Gregory L. Lewis
Deputy Public Defender
Attorneys for Appellee
Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
April 14, 2003
On January 24, 2001, the State charged Defendant with three (3) counts of
Battery by Body Waste.
See footnote Defendant was found not guilty of
Counts I and III, Battery by Body Waste on correctional officers Zeabart and
Sachtjen. The jury found the Defendant guilty of Count II, Battery by
Body Waste on officer Brown.
The Court of Appeals found reversible error in the trial court's failure to give the jury Defendant's requested instruction that it could find that his conduct constituted self-defense. Henson v. State, No. 77A04-0110-CR-431 (Ind. Ct. App. Aug. 6, 2002), 773 N.E.2d 376 (table). Judge Friedlander dissented. We granted transfer, 2002 Ind. LEXIS 814 (Ind. Oct. 25, 2002), and now generally adopt the approach advocated by Judge Friedlander.
a. A person is justified in using reasonable force against another person to protect
himself or a third person from what he reasonably believes to be the
imminent use of unlawful force. No person in this State shall be
placed in legal jeopardy of any kind whatsoever for protecting himself or his
family by reasonable means necessary.
b. A person is justified in using reasonable force against another person if
he reasonably believes that the force is necessary to prevent or terminate the
other persons entry of or attack on his dwelling or curtilage.
c. With respect to property other than a dwelling or curtilage, a person is
justified in using reasonable force against another person if he reasonably believes that
the force is necessary to immediately prevent or terminate the other persons trespass
on or criminal interference with property lawfully in his possession.
d. Notwithstanding subsections (a), (b), and (c) of this section, a person is
not justified in using force if:
1. he is committing, or is escaping after the commission of a crime;
2. he provokes unlawful action by another person with intent to cause bodily injury
to the other person; or
3. he has entered into combat with another person or is the initial aggressor,
unless he withdraws from the encounter and communicates to the other person his
intent to do so and the other person nevertheless continues or threatens to
continue unlawful action.
The State has the burden of disproving this defense beyond a reasonable doubt.
The manner of instructing a jury lies largely within the discretion of the trial court, and we will reverse only for abuse of discretion. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999), cert. denied, 531 U.S. 830 (2000). In determining whether a trial court abused its discretion by declining to give a tendered instruction, we consider the following: (1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and (3) whether the substance of the instruction was covered by other instructions that were given. Lampkins v. State, 778 N.E.2d 1248 (Ind. 2002).
Defendant argues and the State concedes that Defendants tendered instruction on self-defense correctly
stated the law and that the substance of the instruction was not covered
by others given. The decisive question in this case is whether there
is evidence in the record to support the giving of a self-defense instruction.
A valid claim of self-defense is a legal justification for an otherwise criminal
Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). A
person is justified in using reasonable force against another person to protect himself
or a third person from what he reasonably believes to be the imminent
use of unlawful force. Ind. Code § 35-41-3-2 (2001). A claim
of self-defense requires a defendant to have acted without fault, been in a
place where he or she had a right to be, and been in
reasonable fear or apprehension of bodily harm. White v. State, 699 N.E.2d
630, 635 (Ind. 1998).
The State argues that Defendant was not entitled to a self-defense instruction because
he provoked, instigated and willingly participated in the violence. (Appellees Pet. to
Trans. at 8 (quoting
Driver v. State, 760 N.E.2d 611 (Ind. 2002)).)
Furthermore, the State contends that Defendant was not in reasonable fear of death
or great bodily harm. We agree with the State on both points.
Defendant claimed at trial that he believed Officer Brown was coming to beat
him. The sole evidence supporting Defendants belief came from Defendants own testimony.
Defendant testified that the guards had battered other inmates and previously beaten him three times. He also stated that he knew that inmates had been moved to another cell as a pretext for giving guards an opportunity to beat them. According to Defendants testimony, when he approached Officer Brown about the things missing from his cell, Brown responded by removing his watch and threatening to beat him into the pavement. Defendant further testified that before leaving the initial confrontation, Officer Brown said, Ill be back to beat you into the pavement. Later, as the four officers began walking toward his cell, Defendant heard other inmates yelling, Theyre coming to get you! and Here comes Brown to beat Ed up! Upon reaching the cell, Officer Brown stated, Cuff up. You know what time it is. According to Defendant, he felt threatened and defenseless, and he only intended to throw body waste on Officer Brown to repel his attack, with no intention of hitting the other two officers.
Defendants testimony notwithstanding, the record indicates that his actions were not without fault.
The initial confrontation that gave rise to Defendants fear of retribution by
the officers was provoked by his initial confrontation and violent epithet directed at
officers Brown and Zeabart.
Defendant cursed officer Zeabart, threatened to kill him
and his family, and threatened to pull his eyeballs out and throw them
down the range. Defendant also threatened to pull out the eyeballs of
officer Brown and play with them like marbles. Defendant was jumping up
and down, irate and angry. Defendant yelled, screamed, and refused several orders
to be locked up in his cell. Sergeant Russell VanArsdale instructed the
four corrections officers to move Defendant to a more restrictive cell due to
his threats and refusal to lock up. Thus, Defendants threats precipitated his
removal to a more secure cell unit, which required the officers to return
to his cell to facilitate that removal. Defendants belief, reasonable or not,
that the officers natural response to the earlier confrontation would be violent, does
not negate his initial wrongful action in instigating the situation.
Furthermore, there is nothing in the record to sustain Defendants contention that he
was reasonable in his belief of imminent bodily harm. The requirement that
the threat be
imminent is an acknowledgement that oftentimes combatants make threats of
violence which are never carried out. A person claiming self-defense cannot reasonably
base a belief that the threat is imminent on the actions of another
who has withdrawn from the confrontation.
The reasonableness of a defendants belief that he was entitled to act in self-defense is determined from the standpoint of the defendant at the time the arguably defensive action is taken.The reasonableness of a defendants belief that he was entitled to act in self-defense is determined from that point in time at which the defendant takes arguably defensive action. That belief must be supported by evidence that the alleged victim was imminently prepared to inflict bodily harm on the defendant. When a defendant arms himself or herself with a weapon before an imminent threat exists in a premeditated strategy to retaliate for past violence (rather than to protect against the imminent use of unlawful force), a self-defense instruction is not available. When a defendant arms himself or herself with a weapon before the imminent threat exists, it is generally indicative of a premeditated strategy to retaliate for past violence, not to protect against the imminent use of unlawful force. A self-defense instruction is not available in such circumstances. While the criminal code is willing to excuse the use of force in certain circumstances to protect against certain unlawful activity, it does not countenance and will not sanction premeditated retaliation for past violence.
Defendant armed himself for a premeditated attack on the corrections officers before the
officers arrived. Defendant started using the toilet five minutes before the officers
returned to his cell. Other inmates yelled to warn Defendant that the
officers were coming to his cell. Defendant jumped off of the toilet
and dipped a container into his toilet, filling the container with body waste.
Upon their return to Defendants cell, neither officer Brown, nor any of
the other officers, made any gestures outside of those normally associated with removing
a prisoner from his cell. Officer Brown never raised his hands or
made any threatening actions against Defendant in the moments immediately before Defendant threw
his bodily fluids on the officers. See White, 699 N.E.2d at 635.
Defendants fear and apprehension of danger may have arisen from the previous
incidents that he claimed occurred. However, the circumstances under which he armed
himself and attacked the officers do not reasonably suggest that he was in
any imminent danger of bodily harm.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.