Answers to “You Decide” Boxes

8.1. Commonwealth v. Shaffer, 326 N.E.2d 880 (Mass. 1975)

Was this an act of justified self-defense in response to imminent threat? Did Shaffer employ proportionate force? Was this imperfect self-defense? Was Shaffer required to retreat inside her own home?

Massachusetts is one of the few states that requires a duty to retreat before resorting to deadly force, even in the home. There is no duty to retreat where withdrawal would place an individual in danger by withdrawing. An individual only need retreat until there is no probable means of escape.

In this case, the jury could have determined that the defendant was not in imminent danger for her life or in danger of serious injury. The assailant did not have a dangerous weapon and was only two or three steps from the top of the stairs when shot. A reasonable person could not believed that the deceased presented a threat of death or serious physical injury.

The court held that Shaffer had time to call the police and could have left the basement with her children. She also did not warn the victim that she would shoot in the event that he continued down the stairs. There also was evidence that the defendant had experience in the use of the rifle and was able to kill the victim with a single shot.

8.2. State v. Janes, 850 P.2d 495 (Wash. 1993

Should the Washington Supreme Court uphold or reverse the decision of the trial court?

The trial court refused to give the jury a self-defense instruction. The jury convicted Andrew of second rather than first-degree murder and found him guilty of two counts of second-degree assault and he was sentenced to ten years imprisonment. The trial court reasoned that Walter’s confrontation with Andrew’s mother and Walter’s statement to Andrew the same evening along with Gale’s statement to Andrew the next morning that Andrew was still mad were all too “remote” and “insufficiently aggressive” to establish imminent danger.

The Court of Appeals, however, ruled that the jury should have received an instruction of self-defense. The Washington Supreme Court explained that the “battered child syndrome” has come to describe both the “physiological and psychological effects of a prolonged pattern of physical, emotional and sexual abuse.” The defendant is required to establish a “confrontation or conflict, not instigated or provoked by the defendant, which would induce a reasonable person considering all the facts and circumstances known to the defendant, to believe that there was an imminent danger of great bodily harm.” The court argued that “imminence” does not mean imminent. A threat may support self-defense where there is a reasonable basis to believe that the threat will be carried out. The Supreme Court observed that “even an otherwise innocuous comment which occurred days before the homicide could be highly relevant when the evidence shows that such a comment inevitably signaled the beginning of an abusive episode.”

The Supreme Court remanded the case. The trial court was instructed to consider Andrew’s subjective knowledge and perceptions in light of his history of abuse. The jury then was to consider whether a reasonable person with a similar background would believe that he or she confronted an imminent threat. In addition, the Supreme Court observed that “the trial court may have given undue consideration to the length of time between the alleged threat and the homicide; the justifiable homicide statute requires imminence not immediacy.”

8.3. Law v. State, 318 A.2d 859 (Md. App. 1974)

Did Law act unreasonably and employ excessive force against the “intruders”? Was Law entitled to the justification of defense of habitation?

The Maryland Court of Appeals observed that if an assault on a dwelling and a forcible entry are made and create a reasonable apprehension that the assailant intends to commit a felony or to inflict injury on the inhabitants that may result in loss of life or serious injury and that the threat is imminent, an inhabitant may prevent the entry by using all necessary force, including taking the intruder’s life. The felonies that justify the taking of life include murder, robbery, burglary, rape or arson. An individual defending the home is not generally required to retreat or flee from the home. However, he or she is required to act in a reasonable fashion and the use of deadly force must be based on a real or apparent necessity. There must be facts indicating that the burglar poses a real threat to commit a violent or forcible felony. The appellate court reversed Law’s conviction of second-degree murder and assault with intent to murder. The trial court, on remand, rejected Law’s defense of protection of the home.

8.4. United States v. Bell, 214 F.2d 214 (2000) 

Was the defendant entitled to the defense of necessity? See United States v. Bell, 214 F.3d 1299 (11th Cir. 2000).  Would you reach the same result in United States v. Rice?  Were the two defendants each entitled to the defense of necessity?

United States of America, Plaintiff-Appellee, v. Wesley Lee Bell, Defendant-Appellant

U.S. Court of Appeals, Eleventh Circuit

Roney, Senior Circuit Judge

Defendant Wesley Lee Bell appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the district court erred in not allowing him to introduce evidence supporting a justification defense. According to Bell’s proffer, he possessed the firearm to protect himself against individuals who had shot at and threatened him several days earlier. We affirm on the ground that the facts proffered were insufficient to establish a justification defense.

Although defendant uses the term “necessity” to describe his defense, cases such as this are typically analyzed in terms of the broader defense of justification. We review Bell’s evidence, therefore, to determine whether it is sufficient to make out a defense of justification. The criminal offense of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) is a strict liability offense, which ordinarily renders a defendant’s state of mind irrelevant. We stated in Deleveaux, however, that a justification defense to a § 922(g)(1) charge would be established if the defendant could show the following four elements: (1) that the defendant was under an unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

The defense, however, is reserved for “extraordinary circumstances.” The first prong requires nothing less than an immediate emergency. In United States v. Parker, 566 F.2d 1304 (5th Cir. 1978) the defendant retained possession of a gun for thirty minutes after being attacked in his home. In United States v. Scales, 599 F.2d 78 (5th Cir. 1979), the defendant purchased a gun and gave it to his wife after their home had been burglarized. In neither of these cases was the defense of justification established.

Similarly, other circuits do not allow a justification defense to a § 922(g)(1) prosecution in the absence of an immediate emergency. Compare, e.g., United States v. Newcomb, 6 F.3d 1129 (6th Cir. 1993 (justification defense allowed where defendant briefly possessed shotgun and shells after disarming dangerous individual), United States v. Paolello, 951 F.2d 537 (3rd Cir. 1991) (justification defense allowed where, after knocking gun out of attacker’s hand to protect third person, defendant picked gun up off ground and ran with it to prevent attacker from getting it), and United States v. Panter, 688 F.2d 268 (5th Cir. 1982) (defendant, who while pinned to floor after being stabbed in stomach reached for club in self defense but instead grabbed gun, allowed to assert justification defense to prosecution under predecessor statute to § 922(g)(1)), with United States v. Wofford, 122 F.3d 787 (9th Cir. 1997) (no justification defense where most recent specific threat occurred five months before possession of firearm), and United States v. Perrin, 45 F.3d 869 (4th Cir. 1995) (no defense where shotgun-wielding antagonist’s most recent visit to defendant’s apartment occurred two days prior to defendant’s possession of firearm).

The facts, as proffered by the defendant, do not meet the standard of an immediate emergency. On July 26, 1997, Bell, a convicted felon, was playing cards with five others at his home. They heard gunshots, went outside, and saw Bell’s neighbor, Anthony Brooks, running towards them. Brooks was being pursued by a man firing a pistol in the direction of Bell’s house. When Brooks reached Bell’s house, he stated that “a couple of dudes had jumped on him,” which prompted Bell and the other card players to accompany Brooks outside, though all were unarmed. Outside, the group was fired upon by a number of assailants. When one of the assailants stopped to reload a shotgun, Bell managed to take the shotgun away from her, and Bell’s brother took a shotgun away from a different assailant. After the melee, Bell gave one of the two shotguns to the police, but kept the other. Later that evening, the assailants returned, “shooting and getting out of their cars and making threats.”

In the days following the attack, Bell “felt that [the assailants] could come back at any time,” and his state of mind was “one of fear.” Four days later, during a search by police of Bell’s apartment pursuant to a warrant, Bell handed over the second shotgun.

There was no error in the district court’s determination that Bell failed to establish a justification defense. Bell possessed a firearm in the absence of an “unlawful and present, imminent, and impending threat of death or serious bodily injury.” He possessed the shotgun for a least three full days following the last overt threat—the return of the assailants to his house the evening of July 26, 1997. In Parker, however, the defendant who possessed a shotgun for only thirty minutes after being attacked at home failed to establish a defense. Bell’s situation in the days following July 26, 1997 was not an immediate emergency, unlike the perilous situations in other cases where firearm possession was held to be justified.

United States v. Gomez, 92 F.3d 770 (9th Cir. 1996), cited by Bell, is distinguishable. The defendant in Gomez, a witness in the prosecution of a major drug dealer, learned that a contract had been taken out on his life and received numerous death threats. The defendant knew that the drug dealer had previously tried to have other witnesses against him murdered. After the authorities ignored the defendant’s pleas for protection, the defendant armed himself. The court held that the danger was “present and immediate,” emphasizing that “it was unlikely that [the drug dealer] would cool off and lose interest” in the defendant, given that the drug dealer “was deeply involved in the exportation of illegal substances,” and had “amply demonstrated his willingness to kill to avoid conviction.”. The defendant in Gomez, therefore, was confronted by an extraordinary threat, as later cases have explained: “[O]nly in the most extraordinary circumstances, illustrated by …where the defendant had sought protection from the authorities without success, will the defense entitle the exfelon to arm himself in advance of the crisis merely because he fears, however sincerely and reasonably, that he is in serious danger of deadly harm.”

The generalized danger to Bell was not “extraordinary.” Among other things, there was no evidence that the assailants had a compelling motive to attack Bell again, that they could have located him had he simply moved, or that the authorities were unwilling to protect Bell.

Because Bell has not shown that his possession of the firearm occurred only while faced with an “unlawful and present, imminent, and impending threat of death or serious bodily injury,” he failed to establish a justification defense. There was no error in excluding the proffered evidence.

United States v. Rice Necessity, 214 F.3d 1295 USE BELL AND RICE

Defendant Otis Lee Rice appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). His most persuasive argument is that the district court erred in excluding evidence supporting a defense of justification. According to Rice’s proffer, he possessed the gun to protect himself against a local gang that had repeatedly beaten and threatened him. We affirm on the ground that the facts proffered were insufficient to establish a justification defense.

The criminal offense of being a felon in possession of a firearm under 18 U.S.C. 922(g)(1) is a strict liability offense, which ordinarily renders a defendant’s state of mind irrelevant. We stated in a recent opinion, however, that a justification defense to a 922(g)(1) charge would be established if the defendant could show the following four elements: (1) that the defendant was under an unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

The defense, however, is reserved for “extraordinary circumstances.”

The facts, as proffered by the defendant, do not meet the standard of an immediate emergency. Prior to obtaining the gun, Rice had been repeatedly harassed and threatened by members of a neighborhood gang called “The Thug Life.” In September 1996, Rice was beaten and robbed as he was leaving a grocery store. In December 1996, gang members robbed Rice as he was making a phone call from a pay phone. In April 1997, Rice was beaten with a baseball bat. After Rice reported the April 1997 attack and the Thug Life’s drug dealing to police, he was threatened for being a snitch. In May 1997, gang members confronted Rice at the beach, accused him of being a snitch, and hit him in the head with a beer bottle, causing lacerations that required hospital treatment. In September 1997, he was beaten by gang members “for no reason.” In December 1997, Rice was surrounded by gun-wielding gang members at a laundromat, but the gang fled when bystanders threatened to call the police. Once, in December 1997, gang members went to Rice’s home when Rice was not present.

In response, Rice “changed his address” and attempted to avoid the gang. In January 1998, Rice obtained a firearm.

On February 20, 1998, Rice was walking to his job to pick up his paycheck when he encountered members of the gang. He returned home, retrieved his gun, and departed again for his job. On the way home after picking up his check, he saw gang members approaching and shot his gun in the air to frighten them away.

On February 21, 1998, while walking to a store, Rice was verbally threatened by gang members. He returned home to get his gun, and departed again for the store. Shortly thereafter, police officers, who were looking for Rice for a separate offense, found him leaned over a parked car, chatting with someone inside and drinking beer. The officers discovered the gun and arrested him.

There was no error in the district court’s determination that Rice failed to establish a justification defense. Rice was not under an “unlawful and present, imminent, and impending threat of death or serious bodily injury.” In fact, it appears that not once between his acquisition of the firearm in January 1998 and his arrest on February 21, 1998 was Rice faced with an immediate emergency of the type found by other circuits to justify the possession of a firearm. Indeed, at the time of his arrest, the Thug Life was nowhere to be seen. Rice was on the street, engaged in conversation and drinking beer, while holding the firearm.

Although Rice’s allegations of numerous beatings and threats are serious, the generalized danger to him was not “extraordinary.” Among other things, there was no evidence of an equally compelling motive for the attacks, that the Thug Life’s influence extended beyond the neighborhood, or that the authorities were unwilling to protect Rice.

Because Rice has not shown that his possession of the firearm occurred only while faced with an “unlawful and present, imminent, and impending threat of death or serious bodily injury,” he failed to establish a justification defense. There was no error in excluding the proffered evidence.

8.5. State v. Ducheneaux, 671 N.W.2d 841 (S.D. 2003)

Would you convict Ducheneaux of the criminal possession of marijuana?

Matthew Ducheneaux argues that he can predict when an attack or spasm is imminent and that a jury could reasonably find that his fear of an attack is reasonable. He further contended that his concern over the impact of traditional treatments also constitutes a fear of imminent harm. Ducheneaux contends that a jury could reasonably find that he had done everything within his power to control his condition and that smoking marijuana was his only alternative.

The South Dakota Supreme Court ruled that Matthew Ducheneaux did not satisfy the statutory standard that required that he engaged in the crime because of the “use or threatened use of unlawful force upon him.” The only force threatened or used against Matthew was his medical condition. The statute clearly implies force or threat of force by another person. The court concluded that it would be a “strained interpretation of the statutory language to rule that a medical condition can exert unlawful force against a person.

The Supreme Court also held that Ducheneaux failed to demonstrate that he was unable to resist the force. His belief that he his alternative treatments containing Marinol (the legal form of THC) and valium were not as effective as marijuana is an “insufficient justification for choosing an illegal remedy.” The legislature has passed a statute that provides criminal penalties for the knowing possession of marijuana. This language precludes the defense of necessity. The South Dakota legislature has decided against creating a provision for a medical necessity for marijuana on two occasions.

8.6. Miller v. State, 312 S.W.3d 209 (Tex.App. 2010)

Was the judge correct in not issuing an instruction on consent?  Would you hold the defendant liable?

Issue

A jury convicted George Miller of assaulting his son, Givens Miller. The jury sentenced him to one day in jail, probated for thirty days. On appeal, George contends the trial court erred in denying his request for a jury instruction on the defense of consent.

Facts

Givens, an eighteen-year-old, 210-pound football player, had a disagreement with his parents after one of his high-school football games. During the disagreement, George took away Givens’s cell phone and car keys. Thereafter, Givens repeatedly shouted expletives at his parents, such as “take your G.D. money and ‘f’ yourself with it.” He then blowed up in close proximity to George and, in a threatening tone, taunted him, saying “What the ‘f,’ man. I’m going to—you going to hit me, man? Are you going to hit me? What the ‘f,’ man.”

George replied, “No, I’m not going to hit you,” and shoved Givens away from him. At this point, Givens kicked and punched George in his side, and then, as Givens charged him, George punched Givens in the face. George threw two more punches, and the altercation ended.

After noticing Givens was bleeding from the mouth with several teeth loosened, George placed him in the car with his mother and asked her to take him to the hospital. George, a doctor, left to perform surgery at a different hospital. The police pulled Givens and his mother over on a routine traffic stop while they were on route. The police inquired about the son’s condition, and Givens told them he had been struck by his father. The officers called E.M.S., and E.M.S. personnel drove Givens the remaining distance to the hospital. After investigation, George was charged with the misdemeanor offense of assaulting a family member.

At trial, Givens testified that at the time of the incident he “was all jazzed up” from the game and “in an aggressive mood.” He acknowledged that his tone and conduct was threatening, and he testified that he “kind of wanted to hit [George]” and he “kind of wanted [George] to hit [him].” When he described the altercation, he testified that they “were … fighting” and the punches were thrown “in the heat of combat.”

At the close of evidence, George objected to the jury charge because the court did not include an instruction on the defense of consent. The court denied his request for a consent instruction and overruled his objection. The jury convicted and sentenced him to one day in jail, probated for thirty days.

Reasoning

The victim’s effective consent or the actor’s reasonable belief the victim consented to the actor’s conduct is a defense to assault if the conduct did not threaten or inflict serious bodily injury. An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence. This rule was designed to ensure that the jury, not the judge, decides the credibility of the evidence.

When considering whether a consent instruction was warranted, we are concerned only with whether the evidence supports the defense of consent, not whether the evidence is believable. If the evidence, viewed in a light favorable to the appellant, supports the defense of consent, then an instruction is required.

The State urges us to follow Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008). In Allen, the complainant taunted the defendant by stating, “‘go ahead,’ ‘come on,’ ‘slap me,’ ‘hit me.’” There the court stated, “[c]ommon experience tells us that such apparent bravado … in the face of an expressed threat does not normally communicate a genuine desire to be assaulted; it far more likely constitutes a backhanded warning of potentially dire consequences to the threatener should she actually carry out her threat.” However, the State fails to note that the Allen court ultimately concluded that the underlying facts were adequate to raise a fact issue relative to consent and require submission of the issue to the jury. There, the circumstances did not require reversal only because the defendant’s counsel failed to preserve error.

Here, the evidence indicates Givens may have genuinely desired to provoke his father to hit him. Givens’s testimony that he “kind of wanted [George] to hit [him]” gives life to the argument that the fight was consensual. Additionally, Givens did more than threaten George; he struck the first blow. It is important to note that Givens was aggressively moving towards George when George finally hit Givens. Furthermore, Givens described the altercation with phrases indicative of mutual combat, not assault. He testified that he “was all jazzed up” and “in an aggressive mood” and that when George hit him, they were “in the heat of combat” and “still fighting.”

The defense of consent is not available when the defendant threatens or inflicts “serious bodily injury.” Serious bodily injury is “injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function” of a bodily organ.

Texas courts have not been consistent as to what specific facts constitute serious bodily injury. Whether an injury constitutes serious bodily injury is determined on a case-by-case basis. When deciding whether the injury rises to the level of serious bodily injury, we consider the extent of injury at the time it was inflicted, not after the effects have been ameliorated or exacerbated by medical treatment.

Here, Givens suffered dental fractures and loose teeth, but he lost no teeth. He also received two blows to the head, and he testified that he may have lost consciousness for a brief moment. However, he did not sustain memory loss. The emergency physician who treated Givens testified that a black-out could be the result of many things, including shock or surprise. He also testified no damage appeared on Givens’s CAT scan. Nevertheless, the doctor testified that, because Givens lost consciousness, he likely suffered a mild concussion.

Some courts have concluded, on a case-by-case basis, that loss of teeth is a serious bodily injury in cases with and without other injuries. To date, courts have concluded that the loosening of teeth is a serious bodily injury only when accompanied by other serious injuries. For example, in a recent case the. defendant struck complainant with an axe, crushed his nose flat, knocked four teeth loose, and pulled ears with pliers leaving a one and one-half inch incision behind ear. In another case there was profuse bleeding, misalignment of teeth, inability to breath normally, and fractured jawbone, cheekbone, orbital bones, and nasal bones.

Blows to the head, depending on the strength and repetitiveness of the blows, can, but do not always, constitute serious bodily injury. Some courts have held that memory loss is sufficient to constitute serious bodily injury, while others have not.

Here, Givens’s teeth were loosened, but not lost, and he may have had a mild concussion. The State did not specifically contend below that Givens’s injuries constituted “serious bodily injury.” Even had it done so, in light of current precedent, the question still would be a question of fact for the jury to decide.

Viewing the evidence in a light favorable to George, we hold an instruction on the defense of consent was required. Whether Givens actually consented was a question of fact for the jury. d. Accordingly, the trial court erred in overruling George’s objection and denying his request for an instruction on consent.

Holding

To resolve whether George suffered harm, we consider the plausibility of the evidence raising the defense. Here, under these very unusual circumstances, a reasonable fact finder might conclude that Givens consented to the fight, or that George reasonably believed he consented. Whether Givens actually consented, of course, is a question of fact for the jury. Therefore, we conclude that failure to include the instruction on consent was harmful error, and we sustain Appellant’s sole issue on appeal. We reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

Questions for Discussion

1. What is the law of consent in Texas?

2. Did Givens suffer “serious bodily injury.”

3. Based on the precedent in Allen v. State was there consent to the physical assault in Miller?

4. As a juror would you acquit George on the grounds that Givens consented to the assault?