Man who shot burglar could use ‘Stand Your Ground’ law defense, lawyers say.
NAPLES — As a North Naples teenager’s parents prepared for his funeral after his shooting on Friday, a nearby homeowner who killed the alleged intruder hired an attorney to build a self-defense case. Sterlin F. Misener Jr., 44, of 91 Willoughby Drive confronted 19-year-old Patrick Hutchison, shortly after 4 a.m. and shot him in his driveway, according to Collier County Sheriff’s Office reports. Misener told investigators he awoke to the sound of a burglar alarm and caught Hutchison exiting the family camper, which was parked in his driveway. Reports say there was a confrontation and the teen lunged at Misener. Misener told investigators that’s when he shot Hutchison, whose parents Mark and Christine Hutchison lived at 27 Wickliffe Drive in the same development, Willoughby Acres.
“The law states that if a person has a reasonable belief that they’re in danger of death or great bodily harm, they can legally respond with deadly force,” said Naples defense attorney Jerry Berry, who was hired by Misener. “I think most people would say that if you’re standing in your driveway at 4 o’clock in the morning and all of a sudden you see an individual who has broken into your camper spring out of the camper and lunge at you, it is reasonable to believe you’re in danger of death or great bodily harm,” Berry said. “When you’re in a dangerous situation like that, it’s better to err on the side of caution.
“The police have a saying: It’s better to be tried by six than carried by six,” Berry said, referring to six jurors versus pallbearers. Berry said Misener’s reasonable belief, his state of mind, was affected by a prior home invasion at his home on Oct. 25 that involved four other suspects, including an armed man. Sheriff’s reports say Richard Dejesus, 16, of Naples, entered the Miseners’ home through a back window and unlocked a side door to let in Christopher Clark, 20, and Henry Defeo, 16.
Clark and Defeo went with Misener to shut off the alarm, reports say, while Dejesus stayed with Erika Misener, asking about the location of their safes. The suspects then ripped out the phone lines and smashed the Miseners’ cell phones. The Misener’s teenage sons, Gerrit and Clayton, were in their bedrooms and one used a cell phone to call 911 and report the robbery in progress. Reports say the suspects were unsuccessful in attempts to access a safe inside the house, then took the couple into the garage to try and access a second safe. By that time, deputies entered the home and took Clark and Defeo into custody as Dejesus fled and jumped into a car driven by the fourth suspect, Matthew Stephen Cusson, 20, of Cape Coral. They were arrested later and told investigators they were looking for drugs and money. Their cases are still being prosecuted.
Sheriff’s detectives are still investigating the circumstances of Friday’s shooting and executed search warrants at the home, where they’d gathered evidence a day earlier involving the prior home invasion. “The sheriff’s office does have an option of turning anything they’ve discovered over to us for review,” State Attorney’s Office Spokeswoman Samantha Syoen said of the investigation into Misener’s actions. “At this point, we haven’t been contacted.”
Florida’s statute on Justifiable Use of Force, known as the Stand Your Ground law, gives residents the right to use deadly force against intruders entering their homes, dwellings or occupied vehicles. The law says “dwelling” means a building or conveyance of any kind — even if it is temporary or permanent, mobile or immobile, or a porch — that has a roof over it and is designed to be occupied by people lodging inside at night.
A resident doesn’t need to prove he feared for his safety, only that the person he killed had intruded forcefully and unlawfully. However, a person is presumed to have held a reasonable fear if someone was in the process of unlawfully and forcefully entering or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle. That person is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Florida was a leader nationally in self defense laws and revised it in 2005, with changes that included eliminating a requirement to retreat. The law says any person “has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm.”
It lets residents defend themselves against attackers and to use deadly force even if they could have fled. The law also says prosecutors must automatically presume would-be victims feared for their lives if attacked. The law forbids the arrest, detention or prosecution of residents defending their homes, dwelling or occupied vehicles and prohibits lawsuits against them. Florida’s earlier law, known as the Castle Doctrine, dates back to medieval England, when a man’s home was considered his castle.
Homeowners generally aren’t prosecuted, but a Hillsborough man was arrested on a charge of aggravated battery, was prosecuted, but won a motion to dismiss the charges. The prosecutor appealed and won in December 2007, when the Second District Court of Appeal ruled David Heckman was not entitled to immunity from prosecution under a statute that provides immunity when protecting a home.
In that case, Heckman knew his alleged attacker, Robert Carroll, the father of Heckman’s girlfriend’s children. Heckman fired twice and shot him once in the thigh, saying Carroll made a suspicious movement after using a pole to hit Heckman’s vehicle in his garage. He said Carroll also had made verbal threats. Defense attorneys debated whether a camper could be considered a dwelling and whether the Stand Your Ground law fits the Misener case. “It depends on the circumstances,” said Naples defense attorney Lee Hollander, who has handled two recent self-defense cases. “He’s saying the kid was lunging at him, but did the kid have something in his hands? Those facts may or may not shoot down the defense.”
Hollander doubted a camper could be considered a dwelling because Misener wasn’t using it to sleep in. Fort Myers defense attorney David Brener said if the intruder lunged at the homeowner, the shooting appears to be justified. “I would be very surprised if the State Attorney’s Office files charges in this case,” Brener said. “With the advent of the Stand Your Ground law, there’s probably not even a debatable question that this person had the right to defend himself and use the force he used. … It’s probably reasonable to believe that at 4 a.m. in the morning, it’s presumed to be reasonable.”
Robert Batey, a criminal law professor at Stetson University’s Law School, contended the law would consider the camper a dwelling because it’s designed to be used overnight and it doesn’t have to be occupied at the time. The appellate ruling on Heckman doesn’t mean he doesn’t have a defense, Batey said, just that he didn’t have immunity from prosecution. Batey said the Heckman ruling would provide the State Attorney’s Office with an argument to say Misner is not immune from prosecution.
“I think there’s a good argument on both sides on whether he is immune from prosecution,” Batey said. “Even if he is not immune from prosecution, he has a very strong argument to make to a jury about self-defense. Either he was defending himself, defending his property, or preventing the commission of a crime.” If Misener were to be prosecuted, Batey said, the defense could argue to a judge that jurors should be told about the prior armed home invasion and instructed to consider what a reasonable person would have done in the second incident, which came less than five months after the earlier home invasion.
Batey added: “You could argue to the jury that having had this previous experience, it was reasonable to think he was being threatened again.”