Holley v. State, AI-462
| Decision Date | 16 December 1982 |
| Docket Number | No. AI-462,AI-462 |
| Citation | 423 So.2d 562 |
| Parties | Joe Willis HOLLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
Holley appeals his conviction for battery of a law enforcement officer. He argues that the trial court erroneously refused to instruct the jury on the theory of his defense. We agree, and therefore reverse and remand.
Holley, defendant below, was accused of beating Joseph Lazenby, a correctional officer at Union Correctional Institution. At trial, Lazenby and Holley offered widely different versions of the incident. Lazenby testified that he was supervising the feeding of the southwest unit, which was understaffed due to an incident occurring elsewhere in the prison. Holley was walking in the line with a bowl of cake in his hands, which was against the rules. Lazenby stated he told Holley to put the cake back and Holley agreed, but that when Lazenby turned his back Holley jumped over the rail and tried to punch him. Lazenby, who was hit on the side of the face, grabbed Holley, pushed him over a table and tried to handcuff him. At this point, Lazenby stated he was hit in the back by an unknown assailant. According to Lazenby, Holley used this opportunity to pick Lazenby up, throw him over the rail and begin kicking him. Lazenby also testified that some of the 150 to 200 inmates in the area at the time of the incident took part in this fight, but that he couldn't tell who they were because they were to his back. Finally, other officers made their way through the crowd to assist Lazenby and end the incident. Lazenby denied striking or slapping Holley other than in trying to put handcuffs on him. Another correctional officer, John Jacobson, basically corroborated Lazenby's testimony. Jacobson, however, did not observe the entire incident and, apparently, did not observe the critical moments before the fight began.
Holley testified that the incident occurred on his birthday. Another inmate gave Holley two pieces of cake in a bowl and as he walked through the line Lazenby came up and told him to put the cake back. Holley stated that when he protested, Lazenby swung at him and struck him. The two men then "locked up" across the rail and began to wrestle. Holley testified that Lazenby continued to hit him until other officers came in and broke up the fight. Holley testified that he made no aggressive movements toward Lazenby until Lazenby hit him. Four other inmates of Union Correctional Institution testified and basically corroborated the testimony of the defendant, Holley.
In his closing statement to the jury, defense counsel argued that Officer Lazenby was not engaged in the performance of a legal duty in that he precipitated the alleged battery by slapping the defendant without provocation. Counsel also contended that since Lazenby started the fight, the defendant was acting in self-defense. Defense counsel had requested that the trial court give the standard jury instruction on self-defense, and had also submitted a written request for a special jury instruction. The special instruction stated that if the jury found that Lazenby struck the defendant before he was struck or threatened by the defendant, then Lazenby was not engaged in a lawful execution of a legal duty, which is an essential element of the offense of battery of a law enforcement officer. The trial court declined to give either instruction.
It is axiomatic that a defendant is entitled to a jury instruction on the theory of his defense if there is evidence in the record to support it. Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). In the instant case there is much testimony in the record that defendant Holley was struck first. From this testimony, the jury could have concluded that Holley was acting in self-defense. A defendant is entitled to his requested self-defense instruction regardless of how weak or improbable his testimony may have been with respect to the circumstances leading up to the battery. Taylor v. State, 410 So.2d 1358 (Fla. 1st DCA 1982). A person is entitled to defend himself against unlawful or excessive force even when being arrested. Ivester v....
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