2015 #22 self defense weekly law report pdf

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

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 37

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.



Table of Contents

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

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

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

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

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

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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

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

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

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

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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:

[ . . . ]

Jurors were instructed on self-defense, defense of

another, and unreasonable self-defense. Jurors were also instructed as follows: "It is lawful for a person

who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds, for

believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may

use all force and means which he believes to be reasonably necessary and which would appear to a

reasonable person, in the same or similar circumstances, to be necessary to prevent the injury

which appears to be imminent." A similar instruction was given with respect to defense of another.

Jurors were instructed as follows that an assailed

person need not retreat: "A person threatened with an attack that justifies the exercise of the right of self-

defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and

defend himself by the use of all force and means which would appear to be necessary to a reasonable

person in a similar situation and with similar knowledge; and a person may pursue his assailant

until he has secured himself from danger if that course likewise appears reasonably necessary. This

law applies even though the assailed person might

more easily have gained safety by flight or by withdrawing from the scene."

During closing argument defense counsel argued that

defendant was at the restaurant with his son and niece when "those group of individuals engaged in a

fight and used bottles, chairs, they hit people in the head. There was blood everywhere." Counsel

continued: "Those are all the circumstances you have to take into account when you are thinking about what

Mr. Torres was going through, outside, when Antonio took that running start and hit him so hard that his

face crunched and that he thinks he knocked him out for a minute, and Victor runs by and kicks him."

Counsel argued that defendant was afraid of an imminent attack that would cause him death or great

bodily injury.

Defense counsel emphasized that no direct evidence was introduced to show defendant's mental state.

Counsel argued the jury instruction on circumstantial evidence "tells you that if there are two reasonable

interpretations, one which points to guilt and the other to innocence, you must . . . adopt that which points to

innocence and reject that interpretation which points to guilt."

Defendant was convicted of first degree murder and

two counts of premeditated attempted murder.



Firearm enhancements ( 12022.53, subds. (b), (c) & (d)) were found true with respect to all counts, and a

great bodily injury enhancement ( 12022.7, subd. (a)) was found true with respect to both attempted

murders. Defendant was sentenced to a total term of 100 years to life.

DISCUSSION

For reasons we shall explain, we reject defendant's

arguments that the court prejudicially erred in instructing jurors.

1. No Error in Rejecting Defendant's Requested Special Instruction

The court denied defendant's request to instruct jurors with the following special instruction:

"When deciding whether the defendant's beliefs

were reasonable, consider all the circumstances as they were known to and appeared to the

defendant and consider what a reasonable person in a similar situation with similar

knowledge would have believed. If the defendant's beliefs were reasonable, the danger

does not need to have actually existed.

"The defendant's belief that he or someone else was threatened may be reasonable even if he

relied on information that was not true. However, the defendant must actually and reasonably have

believed that the information was true.

"If you find that Victor Saucedo threatened or harmed the defendant or others in the past, you

may consider that information in deciding whether the defendant's conduct and beliefs were

reasonable.

"If you find that the defendant knew that Thomas Rodriguez, Ruben Saucedo, and Victor Saucedo

had threatened or harmed others in the past, you may consider that information in deciding whether

the defendant's conduct and beliefs were reasonable.

"Someone who has been threatened or harmed by a person in the past is justified in acting more

quickly or taking greater self-defense measures against that person.

"If you find that the defendant was assaulted by

someone else that he reasonably associated with Thomas Rodriguez, Ruben Saucedo, and Victor

Saucedo, you may consider that assault in deciding whether the defendant was justified in

acting in self-defense or defense of another.

"A defendant is not required to retreat. He is entitled to stand his ground and defend himself

and, if reasonably necessary, to pursue an assailant until the danger has passed. This is so

even if safety could have been achieved by retreating.

"The People have the burden of proving beyond a

reasonable doubt that the defendant did not act in lawful self-defense or defense of another. If the

People have not met this burden, you must find the defendant not guilty." (Italics added.)

Many of the principles in defendant's proposed

instruction were subsumed by other instructions, and defendant does not argue otherwise. Instead he

contends that the italicized portion on antecedent threats should have been given. According to

defendant, the proposed instruction informed jurors that "Antonio, Ruben, Thomas, and Victor's prior

threats to or assaults on appellant would justify



appellant, when reacting to assault by them to act more quickly."

Prior threats are relevant to interpreting whether a

defendant acted in self-defense. (People v. Minifie (1996) 13 Cal.4th 1055, 1069.) They may "illuminate

and reflect on the reasonableness of defendant's perception of both the imminence of danger and the

need to resist with the degree of force applied. [Citation.] They may also justify the defendant 'in

acting more quickly and taking harsher measures for her own protection . . . .'" (People v. Humphrey (1996)

13 Cal.4th 1073, 1094.) For example, an instruction on antecedent threats was warranted when the victim

had threatened the defendant on numerous occasions prior to the day the defendant shot the

victim. (People v. Pena (1984) 151 Cal.App.3d 462, 470, 471-475; see also People v. Spencer (1996) 51

Cal.App.4th 1208, 1220.)

Here, no evidence supported the antecedent threat instruction as there was no evidence of an antecedent

threat. Although the victims may have challenged or assaulted defendant immediately prior to the

shootings, they did not do so on a prior occasion. The

instruction on self-defense covered the conduct that occurred immediately prior to the shootings, and

defendant does not show any further instruction was warranted. In contrast to People v. Moore (1954) 43

Cal.2d 517, 528, in which there was evidence that defendant had received prior threats, here there was

no similar evidence.

Defendant's reliance on People v. Mathews (1994) 25 Cal.App.4th 89 is misplaced. In that case the

defendant was convicted of exhibiting a firearm in the presence of a peace officer. (Id. at p. 93.) The court

held that the defendant should have been "held to the standard of a reasonable person with a similar

physical disability in deciding whether he reasonably should have known that he was in the presence of a

peace officer." (Ibid.) The case does not concern antecedent threats and does not support defendant's

argument that his instruction on antecedent threats was warranted in this case. The trial court properly

concluded that no evidence supported an instruction on antecedent threats because there was no

evidence any victim threatened defendant on a prior occasion.

__________________________________________________________________________________________



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:

[ . . . ]

Stephen Mohler appeals his judgment and sentence

for felony battery. Because the trial court erred in excluding evidence of the victim's prior specific acts of

violence, we reverse and remand for a new trial. As to the remaining issues, we affirm without comment.

The State charged Mohler with aggravated battery

causing great bodily harm. See 784.045, Fla. Stat (2012). The charge arose from an altercation between

Mohler and Blake Swonger at the apartment complex where Mohler resided with his girlfriend, Erika Smith.

Swonger was not a resident of the apartment complex but had been loitering around the complex that day.

The maintenance supervisor, Dave Lavere, had already told Swonger to leave the premises. Mohler

and Smith asked Swonger to leave, Swonger refused, and the disagreement eventually became physical.

Some witnesses testified that they saw Swonger face down with Mohler thrusting Swonger's head into the

sidewalk, but others did not observe these details. Swonger suffered a laceration above his eye and

multiple fractures to his face.

Mohler claimed he acted in self-defense. Smith testified that she wanted Swonger to leave the

premises because he was interested in a romantic relationship with her daughter. Both Mohler and Smith

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 a struggle and Mohler, in order to protect himself and

Smith, placed Swonger in a frontal headlock. Once Swonger stopped resisting, Mohler released him from

the grapple and Swonger fell to the concrete injuring his head. The State did not call Swonger to testify at

trial.

The trial court excluded evidence of Swonger's reputation for violence and any past acts of violence,

finding that the evidence was irrelevant because Mohler claimed that Swonger's injuries were not

inflicted intentionally. Swonger had been in an altercation earlier that day and Mohler knew of

Swonger's reputation and prior altercation. The court's ruling excluded the testimony of Frank Cooley, who

would have testified that Swonger attacked and punched him earlier the same evening. Additionally,

the maintenance supervisor, Dave Lavere, was instructed not to discuss Swonger's earlier assault on

Cooley. Ultimately, the jury found Mohler guilty of felony battery as a lesser-included offense.

On appeal, Mohler argues that because he raised the

issue of self-defense, the trial court erred in excluding evidence of Swonger's reputation for violence and

incidents of Swonger's past violent conduct.



We review a trial court's evidentiary rulings for an abuse of discretion. Masaka v. State, 4 So. 3d 1274,

1279 (Fla. 2d DCA 2009). "[W]e may find that a trial court has abused its discretion when 'its ruling is

based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.'" Id. (quoting

McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007)). Evidence of the victim's reputation and specific acts of

violence are admissible for different purposes when a defendant raises self-defense. See Antoine v. State,

138 So. 3d 1064, 1075 (Fla. 4th DCA 2014). Reputation evidence of the victim is admissible as

circumstantial evidence to prove that the victim acted consistently with his or her reputation for violence.

See id. at 1075. However, specific acts of violence, if known by the defendant, are admissible to prove that

the accused was reasonably apprehensive of the victim and that the defensive measures of the

accused were reasonable. See id. at 1075-76.

When a defendant's sole defense is self-defense, it may be prejudicial error to exclude competent

evidence supporting that defense. See Hughes v. State, 36 So. 3d 816, 817 (Fla. 1st DCA 2010)

("Given that Appellant's entire case rested on the theory of self-defense, we are unable to say that the

error in excluding the testimony regarding his knowledge of his girlfriend's prior acts of violence had

no effect on the jury's verdict despite the fact that the jury heard testimony about some of the acts."); Smith

v. State, 606 So. 2d 641, 643-44 (Fla. 1st DCA 1992) ("Considering the nature of the evidence in this case,

especially the conflicts between the theories offered by the two sides and the fact that the erroneously

excluded evidence went to appellant's only defense, the error must be considered harmful.").

While Mohler has failed to identify what reputation

evidence was erroneously excluded, we agree that

the trial court erroneously excluded evidence of Swonger's specific acts of violence. Mohler sought to

introduce evidence that Swonger instigated another fight earlier that day through the testimony of Frank

Cooley and Dave Lavere. Smith was also prepared to testify that she informed Mohler of the earlier fight.

This evidence would have supported Mohler's self-defense claim by showing that Mohler's apprehension

of Swonger was reasonable. This error was prejudicial because it excluded competent evidence

of Mohler's sole defense.

Citing to Pintado v. State, 970 So. 2d 857, 860 (Fla. 3d DCA 2007), the State argues that because

Mohler's testimony was that the victim's injury was an accident, evidence of the victim's prior acts of

violence was irrelevant. The State's reliance on Pintado is misplaced. In that case, it was alleged that

the defendant stabbed his girlfriend with a knife. Id. at 858. The defendant in that case claimed that he was

first stabbed by the victim and when he pushed her out of fear, she fell on her own knife. Id. at 861 n.2

(Shepherd, J., dissenting). The defendant sought to introduce evidence of the victim's history of hitting the

defendant. Id. at 860. The court found no abuse of discretion in the exclusion of the evidence because it

was not relevant to the defendant's claim that the victim accidentally fell on her own knife. Id. In so

ruling, the majority seemed to have found that the defendant's theory did not constitute self-defense.

See id. at 860 ("The defendant did not allege that he stabbed the victim in self-defense. Instead, he

claimed that he did not stab her at all--that she fell on her own knife and the injury was accidentally

inflicted."). However, the dissent found this to be a valid self-defense claim. Id. at 861 (Shepherd, J.,

dissenting).



In either event, Pintado is distinguishable from this case. First, in Pintado, the victim's history of hitting

the defendant was sought to be admitted for impeachment purposes. See id. at 860 ("[I]t is clear

from defense counsel's proffer that the defense did not intend to use this information for a permissible

purpose. Counsel sought to attack the victim's character by presenting evidence that she lied in her

deposition when she testified that she had never hit the defendant in the past."). Unlike Pintado, there is

no question in this case that Mohler's theory of defense was self-defense and that Mohler attempted

to admit evidence of the victim's specific acts of violence in support of this claim. Although Mohler

testified that the injury was unintentional, there was no dispute that Mohler and Swonger were engaged in

an altercation that was more than the solitary push at issue in Pintado.

Because the trial court erred in excluding evidence of

Swonger's prior specific acts of violence and the error was not harmless, we reverse and remand for a new

trial.

Reversed and remanded for a new trial.

NORTHCUTT and LUCAS, JJ., Concur.

__________________________________________________________________________________________



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-Your-

Ground does not conflict with duty of first aggressor to retreat in good faith.

Date: May 20, 2015

Discussion:

Appellant claimed self-defense,

maintaining that he defended himself against a fierce attack by Carlitos, Sosa,

and Rubi with their fists, bottles, and 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

was found on the brick wall, and a CSI officer testified that the blood pattern was

an impact pattern.

Most of the facts supporting appellant's self-defense claim were elicited in the

state's case-in-chief, when the state introduced appellant's statement to the

police and his pre-trial Stand Your Ground testimony. There were portions of

appellant's pre-trial statements, however,

that were not beneficial to the defense. Appellant gave inconsistent statements

regarding key details in the case. He also made incriminating statements that

undermined his self-defense claim.

[ . . . ]

"While the defendant may have the

burden of going forward with evidence of self-defense, the burden of proving guilt

beyond a reasonable doubt never shifts from the State, and this standard broadly

includes the requirement that the State prove that the defendant did not act in

self-defense beyond a reasonable doubt." Brown v. State, 454 So. 2d 596, 598 (Fla.

5th DCA 1984).



When the state's evidence is legally insufficient to rebut a prima facie case

establishing self-defense, the trial court must enter a judgment of acquittal. See

Fowler v. State, 921 So. 2d 708, 711-12 (Fla. 2d DCA 2006) (the state's evidence

failed to rebut the defendant's testimony that the victim pulled a gun on him to rob

him, and that he grabbed the gun and shot the victim in self-defense; no

eyewitnesses saw the shooting or the events preceding it, and the defendant's

panicked actions after the shooting--including hiding the gun--did not rebut his

claim of self-defense); Sneed v. State, 580 So. 2d 169, 170-71 (Fla. 4th DCA

1991) (the state failed to rebut the defendant's testimony that he shot the

victim in self-defense during a struggle in which "the victim carried himself as if

holding a knife and rushed toward him grabbing the rifle"; the state's case "not

only failed to rebut appellant's allegation of self-defense, but corroborated a

majority of appellant's testimony"); Fowler v. State, 492 So. 2d 1344, 1349-52 (Fla.

1st DCA 1986) (reversing murder conviction where the defendant's

hypothesis that "the shooting was purely accidental and in self-defense" had not

been overcome; the defendant testified that he shot the victim with the victim's

gun during a struggle that took place after the victim told the defendant he was

going to have to "play the role of a woman," and the physical evidence--

including the path of the bullet--corroborated the defendant's testimony);

Diaz v. State, 387 So. 2d 978, 979-80

(Fla. 3d DCA 1980) (reversing manslaughter conviction where the state

"presented no evidence to rebut the defendant's direct testimony that he acted

in self defense nor was it able to diminish his testimony on cross-examination"; the

defendant testified that he drew his weapon and accidentally fired at the

victim after the victim threatened to shoot him "while apparently reaching in his

pocket for a weapon").

A defendant's inconsistent statements can, however, "constitute grounds upon

which a trier of fact may reject the defendant's reasonable hypothesis of

innocence." Carranza v. State, 985 So. 2d 1199, 1203 (Fla. 4th DCA 2008). Thus,

a motion for judgment of acquittal should be denied where a jury could reasonably

infer guilt and reject the defendant's explanation of self-defense, either

because the defendant gave false, inconsistent, or incriminating statements,

or because a common sense view of the circumstantial evidence would allow the

jury to reject the defendant's story as unbelievable. See Romero v. State, 901

So. 2d 260, 265-66 (Fla. 4th DCA 2005) (holding that the State presented

sufficient evidence to rebut the defendant's hypothesis that he shot and

killed only one of the victims, and that he did so in self-defense after watching that

victim shoot and kill the other victim; the defendant admitted that he shot one of

the victims and that "he did not have to do so," there were inconsistencies in

defendant's versions of events over time,



and the defendant left the scene, hid the gun, and lied to the police); Hampton v.

State, 549 So. 2d 1059, 1060-61 (Fla. 4th DCA 1989) (holding that "there was

competent evidence from which the jury could reasonably infer guilt and reject the

appellant's explanation" of how the shooting of his girlfriend occurred, where

the defendant claimed that his girlfriend initially pulled out the gun and that it fired

in a subsequent struggle, but the defendant gave differing explanations in

the course of the investigation, and "also made several statements indicating a

lack of remorse, evidencing feelings of hostility toward the victim, and that he

expected to be charged with the shooting").

In this case, there was competent

evidence from which the jury could reasonably infer guilt and reject

appellant's explanation of self-defense. Viewed in the light most favorable to the

state, the jury could have reasonably found that appellant did not act in self-

defense when he stabbed the victims. By his own admission, appellant was drunk

on the night of the fight. And Sosa's testimony, if believed, would establish

that appellant was the initial aggressor. Appellant had gotten on top of Carlitos

and was choking him, which prompted the initial fight. Further, while Sosa did not

witness the actual stabbings, he did 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.

The present case is distinguishable from

the cases relied upon by appellant. In those cases, the prosecution failed to

rebut a claim of self-defense. Here, by contrast, appellant's own statements--

both in his police interview and his Stand Your Ground testimony--often

undermined his self-defense claim. Appellant admitted to the detective that

he armed himself with a knife after the initial fight was over, and that he was

furious at the time of the stabbings. In his Stand Your Ground testimony, appellant

claimed that he did not remember stabbing Carlitos, and seemingly

admitted that he did not stab Carlitos in self-defense: "I never stated that I

stabbed him to defend myself."

The jury could have reasonably found that the threat to appellant was over

when he armed himself with the knife, and that appellant's use of deadly force

was not "necessary to prevent imminent death or great bodily harm." Sosa's

testimony concerning the events leading up to the stabbings, coupled with

appellant's own incriminating statements and inconsistent explanations, provided

sufficient evidence to create a jury question on the issue of whether

appellant stabbed the victims in self-defense. The trial court properly denied

the motion for judgment of acquittal.

[ . . . ]



Jury Instructions on the Justifiable Use of Deadly Force

The trial court gave the standard jury

instructions on the justifiable use of deadly force as to both counts. For

example, as to the manslaughter count, the relevant portions of the instruction on

the justifiable use of deadly force are as follows:

An issue in this case is whether the

defendant acted in self-defense. It is a defense to the offense with which

Anthony Cruz is charged if the death of Carlos Gonzalez resulted from the

justifiable use of deadly force.

"Deadly Force" means force likely to cause death or great bodily

harm.

The use of deadly force is justifiable only if the defendant

reasonably believes that the force is necessary to prevent

imminent death or great bodily harm to himself or another while

resisting any attempt to commit Aggravated Battery upon him[.]

However, the use of deadly force

is not justifiable if you find:

Anthony Cruz initially provoked the use of force

against himself, unless:

(a) The force asserted toward the defendant was so great

that he reasonably believed that he was in imminent

danger of death or great bodily harm and had

exhausted every reasonable means to escape the danger,

other than using deadly force on Carlos Gonzalez. [Or]5

(b) In good faith, the

defendant withdrew from physical contact with Carlos

Gonzalez and indicated clearly to Carlos Gonzalez

that he wanted to withdraw and stop the use of deadly

force, but Carlos Gonzalez continued or resumed the

use of force.

In deciding whether defendant was justified in the use of deadly

force you must judge him by the circumstances by which he was

surrounded at the time the force was used. . . .

If the defendant was not engaged

in any unlawful activity and was attacked in any place where he

had a right to be, he had no duty to retreat and had the right to

stand his ground and meet force with force, including deadly force,

if he reasonably believed that it was necessary to do so to

prevent death or great bodily



harm to himself or another, or to prevent the commission of a

forcible felony.

(emphasis added).

On appeal, appellant argues that under Floyd v. State, 151 So. 3d 452 (Fla. 1st

DCA 2014), rev. granted 2014 Fla. LEXIS 3793, 2014 WL 7251662 (Fla.

Dec. 16, 2014), the jury instruction on the justifiable use of deadly force is

fundamental error because it provides conflicting instructions on the duty to

retreat.

[ . . . ]

In Floyd, a case where the defendant's sole defense at trial was that his use of

deadly force was justified, the First District held that the standard instruction

on the justifiable use of deadly force constituted fundamental error because it

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

instruction was conflicting because the Stand Your Ground portion of the

instruction stated that the defendant had no duty to retreat if he was not engaged

in any unlawful activity, but the provocation portion of the instruction

stated that a defendant who initially provoked the use of force may use

deadly force "only if the defendant has first exhausted every means of escape."

Id. at 454 (emphasis removed). The court

stated: "In effect, the jury instruction here provided that Floyd did not have to

retreat . . . and did have a duty to try to retreat before using deadly force if in fear

of death or great bodily harm." Id. The court thus found fundamental error,

reasoning that "[t]he conflicting jury instructions negated each other in their

effect, and therefore negated their possible application to Floyd's only

defense." Id.

Although not stated in the Floyd opinion, the First District issued an order certifying

the following question to the Florida Supreme Court as one of great public

importance: "DOES FLORIDA STANDARD JURY INSTRUCTION

(CRIMINAL) 3.6(F) PROVIDE CONFLICTING INSTRUCTIONS AS TO

THE DUTY TO RETREAT?" The Florida Supreme Court has granted review. See

State v. Floyd, 2014 Fla. LEXIS 3793, 2014 WL 7251662 (Fla. Dec. 16, 2014).

[ . . . ]

The standard instruction on the justifiable

use of deadly force, given both in Floyd and in this case, is not internally

inconsistent. The Stand Your Ground portion of the instruction stands for the

general proposition that a defendant who is not engaged in any unlawful activity

and is attacked in a place where he has the right to be has no duty to retreat,

while the "aggressor" part of the instruction provides an exception to this

general proposition for a defendant who



provokes the use of force against himself (without withdrawing from physical

contact in good faith). Both parts of the instruction are a correct statement of the

law. Indeed, the relevant language of the instruction comes directly from the

applicable provisions of Chapter 776. See 776.013(3), Fla. Stat. (2008) (stating

that "[a] person who is not engaged in an unlawful activity and who is attacked in

any other place where he or she has a right to be has no duty to retreat and has

the right to stand his or her ground and meet force with force, including deadly

force . . . ."); 776.041(2), Fla. Stat.

(2008) ("The justification described in the preceding sections of this chapter is not

available to a person who: . . . (2) Initially provokes the use of force against himself

or herself, . . . .").

Because the standard instruction on the justifiable use of deadly force is a correct

statement of the law, appellant has not shown error in the jury instructions, let

alone fundamental error. We affirm on this issue and certify conflict with Floyd.

[ . . . ]

__________________________________________________________________________________________



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:

A jury convicted James Pryor of attempted armed

robbery and possession of a firearm during the commission of a crime, and the trial court denied his

motion for new trial. On appeal, he argues that he was denied his constitutional right to counsel because

his trial counsel had an actual conflict of interest and that his counsel was ineffective for failing to object to

certain testimony and evidence. For the reasons that follow, we affirm.

1. "On appeal from a criminal conviction, we view the

evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption

of innocence." (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither

weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing

the evidence in the light most favorable to the prosecution, a "rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U. S. 307,

319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that as three men were preparing to leave the parking lot of a club that

had just closed at 4:00 am, Pryor, Derrick Brown, and Reginald Frails approached their car, with Pryor

"leading the pack." The first victim was already in the back seat and the other two victims were standing on

the driver's side of the car. Pryor pulled out a handgun and asked the second victim to empty his pockets,

and after the second victim protested that he had nothing, Pryor stuck his head into the car through the

open driver's door and told the first victim inside to empty his pockets. Pryor pointed his gun at the first

victim inside the car, but when Pryor turned to look at Brown and Frails pushing up against the third victim

outside the car, the first victim picked up his .48 caliber semi-automatic handgun from the floorboard

and began firing at Pryor. Pryor dropped his weapon, a .38 caliber revolver, at the feet of the second victim,

who picked it up and began firing at all three robbers, all of whom were running away when they were hit by

either the .38 or the .48 caliber gun. An off-duty deputy sheriff working security at the club arrived on

the scene almost immediately, cuffed the victims, and placed them in separate patrol cars.



Emergency medical technicians were called to the scene and Pryor, Frails, and Brown were taken to the

hospital and the three victims were taken to the station. The lead investigator went to the hospital and

talked to Brown, who had been shot in the knee and whose responses to questions were "elusive" and

unclear. Frails, who had been shot in the buttocks, refused to talk to the investigator and left the hospital

against medical advice while the investigator went to see if he could talk to Pryor. Pryor had been sedated,

was unable to respond to the investigator, and appeared to have been shot in his neck or the top of

his chest.

The investigator then interviewed the three victims at the station. He described them as "calm and

collected" and "very precise." The first victim, who had been seated in the car, had a valid carry permit

for the semi-automatic .48 caliber handgun he shot at Pryor. The victims' virtually identical statements

coupled with evidence from the scene led the police to re-categorize the three men at the station from

suspects to victims. Frails, who had been clutching two plastic bags containing 22 grams of cocaine when

he arrived at the emergency room, was subsequently arrested at his last known address for possession

with intent to distribute. Frails subsequently pled guilty to criminal attempt to commit armed robbery and

possession of cocaine with intent to distribute.

None of the victims could identify Frails or Brown from a photographic line-up. The victims were not

presented with a line-up containing Pryor's photograph because the investigator did not have one

available, but two of them identified Pryor at trial as the man with the handgun who attempted to rob

them. Frails testified at trial that he did not remember much from that night because he was very drunk but

did remember that Pryor had a .38 revolver. Frails

also admitted having said at his plea hearing and sentencing that he had walked to the victims' car with

Pryor, that Pryor pulled his gun, that Frails and Pryor both told the victims to empty their pockets, that Pryor

had leaned into the car, that shots were fired and that the three defendants ran away.

Although Pryor does not challenge the sufficiency of

the evidence, we find that the evidence as summarized above was sufficient to enable a rational

trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was

convicted. Jackson, 443 U. S. at 319 (III) (B).

[ . . . ]

2. Pryor contends that the trial court erred in failing to find his counsel ineffective for failing to object to the

investigator's testimony that the victims were acting in self-defense when they shot Pryor and his co-

defendants or for failing to object to the admission of pants gathered at the scene that had bullet holes in

the buttocks. "To prevail on his claim of ineffective assistance of counsel, [Pryor] must show counsel's

performance was deficient and that the deficient performance prejudiced him to the point that a

reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been

different." (Citation and punctuation omitted.) Patterson v. State, 327 Ga. App. 695, 697 (3) (761

SE2d 101) (2014).

a. "It is well established that credibility of a witness is a matter for the jury, and a witness's credibility may

not be bolstered by the opinion of another witness as to whether the witness is telling the

truth." (Punctuation and footnote omitted.) Strickland v. State, 311 Ga. App. 400, 403 (a) (715 SE2d 798)

(2011). But "the testimony at issue must be reviewed



in the context in which it was given." Branesky v. State, 262 Ga. App. 33, 36 (3) (a) (584 SE2d 669)

(2003). And while an officer rarely needs to explain his conduct during the course of an investigation, an

explanation may be admissible if a defendant "at trial raises questions and concerns about police conduct

in the case." (Citation omitted.) Reeves v. State, 288 Ga. 545, 547 (3) (705 SE2d 159) (2011).

Considered in context, the investigator's testimony

that after completing the interviews and reviewing the evidence from the scene, the three men initially taken

into custody were no longer suspects because "the events they described were self-defense defending

their selves in a forceable felony" explained the investigator's conduct in pursuing charges against the

three men who were shot rather than the shooters. As the State observes, the facts of this case raise

questions about the motivations and conduct of the police, who initially arrested the three men who were

subsequently cast as victims after the officers arrived on the scene to find three men lying on the ground

with bullet wounds.

Pryor's trial counsel intimated throughout the trial that the men who did the shooting should have been

charged with crimes, rather than the men who had been shot. For example, he thoroughly cross-

examined the second victim, who picked up Pryor's gun and fired at the three robbers, asking whether he

had argued with anyone that night, why he had gotten his companion's firearm out when they arrived at the

car after they left the club, whether he just kept firing 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

counsel asked the officer who secured the scene to identify the victim whom the officer had seen firing a

weapon, and asked whether that man had been "firing at an individual who was actually running away from

him."

(2) Trial counsel's questions about why the victims who were initially arrested were not ultimately

charged placed the investigator's conduct in issue and the investigator's testimony tended to explain his

conduct. See Griffin v. State, 292 Ga. 321, 323 (5) (737 SE2d 682) (2013). Because the testimony was

admissible, Pryor's trial counsel was not ineffective for failing to object to it.

b. Pryor also claims that his trial counsel was

ineffective for failing to object to the admission of pants gathered from the scene that had bullet holes in

the buttocks and .38 bullets in the pocket. The evidence showed that Pryor was shot in the chest or

neck, and Pryor argues that the bullet-ridden pants were not his and should have been excluded from

evidence.

(3) Whether the pants belonged to Pryor or not goes to the weight of the evidence, not its admissibility, and

an objection would have been futile. Davis v. State, 272 Ga. 327, 330 (4) (528 SE2d 800) (2000). As the

failure to pursue a futile objection does not amount to ineffective assistance, Ventura v. State, 284 Ga. 215,

218 (4) (663 SE2d 149) (2008), the trial court did not err in denying Pryor's motion for new trial on this

ground.

[ . . . ]

__________________________________________________________________________________________



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:

Leonard Bond appeals his conviction and sentence

for Murder,1 a felony. He argues that the State failed to present sufficient evidence to rebut his claim of

self-defense and that his sentence is inappropriate in light of the nature of the offense and his character.

Finding no error, we affirm.

Facts

At approximately 5:00 am on April 20, 2013, Bond and his girlfriend, Louisa Tranbarger, went to a

Denny's restaurant in Marion County. Bond had a gun visibly protruding from his right pocket. Several of the

other patrons at Denny's were concerned about the gun and asked a member of the wait staff if it was

legal for a person to bring a gun into the restaurant.

Bond and Tranbarger ordered drinks and then walked to the crane machine near the entrance of the

Denny's. At approximately 5:30 am, Mario Wilson, his fiance, Karen Dunbar, Annette Smith, and Carl Smith

arrived at the Denny's. When they entered the restaurant and passed Bond and Tranbarger, Bond

said "look at [the] old people, what just dragged in at

night when they get old." State's Ex. 4. The four ignored this statement and continued to their table.

The group was seated at a window table close to the

entrance. Sometime after they had been seated, Bond and Tranbarger sat down at a booth directly

behind them. Bond again began making comments about how old the group was. At that point, Wilson

and Dunbar turned around to ask Bond if he had a problem with them. Bond stated that he did not, but

continued to talk about old people being out at night. The other patrons in the restaurant heard raised

voices and became uncomfortable, as they knew that Bond was carrying a gun.

At some point, Bond got up because he was upset

and went to the bathroom. As he passed Wilson's table, Bond lifted up his shirt in a way that allowed

others to see the gun he was carrying. When Bond returned, he and Wilson began to argue again, this

time more loudly. This made other patrons so nervous that they decided to leave.

Eventually, Bond stood up and tossed money for his

meal on the table. He then turned around, flipped off Wilson with his middle finger, and told Wilson they



could take the fight outside. Wilson ignored this and continued talking to the group at his table. Bond and

Tranbarger walked outside of the Denny's, but they did not leave. Instead, Bond began banging on the

window next to Wilson's table with his fist and then tapped on it with his gun. Bond motioned to Wilson

that he should come outside.

Tranbarger told Bond they should leave, but Bond walked back towards the Denny's. Wilson stood up

and yelled, "do not let that man back in." Id. Wilson then walked towards the entrance. Wilson then went

outside, and Bond shot him three times. Wilson was unarmed.

Dunbar and Carl Smith then went outside, where they

saw Wilson hanging from Bond's arm in an attempt to stay upright. Dunbar and Carl Smith wrestled Bond to

the ground, where they kept him until the police came and handcuffed him.

Wilson was transported to the hospital, where he died

as a result of his gunshot wounds. One bullet had fractured his left cheek and lacerated the right carotid

artery, another struck his chin, and a third hit his right shoulder and lacerated the right brachial artery. The

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

shots would have been fatal.

On April 22, 2013, the State charged Bond with murder, a felony, and carrying a handgun without a

license, a class A misdemeanor. In addition, the State 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 instruction on self-defense at trial. On June 4, 2014,

Bond pleaded guilty to carrying a handgun without a license.

Bond's three-day jury trial commenced on September

15, 2014. At trial, the State presented the testimony of Dunbar, Carl Smith, and Annette Smith, as well as the

testimony of three restaurant patrons and a waitress who were present during the shooting. Bond testified

that he shot Wilson in self-defense because Wilson kept "coming directly at" him after he told him to stop.

Tr. p. 290. However, Bond also testified that he was not sure if Wilson was armed and admitted that

Wilson had not threatened him or physically touched him before he shot him. Tranbarger also testified that

Wilson had not threatened or touched Bond before Bond shot him and that Wilson was shot almost as

soon as he walked out of the door of the restaurant.

The jury found Bond guilty of murder. On September 17, 2014, the trial court sentenced Bond to three

hundred and sixty-five days for the carrying a handgun without a license conviction. On November

5, 2014, the trial court sentenced Bond to fifty-eight years for the murder conviction. The sentences were

ordered to run concurrently. Bond now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

Bond first argues that there was insufficient evidence to support his conviction for murder because the

State failed to disprove his claim of self-defense.

[ . . . ]

Indiana Code section 35-41-3-2 provides that "[a] person is justified in using reasonable force against

any other person to protect the person or a third



person from what the person reasonably believes to be the imminent use of unlawful force." However, a

person is not justified in using force if "the person has entered into combat with another person or is the

initial aggressor unless the person withdraws from the encounter and communicates to the other person the

intent to do so and the other person nevertheless continues or threatens to continue unlawful action."

I.C. 35-41-3-2(g)(3). In addition, a defendant who raises a claim of self-defense is required to show

three things: (1) he was in a place where he had a right to be; (2) he acted without fault; and (3) he had a

reasonable fear of death or serious bodily harm. Id. The State then bears the burden of disproving at least

one of these elements beyond a reasonable doubt. Id. "The State may meet this burden by rebutting the

defense directly, by affirmatively showing the person did not act in self-defense, or by relying upon the

sufficiency of its evidence in chief." Id. Whether the State has met its burden is a question of fact. Id.

Bond claims that the State has failed to disprove any

of the above three elements beyond a reasonable doubt. He claims that the evidence showed he acted

in self-defense because the waitress on duty, Shontel Johnson, testified that Wilson walked out of the

entrance of the Denny's towards Bond.

However, Bond mischaracterizes the evidence. Dunbar testified that Bond was provoking Wilson from

the moment they entered the Denny's, making comments about "old people" out at night. Tr. p.

19-22. A Denny's patron, Georgette Torres, testified that after the two men had argued loudly, Bond

walked past Wilson and his table and shifted his pants to reveal his gun. Id. p. 70. She also testified

that Bond flipped off Wilson with his middle finger and said they could take the argument outside. Id. at 71.

The evidence also showed that, when Wilson did not respond to his invitation to come outside, Bond

returned to provoke Wilson by tapping on the window next to his booth, first with his hand and then with his

gun. Tr. p. 73-74. The evidence further showed that when Wilson still did not respond, Bond moved

toward the front door of the Denny's. Id. at 24. The jury heard testimony that it was at that point that

Wilson yelled "do not let that man back in," and headed towards the entrance. Id. at 25.

Furthermore, although Bond argued that he shot

Wilson because he would not stop coming towards him, both Dunbar and Tranbarger testified that Wilson

had barely exited the Denny's before he was shot. Id. at 25, 315. It is clear from the above evidence that

Bond had several opportunities to withdraw from any encounter, but chose instead to instigate a

confrontation. See McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998) (evidence that a defendant was the

initial aggressor and a willing participant in the violence can negate a claim of self-defense).

Therefore, a reasonable jury could determine that Bond did not act in self-defense. Bond's request that

we reverse his conviction based on Johnson's testimony is a request for this court to reweigh the

evidence and judge the credibility of witnesses, a request we decline.

[ . . . ]



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:

The defendant in this case was found guilty of assault

and battery, in violation of G. L. c. 265, 13A(a), and of assault by means of a dangerous weapon, in

violation of G. L. c. 265, 15B(b). Before us he argues that he should have been permitted to

introduce at trial a CORI record -- which indicated that the victim had a history of arrests for violent crimes,

including thirteen counts of assaults and firearm violations, but each of which resulted in a nolle

prosequi -- or to question the victim about them. See Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.

2d 1 (2005) (Adjutant).

We conclude there was no Adjutant violation here. To begin with, with respect to the assault with a

dangerous weapon charge there was no evidence that the defendant's "personal safety or life was in

peril," Commonwealth v. Bastarache, 382 Mass. 86, 105, 414 N.E.2d 984 (1980), only that prior to the

crime the victim was banging on the van into which the defendant was getting. And, even from that

confrontation, there is no evidence that the defendant could not retreat. With no valid basis of self-defense,

there can be no basis for introduction even of proper Adjutant evidence.

With respect to the assault and battery charge, even

assuming there was evidence supporting a self-defense instruction, something we need not and do

not decide, Adjutant requires evidence of "specific acts of prior violent conduct that the victim is

reasonably alleged to have initiated." Adjutant, 443 Mass. at 664. To be sure, the prior violent conduct of

the victim need not have been something for which he or she was convicted. Nonetheless, this CORI record,

indicating only that the defendant was repeatedly arrested and charged, provides no indication with

respect to any of the acts for which the victim was arrested that he was, indeed, the first aggressor. Nor

does the record indicate what steps, if any, the defendant took to obtain more specific information

about each incident that led to the victim's arrest -- even assuming evidence that such steps were

unsuccessful might be relevant, something we, again, need not and do not decide.

[ . . . ]__________________________________________________________________________________________



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:

[ . . . ]

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first contends that he received ineffective assistance of counsel at trial

due to numerous errors made by his defense counsel. We disagree.

[ . . . ]

Fourth, defendant claims that defense

counsel was ineffective for conceding that defendant committed a murder at trial. In

support of this contention, defendant cites the following portion of defense counsel's

opening statement:

[This case is] not a who did it. It's what happened? What was the

degree? What was the thought at the time? Was it premeditated?

Defendant claims that these statements

conceded to the jury that defendant had committed murder, and the only question

left was to determine whether it was first-

degree or second-degree murder. A cursory view of defense counsel's

opening statement shows that her intent was to direct the jury to the mens rea

requirement to find defendant guilty of a homicide offense. Defense counsel, it

appears, was making it clear to the jury that there was no question that defendant

shot Wiley, but the issue at trial was 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 defendant murdered Wiley, any ambiguity

was cleared up in defense counsel's closing argument when she was

describing defendant's actions on the night of the shooting:

[I]n [defendant's] mind at the time the

first shot goes off, of course you're gonna [sic] be scared for your life.

[Wiley] is much bigger than you. They're struggling. It goes off again.

That, ladies and gentlemen, is not first[-]degree murder.

That ladies and gentlemen, I know,

sounds bad. But the law of self-



defense, whether you like it or not, applies in this situation. And what

crime was being committed if I'm retreating?

I'm retreating. But you're not

retreating. You're advancing on me. Said hey, man. Chill out. Cool out.

You know it's not that serious. But it turned out to be that serious.

Thus, a fair reading of defense counsel's

comments at trial shows that she was arguing that defendant shot Wiley in self-

defense. Furthermore, even if defense counsel had conceded that defendant

had committed a murder, and the only issue left was to determine if it was first-

degree or second-degree murder, she still would not have been constitutionally

ineffective. As noted above, it is not ineffective assistance to concede guilt of

a lesser offense; only a complete concession of guilt constitutes ineffective

assistance of counsel. Emerson (After Remand), 203 Mich App at 349.

Fifth, and finally, defendant claims that

trial counsel was ineffective for failing to request a jury instruction on the issue of

initial aggressors and withdrawal from conflict. CJI2d 7.18 provides:

A person who started an assault on

someone else [with deadly force / with a dangerous or deadly weapon]

cannot claim that [he / she] acted in self-defense unless [he / she]

genuinely stopped [fighting / (his /

her) assault] and clearly let the other person know that [he / she] wanted to

make peace. Then, if the other person kept on fighting or started

fighting again later, the defendant had the same right to defend [himself /

herself] as anyone else and could use force to save [himself / herself]

from immediate physical harm.

A trial judge is not required to give a jury instruction if the theory or defense is not

supported by the evidence. People v Mills, 450 Mich 61, 81; 537 NW2d 909

(1995), mod in part on other grounds 450 Mich 1212 (1995). In Michigan, the

defense of self-defense is not available when a defendant is the initial aggressor

unless he withdraws from any further encounter with the victim and

communicates his withdrawal to the victim. People v Kemp, 202 Mich App

318, 322-323; 508 NW2d 184 (1993), abrogated on other grounds by statute,

as noted in People v Reese, 491 Mich 127, 148-149, 151-157 (2012); see also

CJI2d 7.18. Further, the decision whether to request certain jury instructions is a

matter of trial strategy. People v Sardy, 216 Mich App 111, 116; 549 NW2d 23

(1996) ("Remaining are defendant's allegations that he was denied the

effective assistance of counsel because of counsel's failure to object to

prosecutorial misconduct and counsel's failure to ask for an instruction regarding

lesser included offenses. In both cases, defendant fails to overcome his burden of



showing that counsel's conduct did not constitute sound trial strategy.").

At trial, defendant was the only witness

who testified to the events that occurred during his altercation with Wiley.

Defendant admitted that he had sent a threatening message to Wiley, and that

he arrived at Wiley's home late at night with a firearm. He claimed that he never

intended to kill Wiley that night, and he had his firearm on him for "other

reasons." Defendant testified that he waited for Wiley to come to the door, and

after a few moments Wiley aggressively approached defendant, trying to fight. At

this point, defendant immediately pulled his gun out of his pocket and pointed it at

Wiley. After the two struggled for some time, and the handgun allegedly went off,

nearly missing defendant, he became scared that Wiley was going to take the

gun from him, so defendant shot Wiley. Based on defendant's own testimony, he

was the initial aggressor because he sent Wiley a threatening text message and

showed up unannounced at Wiley's home late at night, armed with a gun, on the

same day he sent the message. Thereafter, defendant and Wiley

immediately engaged in a physical altercation, during which defendant shot

Wiley. Based upon this testimony from defendant, it is clear that defendant never

"genuinely stopped [his assault] and clearly let the other person know that [he]

wanted to make peace." CJI2d 7.18. Thus, at least arguably, the evidence

elicited at trial does not support an instruction on defendant's withdrawal

after being the initial aggressor, Mills, 450 Mich at 81, and defendant cannot

overcome the presumption that defense counsel's decision not to request the

instruction was a matter of trial strategy, Sardy, 216 Mich App at 116.

[ . . . ]

__________________________________________________________________________________________



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:

Appellant challenges his conviction of

third-degree assault, arguing that the district court [ . . . ] applied the wrong

legal standard to his self-defense claim. Because [ . . . ] the district court properly

evaluated appellant's self-defense claim, we affirm.

FACTS

Appellant Trevir Lee Nakomous Siltman

assaulted fellow inmate Shaun Mankey at the Ramsey County Correctional Facility

(workhouse). The last punch thrown by Siltman caused an injury to Mankey's

nose. The entire incident was observed by correctional officer Brian Sanders and

recorded by workhouse security cameras.

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

on the history Mankey gave and his symptoms of contusions to the head,

nasal bleeding, and swelling in the nasal area, Dr. Harris diagnosed fracture of the

bony or cartilaginous area of the nose.

Siltman was charged with third-degree assault, in violation of Minn. Stat.

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

any bodily member), .223, subd. 1 (defining third-degree assault as requiring

infliction of substantial bodily harm) (2012). Siltman waived his right to a jury

trial and gave notice of the intent to claim self-defense. The recording of the

incident was admitted as a trial exhibit, and Mankey, Officer Sanders, and Dr.

Harris testified for the state.

[ . . . ]



2. The record reflects that the district court applied the correct standard to Siltman's self-defense claim.

The elements of self-defense include (1) absence of aggression or provocation on

the part of the defendant; (2) the defendant's actual and honest belief that

he or she was in imminent danger of death or great bodily harm; (3) the

existence of reasonable grounds for the belief; and (4) the absence of a

reasonable possibility of retreat to avoid the danger. State v. Johnson, 719 N.W.2d

619, 629-30 (Minn. 2006). When, as here, a defendant admits that he was the

initial aggressor, the defendant can establish a revived self-defense claim by

establishing that he (1) declined to carry on the assault, (2) honestly tried to

escape from it, and (3) clearly and fairly informed the adversary of his desire for

peace and an abandonment of the assault. See State v. Carridine, 812 N.W.

2d 130, 144 (Minn. 2012).

A defendant has the burden of production to come forward with evidence to support

a self-defense claim. State v. Penkaty, 708 N.W.2d 185, 207-08 (Minn. 2006). If

the defendant meets this burden, the burden shifts to the state to disprove one

or more of the elements of self-defense beyond a reasonable doubt. Id.

At trial, Siltman asserted that, although

he was the initial aggressor, at the time he threw the punch that injured Mankey,

he was acting in self-defense. In its

amended findings of fact, conclusions of law, and order, the district court found

that after Siltman began the fight, Mankey came toward Siltman, attempting to hit

him. The district court found that Siltman "although able to escape, punched

[Mankey] one more time in his face. He connected with [Mankey's] nose." The

district court also found that Siltman "presented no evidence to support [self-

defense] other than the video tape of the incident" and "[t]hat [Siltman] has not met

his burden of establishing that he acted in self-defense." Siltman argues that the

district court's findings demonstrate that the district court improperly shifted the

burden of proof of self-defense to Siltman, requiring reversal of his

conviction and remand for consideration under the correct legal standard.

The state argues that the district court's

finding that Siltman failed to meet his "burden" plainly refers to Siltman's

"burden of production." Under the circumstances of this case, we agree.

Siltman's argument is, in part, based on

his assertion that if the reference in the district court's finding to his "burden" was

meant to be a reference to his burden of production, he was entitled to know about

that finding prior to final arguments. Siltman supports this argument with

caselaw holding that a defendant is entitled to a jury instruction on self-

defense if he meets his burden of production such that, in a jury trial, a

defendant must know whether he has



met that burden before final argument in order to determine if he will be able to

argue self-defense. See Johnson, 719 N.W.2d at 629-30. But Siltman cites no

authority for his proposition that in a bench trial the district court is required to

make and announce a finding that the defendant has or has not met the burden

of production prior to final arguments. There is no such requirement. And the

record does not reflect that Siltman's final argument was affected by lack of such a

ruling prior to final arguments. Siltman fully argued both self-defense and that

the state had failed to prove substantial bodily harm.

The state's final argument focused

extensively on Siltman's failure to meet his burden of production to support his

self-defense claim and in its rebuttal

argument, the state correctly stated the law as it pertains to revival of an

aggressor's right to self-defense. The record plainly establishes that Siltman

carried on the assault after his initial punch, did not try to escape although

escape was possible, and never informed Mankey by word or act that he desired to

abandon the assault. Despite the wording of the district court's finding, the record

makes it plain that the district court's reference to Siltman's burden refers to

the "burden of production," not the "burden of proof" of self-defense. We

conclude that the finding does not demonstrate that the district court

improperly shifted the ultimate burden of proof to Siltman.

[ . . . ]

__________________________________________________________________________________________



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:

[ . . . ]

A jury in the Jones County Circuit Court

convicted Quincy Clayton of manslaughter for the death of Clayton's

wife, Alice Wash Clayton. The circuit court sentenced Clayton to twenty years

in the custody of the Mississippi Department of Corrections (MDOC) for

the manslaughter conviction and five years for the firearm sentence

enhancement pursuant to Mississippi Code Annotated section 97-37-37(1)

(Rev. 2014), to run consecutively to his manslaughter sentence. Clayton [ . . . ]

appealed, asking this Court to determine whether the circuit court erred in not

applying the Weathersby1 rule and whether the application of the firearm

sentence enhancement was proper. We affirm Clayton's conviction for

manslaughter; however, we reverse on the issue of the firearm sentence

enhancement and remand for Clayton to be resentenced without the

enhancement.

FACTS AND PROCEDURAL HISTORY

[ . . . ]

At trial, Alice's sister, Mary Wash, testified

that she was living with Clayton and Alice at the time of the incident on June 21,

2009. According to Wash, Alice and Clayton had been arguing the night

before, and the fighting continued the following morning, when Alice swung a

knife at Clayton a couple of times while they were all in the kitchen. Wash was

able to convince Alice to put the knife down. Clayton then began ironing some

clothes for church, but Alice pulled them off the ironing board and stomped on

them. Alice then went to their bedroom and shut the door. Clayton finished

ironing, and he went to the bedroom to retrieve his church shoes. Alice refused to

let him in the room to retrieve his shoes. Alice and Clayton continued arguing

through the bedroom door. Wash testified that from her seat in the living room, she

could see down the hall to where Clayton



was standing outside the room. She stated that she did not see him kick open

the bedroom door, but when she turned to look down the hall again, she saw him

with the shotgun and heard a "boom." Wash stated that when she heard the

"boom," she jumped out of her chair and ran down the hall toward Clayton, and

they began wrestling over the shotgun. Clayton let go of the shotgun, and, as he

was leaving, he said, "that will shut her up," and "I'm through."

Clayton also testified at trial. Clayton

stated that he and Alice had been arguing the night before the incident, and that

Alice would not let him sleep in their bedroom. The following morning, the

arguing continued, and Alice took his clothes, threw them on the floor, and

stomped on them. According to Clayton, he picked up the clothes, and Alice

started slapping him and "coming after him." Clayton pushed her into a chair, and

Alice then went into the kitchen and returned with a knife.2 She continued

hitting him and threatened to cut him with the knife; Clayton pushed her into the

chair again. Alice got up from the chair and swung the knife at Clayton, cutting

him on his shoulder. She went to the bedroom, while Clayton remained in the

living room. A few minutes later, Clayton went to the bedroom to get his church

shoes, but Alice "came at [him] with that knife stabbing at [him], telling [him] to get

out of her damn room." Clayton testified he tried a couple more times to get his

shoes, and she kept running him out of

the room. He sat down in the hallway outside of the bedroom and said, "you

need to stop acting stupid." According to Clayton, Alice came out of the bedroom

and started kicking and slapping him, and she "stuck" him in the side with the knife.

Alice again went back into the bedroom and locked the door. Clayton again asked

to come get his church shoes, and when Alice said he could not, he pushed the

door all the way open, and "[t]he frame and everything came off," because Alice

had slammed it so hard. Alice again came at Clayton with the knife. Clayton backed

out of the room and then got the shotgun he had used the day before to shoot a

snake. He then went back to the bedroom to "bluff" his way into getting his shoes.

He testified:

When I walked in my bedroom, inside of my bedroom, when I walked

in she come from around that bed with that knife drawn back up at me. I

mean, I can see the white in her eyes. I mean, she had a look on her

face. I mean, she didn't even look like my wife when I seen her. And she

was coming up on me with that knife. . . . I ended up pulling the

trigger. . . . And it was an accident what happened because I wasn't

trying to shoot her.

Clay

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