Judge Robert Gross (Melanie Bell)
A West Palm Beach bar patron who blew a kiss to the man he was about to kill won a new trial because of a faulty jury instruction.
Narcisse Antoine was given a 40-year sentence in 2011 for attempted second-degree murder in the shooting of Jeffrey Thompson. The jury deadlocked on a first-degree murder count in the death of Brandon Hammond.
Palm Beach Circuit Judge Joseph Marx presided over the trial where several witnesses described Hammond as the aggressor.
On the night of June 1, 2009, Antoine was at Club Mystique celebrating his girlfriend finishing school.
During the hours leading up to the shooting, Hammond and Thompson were thrown out of the club three times for harassing customers.
Antoine testified he left the bar to put a vodka bottle in his car. He then intended to go back inside to get his girlfriend and go home, but while he was outside he got involved in an argument that started in the club and moved outside.
Raymond Hurley, a security guard watching from a nearby lot, testified he heard Hammond spin his BMW convertible out of control and onto the sidewalk. Hurley said the driver and passenger were “looking for trouble” by threatening customers outside the club.
Tyrone Slade, the club bouncer and star prosecution witness, said Antoine told everyone to calm down. Hammond’s response was to hurl racial insults at Antoine. He shrugged off the remarks and said he told Hammond to “take his drunk ass home.”
Hammond punched Antoine in the jaw.
Hurley said Antoine responded: “You done messed up. God bless you.”
Hammond took another swing. Slade said Antoine stepped back, checked his lip for blood and handed his drink to Slade. Antoine then pulled a pistol from his holster, blew a kiss toward Hammond and Thompson, and told them to leave.
Antoine said Hammond reached into his shirt and threatened to kill him.
Believing Hammond was going for a gun, Antoine testified he fired several shots at Hammond, then at Thompson as he fled toward his car. Thompson survived with severe injuries.
According to Hammond’s autopsy, he had a 0.219 blood alcohol content, amphetamine, a metabolite of cocaine, Xanax and marijuana in his system. The bouncer said Hammond had a reputation for violence and drunkenness.
This became an issue because the judge gave a jury instruction over a defense protest allowing the panel to consider Hammond’s reputation for violence but only if that reputation was known to the defendant.
The Fourth District Court of Appeal ruled Wednesday that was an error. Writing for a unanimous panel, Judge Robert Gross said evidence of a victim’s character trait may be offered on the issue of who was the aggressor in a self-defense case.
“Reputation testimony is admissible in a self-defense case as circumstantial evidence to prove the victim’s conduct, that at the crucial time the victim acted consistently with his reputation,” Gross said. “A defendant’s prior knowledge of the victim’s reputation for violence is irrelevant when the evidence is offered to show the conduct of the victim rather than the defendant’s state of mind.
He added: “Although the reputation evidence pertained to Hammond and not to Thompson, the two men acted in concert, and the reasonableness of Antoine’s conduct must be evaluated by his response to both men.”
Gross also found Marx erred by rejecting hearsay testimony that the defense tried to elicit from Slade about his conversations with his attorney during breaks in his police interview. The appeals court found the defense had the right to question Slade about his state of mind and to expose potential bias because he was concerned about criminal or civil liability.
Finally, the trial judge erred on sentencing, Gross found. Antoine was given 40 years with a mandatory minimum of 25 years, exceeding the 30-year statutory maximum for a first-degree felony.
Judges Dorian Damoorgian and Mark Klingensmith concurred.
On appeal, Palm Beach Assistant Public Defender Tatjana Ostapoff represented Antoine. Assistant Attorney General Laura Fisher represented the state.