2015 #25 self defense weekly law report

Law of Self Defense: Weekly Law Report 2015 #25 (June 8-12, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 34

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. 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: The Law of Self Defense is well-known for translating the legalese of self-defense law into plain English easily understood by non-lawyers, as you do in your books, seminars, online training, and blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain English?

A: Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for weekly reports of this type. Therefore we consider these reports a graduate-level product, for people who already have a solid understanding of the legal principles of self-defense law. To get up to speed we

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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. 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.

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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.



Table of Contents

CALIFORNIA

People v. Villeda, 2015 Cal. App. Unpub. LEXIS 4070 (CA Ct. App. 2015)

Key issues:

Self-defense, elements; Imminent threat; Reasonableness; Proportionality; Hands and feet can be force capable of causing great bodily injury; Burden of persuasion on the state beyond a reasonable doubt;

Date: June 9, 2015

INDIANA

Brown v. State, 2015 Ind. App. Unpub. LEXIS 654 (IN Ct. App. 2015)

Key issues:

Self-defense, elements; Imminence; Reasonableness; Innocence, initial aggressor; Proportionality; Burden of persuasion on state, beyond a reasonable doubt;

Date: June 11, 2015

MASSACHUSETTS

Commonwealth v. Asher, 417 Mass. 580 (MA Supreme Court 2015)

Key issues:

Police use of force on unarmed suspect; Proportionality, excessive force used; Conditions for police use of force capable of causing death or grave bodily harm.

Date: June 9, 2015

MICHIGAN

People v. McCowan, 2015 Mich. App. LEXIS 1161 (MI Ct. App. 2015)

Key issues:

Evidence of attackers (victims) reputation for violence is admissible, if known to defender (defendant)

Date: June 9, 2015

5

9

11

18



OHIO

State v. Hively, 2015 Ohio 2297 (OH Ct. App. 2015)

Key issues:

Duty to retreat waived (Stand-Your-Ground) within own vehicle (Castle Doctrine); Self-defense, elements; Innocence; Imminence; Reasonableness; Presumption of reasonableness; Proportionality; Avoidance; Burden of persuasion on the defendant, by a preponderance of the evidence;

Date: June 8, 2015

PENNSYLVANIA

Commonwealth v. Williams, 2015 Pa. Super. Unpub. LEXIS 1671 (PA Superior Court 2015)

Key issues:

Proportionality; Disparity of force; Attacker (victim) much larger than defender (defendant); Self-defense, elements; Reasonableness; Imminence; Innocence; Avoidance; Burden of persuasion on the State beyond a reasonable doubt;

Date: June 8, 2015

Commonwealth v. Kemp, 2015 Pa. Super. Unpub. LEXIS 1668 (PA Superior Court 2015)

Key issues:

Evidence of attackers (victims) reputation for violence; Burden of persuasion on the State, beyond a reasonable doubt; Reasonableness; Innocence; Avoidance.

Date: June 8, 2015

Page

20

26

31



CALIFORNIA

People v. Villeda, 2015 Cal. App. Unpub. LEXIS 4070 (CA Ct. App. 2015)

Key issues:

Self-defense, elements;

Imminent threat;

Reasonableness;

Proportionality;

Hands and feet can be force capable of causing great bodily injury;

Burden of persuasion on the state beyond a reasonable doubt;

Date: June 9, 2015

Decision:

A jury convicted defendant Juan Carlos Villeda of assault by force likely to produce great bodily injury

(Pen. Code, 245, subd. (a)(4); all statutory citations are to the Penal Code). The trial court found Villeda

had suffered a prior conviction for attempted robbery, a serious or violent felony, within the meaning of the

Three Strikes law ( 1170.12, subds. (b), (c)(1); 667, subds. (d) and (e)(1)). Villeda contends there is

insufficient evidence to support the conviction. Alternatively, he argues the trial court abused its

discretion in declining to strike his prior conviction. ( 1385; People v. Superior Court (Romero) (1996) 13

Cal.4th 497.) For the reasons expressed below, we affirm.

I Factual and Procedural Background

On the evening of December 8, 2012, Jeremy Silva

had just left work at a Santa Ana restaurant when he saw two men grappling and throwing punches outside

a nearby bar. He noticed one man wore jeans and a gray sweatshirt and the other wore a white shirt.

During the clash, the man wearing the white shirt ended up on the ground.

About 10 minutes later, Silva heard someone in the

parking lot of an adjacent grocery store scream something like, "Do you want some more shit?" Silva

spotted a man lying on the ground, helpless and apparently unconscious. The other man kicked the

downed man's body three times, and stomped on his face twice, yelling "I told you" several times. Silva ran

over, yelled, "stop," and intervened to prevent further harm. The man on the ground, Jonathan Sanchez,1

was bleeding from his ears and had numerous cuts on his swollen face.

Sanchez testified his former father-in-law, Wilfredo

Audon, asked Sanchez to join him for an evening in the bar. Audon brought along his stepson, Villeda,

who wore jeans and a gray shirt. Sanchez consumed two whiskeys, while Audon and Villeda drank beer. As

the group left the bar, Sanchez offered to shake Villeda's hand, but Villeda grabbed Sanchez's hand



and began throwing punches. Sanchez did not strike back. They ended up on the ground with Villeda on

top of Sanchez before Audon and other bystanders separated them. Sanchez did not know why the fight

occurred. He and Villeda did not have any prior disputes.

Audon and Villeda walked away. Sanchez got into his

truck and called Audon to find out why the fight occurred. Audon said he did not know what prompted

the fight and told Sanchez he and Villeda were at the grocery store if Sanchez wanted to talk and "solve

things" with Villeda. Admittedly angry, Sanchez drove to the store to find out "what was going on or why that

happened." Sanchez parked and screamed something at Villeda. Sanchez first claimed he did not

remember what occurred next, but then recalled punching Villeda, who returned Sanchez's blow with

one of his own. Sanchez's next recollection was waking up in the hospital.

Sanchez suffered a broken nose, had trouble

breathing, and endured tremendous pain. He received stitches because "two parts of [his] lip . . .

were falling apart." Sanchez spent two days in the hospital, and took pain medication for over a month.

As a result of the beating, Sanchez experienced cognitive difficulties and panic attacks.

When police officers arrived at the scene, Audon was

cradling Sanchez and helping him stand, but Villeda had fled the scene. When officers arrived at Villeda's

apartment, they found him on a couch next to a bag of clothing containing jeans, a gray hooded

sweatshirt, and tennis shoes. Officers observed dried blood on his left pants leg and blood stains on the

shoes. Villeda did not have any injuries on his face, but his knuckles were swollen and there was a cut on

his right index finger. He denied getting into a fight, claiming he burned himself lighting a candle.

Audon testified he and Villeda asked Sanchez to join

them at a local bar. There were no arguments as they drank and visited. Both men worked for Audon and

they chatted about work. The men decided it was time to go home, and went outside. Villeda and Sanchez

shook hands, then grabbed each other, and both ended up on the ground. Audon and a security guard

separated them. Audon and Villeda walked to a nearby store to buy beer. As they were leaving,

Sanchez drove up and said something like, "Come on, let's finish this." Sanchez approached Villeda, and

started throwing punches, but Villeda knocked Sanchez down with a single punch. Audon claimed he

did not see Villeda kick Sanchez, but police officers who interviewed Audon at the scene testified Audon

admitted seeing Villeda repeatedly kick Sanchez as he lay on the ground, and Audon told Villeda to stop

because Sanchez was unconscious. Audon "felt that was wrong because [Sanchez] was already knocked

out" and he "could not defend himself."

Following trial in October 2013, the jury convicted Villeda as noted above. In February 2014, the trial

court found Villeda had suffered a prior conviction for attempted robbery in May 2010 within the meaning of

Three Strikes law. In March 2014, the court imposed a prison term of six years eight months, comprised of

the six-year midterm (three years doubled because of the strike prior conviction) for aggravated assault and

a consecutive eight-month term (one-third midterm) for attempted robbery based on Villeda's violation of

probation for the attempted robbery.

II Discussion



A. Substantial Evidence Supports Villeda's Conviction for Assault by Means of Force Likely to Cause Great

Bodily Injury

Villeda contends we must reverse his conviction for assault by means of force likely to cause great bodily

injury because a reasonable trier of fact could not have found the prosecution sustained its burden of

proving he used unnecessary force to repel Sanchez's attack. We disagree.

[ . . . ]

The information charged Villeda with a violation of

section 245, subdivision (a)(4), which punishes any person "who commits an assault upon the person of

another by any means of force likely to produce great bodily injury." "An assault is an unlawful attempt,

coupled with a present ability, to commit a violent injury on the person of another." ( 240.) Section 245,

subdivision (a)(4), prohibits the use of "force likely to produce great bodily injury, whether the victim in fact

suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) An assault by the use

of hands, fists or feet may support a conviction of assault by means of force likely to produce great

bodily injury. (Ibid.; People v. Sargent(1999) 19 Cal.4th 1206, 1221 [whether force used by the defendant

was likely to produce great bodily injury is a question for the trier of fact to decide].)

A person acts in lawful self-defense when the person

reasonably believes she is in imminent danger of suffering bodily injury, she reasonably believes the

immediate use of force is necessary to defend against the danger, and she uses no more force than

reasonably necessary to defend against the danger. (People v. Villanueva (2008) 169 Cal.App.4th 41,

49-50; CALCRIM No. 3470.) The prosecution has the

burden to prove a defendant did not act in self-defense. (People v. Adrian (1982) 135 Cal.App.3d

335, 340-342 [prosecution must disprove self-defense to prove unlawful use of force for assault].)

Villeda contends the evidence shows he acted in self-

defense and used only the force necessary to defend himself. He asserts Sanchez drove to the grocery

store to confront him, screamed at him, ran toward him, and punched him. He states, "[t]he fight was

short-lived; it was over in seconds" and his "limited conduct was necessary and justified to repel Sanchez

from attacking [him]." He also notes the jury found insufficient evidence he inflicted great bodily injury,

which he interprets to mean he "used minimal force to repel Sanchez's attack and that the case against

appellant is weak and exaggerated." We do not find Villeda's argument persuasive.

The jury reasonably could conclude Villeda exceeded

the force necessary to defend himself when he kicked Sanchez several times in the body and face as

Sanchez lay helpless and unconscious on the ground. The right to use force in self-defense continues only

as long as the danger exists or reasonably appears to exist. (People v. Pinholster (1992) 1 Cal.4th 865, 966,

disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) Assuming Sanchez was

the initial attacker, the jury reasonably could conclude Sanchez was no longer capable of inflicting injury

because he was unconscious when Villeda continued to pummel him. (People v. Parrish (1985) 170

Cal.App.3d 336, 352 [even if the initial encounter afforded right to self-defense, the defense did not

justify "recurrent attacks upon the victim while he lay on the ground helpless and unconscious"].) As Audon

observed, Villeda kicked Sanchez on the ground after he was knocked out and could not defend himself. As

for Villeda's claim the jury's finding on the great bodily



injury enhancement reflected the jury found he "used minimal force to repel Sanchez's attack," the jury may

have concluded that while Villeda employed force likely to cause great bodily injury, he did not actually

inflict great bodily injury, defined as significant or substantial injury that is more than minor or moderate.

(See CALCRIM No. 3160 [defining great bodily injury as significant or substantial physical injury].)

Substantial evidence supports the conviction.

[ . . . ]

III Disposition

The judgment is affirmed.

__________________________________________________________________________________________



INDIANA

Brown v. State, 2015 Ind. App. Unpub. LEXIS 654 (IN Ct. App. 2015)

Key issues:


Imminence;

Reasonableness;

Innocence, initial aggressor;

Proportionality;

Burden of persuasion on state, beyond a reasonable doubt;

Date: June 11, 2015

Decision:

Keith Brown appeals his conviction of and sentence for murder, a felony.1 We affirm.

Facts and Procedural History

On the evening of June 27, 2013, Maria Rodriguez

saw Brown carrying a gun. When asked why he had a gun, Brown replied he was "tired of these people

talking shit" about him. (Tr. at 277.) Later that evening, Brown arrived at the apartment of Maria's

next door neighbor, Angela Meadors, asking if Angela had heard a rumor about Brown. Angela told Brown

he needed to talk to Maria. Brown went next door and brought Maria to Angela's apartment.

At the time, Angela was hosting a birthday party for

her fianc, Jimmy Fesler. There were multiple people present, including children. Brown entered the kitchen

to confront Angela about the rumor. He told Angela to "keep . . . his fucking name out of her mouth." (Id. at

286.) Fesler then stood up and told Brown to "quit . . . disrespecting [his] old lady." (Id. at 65.) Brown took

the gun from his pocket, cocked it, and shot Fesler twice, once in the face and once in the neck. Fesler

died from his injuries.

Brown fled, and police arrested him in Detroit, Michigan on August 4, 2013. The State charged

Brown with murder and the State requested a sentencing enhancement because Brown used a

handgun in the commission of the crime.2 On September 30, 2014, a jury found Brown guilty of

murder and the State declined to proceed with the sentencing enhancement. On October 8, the trial

court sentenced Brown to sixty years.

Discussion and Decision

[ . . . ]

B. Self-Defense

Our standard of review regarding a claim of self-defense is well-settled:



"Self-defense is recognized as a valid justification

for an otherwise criminal act." "A person is justified in using reasonable force against another

person to protect himself . . . from what he reasonably believes to be the imminent use of

unlawful force." Self[-]defense is established if a defendant (1) was in a place where the defendant

had a right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a

reasonable fear of death or great bodily harm. . . . [O]nce a defendant claims self-defense, the State

bears the burden of disproving at least one of the elements beyond a reasonable doubt. The State

may meet its burden of proof by "rebutting the defense directly, by affirmatively showing that the

defendant did not act in self [-]defense, or by simply relying upon the sufficiency of its evidence

in chief."

Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000) (citations omitted).

Brown argues he acted in self-defense when shooting

Fesler because Fesler spoke to him in a threatening manner, Fesler was much larger than Brown, and

Fesler grabbed Brown's wrist after Brown drew his gun. However, the State presented evidence Brown

was the initial aggressor when he pulled a gun from his pocket after Fesler asked Brown to stop

disrespecting Angela, and thus the State properly rebutted Brown's claim of self-defense. See id. (State

rebuts defendant's claim of self-defense upon proving defendant was initial aggressor in confrontation).

Brown's arguments to the contrary are invitations for us to reweigh the evidence, which we cannot do. See

Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the credibility of

witnesses).

Conclusion

The State presented sufficient evidence Brown committed murder, and it rebutted his claim of self-

defense. His sentence was not inappropriate based on his character and the nature of the offense.

Accordingly, we affirm.

__________________________________________________________________________________________



MASSACHUSETTS

Commonwealth v. Asher, 417 Mass. 580 (MA Supreme Court 2015)

Key issues:

Police use of force on unarmed suspect;

Proportionality, excessive force used;

Conditions for police use of force capable of causing death or grave bodily harm.

Date: June 9, 2015

Decision:

This case concerns the beating of an unarmed civilian by the defendant Jeffrey Asher, a police officer who

responded to another officer's request for assistance with a traffic stop in Springfield. The defendant was

charged with assault and battery by means of a dangerous weapon in violation of G. L. c. 265, 15A

(b), and assault and battery in violation of G. L. c. 265, 13A (a). At trial, the defendant contended, and

presented evidence seeking to show, that the beating was justified based on the need for self-defense and

defense of others present. The jury found him guilty of both charges. We affirm the convictions.

Background. 1. Facts. Based on the evidence

presented at trial, the jury could have found the following. On the evening of November 27, 2009,

Officer Michael Sedergren and Lieutenant John Bobianski of the Springfield police department were

on patrol in a cruiser when they observed a black Honda Civic automobile dragging its muffler and

causing sparks to fly behind it. The officers stopped the vehicle, and Bobianski spoke to the driver, Malika

Barnett. While Bobianski was speaking to Barnett, Sedergren observed Barnett's companion, Melvin

Jones, who was the sole passenger in the vehicle

(and the victim in this case), slide toward the floor in the right front passenger's seat and stuff something in

his waistband. Concerned that the victim could be hiding a weapon or other contraband, Sedergren

requested assistance over the police radio from Officer Theodore Truoiolo and the defendant, who

were together on patrol that night in a separate vehicle.

Once Truoiolo and the defendant arrived, all four

officers approached the Honda, with two officers on each side of the vehicle.1 Truoiolo and Sedergren

went to the passenger's side and asked the victim to step out of the vehicle so that they could conduct a

patfrisk of him. The victim complied. At the officers' instruction, the victim moved to the rear of the vehicle

and placed his hands on the trunk. Truoiolo then began patting the victim's outer garments to check for

weapons. When Truoiolo reached the victim's front right pants pocket, Truoiolo felt a hard object no

bigger than his palm.2 Truoiolo squeezed the object and yanked the victim toward himself; as he did so,

the victim threw his elbow and forearm into Truoiolo's chest and tried to run away.



Sedergren caught the victim around the neck about five feet from the vehicle, but the victim continued to

try to run, and the two men ended up against the side of the hood of the second police cruiser. Truoiolo then

grabbed hold of the victim's collar and right shoulder, while Sedergren had the victim in a "choke hold type

maneuver" and was on top of the victim's back. At this point, the victim was bent forward over the hood of

the police cruiser, with his head facing the windshield and his legs spread apart. The defendant, having

seen the victim try to run, went over to the cruiser where the victim was lying spread eagle. The

defendant was unable to see the victim's hands, but in response to a statement of Sedergren's, the

defendant began to hit the victim repeatedly around his head with a flashlight.3 Although not all the blows

hit the victim's head, the defendant swung the flashlight at the victim fourteen or more times. At least

three strikes made contact with the victim's head and upper body.

The victim continued to move after the first strikes to

his head. The officers were shouting commands such as "don't move" and "give us your hands," but they

did not state that the victim was under arrest. Eventually, Truoiolo cuffed the victim's right hand but

could not reach the victim's left hand because of where Sedergren was positioned. The defendant,

realizing that many of his blows were hitting the hood of the cruiser rather than the victim's upper body,

moved down and delivered three hard blows with the flashlight to the victim's upper leg. Then, in response

to another statement from Sedergren, the defendant hit the victim behind his left knee.4 Following that

blow, the victim fell to the ground with the officers on top of him. The defendant continued to hit the victim

as he was lying still on the ground, this time around the victim's upper body and his feet. Eventually, the

officers rolled the victim to the side while he lay on the

ground and finished handcuffing him, and then Truoiolo reached into the victim's pocket and pulled

out the hard object that he had felt earlier, a small bag that was determined to contain "crack" cocaine and

marijuana. The victim had no weapons on his person, and no weapons were found in the vehicle.

The victim was taken by ambulance to Baystate

Medical Center. The right side of his face was deformed from swelling and bruising, and he suffered

fractures of his orbital socket and nose. The victim was also diagnosed with a choroidal rupture, an eye

injury resulting from blunt force trauma to the head and causing loss of vision in his right eye. At the time

of trial, in February, 2012, the victim continued to experience vision loss.

Two persons in a house across the street from where

the officers stopped the vehicle noticed the incident developing and recorded much of it on a video

camera. The recording, which includes both audio and video, was admitted as an exhibit at trial.

2. Procedural history. On October 14, 2010, a

complaint issued from the Holyoke Division of the District Court Department, charging the defendant

with assault and battery by means of a dangerous weapon and assault and battery. Several months

later, the defendant filed a notice stating that he would raise as defenses (1) self-defense, (2) defense of

another, and (3) "[d]efense of a law enforcement officer's right to use force reasonably necessary to

effect an arrest, overcome physical resistance and/or prevent escape." See Mass. R. Crim. P. 14 (b) (3), as

appearing in 442 Mass. 1518 (2004). Thereafter, approximately three months before trial, the

defendant filed an expert witness report of Dr. Frank Gallo, director of the master of science in policing

program at Western New England University, that the



defendant claimed supported a conclusion that the defendant's use of force against the victim was

reasonable.5 The Commonwealth responded to the notice of defenses and to the expert witness report by

filing a motion in limine to exclude any defense based on the reasonable force necessary to effect an arrest.

6 In response, in two subsequent pretrial hearings regarding Gallo's proposed testimony, the defendant's

trial counsel stated repeatedly that reasonable force to effect an arrest was not the legal theory on which

the defendant was relying and on which Gallo's testimony would be based. Rather, counsel asserted

that the defendant's theory of the case, reflected in Gallo's testimony (see note 5, supra), was that the

defendant used force to effect a Terry-type stop and a pat/frisk of the victim, see Terry v. Ohio, 392 U.S. 1,

27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and that, ultimately, the force used was reasonably necessary

for self-defense and defense of others, and also based on a police officer's training to escalate the use

of force in response to a deadly threat, such as a suspect obtaining an officer's gun.7 The

Commonwealth indicated that if the defendant was not asserting that he used reasonable force to effect

an arrest, then the Commonwealth's motion in limine to exclude evidence of this defense was moot. The

trial judge does not appear to have ruled on the motion in limine to exclude, but she did rule

preliminarily that Gallo would be allowed to testify at trial.

The defendant was tried before a jury in February,

2012. Despite the trial judge's preliminary ruling concerning Gallo, the defendant did not call Gallo as

a trial witness. At the close of the evidence, the defendant submitted a request for jury instructions

that included repeated reference to the defendant's status as a police officer, to a police officer's right to

use force in making an arrest, and to the fact that a

person who is being arrested by a police officer may not use force to resist arrest. The defendant also

proposed instructions on self-defense and defense of another that mirrored in most respects the District

Court's model jury instructions on these defenses, and that included the duty to exhaust all other

options, including retreat, before resorting to force. See Instruction 9.260 of the Criminal Model Jury

Instructions for Use in the District Court, at 1-5, 17 (2009) (Instruction 9.260). In connection with each of

the defendant's proposed instructions, including the instruction on self-defense, the defendant sought a

statement regarding his status as a police officer.

At the charge conference, the judge indicated initially that she would instruct the jury on the definition of

arrest and on police privilege in some form, although not using the defendant's proposed language. The

judge later presented both counsel with a proposed instruction stating that "[b]ecause of the nature of the

job, a police officer is permitted to use force in carrying out his official duties if such force is

necessary and reasonable," and that a civilian who is arrested by a police officer must submit to the arrest,

but a police officer may not use "excessive or unnecessary force" to make an arrest.8 The

defendant indicated his satisfaction with this instruction. The Commonwealth, however, objected to

it on the ground, among others, that it was essentially an instruction on resisting arrest, a defense the

defendant had earlier eschewed. After further discussion with counsel, the judge determined that

the planned instruction was confusing and misstated the law, and that, therefore, the instruction would not

be given; the defendant objected. The judge's instructions to the jury ultimately included self-

defense and defense of another, but did not reference the defendant's status as a police officer in

connection with those defenses or otherwise.



The jury found the defendant guilty of both charges.

The defendant timely appealed. We transferred the case from the Appeals Court on our own motion.

Discussion. On appeal, the defendant primarily

challenges the trial judge's decision not to give the jury the instruction she had proposed on police

privilege and resisting arrest, which had the effect of eliminating entirely from her jury instructions any

reference to a police officer's ability to use reasonable force in connection with official duties. This issue was

exacerbated, the defendant argues, by the judge's instructions on self-defense, which included reference

to the duty to retreat -- a requirement that in the defendant's view is inappropriate when the person

asserting the defense is a police officer. At trial, the defendant's actual objection to the jury instructions

before and after the jury charge specifically focused on the judge's decision not to give her proposed

instruction on police privilege and resisting arrest. Nevertheless, because the defendant's status as a

police officer was clearly a central issue throughout the trial and a focal point of the defense,9 on appeal,

we treat the defendant's challenge to the judge's instructions generally as preserved. We therefore

review the judge's instructions for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591, 839

N.E.2d 324 (2005). In doing so, we conclude that the judge's instructions, insofar as they contained no

reference to the defendant's status as a police officer and included the duty to retreat in the explanation of

self-defense, were flawed. We further conclude, however, that the errors were not prejudicial when

considered in the context of the evidence in the case and the instructions as a whole.

We consider first the judge's decision not to give her

proposed police privilege and resisting arrest

instruction.10 This decision was appropriate in the circumstances of this case for two reasons. The first

concerns fairness. By initially suggesting an intent to pursue the defense of effecting an arrest and then

disavowing it, counsel effectively indicated to the Commonwealth that it need not present evidence

aimed at overcoming this defense.11 Indeed, the prosecutor argued during the charge conference that

had she anticipated a defense based on the use of force to effect an arrest and a related jury instruction,

she would have called a potential expert witness to rebut this theory.12

Second, and more importantly, the judge was correct

in her eventual conclusion that her proposed instruction would have confused and potentially

misled the jury. The planned instruction was based on the District Court's model jury instruction on police

privilege and resisting arrest, which primarily serves to articulate that a civilian who is being arrested by

someone the civilian knows is a police officer must submit to the arrest and may not use force against the

arresting officer unless the officer uses excessive or unnecessary force to make the arrest. See Instruction

9.260, at 12-13.13 This case, however, presents the opposite scenario: the defendant was a police officer

charged with assault and battery on a civilian. In addition, to the extent that both the model instruction

and the trial judge's proposed instruction discussed self-defense, like the model instruction, the proposed

instruction spoke only of a civilian's right to defend himself or herself against a police officer who uses

excessive force, not the other way around.14 See note 10, supra. See also Instruction 9.260.

Accordingly, the instruction was structured so as to focus the jury on evaluating the actions of the putative

arrestee and on whether those actions were reasonable in light of the police officer's use of force,

rather than on the reasonableness of the police



officer's actions. But here, where the defendant was a police officer who claimed that his actions were

necessary for self-defense and defense of others against violence at the hands of the victim, the

opposite focus was the essential one, that is, whether the officer's claims in response to the victim's alleged

use of force and related conduct were reasonable. Given the context, the proposed instruction's potential

for creating juror misunderstanding was a real one.

But that is not the end of the matter. Although the judge did not err in declining to give her proposed

instruction, this case was fundamentally about the reasonableness of a police officer's use of force

against a civilian; therefore, the judge's instructions should have acknowledged the defendant's status

and explained that, as a police officer, the defendant would have been justified in using force in connection

with his official duties, including effecting an arrest, as long as such force was necessary and reasonable.15

The language that begins the model instruction on police privilege and resisting arrest is not the only

possible approach, but this language does convey a police officer's right to use reasonable force. See

Instruction 9.260, at 12 ("Because of the nature of the job, a police officer is permitted to use force in

carrying out his [her] official duties if such force is necessary and reasonable").

In addition, the defendant raises legitimate concerns

with respect to the judge's instruction on self-defense. In keeping with the model jury instruction on self-

defense, the judge referenced a defendant's obligation to do "everything reasonable in the

circumstances to avoid physical combat before resorting to force" including considering "avenues of

escape that were reasonably available." See Instruction 9.260, at 2, 4. We agree with the

defendant that a police officer has an obligation to

protect his fellow officers and the public at large that goes beyond that of an ordinary citizen, such that

retreat or escape is not a viable option for an on-duty police officer faced with a potential threat of violence.

Cf. Reed v. Hoy, 909 F.2d 324, 331 (9th Cir. 1989), cert. denied, 501 U.S. 1250, 111 S. Ct. 2887, 115 L.

Ed. 2d 1053 (1991), recognized as overruled on other grounds, Edgerly v. City & County of San Francisco,

599 F.3d 946, 956 n.14 (9th Cir. 2010) (duty to retreat before resorting to deadly force "may be inconsistent

with police officers' duty to the public to pursue investigations of criminal activity" and should not

apply absent clear authority, which plaintiff had not identified). The supplemental model instruction on the

duty to retreat before resorting to the use of force in self-defense should not have been given in this case.

Furthermore, while it is appropriate to require a police officer to do "everything reasonable in the

circumstances to avoid physical combat before resorting to force" against a civilian, the question must

be whether the defendant as a police officer had reasonable options available other than to use force --

not whether a similarly situated civilian would have had other options.

In sum, the judge's instructions to the jury were

erroneous in two respects: (1) they failed to acknowledge, particularly in connection with the claim

of self-defense, that the defendant was a police officer and that he was entitled to use force in carrying

out his official duties if and to the extent such force was necessary and reasonable; and (2) the self-

defense instruction included an erroneous statement that the defendant had a duty to retreat if possible

under the circumstances. We turn, then, to the question whether the errors were prejudicial to the

defendant. "An error is not prejudicial if it 'did not influence the jury, or had but very slight effect';

however, if we cannot find 'with fair assurance, after



pondering all that happened without stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error,' then it is prejudicial." Cruz, 445 Mass. at 591, quoting

Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994).

Considering the jury instructions as a whole, as we

must, see Commonwealth v. Niemic, 427 Mass. 718, 720, 696 N.E.2d 117 (1998), S.C., 451 Mass. 1008,

885 N.E.2d 824 (2008), as well as the strength of the Commonwealth's case, we conclude that the errors

were not prejudicial. At trial, the defendant admitted to hitting the victim repeatedly with the flashlight, the

victim clearly sustained significant injuries, and the only issue was whether the defendant's acts were

justified. The record as a whole presents extremely strong evidence that the defendant did not strike the

victim in the manner that he did in self-defense and in defense of his fellow officers. The video recording of

the beating showed three officers surrounding a single victim, who was bent over the hood of a car as

the defendant struck him repeatedly with a flashlight. Sedergren, who was on top of the victim's back and

was holding him around the neck, weighed between 250 and 260 pounds at the time of the incident; the

victim, by comparison, weighed about 165 or 170 pounds. None of the officers saw the victim's hand on

Sedergren's gun. Moreover, based on the officers' positioning around the victim, it was implausible if not

impossible that the victim could have reached the gun, because it was holstered on the right side of

Sedergren's body, where Truoiolo was.16 As previously noted, the video recording also belied the

defense's theory, because although an officer can be heard on the recording yelling "smash him in the

knees," see note 3, supra, there was no audible statement or reference regarding a gun.

Furthermore, as part of her charge on self-defense and defense of another, the judge explained that

whether a defendant was justified in using force in his or her own defense or in defense of others depended

upon what a reasonable person would have done in the circumstances that were presented to the

defendant. See Instruction 9.260, at 1-5, 17. Even in the absence of a specific instruction on the

defendant's status as a police officer, it was clear to the jury that he was, in fact, an officer, and that at the

time of the incident, he was involved in a traffic stop as part of his official duties. Moreover, through

Sedergren's and Truoiolo's testimony, the defendant introduced evidence concerning the "continuum" of

force that police officers are trained to use in responding to an individual who presents varying

degrees of threatening behavior or resistance. We presume that the jury followed the judge's instruction,

and in doing so, we assume that they evaluated the defendant's claims of self-defense and defense of

others from the perspective of what a reasonable police officer would have done in the circumstances

presented to him or her.

Finally, we conclude with "fair assurance," Cruz, 445 Mass. at 591, that if the judge had charged the jury

that the defendant was entitled to use such force as was necessary and reasonable to carry out his official

duties, the addition of this instruction would not have had an effect on the verdicts. The force that the

defendant used here -- repeated blows with a flashlight to the head and other parts of the body of a

victim who was bent over the hood of an automobile, and later lying on the ground -- was extreme and went

beyond that which was necessary for the accomplishment of any of the defendant's

responsibilities as a police officer that night. Even if the defendant believed at one point that the victim

was trying to grab Sedergren's gun, that danger



would have completely dissipated by the time the victim was on the ground; yet even then, the

defendant continued to strike the victim. In these circumstances, assuming the jury had been instructed

properly about the defendant's police officer status, the jury reasonably could not have found that the

beating was justified.Conclusion. For the reasons that have been

discussed, the jury instructions in this case should have been more narrowly tailored to reflect the fact

that the defendant was a police officer engaged in his official duties at the time of the incident. However,

given the strength of the evidence against the defendant and the weakness of his defenses, we

conclude that the errors were not prejudicial and that the defendant is not entitled to a new trial.

Judgments affirmed.

__________________________________________________________________________________________



MICHIGAN

People v. McCowan, 2015 Mich. App. LEXIS 1161 (MI Ct. App. 2015)

Key issues:

Evidence of attackers (victims) reputation for violence is admissible, if known to defender

(defendant)

Date: June 9, 2015

Decision:

Defendant appeals by right from his conviction following a jury trial of second-degree murder, MCL

750.317. He was sentenced to serve 20 to 60 years in prison, and for the reasons provided below, we affirm.

The instant appeal involves the stabbing death of

Andrew Singler, who was the boyfriend of defendant's sister. Defendant admitted that he had killed Singler,

but he maintained that the stabbing occurred during a fight in which he feared for his life and acted in self-

defense. He further argued that he had stabbed the victim after suffering a blow to the head, which may

have caused him to suffer a concussion.

I. RIGHT TO PRESENT A DEFENSE

Defendant first raises a number of arguments concerning the trial court's restriction on his ability to

present evidence he claims supported his assertion that he suffered a concussion during the altercation

with the victim. He contends that the trial court's limitation of this evidence deprived him of his right to

present a defense.

[ . . . ]

Defendant next argues that he was erroneously prevented from exploring fully the victim's propensity

for violence, which he maintains was a crucial part of his claim of self-defense. At trial, defendant testified

that he had prior knowledge that the victim had previously been in fights. He claimed this knowledge

came from the victim himself. The trial court sustained the prosecutor's objection when defense counsel

asked what the victim had specifically told defendant. Later, the court clarified its ruling and stated that,

because defendant had already testified that he and the victim had not been involved in any prior fight, the

court found that any other fight that the victim may have been involved with was not relevant; nor was

the victim able to be cross-examined.

Defendant argues that his testimony concerning what he learned from the victim regarding previous fights

should have been admitted because it was directly relevant to defendant's mental state. He argues that

MRE 405 provides that specific instances of conduct can be used when a "trait of character of a person is

an essential element of a . . . defense." Defendant is correct. Evidence of a victim's violent or turbulent

character may be admissible even where the defendant has not claimed self-defense, for instance,



to shed light on whether the killing was accidental or intentional. MRE 404(a)(2); People v Anderson, 147

Mich App 789, 793; 383 NW2d 186 (1985). This evidence is properly offered as reputation or opinion

evidence. People v Harris, 458 Mich 310, 315, 318-320; 583 NW2d 680 (1998), citing MRE 405; see

also Anderson, 147 Mich App at 792. "[T]he character of the victim may not be shown by specific instances

of conduct unless those instances are independently admissible to show some matter apart from character

as circumstantial evidence of the conduct of the victim on a particular occasion." Harris, 458 Mich at 319.

Therefore, while it may be excluded to show that the victim was the initial aggressor, it can be admitted to

show that the victim's prior actions may have reasonably caused the defendant to be apprehensive

of the victim. Id.; see also People v Cooper, 73 Mich App 660, 664; 252 NW2d 564 (1977) (stating that

past, specific violent acts by the victim can be admissible to show a defendant's apprehensive state

of mind). Accordingly, because the excluded evidence was offered to support a claim that defendant feared

for his life when the victim attacked him, defendant is correct that, generally, specific instances of the

victim's actions would be admissible.

However, it matters little whether the jury knew that defendant was aware that the victim had acted

violently in the past. Defendant knew, before appearing at the victim's apartment, that the victim

was in a violent state of mind on the night in question based on the string of text messages exchanged

between defendant and the victim. These exchanges

made it abundantly clear not only to defendant, but to the jury, that the victim unquestionably was highly

aggressive at the time and that his intention was to fight defendant.2 Thus, the jury already was

confronted with ample evidence showing that a reasonable person in defendant's place would have

been apprehensive about approaching the victim. More to the point, with the jury already knowing for

certain that the victim was in a highly aggressive and confrontational state, it knowing that defendant was

aware of other, unrelated, past instances of the victim being violent would not have any tangible effect.

Accordingly, any error was harmless. Further, as defendant did not make an offer of proof, the extent of

any error is not properly preserved for this Court's review. MRE 103(a)(2); People v Hackett, 421 Mich

338, 352; 365 NW2d 120 (1984). As a result, defendant was not denied the right to present a

defense because the jury was presented with evidence that the victim was, in fact, acting

aggressively that night.

[ . . . ]

__________________________________________________________________________________________



OHIO

State v. Hively, 2015 Ohio 2297 (OH Ct. App. 2015)

Key issues:

Duty to retreat waived (Stand-Your-Ground) within own vehicle (Castle Doctrine);

Self-defense, elements; Innocence; Imminence;

Reasonableness;

Presumption of reasonableness;

Proportionality;

Avoidance;

Burden of persuasion on the defendant, by a preponderance of the evidence;

Date: June 8, 2015

Decision:

Appellant-defendant Bruce A. Hively appeals his conviction and sentence from the Gallia County Court

of Common Pleas. A jury found Hively guilty of Aggravated Murder. As a result, the trial court

sentenced him to a total of thirty-three years in prison. Here on appeal, Hively presents two assignments of

error: (1) The trial court erred by denying Hively's request for a castle doctrine jury instruction and (2)

The guilty verdict for Aggravated Murder was against the manifest weight of the evidence. After reviewing

the record in its entirety, this Court overrules Hively's assignments of error and affirms the judgment of the

trial court.

On April 10, 2013, Bruce A. Hively ("Hively") was indicted on one count Murder, a first degree felony, in

violation of R.C. 2903.02(A), one count Aggravated Murder, a first degree felony, in violation of R.C.

2903.01(A), and one count Tampering with Evidence, a third degree felony, in violation of R.C. 2921.12(A)

(2). The charges stemmed from the death of Charles

T. Addis ("Addis") that occurred on April 4, 2013. Hively shot and killed Addis after an altercation

involving Hively, Addis, Addis's older brother Aaron Addis, and Addis's friend Anthony Kyle Knepper

("Knepper").

At trial, the state presented a total of 11 witnesses including Aaron Addis and Knepper. The evidence

admitted at trial included two cell phone recorded videos taken by Knepper that captured a portion of

the April 4, 2013 altercation and the moment the shooting occurred. The state also admitted a video of

an interview between Hively and two agents of the Bureau of Criminal Identification and Investigation

("BCI").

The record reveals the following facts. During the afternoon of April 4, 2013, Hively was on his way

home after checking property he owned in the area when he drove past Dickey Chapel Church on Elliot

Road in Gallia County. As he drove by the church, he



noticed three men, Addis, Knepper, and Aaron Addis in the church parking lot. Hively stopped at the

intersection of Hannan Trace Road, which ran perpendicular to Elliot Road. The church parking is

located to the right of Elliot Road as one approaches Hannan Trace Road. Hively was worried that the men

saw him leaving. In his interview with Agent Trout, Hively stated that the men had a history of

threatening and harassing him. Hively believed that when three of "them" were siting at the church, they

were up to no good. In the interview Hively declared that he was "tired of this," so he decided to turn

around.

According to Knepper's testimony, Hively's vehicle was stopped for "about two or three minutes," before

Hively turned his vehicle around and headed back on Elliot Road. Hively stopped his vehicle on the side of

Elliot Road nearest the church parking lot. Between the church parking lot and Elliot Road is a small

embankment that slopes towards the road. Hively rolled his window down and yelled at the men. At trial

both Knepper and Aaron Addis testified that Hively rolled down his window and waved his pistol out the

window. They also testified that Hively said that he had all three of them now, and asked which one

wants to go first.

At some point, Knepper took out his phone and began to record the altercation. The recording provides both

video and audio coverage. On two separate occasions during the recording, only audio is provided

because the phone's video had been obstructed. Aaron Addis remained sitting inside his vehicle parked

at the top of the embankment for the entirety of the altercation except when the shooting occurred. Aaron

Addis's voice was heard on the recording only a few times. The voices most predominantly featured on the

recording were those of Hively and Knepper.

The first recording began with Hively getting out of his

vehicle as Knepper and Addis walk down the embankment towards him. Without transcribing the

entire video, it is clearly shown that the three men each issued their own threats and taunts. Both Addis

and Knepper come face to face with Hively, with Hively holding up his fists each time. Addis told Hively

to "Let's step out here," pointing to an area away from the vehicle. Hively can be heard saying to Knepper: "I

slapped you once boy." Knepper stated to Hively that he would knock his lights out; Knepper also made

reference to a 12 gauge and that he had "***killed fucking bigger pieces of shit than your fucking ass."

After approximately seventy seconds of constant back and forth yelling and taunting, the situation slightly

calmed down. The video recording became obstructed for the rest of the first video because

Knepper put his phone, with the camera still recording, in his pocket. Hively explained his

suspicions regarding the thefts of his property. Addis and Knepper maintained that they had nothing to do

with it. Aaron Addis can be heard telling Hively that he was tired of him (Hively) coming up there and running

his mouth. The last statement on the first video is from Knepper stating: "Don't be pulling a god damn

gun."

The second video began by showing Addis and Hively standing a few feet away from one another with

Knepper on the left side of Addis. Hively was standing just outside the driver's seat of the vehicle with the

door open. The open door was somewhat between Hively and Knepper but not between Hively and

Addis. Knepper and Addis then talked about Hively holding a gun behind his back. Knepper insisted the

gun was in Hively's right hand tucked behind his back. Hively asked where the gun was and shows his left



empty hand. Then the following exchange between Hively and Addis occurs, briefly on video:

Hively: "What was you going for?"

Addis: "What?"Hively: "Dick sucker, what was you going for?"

Then Knepper turned the video away from Hively and

Addis and back towards the embankment. Seconds pass when the audio captured two gunshots. The

audio on the recording then became primarily the emotional outbursts of Knepper and Aaron Addis.

However, the recording briefly displayed Addis on the ground, writhing in pain, with Hively standing over top

of him. Hively still had the gun pointed at Addis. As the video again turned away from Hivley and Addis,

another gunshot can be heard. The video ended as Knepper and Aaron Addis run from the scene,

retreating to a nearby cemetery.

Sometime after these events, Amanda Nibert ("Nibert"), a corrections officer for the Gallia County

Sheriff's office, who was heading home on Hannan Trace Road, turned onto Elliott Road and saw a man

motionless on the road beside Hively's white Kia. Nibert saw Hively in the church parking lot. Nibert

testified that Hively had blood running down his left wrist and a red mark on his left cheekbone. Nibert

asked Hively if he needed help, to which Hively responded that three boys had jumped him, he

warned them to leave him alone and that he would shoot them. Hively also told Nibert that "Charlie had a

knife and had cut his left wrist and that they stomped him with their boots." Nibert called 911 and advised

them of the situation. Nibert also testified that Knepper and Aaron Addis returned to the scene.

Nibert informed them that the sheriff had been called and that there did not need to be any more trouble.

The state also questioned Nibert about the cell phone reception in the area:

[Prosecutor]: Okay. And um, to your knowledge is

cell phone reception kind of sparse throughout that area?

[Nibert]: Yes.[Prosecutor]: And uh, have you ever went to that

church parking lot to use the cell phone reception?[Nibert]: Yes.

[Prosecutor]: Okay. And explain to me why you would go there?

[Nibert]: Um, just if you want to send a text message. There are only a few places that you

can. It either has to be at the top of my driveway, my window or the church.

BCI Agent Shane Hanshaw processed the scene of

the shooting. He located four spent shell casings. One casing was found in front of the vehicle. A

second was found near the driver side door. The third and fourth casings were found near Addis's body.

Agent Hanshaw also found a small knife in the open position near the upper torso of the back of Addis's

body. It is also notable that on cross-examination, Agent Hanshaw testified that he took "several" swabs

of blood evidence from the front driver's side interior door of Hively's car. Agent Hanshaw released those

swabs to the Sherriff's office. Agent Hanshaw testified that it was not his decision to determine what

evidence would be submitted to BCI for testing.

Later in the trial, the state called Deputy Nathan Harvey to testify. On cross-examination, defense

counsel asked about the blood swabs from the interior of the driver side door. Deputy Harvey stated

that the swabs were not submitted to the lab for testing. Deputy Harvey explained that the swabs were

not submitted because the lab has a limit on the



number of items that can be submitted. The swabs were not submitted "Based on the fact that he [Hively]

admitted to cutting his own hand ..." and they were "***not as important as other items."

BCI Agents Mike Trout and John Jenkins interviewed

Hively after the shooting. Before speaking with the BCI agents, Hively signed a waiver of his Miranda

rights. Video footage of the interview was shown during the trial. During the interview, Hively told Agent

Trout about his history with Addis, Knepper and Aaron Addis. Hively stated that Addis did not like him

because Hively had complained about Addis's riding his four wheeler down the street. Hively stated that

when the boys were at the church they "were up to no good." Worried that the men had seen him when he

initially drove by the church, Hively stated that he turned his car around and told the men that they

should not be up there.

During the interview, Hively asked Agent Trout if he had found his knife. Hively explained that he used the

knife in his fist to make his fist solid. When Knepper and Addis came down the embankment, Hively stated

that he placed the gun in the passenger seat before exiting the vehicle. At this point, Hively explained that

he was "gonna whoop Charlie and get it over with." Hively maintained that he grabbed his gun and came

up firing in response to Knepper pushing Hively back against the car and Addis kicking him in the face.

Hively admitted to emptying the clip; but insisted that he was pushed back into his car.

Prior to interviewing Hively, Agent Trout viewed the

video captured on Knepper's cell phone. Agent Trout testified at trial that: "I didn't see anything, um, in uh,

Mr. Hively's hand. I didn't see the knife that was in his hand that he referenced." Towards the end of the

interview, Agent Trout revealed to Hively that Knepper

was in fact recording video of the incident. Hively admitted that at one point he held the gun down to his

side, but he put the gun back in the car. After a few more questions, Hively admitted that he cut himself

with his knife and that he placed the knife near Addis. Hively stated that he did that so "***there was no

question of me that they done that to me." Although Agent Trout questioned Hively's story relating to being

pushed back into the car, Hively maintained that the gun was in the car; he was pushed back into the car;

and he grabbed the gun and fired at Addis.

The physician who performed the autopsy on Addis identified, both at trial and on his reports, several

gunshot wounds. The wounds included two graze gunshot wounds involving the nose and right

eyebrow, a gunshot wound with an entry and exit wound on the chin, two distant range gunshot wounds

of the chest, both of which lacerated Addis's heart, and an intermediate range wound of the left wrist. The

coroner explained that a distance range wound is a range greater than twenty-four inches. The coroner

testified the intermediate wrist wound had a range of six to twenty-four inches. He concluded: "no fewer

than four [gunshots] caused the injuries on [Addis]. He also stated that it "may have been as many as five

or six, depending on if the gunshot wound through the wrist then re-entered either in the chest or one of the

graze injuries of the um, face."

The jury found Hively not guilty of the first count of Murder, guilty of the second count of Aggravated

Murder with a gun specification and guilty of count three, Tampering with Evidence. The trial court

sentenced Hively to thirty years imprisonment for count two, and additional three years for the gun

specification to be served consecutively, and thirty months imprisonment for count three to be served



concurrently. Hively then filed this timely appeal. Appellant's First Assignment of Error:

THE TRIAL COURT ERRED BY DENYING HIVELY'S

REQUEST FOR A CASTLE DOCTRINE JURY INSTRUCTION.

In his first assignment of error, Hively argues that the

trial court erred when it denied his request for a castle doctrine jury instruction. Hively contends that his

statements provide sufficient evidence to warrant the castle doctrine jury instruction. Hively states that after

he was shoved back into his car and kicked in the face, he reached for his handgun that was in the car

to repel the attack. Hively argues that sufficient evidence was provided to show that he was an

occupant of his own vehicle, entitling him to the instruction regarding the castle doctrine. Hively

contends that the trial court's denial of his request prejudiced him by "saddling him with a duty to retreat

that Ohio law has eliminated for a person lawfully occupying his own motor vehicle."

[ . . . ]

To establish a claim of self-defense, a defendant

generally must show by a preponderance of the evidence that (1) he or she was not at fault in creating

the situation giving rise to the event, (2) he or she had reasonable grounds to believe and an honest belief

that he or she was in imminent danger of death or great bodily harm and that the only means of escape

from such danger was by the use of force, and (3) he or she did not violate any duty to retreat or avoid the

danger. State v. Goff, 4th Dist. Lawrence No. 11CA20, 2013-Ohio-42, 17.

Here, Hively requested the jury instruction pursuant to

R.C. 2901.05(B)(1). This instruction, also referred to

as the "Castle Doctrine," relieves the defendant's burden to prove the foregoing three elements. "Under

R.C. 2901.05(B), a defendant is rebuttably presumed to have acted in self-defense

'when using defensive force that is intended or

likely to cause death or great bodily harm to another if the person against whom the defensive

force is used is in the process of unlawfully and without privilege to do so entering, or has

unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person

using the defensive force.'"

State v. Bundy, 4th Dist. Pike No. 11CA818, 2012-

Ohio-3934, 38, 974 N.E.2d 139.

This rebuttable presumption means that the defendant no longer carries the initial burden to

produce evidence that (1) the defendant was not at fault in creating the violent situation, (2) the defendant

had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only

means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or

avoid the danger. Instead, the rebuttable presumption, by definition, presumes the existence of

these facts. Id.

For the presumption to apply, a defendant must establish that (1) the person against whom the

defendant used defensive force was in the process of unlawfully entering, or had unlawfully entered, the

residence or vehicle that the defendant occupied, (2) the defendant was in the vehicle lawfully, and (3) the

victim did not have a right to be in the vehicle. If the presumption applies, the state may rebut it. R.C.

2901.05(B)(3); State v. Wilson, 8th Dist. No. 97350,



2012-Ohio-1952, 2012 WL 1567202, 43 (construing complementary statute, R.C. 2901.09(B), the no-duty-

to-retreat statute); State v. Petrone, 5th Dist. No. 2011CA67, 2012-Ohio-911, 73 (recognizing that

state may rebut presumption by showing that defendant was at fault and did not have a bona fide

belief that defendant was in imminent danger and that the only means of escape was use of force).

The trial court denied Hively's request for the Castle

Doctrine jury instruction stating: "Although the defendant was originally in his vehicle when he pulled

up to the scene, he then exited the vehicle. Furthermore there is no evidence that the victim tried

to enter the vehicle at any time, much less while the defendant was in the vehicle. However, the Court is

going to give an instruction on self defense as agreed upon by the parties."

R.C. 2901.05(B)(1) contemplates a scenario of a

home or car invasion. State v. Nye, 3rd Dist. Seneca No. 13-13-05, 2013-Ohio-3783, 997 N.E.2d 552, 29.

The rebuttable presumption in R.C. 2901.05(B)(1) does not apply when the person using defensive force

in not occupying his/her vehicle. State v. Miller, 12th Dist. Warren No. CA2009-10-138, 2010-Ohio-3821,

38; Petrone, 2012-Ohio-911 at 73.

Here, the altercation and shooting took place outside Hively's vehicle. Moments before the shooting it is

clear that Hively was standing beside his vehicle's open door, with Addis approximately a few feet away.

All the spent shell casings were found outside Hively's vehicle. There is no doubt that Knepper and Addis

were threatening and taunting Hively throughout this altercation. However, while it remains Hively's story

that he was shoved back into his car, no other evidence supports the conclusion that Knepper or

Addis attempted to enter Hively's vehicle. Therefore, we cannot find that the trial court abused its discretion

when it denied Hively's request for the R.C. 2901.05 instruction. Accordingly, Hively's first assignment of

error is overruled.

[ . . . ]

JUDGMENT AFFIRMED.

__________________________________________________________________________________________



PENNSYLVANIA

Commonwealth v. Williams, 2015 Pa. Super. Unpub. LEXIS 1671 (PA Superior Court 2015)

Key issues:

Proportionality;

Disparity of force;

Attacker (victim) much larger than defender (defendant);


Reasonableness;

Imminence;

Innocence;

Avoidance;

Burden of persuasion on the State beyond a reasonable doubt;

Date: June 8, 2015

Decision:

Darnell J. Williams appeals from the judgment of sentence imposed on February 27, 2014, in the Court

of Common Pleas of Dauphin County, made final by the denial of post-sentence motions on June 2, 2014.

On December 13, 2013, a jury convicted Williams of third-degree murder and persons not to possess

firearms.1 The court sentenced Williams to an aggregate term of 22 to 44 years' imprisonment. On

appeal, Williams raises the following three issues: (1) whether there was sufficient evidence to convict him

of third-degree murder; (2) whether the verdict was against the weight of the evidence; and (3) whether

the court abused its discretion with respect to his sentencing. After a thorough review of the

submissions by the parties, the certified record, and relevant law, we affirm the judgment of sentence.

The trial court set forth the facts as follows:

On the evening of June 14, 2011, Thorrin Burgess ("Burgess") was shot in the abdomen on

a basketball court at Reservoir Park in Harrisburg, and shortly thereafter died as a result. The

evidence at trial established that on the day of the homicide, Burgess, his brother Darrien Burgess,

and several of their friends, including Michael Warren and Brandon Wright, were playing

basketball at Reservoir Park. At some point, Darrien and an individual nicknamed Jersey began

to fight. When Darrien began to get the better of Jersey, Williams struck Darrien with a handgun.

Burgess intervened and pleaded with Williams before ultimately tussling with him. During the

tussle they both went to the ground and Williams shot Burgess.

The Commonwealth also presented physical

evidence that connected Williams to the killing.



Angela Difiore, a forensic DNA scientist with the Pennsylvania State Police, testified that she

examined fingernail clipping taken from Burgess and was able to obtain a DNA sample. She

compared that sample to a known DNA sample taken from Williams, and concluded that Williams'

DNA was present.

Trial Court Opinion, 6/2/2014, at 1-2 (record citations omitted).

A jury trial began on December 10, 2013. Three days

later, on December 13th, the jury convicted Williams of third-degree murder and persons not to possess

firearms. On February 27, 2014, the court sentenced Williams to a term of 19 to 38 years' incarceration for

the murder conviction, and a consecutive term of three to six years' imprisonment for the firearms

offense. Williams filed post-sentence motions, which were denied on June 2, 2014. This appeal followed.2

In his first issue, Williams challenges the sufficiency

the evidence with regard to his third-degree murder conviction.3 Williams's Brief at 23. First, he alleges

the Commonwealth failed to prove his actions constituted third-degree murder because the

evidence did not "establish that [he] created a substantial and unjustifiable risk of death or serious

bodily injury" or that he intended to shoot anyone with a gun. Id. at 24-25. He states:

[He] only attempted to strike Darrien after

Darrien, who was much larger than Jersey, pulled Jersey's shirt over Jersey's head and then began

to beat Jersey handedly. There was no evidence to demonstrate that [Williams] used the firearm he

allegedly possessed in any manner other than as a blunt object to level the proverbial playing field

after Darrien began to fight unfairly.

Id. at 24-25. Second, Williams contends assuming

arguendo he shot the victim, the Commonwealth failed to disprove that he acted in self-defense. Id. at

25. Williams states the victim was taller, weighed more, and significantly overpowered him when,

without provocation, the victim picked him up twice and slammed him to the ground. Id. at 26. Williams

argues, "Given the size differential between [himself] and the victim, [he] was justified in using lethal force

against the victim since [he] reasonably believed that such force was necessary to protect himself against

serious bodily injury or death." Id. at 27.

[ . . . ]

With respect to the defense of self-defense, we are guided by the following:

Section 505 sets forth the elements of self-

defense:

505. Use of force in self-protection

(a) Use of force justifiable for protection of the person.-- The use of force upon or toward

another person is justifiable when the actor believes that such force is immediately

necessary for the purpose of protecting himself against the use of unlawful force by

such other person on the present occasion.

18 Pa.C.S.A. 505(a).

"When a defendant raises the issue of self-defense, the Commonwealth bears the burden to

disprove such a defense beyond a reasonable doubt." Commonwealth v. Bullock, 2008 PA Super

83, 948 A.2d 818, 824 (Pa. Super. 2008). The



Commonwealth sustains this burden if it establishes at least one of the following: (1) the

accused did not reasonably believe that he was in danger of death or serious bodily injury; (2) the

accused provoked or continued the use of force; or (3) the accused had a duty to retreat and the

retreat was possible with complete safety. Commonwealth v. McClendon, 2005 PA Super

164, 874 A.2d 1223, 1230 (Pa. Super. 2005). The Commonwealth need only prove one of these

elements beyond a reasonable doubt to sufficiently disprove a self-defense claim. Commonwealth v.

Burns, 2000 PA Super 397, 765 A.2d 1144, 1149 (Pa. Super. 2000).

Commonwealth v. Ventura, 975 A.2d 1128, 1143 (Pa.

Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009).

In light of this case law, we disagree with Williams,

and find the Commonwealth presented sufficient circumstantial evidence to support his conviction. The

record reflects the following: On the night of June 14, 2011, the victim, Burgess, went to Reservoir Park to

play basketball with several friends, including his brother, Darrien Burgess. While there, Darrien

Burgess engaged in a physical altercation with another male, named "Jersey," over a female. Tarajai

Mills, a witness, testified he was at the basketball court at the time of the incident. N.T.,

12/10/2013-12/11/2013, at 125. Mills stated Darrien was getting the better of Jersey when another male

individual shot past Mills and headed toward the fight with a gun in his hand raised. Id. at 138. Mills

indicated the male tried to strike Darrien but missed because Darrien moved out of the way. Id. The victim

then entered the fray to, apparently, break up the dispute because he did not want a gun involved. Id.

The victim and the male then "g[o]t tangled up," and

went "to the ground." Id. Mills stated, "As they're going to the ground, I seen the gun fall down,

because I noticed when he came past, the gun was, like, silver. It hit the ground. Somebody picked it up.

At that point shot goes off and [the victim]'s hit." Id. Mills testified he never saw the face of the male with

the gun. Id. at 139. He also noted the victim grabbed the perpetrator to try to "talk to him, plead with him

to ... stop." Id. at 143. It did not appear to Mills that the victim "was trying to fight or escalate things" with

the perpetrator. Id. at 145.

Michael Warren testified he was the victim's best friend and was also at the basketball court. Warren

stated Darrien and Jersey were engaged in a physical altercation when a person named "Nooters" tried to

"jump in" but "he got pushed away." Id. at 198. He then saw another individual, subsequently identified

as Williams, come into the fight and try to reach for Darrien, but the victim grabbed him. Id. at 201, 209.

Warren testified he ran because he saw Williams had a gun and that the defendant tried to pull it out. Id. at

202. Warren then heard a shot, turned around, and saw his best friend lying on the ground. Id. at 204.

Brandon Wright testified he is a cousin of the Burgess

brothers. He stated that while the group was waiting for Darrien to arrive to fight Jersey, he heard Nooters

call someone and say, "Com[e] up here, DJ; come up here with the john[.]" Id. at 261. Wright indicated that

shortly thereafter, Williams arrived at the basketball court with a shiny, silver revolver. Id. at 262-263. He

then heard the victim say that they did not need a gun. Id. at 263. Wright testified that as Darrien was

beating Jersey, Williams tried to hit Darrien with the gun but missed. Id. at 264. Wright then observed the

victim come in, pick Williams up, and "slam" him to the ground. Id. The victim picked Williams up again

and the two start wrestling or tussling. Id. When the



victim began to slam Williams to the ground again, Wright stated he heard a gunshot and saw "smoke"

coming from the victim's stomach. Id.

Darrien also testified at the trial. He stated that on the evening in question, the victim had informed him that

a "brother" wanted to fight him. N.T., 12/12/2013, at 51. When he came to the court, he noticed the victim

and Nooters exchange words and then he saw Jersey walk up. Darrien stated the fight began and he was

"beating [Jersey's] ass" when he "got hit in the head." Id. at 54-55.4 Darrien then noticed his brother beating

up the other individual, who was identified as Williams. Id. at 56-57. He averred they were "tie[d]

up" when the gun went off and the victim fell to the ground. Id. at 59. Darrien testified he saw Williams's

right hand with the gun pointed at the victim's stomach and then the gun fired. Id. at 60. He then

saw Jersey and Williams flee the scene. Id.

Additionally, the trial testimony revealed the victim was over six foot tall and weighed around 200

pounds, while Williams was approximately five foot, seven inches tall and about 140 pounds. N.T.,

12/10/2013-12/11/2013, at 39, 169. Further, medical examiner, Wayne Ross, M.D., testified the victim died

of a "contact" gunshot wound to the left side of the abdomen and the chest.5 Id. at 39, 51. The doctor

stated the gun "was pressed against the clothing [by the abdomen] when the shot [was] fired" and the "fact

that this is pressed in there and the trigger is pulled supports a fact it's an intentional pulling of the trigger."

Id. at 48, 83. Lastly, Angela DiFiore, a forensic DNA scientist with the Pennsylvania State Police, testified

she took DNA samples from the victim's fingernails and from Williams. N.T., 12/12/2013, at 15. The

victim's left-hand finger nail clippings indicated DNA from Williams was present. Id. at 19.

Viewing the evidence in the light most favorable to the Commonwealth, as the verdict winner, and drawing

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