# Third District Court of Appeal State of Florida Opinion filed March 15, 2023

. Not final until disposition of timely filed motion for rehearing.

________________ No. 3D21

- 2450 Lower Tribunal No. F20

- 5155

________________ 

### The State of Florida , Appellant,

vs. 

### Emilio Quevedo , Appellee.
An Appeal from the Circuit Court for Miami

- Dade County, Ramiro C. Areces , Judge. Ashley Moody, Attorney General, and Katryna Santa Cruz, Assistant Attorney General , for appellant. Sherri A. Romano, P.A., and Sherri A. Romano; Arturo V. Hernandez, P.A., and Arturo V. Hernandez , for appellee.

Before EMAS, SCALES and HENDON , JJ. EMAS, J

.2 The defendant, Emilio Quevedo (“Defendant”) , was arrested and charged with two counts of attempted first

- degree murder and one count of shooting or throwing a deadly missile, after an altercation with his neighbor , Jose Camacho , during which D efendant shot Cam acho. Defendant filed a motion to dismiss, and an affidavit in support, asserting he was immune from prosecution under section 776.032 and 776.012 , Florida Statutes (2021) ( Florida’s Sta nd Your Ground law ). Defendant declared the shooting was justified be cause he reasonably believed it was necessary to prevent imminent death or great bodily harm to himself. Specifically, D efendant averred his belief was reasonable because Camacho, while advancing toward D efendant, yell ed at D efendant and threaten ed to “ bust Mr. Quevedo's mouth and bust out his teeth. ” Camacho was twenty

- five years old ( nearly half the age of the forty

- eight

- year - old D efendant) and larger in stature than the five

- foot, five

- inch D efendant. Of significance , D efendant also av erred that he s uffers from a bl eeding disorder called Von Willebrand d isease, which presents a risk of severe blood loss when subjected to blunt force trauma. In his affidavit, D efendant asserted that he shot Camacho because he “was afraid that [Camacho] was going to ki ll [him] or inflict great bodily harm.”3 Importantly , the State stipulated that D efendant’s motion and affidavit established a prima facie c laim of self

- defense immunit y under Florida’s Stand Your Ground law, and further stipulated : Camacho was the initial
aggressor ; D efendant was not engaged in criminal activity prior to shooting Camacho ; and D efendant was in a place he had a right to be at the time of the shooting . A s a result, the burden shifted to the State to overcome the prima facie c laim of self

- defense immunity by clear and convincing evidence that D efendant ’s use of force was not reasonably necessary to prevent imminent death or great bodily harm. The S tand Your Ground hearing was held over s ix days, and included more than thirty e xhibits as well as testimony from five witnesses for the defense and two witnesses for the State. T he trial court had before it ( in addition to D efendant ’s motion and affidavit ) , D efendant’s medical records , which establish ed that he did in fact suffer from Von Willebrand d isease , that he was being treated for it and had been treated for it in the past. The court also viewed video s of the incident, which contained audio ( mostly in Spanish ) , for which translations and transcrip ts were provided. The videos show the two exchanging words, and Camacho shouting at D efendant “te voy a matar a ti” (translated at the hearing as “I’m going to kill you.”) At that point , Camacho wave d his arms and advance d several s teps toward4 D efendant. Even after D efendant display ed the gun, Camacho continue d to advance toward the D efendant. The two are with in a few feet of each other when D efendant fir es the gun

. Witnesses for the D efendant included a hematologist who testified that D efendant suffer s from Von Willebrand ’s d isease , as established by medical records and family history, and that this condition would lead to great bodily harm, major bleeding and possibly death if Defendant was struck in the mouth or nose. In addition, D efendant ’s wife testified to her husband’s history of Von Willebrand d isease , his awareness of t his condition, his prior hospitalization for the disease, and medication and precautions taken by him in his daily life as a result. She also tes tified that her husband legally owns the firearm involved in the incident, that he routinely carries it wherever he goes, and that he has a permit to carry the firearm in a concealed manner

. Two witnesses testified for the State: the lead detective and Mr

. Camacho

. A t the conclusion of the hearing, t he trial court entered a detailed, eight

- page order finding , inter alia: Camacho was the initial aggressor; Defendant did not provoke or invite the attack and was in a place he had a right to be at the time of the shooting; Camacho taunted the Defendant. D efendant insulted Camacho ;5 Camacho grew increasingly upset and threatened to break Defendant's mouth and / or teeth ; Camacho then aggressively advanced toward D efendant , at which time D efendant d re w a firearm from u nder his shirt and shot Camacho ; The two men were “ extremely close ” to each other at the time D efendant discharged the firearm ; Defendant suffered from a blood disease that could turn a punch to the nose or mouth into a serious, potentia lly life

- threatening injury requiring hospitalization; Given the circumstances and Defendant’s medical condition, Defendant reasonably believed the use of deadly force was necessary to prevent imminent death or great bodily harm. With regard to Camacho ’ s testimony at the hearing, the trial court stated it “ did not find Camacho's testimony to be particularly credible. Mr. Camacho was evasive and often seemed incapable of answering simple questions. ”; The trial court’s order concluded: Ultimately, there is no evidence, let alone clear and convincing evidence, upon which this c ourt could find that a "reasonable person" in d efendant's position would not have thought the use of deadly force was necessary to prevent imminent death or great bodily harm. STANDARD OF REVIEW We apply a mixed standard of review to an order adjudicating a motion to dismiss based on Stand Your Ground immunity: the trial court’s factual findings are presumed correct and can be r eversed only if they are not6 supported by competent substantial evidence . We review de novo the trial court’s legal conclusions, including whether the State met its burden of establishing, by clear and convincing evidence, that D efendant’s use of force di d not meet the statutory standard for self

- defense immunity. State v. Vino , 100 So. 3d 716 (Fla. 3d DCA 2012); Derossett v. State , 294 So. 3d 984 (Fla. 5th DCA 2020); Bouie v. State , 292 So. 3d 471 (Fla. 2d DCA 2020). ANALYSIS AND DISCUSSION Section 77 6.032 , Florida Statutes (2020) provides in pertinent part: (1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution. . . .

*** (4) In a criminal prosecution, once a prima facie claim of self

defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
Section 776.012(2) , Florida Statutes (2020) 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 im minent 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 deadl y force is not7 engaged in a criminal activity and is in a place where he or she has a right to be. In the instant case, the State stipulated that D efendant ’s motion and affidavit established a prima facia claim of self

- defense immunity. As a result, at t he pretrial immunity hearing the State bore the burden of

overcom ing D efendant’s self

- defense immunity with clear and convincing evidence to establish D efendant did not reasonably believe his us e of deadly force was necessary to prevent imminent death or great bodily harm to himself or to prevent the imminent commission of a forcible felony by Camacho

. See § 776.012(2); Jefferson v. State , 264 So. 3d 1019, 1026

- 27 (Fla. 2d DCA 2018)

. Following our review of the record, we conclude that the trial court’s factual findings are supported by competent substantial evidence , and we hold that the trial court properly applied the relevant provisions of the Stand Your Ground law in concluding that the State failed to meet its burden to

overcome D efendant’s self

- def ense immunity. See § 776.032 (4) , Fla. Stat.; Bouie , 292 So. 3d at 474 (recognizing that “once a prima facie claim of self

defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the imm unity from criminal prosecution”) (quoting § 776.032(4) , Fla. Stat. ). See also Viera v.8 State , 163 So. 3d 602, 604

- 05 (Fla. 3d DCA 2015) (“[T]h e objective standard is to be applied by a trial court in evaluating the factual circumstances presented in a St and 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 ”) (citing Mobley v. State , 132 So. 3d 1160 (Fla. 3d DCA 2014) ); 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) ; Price v. Gray's Guard Servs

. , Inc. , 298 So. 2d 461, 464 (Fla. 1st DCA 1974) (“The conduct of a person acting in self defense is measured by an objective standard, but the standard must be applied to the facts and circumstances as they appeared at the time of the altercation to the one acting in self defense.” ) Thus the objective standard of what is reasonable must be measured i n light of the facts and circumstances as they appeared and were known to th e individual defendant. In the instant case, D efendant established that h e suffered from a bleeding disorder and that, if hit in the nose or mouth, he9 would likely suffer g reat bodily harm , major bleeding, or even death

. Further, the D efendant ’s affidavit exp ressly aver red that he shot Camacho because he was in fear that Camacho would kill him or cause him great bodily harm , given his condition and in light of Camacho’s thr eat

— made as he advanced toward D efendant

— that he would “bust [ D efendant’s] mouth and bust out his teeth

. ” Finally, we have video footage presented at the S tand

- Your

- Ground hearing, which shows Camacho approaching D efendant in a threatening

manner and, w hile advancing toward D efendant, yelling at D efendant and telling him “I’m going to kill you.” And the testimony and other evidence presented at the hearing also demonstrate d the difference in age, height and weight between the smaller, older D efendant and the younger, taller and heavier Camacho. CONCLUSION Because the trial court’s findings are supported by competent substantial evidence, and because the trial court properly applied those findings to its legal determination that the State failed to meet its evidentiary burden to overcome D efendant’s claim of self

- defense immunity, we affirm. Affirmed.