2015 #22 Self Defense Weekly Law Report PDF

Law of Self Defense: Weekly Law Report
2015 #22 (May 18-22, 2015)

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2015 www.lawofselfdefense.com
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2015 #22 (May 18-22, 2015)
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Frequently Asked Questions

Q:
What is the Law of Self Defense: Law Report Weekly?
A:
Each week Law of Self Defense staff review self-defense court decisions from around the country. Those
we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report.
Q:
Do you recount each of the cases in their entirety?
A:
No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we
only summarize the portions of the cases that directly involve issues of self-defense law. We also strip out
much of the introductory commentary of the case, for purposes of efficiency. What we do include are the
case citation, a list of the key self-defense law issues covered in that case, the date of the decision, and the
text of the decision that discusses the specific self-defense laws of interest.
The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.
Q:
What if I want to read the entire case?
A:
Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact,
strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best
way to understand the fullest context of the courts decisions.
Q:
How are the cases here organized, and how can I quickly know what issues are addressed in each?
A:
The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of
Contents and then by individual case.
Q:
Having access to these cases is great, but I still find a lot of the legal terminology and principles of
self-defense law confusing. Whats a good resource to really understand the law of self-defense?
A:
For almost two decades Law of Self Defense has been providing non-lawyers as well as police officers,
defense attorneys, prosecutors, and judges with world-class instruction on self-defense law. We encourage
you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available from Amazon
in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level. You may also
consider one of our state-specific live Law of Self Defense Seminars held all over the country or statespecific online training classes. And, of course, theres always the Law of Self Defense Blog.
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2015 #22 (May 18-22, 2015)
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Table of Contents
CALIFORNIA
Page
People v. Torres, 2015 Cal. App. Unpub. LEXIS 3462 (CA Ct. App. 2015)
Key issues:
Avoidance, no duty to retreat, may stand-your-ground under CA law;
Avoidance, right to pursue attacker; Reasonableness, objective;
Reasonableness, prior threats by attacker.
Date:
May 19, 2015
FLORIDA
Mohler v. State, 2015 Fla. App. LEXIS 7746 (FL Ct. App. 2015)
Key issues:
Self-defense; defense of others; attackers reputation for violence.
Date:
May 22, 2015
Cruz v. State, 2015 Fla. App. LEXIS 7645 (FL Ct. App. 2015)
Key issues:
Burden of production is on the defendant; burden of persuasion is
on the State, beyond a reasonable doubt; Incriminating statements
by defender; Stand-Your-Ground does not conflict with duty of first
aggressor to retreat in good faith.
Date:
May 20, 2015
11
GEORGIA
Pryor v. State, 2015 Ga. App. LEXIS 306 (GA Ct. App. 2015)
Key Issues:
.48 caliber semi-automatic pistol (yes, forty-eight caliber); Law enforcement
quickly identifies that people who were shot (legally speaking, the victims of
the use of force) were in fact the unlawful attackers, and the people who did
the shooting were the lawful defenders; in prosecuting victims for their attack,
State argument to jury that victims were harmed only because they were
subject to lawful self-defense by the people they attacked was permissible.d
Date:
May 22, 2015
17
INDIANA
Bond v. State, 2015 Ind. App. Unpub. LEXIS 570 (IN Ct. App. 2015)
Key issues:
Innocence, initial aggressor; Innocence; regaining innocence by good faith
withdrawal; Burden of production on defendant to show was where he had a
right to be; Burden of production on defendant to show he acted without fault;
Burden of production on defendant to show he had reasonable fear of death or
serious bodily harm. Burden of persuasion on State, beyond a reasonable
doubt.
Date:
May 22, 2015
20
MASSACHUSETTS
Commonwealth v. Errico, 87 Mass. App. Ct. 1122 (MA Ct. App. 2015)
Key issues:
Reasonableness, fear based upon reputation for violence of attacker;
Avoidance, duty-to-retreat; Reasonable fear of harm.
Date:
May 20, 2015
23
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MICHIGAN
24
People v. Dickerson, 2015 Mich. App. LEXIS 1034 (MI Ct. App. 2015)
Key Issues:
Innocence, initial aggressor; Innocence, regaining innocence by good
faith withdrawal;
Date:
May 19, 2015
MINNESOTA
State v. Siltman, 2015 Minn. App. Unpub. LEXIS 468 (MN Ct. App. 2015)
Key Issues:
Innocence, absence of aggression or provocation; Reasonable subjective
belief in imminent danger of death or great bodily harm; Reasonable objective
belief in imminent danger of death or great bodily harm; Duty to retreat;
Innocence, regaining innocence by withdrawal; Burden of production on
defendant; Burden of persuasion on State, beyond a reasonable doubt.
Date:
May 18, 2015
27
MISSISSIPPI
Clayton v. State, 2015 Miss. App. LEXIS 273 (MS Ct. App. 2015)
Key Issues:
Weathersby rule: if defendant only (surviving) witnesses to homicide and his
version is both reasonable and consistent with innocence, and not controverted
by physical evidence, no reasonable juror could find guilt beyond a reasonable
doubt, and defendant is entitled to a directed verdict of not guilty.
Date:
30
May 19, 2015
TEXAS
McCoy v. State, 2015 Tex. App. LEXIS 5202 (TX Ct. App. 2015)
Key issues:
Reasonableness, reasonable belief force was necessary to protect against
unlawful use or attempted use of force; Fist not proportional response to firm
handshake and sarcastic remark.
Date:
May 21, 2015, Opinion Filed
35
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2015 #22 (May 18-22, 2015)
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CALIFORNIA
People v. Torres, 2015 Cal. App. Unpub. LEXIS 3462 (CA Ct. App. 2015)
Key issues:
Avoidance, no duty to retreat, may stand-your-ground under CA law; Avoidance, right to pursue
attacker; Reasonableness, objective; Reasonableness, prior threats by attacker.
Date:
May 19, 2015
Decision:
more easily have gained safety by flight or by
[...]
withdrawing from the scene."
Jurors were instructed on self-defense, defense of
During closing argument defense counsel argued that
another, and unreasonable self-defense. Jurors were
defendant was at the restaurant with his son and
also instructed as follows: "It is lawful for a person
niece when "those group of individuals engaged in a
who is being assaulted to defend himself from attack
fight and used bottles, chairs, they hit people in the
if, as a reasonable person, he has grounds, for
head. There was blood everywhere." Counsel
believing and does believe that bodily injury is about
continued: "Those are all the circumstances you have
to be inflicted upon him. In doing so, that person may
to take into account when you are thinking about what
use all force and means which he believes to be
Mr. Torres was going through, outside, when Antonio
reasonably necessary and which would appear to a
took that running start and hit him so hard that his
reasonable person, in the same or similar
face crunched and that he thinks he knocked him out
circumstances, to be necessary to prevent the injury
for a minute, and Victor runs by and kicks him."
which appears to be imminent." A similar instruction
Counsel argued that defendant was afraid of an
was given with respect to defense of another.
imminent attack that would cause him death or great

bodily injury.
Jurors were instructed as follows that an assailed

person need not retreat: "A person threatened with an
Defense counsel emphasized that no direct evidence
attack that justifies the exercise of the right of self-
was introduced to show defendant's mental state.
defense need not retreat. In the exercise of his right
Counsel argued the jury instruction on circumstantial
of self-defense a person may stand his ground and
evidence "tells you that if there are two reasonable
defend himself by the use of all force and means
interpretations, one which points to guilt and the other
which would appear to be necessary to a reasonable
to innocence, you must . . . adopt that which points to
person in a similar situation and with similar
innocence and reject that interpretation which points
knowledge; and a person may pursue his assailant
to guilt."
until he has secured himself from danger if that

course likewise appears reasonably necessary. This
Defendant was convicted of first degree murder and
law applies even though the assailed person might

two counts of premeditated attempted murder.
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2015 #22 (May 18-22, 2015)
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Firearm enhancements ( 12022.53, subds. (b), (c) &
"If you find that the defendant knew that Thomas
(d)) were found true with respect to all counts, and a
Rodriguez, Ruben Saucedo, and Victor Saucedo
great bodily injury enhancement ( 12022.7, subd.
had threatened or harmed others in the past, you
(a)) was found true with respect to both attempted
may consider that information in deciding whether
murders. Defendant was sentenced to a total term of
the defendant's conduct and beliefs were
100 years to life.
reasonable.
"Someone who has been threatened or harmed
DISCUSSION
by a person in the past is justified in acting more

quickly or taking greater self-defense measures
For reasons we shall explain, we reject defendant's
against that person.
arguments that the court prejudicially erred in

instructing jurors.
"If you find that the defendant was assaulted by

someone else that he reasonably associated with
1. No Error in Rejecting Defendant's Requested
Thomas Rodriguez, Ruben Saucedo, and Victor
Special Instruction
Saucedo, you may consider that assault in

deciding whether the defendant was justified in
The court denied defendant's request to instruct jurors
acting in self-defense or defense of another.
with the following special instruction:

"A defendant is not required to retreat. He is
"When deciding whether the defendant's beliefs
entitled to stand his ground and defend himself
were reasonable, consider all the circumstances
and, if reasonably necessary, to pursue an
as they were known to and appeared to the
assailant until the danger has passed. This is so
defendant and consider what a reasonable
even if safety could have been achieved by
person in a similar situation with similar
retreating.
knowledge would have believed. If the

defendant's beliefs were reasonable, the danger
"The People have the burden of proving beyond a
does not need to have actually existed.
reasonable doubt that the defendant did not act in

lawful self-defense or defense of another. If the
"The defendant's belief that he or someone else
People have not met this burden, you must find
was threatened may be reasonable even if he
the defendant not guilty." (Italics added.)
relied on information that was not true. However,

the defendant must actually and reasonably have
Many of the principles in defendant's proposed
believed that the information was true.
instruction were subsumed by other instructions, and

defendant does not argue otherwise. Instead he
"If you find that Victor Saucedo threatened or
contends that the italicized portion on antecedent
harmed the defendant or others in the past, you
threats should have been given. According to
may consider that information in deciding whether
defendant, the proposed instruction informed jurors
the defendant's conduct and beliefs were
that "Antonio, Ruben, Thomas, and Victor's prior
reasonable.
threats to or assaults on appellant would justify
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2015 #22 (May 18-22, 2015)
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appellant, when reacting to assault by them to act
instruction on self-defense covered the conduct that
more quickly."
occurred immediately prior to the shootings, and

defendant does not show any further instruction was
Prior threats are relevant to interpreting whether a
warranted. In contrast to People v. Moore (1954) 43
defendant acted in self-defense. (People v. Minifie
Cal.2d 517, 528, in which there was evidence that
(1996) 13 Cal.4th 1055, 1069.) They may "illuminate
defendant had received prior threats, here there was
and reflect on the reasonableness of defendant's
no similar evidence.
perception of both the imminence of danger and the

need to resist with the degree of force applied.
Defendant's reliance on People v. Mathews (1994) 25
[Citation.] They may also justify the defendant 'in
Cal.App.4th 89 is misplaced. In that case the
acting more quickly and taking harsher measures for
defendant was convicted of exhibiting a firearm in the
her own protection . . . .'" (People v. Humphrey (1996)
presence of a peace officer. (Id. at p. 93.) The court
13 Cal.4th 1073, 1094.) For example, an instruction
held that the defendant should have been "held to the
on antecedent threats was warranted when the victim
standard of a reasonable person with a similar
had threatened the defendant on numerous
physical disability in deciding whether he reasonably
occasions prior to the day the defendant shot the
should have known that he was in the presence of a
victim. (People v. Pena (1984) 151 Cal.App.3d 462,
peace officer." (Ibid.) The case does not concern
470, 471-475; see also People v. Spencer (1996) 51
antecedent threats and does not support defendant's
Cal.App.4th 1208, 1220.)
argument that his instruction on antecedent threats

was warranted in this case. The trial court properly
Here, no evidence supported the antecedent threat
concluded that no evidence supported an instruction
instruction as there was no evidence of an antecedent
on antecedent threats because there was no
threat. Although the victims may have challenged or
evidence any victim threatened defendant on a prior
assaulted defendant immediately prior to the
occasion.
shootings, they did not do so on a prior occasion. The

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2015 #22 (May 18-22, 2015)
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FLORIDA
Mohler v. State, 2015 Fla. App. LEXIS 7746 (FL Ct. App. 2015)
Key issues:
Self-defense; defense of others; attackers reputation for violence.
Date:
May 22, 2015
Decision:
testified that they confronted Swonger, telling him to
[...]
leave, and that Swonger started the fight by throwing

a punch at Mohler. Swonger and Mohler entered into
Stephen Mohler appeals his judgment and sentence
a struggle and Mohler, in order to protect himself and
for felony battery. Because the trial court erred in
Smith, placed Swonger in a frontal headlock. Once
excluding evidence of the victim's prior specific acts of
Swonger stopped resisting, Mohler released him from
violence, we reverse and remand for a new trial. As to
the grapple and Swonger fell to the concrete injuring
the remaining issues, we affirm without comment.
his head. The State did not call Swonger to testify at

trial.
The State charged Mohler with aggravated battery

causing great bodily harm. See 784.045, Fla. Stat
The trial court excluded evidence of Swonger's
(2012). The charge arose from an altercation between
reputation for violence and any past acts of violence,
Mohler and Blake Swonger at the apartment complex
finding that the evidence was irrelevant because
where Mohler resided with his girlfriend, Erika Smith.
Mohler claimed that Swonger's injuries were not
Swonger was not a resident of the apartment complex
inflicted intentionally. Swonger had been in an
but had been loitering around the complex that day.
altercation earlier that day and Mohler knew of
The maintenance supervisor, Dave Lavere, had
Swonger's reputation and prior altercation. The court's
already told Swonger to leave the premises. Mohler
ruling excluded the testimony of Frank Cooley, who
and Smith asked Swonger to leave, Swonger refused,
would have testified that Swonger attacked and
and the disagreement eventually became physical.
punched him earlier the same evening. Additionally,
Some witnesses testified that they saw Swonger face
the maintenance supervisor, Dave Lavere, was
down with Mohler thrusting Swonger's head into the
instructed not to discuss Swonger's earlier assault on
sidewalk, but others did not observe these details.
Cooley. Ultimately, the jury found Mohler guilty of
Swonger suffered a laceration above his eye and
felony battery as a lesser-included offense.
multiple fractures to his face.

On appeal, Mohler argues that because he raised the
Mohler claimed he acted in self-defense. Smith
issue of self-defense, the trial court erred in excluding
testified that she wanted Swonger to leave the
evidence of Swonger's reputation for violence and
premises because he was interested in a romantic
incidents of Swonger's past violent conduct.
relationship with her daughter. Both Mohler and Smith

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We review a trial court's evidentiary rulings for an
the trial court erroneously excluded evidence of
abuse of discretion. Masaka v. State, 4 So. 3d 1274,
Swonger's specific acts of violence. Mohler sought to
1279 (Fla. 2d DCA 2009). "[W]e may find that a trial
introduce evidence that Swonger instigated another
court has abused its discretion when 'its ruling is
fight earlier that day through the testimony of Frank
based on an erroneous view of the law or on a clearly
Cooley and Dave Lavere. Smith was also prepared to
erroneous assessment of the evidence.'" Id. (quoting
testify that she informed Mohler of the earlier fight.
McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007)).
This evidence would have supported Mohler's self-
Evidence of the victim's reputation and specific acts of
defense claim by showing that Mohler's apprehension
violence are admissible for different purposes when a
of Swonger was reasonable. This error was
defendant raises self-defense. See Antoine v. State,
prejudicial because it excluded competent evidence
138 So. 3d 1064, 1075 (Fla. 4th DCA 2014).
of Mohler's sole defense.
Reputation evidence of the victim is admissible as

circumstantial evidence to prove that the victim acted
Citing to Pintado v. State, 970 So. 2d 857, 860 (Fla.
consistently with his or her reputation for violence.
3d DCA 2007), the State argues that because
See id. at 1075. However, specific acts of violence, if
Mohler's testimony was that the victim's injury was an
known by the defendant, are admissible to prove that
accident, evidence of the victim's prior acts of
the accused was reasonably apprehensive of the
violence was irrelevant. The State's reliance on
victim and that the defensive measures of the
Pintado is misplaced. In that case, it was alleged that
accused were reasonable. See id. at 1075-76.
the defendant stabbed his girlfriend with a knife. Id. at

858. The defendant in that case claimed that he was
When a defendant's sole defense is self-defense, it
first stabbed by the victim and when he pushed her
may be prejudicial error to exclude competent
out of fear, she fell on her own knife. Id. at 861 n.2
evidence supporting that defense. See Hughes v.
(Shepherd, J., dissenting). The defendant sought to
State, 36 So. 3d 816, 817 (Fla. 1st DCA 2010)
introduce evidence of the victim's history of hitting the
("Given that Appellant's entire case rested on the
defendant. Id. at 860. The court found no abuse of
theory of self-defense, we are unable to say that the
discretion in the exclusion of the evidence because it
error in excluding the testimony regarding his
was not relevant to the defendant's claim that the
knowledge of his girlfriend's prior acts of violence had
victim accidentally fell on her own knife. Id. In so
no effect on the jury's verdict despite the fact that the
ruling, the majority seemed to have found that the
jury heard testimony about some of the acts."); Smith
defendant's theory did not constitute self-defense.
v. State, 606 So. 2d 641, 643-44 (Fla. 1st DCA 1992)
See id. at 860 ("The defendant did not allege that he
("Considering the nature of the evidence in this case,
stabbed the victim in self-defense. Instead, he
especially the conflicts between the theories offered
claimed that he did not stab her at all--that she fell on
by the two sides and the fact that the erroneously
her own knife and the injury was accidentally
excluded evidence went to appellant's only defense,
inflicted."). However, the dissent found this to be a
the error must be considered harmful.").
valid self-defense claim. Id. at 861 (Shepherd, J.,

dissenting).
While Mohler has failed to identify what reputation

evidence was erroneously excluded, we agree that
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In either event, Pintado is distinguishable from this
testified that the injury was unintentional, there was
case. First, in Pintado, the victim's history of hitting
no dispute that Mohler and Swonger were engaged in
the defendant was sought to be admitted for
an altercation that was more than the solitary push at
impeachment purposes. See id. at 860 ("[I]t is clear
issue in Pintado.
from defense counsel's proffer that the defense did

not intend to use this information for a permissible
Because the trial court erred in excluding evidence of
purpose. Counsel sought to attack the victim's
Swonger's prior specific acts of violence and the error
character by presenting evidence that she lied in her
was not harmless, we reverse and remand for a new
deposition when she testified that she had never hit
trial.
the defendant in the past."). Unlike Pintado, there is

no question in this case that Mohler's theory of
Reversed and remanded for a new trial.
defense was self-defense and that Mohler attempted

to admit evidence of the victim's specific acts of
NORTHCUTT and LUCAS, JJ., Concur.
violence in support of this claim. Although Mohler

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2015 #22 (May 18-22, 2015)
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FLORIDA
Cruz v. State, 2015 Fla. App. LEXIS 7645 (FL Ct. App. 2015)
BACKGROUND: We noted in an earlier update (Weekly Law Report 2015 #21) that Floridas 1st
District Court of Appeals seemed confused about how to reconcile Floridas Stand-Your-Ground no
legal duty to retreat provisions and the states requirement that an initial aggressor cannot justify the
use of force in self-defense unless he had attempted to retreat. This strikes us as a silly conundrum-and it apparently it seems that way to Floridas 4th District Court of Appeals, as well, as they discuss
below.
Key issues:
Burden of production is on the defendant; burden of persuasion is on the State,

beyond a reasonable doubt; Incriminating statements by defender; Stand-YourGround does not conflict with duty of first aggressor to retreat in good faith.
Date:
May 20, 2015
Discussion:
that were not beneficial to the defense.
Appellant claimed self-defense,
Appellant gave inconsistent statements
maintaining that he defended himself
regarding key details in the case. He also
against a fierce attack by Carlitos, Sosa,
made incriminating statements that
and Rubi with their fists, bottles, and
undermined his self-defense claim.
other heavy objects. Appellant claimed

that Rubi started the fight. Appellant said
that the fight was "three to one" and that
[...]
the three other men smashed his head

against a brick wall. Appellant's blood
"While the defendant may have the
was found on the brick wall, and a CSI
burden of going forward with evidence of
officer testified that the blood pattern was
self-defense, the burden of proving guilt
an impact pattern.
beyond a reasonable doubt never shifts

from the State, and this standard broadly
Most of the facts supporting appellant's
includes the requirement that the State
self-defense claim were elicited in the
prove that the defendant did not act in
state's case-in-chief, when the state
self-defense beyond a reasonable doubt."
introduced appellant's statement to the
Brown v. State, 454 So. 2d 596, 598 (Fla.
police and his pre-trial Stand Your
5th DCA 1984).
Ground testimony. There were portions of

appellant's pre-trial statements, however,
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2015 #22 (May 18-22, 2015)
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When the state's evidence is legally
(Fla. 3d DCA 1980) (reversing
insufficient to rebut a prima facie case
manslaughter conviction where the state
establishing self-defense, the trial court
"presented no evidence to rebut the
must enter a judgment of acquittal. See
defendant's direct testimony that he acted
Fowler v. State, 921 So. 2d 708, 711-12
in self defense nor was it able to diminish
(Fla. 2d DCA 2006) (the state's evidence
his testimony on cross-examination"; the
failed to rebut the defendant's testimony
defendant testified that he drew his
that the victim pulled a gun on him to rob
weapon and accidentally fired at the
him, and that he grabbed the gun and
victim after the victim threatened to shoot
shot the victim in self-defense; no
him "while apparently reaching in his
eyewitnesses saw the shooting or the
pocket for a weapon").
events preceding it, and the defendant's

panicked actions after the shooting--
A defendant's inconsistent statements
including hiding the gun--did not rebut his
can, however, "constitute grounds upon
claim of self-defense); Sneed v. State,
which a trier of fact may reject the
580 So. 2d 169, 170-71 (Fla. 4th DCA
defendant's reasonable hypothesis of
1991) (the state failed to rebut the
innocence." Carranza v. State, 985 So.
defendant's testimony that he shot the
2d 1199, 1203 (Fla. 4th DCA 2008). Thus,
victim in self-defense during a struggle in
a motion for judgment of acquittal should
which "the victim carried himself as if
be denied where a jury could reasonably
holding a knife and rushed toward him
infer guilt and reject the defendant's
grabbing the rifle"; the state's case "not
explanation of self-defense, either
only failed to rebut appellant's allegation
because the defendant gave false,
of self-defense, but corroborated a
inconsistent, or incriminating statements,
majority of appellant's testimony"); Fowler
or because a common sense view of the
v. State, 492 So. 2d 1344, 1349-52 (Fla.
circumstantial evidence would allow the
1st DCA 1986) (reversing murder
jury to reject the defendant's story as
conviction where the defendant's
unbelievable. See Romero v. State, 901
hypothesis that "the shooting was purely
So. 2d 260, 265-66 (Fla. 4th DCA 2005)
accidental and in self-defense" had not
(holding that the State presented
been overcome; the defendant testified
sufficient evidence to rebut the
that he shot the victim with the victim's
defendant's hypothesis that he shot and
gun during a struggle that took place after
killed only one of the victims, and that he
the victim told the defendant he was
did so in self-defense after watching that
going to have to "play the role of a
victim shoot and kill the other victim; the
woman," and the physical evidence--
defendant admitted that he shot one of
including the path of the bullet--
the victims and that "he did not have to
corroborated the defendant's testimony);
do so," there were inconsistencies in
Diaz v. State, 387 So. 2d 978, 979-80
defendant's versions of events over time,
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2015 #22 (May 18-22, 2015)
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and the defendant left the scene, hid the
gun, and lied to the police); Hampton v.
The present case is distinguishable from
State, 549 So. 2d 1059, 1060-61 (Fla. 4th
the cases relied upon by appellant. In
DCA 1989) (holding that "there was
those cases, the prosecution failed to
competent evidence from which the jury
rebut a claim of self-defense. Here, by
could reasonably infer guilt and reject the
contrast, appellant's own statements--
appellant's explanation" of how the
both in his police interview and his Stand
shooting of his girlfriend occurred, where
Your Ground testimony--often
the defendant claimed that his girlfriend
undermined his self-defense claim.
initially pulled out the gun and that it fired
Appellant admitted to the detective that
in a subsequent struggle, but the
he armed himself with a knife after the
defendant gave differing explanations in
initial fight was over, and that he was
the course of the investigation, and "also
furious at the time of the stabbings. In his
made several statements indicating a
Stand Your Ground testimony, appellant
lack of remorse, evidencing feelings of
claimed that he did not remember
hostility toward the victim, and that he
stabbing Carlitos, and seemingly
expected to be charged with the
admitted that he did not stab Carlitos in
shooting").
self-defense: "I never stated that I

stabbed him to defend myself."
In this case, there was competent

evidence from which the jury could
The jury could have reasonably found
reasonably infer guilt and reject
that the threat to appellant was over
appellant's explanation of self-defense.
when he armed himself with the knife,
Viewed in the light most favorable to the
and that appellant's use of deadly force
state, the jury could have reasonably
was not "necessary to prevent imminent
found that appellant did not act in self-
death or great bodily harm." Sosa's
defense when he stabbed the victims. By
testimony concerning the events leading
his own admission, appellant was drunk
up to the stabbings, coupled with
on the night of the fight. And Sosa's
appellant's own incriminating statements
testimony, if believed, would establish
and inconsistent explanations, provided
that appellant was the initial aggressor.
sufficient evidence to create a jury
Appellant had gotten on top of Carlitos
question on the issue of whether
and was choking him, which prompted
appellant stabbed the victims in self-
the initial fight. Further, while Sosa did not
defense. The trial court properly denied
witness the actual stabbings, he did
the motion for judgment of acquittal.
witness the events leading up to the

stabbings. He testified that after the initial
[...]
fight was over, appellant got a knife and

threatened to kill him.
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2015 #22 (May 18-22, 2015)
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Jury Instructions on the Justifiable
(a) The force asserted toward
Use of Deadly Force
the defendant was so great

that he reasonably believed
The trial court gave the standard jury
that he was in imminent
instructions on the justifiable use of
danger of death or great
deadly force as to both counts. For
bodily harm and had
example, as to the manslaughter count,
exhausted every reasonable
the relevant portions of the instruction on
means to escape the danger,
the justifiable use of deadly force are as
other than using deadly force
follows:
on Carlos Gonzalez. [Or]5
An issue in this case is whether the
(b) In good faith, the
defendant acted in self-defense. It is
defendant withdrew from
a defense to the offense with which
physical contact with Carlos
Anthony Cruz is charged if the death
Gonzalez and indicated
of Carlos Gonzalez resulted from the
clearly to Carlos Gonzalez
justifiable use of deadly force.
that he wanted to withdraw

and stop the use of deadly
"Deadly Force" means force likely
force, but Carlos Gonzalez
to cause death or great bodily
continued or resumed the
harm.
use of force.
The use of deadly force is
In deciding whether defendant
justifiable only if the defendant
was justified in the use of deadly
reasonably believes that the
force you must judge him by the
force is necessary to prevent
circumstances by which he was
imminent death or great bodily
surrounded at the time the force
harm to himself or another while
was used. . . .
resisting any attempt to commit

Aggravated Battery upon him[.]
If the defendant was not engaged

in any unlawful activity and was
However, the use of deadly force
attacked in any place where he
is not justifiable if you find:
had a right to be, he had no duty

to retreat and had the right to
Anthony Cruz initially
stand his ground and meet force
provoked the use of force
with force, including deadly force,
against himself, unless:
if he reasonably believed that it

was necessary to do so to
prevent death or great bodily
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
harm to himself or another, or to
stated: "In effect, the jury instruction here
prevent the commission of a
provided that Floyd did not have to
forcible felony.
retreat . . . and did have a duty to try to

retreat before using deadly force if in fear
(emphasis added).
of death or great bodily harm." Id. The

court thus found fundamental error,
On appeal, appellant argues that under
reasoning that "[t]he conflicting jury
Floyd v. State, 151 So. 3d 452 (Fla. 1st
instructions negated each other in their
DCA 2014), rev. granted 2014 Fla.
effect, and therefore negated their
LEXIS 3793, 2014 WL 7251662 (Fla.
possible application to Floyd's only
Dec. 16, 2014), the jury instruction on the
defense." Id.
justifiable use of deadly force is

fundamental error because it provides
Although not stated in the Floyd opinion,
conflicting instructions on the duty to
the First District issued an order certifying
retreat.
the following question to the Florida

Supreme Court as one of great public
[...]
importance: "DOES FLORIDA

STANDARD JURY INSTRUCTION
In Floyd, a case where the defendant's
(CRIMINAL) 3.6(F) PROVIDE
sole defense at trial was that his use of
CONFLICTING INSTRUCTIONS AS TO
deadly force was justified, the First
THE DUTY TO RETREAT?" The Florida
District held that the standard instruction
Supreme Court has granted review. See
on the justifiable use of deadly force
State v. Floyd, 2014 Fla. LEXIS 3793,
constituted fundamental error because it
2014 WL 7251662 (Fla. Dec. 16, 2014).
provided conflicting instructions on the

duty to retreat and negated the
[...]
defendant's only defense. 151 So. 3d at

453-54. The court found that the
The standard instruction on the justifiable
instruction was conflicting because the
use of deadly force, given both in Floyd
Stand Your Ground portion of the
and in this case, is not internally
instruction stated that the defendant had
inconsistent. The Stand Your Ground
no duty to retreat if he was not engaged
portion of the instruction stands for the
in any unlawful activity, but the
general proposition that a defendant who
provocation portion of the instruction
is not engaged in any unlawful activity
stated that a defendant who initially
and is attacked in a place where he has
provoked the use of force may use
the right to be has no duty to retreat,
deadly force "only if the defendant has
while the "aggressor" part of the
first exhausted every means of escape."
instruction provides an exception to this
Id. at 454 (emphasis removed). The court
general proposition for a defendant who
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
provokes the use of force against himself
(2008) ("The justification described in the
(without withdrawing from physical
preceding sections of this chapter is not
contact in good faith). Both parts of the
available to a person who: . . . (2) Initially
instruction are a correct statement of the
provokes the use of force against himself
law. Indeed, the relevant language of the
or herself, . . . .").
instruction comes directly from the

applicable provisions of Chapter 776. See
Because the standard instruction on the
776.013(3), Fla. Stat. (2008) (stating
justifiable use of deadly force is a correct
that "[a] person who is not engaged in an
statement of the law, appellant has not
unlawful activity and who is attacked in
shown error in the jury instructions, let
any other place where he or she has a
alone fundamental error. We affirm on
right to be has no duty to retreat and has
this issue and certify conflict with Floyd.
the right to stand his or her ground and

meet force with force, including deadly
[...]
force . . . ."); 776.041(2), Fla. Stat.
__________________________________________________________________________________________
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2015 #22 (May 18-22, 2015)
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GEORGIA
Pryor v. State, 2015 Ga. App. LEXIS 306 (GA Ct. App. 2015)
Key Issues:
.48 caliber semi-automatic pistol (yes, forty-eight caliber); Law enforcement quickly identifies that
people who were shot (legally speaking, the victims of the use of force) were in fact the unlawful
attackers, and the people who did the shooting were the lawful defenders; in prosecuting
victims for their attack, State argument to jury that victims were harmed only because they
were subject to lawful self-defense by the people they attacked was permissible.
Date:
May 22, 2015
Decision:
So viewed, the evidence shows that as three men
A jury convicted James Pryor of attempted armed
were preparing to leave the parking lot of a club that
robbery and possession of a firearm during the
had just closed at 4:00 am, Pryor, Derrick Brown, and
commission of a crime, and the trial court denied his
Reginald Frails approached their car, with Pryor
motion for new trial. On appeal, he argues that he
"leading the pack." The first victim was already in the
was denied his constitutional right to counsel because
back seat and the other two victims were standing on
his trial counsel had an actual conflict of interest and
the driver's side of the car. Pryor pulled out a handgun
that his counsel was ineffective for failing to object to
and asked the second victim to empty his pockets,
certain testimony and evidence. For the reasons that
and after the second victim protested that he had
follow, we affirm.
nothing, Pryor stuck his head into the car through the
open driver's door and told the first victim inside to
1. "On appeal from a criminal conviction, we view the
empty his pockets. Pryor pointed his gun at the first
evidence in the light most favorable to the verdict,
victim inside the car, but when Pryor turned to look at
with the defendant no longer enjoying a presumption
Brown and Frails pushing up against the third victim
of innocence." (Citation omitted.) Reese v. State, 270
outside the car, the first victim picked up his .48
Ga. App. 522, 523 (607 SE2d 165) (2004). We neither
caliber semi-automatic handgun from the floorboard
weigh the evidence nor judge the credibility of
and began firing at Pryor. Pryor dropped his weapon,
witnesses, but determine only whether, after viewing
a .38 caliber revolver, at the feet of the second victim,
the evidence in the light most favorable to the
who picked it up and began firing at all three robbers,
prosecution, a "rational trier of fact could have found
all of whom were running away when they were hit by
the essential elements of the crime beyond a
either the .38 or the .48 caliber gun. An off-duty
reasonable doubt." Jackson v. Virginia, 443 U. S. 307,
deputy sheriff working security at the club arrived on
319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).
the scene almost immediately, cuffed the victims, and

placed them in separate patrol cars.
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2015 #22 (May 18-22, 2015)
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Emergency medical technicians were called to the
also admitted having said at his plea hearing and
scene and Pryor, Frails, and Brown were taken to the
sentencing that he had walked to the victims' car with
hospital and the three victims were taken to the
Pryor, that Pryor pulled his gun, that Frails and Pryor
station. The lead investigator went to the hospital and
both told the victims to empty their pockets, that Pryor
talked to Brown, who had been shot in the knee and
had leaned into the car, that shots were fired and that
whose responses to questions were "elusive" and
the three defendants ran away.
unclear. Frails, who had been shot in the buttocks,

refused to talk to the investigator and left the hospital
Although Pryor does not challenge the sufficiency of
against medical advice while the investigator went to
the evidence, we find that the evidence as
see if he could talk to Pryor. Pryor had been sedated,
summarized above was sufficient to enable a rational
was unable to respond to the investigator, and
trier of fact to conclude beyond a reasonable doubt
appeared to have been shot in his neck or the top of
that he was guilty of the crimes of which he was
his chest.
convicted. Jackson, 443 U. S. at 319 (III) (B).
The investigator then interviewed the three victims at
[...]
the station. He described them as "calm and

collected" and "very precise." The first victim, who
2. Pryor contends that the trial court erred in failing to
had been seated in the car, had a valid carry permit
find his counsel ineffective for failing to object to the
for the semi-automatic .48 caliber handgun he shot at
investigator's testimony that the victims were acting in
Pryor. The victims' virtually identical statements
self-defense when they shot Pryor and his co-
coupled with evidence from the scene led the police
defendants or for failing to object to the admission of
to re-categorize the three men at the station from
pants gathered at the scene that had bullet holes in
suspects to victims. Frails, who had been clutching
the buttocks. "To prevail on his claim of ineffective
two plastic bags containing 22 grams of cocaine when
assistance of counsel, [Pryor] must show counsel's
he arrived at the emergency room, was subsequently
performance was deficient and that the deficient
arrested at his last known address for possession
performance prejudiced him to the point that a
with intent to distribute. Frails subsequently pled guilty
reasonable probability exists that, but for counsel's
to criminal attempt to commit armed robbery and
errors, the outcome of the trial would have been
possession of cocaine with intent to distribute.
different." (Citation and punctuation omitted.)

Patterson v. State, 327 Ga. App. 695, 697 (3) (761
None of the victims could identify Frails or Brown from
SE2d 101) (2014).
a photographic line-up. The victims were not

presented with a line-up containing Pryor's
a. "It is well established that credibility of a witness is
photograph because the investigator did not have one
a matter for the jury, and a witness's credibility may
available, but two of them identified Pryor at trial as
not be bolstered by the opinion of another witness as
the man with the handgun who attempted to rob
to whether the witness is telling the
them. Frails testified at trial that he did not remember
truth." (Punctuation and footnote omitted.) Strickland
much from that night because he was very drunk but
v. State, 311 Ga. App. 400, 403 (a) (715 SE2d 798)
did remember that Pryor had a .38 revolver. Frails
(2011). But "the testimony at issue must be reviewed
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
in the context in which it was given." Branesky v.
counsel asked the officer who secured the scene to
State, 262 Ga. App. 33, 36 (3) (a) (584 SE2d 669)
identify the victim whom the officer had seen firing a
(2003). And while an officer rarely needs to explain
weapon, and asked whether that man had been "firing
his conduct during the course of an investigation, an
at an individual who was actually running away from
explanation may be admissible if a defendant "at trial
him."
raises questions and concerns about police conduct

in the case." (Citation omitted.) Reeves v. State, 288
(2) Trial counsel's questions about why the victims
Ga. 545, 547 (3) (705 SE2d 159) (2011).
who were initially arrested were not ultimately

charged placed the investigator's conduct in issue
Considered in context, the investigator's testimony
and the investigator's testimony tended to explain his
that after completing the interviews and reviewing the
conduct. See Griffin v. State, 292 Ga. 321, 323 (5)
evidence from the scene, the three men initially taken
(737 SE2d 682) (2013). Because the testimony was
into custody were no longer suspects because "the
admissible, Pryor's trial counsel was not ineffective for
events they described were self-defense defending
failing to object to it.
their selves in a forceable felony" explained the

investigator's conduct in pursuing charges against the
b. Pryor also claims that his trial counsel was
three men who were shot rather than the shooters. As
ineffective for failing to object to the admission of
the State observes, the facts of this case raise
pants gathered from the scene that had bullet holes in
questions about the motivations and conduct of the
the buttocks and .38 bullets in the pocket. The
police, who initially arrested the three men who were
evidence showed that Pryor was shot in the chest or
subsequently cast as victims after the officers arrived
neck, and Pryor argues that the bullet-ridden pants
on the scene to find three men lying on the ground
were not his and should have been excluded from
with bullet wounds.
evidence.
Pryor's trial counsel intimated throughout the trial that
(3) Whether the pants belonged to Pryor or not goes
the men who did the shooting should have been
to the weight of the evidence, not its admissibility, and
charged with crimes, rather than the men who had
an objection would have been futile. Davis v. State,
been shot. For example, he thoroughly cross-
272 Ga. 327, 330 (4) (528 SE2d 800) (2000). As the
examined the second victim, who picked up Pryor's
failure to pursue a futile objection does not amount to
gun and fired at the three robbers, asking whether he
ineffective assistance, Ventura v. State, 284 Ga. 215,
had argued with anyone that night, why he had gotten
218 (4) (663 SE2d 149) (2008), the trial court did not
his companion's firearm out when they arrived at the
err in denying Pryor's motion for new trial on this
car after they left the club, whether he just kept firing
ground.
the gun until it was empty, and whether he had been

arrested initially "after shooting at people and being
[...]
arrested and you said they tried to rob you." Pryor's

__________________________________________________________________________________________
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Page 19 of 37

2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
INDIANA
Bond v. State, 2015 Ind. App. Unpub. LEXIS 570 (IN Ct. App. 2015)
Key issues:
Innocence, initial aggressor; Innocence; regaining innocence by good faith withdrawal; Burden of
production on defendant to show was where he had a right to be; Burden of production on
defendant to show he acted without fault; Burden of production on defendant to show he had
reasonable fear of death or serious bodily harm. Burden of persuasion on State, beyond a
reasonable doubt.
Date:
May 22, 2015
Decision:
night when they get old." State's Ex. 4. The four
Leonard Bond appeals his conviction and sentence
ignored this statement and continued to their table.
for Murder,1 a felony. He argues that the State failed

to present sufficient evidence to rebut his claim of
The group was seated at a window table close to the
self-defense and that his sentence is inappropriate in
entrance. Sometime after they had been seated,
light of the nature of the offense and his character.
Bond and Tranbarger sat down at a booth directly
Finding no error, we affirm.
behind them. Bond again began making comments

about how old the group was. At that point, Wilson
Facts
and Dunbar turned around to ask Bond if he had a

problem with them. Bond stated that he did not, but
At approximately 5:00 am on April 20, 2013, Bond
continued to talk about old people being out at night.
and his girlfriend, Louisa Tranbarger, went to a
The other patrons in the restaurant heard raised
Denny's restaurant in Marion County. Bond had a gun
voices and became uncomfortable, as they knew that
visibly protruding from his right pocket. Several of the
Bond was carrying a gun.
other patrons at Denny's were concerned about the

gun and asked a member of the wait staff if it was
At some point, Bond got up because he was upset
legal for a person to bring a gun into the restaurant.
and went to the bathroom. As he passed Wilson's

table, Bond lifted up his shirt in a way that allowed
Bond and Tranbarger ordered drinks and then walked
others to see the gun he was carrying. When Bond
to the crane machine near the entrance of the
returned, he and Wilson began to argue again, this
Denny's. At approximately 5:30 am, Mario Wilson, his
time more loudly. This made other patrons so nervous
fiance, Karen Dunbar, Annette Smith, and Carl Smith
that they decided to leave.
arrived at the Denny's. When they entered the

restaurant and passed Bond and Tranbarger, Bond
Eventually, Bond stood up and tossed money for his
said "look at [the] old people, what just dragged in at
meal on the table. He then turned around, flipped off
Wilson with his middle finger, and told Wilson they

__________________________________________________________________________________________
Page 20 of 37

2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
could take the fight outside. Wilson ignored this and
Bond pleaded guilty to carrying a handgun without a
continued talking to the group at his table. Bond and
license.
Tranbarger walked outside of the Denny's, but they

did not leave. Instead, Bond began banging on the
Bond's three-day jury trial commenced on September
window next to Wilson's table with his fist and then
15, 2014. At trial, the State presented the testimony of
tapped on it with his gun. Bond motioned to Wilson
Dunbar, Carl Smith, and Annette Smith, as well as the
that he should come outside.
testimony of three restaurant patrons and a waitress

who were present during the shooting. Bond testified
Tranbarger told Bond they should leave, but Bond
that he shot Wilson in self-defense because Wilson
walked back towards the Denny's. Wilson stood up
kept "coming directly at" him after he told him to stop.
and yelled, "do not let that man back in." Id. Wilson
Tr. p. 290. However, Bond also testified that he was
then walked towards the entrance. Wilson then went
not sure if Wilson was armed and admitted that
outside, and Bond shot him three times. Wilson was
Wilson had not threatened him or physically touched
unarmed.
him before he shot him. Tranbarger also testified that

Wilson had not threatened or touched Bond before
Dunbar and Carl Smith then went outside, where they
Bond shot him and that Wilson was shot almost as
saw Wilson hanging from Bond's arm in an attempt to
soon as he walked out of the door of the restaurant.
stay upright. Dunbar and Carl Smith wrestled Bond to

the ground, where they kept him until the police came
The jury found Bond guilty of murder. On September
and handcuffed him.
17, 2014, the trial court sentenced Bond to three

hundred and sixty-five days for the carrying a
Wilson was transported to the hospital, where he died
handgun without a license conviction. On November
as a result of his gunshot wounds. One bullet had
5, 2014, the trial court sentenced Bond to fifty-eight
fractured his left cheek and lacerated the right carotid
years for the murder conviction. The sentences were
artery, another struck his chin, and a third hit his right
ordered to run concurrently. Bond now appeals.
shoulder and lacerated the right brachial artery. The

autopsy showed that Bond was more than three feet
Discussion and Decision
away from Wilson when he shot him. Any of the three

shots would have been fatal.
I. Sufficiency of the Evidence
On April 22, 2013, the State charged Bond with
Bond first argues that there was insufficient evidence
murder, a felony, and carrying a handgun without a
to support his conviction for murder because the
license, a class A misdemeanor. In addition, the State
State failed to disprove his claim of self-defense.
alleged that Bond's sentence should be enhanced

because he used a firearm in the commission of a
[...]
felony. On June 27, 2013, Bond filed a notice of

affirmative defense, and the jury was given an
Indiana Code section 35-41-3-2 provides that "[a]
instruction on self-defense at trial. On June 4, 2014,
person is justified in using reasonable force against

any other person to protect the person or a third
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
person from what the person reasonably believes to
walked past Wilson and his table and shifted his
be the imminent use of unlawful force." However, a
pants to reveal his gun. Id. p. 70. She also testified
person is not justified in using force if "the person has
that Bond flipped off Wilson with his middle finger and
entered into combat with another person or is the
said they could take the argument outside. Id. at 71.
initial aggressor unless the person withdraws from the
The evidence also showed that, when Wilson did not
encounter and communicates to the other person the
respond to his invitation to come outside, Bond
intent to do so and the other person nevertheless
returned to provoke Wilson by tapping on the window
continues or threatens to continue unlawful action."
next to his booth, first with his hand and then with his
I.C. 35-41-3-2(g)(3). In addition, a defendant who
gun. Tr. p. 73-74. The evidence further showed that
raises a claim of self-defense is required to show
when Wilson still did not respond, Bond moved
three things: (1) he was in a place where he had a
toward the front door of the Denny's. Id. at 24. The
right to be; (2) he acted without fault; and (3) he had a
jury heard testimony that it was at that point that
reasonable fear of death or serious bodily harm. Id.
Wilson yelled "do not let that man back in," and
The State then bears the burden of disproving at least
headed towards the entrance. Id. at 25.
one of these elements beyond a reasonable doubt. Id.

"The State may meet this burden by rebutting the
Furthermore, although Bond argued that he shot
defense directly, by affirmatively showing the person
Wilson because he would not stop coming towards
did not act in self-defense, or by relying upon the
him, both Dunbar and Tranbarger testified that Wilson
sufficiency of its evidence in chief." Id. Whether the
had barely exited the Denny's before he was shot. Id.
State has met its burden is a question of fact. Id.
at 25, 315. It is clear from the above evidence that

Bond had several opportunities to withdraw from any
Bond claims that the State has failed to disprove any
encounter, but chose instead to instigate a
of the above three elements beyond a reasonable
confrontation. See McEwen v. State, 695 N.E.2d 79,
doubt. He claims that the evidence showed he acted
90 (Ind. 1998) (evidence that a defendant was the
in self-defense because the waitress on duty, Shontel
initial aggressor and a willing participant in the
Johnson, testified that Wilson walked out of the
violence can negate a claim of self-defense).
entrance of the Denny's towards Bond.
Therefore, a reasonable jury could determine that

Bond did not act in self-defense. Bond's request that
However, Bond mischaracterizes the evidence.
we reverse his conviction based on Johnson's
Dunbar testified that Bond was provoking Wilson from
testimony is a request for this court to reweigh the
the moment they entered the Denny's, making
evidence and judge the credibility of witnesses, a
comments about "old people" out at night. Tr. p.
request we decline.
19-22. A Denny's patron, Georgette Torres, testified

that after the two men had argued loudly, Bond
[...]
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
MASSACHUSETTS
Commonwealth v. Errico, 87 Mass. App. Ct. 1122 (MA Ct. App. 2015)
Key issues:
Reasonableness, fear based upon reputation for violence of attacker; Avoidance, duty-to-retreat;
Reasonable fear of harm.
Date:
May 20, 2015
Decision:
there can be no basis for introduction even of proper
The defendant in this case was found guilty of assault
Adjutant evidence.
and battery, in violation of G. L. c. 265, 13A(a), and

of assault by means of a dangerous weapon, in
With respect to the assault and battery charge, even
violation of G. L. c. 265, 15B(b). Before us he
assuming there was evidence supporting a self-
argues that he should have been permitted to
defense instruction, something we need not and do
introduce at trial a CORI record -- which indicated that
not decide, Adjutant requires evidence of "specific
the victim had a history of arrests for violent crimes,
acts of prior violent conduct that the victim is
including thirteen counts of assaults and firearm
reasonably alleged to have initiated." Adjutant, 443
violations, but each of which resulted in a nolle
Mass. at 664. To be sure, the prior violent conduct of
prosequi -- or to question the victim about them. See
the victim need not have been something for which he
Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.
or she was convicted. Nonetheless, this CORI record,
2d 1 (2005) (Adjutant).
indicating only that the defendant was repeatedly

arrested and charged, provides no indication with
We conclude there was no Adjutant violation here. To
respect to any of the acts for which the victim was
begin with, with respect to the assault with a
arrested that he was, indeed, the first aggressor. Nor
dangerous weapon charge there was no evidence
does the record indicate what steps, if any, the
that the defendant's "personal safety or life was in
defendant took to obtain more specific information
peril," Commonwealth v. Bastarache, 382 Mass. 86,
about each incident that led to the victim's arrest --
105, 414 N.E.2d 984 (1980), only that prior to the
even assuming evidence that such steps were
crime the victim was banging on the van into which
unsuccessful might be relevant, something we, again,
the defendant was getting. And, even from that
need not and do not decide.
confrontation, there is no evidence that the defendant

could not retreat. With no valid basis of self-defense,
[...]
__________________________________________________________________________________________
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Page 23 of 37

2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
MICHIGAN
People v. Dickerson, 2015 Mich. App. LEXIS 1034 (MI Ct. App. 2015)
Key Issues:
Innocence, initial aggressor; Innocence, regaining innocence by good faith

withdrawal;
Date:
May 19, 2015
Decision:
degree or second-degree murder. A
[...]
cursory view of defense counsel's

opening statement shows that her intent
I. INEFFECTIVE ASSISTANCE OF
was to direct the jury to the mens rea
COUNSEL
requirement to find defendant guilty of a

homicide offense. Defense counsel, it
Defendant first contends that he received
appears, was making it clear to the jury
ineffective assistance of counsel at trial
that there was no question that defendant
due to numerous errors made by his
shot Wiley, but the issue at trial was
defense counsel. We disagree.
whether defendant did so intentionally, or

if he was acting in self-defense. However,
[...]
even if this statement could be construed

as an ambiguous concession that
Fourth, defendant claims that defense
defendant murdered Wiley, any ambiguity
counsel was ineffective for conceding that
was cleared up in defense counsel's
defendant committed a murder at trial. In
closing argument when she was
support of this contention, defendant cites
describing defendant's actions on the
the following portion of defense counsel's
night of the shooting:
opening statement:
[I]n [defendant's] mind at the time the
[This case is] not a who did it. It's
first shot goes off, of course you're
what happened? What was the
gonna [sic] be scared for your life.
degree? What was the thought at the
[Wiley] is much bigger than you.
time? Was it premeditated?
They're struggling. It goes off again.

That, ladies and gentlemen, is not
Defendant claims that these statements
first[-]degree murder.
conceded to the jury that defendant had

committed murder, and the only question
That ladies and gentlemen, I know,
left was to determine whether it was firstsounds bad. But the law of self__________________________________________________________________________________________
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
defense, whether you like it or not,
her) assault] and clearly let the other
applies in this situation. And what
person know that [he / she] wanted to
crime was being committed if I'm
make peace. Then, if the other
retreating?
person kept on fighting or started

fighting again later, the defendant had
I'm retreating. But you're not
the same right to defend [himself /
retreating. You're advancing on me.
herself] as anyone else and could
Said hey, man. Chill out. Cool out.
use force to save [himself / herself]
You know it's not that serious. But it
from immediate physical harm.
turned out to be that serious.

A trial judge is not required to give a jury
Thus, a fair reading of defense counsel's
instruction if the theory or defense is not
comments at trial shows that she was
supported by the evidence. People v
arguing that defendant shot Wiley in self-
Mills, 450 Mich 61, 81; 537 NW2d 909
defense. Furthermore, even if defense
(1995), mod in part on other grounds 450
counsel had conceded that defendant
Mich 1212 (1995). In Michigan, the
had committed a murder, and the only
defense of self-defense is not available
issue left was to determine if it was first-
when a defendant is the initial aggressor
degree or second-degree murder, she still
unless he withdraws from any further
would not have been constitutionally
encounter with the victim and
ineffective. As noted above, it is not
communicates his withdrawal to the
ineffective assistance to concede guilt of
victim. People v Kemp, 202 Mich App
a lesser offense; only a complete
318, 322-323; 508 NW2d 184 (1993),
concession of guilt constitutes ineffective
abrogated on other grounds by statute,
assistance of counsel. Emerson (After
as noted in People v Reese, 491 Mich
Remand), 203 Mich App at 349.
127, 148-149, 151-157 (2012); see also

CJI2d 7.18. Further, the decision whether
Fifth, and finally, defendant claims that
to request certain jury instructions is a
trial counsel was ineffective for failing to
matter of trial strategy. People v Sardy,
request a jury instruction on the issue of
216 Mich App 111, 116; 549 NW2d 23
initial aggressors and withdrawal from
(1996) ("Remaining are defendant's
conflict. CJI2d 7.18 provides:
allegations that he was denied the

effective assistance of counsel because
A person who started an assault on
of counsel's failure to object to
someone else [with deadly force /
prosecutorial misconduct and counsel's
with a dangerous or deadly weapon]
failure to ask for an instruction regarding
cannot claim that [he / she] acted in
lesser included offenses. In both cases,
self-defense unless [he / she]
defendant fails to overcome his burden of
genuinely stopped [fighting / (his /

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2015 #22 (May 18-22, 2015)
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showing that counsel's conduct did not
was the initial aggressor because he sent
constitute sound trial strategy.").
Wiley a threatening text message and

showed up unannounced at Wiley's home
At trial, defendant was the only witness
late at night, armed with a gun, on the
who testified to the events that occurred
same day he sent the message.
during his altercation with Wiley.
Thereafter, defendant and Wiley
Defendant admitted that he had sent a
immediately engaged in a physical
threatening message to Wiley, and that
altercation, during which defendant shot
he arrived at Wiley's home late at night
Wiley. Based upon this testimony from
with a firearm. He claimed that he never
defendant, it is clear that defendant never
intended to kill Wiley that night, and he
"genuinely stopped [his assault] and
had his firearm on him for "other
clearly let the other person know that [he]
reasons." Defendant testified that he
wanted to make peace." CJI2d 7.18.
waited for Wiley to come to the door, and
Thus, at least arguably, the evidence
after a few moments Wiley aggressively
elicited at trial does not support an
approached defendant, trying to fight. At
instruction on defendant's withdrawal
this point, defendant immediately pulled
after being the initial aggressor, Mills, 450
his gun out of his pocket and pointed it at
Mich at 81, and defendant cannot
Wiley. After the two struggled for some
overcome the presumption that defense
time, and the handgun allegedly went off,
counsel's decision not to request the
nearly missing defendant, he became
instruction was a matter of trial strategy,
scared that Wiley was going to take the
Sardy, 216 Mich App at 116.
gun from him, so defendant shot Wiley.

Based on defendant's own testimony, he
[...]
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Page 26 of 37

2015 #22 (May 18-22, 2015)
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MINNESOTA
State v. Siltman, 2015 Minn. App. Unpub. LEXIS 468 (MN Ct. App. 2015)
Key Issues:
Innocence, absence of aggression or provocation; Reasonable subjective belief in

imminent danger of death or great bodily harm; Reasonable objective belief in
imminent danger of death or great bodily harm; Duty to retreat; Innocence, regaining
innocence by withdrawal; Burden of production on defendant; Burden of persuasion
on State, beyond a reasonable doubt.
Date:
May 18, 2015
Decision:
on the history Mankey gave and his
Appellant challenges his conviction of
symptoms of contusions to the head,
third-degree assault, arguing that the
nasal bleeding, and swelling in the nasal
district court [ . . . ] applied the wrong
area, Dr. Harris diagnosed fracture of the
legal standard to his self-defense claim.
bony or cartilaginous area of the nose.
Because [ . . . ] the district court properly

evaluated appellant's self-defense claim,
Siltman was charged with third-degree
we affirm.
assault, in violation of Minn. Stat.

609.02, subd. 7a (defining "substantial
FACTS
bodily harm" as including a fracture of

any bodily member), .223, subd. 1
Appellant Trevir Lee Nakomous Siltman
(defining third-degree assault as requiring
assaulted fellow inmate Shaun Mankey at
infliction of substantial bodily harm)
the Ramsey County Correctional Facility
(2012). Siltman waived his right to a jury
(workhouse). The last punch thrown by
trial and gave notice of the intent to claim
Siltman caused an injury to Mankey's
self-defense. The recording of the
nose. The entire incident was observed
incident was admitted as a trial exhibit,
by correctional officer Brian Sanders and
and Mankey, Officer Sanders, and Dr.
recorded by workhouse security cameras.
Harris testified for the state.
Mankey was taken to the emergency
[...]
room at Regions Hospital where he was

treated by Dr. Carson Harris and
residents working with Dr. Harris. Based
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2015 #22 (May 18-22, 2015)
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2. The record reflects that the district
amended findings of fact, conclusions of
court applied the correct standard to
law, and order, the district court found
Siltman's self-defense claim.
that after Siltman began the fight, Mankey

came toward Siltman, attempting to hit
The elements of self-defense include (1)
him. The district court found that Siltman
absence of aggression or provocation on
"although able to escape, punched
the part of the defendant; (2) the
[Mankey] one more time in his face. He
defendant's actual and honest belief that
connected with [Mankey's] nose." The
he or she was in imminent danger of
district court also found that Siltman
death or great bodily harm; (3) the
"presented no evidence to support [self-
existence of reasonable grounds for the
defense] other than the video tape of the
belief; and (4) the absence of a
incident" and "[t]hat [Siltman] has not met
reasonable possibility of retreat to avoid
his burden of establishing that he acted in
the danger. State v. Johnson, 719 N.W.2d
self-defense." Siltman argues that the
619, 629-30 (Minn. 2006). When, as
district court's findings demonstrate that
here, a defendant admits that he was the
the district court improperly shifted the
initial aggressor, the defendant can
burden of proof of self-defense to
establish a revived self-defense claim by
Siltman, requiring reversal of his
establishing that he (1) declined to carry
conviction and remand for consideration
on the assault, (2) honestly tried to
under the correct legal standard.
escape from it, and (3) clearly and fairly

informed the adversary of his desire for
The state argues that the district court's
peace and an abandonment of the
finding that Siltman failed to meet his
assault. See State v. Carridine, 812 N.W.
"burden" plainly refers to Siltman's
2d 130, 144 (Minn. 2012).
"burden of production." Under the

circumstances of this case, we agree.
A defendant has the burden of production

to come forward with evidence to support
Siltman's argument is, in part, based on
a self-defense claim. State v. Penkaty,
his assertion that if the reference in the
708 N.W.2d 185, 207-08 (Minn. 2006). If
district court's finding to his "burden" was
the defendant meets this burden, the
meant to be a reference to his burden of
burden shifts to the state to disprove one
production, he was entitled to know about
or more of the elements of self-defense
that finding prior to final arguments.
beyond a reasonable doubt. Id.
Siltman supports this argument with

caselaw holding that a defendant is
At trial, Siltman asserted that, although
entitled to a jury instruction on self-
he was the initial aggressor, at the time
defense if he meets his burden of
he threw the punch that injured Mankey,
production such that, in a jury trial, a
he was acting in self-defense. In its
defendant must know whether he has
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
met that burden before final argument in
argument, the state correctly stated the
order to determine if he will be able to
law as it pertains to revival of an
argue self-defense. See Johnson, 719
aggressor's right to self-defense. The
N.W.2d at 629-30. But Siltman cites no
record plainly establishes that Siltman
authority for his proposition that in a
carried on the assault after his initial
bench trial the district court is required to
punch, did not try to escape although
make and announce a finding that the
escape was possible, and never informed
defendant has or has not met the burden
Mankey by word or act that he desired to
of production prior to final arguments.
abandon the assault. Despite the wording
There is no such requirement. And the
of the district court's finding, the record
record does not reflect that Siltman's final
makes it plain that the district court's
argument was affected by lack of such a
reference to Siltman's burden refers to
ruling prior to final arguments. Siltman
the "burden of production," not the
fully argued both self-defense and that
"burden of proof" of self-defense. We
the state had failed to prove substantial
conclude that the finding does not
bodily harm.
demonstrate that the district court

improperly shifted the ultimate burden of
The state's final argument focused
proof to Siltman.
extensively on Siltman's failure to meet

his burden of production to support his
[...]
self-defense claim and in its rebuttal

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Page 29 of 37

2015 #22 (May 18-22, 2015)
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MISSISSIPPI
Clayton v. State, 2015 Miss. App. LEXIS 273 (MS Ct. App. 2015)
Key Issues:
Weathersby rule: if defendant only (surviving) witnesses to homicide and his version
is both reasonable and consistent with innocence, and not controverted by physical
evidence, no reasonable juror could find guilt beyond a reasonable doubt, and
defendant is entitled to a directed verdict of not guilty.
Date:
May 19, 2015
Decision:
[...]
FACTS AND PROCEDURAL HISTORY
A jury in the Jones County Circuit Court
[...]
convicted Quincy Clayton of

manslaughter for the death of Clayton's
At trial, Alice's sister, Mary Wash, testified
wife, Alice Wash Clayton. The circuit
that she was living with Clayton and Alice
court sentenced Clayton to twenty years
at the time of the incident on June 21,
in the custody of the Mississippi
2009. According to Wash, Alice and
Department of Corrections (MDOC) for
Clayton had been arguing the night
the manslaughter conviction and five
before, and the fighting continued the
years for the firearm sentence
following morning, when Alice swung a
enhancement pursuant to Mississippi
knife at Clayton a couple of times while
Code Annotated section 97-37-37(1)
they were all in the kitchen. Wash was
(Rev. 2014), to run consecutively to his
able to convince Alice to put the knife
manslaughter sentence. Clayton [ . . . ]
down. Clayton then began ironing some
appealed, asking this Court to determine
clothes for church, but Alice pulled them
whether the circuit court erred in not
off the ironing board and stomped on
applying the Weathersby1 rule and
them. Alice then went to their bedroom
whether the application of the firearm
and shut the door. Clayton finished
sentence enhancement was proper. We
ironing, and he went to the bedroom to
affirm Clayton's conviction for
retrieve his church shoes. Alice refused to
manslaughter; however, we reverse on
let him in the room to retrieve his shoes.
the issue of the firearm sentence
Alice and Clayton continued arguing
enhancement and remand for Clayton to
through the bedroom door. Wash testified
be resentenced without the
that from her seat in the living room, she
enhancement.
could see down the hall to where Clayton
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2015 #22 (May 18-22, 2015)
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was standing outside the room. She
the room. He sat down in the hallway
stated that she did not see him kick open
outside of the bedroom and said, "you
the bedroom door, but when she turned
need to stop acting stupid." According to
to look down the hall again, she saw him
Clayton, Alice came out of the bedroom
with the shotgun and heard a "boom."
and started kicking and slapping him, and
Wash stated that when she heard the
she "stuck" him in the side with the knife.
"boom," she jumped out of her chair and
Alice again went back into the bedroom
ran down the hall toward Clayton, and
and locked the door. Clayton again asked
they began wrestling over the shotgun.
to come get his church shoes, and when
Clayton let go of the shotgun, and, as he
Alice said he could not, he pushed the
was leaving, he said, "that will shut her
door all the way open, and "[t]he frame
up," and "I'm through."
and everything came off," because Alice

had slammed it so hard. Alice again came
Clayton also testified at trial. Clayton
at Clayton with the knife. Clayton backed
stated that he and Alice had been arguing
out of the room and then got the shotgun
the night before the incident, and that
he had used the day before to shoot a
Alice would not let him sleep in their
snake. He then went back to the bedroom
bedroom. The following morning, the
to "bluff" his way into getting his shoes.
arguing continued, and Alice took his
He testified:
clothes, threw them on the floor, and

stomped on them. According to Clayton,
When I walked in my bedroom,
he picked up the clothes, and Alice
inside of my bedroom, when I walked
started slapping him and "coming after
in she come from around that bed
him." Clayton pushed her into a chair, and
with that knife drawn back up at me. I
Alice then went into the kitchen and
mean, I can see the white in her
returned with a knife.2 She continued
eyes. I mean, she had a look on her
hitting him and threatened to cut him with
face. I mean, she didn't even look like
the knife; Clayton pushed her into the
my wife when I seen her. And she
chair again. Alice got up from the chair
was coming up on me with that
and swung the knife at Clayton, cutting
knife. . . . I ended up pulling the
him on his shoulder. She went to the
trigger. . . . And it was an accident
bedroom, while Clayton remained in the
what happened because I wasn't
living room. A few minutes later, Clayton
trying to shoot her.
went to the bedroom to get his church

shoes, but Alice "came at [him] with that
Clayton elaborated that he had never
knife stabbing at [him], telling [him] to get
been cut or stabbed in the twenty years
out of her damn room." Clayton testified
they were together. He stated, "I was
he tried a couple more times to get his
scared. I was scared because she ain't
shoes, and she kept running him out of
never did this to me. . . . She came at me
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2015 #22 (May 18-22, 2015)
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-- when she came at me[,] she had that
manslaughter conviction and five years in
knife drawn back." Clayton left the house,
the custody of the MDOC for the
flagged down a patrol car, and said, "I'm
sentence enhancement. Additionally, he
the one you're looking for, . . . because I
was ordered to pay a $5,000 fine. Clayton
just shot my wife." He testified he was
filed a motion to correct his sentence and
taken into custody without incident.
a motion for a judgment notwithstanding

the verdict or, in the alternative, for a new
During his testimony, Jones County
trial; the circuit court denied these post-
Deputy Sheriff Brian Buxton confirmed
trial motions.
that Clayton flagged him down while both

were driving and said: "I'm Quincy
Following the denial of his post-trial
Clayton. I'm the man y'all are looking for. I
motions, Clayton appealed, and he raises
just shot my wife." Deputy Buxton stated
two issues:
that Clayton was not combative at the

time he was arrested. Deputy Buxton also
I. The trial court committed
took pictures of Clayton's injuries, which
reversible error when it failed to apply
were on his shoulder, the side of his
the Weathersby [r]ule and grant
chest, and his wrist. These pictures were
[Clayton] a directed verdict of
entered into evidence and published to
acquittal on manslaughter. Clayton
the jury.
was the only eyewitness to the

homicide of Alice Clayton[,] and the
Betty Wash, Alice's daughter, was unable
evidence established that he injured
to be present to testify; however, the
Alice in necessary self-defense.
State and Clayton stipulated that her

testimony would be read to the jury. Betty
[...]
was not present during the incident, but

she arrived shortly thereafter. She
ANALYSIS
removed a knife from Alice's hand and

placed it either on top of the dresser or in
I. WEATHERSBY APPLICATION
a dresser drawer.
Clayton's first assignment of error is
After hearing the evidence presented, the
based on the circuit court's denial of his
jury returned a guilty verdict for
motion for a directed verdict based on the
manslaughter. Following the verdict, the
Weathersby rule. In Garth v. State, 771
State sought to enhance Clayton's
So. 2d 984, 987 (11) (Miss. Ct. App.
sentence pursuant to section 97-37-37,
2000) (internal citation omitted), we
which the circuit court permitted. Clayton
explained:
was sentenced to serve twenty years in

the custody of the MDOC for the
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2015 #22 (May 18-22, 2015)
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The Weathersby rule serves as a
find that the circuit court was correct in
restatement of the conventional standard
finding that the Weathersby rule was not
of review of a criminal trial court's refusal
applicable to the present case. The
to direct a verdict of acquittal, that if the
Mississippi Supreme Court has stated
defendant and his witnesses are the only
that, "if the defendant's testimony
witnesses to the homicide and if their
'satisfies all the elements of murder or
version of what happened is both
manslaughter, the defendant would not
reasonable and consistent with
be entitled to a directed verdict of
innocence and if, further, there is no
acquittal, as this testimony would be the
contradiction of that version in the
basis for a valid conviction,' and the
physical facts, facts of common
Weathersby rule would not apply." Booker
knowledge or other credible evidence,
v. State, 64 So. 3d 965, 970-71 (17)
then surely it follows that no reasonable
(Miss. 2011). Mississippi Code Annotated
juror could find the defendant guilty
section 97-3-35 (Rev. 2014) defines
beyond a reasonable doubt. However, if
manslaughter as: "The killing of a human
there are circumstances shown in the
being, without malice, in the heat of
evidence which materially contradict the
passion, but in a cruel or unusual
defendant's version of self-defense, the
manner, or by the use of a dangerous
jury is not required to accept his version,
weapon, without authority of law, and not
but may in determining guilt or innocence
in necessary self-defense[.]"
consider his version of self-defense along

with conflicting evidence and any
A jury could reasonably believe that
unfavorable inferences therefrom.
Clayton's version of the incident satisfied

the elements of manslaughter, because a
According to Clayton, he was the only
jury could have found that Clayton was
eyewitness to the shooting of Alice, he
not acting in necessary self-defense
consistently testified that he acted in self-
when he shot his wife with a shotgun.
defense when Alice came at him with a
Clayton testified that he shot Alice after
knife, and there was no evidence
she came at him with a knife. However, it
contradicting his version of the events.
was Clayton who brought a gun to a knife
Therefore, Clayton asserts that the circuit
fight. Clayton pursued Alice into a closed
court erred in denying his request to have
bedroom, all while knowing that Alice had
the Weathersby rule applied, which would
a knife and had even struck him with the
have resulted in a directed verdict in his
knife several minutes prior to the
favor.
shooting. A jury could reasonably

conclude that the time Clayton spent to
"[I]t is a rare case that satisfies the
retrieve the loaded shotgun from the
requirements of the rule in Weathersby."
closet, and the use of the shotgun to
Garth, 771 So. 2d at 987 (10). And we
"bluff" his way into the room for his
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2015 #22 (May 18-22, 2015)
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church shoes, were unreasonable and
self-defense," since Julius Kiker never
were not actions in necessary self-
called the police after he shot his wife.
defense.
Because Clayton's version of events
Additionally, while Clayton did turn
satisfied the elements of manslaughter
himself in to the police shortly after the
and because the reasonableness of
incident, he never called 911 or checked
Clayton's actions was a question for the
to see if Alice was still alive before he left
jury, we cannot find that the circuit court
the home. In Kiker v. State, 130 So. 3d
erred in denying Clayton's request for a
554, 558 (13) (Miss. Ct. App. 2013), this
directed verdict based on Weathersby.
Court addressed the inapplicability of the
We affirm Clayton's conviction for
Weathersby rule, and we found that "[t]he
manslaughter.
jury could certainly have found this

inconsistent with the way an individual
[...]
would act if the shooting was actually in

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Page 34 of 37

2015 #22 (May 18-22, 2015)
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TEXAS
McCoy v. State, 2015 Tex. App. LEXIS 5202 (TX Ct. App. 2015)
Key issues:
Reasonableness, reasonable belief force was necessary to protect against unlawful

use or attempted use of force; Fist not proportional response to firm handshake and
sarcastic remark.
Date:
May 21, 2015, Opinion Filed
Decision:
interjected a disparaging comment about
Ronald Kendric McCoy appeals his
the Rangers, using profanity. Appellant's
conviction for misdemeanor assault. In
comment upset Barrett who then went
his sole issue, appellant complains of the
outside for a few minutes to cool down.
trial court's failure to charge the jury on
Upon re-entering the house and
the law as it pertains to the duty to retreat
preparing to leave, including saying
regarding self-defense. We affirm the trial
goodbye to those present, Barrett walked
court's judgment.
over to appellant who was sitting at the

dining room table. Barrett extended his
The incident on which appellant's
arm across the table and shook
conviction was based occurred during a
appellant's hand while sarcastically
Memorial Day pool party at the home of
remarking something to the effect that he
his girlfriend's employer, Troy O'Neil.
hoped he "never saw [appellant] again."
Richard Kevin Barrett and his girlfriend
According to Barrett, while he and
Nicole Jewkes also attended the party.
appellant were still shaking hands,
Barrett testified he had met appellant
appellant lunged over the table and
previously and admitted he did not like
struck Barrett in the face with the closed
appellant. In a statement Barrett gave to
fist of his left hand, knocking Barrett out
the police, he described appellant as
and breaking his nose.
"rude and standoffish." Barrett and

appellant did not interact much at the
Barrett's girlfriend Jewkes provided
pool party. As the party wound down,
testimony similar to Barrett's. She stated
Barrett was having conversation with a
that Barrett's actions of approaching
few other guests about throwing a party
appellant and shaking his hand were not
for O'Neil at Barrett's house. Barrett
aggressive. She saw appellant punch
mentioned watching the Ranger's game
Barrett in the nose while they were
during the party for O'Neill. Appellant

shaking hands, causing Barrett to fall to
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
the ground. Appellant was then on top of
statements conflicted with the statements
Barrett who was on the floor. Jewkes and
from Mathews and appellant, who
O'Neil pulled appellant off Barrett.
indicated appellant acted in self-defense.
According to Jewkes, as she and Barrett
Officer Epperson testified O'Neil, who had
were leaving, appellant followed them out
a relationship with all the parties,
screaming at them "to keep this going,
indicated appellant was really the
something along the lines of like, lets [sic]
aggressor and O'Neil had to intervene
finish this, bitch."
physically to push him away. Appellant

did not testify at trial.
Appellant's girlfriend, Megan Mathews,

testified that Barrett had a "mad look"
At the charge conference, appellant's
when he was shaking appellant's hand
counsel requested the trial court to add a
and made a strange comment. Appellant
"no duty to retreat" instruction to the
punched Barrett and then they were both
general self-defense instruction that was
on the ground. She thought Barrett's
already in the charge. The trial court
actions and demeanor were threatening
denied the request. The jury found
and appellant appeared to be defending
appellant guilty of assault causing bodily
himself. O'Neil also testified about the
injury and sentenced him to forty-five
incident. O'Neil characterized Barrett's
days' confinement. This appeal followed.
handshake with appellant as "aggressive,

not a friendly gesture," and agreed his
On appeal, appellant contends his
comment was clearly sarcastic. O'Neil
conviction should be reversed because
didn't think Barrett was still holding
he suffered some harm as a result of the
appellant's hand when appellant "took a
trial court's incomplete self-defense
swing at [Barrett]." O'Neil described
instruction which omitted the no duty to
Barrett's behavior toward appellant as
retreat instruction. Among other things,
aggressive, cocky, and physically
the State argues that because appellant
intimidating. He indicated that after
was not entitled to a self-defense
Jewkes had Barrett in the car, Barrett
instruction at all, the trial court did not err
tried to get out and come back in. O'Neil
in submitting an incomplete self-defense
did not view appellant's actions as an
instruction. We agree with the State.
assault but felt appellant was defending

himself.
When reviewing a jury-charge complaint,

we must first determine whether error
Police detective Scott Epperson testified
exists in the charge. See Ngo v. State,
that he was assigned to investigate the
175 S.W.3d 738, 743 (Tex. Crim. App.
case. He obtained statements from
2005). If error did not occur, our analysis
Barrett and Jewkes, who thought
ends. Id. Appellant's complaint fails the
appellant assaulted Barrett. Their
first step of our analysis. A trial court must
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2015 #22 (May 18-22, 2015)
__________________________________________________________________________________________
give requested instructions on every
The record merely shows that after
defensive issue raised by the evidence
Barrett re-entered the house, he walked
without regard to its source or strength,
to where appellant was sitting, shook his
even when the evidence is not credible or
hand and made a sarcastic comment, at
contradicted. Krajcovic v. State, 393 S.W.
which point appellant punched him the
3d 282, 286 (Tex. Crim. App. 2013) (citing
face. The witnesses characterizations of
Shaw v. State, 243 S.W.3d 647, 657-58
Barrett's behavior as "not friendly,"
(Tex. Crim. App. 2007)). But before the
"threatening," "aggressive," or "physically
trial court is required to submit a self-
intimidating," were conclusions that did
defense instruction the defendant must
not constitute any evidence that appellant
present sufficient evidence to support
reasonably believed force was
each element of the defense. See Tex.
immediately necessary to protect himself
Penal Code Ann. 2.03(c) (West 2011).
from Barrett's use or attempted use of
Pursuant to section 9.31 of the Texas
unlawful force. Without more evidence of
Penal Code, a person is justified in using
conduct threatening unlawful force, an
force against another, "when and to the
aggressive handshake and a sarcastic
degree the actor reasonably believes the
farewell comment do not provide an
force is immediately necessary to protect
objective basis to believe unlawful force
the actor against the other's use or
is about to be used or attempted.
attempted use of unlawful force." Id. at
Because there is no evidence that could
9.31(a) (West 2011). A "reasonable belief"
support a rational inference of all the
is one that would be held by an ordinary
elements of self-defense, appellant was
and prudent person in the same
not entitled to a self-defense instruction.
circumstances as the actor. Id. at
Accordingly, the trial court did not err
1.07(a)(42) (West Supp. 2014).
when it omitted from the charge an

instruction on the lack of a duty to retreat
Here, there is no evidence in the record
as it related to self-defense. We resolve
that appellant possessed a reasonable
appellant's sole issue against him.
belief that force was necessary to protect

himself against Barrett's use or attempted
[...]
use of unlawful force. See id. 9.31(a).

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Law of Self Defense: Weekly Law Report

2015 #22 (May 18-22, 2015)

Law of Self Defense: Weekly Law Report

Frequently Asked Questions

What is the Law of Self Defense: Law Report Weekly?

Do you recount each of the cases in their entirety?

What if I want to read the entire case?

Law of Self Defense: Weekly Law Report

Law of Self Defense: Weekly Law Report

May 19, 2015

Law of Self Defense: Weekly Law Report

May 19, 2015

withdrawing from the scene."

Jurors were instructed on self-defense, defense of

During closing argument defense counsel argued that

another, and unreasonable self-defense. Jurors were

defendant was at the restaurant with his son and

also instructed as follows: "It is lawful for a person

niece when "those group of individuals engaged in a

who is being assaulted to defend himself from attack

fight and used bottles, chairs, they hit people in the

if, as a reasonable person, he has grounds, for

head. There was blood everywhere." Counsel

believing and does believe that bodily injury is about

continued: "Those are all the circumstances you have

to be inflicted upon him. In doing so, that person may

to take into account when you are thinking about what

use all force and means which he believes to be

Mr. Torres was going through, outside, when Antonio

reasonably necessary and which would appear to a

reasonable person, in the same or similar

face crunched and that he thinks he knocked him out

circumstances, to be necessary to prevent the injury

for a minute, and Victor runs by and kicks him."

which appears to be imminent." A similar instruction

Counsel argued that defendant was afraid of an

was given with respect to defense of another.

imminent attack that would cause him death or great

Jurors were instructed as follows that an assailed

Defense counsel emphasized that no direct evidence

attack that justifies the exercise of the right of self-

was introduced to show defendant's mental state.

defense need not retreat. In the exercise of his right

Counsel argued the jury instruction on circumstantial

of self-defense a person may stand his ground and

evidence "tells you that if there are two reasonable

defend himself by the use of all force and means

interpretations, one which points to guilt and the other

which would appear to be necessary to a reasonable

to innocence, you must . . . adopt that which points to

person in a similar situation and with similar

innocence and reject that interpretation which points

knowledge; and a person may pursue his assailant

until he has secured himself from danger if that

Defendant was convicted of first degree murder and

law applies even though the assailed person might

Law of Self Defense: Weekly Law Report

"If you find that the defendant knew that Thomas

(d)) were found true with respect to all counts, and a

Rodriguez, Ruben Saucedo, and Victor Saucedo

great bodily injury enhancement ( 12022.7, subd.

had threatened or harmed others in the past, you

(a)) was found true with respect to both attempted

may consider that information in deciding whether