Marissa Alexander's 20/yr sentence overturned

[whichphilosophy]

He said sons later in the 9/11 call. After being shot near or at and calling 9/11 you think a person has time to think about every single s at the end of words. His first statement was that she aimed at him and fired and then he was like well she missed so maybe it was more of a scare tactic. But it wasn't, she shot up into the ceiling. But the question is, in a normal argument are you allowed to fire a gun to win an argument? If it was him that used a gun to scare her, would it be okay?

That seems to be one of the myths in this case. Forensics show she shot into the wall (the entry level looks to be at the height of a refrigerator). Because of the upward trajectory it ended up the ceiling of another room.

http://legalinsurrection.com/2014/1...-warning-shot-case-evidentiary-hearing//#more

A warning shot can be fired in any direction. In this case this could well be a warning shot fired from below her chest level to one side of the person which would naturally curve upwards.

 

[whichphilosophy]

Yeah. If she were a SEAL I could call that a warning shot. For the average person, though...

The appellate court noted 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.”

Thank you--I have been questioning the issue of back doors as I've never seen a house without a back door. This confirms there was a back door--and it's pretty hard to block someone from leaving when they have a choice of routes.

Neither stand-your-ground law, nor self defense law, allows a person to retreat from a fight, retrieve a gun, and then return to that fight and shoot at the other party. Had she stayed in the garage with her gun, or left, the threat would have been neutralized. Had he followed her and threatened imminent grave harm she could have shot him.

Unless there is some other reason--you can go get a gun and return to rescue someone else in the situation.

This could well be a warning shot fired from below her chest level to one side of the person which would naturally curve upwards.
Stand Your Ground Law says she does not have a duty to retreat... The purpose and intent is not to glue the person to one spot.
What is wrong with someone retreating and returning with a gun if it is to allow them to stand their ground. See my earlier last but 2 posts
Who says the Seals bother with warning shots?

 

[Arctish]

Seems to me that the evidence is not on Alexander's side. A quick review of facts that cannot be avoided:

1. Marissa Alexander DID NOT Merely Fired a Warning Shot Into the Air

The forensics evidence shared with the public shows it was not fired in a harmless direction, nor deliberately away from a person. She retrieved her gun from the garage, returned to the kitchen, told her husband "I’ve got something for your ass,” ... she then chambered a round in her pistol, pointed it horizontally at Rico Gray and his two minor children (then 13 and 10) and fired the gun.

The bullet flew past Gray and the kids, within inches of his head and into the wall.

How many inches?

A typical house layout has the garage door opening into the kitchen. The standard kitchen size used to calculate remodeling costs is 10' x 10'. So if they're both in a standard sized kitchen and neither one is in an alcove, the distance between them would be about 8', and we can get a rough estimate of the angle of deflection if we know the distance between where Gray was standing and where the bullet struck.

Either she confidently fired for a very near miss, or she actually missed. In any event, it has none of the obvious characteristics of a warning shot, but does have the characteristics of attempted homicide.

Not necessarily. If the bullet missed by 18 inches that means the muzzle was pointed approx. 10 degrees off target when the gun was fired, assuming Gray was the target. If a point on the wall 3' to one side of Gray was the target, that also means the muzzle was approx. 10 degrees off target when the gun was fired. Bad shooting either way, but one is attempted murder and the other is a warning shot.

 

[whichphilosophy]

How many inches?

A typical house layout has the garage door opening into the kitchen. The standard kitchen size used to calculate remodeling costs is 10' x 10'. So if they're both in a standard sized kitchen and neither one is in an alcove, the distance between them would be about 8', and we can get a rough estimate of the angle of deflection if we know the distance between where Gray was standing and where the bullet struck.

Either she confidently fired for a very near miss, or she actually missed. In any event, it has none of the obvious characteristics of a warning shot, but does have the characteristics of attempted homicide.

Not necessarily. If the bullet missed by 18 inches that means the muzzle was pointed approx. 10 degrees off target when the gun was fired, assuming Gray was the target. If a point on the wall 3' to one side of Gray was the target, that also means the muzzle was approx. 10 degrees off target when the gun was fired. Bad shooting either way, but one is attempted murder and the other is a warning shot.

Is there indefeasible evidence that she aimed directly for him? If not there would not be 'beyond a shadow doubt.'

 

[Loren Pechtel]

The law says a person has emphasises the defender has no duty or other requirement to retreat. If the only way a person perceived they can stand their ground is to retreat and obtain a fire arm, I see no conflict with the intent of the law. This could imply even if she passed the alleged victims to do so.

I disagree. They already have retreated. Civilians are not allowed to advance into conflict other than to rescue those already in it. SYG does not change this.

Florida Statutes Title XLVI Chapter 776 determines Stand Your Ground", "Line in the Sand" or "No Duty to Retreat" laws thus state that a person has no duty or other requirement to abandon a place in which he has a right to be, or to give up ground to an assailant. Under such laws, there is no duty to retreat from anywhere the defender may legally be

But she already had given up ground.

In reality is no evidence that the outcome would be different whether she fired in anger or fear and I would say that a person standing their ground has a right to be angry, in fear or both. Yet the state could jail her for 60 years if found guilty

The difference between justifiable homicide and murder one is a matter of intent. Thus her state of mind when she pulled the trigger is very relevant. If she fired in anger the 60 year sentence is correct under Florida law.

 

[Loren Pechtel]

No, the law exists in order to ensure heavy sentences for those who use a gun to commit a crime. My memory of the law is:

Carry a gun in a crime, 5 years. (This applies even to a non-violent crime where you're only carrying a gun as protection against fellow criminals.)

Draw a gun in a crime, 10 years.

Fire a gun in a crime, 20 years.

If she has a gun licence and is not a criminal firing against another criminal how does this apply?

A gun license has no bearing on the situation at all. If you legally use an illegal gun they can bust you for the illegal gun but they can't bust you for using it in a crime.

What this comes down to is whether her shot was legal. If her shot was not legal it's firing a gun in a crime, an automatic 20 year sentence unless the crime carried a worse penalty. Since there were three targets, 3 crimes x 20 years = 60 years. I would be very surprised if she got consecutive sentences, though.

 

[Loren Pechtel]

A warning shot can be fired in any direction. In this case this could well be a warning shot fired from below her chest level to one side of the person which would naturally curve upwards.

That's no warning shot, that's just a miss. Nobody takes a shot that way with that low a margin of safety unless they have a laser-sighted weapon.

(Yes, trick shooters shoot from the hip and hit their targets reliably--at a fixed configuration that they have done a ton of practice for.)

 

[Sabine Grant]

Neither stand-your-ground law, nor self defense law, allows a person to retreat from a fight, retrieve a gun, and then return to that fight and shoot at the other party. Had she stayed in the garage with her gun, or left, the threat would have been neutralized. Had he followed her and threatened imminent grave harm she could have shot him.

Max, let me introduce you to how Floridian Judges interpret the 2005 SYG Law in vastly different ways. To be more specific how the outcome of a Stand Your Ground Hearing depends more on how a Judge will interpret the intent of the law than focusing on the merit of the case itself.


http://www.tampabay.com/stand-your-ground-law/

The data being so extensive as you can explore each documented case in the sub links, I would expect you would have to be really motivated(and have nothing better to do )to review each case. So, Max, I certainly do not expect you to undertake such chore.

The above to demonstrate that ,unfortunately, what you perceived as not being allowed under the Stand Your Ground law, some of our Floridian Judges have disagreed with you. And I am afraid this parody of justice will continue for as long as SYG Hearings are conducted by a Judge rather than the defendant having the option that it involves a Jury.

 

[whichphilosophy]

A warning shot can be fired in any direction. In this case this could well be a warning shot fired from below her chest level to one side of the person which would naturally curve upwards.

That's no warning shot, that's just a miss. Nobody takes a shot that way with that low a margin of safety unless they have a laser-sighted weapon.

(Yes, trick shooters shoot from the hip and hit their targets reliably--at a fixed configuration that they have done a ton of practice for.)

It's not from the hip, it's from below the chest (implying also above the hip). Is 20-60 years rational for a shot that harmed no one.

 

[whichphilosophy]

If she has a gun licence and is not a criminal firing against another criminal how does this apply?

A gun license has no bearing on the situation at all. If you legally use an illegal gun they can bust you for the illegal gun but they can't bust you for using it in a crime.

What this comes down to is whether her shot was legal. If her shot was not legal it's firing a gun in a crime, an automatic 20 year sentence unless the crime carried a worse penalty. Since there were three targets, 3 crimes x 20 years = 60 years. I would be very surprised if she got consecutive sentences, though.

Nothing was suggested otherwise for not having a gun licence. There is no evidence to say anyone was targeted let alone 3 with one shot and there is no sense to jail one person 20 years for a harmless shot.

 

[whichphilosophy]

I disagree. They already have retreated. Civilians are not allowed to advance into conflict other than to rescue those already in it. SYG does not change this.

Florida Statutes Title XLVI Chapter 776 determines Stand Your Ground", "Line in the Sand" or "No Duty to Retreat" laws thus state that a person has no duty or other requirement to abandon a place in which he has a right to be, or to give up ground to an assailant. Under such laws, there is no duty to retreat from anywhere the defender may legally be

But she already had given up ground.

In reality is no evidence that the outcome would be different whether she fired in anger or fear and I would say that a person standing their ground has a right to be angry, in fear or both. Yet the state could jail her for 60 years if found guilty

The difference between justifiable homicide and murder one is a matter of intent. Thus her state of mind when she pulled the trigger is very relevant. If she fired in anger the 60 year sentence is correct under Florida law.

Does this mean if a woman is attacked by a psychopath who breaks into her house, retreats upstairs pulls a weapon she “did not stand her ground”
Intending the death or unintentionally causing the death of another will determine the severity of a homicide. This looks at the chain of events leading up to the death. 20 years for just firing a gun that causes nothing else (except damage to the ceiling) is nonsensical.

 

[Derec]

A warning shot can be fired in any direction.

A warning shot should be fired in a safe direction, which this wasn't. Also many pro-Marissa articles kept erroneously stating that she fired "in the air" or "at the ceiling".

In this case this could well be a warning shot fired from below her chest level

Highly inaccurate which means she could have hit somebody, including the children, even if she wasn't aiming at anybody.

to one side of the person which would naturally curve upwards.

Curve upward? Those are some magical, gravity-defying bullets!

 

[laughing dog]

A warning shot should be fired in a safe direction, which this wasn't.

So? George Zimmerman should have stayed in his vehicle and he didn't. "Shouldas" are not relevant.

Also many pro-Marissa articles kept erroneously stating that she fired "in the air" or "at the ceiling".

And the relevance of this.....?

 

[maxparrish]

Seems to me that the evidence is not on Alexander's side. A quick review of facts that cannot be avoided:

1. Marissa Alexander DID NOT Merely Fired a Warning Shot Into the Air

2. She claimed she was in fear for her life and trying to get away from her husband, but said she could not get the garage doors open so as to drive away. That, she says, compelled her to retrieve her gun, return to the kitchen, and there she shot at her husband. (He then fled with the children, and he (not her) called 911)....

Neither stand-your-ground law, nor self defense law, allows a person to retreat from a fight, retrieve a gun, and then return to that fight and shoot at the other party. Had she stayed in the garage with her gun, or left, the threat would have been neutralized. Had he followed her and threatened imminent grave harm she could have shot him.

According to the court in 2011 “[Alexander] intentionally passed by the Victims and entered the garage where she immediately armed herself and proceeded back into the home. This 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.”,,,

3. Both her husband and her were previously arrested and convicted for domestic battery. His last in 2006 and hers in 2010 (she pled guilty). Her battery occurred after she violated a court order not to go near him. Neither party seems to be unwilling to engage in physical violence, although he finally learned in 2010 to take the injury and then call 911.....

From a legal stand point it is difficult to find her "not guilty" - even if he threatened her in the Kitchen. From a moral stand-point...it depends.

(Whichphilosophy Comments)

Perhaps before talking about SYG, we should review some of the usual legal requirements (in Florida) for self-defense (Branca).

There are five fundamental principles of the law of self-defense. In order to defeat a claim of self-defense, the Prosecution must prove beyond a reasonable doubt at least ONE of the following ARE NOT TRUE.

1) the degree of evidence shows that the defendant was not the aggressor,
2) that the threat defended against was imminent and otherwise unavoidable
3) that the degree of force used was proportional to the threat faced,
4) that the defendant violated no duty to retreat,
5) and that the defendant’s conduct was reasonable under the circumstances.

For example, if the Prosecution could show beyond a reasonable doubt that the defendant's conduct was UNREASONABLE under the circumstances the claim of self defense fails. I have not yet read exactly why the first jury convicted Alexander in 12 minutes, or which of the five elements the prosecutor attacked BUT I understand that AT LEAST on item 4 her case was very weak (and I would add 5 and perhaps 1).

On the issue of retreat: she claims she was forced to Gray and his children, with a firearm, she was unable to exit the garage due to the doors being inoperable. Yet she had driven into it and it was operable. There is no evidence it had failed to operate anytime before or after the shooting. And it seems that she had a clear opportunity to vacate the home through the front or back doors.

In addition, Alexander passing by Gray to enter the garage to obtain the gun was “inconsistent with a person who is in genuine fear for his or her life.”

Alexander's problem with self-defense, is that he did not aggressively close with and violently engage her, but she aggressively closed with and violently engaged him.

As far as the "Warning Shot" claim, remember that this law is a part of the self-defense law, which allows a mere threat of defensive force under circumstances where the actual use of force would have been lawful self-defense. However, if the Prosecution proves 'beyond a reasonable doubt' that anyone of the five elements is not true then either a 'warning shot' (assault) or actual use of deadly force is punishable.

And as far as SYG is concerned:

Here, if we consider the facts in a manner most favorable to Alexander, there was an initial physical, non-deadly conflict with her husband. Perhaps we can even assume that her husband was the aggressor in that conflict. In that case he may well bear legal liability for that non-deadly fight.

Alexander, however, took things to another level when she retrieved her firearm. She escalated a non-deadly confrontation to a deadly confrontation. In the eyes of the law this is effectively a second, separate fight, one in which Alexander was the aggressor.

And how does being the aggressor affect one’s right to “stand-your-ground”? It obliterates it. Florida’s “stand-your-ground” provision, 776.013(3), applies ONLY to “[a] person who is not engaged in an unlawful activity and who is attacked . . . ”

Here Alexander WAS engaged in criminal activity–she initiated a deadly force confrontation–and it was not she who was attacked but she who was doing the attacking. The Court tossing out stand-your-ground in this Florida case was not even a tough call, as “stand-your-ground” was inapplicable on its face.

http://legalinsurrection.com/2013/0...er-case-wasnt-about-stand-your-ground-either/

Sounds like she is going to have tough time not getting convicted again; it is a shame that the law punishes so harshly. Hopefully she will take a plea bargain if it is offered again.

 

[whichphilosophy]

A warning shot should be fired in a safe direction, which this wasn't. Also many pro-Marissa articles kept erroneously stating that she fired "in the air" or "at the ceiling".

In this case this could well be a warning shot fired from below her chest level

Highly inaccurate which means she could have hit somebody, including the children, even if she wasn't aiming at anybody.

to one side of the person which would naturally curve upwards.

Curve upward? Those are some magical, gravity-defying bullets!

This is irrelevant since there is no evidence it was aimed at anyone.
When someone fires a gun below shoulder level there can be a tendency for gun to be pointed at a slight curve upwards, hence the shot would move in such a

 

[whichphilosophy]

(Whichphilosophy Comments)

Perhaps before talking about SYG, we should review some of the usual legal requirements (in Florida) for self-defense (Branca).

There are five fundamental principles of the law of self-defense. In order to defeat a claim of self-defense, the Prosecution must prove beyond a reasonable doubt at least ONE of the following ARE NOT TRUE.

1) the degree of evidence shows that the defendant was not the aggressor,
2) that the threat defended against was imminent and otherwise unavoidable
3) that the degree of force used was proportional to the threat faced,
4) that the defendant violated no duty to retreat,
5) and that the defendant’s conduct was reasonable under the circumstances.

For example, if the Prosecution could show beyond a reasonable doubt that the defendant's conduct was UNREASONABLE under the circumstances the claim of self defense fails. I have not yet read exactly why the first jury convicted Alexander in 12 minutes, or which of the five elements the prosecutor attacked BUT I understand that AT LEAST on item 4 her case was very weak (and I would add 5 and perhaps 1).

On the issue of retreat: she claims she was forced to Gray and his children, with a firearm, she was unable to exit the garage due to the doors being inoperable. Yet she had driven into it and it was operable. There is no evidence it had failed to operate anytime before or after the shooting. And it seems that she had a clear opportunity to vacate the home through the front or back doors.

In addition, Alexander passing by Gray to enter the garage to obtain the gun was “inconsistent with a person who is in genuine fear for his or her life.”

Alexander's problem with self-defense, is that he did not aggressively close with and violently engage her, but she aggressively closed with and violently engaged him.

As far as the "Warning Shot" claim, remember that this law is a part of the self-defense law, which allows a mere threat of defensive force under circumstances where the actual use of force would have been lawful self-defense. However, if the Prosecution proves 'beyond a reasonable doubt' that anyone of the five elements is not true then either a 'warning shot' (assault) or actual use of deadly force is punishable.

And as far as SYG is concerned:

Here, if we consider the facts in a manner most favorable to Alexander, there was an initial physical, non-deadly conflict with her husband. Perhaps we can even assume that her husband was the aggressor in that conflict. In that case he may well bear legal liability for that non-deadly fight.

Alexander, however, took things to another level when she retrieved her firearm. She escalated a non-deadly confrontation to a deadly confrontation. In the eyes of the law this is effectively a second, separate fight, one in which Alexander was the aggressor.

And how does being the aggressor affect one’s right to “stand-your-ground”? It obliterates it. Florida’s “stand-your-ground” provision, 776.013(3), applies ONLY to “[a] person who is not engaged in an unlawful activity and who is attacked . . . ”

Here Alexander WAS engaged in criminal activity–she initiated a deadly force confrontation–and it was not she who was attacked but she who was doing the attacking. The Court tossing out stand-your-ground in this Florida case was not even a tough call, as “stand-your-ground” was inapplicable on its face.

http://legalinsurrection.com/2013/0...er-case-wasnt-about-stand-your-ground-either/

Sounds like she is going to have tough time not getting convicted again; it is a shame that the law punishes so harshly. Hopefully she will take a plea bargain if it is offered again.

You should note what you say falls down in that the appellate court then ordered a new trial, finding that the jury instructions in Alexander's trial shifted the burden of proof from the prosecution to the defense. This was of course a travesty of justice where the prosecution did not prove its point beyond reasonable doubt.
This is more than just a technicality as some put it.
While it is not clear whether the new amendments to the Stand Your Ground laws will be beneficial to the appeal which is shown here.
The jury was also wrongly directed.

The 2014 Florida Statutes





Title XLVI
CRIMES

Chapter 776
JUSTIFIABLE USE OF FORCE

(view entire chapter)







CHAPTER 776

JUSTIFIABLE USE OF FORCE


776.012 Use or threatened use of force in defense of person.—
(1) A person is justified in using or threatening to use 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. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. END OF QUOTE

 

[Derec]

This is irrelevant since there is no evidence it was aimed at anyone.

If she fired from "below the chest" she could not have aimed with any accuracy at all which means she put all three of her victims in danger of being hit. Hence three counts of aggravated assault. Had there been evidence she actually tried to hit anyone, it would have been attempted murder against that person. Not that it would have made any difference given Florida's sentencing laws.

When someone fires a gun below shoulder level there can be a tendency for gun to be pointed at a slight curve upwards, hence the shot would move in such a

I now see your confusion. You are saying "curve" when you mean "angle". What that has to do with her guilt or innocence I haven't the foggiest though.

 

[Sabine Grant]

Perhaps before talking about SYG, we should review some of the usual legal requirements (in Florida) for self-defense (Branca).

There are five fundamental principles of the law of self-defense. In order to defeat a claim of self-defense, the Prosecution must prove beyond a reasonable doubt at least ONE of the following ARE NOT TRUE.

1) the degree of evidence shows that the defendant was not the aggressor,
2) that the threat defended against was imminent and otherwise unavoidable
3) that the degree of force used was proportional to the threat faced,
4) that the defendant violated no duty to retreat,
5) and that the defendant’s conduct was reasonable under the circumstances.

For example, if the Prosecution could show beyond a reasonable doubt that the defendant's conduct was UNREASONABLE under the circumstances the claim of self defense fails. I have not yet read exactly why the first jury convicted Alexander in 12 minutes, or which of the five elements the prosecutor attacked BUT I understand that AT LEAST on item 4 her case was very weak (and I would add 5 and perhaps 1).

On the issue of retreat: she claims she was forced to Gray and his children, with a firearm, she was unable to exit the garage due to the doors being inoperable. Yet she had driven into it and it was operable. There is no evidence it had failed to operate anytime before or after the shooting. And it seems that she had a clear opportunity to vacate the home through the front or back doors.

In addition, Alexander passing by Gray to enter the garage to obtain the gun was “inconsistent with a person who is in genuine fear for his or her life.”

Alexander's problem with self-defense, is that he did not aggressively close with and violently engage her, but she aggressively closed with and violently engaged him.

As far as the "Warning Shot" claim, remember that this law is a part of the self-defense law, which allows a mere threat of defensive force under circumstances where the actual use of force would have been lawful self-defense. However, if the Prosecution proves 'beyond a reasonable doubt' that anyone of the five elements is not true then either a 'warning shot' (assault) or actual use of deadly force is punishable.

And as far as SYG is concerned:

Here, if we consider the facts in a manner most favorable to Alexander, there was an initial physical, non-deadly conflict with her husband. Perhaps we can even assume that her husband was the aggressor in that conflict. In that case he may well bear legal liability for that non-deadly fight.

Alexander, however, took things to another level when she retrieved her firearm. She escalated a non-deadly confrontation to a deadly confrontation. In the eyes of the law this is effectively a second, separate fight, one in which Alexander was the aggressor.

And how does being the aggressor affect one’s right to “stand-your-ground”? It obliterates it. Florida’s “stand-your-ground” provision, 776.013(3), applies ONLY to “[a] person who is not engaged in an unlawful activity and who is attacked . . . ”

Here Alexander WAS engaged in criminal activity–she initiated a deadly force confrontation–and it was not she who was attacked but she who was doing the attacking. The Court tossing out stand-your-ground in this Florida case was not even a tough call, as “stand-your-ground” was inapplicable on its face.

http://legalinsurrection.com/2013/0...er-case-wasnt-about-stand-your-ground-either/

Sounds like she is going to have tough time not getting convicted again; it is a shame that the law punishes so harshly. Hopefully she will take a plea bargain if it is offered again.

You should note what you say falls down in that the appellate court then ordered a new trial, finding that the jury instructions in Alexander's trial shifted the burden of proof from the prosecution to the defense. This was of course a travesty of justice where the prosecution did not prove its point beyond reasonable doubt.
This is more than just a technicality as some put it.
While it is not clear whether the new amendments to the Stand Your Ground laws will be beneficial to the appeal which is shown here.
The jury was also wrongly directed.

The 2014 Florida Statutes





Title XLVI
CRIMES

Chapter 776
JUSTIFIABLE USE OF FORCE

(view entire chapter)







CHAPTER 776

JUSTIFIABLE USE OF FORCE


776.012 Use or threatened use of force in defense of person.—
(1) A person is justified in using or threatening to use 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. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. END OF QUOTE

However, whichphilosophy, the above is invalidated due to Marissa becoming the aggressor and under the following circumstances :

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html

776.041 Use or threatened use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use or threatened use of force against himself or herself, unless:
(a) Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.
History.—s. 13, ch. 74-383; s. 1190, ch. 97-102; s. 7, ch. 2014-195.

(b) Cannot apply to Marissa's defense . There is no evidence that Rico Gray pursued her into the garage after she physically removed herself from contact with him. No evidence either regarding (a) that she "exhausted every reasonable mean to escape such danger". (a) relates directly to her claim that the garage door was jammed at the time she attempted to activate the mechanism to open it from inside the garage. That it was temporary jammed is still a possibility as I recall we had problems with our first home in Florida where the mechanism to open it from the inside would malfunction at times. However, Marissa certainly would not be able to prove it was the case. The Police verifying the mechanism functioned and the door opened from the inside overwhelmingly played against her in regard with her not having exhausted every reasonable mean to escape the danger she perceived Rico Gray presented to her person.

Once she removed herself from contact with Rico, she would have had to prove that there was no "reasonable mean to escape the danger she believed Rico presented to her person". Further, she reintroduced herself in contact with Rico, the party whom she believed presented a danger to her person. That is why SYG could not grant her any protection and resulting immunity from charges.

However, going back to :

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

The problem here being how one will interpret "if he or she reasonably believes...". The question being whether Marissa would be justified in reasonably believing that Rico Gray presented to her a danger of imminent death or great bodily harm to herself starting with his initiating (via his volatile behavior) a threatening climate of insecurity (yelling at her while she was in the bathroom, banging with force against the bathroom door and demanding she comes out and after she comes out, blocking her from leaving while he demanded she "talks to him") and whether she could reasonably believe while she was in the garage that the threat of imminent death or great bodily harm was still ongoing. Meaning could she reasonably anticipate that Rico Gray would still pursue her into the garage with the same volatile and threatening behavior.

Some of us acknowledged that Marissa had been subjected to Rico battering her (resulting in her RO against him) and that it could set a precedent in her mind that Rico was highly susceptible to harm her again. Which of course would affect the "reasonably" aspect of "believing that...". I suppose that is where some of us opposed Derec's dismissive statements regarding what constitutes a threatening behavior and I will add abusive on Rico's part. To include his claiming that injuries are a necessity to prove that one party attempted to block another party from leaving. Mind you that I had provided several links defining and detailing what Domestic Violence and abusive behavior entail.

What such precedent triggers in the mind of the person who was subjected to battering by an abusive party is the apprehension of the worst to come. I have no details as to whether the line of Defense in her trial included the above. Considering it only took less than a quarter of an hour for the Jury to deliberate and render their verdict, I doubt there was much reflection given to whether Marissa could have "reasonably believed that ...." based on the precedent of Rico having physically attacked her and resulting in a Restraining Order.

Usually and commonly, the use of physical violence or abuse does not just happen overnight without a succession of previous episodes of verbal and mental abuse, mental abuse manifesting itself via threats and intimidation. Signs indicating to a victim apprehending the worst to come being similarity in the abusive party's behavior reflecting getting mad, yelling, hitting walls or doors, breaking objects etc...The victim already knows that those are the precursor signs of potential physical violence and physical harm on their person. Especially as they attempt to leave and the party who had previously physically battered them is attempting to block them from leaving. Their threat assessment based on their obstructed choice to flee is going to get highly elevated.

I do not know whether you saw my previous mention of my familiarity with the psyche of DV victims. Though I am not currently active as a trained mediator/facilitator of support groups, it had been my observation when I was active that such persons always apprehend the worst to come when seeing the party who abused them exhibiting those precursor signs. Which of course relates to whether such persons could reasonably believe that physical violence or battering on their person is the next step the abusive party will take.

That is an important point totally dismissed as Loren kept claiming "she was safe in the garage".

 

[whichphilosophy]

If she fired from "below the chest" she could not have aimed with any accuracy at all which means she put all three of her victims in danger of being hit. Hence three counts of aggravated assault. Had there been evidence she actually tried to hit anyone, it would have been attempted murder against that person. Not that it would have made any difference given Florida's sentencing laws.

When someone fires a gun below shoulder level there can be a tendency for gun to be pointed at a slight curve upwards, hence the shot would move in such a

I now see your confusion. You are saying "curve" when you mean "angle". What that has to do with her guilt or innocence I haven't the foggiest though.

The appeal was successful in that in this case the burden of proof was placed upon the defendant. The proof lies with the accuser. Yes angel is correct since it is a straight line (my misuse of words and point should be used instead of curve). There are so many reasons that can be entered into but none that indefeasibly shows actual intent to hit anyone

 

[Loren Pechtel]

That's no warning shot, that's just a miss. Nobody takes a shot that way with that low a margin of safety unless they have a laser-sighted weapon.

(Yes, trick shooters shoot from the hip and hit their targets reliably--at a fixed configuration that they have done a ton of practice for.)

It's not from the hip, it's from below the chest (implying also above the hip). Is 20-60 years rational for a shot that harmed no one.

"shooting from the hip" doesn't necessarily mean exactly at the hip, but in general it's referring to a shot from low down where accurate aiming is impossible.

She simply missed. Attempted murder.