JAMES MILTON ABBOTT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Milton Abbott was convicted of aggravated battery and resisting an officer without violence. The appellate court affirmed his conviction for resisting an officer but reversed his aggravated battery conviction due to trial court errors in jury instructions on self-defense and evidentiary rulings regarding impeachment of a key witness.
The trial court properly declined to instruct on justifiable use of deadly force for the aggravated battery charge, as the defendant denied committing the act. However, the court erred in declining to instruct on justifiable use of non-deadly force for the simple battery charge, and also erred in preventing impeachment of the state witness with a prior inconsistent statement. These errors require reversal and remand for a new trial on the aggravated battery charge.
[1] A defendant who denies committing the act charged is not entitled to a jury instruction on self-defense.
[2] A trial court errs in refusing to instruct the jury on the justifiable use of non-deadly force when the defendant's testimony supports such a defense, even if the defenda…
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Join FLexlaw to unlock all legal intelligence“In both homicide and assault and battery cases where the accused denies the commission of the act he has been held not entitled to an instruction on self-defense”
Establishes the rule that when a defendant denies committing the act alleged, self-defense instructions on deadly force need not be given.
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with aggravated battery allegedly committed during a barroom brawl, where the state claimed he cut the victim with a knife. The …
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LEHAN, Acting Chief Judge.
Defendant was convicted of aggravated battery in violation of section 784.045, Florida Statutes (1989), and of resisting an officer without violence in violation of section 843.02. We do not agree with his contentions regarding his conviction under section 843.02 and affirm his conviction for that crime without further comment. However, portions of his two contentions pertaining to his conviction under section 784.045 have merit. Accordingly, we reverse and remand for a new trial with regard to that conviction.
Defendant’s first contention regarding his conviction for aggravated battery is that the trial court erred in denying his request for an instruction of self-defense. When the trial court instructed the jury on aggravated battery and the lesser included offense of simple battery, it failed to give requested defense instructions on the justifiable use of deadly force pertaining to the aggravated battery instruction and on the justifiable use of non-deadly force pertaining to the simple battery instruction.
With regard to the aggravated battery jury charge, the trial court did not err in declining to give an instruction on the justifiable use of deadly force. The state’s case was that defendant cut the victim with a knife during a barroom brawl. At trial, defendant took the stand and denied ever using a knife on the victim. Under these circumstances, the trial court ruled properly. See Hamilton v. State, 458 So. 2d 863, 865 (Fla. 4th DCA 1984); Richardson v. State, 251 So. 2d 570, 571 (Fla. 4th DCA 1971). See also Mewes v. State, 517 P. 2d 487, 489 (Wyo.1973) (“In both homicide and assault and battery cases where the accused denies the commission of the act he has been held not entitled to an instruction on self-defense_”).
However, with regard to the simple battery jury charge, we conclude that the trial court erred in declining to give an instruction on the justifiable use of non-deadly force. There was evidence, namely defendant’s testimony, that would have supported that instruction. Under similar circumstances, O’Steen v. State, 547 So. 2d 235 (Fla. 1st DCA 1989), employing a harmless error analysis, concluded that the trial court’s failure to instruct on a defense applicable to a lesser included offense could be reversible error. In the instant case, the state failed to carry its burden of showing that the error was harmless beyond a reasonable doubt. Id. The record indicates that the testimony was conflicting and murky, which is not surprising since the circumstances involved a drunken barroom brawl in close, crowded quarters, and the sobriety of the participants and eyewitnesses was doubtful at best.
Defendant’s second contention also has merit. We agree that the trial court erred in not permitting defense counsel to impeach the testimony of a key state witness with a prior inconsistent statement she had made. See § 90.608(l)(a).
Defendant’s conviction for resisting an officer without violence is affirmed. His conviction for aggravated battery is reversed and the cause is remanded for a new trial in that regard.
Affirmed in part; reversed in part and remanded for a new trial.
HALL and THREADGILL, JJ., concur.
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Arthur v. State, 717 So. 2d 193 (Fla. 5th DCA 1998)…d that he never pointed the shotgun at Barker and he never threatened Barker. It is settled law in this state that if the accused denies the commission of the charged offense he is not entitled to an instruction on self defense. See Abbott v. State, 589 So. 2d 943 (Fla. 2d DCA 1991). The issue would be different had Arthur admitted the assault on Barker but claimed that he feared Barker because Barker was a part of the crowd that was threatening him and thus self defense should excuse such assault. Arthur sho…
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Wright v. State, 681 So. 2d 852 (Fla. 5th DCA 1996)…put up no resistance at all. Because Wright denied resisting Officers Bianci and Cunningham with violence, the trial court correctly refused Wright’s request to instruct the jury on his justifiable use of nondeadly force. Moyer. See Abbott v. State, 589 So. 2d 943 (Fla. 2d DCA 1991) (holding that aggravated battery defendant not entitled to instruction on justifiable use of deadly force where defendant denied on the stand using knife on victim). Wright’s challenge to the sufficiency of the evidence fails, as…
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Curington v. State, 704 So. 2d 1137 (Fla. 5th DCA 1998)…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 appropr…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hamilton v. State, 458 So. 2d 863 (Fla. 4th DCA 1984)
- O'Steen v. State, 547 So. 2d 235 (Fla. 1st DCA 1989)
- Richardson v. State, 251 So. 2d 570 (Fla. 4th DCA 1971)