Bill Schaeffer may need a refresher with respect to standard of evidence and burden of proof for a self-defense claim:
http://www.5dca.org/Opinions/Opin2013/0 ... 796.op.pdfQuote:
A trial court's decision to give or withhold a proposed jury instruction is generally
reviewed for an abuse of discretion. Vila v. State, 74 So. 3d 1110, 1112 (Fla. 5th DCA
2011). However, the trial court's discretion is more restricted in criminal proceedings
"because a criminal defendant is entitled to have the jury instructed on his or her theory
of defense if there is any evidence to support the theory and the theory is recognized as
valid under Florida law." Id. The trial court should not weigh the evidence when
determining whether to give the requested instruction. Id.; see also Pope v. State, 458
So. 2d 327, 329 (Fla. 1st DCA 1984) (stating that "[i]t is axiomatic that a defendant is
entitled to have the jury instructed on the rules of law applicable to his theory of defense
if there is any evidence to support such an instruction, and the trial court may not weigh
the evidence in determining whether the instruction is appropriate") (citing Smith v.
State, 424 So. 2d 726, 732 (Fla. 1982)). The jury—not the trial judge—decides the weight of
the evidence. Vila, 74 So. 3d at 1112. "The question of self-defense is one of fact, and
is one for the jury to decide where the facts are disputed." Id. Additionally, a defendant
is not required to testify at trial to receive a jury instruction on self-defense. Sipple, 972
So. 2d at 915. A defendant's statements admitted into evidence at trial may be
sufficient evidence for a self-defense instruction. Id. The cross-examination of State
witnesses can also support a claim of self-defense. Id. at 916. Finally, if a jury can
reasonably infer from circumstantial evidence presented at trial that the defendant had
the state of mind necessary for self-defense, then the defendant is entitled to a jury
instruction on self-defense. Johnson v. State, 634 So. 2d 1144, 1145 (Fla. 4th DCA
1994).
Here, the trial court’s determination that Spurgeon presented a jury question on
the issue of self-defense belies its conclusion that no evidence was presented to
support his request for a self-defense instruction. The record reflects Spurgeon was not
under arrest at the time he was restrained and that he had repeatedly expressed a
desire to leave the hospital. Indeed, testimony revealed much of Spurgeon’s agitation
was due to him wanting to leave the hospital and being prevented from doing so. He
spat on DenDekker only after she placed her hands on him without his consent and
physically restrained him. This evidence was sufficient to warrant an instruction on self-9
defense and failing to give it was reversible error.
1099, 1099 (Fla. 1st DCA 2005) (reversing conviction for resisting an officer with
violence to his person and holding that the court erred in denying the request for a jury
instruction on self-defense that would have informed the jury that it is lawful to resist
deadly force with non-deadly force); Langston v. State, 789 So. 2d 1024, 1025 (Fla. 1st
DCA 2001)(reversing conviction for resisting arrest with violence where the trial court
refused to give requested instruction on the lawful use of force to defend against an
officer's use of unlawful or excessive force while making an arrest when some evidence
supported the instruction); Holley v. State, 532 So. 2d 562, 564 (Fla. 1st DCA 1982)
(reversing conviction for battery on a law enforcement officer and holding that the court
erred in denying the defendant's request for a self-defense instruction when evidence in
the record supported the self-defense theory).
(Some footnotes and refs omitted)
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Do not go gentle into that good night.
I crack myself up sometimes... that entitled woman, Fulton, worried about getting booted out... as if Nelson would dare... lol