Demond Lavette Moore v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: May 2, 2025
• Docket: 6D2024-2740
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2024-2740 Lower Tribunal No. 2023-CF-006358 _____________________________

DEMOND LAVETTE MOORE,

Petitioner,

v.

STATE OF FLORIDA,

Respondent. _____________________________

Petition for Writ of Prohibition to the Circuit Court for Polk County.

May 2, 2025

WOZNIAK, J.

Demond Lavette Moore petitions for a writ of prohibition to prevent his

prosecution for second-degree murder. 1 Moore alleges that he has immunity under

section 776.032, Florida Statutes (2023), Florida’s Stand Your Ground law. We

agree.

Moore correctly proceeds under a writ of prohibition. See Boston v. State, 1

326 So. 3d 673, 677 (Fla. 2021) (“[A] defendant who avails him or herself to a pretrial immunity hearing and who believes legal error was committed at the pretrial immunity hearing may still seek relief by filing a petition for a writ of prohibition.” (emphasis omitted)). Moore was charged with second-degree murder following a shooting that took

place in Davenport. He filed a motion to dismiss the Information based on his claim

of Stand Your Ground immunity. In it, he stated that some hours before the incident,

law enforcement had been dispatched to investigate a call of a suspicious person,

Quanita Offutt, who was intoxicated and walking and dancing in the road; she was

rapping while the officers asked her questions. The officers determined Offutt was

not a danger to herself or others and left. After this encounter with law enforcement,

Offutt, whom Moore had never met, approached Moore as he was sleeping in a chair

outdoors and attacked him with a chair. Offutt threatened to kill Moore and his entire

family. This initial encounter ended, and Offutt wandered away. Moore then

proceeded to get a beer out of his cooler, which was in the bed of his truck parked

nearby. As he was getting his beer, Offutt reapproached Moore and pointed a gun at

him. They fought, and both ended up in the bed of the truck. Moore obtained control

of the gun. While still in the truck bed, Offutt reached downwards and appeared to

be grabbing for an object. Moore, knowing there were various potentially deadly

objects, including a machete, in the back of the truck and fearing for his life, shot

her in the leg. Offutt died from that injury.

At the evidentiary hearing, the trial court determined that Moore had

successfully established a prima facie claim of self-defense immunity. We agree. At

that point, the burden shifted to the State to prove, by clear and convincing evidence,

2 that Moore was not entitled to self-defense immunity. See § 776.032(4), Fla. Stat.

Several witnesses testified on behalf of the State.

Mary Hall, Moore’s neighbor, testified that she saw blood on the side of

Moore’s truck from across the street, and upon approaching the truck, she saw

Offutt’s body in the truck bed. Hall called 911. Hall testified that she did not hear

any fighting or a gunshot and did not know how Offutt ended up in the truck bed.

Hall described Moore as being less than five feet four inches tall and “pretty skinny.”

Officer Octavious Taylor responded to the scene. He found Offutt, who had a

bottle opener in her hand, in Moore’s truck bed. Taylor was able to identify Offutt

because he responded to the earlier call concerning Offutt’s erratic behavior. Taylor

testified that he saw blood on the side of the left rear fender of Moore’s truck 2 and

observed several toolboxes and a variety of tools in the truck bed. Taylor detained

Moore for interfering with his investigation; Moore did not leave when Taylor

explained that the area surrounding Moore’s truck was an active crime scene. Moore

was released 20 minutes later. Taylor did not observe any injuries on Moore or any

blood on his clothing.

Sergeant Mario Dixon also responded to the scene. He testified that he saw

blood on the rear quarter panel of the truck. Dixon also observed Offutt in Moore’s

truck bed, lying on some tools; there was an injury to Offutt’s upper right thigh and

2 A picture of the blood on Moore’s truck was entered into evidence. 3 bruising on her face. Dixon did not see a firearm, but did see a casing three to four

feet from the truck. Dixon, who interacted with Moore after Taylor detained him,

noted that Moore appeared intoxicated, but Dixon did not see any injuries on Moore

or blood on his shirt.

Officer Sean Bruner, another responding officer, observed Offutt in Moore’s

truck bed. Bruner testified that it would have been difficult, given the number of

tools in the truck bed, for two people to have a “full-on brawl.” Moore’s counsel

objected to Bruner’s testimony as speculative, but that objection was overruled. 3

Bruner also testified that he believed that Offutt’s body was thrown on top of the

toolboxes in Moore’s truck bed, citing “common sense” as his guide.

Next, Carol Greenwell, an analyst from the Florida Department of Law

Enforcement, testified that the blood on the side of Moore’s truck belonged to Offutt.

Greenwell also testified that Moore’s DNA was recovered from underneath Offutt’s

fingernails.

Detective Daniel Grant, who arrived at the crime scene after Moore’s truck

and Offutt’s body had been removed, did not locate a firearm at the scene. Although

Grant did not speak with Moore, Grant did speak with Offutt’s mother, who

3 We express no view on whether the trial court was correct to overrule that objection. 4 indicated that Offutt had been drinking heavily before leaving her house the night

she was shot.

Detective Angel Shireman later took over the investigation from Grant.

Shireman testified that Moore did not volunteer to law enforcement that he shot

Offutt in self-defense. Shireman explained that, given the number of tools and

equipment in the truck bed, there was not a lot of space for maneuvering if there was

a fight. Based on his review of the blood on the outside of the truck, Shireman opined

that someone rolled Offutt over the side of the truck and into the truck bed. Shireman

explained that he interviewed several witnesses, and none of them had seen the

incident that led to the shooting. On cross examination, Shireman explained that one

unidentified witness had said Moore had stated, “I was fighting with that bitch for

30 minutes” and no one came to help him. Shireman reviewed a video showing

events that occurred after the shooting and testified that he could see Moore with a

handgun in his pant pocket in that video. Moore’s counsel rightly objected to

Bruner’s testimony as violating the best evidence rule because instead of playing the

video, Bruner testified as to his observations of the video. That objection was also

overruled.

Moore did not call any witnesses or present evidence.

In its order denying Moore’s motion to dismiss, the trial court recounted the

testimony of each witness and concluded that the State had met its burden to prove

5 by clear and convincing evidence that Moore was not entitled to immunity because

“a reasonable and prudent person situated in the same circumstances as [Moore]

would not have used the same force as [Moore].” It made its determination “based

on these circumstances”:

• [Moore] told at least one person he and [Offutt] fought. No injuries or blood were observed on [Moore].

• A firearm was also not located at the scene, but on video, [Moore] was captured with a gun on his person.

• [Moore] did not testify at the hearing and presented no evidence in his defense to this Court.

• There was no testimony presented to the Court that [Offutt] had a gun and [Moore] shot her in self-defense. Notably, [Moore] failed to present any evidence to establish that he reasonably believed that his use of force was necessary to prevent imminent death or great bodily harm to himself.

We turn now to explain why we grant Moore’s Petition.

Section 776.032(1) provides that “[a] person who uses . . . force as permitted

in s. 776.012 . . . is justified in such conduct and is immune from criminal

prosecution . . . .” Section 776.012, Florida Statute (2023), provides:

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.

6 If a defendant raises a prima facie claim of self-defense immunity, then the State

bears the burden to overcome that claim by clear and convincing evidence. §

776.032(4), Fla. Stat.

We apply a mixed standard when reviewing a trial court’s order denying a

defendant’s claim of immunity; we review the trial court’s legal conclusions and

application of law to facts de novo and its factual findings for competent, substantial

evidence. See Bouie v. State, 292 So. 3d 471, 479 (Fla. 2d DCA 2020).

We turn first to two evidentiary issues: the admission of testimony, over

objection, that Moore was seen in a video, taken post-shooting, with a gun in his

pocket; and the trial court’s reliance on Moore’s silence as evidence of his guilt. 4

First, the court’s finding that Moore had a gun on his person after the shooting

is not supported by competent, substantial evidence because the testimony

underlying that finding violated the best evidence rule. §§ 90.952 & 90.954, Fla.

4 The State argues that our review of evidentiary issues is precluded because such claims should be brought in a petition for writ of certiorari and Moore’s time for doing so has elapsed. As noted above, our standard of review is, in part, a review of the trial court’s factual findings for competent, substantial evidence. Accordingly, we are dutybound to review errors in evidence underlying the trial court’s factual determinations. Facts based only on inadmissible evidence are facts without a competent, substantial evidentiary backing. See Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013) (“Competency of evidence refers to its admissibility under legal rules of evidence.” (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially))); see also Damask v. Ryabchenko, 329 So. 3d 759, 764 (Fla. 4th DCA 2021) (“Inadmissible hearsay cannot be competent, substantial evidence.” (citing B.L. v. Dep’t of Child. & Fams., 174 So. 3d 1125, 1126 (Fla. 4th DCA 2015))). 7 Stat. (2023). Moore’s counsel correctly objected to the testimony on which this

finding was based. See, e.g., Dyer v. State, 26 So. 3d 700, 702-04 (Fla. 4th DCA

2010) (holding that a store manager was improperly allowed to testify that the store’s

surveillance video showed the defendant opening DVDs and putting DVDs in his

pocket); Russell v. State, 844 So. 2d 725, 727-28 (Fla. 5th DCA 2003) (finding best

evidence rule violation where a detective testified that a video showed the defendant

placing a large amount of change on the counter of a 7–Eleven after a large quantity

of change had been stolen from a Taco Bell). Accordingly, the trial court abused its

discretion in allowing this evidence, and the court’s finding that Moore had a gun on

his person after the shooting is not supported by competent, substantial evidence. 5

Second, we hold that the trial court improperly relied on Moore’s silence in

determining he was not entitled to immunity. This it could not do. See State v.

Horwitz, 191 So. 3d 429, 441 (Fla. 2016) (“The defendant should not be compelled

to make the choice between testifying—with the possibility that his or her earlier

silence might be used to impeach him or her—and not testifying—thereby, under

the State’s view, allowing the State to use the defendant’s earlier silence as

substantive evidence of the defendant’s guilt.”). Accordingly, we hold that Moore’s

5 We also note that Moore’s possession of a gun after the fact does not contradict or otherwise tend to disprove his claim that Offutt initially had possession of a gun or Moore’s claim that he reasonably believed that using deadly force against Offutt was necessary to prevent imminent death or great bodily harm to himself. 8 “failure to testify” is not competent, substantial evidence tending to disprove his

claim of self-defense. Within that same vein, the trial court’s reliance on Moore’s

failure to present any evidence of his claim was also improper. The statute is clear:

Moore’s burden was only to raise a prima facie claim of self-defense. The trial court

determined that Moore met that burden. At that point, the burden shifted to the State

to prove by clear and convincing evidence that Moore did not act in self-defense.

Accordingly, Moore was not required to submit any evidence, and the trial court

erred in considering the lack of evidence presented by Moore and then using that

lack of evidence to fill in the gaps in the State’s evidence where the State bore the

burden to prove by clear and convincing evidence that Moore did not act in self-

defense.

Having stripped away these findings, we are left with only the trial court’s

attributing the lack of blood or injury on Moore as a fact tending to disprove Moore’s

claim. However, Moore never claimed he was injured or bloodied in the ensuing

fights between himself and Offutt, only that he was attacked twice-over and in fear

for his life. Accordingly, that Moore was unbloodied and uninjured after having been

attacked does not disprove or discredit Moore’s claim of self-defense.

Because the facts on which the trial court relied were inadmissible or wholly

unsupportive of its conclusion, we hold that the trial court erred by ruling that the

State met its burden to overcome Moore’s claim of self-defense. Because the State

9 failed to meet its burden, Moore’s prima facie claim of self-defense stands, and he

is immune from further prosecution. Accordingly, we grant the Petition but withhold

issuance of the writ, confident that the trial judge will grant the underlying motion.

PETITION GRANTED; WRIT WITHHELD.

MIZE and BROWNLEE, JJ., concur.

Blair Allen, Public Defender, and Daniel Muller and Stephen P. Pincket, Assistant Public Defenders, Bartow, for Petitioner.

James Uthmeier, Attorney General, Tallahassee, and Analise V. Walker, Assistant Attorney General, Tampa, for Respondent.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED