Viera v. State

163 So.3d 602

Eduardo VIERA, Petitioner

v.The STATE of Florida, Respondent.

No. 3D14–2675.

District Court of Appeal of Florida, Third District.

April 8, 2015.

Michael S. Goodman, Hollywood, for petitioner.

Pamela Jo Bondi, Attorney General, for respondent.

Before WELLS, SUAREZ, and SALTER, JJ.

Opinion

SUAREZ, J.

Eduardo Enrique Viera petitions this Court for a writ of prohibition seeking review of the circuit court's order denying his motion to dismiss pursuant to Section 776.032, Florida Statutes (2011), the criminal charges of attempted murder with a deadly weapon and/or aggravated battery. We deny the petition for writ of prohibition.

Viera was charged with attempted murder for assaulting Richard Osorio with a screwdriver. Prior to trial, Viera claimed immunity from prosecution pursuant to section 776.032(1), Florida Statutes (2011).¹ At a pretrial evidentiary hearing to determine the factual basis for the applicability of immunity,² the trial court heard testimony from the victim Richard Osorio, the defendant Viera, and from Robert Georgi, a third party present at the scene of the offense. Viera testified that he drove his friend Georgi to a house to pick something up. As he sat waiting for Georgi under the carport at the house, Osorio drove up with a woman, who remained in the car. Viera testified that Osorio got out of the car with something in his hand. As Osorio approached Viera, he displayed a knife and demanded money from Viera. Viera testified he got up, reached into his pocket, took out a screwdriver and lunged back at Osorio in self-defense. Viera admitted to stabbing Osorio with the screwdriver because Osorio allegedly kept lunging at him and he was trying to defend himself. Viera claims that Osorio threatened him with a knife as “payback” for some past incident.

The victim, Osorio, testified that he had no weapon and did not provoke the defendant's attack. Osorio testified that he drove a woman to the house, got out and went inside to find someone. When he could not find the person, he decided to wait on the couch under the carport, where Viera was also sitting. When Viera made a rude comment about the woman in the car, Osorio retorted. Osorio testified that at that moment, Viera jumped up and stabbed him in the knee with a screwdriver. Viera told Osorio that the stabbing was payback from an incident between them that occurred some time ago. As Osorio got up to run away, Viera followed and stabbed Osorio a second time in the back side of his left arm, again in his left elbow, and four times in the back. Osorio ran to his car to escape from Viera, who chased him around the vehicle. Osorio testified that Viera told him to leave or he would kill him. Osorio was able to get inside his car and drive away. Osorio denied attacking Viera with the knife and asking for money.

Georgi, Viera's acquaintance, testified that he did not see Osorio threaten Viera or brandish any weapon. Georgi testified that as he returned downstairs he noticed that Viera had something in his hand and that he was chasing Osorio, who was unarmed, around a car. He also noticed Osorio was moving slowly and appeared to be hurt. After Viera chased Osorio around the car, Georgi saw Osorio get into the car and leave. Viera never called the police, and did not speak of the incident to Georgi. Georgi additionally testified that sometime after Viera's arrest, Viera's father visited Georgi and asked him to change his testimony to say that Osorio was armed. Georgi explained that he refused to change his testimony. The trial court observed that the testimonial facts were very much in dispute, and the physical evidence was inconsistent with the defendant's version of the events.³

In reviewing a petition for writ of prohibition, this Court must consider the merits of the defendant's motion to dismiss in the same manner as if it were on direct appeal. See Sutton v. State, 975 So.2d 1073, 1077–78 (Fla.2008) ; Hair v. State, 17 So.3d 804, 805 (Fla. 1st DCA 2009), review denied, 60 So.3d 1055 (Fla.2011). Thus, we review the court's legal findings de novo and we review the court's factual findings for competent, substantial evidence. Hair, 17 So.3d at 805. The trial court's ruling comes to this Court “clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996) ; Smith v. State, 719 So.2d 1018, 1021 (Fla. 3d DCA 1998).

As stated in Mobley v. State, 132 So.3d 1160 (Fla. 3d DCA 2014), the objective standard is to be applied by a trial court in evaluating the factual circumstances presented in a Stand Your Ground motion to dismiss. That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. See Toledo v. State, 452 So.2d 661, 663 (Fla. 3d DCA 1984) (finding a person in the exercise of his right of self-defense may use only such force as a reasonable person, situated as he was and knowing what he knew, would have used under like circumstances); see also Chaffin v. State, 121 So.3d 608 (Fla. 4th DCA 2013) ; Price v. Gray's Guard Service, Inc., 298 So.2d 461, 464 (Fla. 1st DCA 1974).

The defendant asserts that Mobley supports his petition. It does not. In Mobley, there was no inconsistent testimony; the incident was caught on surveillance cameras, and the video showed the victims' clear provocation of the defendant.⁴ The only relevant inquiry was whether, given the totality of the circumstances leading up to the attack, the appearance of danger was so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of deadly force. Mobley, 132 So.3d at 1166. The appellate court found Mobley immune from prosecution where the record supported his reasonable fear of imminent death or great bodily harm.

In evaluating Viera's case, the trial court properly applied an objective standard to the totality of the circumstances. The court took into consideration the conflicting testimony of defendant Viera, victim Osorio, and witness Georgi, as well as the physical evidence. Competent substantial evidence supports Osorio's testimony and completely contradicts Viera's version of the events. On this record, we agree with the trial court that, “in observing and weighing the credibility of the testimony of all the witnesses, including the Defendant, and evaluating the physical evidence in this case, it is evident that the Defendant's testimony lacks credibility and is purely self-serving ... it was unreasonable for the Defendant to attack Osorio as there is no evidence that he was in reasonable fear of imminent death or great bodily harm.” We conclude that Viera is not immune from prosecution under section 776.031–.032, Florida Statutes (2011) and deny the petition for writ of prohibition.

Petition denied.

WELLS, J., concurs.

SALTER, J. (concurring in result).

I concur that the petition for prohibition in this Stand Your Ground⁵ case should be denied, based on the record before us. For the reasons...