Date post: | 09-Nov-2015 |
Category: |
Documents |
Upload: | law-of-self-defense |
View: | 174 times |
Download: | 0 times |
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 16
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 state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 2 of 16
TABLE OF CONTENTS
CALIFORNIA
People v. Christian, 2015 Cal. App. Unpub. LEXIS 3008 (CA Ct. App. 2015)Key issues: Imminence, fear of future harm insufficient Proportionality, force after threat
neutralized is excessive; burden of persuasion on the State.Date: April 30, 2015
ILLINOIS
People v. Flemming, 2015 Ill. App. LEXIS 326 (IL Ct. App. 2015)Key issues: Burden of production on the defendant; burden of persuasion on the State;
elements of self-defense are cumulative, prosecution must disprove only one; Reasonableness, subjective; imperfect self-defense; dfn. grave bodily harm; dfn. deadly weapon.
Date: May 1, 2015
TEXAS
Kellum v. State, 2015 Tex. App. LEXIS 4436 (TX Ct. App. 2015)Key Issues: Burden of production on defendant; burden of persuasion on the State,
beyond a reasonable doubt; Reasonableness, ordinary and prudent man in the same circumstances.
Date: April 30, 2015
Villarreal v. State, 2015 Tex. App. LEXIS 4315 (TX Ct. App. 2015)Key Issues: Burden of production on the defendant; Burden of persuasion on the State,
beyond a reasonable doubt; Avoidance, preclusion, option of retreat; Failure to make statement to responding officers; Reasonableness, reasonable belief deadly force was necessary; Defense of others; Deadly force dfn.; Serous bodily injury dfn.
Date: April 29, 2015
WASHINGTON
State v. Larkins, 2015 Wash. App. 2015 LEXIS 928 (WA Ct. App 2015)Key issues: Reasonableness, subjective fear; Reasonableness, objective; Imminence;
Proportionality, no more force than necessary; Reasonableness, subjective, all facts and circumstances as defendant knew them; Reasonableness, objective, reasonable and prudent person in defendants situation; Proportionality, deadly defensive force only against threat of death or great personal injury; Reasonableness, objective, fails; Reasonable Doubt, based on reason and evidence; Truth, not role of jury to find the truth.
Date: April 28, 2015
Page
4
6
11
12
14
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 3 of 16
CALIFORNIA
People v. Christian, 2015 Cal. App. Unpub. LEXIS 3008 (CA Ct. App. 2015)
Key issues: Imminence, fear of future harm insufficient Proportionality, force after threat neutralized is excessive; burden of persuasion on the State.
Date: April 30, 2015
Decision:
[ . . . ]
DISCUSSION
Christian [Defendant] contends the evidence was insufficient to prove beyond a reasonable doubt he
committed battery. He says that when the facts of this case are considered as a whole, "it is inherently
improbable and impossible of belief that [he] did not act in self-defense." We disagree.
The legal principles, which apply equally to adult
criminal trials and juvenile proceedings involving criminal acts (In re Ryan N. (2001) 92 Cal.App.4th
1359, 1371; In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404), are settled. The test of sufficiency of the
evidence is whether, reviewing the whole record in the light most favorable to the judgment below,
substantial evidence is disclosed such that a reasonable trier of fact could find the essential
elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578;
accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is
"reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must
"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the
evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the
evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or
resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979)
96 Cal.App.3d 353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of
fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94
Cal.App.3d 562, 577.) "Where the circumstances support the trier of fact's finding of guilt, an appellate
court cannot reverse merely because it believes the evidence is reasonably reconciled with the
defendant's innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) Reversal on the
ground of insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there
sufficient substantial evidence to support [the finding].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th
297, 331.)
"A battery is any willful and unlawful use of force or violence upon the person of another." ( 242.) If done
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 4 of 16
in a rude or angry way, a kick to the head clearly qualifies, as do hands or a forearm to the neck. (See
James v. State of California (2014) 229 Cal.App.4th 130, 137-138; People v. Myers (1998) 61 Cal.App.4th
328, 335.) No intent to cause injury is required. (See People v. Lara (1996) 44 Cal.App.4th 102, 107.)
"It follows that an offensive touching, although it
inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to
resist ...." (People v. Myers, supra, 61 Cal.App.4th at p. 335.) "'To justify an act of self-defense for [a battery
charge], the defendant must have an honest and reasonable belief that bodily injury is about to be
inflicted on him. [Citation.]' [Citation.]" (People v. Minifie (1996) 13 Cal.4th 1055, 1064, italics omitted.)
For a right of self-defense to exist, "the defendant's fear must be of imminent harm. [Citation.]" (People v.
Lopez (2011) 199 Cal.App.4th 1297, 1305.) "Fear of future harm -- no matter how great the fear and no
matter how great the likelihood of the harm -- will not suffice.... '"[T]he peril must appear to the defendant as
immediate and present and not prospective or even in the near future. An imminent peril is one that, from
appearances, must be instantly dealt with."'" (In re Christian S. (1994) 7 Cal.4th 768, 783.)
The prosecution has the burden of proving, beyond a
reasonable doubt, a defendant did not act in self-defense. (People v. Saavedra (2007) 156 Cal.App.4th
561, 571.) The juvenile court was well aware of this requirement. The question for us, then, is not whether
the prosecution proved the absence of self-defense
beyond a reasonable doubt, but whether there is substantial evidence to support the trier of fact's
conclusion. (See People v. Redmond (1969) 71 Cal.2d 745, 755.) We conclude there is. In light of the
evidence as a whole, the court reasonably inferred David was kicked in the head; Jonathan had already
fled, so the culprit could only have been Christian; and Christian was not acting in lawful self-defense
because David was on the floor, injured, and so did not pose an immediate threat to Christian.
Christian points out that even after being hit in the
head, David was able to get up and begin to chase after Jonathan. He argues there is nothing in
California law that requires him "to wait for his older, larger, and much more violent brother, to get up and
finish choking him to death." Hyperbole aside, while California law may not have required Christian to wait
for David to get up and resume choking him, neither did it give him free rein to kick David in the head when
David was on the floor and was not attempting to get up and resume choking him. (See, e.g., People v.
Pinholster (1992) 1 Cal.4th 865, 966 [right of self-defense does not extend beyond time of real or
apparent danger], disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People
v. Clark (2011) 201 Cal.App.4th 235, 250 [defendant may use force only as long as danger exists or
reasonably appears to exist]; People v. Perez (1970) 12 Cal.App.3d 232, 236 [when danger has passed
and attacker has withdrawn, "there can be no justification for the use of further force"].)
____________________________________________________________________________________
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 5 of 16
ILLINOIS
People v. Flemming, 2015 Ill. App. LEXIS 326 (IL Ct. App. 2015)
Key issues: Burden of production on the defendant; burden of persuasion on the State; elements of self-defense are cumulative, prosecution must disprove only one; Reasonableness, subjective; imperfect self-defense; dfn. grave bodily harm; dfn. deadly weapon.
Date: May 1, 2015
Decision:
[ . . . ]
ANALYSIS
Defendant raises the following three arguments on appeal: the court erred in (1) finding him guilty of
second degree murder where the State failed to disprove he acted in self-defense, (2) finding him
guilty of aggravated battery and (3) failing to conduct an adequate inquiry regarding his pro se ineffective
assistance claim.
1. Second Degree Murder Conviction
Defendant first challenges the sufficiency of the evidence to sustain his conviction for second degree
murder. He argues that the court erred in finding him guilty of second degree murder because the State
failed to disprove that he acted in self-defense beyond a reasonable doubt and its entire case rested
on the inconsistent and contradictory testimony of two inherently incredible witnesses, Gushiniere and
McElroy.
In considering a challenge to the sufficiency of the evidence, the reviewing court must determine
whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham,
212 Ill. 2d 274, 278, 818 N.E.2d 304, 288 Ill. Dec. 616 (2004). The trier of fact, here the trial court, is
responsible for assessing the credibility of the witnesses, weighing the testimony, and drawing
reasonable inferences from the evidence. People v. Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 256 Ill.
Dec. 530 (2001). We will not reverse a criminal conviction unless the evidence is so improbable or
unsatisfactory that it creates a reasonable doubt as to the defendant's guilt. People v. Cox, 195 Ill. 2d 378,
387, 748 N.E.2d 166, 254 Ill. Dec. 720 (2001).
Defendant was charged with two counts of first degree murder of Nabry under sections 9-1(a)(1) and
(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1), (a)(2) (West 2010)) but found guilty of
second degree murder on both counts. Pursuant to sections 9-1(a)(1) and (a)(2), first degree murder
occurs when a person kills another person without lawful justification and, in performing the acts which
cause the death, he (1) either intended to kill or do great bodily harm to that individual or another or knew
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 6 of 16
that such acts will cause death to that individual or another or (2) knew that such acts create a strong
probability of death or great bodily harm to that individual or another. 720 ILCS 5/9-1(a)(1), (a)(2)
(West 2010). The elements of first and second degree murder are identical. People v. Jeffries, 164 Ill. 2d
104, 122, 646 N.E.2d 587, 207 Ill. Dec. 21 (1995). Second degree murder differs from first degree
murder only in the presence of a mitigating factor, such as an alleged provocation or an unreasonable
belief in justification. People v. Porter, 168 Ill. 2d 201, 213, 659 N.E.2d 915, 213 Ill. Dec. 569 (1995).
At trial, the State argued that defendant returned to
the apartment with a knife to retaliate against Nabry and Gushiniere. Defendant argued that he went back
to the apartment unarmed to retrieve McElroy, not to retaliate. He also argued that, even if the State met its
burden to prove murder, it did not disprove self-defense beyond a reasonable doubt. Self-defense is
a recognized legal justification to first degree murder.1 Jeffries, 164 Ill. 2d at 127. Once defendant raised
this affirmative defense, the State had the burden to prove beyond a reasonable doubt not only the
elements of first degree murder but also that the murder was not carried out in self defense. Id. In
order to raise self-defense:
"[T]he defendant must establish some evidence of each of the following elements: (1) force was
threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of
harm was imminent; (4) the threatened force was unlawful; (5) he actually and subjectively believed
a danger existed which required the use of the force applied; and (6) his beliefs were objectively
reasonable." Id. at 127-28.
If the State negates any one of these elements, a defendant's claim of self-defense fails. Id. at 128.
Only if the State has successfully proven the
elements of first degree murder and negated a defendant's claim of self-defense may the trier of fact
consider whether the defendant is guilty of first degree murder or second degree murder. Jeffries,
164 Ill. 2d at 128-29. In order to be found guilty of second degree murder rather than first degree
murder, a defendant must prove by a preponderance of the evidence that:
"(1) at the time of the killing he or she is acting
under a sudden and intense passion resulting from serious provocation by the individual killed or
another whom the offender endeavors to kill, but he or she negligently or accidentally causes the
death of the individual killed; or(2) at the time of the killing he or she believes the
circumstances to be such that, if they existed, would justify or exonerate the killing under the
principles stated in Article 7 of this Code, but his or her belief is unreasonable." 720 ILCS 5/9-2(a)
(1), (a)(2) (West 2010).
Given that the court found defendant guilty of second degree murder, it necessarily must have found that
the State proved the elements of first degree murder, the State disproved or defendant failed to raise at
least one of the elements of self-defense and defendant proved by a preponderance of the
evidence a mitigating factor sufficient to reduce the offense from first degree murder to second degree
murder. Id. at 129.
Defendant challenges the State's assertion that he did not act in self-defense. He argues the State's case
was so unsatisfactory, improbable and unreasonable
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 7 of 16
that it established a reasonable doubt as to his guilt, asserting that the State's case was predicated
exclusively on the testimony of two inherently incredible witnesses, Gushiniere and McElroy, who
directly contracted each other and themselves on nearly every relevant fact in the case regarding the
details of the fight that caused Nabry's death.
The trial court was presented with conflicting versions of defendant's reentry into the apartment and
subsequent stabbing of Nabry. The State's version, presented through the testimony of Gushiniere and
McElroy, was that defendant approached the door armed with a knife and, when the door opened, he
immediately attacked Gushiniere and Nabry and stabbed Nabry without provocation or legal
justification. Defendant's version, presented through his own testimony, was that he approached the door
unarmed, Gushiniere and Nabry were armed with poles when they opened the door and, although he
verbally tried to defuse the situation and run upstairs, Nabry attacked him and he wound up stabbing Nabry
in self-defense with Nabry's own knife.
When presented with conflicting versions of events from witnesses, it is the trial court's responsibility to
determine the credibility of those witnesses and to determine which version to believe. People v.
Villarreal, 198 Ill. 2d 209, 231, 761 N.E.2d 1175, 260 Ill. Dec. 619 (2001). Here, the court chose to believe
the version presented by the State through the testimony of eyewitnesses Gushiniere and McElroy
and did not believe defendant's version of events. Gushiniere's and McElroy's testimony established that
defendant attacked Nabry without provocation as soon as the door opened. Neither testified that Nabry
and/or Gushiniere attacked or threatened defendant first such that he would need to immediately stab
Nabry to protect himself.
"In the context of self-defense, it is the
defendant's perception of the danger, and not the actual danger, which is dispositive. ***
Nevertheless, *** in cases of self-defense, the issue *** is whether the facts and circumstances
induced a reasonable belief that the threatened danger, whether real or apparent, existed. The
reasonableness of a defendant's subjective belief that he was justified in using deadly force is a
question of fact for the [trier of fact] to determine." People v. Sawyer, 115 Ill. 2d 184, 193, 503 N.E.
2d 331, 104 Ill. Dec. 774 (1986).
Accepting Gushiniere's and McElroy's version of the events, and viewing the evidence in a light most
favorable to the State, a rational trier of fact could find that the State disproved beyond a reasonable doubt
that any belief on defendant's part that he was justified in using deadly force was reasonable.
There is no question that Gushiniere and McElroy
contradicted each other throughout their testimony. They did not agree on who sat where in the
apartment, who was drinking alcohol, who was smoking crack or how the argument between McElroy
and defendant arose. They did not agree on whether Gushiniere chased defendant outside, whether
Gushiniere and defendant argued outside, whether defendant knocked/banged on the door and yelled
when he returned to the apartment, whether Gushiniere and/or Nabry were holding poles or
weights when they opened the door and a myriad of other details.
They did, however, agree that defendant was
agitated, aggressive and argumentative and possibly high while in the apartment the first time. This
testimony was corroborated by Officer Cobb, who
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 8 of 16
testified that defendant was aggressive and appeared under the influence of something when he questioned
him outside, shortly before the stabbing. Gushiniere and McElroy also agreed that defendant refused to
leave the apartment and had to be forced out by Gushiniere, that he returned to the apartment shortly
after his conversation with the officers and, when Gushiniere opened the door to him, he immediately
attacked. Gushiniere testified that, when he opened the door, defendant was holding a knife and
immediately stabbed Nabry while McElroy testified that defendant immediately charged Nabry and
Gushiniere and she did not see anything in defendant's hands. However, they both agree that
defendant was the aggressor; that he immediately attacked. The fact that McElroy did not see anything
in defendant's hands does not mean that he was not holding a knife.
Defendant points out that Gushiniere and McElroy
contradicted not only each other but themselves throughout their testimony. As the trial court noted,
defense counsel was able to impeach both Gushiniere and McElroy with statements each had
previously made to police officers and the grand jury. But none of these inconsistencies related to the crux
of the question here, whether defendant immediately stabbed Nabry and/or attacked Gushiniere and Nabry
when the door opened and, if so, whether he was justified in doing so, i.e., whether defendant could
have reasonably believed that deadly force was necessary in the situation.
Moreover, even if part of a witness's testimony is
questionable, this does not necessarily mean that everything that the witness said on the stand must be
subject to question. People v. Cunningham, 212 Ill. 2d 274, 282-83, 818 N.E.2d 304, 288 Ill. Dec. 616
(2004). A fact finder may reject entire testimony but is
not bound to do so. Id. at 283. "'[C]ontradictory testimony of a witness does not per se destroy [his
credibility], and it remains for the trier of fact to decide when, if at all, he testified truthfully.'" Id. (quoting
Sparling v. Peabody Coal Co., 59 Ill. 2d 491, 498-99, 322 N.E.2d 5 (1974)). "In other words, it is for the fact
finder to judge how flaws in part of the testimony affect the credibility of the whole." Id. Nothing in the
record supports finding that the court erred in crediting portions of Gushiniere and McElroy's
testimony over defendant's testimony.
Defendant also argues that Gushiniere and McElroy were unreliable witnesses because they were both on
psychotropic medications. The mental health of a witness can be relevant to assessing a witnesses'
credibility. People v. Williams, 147 Ill. 2d 173, 237, 588 N.E.2d 983, 167 Ill. Dec. 853 (1991). Here,
however, beyond Gushiniere's and McElroy's testimony regarding the medications they were taking,
the evidence did not otherwise call into question their ability to observe the situation clearly and
communicate it accurately and truthfully.
Viewed in the light most favorable to the State, we find that the evidence presented at trial supports
finding beyond a reasonable doubt that defendant stabbed Nabry without lawful justification, intending to
kill or cause great bodily harm to Nabry and knowing that his act created a strong probability of death or
great bodily harm. Further, the testimony supports finding that defendant was the aggressor in the
situation and that any subjective belief he may have had that he was justified in using deadly force as self-
defense was unreasonable. Accordingly, the evidence supports a finding that defendant did not prove he
stabbed Nabry in self-defense.
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 9 of 16
Defendant asserts that the court's second degree murder conviction represented a rejection of
Gushiniere's account of the fight that resulted in Nabry's death. Gushiniere had testified that, when he
opened the door, defendant immediately stabbed Nabry in the chest. Defendant asserts that no
reasonable fact finder could find this version of the fight compatible with imperfect self defense, mutual
combat or any other theory of second degree murder, i.e., if the court believed Gushiniere, it would have
found defendant guilty of first degree murder. Not so. If the court believed defendant had an unreasonable
belief in self-defense when he stabbed Nabry without legal justification, then the evidence supports a
second degree murder conviction. People v. Hawkins, 296 Ill. App. 3d 830, 836, 696 N.E.2d 16, 231 Ill. Dec.
287 (1998).
As noted above, after viewing the evidence in a light
most favorable to the State, a rational trier of fact could find the evidence supports finding that
defendant's belief that the circumstances justified using self-defense against Nabry was unreasonable.
Accordingly, the State proved first degree murder and disproved self-defense beyond a reasonable doubt.
Defendant did, however, prove one of the mitigating factors for second degree murder and the court,
therefore, did not err in finding defendant guilty of the second degree murder of Nabry. Defendant does not
challenge his sentence. We affirm the conviction and sentence.
[ . . . ]
____________________________________________________________________________________
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 10 of 16
TEXAS
Kellum v. State, 2015 Tex. App. LEXIS 4436 (TX Ct. App. 2015)
Key Issues: Burden of production on defendant; burden of persuasion on the State, beyond a reasonable doubt; Reasonableness, ordinary and prudent man in the same circumstances.
Date: April 30, 2015
Decision:
[ . . . ]
Standard of Review and Applicable Law
[ . . . ]
When a defendant raises self-defense, he bears the burden of producing some evidence to support his
defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton, 804 S.W.2d at
913--14). Once the defendant produces some evidence supporting his defense, the state then bears
the burden of persuasion to "disprove the raised defense." Id. The burden of persuasion does not
require the production of evidence; it requires only that the state prove its case beyond a reasonable
doubt. Id. Moreover, "[d]efensive evidence which is merely consistent with the physical evidence at the
scene of the alleged offense will not render the [s]tate's evidence insufficient since the credibility
determination of such evidence is solely within the jury's province[,] and the jury is free to accept or reject
the defensive evidence." Saxton, 804 S.W.2d at 914. When the evidence is conflicting, we generally defer
to the weight the jury gave to the contradictory testimonial evidence. See Bundy v. State, 280 S.W.3d
425, 435 (Tex. App.--Fort Worth 2009, pet. ref'd) (finding evidence factually sufficient in face of
contradictory testimonial evidence).
A person acts in self-defense in using force against another when and to the degree he reasonably
believes the force is immediately necessary to protect him from the other's use or attempted use of unlawful
force. Tex. Penal Code Ann. 9.31(a) (West 2011). As applicable here, a person uses deadly force in
self-defense when and to the degree he believes deadly force is immediately necessary. Id. 9.32(a)
(2). A "reasonable belief" is that which "would be held by an ordinary and prudent man in the same
circumstances as the actor." Id. 1.07(a)(42) (West Supp. 2014).
[ . . . ]____________________________________________________________________________________
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 11 of 16
TEXAS
Villarreal v. State, 2015 Tex. App. LEXIS 4315 (TX Ct. App. 2015)
Key Issues: Burden of production on the defendant; Burden of persuasion on the State, beyond a reasonable doubt; Avoidance, preclusion, option of retreat; Failure to make statement to responding officers; Reasonableness, reasonable belief deadly force was necessary; Defense of others; Deadly force
dfn.; Serous bodily injury dfn.
Date: April 29, 2015
Decision:
[ . . . ]
A. Standard of Review
Contrary to Villarreal's assertions, the question before this court is not whether the State presented evidence
refuting Villarreal's self-defense evidence. The defendant, rather, has the burden of producing some
evidence to support the claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)
(citing Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991)). "Once the defendant produces
such evidence, the State" has the burden of disproving the defense. Id. The burden of persuasion
does not require the State to produce evidence; "rather it requires only that the State prove its case
beyond a reasonable doubt." Id. "When a jury finds the defendant guilty, [it implicitly finds] against the
defensive theory." Id.
[ . . . ]
B. Arguments of the Parties
1. Villarreal
Villarreal does not argue that he did not shoot Moy; he contends his actions were a matter of self-
defense. Villarreal argues the record only supports that the altercation between Villarreal and Moy was a
verbal confrontation prior to Moy attacking Villarreal. As evidence, Villarreal points to Garcia's testimony,
that he and Garcia retreated on several occasions and that they were pursued by Moy and several other
"party-goers." Only after Garcia tripped and Moy attacked him with a large planter, a threat of deadly
force, did Villarreal fire his weapon.
2. State
The State counters that the testimony supports that prior to Villarreal shooting Moy, nothing prevented
either Villarreal or Garcia from leaving the residence. Although Garcia testified that Moy was threatening
him with a large planter, during his statement to officers, Villarreal never mentioned Moy using the
planter as a weapon. The jury could have reasonably dismissed Garcia's testimony because no other
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 12 of 16
witness so testified, and the only evidence of a threat on Garcia was during Garcia's unsubstantiated
testimony.
C. Self Defense
"A person commits [murder] if he . . . intentionally or knowingly causes the death of an individual [or if he]
intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the
death of an individual . . . ." Tex. Penal Code Ann. 19.02(b)(1), (b)(2) (West 2011). Under certain
circumstances, however, self-defense justifies the use of deadly force. Morales v. State, 357 S.W.3d 1, 7
(Tex. Crim. App. 2011).
To prevail on a claim of self-defense, a defendant must prove that (1) he would have been justified in
using force against the other person, and (2) it was reasonable to believe that "deadly force [was]
immediately necessary [for protection] against the other's use or attempted use of unlawful deadly
force." See Tex. Penal Code Ann. 9.32(a) (West 2011); Morales, 357 S.W.3d at 4. Villarreal was
required to show that he reasonably believed deadly force was immediately necessary to protect either
himself or Garcia from Moy's alleged use or attempted use of unlawful deadly force. Tex. Penal
Code Ann. 9.32(a); Morales, 357 S.W.3d at 4; see also Tex. Penal Code Ann. 9.33 (requiring "the actor
reasonably believes that his intervention is immediately necessary to protect the third person").
"Deadly force" is force "intended or known by the
actor to cause, or in the manner of its use or its intended use is capable of causing, death or serious
bodily injury." Tex. Penal Code Ann. 9.01(3). "Serious bodily injury" is an injury that "creates a
substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ." Id. 1.07(a)(46).
[ . . . ]
____________________________________________________________________________________
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 13 of 16
WASHINGTON
State v. Larkins, 2015 Wash. App. 2015 LEXIS 928 (WA Ct. App 2015)
Key issues: Reasonableness, subjective fear; Reasonableness, objective; Imminence; Proportionality, no more force than necessary; Reasonableness, subjective, all facts and circumstances as defendant knew them; Reasonableness, objective, reasonable and prudent person in defendants
situation; Proportionality, deadly defensive force only against threat of death or great personal injury; Reasonableness, objective, fails; Reasonable Doubt, based on reason and evidence;
Truth, not role of jury to find the truth.
Date: April 28, 2015
Decision:
[ . . . ]
III. SELF-DEFENSE
Larkins [the Defendant] argues that the trial court violated her right to present a defense when it refused
to instruct the jury on self-defense. Because no evidence supported her theory of self-defense, we
disagree.
A defendant is entitled to have the jury instructed on self-defense if there is some evidence to support the
theory. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). Self-defense has three elements: (1)
the defendant subjectively feared that she was in imminent danger of great bodily harm, (2) the
defendant's belief was objectively reasonable, and (3) the defendant exercised no more force than
reasonably necessary. State v. Werner, 170 Wn.2d 333, 337-38, 241 P.3d 410 (2010). Self-defense
involves both subjective and objective elements. State v. Read, 147 Wn.2d 238, 242-43, 53 P.3d 26
(2002). The subjective element considers the defendant's acts "in light of all the facts and
circumstances the defendant knew when the act occurred." Read, 147 Wn.2d at 243. The objective
elements consider "what a reasonable person would have done if placed in the defendant's situation."
Read, 147 Wn.2d at 243.
The standard of review depends on the reason the trial court refused to grant the self-defense instruction.
State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883 (1998). If the trial court declines the self-defense
instruction based on a factual dispute, we review its decision for abuse of discretion. Walker, 136 Wn.2d at
771-72. But if the trial court declines the self-defense instruction based on a ruling of law, we review its
decision de novo. Walker, 136 Wn.2d at 772. Here, the trial court refused to give a self-defense
instruction because it found no reasonable person in Larkins's shoes would have acted as she did. This
ruling involves an issue of law we review de novo. Read, 147 Wn.2d at 243.
A defendant may only use as much force in self-
defense as "what a reasonably prudent person would find necessary under the conditions as they appeared
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 14 of 16
to the defendant." Walden, 131 Wn.2d at 474. Deadly force may be used only if the defendant reasonably
believes that he or she is threatened with death or great personal injury. Walden, 131 Wn.2d at 474.
If placed in the situation Larkins faced, no reasonably
prudent person would have believed himself or herself to be in imminent danger of death or great
personal injury. Nor would any reasonably prudent person have believed it necessary to strike Johnson
with the automobile to defend against the perceived danger in these circumstances. Although Larkins
believed that Johnson possessed a gun and had been digging in her purse while walking, Johnson was
not brandishing a gun or threatening Larkins with a gun. In fact, Larkins never saw Johnson with a gun.
Rather, Johnson was walking away from Larkins at the time Larkins ran over her. Larkins also believed
that Johnson's family would hurt her. But Johnson's family members were not present at the scene. Any
threat that Johnson's family posed to Larkins was not imminent and could not have justified Larkins killing
Johnson. See Read, 147 Wn.2d at 242-43.
The objective test for self-defense is not met here. Therefore, we hold that the trial court did not err by
denying Larkins a self-defense instruction.
IV. Reasonable Doubt Instruction
Larkins argues that the trial court's reasonable doubt instruction undercut the State's burden of proof by
erroneously inviting the jury to search for the truth. We disagree.
"Jury instructions, taken in their entirety, must inform
the jury that the State bears the burden of proving every essential element of a criminal offense beyond
a reasonable doubt." State v. Pirtle, 127 Wn.2d 628,
656, 904 P.2d 245 (1995). "It is reversible error to instruct the jury in a manner that would relieve the
State of this burden." Pirtle, 127 Wn.2d at 656. "We review a challenged jury instruction de novo,
evaluating it in the context of the instructions as a whole." Pirtle, 127 Wn.2d at 656.
The instruction that Larkins complains of has never
been held to be improper. To the contrary, our Supreme Court has directed the use of WPIC 4.01 to
instruct juries of the nature of the government's burden. State v. Bennett, 161 Wn.2d 303, 318, 165 P.
3d 1241 (2007). The trial court did exactly that, reproducing WPIC 4.01 verbatim:
The defendant has entered a plea of not guilty.
That plea puts in issue every element of each crime charged. The State is the plaintiff and has
the burden of proving each element of each crime beyond a reasonable doubt. The defendant has no
burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues throughout the entire trial
unless during your deliberations you find it has been overcome by the evidence beyond a
reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of
evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and
carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an
abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 15 of 16
Clerk's Papers (CP) at 144; see also 11 Washington Practice: Washington Pattern Jury Instructions:
Criminal 4.01, at 85 (3rd ed. 2008).
Larkins argues that WPIC 4.01 improperly suggests that the jury's role is to search for the truth. But WPIC
4.01 does not tell the jury to find the truth--it tells the
jury to acquit the defendant unless the government convinces the jury of the truth of the charge. WPIC
4.01 does not misstate the State's burden, and therefore, we hold that the trial court did not err by
giving the WPIC 4.01 instruction.
[ . . . ]________________________________________________________________________________________________________________________________________________________________________
Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________
__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 16 of 16