucky, 476 U.S. 683, 690 (1986)  The Supreme Court of the United States has expressly recognized that, under the Due Process Clause of Fourteenth Amendment, and the Compulsory Process and Confrontation Clauses of the Sixth Amendment, a criminal defendant must be given “a meaningful opportunity to present a complete defense” -i.e., a right to make a full defense , and tell his or her story, by presenting relevant and probative evidence that supports his case. See, e.g. California v. Trombetta, 467 U.S. 479, 485 (1984).

Look at Crane v Kentucky, 476 U.S. 683 (1986). SCOTUS found unconstitutional a Kentucky rule which barred defendant from placing evidence of the facts and circumstances surrounding his confession before the jury, after the confession had been found by a judge at pre-trial to have been voluntary.  SCOTUS declared this violated his right to the fair opportunity to present a defense.

Similarly, just because a Defendant cannot prove self-defense pretrial by a preponderance of the evidence at the immunity hearing should not preclude his ability to require the state to prove lack of self-defense beyond a reasonable doubt

In the words of the Colorado Supreme Court: “it’s implausible”

Or better yet: in the words of the The Princess Bride, “ITS INCONCEIVABLE.”

Alabama Domestic Violence “Cooling Off” Holds are a Legal Fiction

Section 15-13-190, Code of Alabama makes special rules for persons arrested for crimes of domestic violence.

A person arrested for an offense involving domestic violence…may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of the arrest.

Compare that with the standard rules for bailbonds after arrest. See AL ST RCRP Rule 4.3

A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or (iii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4.

An urban myth has developed that persons arrested on domestic violence charges cannot be bonded until after 12 hours of arrest. Section 15-13-190 does not say that; it merely eliminates the options for bond found in Rule 4.3(i) and 4.3(ii). Section 15-13-190 modifies the timeliness of presentation to a magistrate to 12 hours after arrest. Under Rule 4.3(a), a person arrested without a warrant must be presented to a magistrate or judge “without undue delay” and not to exceed 48 hours.  Alternatively, under Rule 4.3(b) a person arrested with a warrant or on complaint must be presented to a magistrate or judge “without undue delay” but not to exceed 72 hours.”

Accordingly, if arrested, don’t let them give you the “we-cant-release-you-for-twelve-hours” run around.

The violation of the speedy presentment requirement may be grounds to exclude evidence obtained after the violation (e.g. confessions, consents, admissions.

(However, I have actually obtained decent civil monetary settlements for clients who were detained for “investigation holds” but were not presented to a magistrate or judge “without undue delay.” Local law enforcement held them and would not let them go which means they were legally under arrest. Even if there is no formal arrest, a person is considered seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would not believe himself free to leave. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) Once arrested, the rights to bond and presentation to a magistrate arise. Deprivation of those rights is a unlawful imprisonment and civil rights violation.)