Aрpellant, Anthony Brown, appeals his convictions for battery on a law enforcement officer, depriving an officer of a means of communication, resisting arrest without violence, and driving while license suspended. At trial, he relied on a self-defense theory as to the chargе of battery on a law enforcement officer. The trial court instructed the jury using the standard instruction, but in doing so the instruction required that self-defense wаs authorized only if injury to the victim occurred. As no injury did occur in this instance, the jury instruction negated appellant’s self-defense theory. As such, the erroneous self-defense instruction constituted fundamental error, requiring reversal of appellant’s conviction for battery on a law enforcement officer.
While on road patrol in the early morning hours, a deputy of the Broward County Sheriffs Department noticed a car proсeeding without lights. The deputy activated the lights on his patrol car to initiate a traffic stop, but appellant, who was driving the car, refused to stоp and continued to travel southbound. The deputy then turned on his siren in an effort to get appellant’s attention, but appellant continued moving. After a short chase, appellant pulled to the side and jumped out of the car to run away. The deputy got out of his patrol car аnd chased him, eventually tackling him and bringing both of them to the ground.
The deputy told appellant to put his hands behind his back and to stop resisting, but appellant continued to struggle, trying to get away. The deputy attempted to roll appellant over and place appellant’s hands behind his bаck in an effort to handcuff him. However, appellant struck back at him, hitting him in the chest and kicking him. Meanwhile, the deputy was attempting to radio for backup, but appellant pulled the radio off the deputy’s shoulder. The deputy could not find the radio on the ground and could not contact thе dispatcher.
Later during the struggle, the deputy had one of appellant’s hands behind his back. As the deputy tried to get his handcuffs out, appellant triеd to run again. At that point, the deputy punched appellant in the face twice, holding his handcuffs as he struck appellant. Afterwards, appellant became compliant and was handcuffed. The deputy testified that he was not injured by appellant’s punches and kicks, and that he did not seek any medical treatment following the struggle.
Appellant testified and described a considerably different version of the incident. He admitted that he knew the officer wanted him to pull over and that he re
Appellаnt admitted that he resisted the deputy in that he simply “locked up” or “tensed up” when he was on the ground. He denied that he. pushed against the ground trying to get back up. After appellant realized there was no hope, he allowed his hands to go free, but the officer then punched him two or three times in the face with the handcuffs. He did not hit or kick the deputy before he was punched, but acknowledged that when he “went to ward off the onslaught of punches,” he probably did hit the officer. After he was arrested, he was taken to the hospital for treatment of a broken nose, a lаceration under his eye, a gash in his lip, a contusion to the face, and headaches. He was then taken to the jail infirmary, where he stayed for approximately seven days.
The trial court gave standard instruction 3.6(g) on the justifiable use of non-deadly force, instructing the jury in pertinent part as follows:
An issue in this ease is whether the defendant acted in self-defense. It is a defense to the offense with which the defendant is charged if the injury to Stephen Scrobe resulted from the justifiable use of non-deadly force.
(emphasis added). Defense counsel lodged no objection to the charge. The prosecutor then argued to the jury that it should ignore the self-defense claim because there was no injury to the deputy. Although the defense objected that this was a misstatement of the law, the trial court overruled the objection. Appellant was convicted of all charges.
On appeal, appellant maintains that the standard jury instruction on self-defense is fundamentally flawed, because it erroneously indicates that an injury to the victim is required before a jury may find that a. defendant. acted in self-defense. Recently, in Bassallo v. State,
Because of the error, we reverse for a new trial on battery on a law enforcement officer. We do not reverse on the remaining charges, as the self-defense instruction was given only in connection with the battery on a law enforcement officer charge. In addition, appellant admitted to resisting
As to the appellant’s claim that the prosecutor made multiрle improper comments in closing argument, we do not find that the prosecutor’s comments on the defense theories impermissibly disparagеd appellant or defense counsel, but rather were within the permissible bounds of advocacy. Although the prosecutor did make some imрroper statements, including improper bolstering of the officer, we do not find these merit reversal of the remaining convictions which were not affected by the self-defense jury instruction.
Affirmed in part; reversed in part, and remanded for a new trial on battery on a law enforcement officer.