Bullard v. State

521 So. 2d 223, 13 Fla. L. Weekly 476, 1988 Fla. App. LEXIS 680, 1988 WL 10833
CourtDistrict Court of Appeal of Florida
DecidedFebruary 18, 1988
DocketNo. 87-307
StatusPublished

This text of 521 So. 2d 223 (Bullard v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bullard v. State, 521 So. 2d 223, 13 Fla. L. Weekly 476, 1988 Fla. App. LEXIS 680, 1988 WL 10833 (Fla. Ct. App. 1988).

Opinion

DAUKSCH, Judge.

This is an appeal from convictions for second-degree murder and carrying a concealed firearm.

Appellant urges this court to reverse the two convictions because the trial judge erred in failing to direct a verdict at the close of the state’s case and at the close of all the evidence. The record shows that defense counsel moved for a directed verdict only on the charge of second degree murder. In fact, in arguing the motion, defense counsel conceded “[t]he gun certainly was concealed and never even came unconcealed until the deceased pulled a weapon on him and threatened him at that time.” Since appellant did not move for a directed verdict on the charge of carrying a concealed firearm, he cannot raise this issue on appeal.

[224]*224The evidence of second degree murder is legally sufficient to sustain the conviction but there is some evidence to support the appellant’s contention that he acted only in self defense. The jury was not convinced by this self-defense evidence, obviously, but the jury may have been convinced if it had been permitted to hear the defense in its entirety. For some reason the trial judge felt it was warranted and permissible for him to inject himself into the trial and restrict the defendant in his testimony concerning his version of the events at the scene. It should go without saying, but in this case must be said, that an accused has an absolute right to tell his story of the events exactly as he remembers them without any restrictions by the trial judge. The jury has the right to hear and the duty to consider the accused’s version of the facts. This was not permitted here. As one example, the following colloquy occurred at trial where the accused was attempting to explain why he was fearful of the decedent and armed himself before encountering him. The accused wanted to tell about the decedent’s words and actions but was forbidden by the trial judge.

THE COURT: Why does he insist on saying, ‘Nigger’ and other things, just to outrage the jury, because we have two blacks on there? What has that got to do with anything? He is trying to say he got mad and armed himself to kill him?
MR. WILSON [Defense Counsel]: No, sir.
THE COURT: He is trying to prejudice this jury against the fact ...
MR. EARP [State Attorney]: My objection is there were hearsay events of threats or just hearsay events of accusing ...
THE COURT: You can say he made statements and acted like he was angry and don’t go on from there. I want to say to you again, your client takes that as an opportunity to go in and make his self-serving declaration. Your client is an intelligent witness, but he also has twenty years in the subways and a list of law enforcement training, so you can tell he is trying to justify his actions. He keeps stating what the law is and every time you ask a question, he tries to give it and I don’t blame him for doing it, but I am not going to allow it.
MR. WILSON: Am I allowed to ask him why, Your Honor?
THE COURT: Why, because in New York they wouldn’t have had that happened [sic]. That is okay, sure, but don’t give us a legal lecture on that. We know you have been in law enforcement for a long time and you know what sometimes juries like to hear, but we are here to find out what is legal and admissible by way of evidence in Florida in this case. The other point is this. I think it is irrelevant... you can say ... in the first conversation, that the result of a phone conversation or something, and the words we used, you could tell he was hot and so forth and so on, but you already said the word, ‘Nigger’ at least once in front of the jury and your uncle said it once or twice. Things like that. I don’t want to turn this into a situation black or white against black or white. We want to get the facts down. You can say he appeared angry. But we know we have two black people on the jury and we have some white people on the jury. Most of us aren’t prejudiced anymore, but I don’t want you to rekindle flames, by making this the point. Because if someone called you a ‘Nigger’ you think in your law enforcement career, that would justify you shooting somebody?
•BULLARD: No, sir.
THE COURT: Just like if you called me ‘Whitey’, or ‘Pinky’, do you think that would justify me pulling my gun and shooting you?
BULLARD: No, Your Honor.
THE COURT: Okay, the point is that that is before us now and we don’t want to talk about ... I want you to set the scene and that is why you were apprehensive, because the conversation you had, you could tell he was hot, and then you go on into the other things.
[225]*225MR. WILSON: Your Honor, he also said he was going to blow his black ass away if he didn’t get the car out of there.
THE COURT: If he didn’t get his car out of there.
BULLARD: No, not if I didn’t get my car out of there. If the car only got off his property and didn’t work, he didn’t want me to bring my black ass and say
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THE COURT: Okay ...
BULLARD: Anything to him. If he heard a word from me, if I said a word, he was going to blow my black ass and that raggedy ass piece of car right off of his property. That is what he said, Your Honor.
THE COURT: Okay. That part, I am going to allow you to say. That part, but we don’t have to mention ‘Nigger’ and things like that.
BULLARD: Your Honor, this is a case pertaining to a very rich person, then one could refer to me as a peasant and if I repeated the fact that he called me a ‘Peasant’, would that ... do you consider that to inflame another peasant on the jury? I mean, isn’t it a similar situation?
THE COURT: Let me tell you something. The decedent is not here to talk with us, is he? He can’t tell us what he said. There is evidence and I can tell you are pretty intelligent and you can say what you want to say ...
BULLARD: I want to say the facts, sir.
THE COURT: I know, but sometimes
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BULLARD: Just the facts, if I can, Your Honor.
THE COURT: You had a year to think about the facts.
BULLARD: No, if I said ...
THE COURT: Wait, Mr. Bullard.
BULLARD: Yes, sir. Yes, Your Honor.
THE COURT: You had a year to think about the facts. The evidence doesn’t support your view when you said he was a rich person, because the evidence as presented, that he wanted to sell that business and wasn’t doing too well.
MR. WILSON: Your Honor, he is not saying Gary Wright was a rich person. He was giving you an example ...
BULLARD: An analogy ...
MR. WILSON: An analogy of a rich person calling a poor person a ‘Peasant’, could he say the word ‘Peasant’. He wasn’t referring to the facts in this case.
THE COURT: Okay. You said that once.

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Bluebook (online)
521 So. 2d 223, 13 Fla. L. Weekly 476, 1988 Fla. App. LEXIS 680, 1988 WL 10833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullard-v-state-fladistctapp-1988.