Wright v. State, 96-1856

• Decision Date: 21 January 1998
• Docket Number: No. 96-1856,96-1856
• Citation: 705 So.2d 102
• Parties: 23 Fla. L. Weekly D263 Charlotte WRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 102

705 So.2d 102

23 Fla. L. Weekly D263

Charlotte WRIGHT, Appellant, v. STATE of Florida, Appellee.

No. 96-1856.

District Court of Appeal of Florida Fourth District.

Jan. 21, 1998.

Richard L. Jorandby, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, Judge.

Charlotte Wright was convicted of attempted battery on a law enforcement officer, disorderly conduct and reckless driving. We reverse and remand for a new trial on the battery charge because Wright was entitled to her requested instruction on self-defense.

Wright got into a verbal confrontation with employees at the tire mounting area of Sam's Club. After being told by the police to leave, Wright drove away, squealing her tires as she sped through the parking lot and ran a stop sign. Because of the traffic violations, the police followed Wright to a service station, where she left her car and went to a pay phone.

The police told Wright to stop and informed her that she was under arrest. Wright ignored the command and continued walking toward the store while yelling at the officers. One of them again told Wright to stop and grabbed her arm. According to the officers, they had to take Wright to the ground to control her. When Wright hit the pavement, her hands were underneath her body and she was struggling. One officer testified that Wright bit him when he was trying to pry her hands from underneath her body to handcuff her. The bite did not break the skin. After Wright bit the officer, the other officer used pepper spray to subdue her.

Wright's version of events at the service station was that the officers charged her from behind without warning and threw her down. She asserted that one officer beat her with a black stick. Another officer handcuffed her. Wright claimed that while she was on the ground and after she was handcuffed, one officer sprayed mace in her face and tried to get it in her mouth. As to the bite, Wright said that she was concerned about keeping the mace out of her mouth. On direct and cross-examination, Wright testified that she did not remember biting an officer. On redirect examination the following exchange occurred:

[Defense attorney]: Did you ever intend to bite any officer?

Wright: No. It wasn't my intentions [sic] to bite. The only thing, I was trying to keep my mouth closed from the mace getting into my mouth, due to the medications that I'm attending.

Q: When you say you don't remember, are you showing it's possible that a hand came in contact with your mouth?

A: Yes. The hand. But I wasn't trying to do anything intentionally.

Wright was charged with disorderly conduct, reckless driving, and, for the biting incident, battery on a law enforcement officer. On the battery charge, defense counsel requested an instruction on justifiable use of non-deadly force ¹ which the court denied. A jury found Wright guilty of disorderly conduct, reckless driving and attempted battery on a law enforcement officer. On the attempted battery, she was adjudicated guilty and placed on probation for one year. For the other crimes, she was sentenced to time served.

Wright argues that the trial court erred in refusing to instruct the jury on justifiable use of non-deadly force. We agree and reverse.

A defendant is "entitled to a jury instruction on his theory of the case if there is any evidence to support it," no matter how flimsy that evidence might be. See Garramone v. State, 636 So.2d 869, 870 (Fla. 4th DCA 1994); Vazquez v. State, 518 So.2d 1348, 1350 (Fla. 4th DCA 1987). One theory of the defense was that the bite occurred in the midst of an unprovoked police beating. It is well settled that while a person cannot use force to resist an arrest, a person "may resist the use of excessive force in making the arrest." See State v. Holley, 480 So.2d 94, 96 (Fla.1985). Standard Criminal Jury Instruction 3.04(e) embodies this legal principle.

A self-defense instruction for the charge of battery on a police officer can be supported by circumstantial evidence from which a jury could infer that the defendant believed that his conduct was necessary to defend himself from an officer's use of excessive force in making an arrest. See Johnson v. State, 634 So.2d 1144, 1145 (Fla. 4th DCA 1994). To raise self-defense, a defendant does not have to testify directly about his intent behind an act occurring in the past, or that he made a conscious decision to defend himself in a certain way. Not remembering an event does not preclude the possibility of either an intentional act or an accident. From the circumstances surrounding an arrest made with excessive force, a jury might infer that a defendant reasonably believed that responsive force was reasonable and necessary and, therefore, proper. As the second district stated in Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1972)

[i]t is not the quantum or the quality of the proof as to self-defense that determines the requirement for giving the charge. If any evidence of a substantial character is adduced, either upon cross-examination of State witnesses or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury's function to determine that issue.

Inconsistencies in defenses are permitted so long as the proof of one does not necessarily disprove the other. See Kiernan v. State, 613 So.2d 1362, 1364 (Fla. 4th DCA 1993) (evidence suggesting stabbing was accidental does not vitiate entitlement to self-defense instruction where there is also evidence supporting the justifiable use of force defense). If a defendant denies that a battery occurred, or disavows all involvement in a battery, then his defense is irreconcilable with self-defense so that it is proper to refuse an instruction on justifiable use of non-deadly force. See Richardson v. State, 251 So.2d 570, 571 (Fla. 4th DCA 1971); Wright v. State, 681 So.2d 852, 853 (Fla. 5th DCA 1996). For example, in Richardson, this court found no error in failing to charge on self-defense where the defendant contended that a shooting was committed by an unknown patron...