Curington v. State

• Court: Florida District Court of Appeals
• Writing for the Court: W. SHARP
• Citation: Curington v. State, 704 So.2d 1137 (Fla. App. 1998)
• Decision Date: 30 January 1998
• Docket Number: No. 96-2758,96-2758
• Parties: 23 Fla. L. Weekly D360 Ronald CURINGTON, Appellant, v. STATE of Florida, Appellee.

Page 1137

704 So.2d 1137

23 Fla. L. Weekly D360

Ronald CURINGTON, Appellant, v. STATE of Florida, Appellee.

No. 96-2758.

District Court of Appeal of Florida Fifth District.

Jan. 30, 1998.

Michael T. Kovach, Inverness, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

W. SHARP, Judge.

Curington appeals from his conviction and the sentences he received after a jury found him guilty of two counts of aggravated battery committed with a deadly weapon, ¹ on two separate victims. The trial court instructed the jury on the defense of justifiable use of non-deadly force. However, it refused to instruct the jury on the defense of justifiable use of deadly force because the request for the instruction was late--made at the end of closing arguments by counsel.

The evidence at trial established that the incidents giving rise to the criminal charges occurred on February 4, 1993, in a rural Hernando County area known as "The Pitts," an old phosphate mine. Young people gather there, light bonfires, drink alcohol, and generally "hang out." That night between 25 to 30 people assembled.

Based on the defense witnesses' testimony at trial, Curington and another man, Gamble, got into an argument. Gamble admitted he wanted to fight with Curington. He started the fight by throwing a lighted cigarette and beer bottle at Curington, and by approaching him, pushing him and verbally abusing him. This became the focus of the party. Others started beating and pushing Curington as well.

Curington pulled a knife on Gamble. The crowd continued beating and attacking Curington. The crowd forced him back into the woods, away from his truck. He suffered extensive injuries. He was kicked while on the ground and beaten with a tire iron all over his body. He required stitches in his hand from trying to protect himself, and block blows from beer bottles which were being broken over his head. He suffered cuts and bruises all over his body. He had bruises to both eyes, chin and lip, and was beaten so badly he had a hematoma in his right eye.

Curington, as well as other witnesses, testified that he repeatedly told the crowd to stand back and leave him alone. He said he drew the knife because there were people surrounding him and he had been hit with a lit cigarette and a beer bottle. He said he begged the group to stop beating him before either victim was injured, and before he drew his knife from his belt.

Curington further testified that he was in fear of his life and great bodily harm. He was surrounded and out numbered by a large, hostile crowd of people, capable of harming him severely. Curington testified he pulled out the knife to force the crowd back. He was swinging the knife around to keep others away from him, and did not intend to injure anyone. In fact, he did not recall cutting anyone. However, two people were cut by him: one on the hand and another on his arm, after that victim, admittedly, was kicking Curington as he lay on the ground. Curington testified he had so much blood and sweat in his eyes he could not see much, and at that time the crowd had forced him away from the fire and into the woods.

Curington's sole defense in this case was self-defense. An instruction on use of non-deadly force was given, ² but the court refused to instruct on use of deadly force. ³ However, since Curington tried to defend himself by using a knife, the deadly force instruction was also appropriate, under the circumstances of this case.

Section 776.012, Florida Statutes (1993) provides:

Use of force in defense of person.--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 or another against such imminent use of unlawful force. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony. (emphasis added)

A person is justified in using deadly force in self-defense if he or she reasonably believes such force is necessary to protect one's self from imminent death or great bodily harm. Miller v. State, 613 So.2d 530 (Fla. 3d DCA 1993); Smiley v. State, 395 So.2d 235 (Fla. 1st DCA 1981). The circumstances must be such that the defendant had cause to think loss of life or serious injury is imminent. And use of deadly force is only proper if retreat is not possible. Stewart v. State, 672 So.2d 865 (Fla. 2d DCA 1996). In this case, Curington presented sufficient evidence to create a jury issue as to each of these elements. J.Y. v. State, 332 So.2d 643 (Fla. 3d DCA 1976).

Where evidence presented at trial supports an instruction on self-defense (use of deadly force as well as non-deadly force), it is error not to give it. Garramone v. State, 636 So.2d 869 (Fla. 4th DCA 1994); Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Stewart; Abbott v. State, 589 So.2d 943 (Fla. 2d DCA 1991); Spence v. State, 678 So.2d 459 (Fla. 4th DCA 1996). Cf. Deveaugh v. State, 575 So.2d 1373 (Fla. 4th DCA 1991). This appears to be a case in which instructions on both use of non-deadly force as well as deadly force were appropriate. See Howard v. State, 698 So.2d 923 (Fla. 4th DCA 1997).

The state argues that the request for the instruction on deadly force was properly denied because it was untimely, as it was not made until the end of closing arguments. Florida Rule of Criminal Procedure 3.390(c) provides that a request for a jury instruction should be made at the close of the evidence or earlier as the court reasonably directs. We have found only one case dealing with a late request for a jury instruction. In Dean v. State, 430 So.2d 491 (Fla. 3d DCA 1983), quashed on other grounds, 478 So.2d 38 (Fla.1985), the request was made after closing argument to the jury, but the defense made no contention at trial or on appeal that the defendant was prejudiced by failure to give the instruction.

In this case, jury instructions were discussed before trial commenced, and piecemeal during the trial at bench conferences. The defense timely requested the non-deadly force instruction. After closing arguments, defense counsel requested the deadly force instruction. The state objected, and the trial judge concluded it could not add that instruction at that point. The defense never conceded that failure to give the deadly force instruction was not prejudicial. Defense counsel renewed his objection to the failure to give the requested instruction, and placed it of record, when the court completed its jury instruction and before the jury retired to deliberate.

The combination of instructions, which were and were not given in this case, had the effect of depriving Curington of any defense to the criminal charges despite evidence which would have been sufficient for an acquittal. The judge only gave the non-deadly force instruction, which required the jury to find that Curington did not use deadly force. It was also instructed that use of a deadly weapon was sufficient to convict for aggravated battery. Since the evidence at trial established without dispute that Curington used a knife in cutting the victims, the equivalent of a deadly weapon, he had no viable self-defense theory available.

Failure to give a complete instruction on self-defense, including use of deadly force, has been held to be fundamental error, where evidence at trial supports such an instruction or theory of the case. See Dawson v. State, 597 So.2d 924, 925 (Fla. 1st DCA 1992). Fundamental error exists where the omission goes to the essence of the defense. Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960). See also Motley v. State, 155 Fla. 545, 20 So.2d 798, 800 (1945); Croft v. State, 117 Fla. 832, 158 So. 454, 455 (1935).

In this case, we do not need to find fundamental error because the instruction was proffered, although belatedly. ⁴ The trial judge did have an opportunity to fully instruct the jury on Curington's theory of self defense. We think that not to do so under the circumstances of this case was a breach of discretion and prejudicial to Curington's defense. Thus, Curington should be accorded a new trial. See Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945).

REVERSED and REMANDED.

DAUKSCH and ANTOON, JJ., concur.

1 § 784.045(2)(a)2, Fla. Stat. (1993).

2 The trial judge stated:

An issue in this case is whether the...