Henson v. State


Attorney for Appellant

Susan K. Carpenter
Public Defender of Indiana
Indianapolis, IN

Gregory L. Lewis
Deputy Public Defender
Indianapolis, IN



Attorneys for Appellee

Steve Carter
Attorney General of Indiana
Indianapolis, IN

Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, IN



      IN THE
      INDIANA SUPREME COURT


EDDIE W. HENSON, JR.,
      Appellant (Defendant below),

      v.

STATE OF INDIANA
      Appellee (Plaintiff below).



)
)     Supreme Court No.
)     77S04-0210-CR-529
)
)
)     Court of Appeals No.
)     77A04-0110-CR-431
)
)



      APPEAL FROM THE  SULLIVAN CIRCUIT COURT
      The Honorable P.J. Pierson, Judge
      Cause No.  77C01-0101-DF-3



                          ON PETITION FOR TRANSFER




                               April 14, 2003

SULLIVAN, Justice.

      Defendant Eddie Henson, Jr., was convicted of battery by  body  waste,
for throwing a container full of feces and urine at a  correctional  officer
while he was incarcerated at the Wabash Valley  Correctional  Facility.   He
appeals the conviction, arguing that he is entitled to a new  trial  because
the judge refused to instruct the jury that it could  find  Defendant  acted
in self-defense.  We find  that  Defendant  was  not  entitled  to  such  an
instruction both because he provoked the  confrontation  and  there  was  no
imminent threat of violence.


                                 Background


      The  evidence  most  favorable  to  the  judgment  indicates  that  on
November 7, 2000, Defendant was an inmate at the Wabash Valley  Correctional
Facility.  Upset over the earlier removal of certain items from his cell  by
correctional officer Terry Zeabart, Defendant cursed and  threatened  bodily
harm to  officers  Zeabart  and  Jason  Brown.   Forty-five  minutes  later,
officer Brown, accompanied by officers Zeabart, Sharon  Sachtjen,  and  Figg
(whose first name is not in the record),  arrived  at  Defendant’s  cell  to
move him to a more restrictive cell block  for  threatening  staff  members.
Defendant dipped a plastic container into his toilet filling  the  container
with fresh urine and feces.  Officer Brown  asked  Defendant  to  place  his
hands into the cuffport to be handcuffed. Instead, Defendant cursed  at  the
officers and called them “Nazis” as he threw the  waste  through  the  door.
The waste splashed on officers Brown, Zeabart, and Sachtjen.

      On January 24, 2001,  the  State  charged  Defendant  with  three  (3)
counts of Battery by Body Waste.[1]    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.

                                 Discussion

      Defendant asserts that the trial court erred in refusing  to  read  to
the jury his tendered  instruction  on  self-defense.   The  tendered  self-
defense instruction, modeled after Indiana Pattern Jury  Instruction  10.03,
read

      The defense of self-defense is defined in part by law as follows:


      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 person’s 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  person’s  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  Defendant’s  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 act.  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.”  (Appellee’s 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 Defendant’s  belief  came  from
Defendant’s 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  Defendant’s  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, “I’ll  be  back  to  beat  you  into  the
pavement.”  Later, as the four  officers  began  walking  toward  his  cell,
Defendant heard other inmates yelling, “They’re  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.

      Defendant’s testimony notwithstanding, the record indicates  that  his
actions were not without fault.  The initial confrontation  that  gave  rise
to Defendant’s 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,  Defendant’s  threats
precipitated his removal to a more secure  cell  unit,  which  required  the
officers to return to his cell  to  facilitate  that  removal.   Defendant’s
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  Defendant’s
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 defendant’s 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
defendant’s  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
Defendant’s 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.  Defendant’s 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.


                                 Conclusion


      Having previously granted transfer pursuant to Indiana Appellate  Rule
58(A), thereby vacating the opinion of the Court of Appeals, we  now  affirm
the judgment of the trial court.

      SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] See Ind. Code § 35-42-2-6(c) (“A person who knowingly or intentionally
in a rude, insolent, or angry manner places blood or another body fluid or
waste on a law enforcement officer or corrections officer identified as
such and while engaged in the performance of official duties . . . commits
battery by body waste, a Class D felony.”)