Ivester v. State

• Decision Date: 11 May 1981
• Docket Number: No. TT-196,TT-196
• Citation: 398 So.2d 926
• Parties: Danny Lee IVESTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 926

398 So.2d 926

Danny Lee IVESTER, Appellant, v. STATE of Florida, Appellee.

No. TT-196.

District Court of Appeal of Florida, First District.

May 11, 1981.

Rehearing Denied June 2, 1981.

Michael J. Minerva, Public Defender, and Carl S. McGinnes and Margaret Good, Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen., Carolyn Snurkowski, Asst. Atty. Gen., and Harry Morrison, Tallahassee, for appellee.

PER CURIAM.

On appeal from a conviction of resisting arrest with violence in violation of Section 843.01, Florida Statutes, and driving while under the influence of alcoholic beverages in violation of Section 316.193, Florida Statutes, the defendant below, Danny Lee Ivester, asks us to consider two points. The first point, which is relevant to both charges, requires a determination as to whether the state failed to prove the identity of the defendant at trial. As to the second point, which relates only to the charge of resisting arrest with violence, we are asked to determine whether Ivester's motion to compel a discovery deposition of the arresting officer should have been granted. To do this we are required to ascertain whether a defendant may justify the use of force as an act of self-defense in defending against a charge of resisting arrest with violence. § 843.01, Fla.Stat.

Concerning the proof of the defendant's identity at trial, appellant Danny Lee Ivester argues that the state had the burden to prove his identity beyond a reasonable doubt. Because none of the state's witnesses identified Ivester by actually pointing him out in the court room, he seeks a reversal of his conviction for resisting an officer with violence and driving while under the influence of alcoholic beverages. We agree with the appellant that the state must establish beyond a reasonable doubt the identity of the accused at trial. When the state fails in meeting its responsibility, acquittal is a proper remedy. Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981); Weinshenker v. State, 223 So.2d 561 (Fla. 3rd DCA 1969) reh. denied, cert. denied, Weinshenker v. Florida, 396 U.S. 973, 90 S.Ct. 462, 24 L.Ed.2d 441.

The trial court in its charge to the jury referred to either "Danny Ivester," "the defendant," or to "the defendant, Danny Lee Ivester," no less than eighteen times. The prosecutor specifically referred to the defendant Danny Ivester, and he elicited testimony from four witnesses about him. ¹ Compare State v. Freeman, 380 So.2d 1288 (Fla.1980). Because the defendant was identified beyond a reasonable doubt we affirm the first point.

The second point concerns the appellant's discovery rights under Rule 3.220, Florida Rules of Criminal Procedure, as part of his efforts to set up a defense to the charge of resisting arrest with violence. § 843.01, Fla.Stat. Apparently, as the result of his intoxication, Ivester was involved in a traffic accident. The police were called. During the investigation of the accident, Ivester was approached by Officer Tom Butcher. Butcher testified that he intended to arrest the defendant, and in preparing to do so, he was accosted by Ivester. Locked in a struggle, the two fell to the ground. Butcher said Ivester began thrashing around and punching him, until he could handcuff Ivester.

However, the testimony of some of the witnesses differs significantly from that of Officer Butcher. There was testimony that Butcher kicked Ivester, knocked a sandwich out of his hands, and threatened to "beat his brains out." In defending against the charges of resisting arrest with violence, Ivester attempted to prepare a defense based on self-defense. The assistant public defender, handling Ivester's case, deposed Officer Butcher, but on advice from the prosecutor, Butcher refused to answer many of the questions. Ivester's counsel then filed a motion to compel discovery seeking to determine, among other things, how many times Butcher had charged individuals with resisting arrest, both on the night Ivester was arrested and in general, whether he had ever been disciplined or sued for use of excessive force while on duty, and the officer's home address, neighborhood and marital status.

The motion to compel discovery was denied on the ground that a self-defense argument was "irrelevant and immaterial," because Section 776.051(1), Florida Statutes (1974), does not permit the use of force in resisting arrest. Further, the matters sought by the motion to compel discovery related to privileged or exempted matters under portions of the Public Records Act, Chapter 119, Florida Statutes, and the police officer's personal safety exception." § 914.15, Fla.Stat. (1979).

Ivester claims that he was substantially prejudiced by the failure to compel discovery, especially due to the fact that the prosecutor's closing argument portrayed Officer Butcher as part of the "new breed of police officers" and a "fine officer" with a degree in criminology. The record reveals a fact that we believe to militate in favor of Ivester's appeal. While the motion to compel discovery was denied because self-defense was "irrelevant" in a prosecution for resisting arrest with violence, the jury was instructed that self-defense could be found as a defense to the charge. We find that there may have been error in denying the motion to compel discovery and ruling in effect that a self-defense argument was not permissible.

The issue of defending against a charge of resisting arrest with violence in self-defense has never been addressed with any finality in Florida. The appellant cites Burgess v. State, 313 So.2d 479, 483 n. 4 (Fla. 2d DCA 1975) certified question dismissed 326 So.2d 441 (Fla.1976) reh. denied. Burgess stands for the proposition that no individual has the right to use force in resisting arrest, unless he apprehends bodily harm. While we agree that this rule of law is correct, Section 776.051(1), Florida Statutes, was not in effect at the time Burgess was written. Section 776.051(1), Florida Statutes, states that "(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer." In Lowery v. State 356 So.2d 1325, 1326 (Fla. 4th DCA 1978), the court read Section 843.01, Florida Statutes, in pari materia with Section 776.051(1), Florida Statutes (1974). It was concluded that one may not resist arrest with violence, even if the arrest is technically illegal. Lowery, supra, at 1326; see also Meeks v. State, 369 So.2d 109 (Fla. 1st DCA 1979); Morley v. State, 362 So.2d 1013 (Fla. 1st DCA 1978).

The Lowery court specifically left open the question of a defendant's right to use force in self-defense pursuant to Section 776.012, Florida Statutes (1979), which states in part that: "A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself ... against such other's imminent use of unlawful force...." See also Pani v. State, 361 So.2d 170 (Fla. 3rd DCA 1978) reh. denied.

Sections 776.012 and 776.051, Florida Statutes (1974), were both enacted as a part of the same act. See Laws of Florida, Chapter 74-383. Statutes that are a part of a single act must be read in pari materia. Major v. State, 180 So.2d 335, 337 n. 1 (Fla.1965). The effect of reading these statutes in pari materia is to permit an individual to defend himself against unlawful or excessive force, even when being arrested. This view is consistent with the position taken by other jurisdictions that have been confronted with questions relating to statutes similar to Sections 776.012, 776.051 and 843.01, Florida Statutes. See e. g., People v. Stevenson, 31 N.Y.2d 108, 335 N.Y.S.2d 52, 286 N.E.2d 445 (1972); People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969); Annot. 77 A.L.R.3d 281.

Chapter 776, Florida Statutes, recognizes principles set forth in the case law of other jurisdictions in that the right of self-defense against the use of excessive force by a police officer is a concept entirely different from resistance to an arrest, lawful or unlawful, by methods of self-help. People v. Curtis, supra, at 74 Cal.Rptr. 713, 714, 450 P.2d 38-39; see also State v. Nunes, 546 S.W.2d 759, 762 (Mo.App.1977). The former concept is grounded on the view that a citizen should be able to exercise reasonable resistance to protect life and limb; which cannot be repaired in the courtroom. The latter view is based on the principle that a self-help form of resistance promotes intolerable disorder. Any damage done by an improper arrest can be repaired through the legal processes. Id. ²

Therefore, self-defense is not "irrelevant" to a prosecution for resisting arrest with violence. It is quite "relevant," and under Rule 3.220(d), Florida Rules of Criminal Procedure, "relevancy of a matter to the offense charged" is the basis for permitting discovery of a matter. The scope of discovery, unless privileged or limited by order of the court, includes any relevant matter or information that appears reasonably calculated to lead to the discovery of admissible evidence. Evanco v. State, 350 So.2d 780, 781 (Fla. 1st DCA 1977) rev'd. for new trial 352 So.2d 147.

The denial of the motion to compel discovery was based on the Public Records Act, as set forth in the Laws of Florida, Chapter 79-187. See §§ 119.011, 119.07 and 119.072, Fla.Stat. (1979). These sections refer to certain sensitive public records that are not open to inspection by the public. The law refers to "public records," and that term refers to "documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form of characteristics...." § 119.011(1), Fla.Stat. (1979); see also Shevin v. Byron, Harless, Shaffer, Reid and Associates, Inc., 379 So.2d 633, 640 (Fla.1980).

By definition a public record does not include someone's verbal...