Edwards v. State, 82-731

• Court: Court of Appeal of Florida (US)
• Citation: 428 So.2d 357
• Docket Number: No. 82-731,82-731
• Parties: Nathaniel EDWARDS, Appellant, v. The STATE of Florida, Appellee.
• Decision Date: 22 March 1983

Page 357

428 So.2d 357 Nathaniel EDWARDS, Appellant,
v.
The STATE of Florida, Appellee. No. 82-731. District Court of Appeal of Florida,
Third District. March 22, 1983.

Page 358

Bennett H. Brummer, Public Defender and Gitlitz, Keegan & Dittmar, and James Keegan, Sp. Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen. and Scott Silver, Asst. Atty. Gen., for appellee.

Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.

PER CURIAM.

Appellant raises two issues by this appeal from his conviction for first-degree murder and robbery: (1) the court erred in denying his request for an instruction on voluntary intoxication, (2) the prosecutor's comment in closing argument was so inflammatory as to require a new trial.

Appellant's sole defense at trial was intoxication. The court denied his requested instruction, stating that it was not supported by evidence. We disagree.

Appellant did not take the witness stand. The evidence showed, nonetheless, that he had been drinking rum and coke at an all-night party which ended shortly before the time of the offense. The investigating officer testified that he questioned appellant shortly after he was arrested, and his responses were:

H]e couldn't recollect what had taken place. He had been to a party, that he had been drinking and his memory as to what occurred--[h]e couldn't remember

The law is settled that a defendant is entitled to have the jury instructed on the law applicable to his theory of defense where there is any evidence introduced in support thereof. Bryant v. State, 412 So.2d 347 (Fla.1982); Palmes v. State, 397 So.2d 648 (Fla.1981), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981), and cases cited therein. See also Motley v. State, 155 Fla. 545, 20 So.2d 798 (Fla.1945). Even more on point is Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA 1981), which holds that a requested instruction on intoxication must be given even though the only evidence of it comes from cross-examination of a state witness, is not supported by empirical evidence, and the defendant denies being intoxicated. 395 So.2d at 1209.

Voluntary intoxication is a defense to any crime requiring specific intent.

Page 359

Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979), overruled on other grounds, Parker v. State, 408 So.2d 1037 (Fla.1982). The crime of murder has as a requisite element specific intent which, where disputed by factual evidence, must be...