Kathleen WEIAND, Petitioner, v. STATE of Florida, Respondent.
Rehearing Denied April 30, 1999.
James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner.
Robert A. Butterworth, Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, and Scott A. Brown, Assistant Attorney General, Tampa, Florida, for Respondent.
Peter Margulies, Professor of Law, St. Thomas University School of Law, Miami, Florida, for Amici Curiae, Center Against Spouse Abuse (CASA), et al.
SHOULD THE RULE OF STATE v. BOBBITT,415 So.2d 724 (Fla. 1982), BE CHANGED TO ALLOW THE CASTLE DOCTRINE INSTRUCTION IN CASES WHERE THE DEFENDANT RELIES ON BATTEREDSPOUSE SYNDROME EVIDENCE (AS NOW AUTHORIZED BY STATE V. HICKSON,630 So.2d 172 (Fla. 1994)[)] TO SUPPORT A CLAIM OF SELF-DEFENSE AGAINST AN AGRESSOR WHO WAS A COHABITANT OF THE RESIDENCE WHERE THE INCIDENT OCCURRED?
Weiand v. State, No. 95-01121, on rehearing from701 So.2d 562 (Fla. 2d DCA 1997).
SHOULD THE LAW IMPOSE A DUTY TO RETREAT FROM THE RESIDENCE BEFORE A DEFENDANT MAY JUSTIFIABLY RESORT TO DEADLY FORCE IN SELF-DEFENSE AGAINST A CO-OCCUPANT, IF THAT FORCE IS NECESSARY TO PREVENT DEATH OR GREAT BODILY HARM?
As rephrased, we answer the certified question in the negative and recede from our contrary holding in Bobbitt.
We first address our jurisdiction. Article V, section 3(b)(4) of the Florida Constitution, vests this Court with the discretionary jurisdiction to review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance.
After briefing and oral argument, Weiand filed a notice of voluntary dismissal in this Court because she was granted executive clemency on December 23, 1998. As we have done in the past, we exercise our discretion to retain jurisdiction because we consider this issue to be of great public importance. See State v. Schopp, 653 So.2d 1016, 1018 (Fla.1995); Holly v. Avid, 450 So.2d 217, 218 n. 1 (Fla.1984).
Kathleen Weiand was charged with first-degree murder for the 1994 shooting death of her husband Todd Weiand. Weiand shot her husband during a violent argument in the apartment where the two were living together with their seven-week-old daughter. At trial Weiand claimed self-defense and presented battered spouse syndrome3 evidence pursuant to Hickson in support of her claim. Weiand testified that her husband had beaten and choked her throughout the course of their three-year relationship and had threatened further violence if she left him.
Two experts, including Dr. Lenore Walker, a nationally recognized expert on battered women, testified that Weiand suffered from “battered woman’s syndrome.” Dr. Walker detailed Weiand’s history of abuse by her husband and testified about the effect of the abusive relationship on Weiand. Based on her studies, her work with Weiand and Weiand’s history of abuse, Dr. Walker concluded that when Weiand shot her husband she believed that he was going to seriously hurt or kill her.
Dr. Walker opined that there were several reasons why Weiand did not leave the apartment that night during the argument, despite apparent opportunities to do so: she felt that she was unable to leave because she had just given birth seven weeks earlier; she had been choked unconscious; she was paralyzed with terror; and experience had taught her that threats of leaving only made her husband more violent.
If the defendant was attacked in [his][her] own home or on [his][her] own premises, [he][she] had no duty to retreat and had the lawful right to stand [his][her] ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent either death or great bodily harm.
The fact that the defendant was wrongfully attacked cannot justify her use of force likely to cause death or great bodily harm if by retreating she could have avoided the need to use that force.
See Fla. Std. Jury Instr. (Crim.), “Justifiable Use of Deadly Force,” § 3.04(d), at 48.
She had to exhaust every reasonable means of escape prior to killing him. Did she do that? No. Did she use the phone that was two feet away? No. Did she go out the door where her baby was sitting next to? No. Did she get in the car that she had driven all over town drinking and boozing it up all day? No.
The jury found Weiand guilty of second-degree murder and the trial court sentenced her to eighteen years’ imprisonment. The Second District affirmed her conviction and sentence, see Weiand, 701 So.2d at 565, but on rehearing certified the question of whether this Court should recede from Bobbitt.
There is an exception to this common law duty to retreat “to the wall,” which applies when an individual claims self-defense in his or her own residence. See id. at 827; Pell v. State, 97 Fla. 650, 665, 122 So. 110, 116 (1929); Danford v. State, 53 Fla. 4, 13, 43 So. 593, 597 (1907). An individual is not required to retreat from the residence before resorting to deadly force in self-defense, so long as the deadly force is necessary to prevent death or great bodily harm. See Hedges, 172 So.2d at 827; Pell, 97 Fla. at 665, 122 So. at 116; Danford, 53 Fla. at 13, 43 So. at 597.
It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. More than 200 years ago it was said by Lord Chief Justice Hale: In case a man “is assailed in his own house, he need not flee as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by flight.” Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home…. The rule is the same whether the attack proceeds from some other occupant or from an intruder.
Id. at 497-98 (emphasis supplied) (citations omitted).
In Hedges, this Court applied the privilege of nonretreat from the residence where the attacker was not an intruder but an invitee with the defendant’s permission to be on the premises. In that case, the defendant and the victim had maintained a long-term intimate relationship, and on the morning of the shooting the victim was an invitee, lawfully in the defendant’s home. See Hedges v. State,165 So.2d 213, 214-15 (Fla. 2d DCA 1964), quashed,172 So.2d 824 (Fla.1965). In instructing the jury on the law of self-defense, the trial court informed the jury that the defendant was required to use “all reasonable means within his power and consistent with his own safety to avoid the danger and avert the necessity of taking human life.” Hedges, 172 So.2d at 826. The trial court failed to instruct the jury that the defendant was under no duty to retreat from her residence. See id. at 827.
The instruction correctly stated the law as far as it went but again it was not complete. The quoted language placed upon the accused the duty to use all reasonable means consistent with her own safety to avoid the danger and avert the necessity of taking human life. To the lay mind this well could be construed to mean the duty to run or to get out of the way. There is no such duty when one is assaulted in his own home, despite the common law duty to “retreat to the wall” when one is attacked elsewhere. Pell v. State, 97 Fla. 650, 122 So. 110 [(1929)]. While Pell involved a trespasser, it clearly states the rule to be that when one is violently assaulted in his own house or immediately surrounding premises, he is not obliged to retreat but may stand his ground and use such force as prudence and caution would dictate as necessary to avoid death or great bodily harm. When in his home he has “retreated to the wall.” Pell further decides that such an instruction should be an element of the charge on self-defense where the evidence supports it. Other courts have held that a man is under no duty to retreat when attacked in his own home. His home is his ultimate sanctuary.
Id. at 826-27 (emphasis supplied).
[T]he privilege not to retreat, premised on the maxim that every man’s home is his castle which he is entitled to protect from invasion, does not apply here where both Bobbitt and her husband had equal rights to be in the “castle” and neither had the legal right to eject the other.
Justice Overton, in a strongly-worded dissent, disagreed with the majority’s decision because it was contrary to a “basic premise in our law that the home is a special place of protection and security.” Id. at 727. He further criticized the distinction made by the majority that authorized the privilege of nonretreat instruction in cases like Hedges, where the aggressor was an invitee with a legal right to be on the premises, but not where the aggressor was a co-occupant. See id. at 726-27.
At the time we rendered our decision in Bobbitt in 1982, we were in a minority of jurisdictions8 that refused to extend the privilege of nonretreat from the residence where the aggressor was a co-occupant. Since our decision in Bobbitt, an even greater number of jurisdictions have declined to impose a duty to retreat from the residence.9See generally H.J. Alperin, Annotation, Homicide: Duty to Retreat Where Assailant and Assailed Share the Same Living Quarters, 26 A.L.R.3d 1296 (1969 & Supp.1998).
We now conclude that it is appropriate to recede from Bobbitt and adopt Justice Overton’s well-reasoned dissent in that case. We join the majority of jurisdictions that do not impose a duty to retreat from the residence when a defendant uses deadly force in self-defense, if that force is necessary to prevent death or great bodily harm from a co-occupant.
There are two distinct reasons for our conclusion. First, we can no longer agree with Bobbitt’s minority view that relies on concepts of property law and possessory rights to impose a duty to retreat from the residence. 415 So.2d at 726. Second, based on our increased understanding of the plight of victims of domestic violence in the years since our decision in Bobbitt, we find that there are sound policy reasons for not imposing a duty to retreat from the residence when a defendant resorts to deadly force in self-defense against a co-occupant. The more recent decisions of state supreme courts confronting this issue have recognized that imposing a duty to retreat from the residence has a potentially damaging effect on victims of domestic violence claiming self-defense. See, e.g., New Jersey v. Gartland,149 N.J. 456, 694 A.2d 564, 569-71 (1997); Ohio v. Thomas,77 Ohio St.3d 323, 673 N.E.2d 1339, 1343 (1997).
the privilege not to retreat … does not apply here where both Bobbitt and her husband had equal rights to be in the “castle” and neither had the legal right to eject the other.
415 So.2d at 726. Thus, our decision in Bobbitt appears to have been grounded upon the sanctity of property and possessory rights, rather than the sanctity of human life.
Under the majority opinion, a woman killing her paramour in her home has more protection under the law than a woman who kills her husband in her home. More difficult still to understand is the application of the majority’s rule to the situation where a mother is attacked in her home by a nineteen-year-old son. If the son is living in the home, the mother has a duty to retreat before she can use deadly force, but, if the son is not residing in the home, the mother has no duty to retreat before such force is used.
Bobbitt’s distinction based on possessory rights may be important in the context of defending the home. See supra note 6; Falco v. State,407 So.2d 203, 208 (Fla. 1981); Alday v. State,57 So.2d 333, 333 (Fla.1952); State v. White,642 So.2d 842, 844 (Fla. 4th DCA 1994). However, the privilege of nonretreat from the home stems not from the sanctity of property rights, but from the time-honored principle that the home is the ultimate sanctuary. See Hedges, 172 So.2d at 827; Tomlins, 107 N.E. at 497-98. As has been asked rhetorically, if the duty to retreat from the home is applied to a defendant attacked by a co-occupant in the home, “whither shall he flee, and how far, and when may he be permitted to return?” Jones v. Alabama, 76 Ala. 8, 16 (1884); see also Gartland, 694 A.2d at 570.
The omission of the jury instruction on the privilege of nonretreat from the home is not cured by the jury instruction given in all self-defense cases that there is no legal duty to retreat if retreating would increase the danger of death or great bodily harm. See Fla. Std. Jury Instr. (Crim.), “Justifiable Use of Deadly Force,” § 3.04(d) at 48. In Hedges, the jury was instructed that the defendant had to use all reasonable means consistent with her own safety to avoid the danger before resorting to deadly force in self-defense. 172 So.2d at 826-27. We found that the instructions were incomplete because, without the privilege of nonretreat instruction, the jury may have believed that the defendant had a duty to retreat from her home. See id. at 827. For the same reason, we find that in circumstances where the nonretreat instruction is applicable, the instructions are incomplete and misleading if the nonretreat instruction is not given. See id.
1. Imposing a duty to retreat from the home may adversely impact victims of domestic violence.
Imposition of the duty to retreat on a battered woman who finds herself the target of a unilateral, unprovoked attack in her own home is inherently unfair. During repeated instances of past abuse, she has “retreated,” only to be caught, dragged back inside, and severely beaten again. If she manages to escape, other hurdles confront her. Where will she go if she has no money, no transportation, and if her children are left behind in the “care” of an enraged man?
What [the duty to retreat] exception means for a battered woman is that as long as it is a stranger who attacks her in her home, she has a right to fight back and labors under no duty to retreat. If the attacker is her husband or live-in partner, however, she must retreat. The threat of death or serious bodily injury may be just as real (and, statistically, is more real) when her husband or partner attacks her in home, but still she must retreat.
Gartland, 694 A.2d at 570-71 (quoting Maryanne E. Kampmann, The Legal Victimization of Battered Women, 15 Women’s Rts. L. Rep. 101, 112-113 (1993)).
Studies show that women who retreat from the residence when attacked by their co-occupant spouse or boyfriend may, in fact, increase the danger of harm to themselves due to the possibility of attack after separation. According to Dr. Lenore Walker, “[t]he Battered would often rather kill, or die himself, than separate from the battered woman.” Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 65 (1989).
Experts in the field explain that separation or retreat can be the most dangerous time in the relationship for the victims of domestic violence because “[v]iolence increases dramatically when a woman leaves an abusive relationship.” Executive Office of the Governor, The Governor’s Task Force on Domestic Violence, The First Report at 55 (January 31, 1994) (hereinafter First Report). A leading expert in the field cites one study which revealed that forty-five percent of the murders of women “were generated by the man’s `rage over the actual or impending estrangement from his partner.'” Donald G. Dutton, The Batterer: A Psychological Profile 15 (1995). Another study found that the murder of the battered victim was often “triggered by a walkout, a demand, a threat of separation [which] were taken by the men to represent intolerable desertion, rejection and abandonment. Thus … the threat of separation is usually the trigger for violence.” Kampman, supra at 104 (brackets in original).
The imposition of a duty to retreat from one’s residence when faced with a violent aggressor has the most significant impact on women because an overwhelming majority of victims of domestic violence are women. According to the statistics compiled by the Governor’s Task Force on Domestic Violence, seventy-three percent of domestic violence victims are women. See First Report, supra at 47; Executive Office of the Governor, The Governor’s Task Force on Domestic and Sexual Violence, The Third Report at Appendix S (March 31, 1997) (hereinafter Third Report). Domestic violence is the single major cause of injury to women, more frequent than auto accidents, rapes, and muggings combined. See First report, supra at 2. “Over four thousand women die annually at the hands of their abuser,” id. at 3, and in 1995, of all female homicide victims, thirty-nine percent were killed during domestic violence incidents. See Third report, supra at Appendix S.10 These studies and other similar findings in the intervening years since Bobbitt provide proof of Justice Overton’s observation that retaining a duty to retreat from the home “clearly penalizes spouses, and particularly wives, in defending themselves from an aggressor spouse.” State v. Rippie,419 So.2d 1087, 1087 (Fla.1982) (Overton, J., dissenting).
2. A jury instruction on the duty to retreat may reinforce common myths about domestic violence.
There is a common myth that the victims of domestic violence are free to leave the battering relationship any time they wish to do so, and that the “`beatings’ could not have been too bad for if they had been, she certainly would have left.” State v. Kelly,97 N.J. 178, 478 A.2d 364, 377 (1984). See also Joan H. Krause, Of Merciful Justice and Justified Mercy: Commuting the Sentences of Battered Women who Kill, 46 Fla. L.Rev. 699, 712 (1994).
The reason I don’t believe it is because I don’t believe anything like this could happen to me. If I was you and someone had threatened me with a gun, there is no way that I could continue to stay with them.
Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence and Agency, in The Public Nature of Private Violence 59, 73 (Martha A. Fineman & Roxanne Mykituk eds.1994) (quoting a Maryland Judge quoted in Maryland’s Gender Bias in the Courts Report (Murphy 1993)).
A jury instruction placing a duty to retreat from the home on the defendant may serve to legitimize the common myth and allow prosecutors to capitalize upon it. The prosecutor capitalized on the jury instruction and the common myth in this case when she questioned the believability of Weiand’s claims and asked the jury why Weiand did not “go out the door?” and why she did not “get in the car?” before resorting to violence. See also Krause, supra at 712.
In Hickson we authorized the admission of battered spouse syndrome evidence to rebut the common myths concerning battered women and explained the very real dangers faced by women in these relationships. Hickson, 630 So.2d at 174; see Kelly, 478 A.2d at 377. As the expert evidence demonstrates, there are many reasons battered women do not feel free to leave a battering relationship. The woman might have been isolated from her family by the abuser, she may not be able to afford to go, or she may realize that leaving is more dangerous than staying. See Kampman, supra at 101; see generally Hickson, 630 So.2d at 174. To re-affirm Bobbitt with its duty to retreat from the home would undermine our reasons in Hickson for approving expert testimony on battered woman’s syndrome.
Developments in all three branches of government since Bobbitt reflect the public’s concern regarding the plight of victims of domestic violence. For example, recognizing that “violence against women in their own homes is epidemic in our society,” First Report, supra at 3, the executive branch has established a task force on domestic violence, whose purpose is the issuance of reports and recommendations which document “the extent of our awareness, and the responsiveness of our resources to battered women and their families.” First Report, supra at v.
Likewise, since our decision in Bobbitt, the judiciary has focused judicial resources on the plight of victims of spousal abuse. Eight domestic violence courts have been organized within the twenty judicial circuits of Florida. See Office of the State Courts Administrator, Survey of the Circuits (Sept.1997) (on file with the State Court Adm’r, Fla. Sup.Ct.). As of 1997, more than half of the twenty judicial circuits had domestic violence task forces. See Third Report, supra at 12. To further the goal of proper judicial response to incidents of domestic violence, this Court has been active in providing educational opportunities for judges throughout the state, and circuit and county court judges now have training available specifically addressing domestic violence and its related issues. See Office of the State Courts Administrator, The Florida Supreme Court’s Annual Report to the Florida Legislature on Activities Conducted Under the Court Education Trust Fund at attachment IV (Oct. 8, 1998) (on file with State Court Adm’r, Fla. Sup.Ct.).
The public policy of this State is clearly directed at reducing domestic violence. We have thus considered the views of jurists in the minority position, who have expressed a concern that eliminating a duty to retreat from the residence will increase violence because “[t]here are dramatically more opportunities for deadly violence in the domestic setting than in the intrusion setting.” Thomas, 673 N.E.2d at 1347 (Pfeifer, J., dissenting); see also Bobbitt, 415 So.2d at 726; Conner v. State,361 So.2d 774, 776 (Fla. 4th DCA 1978).
While there may be more opportunities for violence in the domestic setting, no empirical data has been presented, either through expert testimony or studies, demonstrating any correlation between eliminating a duty to retreat from the home and an increase in incidents of domestic violence. In contrast, a duty to retreat from the home adversely affects victims of domestic violence by placing them at greater risk of death or great bodily harm. In addition, failing to inform the jurors that the defendant had no duty to retreat from the residence when attacked by a co-occupant may actually reinforce commonly held myths concerning domestic violence victims.
The defendant cannot justify the use of force likely to cause death or great bodily harm unless [he][she] used every reasonable means within [his][her] power and consistent with [his][her] own safety to avoid the danger before resorting to that force.
Id. at 48; Hedges, 172 So.2d at 827. Thus, the availability of the nonretreat instruction does not “invite” violence.
If the defendant was attacked in [his/ her] own home, or on [his/her] own premises, by a co-occupant [or any other person lawfully on the premises] [he/ she] had a duty to retreat to the extent reasonably possible without increasing [his/her] own danger of death or great bodily harm. However, the defendant was not required to flee [his/her] home and had the lawful right to stand [his/ her] ground and meet force with force even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself/herself].
See id.; see also Rippie v. State, 404 So.2d 160, 162 (Fla. 2d DCA 1981), quashed419 So.2d 1087 (Fla.1982).
It is our increased knowledge of the complexities of domestic violence that provides the impetus for reconsidering our decision in Bobbitt. However, in deciding whether the privilege of nonretreat instruction is available we consider it inappropriate to distinguish between victims of domestic violence and other defendants who have been attacked by a co-occupant in the residence. This was the position espoused in Justice Overton’s dissent. See Bobbitt, 415 So.2d at 728.
As Justice Kogan stated in his concurring opinion in Perkins v. State,576 So.2d 1310, 1314 (Fla.1991), “[t]he right to fend off an unprovoked and deadly attack is nothing less than the right to life itself, which [article I, section 2] of our Constitution declares to be a basic right.” Thus, the privilege of nonretreat instruction should be equally available to all those lawfully residing in the premises, provided, of course, that the use of deadly force was necessary to prevent death or great bodily harm.16 Because this instruction will apply to both invitees and co-occupants alike, we recede from Hedges to the extent that Hedges does not require a middle-ground instruction for invitees.
Because we have jurisdiction to answer the certified question, we have jurisdiction to review other alleged errors raised in the appellate court. See Leisure Resorts, Inc. v. Frank J. Rooney, Inc.,654 So.2d 911, 912 (Fla.1995). Therefore, we also write to address the Second District’s analysis of the exclusion of three defense witnesses.
We first emphasize that expert testimony about domestic violence, as authorized by Hickson, does not replace the value of eyewitness testimony to corroborate the claim of prior acts of abuse. We approved the admission of battered spouse syndrome testimony in Hickson as an aid to the jury in understanding the characteristics of victims of domestic violence and to help dispel common myths and stereotypes associated with them. See 630 So.2d at 174. However, expert testimony on battered spouse syndrome, even when it contains details of alleged incidents of abuse that have been related by the defendant to the expert, does not replace the importance of eyewitness testimony to corroborate the defense.
As the Second District correctly acknowledged, the trial court improperly excluded three defense witnesses, all of whom would have provided eyewitness testimony to corroborate Weiand’s assertion of prior acts of abuse by her husband. See Weiand, 701 So.2d at 564-65. None of the other witnesses who testified at trial gave eyewitness testimony of Weiand’s abuse by her husband. Thus, the excluded witnesses would have provided the only direct testimony to support Weiand’s claims of prior abuse and to corroborate the basis for the experts’ opinions.
Nonetheless, the Second District found that the exclusion of the witnesses was harmless error in light of the testimony of the defendant herself, that of the two experts who explained the battered-spouse syndrome from which defendant suffered, and the history of abuse in the relationship. Id. at 564. We disagree.
Nobody saw any injuries to [Kathy] then. Nobody saw anything…. And how do we know that she’s not [a battered woman]? All we have to back her up is her own statements…. Nobody saw any injuries to her then. Nobody saw anything…. Co-workers didn’t see injuries to her. Her mother-in-law didn’t see injuries to her. Her father-in-law didn’t see the injuries to her…. Nobody sees any injuries to her. Nobody, nobody, ever.
Thus, we find that the Second District erred by concluding that the exclusion of the witnesses was harmless beyond a reasonable doubt. See Weiand, 701 So.2d at 565.
In conclusion, we hold that there is no duty to retreat from the residence before resorting to deadly force against a co-occupant or invitee if necessary to prevent death or great bodily harm, although there is a limited duty to retreat within the residence to the extent reasonably possible. Thus, we answer the certified question, as rephrased, in the negative, recede from Bobbitt, recede in part from Hedges, and adopt the middle-ground jury instruction proposed by Justice Overton in his dissent in Bobbitt.
This opinion and the instruction will be applicable in all future cases, and all cases that are pending on direct review, or not yet final. See State v. Gray,654 So.2d 552, 554 (Fla.1995). This opinion will not, however, apply retroactively to convictions that have become final. See State v. Glenn,558 So.2d 4, 6 (1990); see generally Witt v. State,387 So.2d 922, 928-29 (Fla. 1980). The decision of the Second District is quashed.
HARDING, C.J., ANSTEAD, J., and OVERTON and KOGAN, Senior Justices, concur.
WELLS, J., concurs in part and dissents in part with an opinion, in which SHAW, J., concurs.
I concur in much of the majority opinion because I certainly recognize the devastating toll of domestic violence upon women. I applaud legislative and executive initiatives addressing this very real problem and the judicial labor being expended to implement those initiatives. I am concerned, however, about the potential for the majority’s jury instruction to be read as sanctioning retaliatory violence in domestic disputes. Nevertheless, I would concur in adopting the instruction on an interim basis, subject to publication, request for comment, and consideration with a direct focus on the question of retaliatory violence.
I must, though, dissent as to jurisdiction in this case. The Florida Constitution confers jurisdiction in relevant part by providing that this Court “may review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance.” Art. V, § 3(b)(4), Fla. Const. (emphasis added). It is patent that the district court did not pass upon the question certified in this case. In Gee v. Seidman & Seidman, 653 So.2d 384 (Fla.1995), we discharged jurisdiction in a case in which the Third District did exactly what the Second District did here. See also Provident Management Corporation v. City of Treasure Island,718 So.2d 738 (Fla.1998), in which we declined to address issues that were “not first subjected to the crucible of the appellate process.” Id. at 740. Clearly, the majority’s reference to the generalized statement, “We have examined each [issue raised in the appeal] and conclude that none of the errors asserted require reversal,” does not satisfy this constitutional requirement. This is patent upon reading the next sentence of the district court’s opinion: “However, two of the issues raised do warrant discussion.” The certified question was not one of those two issues. The Bobbitt issue appears nowhere in the opinion of the district court and only appears in a denial of rehearing which sets forth no issues but merely sets forth the certified question. This is exactly what this Court rejected in Gee as not meeting constitutional muster. The Constitution gives us no leeway to take this question unless we ignore its plain language. We cannot be selective and assume jurisdiction just because a majority finds it important to answer a question or simply wants to answer a question.
In this case, the district court passed upon neither the legal efficacy of the trial court’s denial of the petitioner’s requested jury instruction nor whether the jury instruction denied by the trial court would have applied to the facts of this case. Moreover, the majority opinion in this Court omits the facts of what occurred during the shooting. These omissions render the majority opinion an advisory opinion, for which we have no jurisdictional basis, rather than a review of issues decided by the district court.
The extraordinary lengths to which the majority has stretched to reach down for this case is plainly seen from the fact that not only was this issue not passed upon by the district court, but this case has been dismissed below. We will never know whether this jury instruction would even have been considered by the court below applicable to this case.
1. The State does not disagree that the petitioner raised this issue on appeal and that the issue was resolved against petitioner in the district court. Of course, the State urges us to adhere to our holding in State v. Bobbitt, 415 So.2d 724 (Fla.1982).
2. We encourage the district courts, when certifying questions of great public importance, to provide this Court with the benefit of its analysis of the questions certified.
3. The amicus curiae criticizes the use of the term “battered woman’s syndrome,” which is often used interchangeably with the term “battered spouse syndrome,” arguing that the terms “do not fully capture all the material presented through expert testimony on domestic violence.” Brief of Amicus Curiae at 7. We have used the terms in this opinion because the experts, including Dr. Lenore Walker, used them when testifying in this trial. We express no view on the criticism raised by the amicus curiae.
4. Presently, however, a majority of jurisdictions do not impose a duty to retreat before a defendant may resort to deadly force when threatened with death or great bodily harm. See Wayne LaFave & Austin Scott, Jr., Criminal Law § 5.7(f) (2d ed.1986). There is no duty to retreat recognized when the defendant uses non-deadly force in self-defense. See id.; Morris v. State, 715 So.2d 1177, 1179 (Fla. 4th DCA 1998); Redondo v. State, 380 So.2d 1107, 1110 n. 1 (Fla. 3d DCA 1980), quashed in part on other grounds, 403 So.2d 954 (Fla. 1981); see also Fla. Std. Jury Instr. (Crim.), “Justifiable Use of Nondeadly Force,” § 3.04(e), at 50.
the proposition that a person’s dwelling house is a castle of defense for himself and his family, and an assault on it with intent to injure him or any lawful inmate of it may justify the use of force as protection, and even deadly force if there exist reasonable and factual grounds to believe that unless so used, a felony would be committed.
Falco v. State, 407 So.2d 203, 208 (Fla.1981).
6. Self defense. See Black’s Law Dictionary 1357 (6th ed.1990).
7. We note that in deciding Hedges v. State, 172 So.2d 824, 827 (Fla.1965), we cited for support the South Carolina Supreme Court’s decision in South Carolina v. Grantham, 224 S.C. 41, 77 S.E.2d 291, 292 (1953). Grantham held that the trial court erred in refusing to instruct on the privilege of nonretreat where the defendant claimed self-defense when attacked by his wife in the marital home.
8. At the time of our decision in Bobbitt, of those jurisdictions imposing a duty to retreat, only four states imposed a duty to retreat when attacked in the home by a co-occupant or invited guest. See Connecticut v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981); Oney v. Kentucky, 225 Ky. 590, 9 S.W.2d 723 (1928); New Hampshire v. Grierson, 9 6 N.H. 36, 69 A.2d 851 (1949); West Virginia v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909). Since then, one more state has joined their ranks. See Rhode Island v. Ordway, 619 A.2d 819 (R.I.1992). Massachusetts, New Jersey and North Dakota have statutes imposing a duty to retreat when attacked in the home by someone with a legal right to be on the premises. See Mass. Gen. Laws ch. 278, § 8A (1998); N.J. Stat. Ann. § 2C:3-4b(2)(b)(i) (West 1998); N.D. Cent. Code § 12.1-05-07(2)(b) (1997). However, the New Jersey Supreme Court has expressed its strong disagreement with the statutorily imposed duty to retreat from the home, and has recently urged the New Jersey legislature to consider amending the statute. See New Jersey v. Gartland, 149 N.J. 456, 694 A.2d 564, 569-71 (1997).
9. Of those jurisdictions imposing a duty to retreat before resorting to deadly force, eleven states have declined to find a duty to retreat from the residence when attacked by a co-occupant or invitee. See Baugh v. Alabama, 215 Ala. 619, 112 So. 157 (1927); Thomas v. Arkansas, 266 Ark. 162, 583 S.W.2d 32 (1979); Delaware v. Phillips, 187 A. 721 (Del.1936); Iowa v. Leeper, 199 Iowa 432, 200 N.W. 732 (1924); Maine v. Laverty, 495 A.2d 831 (Me.1985); Michigan v. Stallworth, 364 Mich. 528, 111 N.W.2d 742 (1961); New York v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914); North Carolina v. Absher, 220 N.C. 126, 16 S.E.2d 656 (1941); Ohio v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997); Grantham, 77 S.E.2d at 291; Washington v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). Similarly, the Model Penal Code, which recognizes a duty to retreat under most circumstances, does not impose a duty to retreat when necessary to defend against death or great bodily harm from a co-occupant of the dwelling. Model Penal Code § 3.04(2)(b)(ii)(A) commentary at 56 (1985).
10. In the United States a woman is physically abused by her husband every nine seconds. See Executive Office of the Governor, The Governor’s Task Force on Domestic and Sexual Violence, The Third Report at vii (hereinafter Third Report). According to one commentator, “even conservative estimates suggest that women are abused in twelve percent of marriages, and … up to fifty percent of women will be victims of abuse during their lives.” Joan H. Krause, Of Merciful Justice and Justified Mercy: Commuting the Sentences of Battered Women who Kill, 46 Fla. L.Rev. 699, 702 (1994).
11. This public policy at the state level is reflected at the federal level. In 1994, President Clinton signed the Violence Against Women Act, which Attorney General Janet Reno has characterized as a “turning point in our national response to the problems of domestic violence and sexual assault, a mile-stone in the effort to break the cycle of violence.” Executive Office of the Governor, The Governor’s Task Force on Domestic and Sexual Violence, The Third Report at 61 (March 31, 1997). The Violence Against Women Act includes legislation appropriating over $285 million over a three year period to fund training programs and to help alleviate problems associated with domestic violence. See id. at 62. Other federal legislation is also directed at protecting victims of domestic violence. For example, federal law prohibits a person from crossing state lines to threaten, harass or commit bodily injury in violation of a domestic violence protection order, see 18 U.S.C.A. § 2262 (West Supp.1998), and it is now a federal crime to commit violence against an intimate partner in the pursuit of the partner across state lines. See id. § 2261. In addition, pursuant to 18 U.S.C.A. § 922 (West Supp.1998), it is unlawful for any person under a restraining order to transport, possess, or receive in interstate commerce any firearms or ammunition.
12. Although stare decisis is fundamentally important in our system of justice, it is not “an ironclad and unwavering rule” so that we must bend to the “voice of the past, however outmoded or meaningless that voice may have become.” Haag v. State, 591 So.2d 614, 618 (Fla.1992). The doctrine of stare decisis must bend when there has been a significant change in circumstances since the adoption of the legal rule. See Perez v. State, 620 So.2d 1256, 1259-61 (Fla.1993) (Overton, J., concurring). The changes in the public policy of this state, and our awareness of the plight of victims of domestic violence provides additional justification for receding from Bobbitt.
13. “All fifty states have statutes making spousal abuse a crime.” State v. Hickson, 630 So.2d 172, 174 (Fla.1994) (citing Rick Brown, Note, Limitations on Expert Testimony on the Battered Woman Syndrome in Homicide Cases: The Return of the Ultimate Issue Rule, 32 Ariz. L.Rev. 665 (1990)).
14. See also, e.g., § 741.281, Fla. Stat. (1997); ch. 95-195, § 19, at 1781, Laws of Fla. (requiring a person convicted of committing a crime of domestic violence to attend a batterers’ intervention program); § 741.2902(1), (2), Fla. Stat. (1997); ch. 91-210, § 5, at 2043-44, Laws of Fla. (expressing legislative intent regarding the judiciary’s role to protect victims with respect to releasing defendants accused of domestic violence at the first appearance, as well as issuing domestic violence injunctions); § 415.604, Fla. Stat. (1997); ch. 84-353, § 4, at 1983-84, Laws of Fla. (requiring the Department of Children and Family Services to furnish a yearly report to the President of the Senate and the Speaker of the House on the status of domestic violence in the state); § 444.497, Fla. Stat. (1997); ch. 95-187, § 4, at 1731-32, Laws of Fla.; § 741.235, Fla. Stat. (1997).
15. We sua sponte adopt this as an interim Standard Jury Instruction and instruct the Committee on Standard Jury Instructions in Criminal Cases to provide us with any recommendations as to the wording of the instruction by July 1, 1999.
16. Most studies refer to victims of domestic violence as women because the overwhelming majority of the victims are women. However, because men can also be victims of domestic violence, our opinion applies to males and females alike. See Art. XI, § 5(c), Fla. Const.


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Jamesa J. Drake and Drake Law, LLC for appellant.
Renée M. Bunker, Assistant United States Attorney, Appellate Chief, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
Before Lynch, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.
The defendant, Derrick Favreau, pleaded guilty to a serious drug offense, violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), but he reserved his right to appeal the district court's denial of his motion to suppress the drug evidence as having resulted from a search unlawful under the Fourth Amendment. We affirm.
Police stopped Favreau's car for a highway offense. After police officers had completed the license check that is usual when a car is stopped for a driving offense, the drugs were found hidden in the car during a search prompted by a drug detection dog's indication of their presence. The issues on appeal are whether, after checking the license and related matters, the police had reasonable suspicion that a drug offense was being committed, so as to justify a further period of detention while the dog repeatedly circled the car, and whether the added time so consumed (of about three minutes) exceeded the permissible duration for the dog's reconnaissance. See Rodriguez v. United States, 135 S.Ct. 1609, 1612 (2015); United States v. Sokolow, 490 U.S. 1, 7 (1989) ("[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot, ' even if the officer lacks probable cause." (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968))).
We review these legal issues de novo. See United States v. Dickerson, 514 F.3d 60, 65-66 (1st Cir. 2008). The facts about events preceding the encounter are not in dispute at this point, and in any event the district court's findings are amply supported to survive the scrutiny for clear error appropriate in reviewing the trial court's factual findings grounding the denial of a suppression motion. See United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir. 2014) ("Under this clear-error review, we grant significant deference to the district court, overturning its findings only if, after a full review of the record, we possess 'a definite and firm conviction' that a mistake was made." (quoting United States v. McGregor, 650 F.3d 813, 820 (1st Cir. 2011))).
State Trooper Pappas was aware of Favreau's reputation as a drug dealer, and about a year before the confrontation in question he had received an informant's tip that Favreau possessed a vehicle that contained a "trap, " a secret compartment in which drugs could be hidden and transported. More pressing assignments kept Pappas from following up on the tip, but when his schedule allowed it, he decided to conduct surveillance on Favreau, with the help of Trooper Gagnon, as well as Trooper Rooney (who worked with a drug detection dog). Rooney drove a marked cruiser, but both Pappas and his unmarked car were well known in the vicinity where the relevant events took place.
On the day in question Pappas and Gagnon drove to where Favreau's house could be seen. They saw him get in the car the tipster had mentioned, pull away, signal a turn into a cross street, nevertheless drive straight through the intersection and, at a point where Pappas and Gagnon's police car was visible, reverse direction and then turn into the cross street in the direction opposite to his original directional signal. Rooney testified that reversing direction as Favreau had done was known as a tactic by suspects trying to elude police following them. Soon after, the troopers located the car parked in the lot of a store, which Favreau entered and left multiple times. Before driving out of the lot he looked intently up and down each of the streets at the nearby intersection.
After the suspect had left the store lot and made another turn, this time without signaling, Rooney (following him) put on the blue lights and siren. In violation of Maine law, Favreau did not stop promptly, but turned down another street before pulling over. In the ensuing conversation about Favreau's driving violations, the status of his operating license and any current court involvement, Favreau accused the officers of mounting the very surveillance they had engaged in, thus indicating that his driving maneuvers had been made with the police consciously in mind. He was manifestly nervous and had difficulty following directions for a pat-down, which disclosed a wad of cash that Favreau said was $400. When asked where he was going his answer was that he was going home, a patent lie in light of his observed itinerary.
At this point the facts warranted reasonable suspicion that Favreau's behavior before and after the stop showed a degree of concern so far beyond anything normal as to suggest that he was in fear of revealing evidence of wrongdoing. The license check having been completed, Rooney circled the car with the dog, and although the animal was initially distracted by unrelated activity nearby, the several circuits of the car took less than three minutes before the dog alerted and thus raised suspicion to the level of probable cause to justify the search that led to discovery of the trap and a commercial quantity of cocaine within it.
On our de novo review, we agree with the district court's mixed fact-law conclusion entirely. Although the officers' initial and primary interest in observing Favreau was his possible activity in the illegal drug trade, not the bizarre driving for which they stopped him, or his unlawful failure to respond readily to the lights and siren, their ulterior motive is of no consequence under the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 813 (1996) (Supreme Court precedent "foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved"). Nor is there any question that Favreau's driving justified the stop for the license check and ensuing interview. The observations and conversation provided evidence of ostensibly erratic driving and behavior that would reasonably justify a stop and enquiry, but in this case pointed to something more than difficulty following the normal rules of the road: the apparent intent to evade known police cars, the unnatural scrutiny of roadways before driving from the store, the driver's accusation that the police had him under surveillance, and abnormal nervousness together with clear dishonesty about his immediate destination. The officers could sensibly believe that he was afraid of something that concerned the police, and the tip about the trap gave coherence to his behavior and his fear. The officers could, as they did, reasonably suspect transportation of drugs or some other contraband concealed in the car. Nor, finally, is there any basis to claim that the time consumed in the initial interview and records check up to the point of ordering the dog sniff was unusual or unreasonable.

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JOHN W. PRIESTLEY, JR. vs. HASTINGS & SONS PUBLISHING COMPANY OF LYNN.
Present: SPIEGEL, REARDON, QUIRICO, & BRAUCHER, JJ.
TORT. Writ in the Superior Court dated October 24, 1967.
Edward J. Barshak (Stanley R. Berkowitz with him) for the defendant.
Thomas J. Carens for the plaintiff.
REARDON, J. This is an action of tort for libel stemming from the publication of three articles by the defendant in its newspaper, the Daily Evening Item (Item). The jury returned a verdict for the plaintiff of $25,000. The defendant has taken exceptions alleging two errors. Both hinge on whether the "actual malice" standard articulated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, is applicable to the case. The trial judge ruled that this standard was not applicable and subsequently denied the defendant's motion for a directed verdict. However, the recent Supreme Court decision in Rosenbloom v. Metromedia, Inc. 403 U.S. 29, which came down after the trial of this case, makes the contrary conclusion mandatory as a matter of Federal constitutional law. The facts of the case before us bring it within the formulation contained in the Rosenbloom case of circumstances in which the "actual malice" standard is required, and under that standard the defendant's motion for a directed verdict should have been granted.
We summarize the evidence as follows. The plaintiff is an architect by profession. He was commissioned by the town of Saugus in 1965 to build a new junior high school. He testified at the trial that he acted as the official for the town with reference to this building during the period of its construction. He first worked with school officials and State agencies to evolve the final design of the school and subsequently sent out plans for the purpose of getting bids. The bids were received in behalf of the town in the presence of the plaintiff, who acted for the town in seeing that the building complied with plans and specifications. Construction of the school was completed in September, 1966, and it has been in use during the school year ever since.
On October 16, 1967, there was another selectmen's meeting at which Boucher reiterated his dissatisfaction with the school. Buell was again in attendance and wrote an article, which appeared on October 17, reporting Boucher's statements to the selectmen. Among the statements attributed to Boucher were that $200,000 in funds might have been misused and that the F. B. I. wanted to enter the case if it had jurisdiction. Buell telephoned the plaintiff the next day for his comment on Boucher's charges. The plaintiff emphatically denied them and himself charged that Boucher's investigation was "politically-motivated." The plaintiff's rebuttal duly appeared on the same day, October 18, in an article by Buell in the Item which also contained further developments in the Boucher investigation. The final allegedly libellous article appeared on October 19, after Buell had spoken to Boucher. Boucher's remarks, as recounted by Buell in this article, were more narrowly focussed on the plaintiff's alleged "illegalities, incompetence and bad faith." The article contained, inter alia, statements attributed to Boucher that he intended to seek to have the plaintiff's registration revoked by the State Board of Registration of Architects; that the district attorney's office was not investigating, only because it did not have the staff necessary; and that the manager's office had filed a complaint against the plaintiff with the American Institute of Architects' Ethics Committee.
two had had. Buell testified that he did not check the various detailed charges with respect to inadequacies in the finished school and irregularities in its construction because the school had been a subject of controversy for some months and he had previously exhausted himself checking such details. He saw no need to go through it again. He did, however, take steps to verify certain other charges reported. These steps will be dealt with in more detail below.
engaged in negotiations with city involving construction of high density housing and a new school). Lower Federal courts and this court likewise increasingly have applied the actual malice standard to publications about participants in events of public interest, regardless of their formal connection with government. See, e.g., Pauling v. Globe-Democrat Publishing Co. 362 F. 2d 188 (8th Cir.) (prominent scientist involved in promoting nuclear test ban treaty); Cepeda v. Cowles Magazines & Bdcst. Inc. 392 F. 2d 417 (9th Cir.), cert. den. 393 U.S. 840 (National League baseball player); Time, Inc. v. McLaney, 406 F. 2d 565 (5th Cir.), cert. den. sub nom. McLaney v. Time, Inc. 395 U.S. 922 (gambler involved in political campaign in another country); Tripoli v. Boston Herald-Traveler Corp. 359 Mass. 150 (janitor suspected of involvement in the "Great Plymouth Mail Robbery").
On the facts before it -- "a libel action . . . by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern" -- the court held that the actual malice standard was applicable. P. 52. That holding clearly requires that the same standard be applied here. The publication here, as there, related to the plaintiff's involvement in an event of public or general concern. In addition, the defendant newspaper here, like the radio station there, performed much the same function of conveying news to the public under time constraints which did not permit the investigative work to which those connected with a magazine or book could more reasonably be held.
2. The evidence against the defendant in the instant case showed at most negligence and not the "knowledge that . . . [the publication] was false or . . . reckless disregard of whether it was false or not" (New York Times Co. v. Sullivan, supra, at 280), which under the Rosenbloom case is constitutionally required. It was error, therefore, not to grant the defendant's motion for a directed verdict.
The first allegedly libellous article, that of October 17, was a report of a meeting of the board of selectmen. Here, as in the Greenbelt case involving reports of sessions of the city council, there was no evidence that the report was anything but "accurate and full." Given the time limit within which he was working (compare Curtis Publishing Co. v. Butts, 388 U.S. 130, 157), it was not unreasonable that Buell did not call the plaintiff to comment on Boucher's charges directed at him. Other statements, such as that "$200,000 in funds may have been `misused,'" were simply not susceptible of verification in the span of a few hours.
In the October 17 article, as in the two succeeding ones, remarks of Boucher relative to the involvement of the F. B. I. in the case were reported. Buell testified that he called the F. B. I. to see what connection they had with the case, although it is not clear from the record when he did so. No negligence, much less "actual malice," is shown by the fact that having failed to elicit any information from the F. B. I. Buell proceeded to report Boucher's remarks on the subject. Nor was there any evidence presented at the trial that the remarks as reported were false; everything about the F. B. I. appearing in the three articles is consistent with the plaintiff's testimony that he had no communication with the F. B. I.
The article of October 18 consisted chiefly of the plaintiff's reply to Boucher's charges, based on Buell's telephone call to the plaintiff on that day. The fact that he made such a call is evidence of Buell's good faith and his desire to insure that both sides of the controversy be heard. Buell did not take sides on the issue but rather reported the plaintiff's remarks with the same impartiality with which he had reported Boucher's. That article also contained the information, which Buell had obtained on his own, that the district attorney's office was not investigating, as well as the information that Boucher had turned over certain facts to the F. B. I.
evidence that the statement that Boucher accused the plaintiff of "illegalities, incompetence and bad faith" was an exact quotation, and it was reported as such. It was by no means incumbent upon Buell as a reporter to inquire of Boucher what he meant by those terms. Other statements reported in which Boucher expressed his opinion of the plaintiff's ability and responsibility could not have been objectively verified; a few general statements about the condition of the school [Note 2] also probably could not have been verified in the brief time Buell had to publish the story while it was still newsworthy. Buell could have verified Boucher's statement that he had filed a complaint with the American Institute of Architects' Ethics Committee, but his failure to do so was at most negligent. In addition, as with Boucher's reported remarks about the F. B. I., there was no evidence presented at the trial that this statement was not true.
In short, the three articles together are an accurate account of a local controversy of legitimate public concern. The views of both sides were fully and accurately stated and the defendant newspaper in no way vouched for either position as correct. Most of the claims made which could feasibly have been verified by the reporter were verified. The imputations made by both Boucher and the plaintiff about the competence, conduct and good faith of the other could only be fairly and honestly reported, and this was done. There was no evidence at the trial, other than the plaintiff's own testimony, that anything contained in any of the articles was false. Under the applicable law this evidence did not warrant a verdict for the plaintiff.
[Note 1] Although the plaintiff testified that many of the statements in the October 4 article were untrue, he does not base any part of his action upon them. He complains only of the articles of October 17, 18 and 19, 1967.
[Note 2] For instance, Buell reported that Boucher said that the town was still trying to get the school in a condition acceptable to the State safety engineer, and that it would cost the town over $100,000 to correct all the defects due to poor construction, deletions, and poor judgment.

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Terrance Swann (Swann) was convicted of two counts of murder See footnote and one count of robbery, See footnote the latter as a Class C felony, in Marion Superior Court. He was sentenced to serve consecutive sixty-five year terms for each murder conviction and a concurrent term of eight years for the robbery conviction, for an aggregate sentence of 130 years. He appeals and argues that the trial court abused its discretion when it excluded evidence concerning a false confession he gave to police in a prior murder investigation. Finding that the evidence was properly excluded, we affirm.
At approximately 5:00 p.m. on November 3, 1999, Officer Brent Miller (Officer Miller) of the Indianapolis Police Department was dispatched to 2427 North Oxford Street on the eastside of Indianapolis. When he arrived at that residence, Officer Miller noted that there were signs of forced entry around the frame of the front door. As he entered the residence, Officer Miller observed that a female was lying face down on the floor next to the couch in the living room wearing a T-shirt, but no pants. The female, later identified as Crystal Davenport (Davenport), had a fatal gunshot wound in the center of her forehead. Officer Miller also discovered the body of Michael Haddix, Jr. (Haddix) in the back bedroom of the residence. Haddix had gunshot wounds to his right shoulder and arm, and a fatal wound to the back of his head. An autopsy performed on the morning of November 4, 1999, revealed that Davenport and Haddix died twenty-four to forty-eight hours before the autopsy.
In December 1999, Detective Andy Starks (Detective Starks) was investigating the murder of Anthony Johnson (Johnson). On December 10, 1999, Detective Starks received an anonymous telephone call from an individual concerning the Johnson murder investigation. The caller, Swann, asked Starks to meet him in the parking lot of the Old Country Buffet restaurant on 38 th Street. Detective Starks met with Swann, who was a friend of Johnsons, and Swann gave Detective Starks some information relevant to the investigation.
On January 5, 2000, Detective Starks spoke with Swann again about the Johnson murder. Swann was incarcerated at that time on a matter unrelated to this case. During their conversation, Swann told Detective Starks that he had been involved in an eastside robbery and murder in which a male and a female had been killed. Tr. pp. 73-74. Swann also told Detective Starks specific details about the murders, including the fact that the male and the female had been killed in separate rooms. Tr. p. 75. Detective Starks relayed that information to Detective Tom Tudor (Detective Tudor), the officer investigating the double murder of Davenport and Haddix.
On February 8, 2000, Starks asked Swann questions about the double murder that had been prepared by Detective Tudor. In response to the questions, Swann stated that the male victim was shot in the head and chest, and the female victim was shot in the head, but maybe also the chest area. Ex. Vol., Defendants Ex. B. Swann also stated that the female was shot in the living room, and the male was shot in the bedroom. Id.
On March 27, 2000, Detective Tudor placed Swann under arrest and took his statement after Swann waived his Miranda rights. Swann stated that Johnson and Corey Spurlock (Spurlock) told him that there was money and marijuana at Haddixs residence. Armed with guns and wearing rubber gloves, they then went to Haddixs residence intending to steal the money and marijuana. They were also accompanied by a woman named Tasha. When they arrived, Tasha knocked on the door. When Davenport opened the door, Swann grabbed her, while Spurlock and Johnson ran to the back of the house. Davenport struggled with Swann and kicked him. During the struggle, Swann heard several gunshots fired in the back of the house. Swann stated that he panicked, grabbed his gun, and shot Davenport as he pushed her away from him. He told Detective Tudor that he was one or two feet away from Davenport when he shot her and that he shot her in the head. Swann stated that he shot Davenport in the living room and Davenport was wearing a T-shirt, but no pants. He also stated that Haddix was wearing boxer shorts. Swann, Johnson, and Spurlock also took marijuana and money from the house. Ex. Vol., States Ex. 10.
On March 28, 2000, Swann was charged with two counts of murder, two counts of felony murder, and two counts of robbery. His first trial resulted in a hung jury except for the count of felony murder of Davenport, which resulted in a mistrial. Swann was tried for a second time on August 12, 2002. Prior to the second trial, one count of robbery was dismissed. Therefore, the remaining counts tried during the second trial were two counts of murder, one count of felony murder of Haddix, and one count of robbery. At trial, Swann presented an alibi defense and argued that his confession was false.
Both Reverend Oscar Crear and Reverend William Gary testified that Swann was in Elkhart, Indiana, attending a revival service from November 1 to November 3, 1999. Tr. p. 206; Ex. Vol., Defendants Ex. E1, p. 8. Reverend Crear testified that he and Swann arrived late for the November 1 evening services. Ex. Vol., Defendants Ex. E1, p. 10. Both Reverends Gary and Crear testified that Swann did not attend the November 2 services. Tr. p. 207, Ex. Vol., Defendants Ex. E1, p. 13. However, Reverend Crear stated that he and Swann went to lunch with Reverend Gary on November 2. Ex. Vol., Defendants Ex. E1, p. 12. Swann and both Reverends Crear and Gary testified that Swann attended the November 3 evening service. Tr. pp. 208, 232; Ex. Vol., Defendants Ex. E1, p. 15. Reverend Gary testified that they all had lunch on that day as well, but in a prior statement, Gary indicated that Swann was not at lunch that day. Tr. pp. 209, 211. Reverend Crear testified that Swann was not at lunch on November 3. Ex. Vol., Defendants Ex. E1, p. 15. Both Reverend Crear and Swann stated that they returned to Indianapolis in the early morning hours of November 4, 1999. Tr. pp. 232-33; Ex. Vol., Defendants Ex. E1, p. 16.
Swann testified that he gave a false confession because he was given food and cigarettes when he was brought over from the Marion County Jail where he was incarcerated. Tr. p. 234. He stated that he heard other inmates discussing the double murder on the eastside and also got information about the double murder from Johnson. Tr. p. 238. Swann testified that he did not kill or assist Johnson and Spurlock in killing Davenport and Haddix.
Swann also attempted to enter into evidence the fact that he had given a false confession in a prior murder investigation and that he could not have committed that murder because he was incarcerated at the time. He also attempted to enter into evidence a Marion County JUSTIS record in support of that proposed testimony. Tr. pp. 189-90. The trial court ruled that any evidence that Swann had previously given a false confession in another murder investigation was irrelevant. Tr. p. 193. Therefore, Swann made an offer to prove that Detective Starks would testify that Swann falsely confessed to the murder of Kareem Abdullah and gave details about that murder, which were consistent with the circumstances surrounding it. Tr. pp. 253-55. The State maintained that Detective Starks would only testify that Swann told him that he had information about the Abdullah murder, but that Detective Starks could not recall whether Swann stated that he was actually involved in the Abdullah murder. Tr. p. 256.
The jury found Swann guilty on all four counts. The trial court entered a judgment of conviction on the counts of murder of Davenport, felony murder of Haddix, and robbery. He was sentenced to serve consecutive terms of sixty-five years for each murder conviction and a concurrent term of eight years for the robbery conviction, for an aggregate sentence of 130 years. Swann appeals. Additional facts will be provided as necessary.
Swann argues that the trial court abused its discretion when it excluded his proffered evidence concerning his false confession to a prior murder, and in doing so, the court denied Swann his right to fully present his defense. The decision to admit or exclude evidence is a matter within the sound discretion of the trial court. Pickens v. State, 764 N.E.2d 295, 297 (Ind. Ct. App. 2002), trans. denied. An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. We afford the decision to exclude evidence great deference on appeal, and reverse only when a manifest abuse of discretion denies the defendant a fair trial. Price v. State, 765 N.E.2d 1245, 1248 (Ind. 2002).
The trial court excluded the evidence of Swanns prior false confession on the grounds that it was irrelevant. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ind. Evidence Rule 401. In addressing Swanns claim that the evidence is relevant and admissible, we must determine whether the evidence tends to prove or disprove a material fact in the case or sheds any light on the guilt or innocence of the accused. Brown v. State, 747 N.E.2d 66, 68 (Ind. Ct. App. 2001) (citing Carnahan v. State, 681 N.E.2d 1164, 1166 (Ind. Ct. App. 1997)).
In this case, the only direct evidence that Swann participated in the double murder was his confession. In his defense, Swann argued that he was in Elkhart at the time Davenport and Haddix were murdered, and that he lied to the police when he confessed. Swann testified that he confessed to the murder because [Detective Starks] was giving me food and cigarettes and I dont get that at the jail and I didnt think he would really at the time, at first, I didnt think he would take me serious, but it turned out he did. Tr. p. 234.
Swann argues that the evidence the court excluded showed Swann falsely confessed to another murder and he provided details matching the circumstances of that murder. The excluded evidence was relevant on the issue of whether Swanns inculpatory statements in this case were credible. Br. of Appellant at 17.
However, [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Ind. Evid. R. 404(b); see also Heavrin v. State, 675 N.E.2d 1075, 1083 (Ind. 1996) ([A] trial court abuses its discretion when it admits evidence of extrinsic acts that are relevant to no issue other than character and to proof of behavior in conformity with that character.). [T]he rule acts as an appropriate restraint on admissibility of evidence about events or acts that are by definition largely extraneous to those for which a defendant is on trial. Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003). Pursuant to Indiana Rule of Evidence 404(b), Swanns attempt to introduce evidence of his prior false confession improperly sought to use proof of that prior extrinsic act to bolster his statement that he lied when giving his confession in this case. Therefore, under the rationale of Rule 404(b), the trial courts exclusion of Swanns prior false confession was not error.
In addition, to warrant reversal, any error in the exclusion of evidence must be inconsistent with substantial justice. Ind. Trial R. 61. A reviewing court must disregard any error which does not affect the substantial rights of the parties. Benson v. State, 762 N.E.2d 748, 752 (Ind. 2002) (citing T.R. 61). Moreover, the error is harmless if the evidence of guilt was overwhelming and the defendant was allowed to present his defense even if not as completely as he desired. Miles v. State, 777 N.E.2d 767, 772 (Ind. Ct. App. 2002) (citing Whited v. State, 645 N.E.2d 1138, 1140 (Ind. Ct. App. 1995)).
First, we note that when Swann made his offer to prove with regard to the prior false confession, defense counsel indicated that Detective Starks would have testified that Swann had told police that he shot Kareem Abdullah as Adbullah was climbing out of a window and a 40 caliber Glock and an AK-47 were used in the shooting. Tr. p. 254. Defense counsel also stated that Detective Starks would testify that these details were consistent with the actual circumstances surrounding the Abdullah murder. Id. However, the State informed the court that Detective Starks would have testified only that Swann knew certain details surrounding the Abdullah murder, but that Starks could not recall Swann ever stating that he was actually involved in the murder. Tr. p. 256. It is not clear from the record why Detective Starks was not called to testify regarding the prior false confession during the offer to prove, especially given the disputed nature of his proposed testimony and the fact that he was a witness in this case.
When he confessed in the present case, See footnote Swann gave specific details about the double murder at issue, including the following facts: 1) Davenport was shot in the living room of the house and Haddix was shot in the back bedroom; 2) Haddix was shot multiple times and he was wearing boxer shorts; 3) Davenport was wearing a T-shirt and no pants and she was shot near the front door by the couch; and, 4) Davenport was shot in the head at close range. These details were confirmed by the evidence discovered at the crime scene.
Importantly, Swann was allowed to testify that he lied when he gave his confession because the police officers were giving him food and cigarettes. He also was able to fully present his alibi defense. However, Swanns knowledge of the specific details of the murders of Davenport and Haddix constituted overwhelming evidence of his guilt.
KIRSCH, J., and MATTINGLY-MAY, J., concur.
Footnote: Ind. Code § 35-42-1-1 (1998 & Supp. 2002).
Footnote: Ind. Code § 35-42-5-1 (1998).
Footnote: We note that Swann continued to maintain his involvement in the murders of Davenport and Haddix even after he was placed under arrest.


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While principles of administrative law continue to evolve – perhaps more in this last decade than in previous years – much of the developing law of professional regulation involves basic principles being used to flesh-out new, or at least previous-unexplored, situations.
The civil nature of professional regulatory processes: Similarities between criminal and professional regulatory proceedings seem to result in perennial assertions by registrants about the allegedly criminal or quasi-criminal nature of disciplinary hearings. But an Ontario court, following a long-line of cases characterizing disciplinary hearings as civil in nature (as summarized in Mussani v. College of Physicians and Surgeons of Ontario (2003), 226 D.L.R. (4th) 511 (Ont.Div.Ct.), affirmed (2004), 74 O.R. (3d) 1 (Ont.C.A.)), again affirmed the purely civil nature of professional regulatory proceedings in Hanif v. Her Majesty the Queen et al., 2014 ONSC 6613, where the court rejected a defence premised on professional discipline for patient sexual abuse being a federal matter given its criminal nature.
Limits of “reasonableness” on ethical and practice rules: Implied limits on the powers of professional regulatory bodies to superintend their professions was illustrated by the B.C. Supreme Court’s decision that a college unreasonably exercised its by-law making powers in Sobeys West Inc. v. College of Pharmacists of British Columbia, 2014 BCSC 1414 (under appeal). The court found that restrictions on registrants were unreasonably over-broad by preventing registrants from participating in incentive programs – restrictions that the court said infringed on the public’s interest in obtaining drugs at the lowest prices. Subject to the outcome of the pending appeal, this case may have far-ranging implications about how courts may scrutinize the purpose and effect of bylaws, including bylaws creating ethical and practice standards.
The unique position of inquiry (screening) committees: While discipline hearings represent the culmination of professional discipline processes, investigation and screening functions occupy a special position which courts do not often consider. In 2014, however, a Nova Scotia court confirmed that procedural fairness requirements are less at the screening stage than at the disciplinary stage, and that inquiry committees are entitled to deference when they decide to send a matter to a hearing, in Levesque v. Nova Scotia College of Optometrists, 2014 NSSC 22. Furthermore, a court may consider as premature any review of an inquiry committee decision before the conclusion of the entire matter, e.g., after a discipline hearing, as noted by the Alberta Court of Appeal in MK Engineering Inc. v The Association of Professional Engineers and Geoscientists of Alberta Appeal Board, 2014 ABCA 58.
Deference owed by the Health Professions Review Board: In British Columbia, decisions by health colleges disposing of complaints other than by citation face review by the HPRB. The BC Supreme Court has clarified, however, that the HPRB owes deference to inquiry committees. First, the HPRB must give deference to decisions by an Inquiry Committee about what constitutes an adequate investigation for any given complaint, as illustrated in Moore v. College of Physicians and Surgeons of British Columbia, 2014 BCCA 466, affirming 2013 BCSC 2081 ( involving an investigation and a summary dismissal by a registrar). Secondly, the HPRB must give deference to any Inquiry Committee interpretation of its “home” statute, i.e., the Health Professions Act, even though this means that different colleges may interpret the same provisions differently. This is illustrated in College of Dental Surgeons of British Columbia v. Health Professions Review Board, 2014 BCSC 1841 (appeal filed by the HPRB on October 27, 2014). Inquiry committees must receive deference from the HPRB, even though the HPRB must receive deference from the court concerning its own interpretations of the HPA, as established in JC v. Health Professions Review Board, 2013 BCSC 372.
Search and seizure: Where a college has obtained evidence of unprofessional conduct, e.g., a copy of a professional’s electronic files from his home, but that evidence comes from the police having carrying out an unreasonable search and seizure, a court may decline to remove it from the College’s hands by ordering its destruction, so that the college may use it in a civil (disciplinary) proceeding, where it might be admissible despite being inadmissible in any criminal proceeding. The discipline committee, rather than the court, must decide if the college may, at a discipline hearing, rely on such evidence – evidence procured through an unreasonable search and seizure, but not one in which the college participated: Kelly v. Ontario, 2014 ONSC 3824.
On December 18, 2014 Trinity Western University commenced proceedings seeking a judicial review of the Law Society’s decision not to approve its proposed law school. TWU is a private Christian university that maintains a “Community Covenant” that requires students to abstain from sexual intimacy outside of marriage between one man and one woman. Following a special general meeting where members of the Law Society resolved to direct the Benchers to not approve TWU’s law school, the Law Society held a referendum in September 2014 where more than two-thirds of voting members voted again, but in a binding fashion, against approving TWU’s law school.
The College of Pharmacists is appealing the decision in Sobeys West, concerning the reasonableness of rules that prevented pharmacists from participating in incentive programs.

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From August 21 to September 13, 2013, the U.S. Food and Drug Administration (FDA) inspected your facility located at 55 Middletown Ave. North Haven, CT 06473. During the inspection, you informed our investigator that your firm has entered into agreements with other firms to manufacture dietary supplement products under your firm’s private labels. Our investigators identified significant violations of the Current Good Manufacturing Practice (CGMP) regulations for dietary supplements, Title 21 Code of Federal Regulations, Part 111 (21 CFR Part 111).
These violations cause the dietary supplements manufactured at your facility to be adulterated within the meaning of Section 402(g)(1) of the Federal Food, Drug, and Cosmetic Act (the Act) [21 U.S.C. §342(g)(1)] in that the dietary supplements have been prepared, packed, or held under conditions that do not meet CGMP regulations for dietary supplements. Our investigators’ observations were noted on form FDA-483, Inspectional Observations, which was issued to you on September 13, 2013. We also received your correspondence, dated September 26, 2013. The deviations below reflect our response to the observations in the FDA 483, as well as your firm’s correspondence.
Additionally, we reviewed your website at the internet address www.gepharma.com in July 2014, and we have determined that you take orders there for your Performa Test dietary supplement product, which is promoted for conditions that cause it to be a drug within the meaning of section 201(g)(1)(B) of the Act [21 U.S.C. § 321(g)(1)(B)]. The therapeutic claims on your website establish that the product is a drug because it is intended for use in the cure, mitigation, treatment, or prevention of disease. As explained further below, introducing or delivering this product for introduction into interstate commerce for such uses violates the Act.
FDA has also determined that your Fire Burn, Fire Storm, Creatine, Amino Fire, Nitric Fire, Jet Fire, Oxy Fire, HGH, Cissus, Hydro shield, Performa-Test, Raspberry Ketones, Fire Drol, BCAA 1500, Crea Fuse, and Liquid Fire products are misbranded dietary supplements under Section 403 of the Act [21 U.S.C. 343], in that the labels fail to include required information. You may find the Act and the FDA’s regulations through links on FDA’s home page at www.fda.gov.
Your Performa Test product is not generally recognized as safe and effective for the above referenced uses and therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.
Furthermore, your Performa Test product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, this drug is misbranded within the meaning of section 502(f)(1) of the Act [21 U.S.C. § 352(f)(1)], in that the labeling fails to bear adequate directions for use. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].
1. Your firm failed to identify personnel to be responsible for your quality control operations, as required by 21 CFR 111.12(b). Furthermore, you failed to establish and follow written procedures for the responsibilities of the quality control operations, including written procedures for conducting a material review and making a disposition decision, as required by 21 CFR 111.103 and 21 CFR 111.140(b)(1). Your firm’s quality control personnel must approve for release, or reject, any packaged and labeled dietary supplement (including a repackaged or relabeled dietary supplement) for distribution, as required by 21 CFR 111.127(h).
During the inspection, you informed our investigator that you were not sure if there were established specifications and explained that the products were originally formulated by your former business partner, and current contract manufacturer, (b)(4) and that he must have the product specifications. You also informed our investigator that you do not have written procedures for the responsibilities of quality control operations, including conducting a material review and making a disposition decision. You did not provide written procedures for the approval for release of your dietary supplements by the quality control personnel. In addition you informed our investigator that you inform (b)(4) what product you want and the quantity of product that is needed. The products are then hand delivered to GE Pharma by an employee of (b)(4). You stated in the affidavit dated September 13, 2013, that all dietary supplement products distributed under the GE Pharma brand are, or were, manufactured by (b)(4).
Although your firm may contract out certain dietary supplement manufacturing operations, it cannot by the same token, contract out its ultimate responsibility to ensure that the dietary supplement it places into commerce (or causes to be placed into commerce) is not adulterated for failure to comply with dietary supplement CGMP requirements (see United States v. Dotterweich, 320 U.S. 277, 284 (1983) (explaining that an offense can be committed under the Act by anyone who has a “responsible share in the furtherance of the transaction which the statute outlaws”); United States v. Park, 421 U.S. 658, 672 (1975) (holding that criminal liability under the Act does not turn on awareness of wrongdoing, and that “agents vested with the responsibility, and power commensurate with that responsibility, to devise whatever measures are necessary to ensure compliance with the Act” can be held accountable for violations of the Act). In particular, the Act prohibits a person from introducing or delivering for introduction, or causing the delivery or introduction, into interstate commerce a dietary supplement that is adulterated under section 402(g) for failure to comply with dietary supplement CGMP requirements (see 21 U.S.C. §§ 342(g), 331(a)). Thus, a firm that contracts with other firms to conduct certain dietary supplement manufacturing, packaging, and labeling operations for it is responsible for ensuring that the dietary supplement is not adulterated for failure to comply with dietary supplement CGMP requirements, regardless of who actually performs the dietary supplement CGMP operations.
You must implement a system of production and process controls to ensure the quality of the dietary supplement and that the dietary supplement is packaged and labeled as specified in the master manufacturing record, as required by 21 CFR 111.55. You must establish and follow written procedures for the responsibilities of the quality control operations, as required by 21 CFR 111.103. The quality control personnel must ensure that your manufacturing, packaging, labeling, and holding operations ensure the quality of the dietary supplement and that the dietary supplement is packaged and labeled as specified in the master manufacturing record, as required by 21 CFR 111.105. Furthermore, you must have documentation of the quality control personnel review and approval for release of any packaged and labeled dietary supplement, as required by 21 CFR 111.127(h) and 111.140(b)(2). However, you informed our investigator that you do not have written procedures for the responsibilities of quality control operations.
We have received your response letter, dated September 26, 2013, and have determined your response to be inadequate. You state “GE Pharma is not a dietary supplement manufacturer right now. We dont make our own line, or the private label lines that we sell upon customer request. It’s done for us by our manufacturer(s). We are a distributor of our own line, and Private label lines which are manufactured by other compan(ies) as of right now”. Your response does not address the deficiencies listed above.
2. Your firm also purchases soft gel capsules from a supplier in China for packaging and labeling as a dietary supplement (“Liquid Fire”) that your firm distributes under your own label. However, your firm failed to establish specifications to provide sufficient assurance that the product you receive is adequately identified and is consistent with your purchase order, in accordance with 21 CFR 111.70(f).
Specifically, you stated that you do not have any records related to the purchase of the soft gel capsules from your supplier in China. You stated that you do not have written procedures or records of the bottling and labeling of your “Liquid Fire” product (b)(4). However, you sell this “Liquid Fire” product to online distributors and retailers.
We have reviewed your response dated September 26, 2013, and we have determined that your response is inadequate. You state “we are a distributor of our own line, and Private label lines which are manufactured by other compan(ies) as of right now.” Your response did not address the deficiencies listed above.
3. Your firm failed to establish and follow written procedures for packaging and labeling operations, in accordance with 21 CFR 111.403. You firm also failed to make and keep records of these written procedures, in accordance with 21 CFR 111.430. Specifically, you stated that your firm has not established, and does not follow, written procedures for labeling operations of the dietary supplement product Creatine Ethyl Ester 40X (b)(4).
We have reviewed your response dated September 26, 2013. Your response states that “GE Pharma is not a dietary supplement manufacturer right now. We dont [sic] make our own line, or the private label lines that we sell upon customer request. Its [sic] done for us by our manufacturer(s). We are a distributor of our own line, and Private Label lines which are manufactured by other compan(ies) as of right now.”We have determined that your response is inadequate because it does not address these deficiencies.
4. Your firm failed to establish and follow written procedures to fulfill the requirements related to product complaints, as required by 111.553, and for the review and investigation of product complaints, as required by 111.560. Specifically, when discussing the above requirements during the inspection, you informed the investigator that you do not have written procedures for handling product complaints.
We have reviewed your response dated September 26, 2013. Your response states that “GE Pharma is not a dietary supplement manufacturer right now. We dont [sic] make our own line, or the private label lines that we sell upon customer request. Its [sic] done for us by our manufacturer(s). We are a distributor of our own line, and Private Label lines which are manufactured by other compan(ies) as of right now.” We have determined that your response is inadequate because it does not address these deficiencies.
5. Your firm failed to establish and follow written procedures for returned dietary supplements, as required by 111.503. Specifically, when discussing the above requirements during the inspection, you informed the investigator that you do not have written procedures for handling product recalls. There are no written procedures to be followed when any product is returned, including procedures for handling returned dietary supplements that must be destroyed or otherwise suitably disposed of in accordance with 111.515, and for returned dietary supplements that may be salvaged in accordance with 111.520.
6. Your firm failed to establish and follow written procedures for holding and distributing operations, in accordance with 21 CFR 111.453. In addition, your firm failed to make and keep records of these written procedures in accordance with 21 CFR 111.475.
Specifically, you stated that you have no written procedures for holding and distribution procedures to ensure that dietary supplements are held under appropriate conditions of temperature, humidity, and light so that the identity, purity, strength, and composition of the dietary supplements are not affected (see 21 CFR 111.455(a)). We have reviewed your response dated September 26, 2013. Your response states that “GE Pharma is not a dietary supplement manufacturer right now. We dont [sic] make our own line, or the private label lines that we sell upon customer request. Its [sic] done for us by our manufacturer(s). We are a distributor of our own line, and Private Label lines which are manufactured by other compan(ies) as of right now.” We have determined that your response is inadequate because it does not address these deficiencies.
1. Your Fire Burn, Fire Storm, Amino Fire, Jet Fire, Oxy Fire, HGH, Cissus, and Liquid Fire products are misbranded within the meaning of section 403(e)(1) of the Act [21 U.S.C. § 343 (e)(1)] because they fail to list the place of business of the manufacturer, packer, or distributor in accordance with 21 CFR 101.5.
3. Your Fire Burn, Fire Storm, Creatine, Amino Fire, Nitric Fire, Jet Fire, Oxy Fire, HGH, Cissus, Hydro shield, Performa-Test, Raspberry Ketones, Fire Drol, BCAA 1500, Crea Fuse, and Liquid Fire products are misbranded within the meaning of sections 403(s)(2)(B) of the Act [21 U.S.C. § 343(s)(2)(B)] in that the label fails to identify the products using the term dietary supplement, in accordance with 21 CFR 101.3(g).
4. Your Fire Burn, Fire Storm, Creatine, Amino Fire, Nitric Fire, Jet Fire, Oxy Fire, HGH, Cissus, Hydro shield, Performa-Test, Raspberry Ketones, Fire Drol, BCAA 1500, Crea Fuse, and Liquid Fire products are misbranded within the meaning of section 403(q)(5)(F) of the Act [21 U.S.C. § 343(q)(5)(F)] because the label fails to bear nutrition labeling in the proper format, which is required under 21 CFR 101.36. Specifically, the nutrition information on your Fire Burn product does not include the (b)(2) dietary ingredients or a % Daily Value column.
5. Your Fire Burn, Fire Storm, Amino Fire, Nitric Fire, Jet Fire, HGH, Cissus, Performa-Test, and Raspberry Ketones productsare misbranded within the meaning of section 403(s)(2)(C) of the Act [21 U.S.C. § 343 (s)(2)(C)] in that the labels fail to identify the part of the plant from which the dietary ingredient is derived, in accordance with 21 CFR 101.4(h)(1).
6. Your Pyroburn, Fire Burn, Fire Storm, Creatine, Amino Fire, Nitric Fire, Oxy Fire, HGH, Cissus, Hydroshed, Performa-Test, Raspberry Ketones, BCAA 1500, and Liquid Fire products are misbranded within the meaning of sections 403(y) of the Act [21 U.S.C. § 343(y)] in that the label fails to bear a current domestic address or domestic phone number through which the responsible person as described in section 761(b) of the Act [21 U.S.C. § 379aa-1(b)], may receive a report of a serious adverse event associated with the product.
This letter is not intended as an all-inclusive list of the violations at your facility. You are responsible for ensuring that your facility operates in compliance with the Act and all applicable FDA regulations, including the dietary supplements CGMP regulations. You should take prompt action to correct these violations and to implement procedures whereby such violations do not recur. Failure to do so may result in regulatory action without further notice. These actions include, but are not limited to, seizure and injunction.
You should notify this office in writing of the steps you have taken to bring your firm into compliance with the law within fifteen (15) working days of receiving this letter. Your response should include each step which has been taken or will be taken to correct the violations and prevent their recurrence. If corrective action cannot be completed within fifteen (15) days, state the reason for the delay and the time frame within which the corrections will be completed. Please include copies of any available documentation demonstrating corrections have been made.
If you have questions regarding this letter, please contact Rory K. Geyer, Compliance Officer at 781-587-7521 or rory.geyer@fda.hhs.gov.