Defendant was separated from and in the process of divorce with her husband. She lived with her two children. Defendant was engaged to the victim who at the time lived in her house. Defendant was beaten by the victim multiple times; and the most recent beating resulted in victim threatening to kill her and her children. A few days later the victim and defendant got in an argument, where victim stood up and said “nevermind, I’ll take care of you right now.” Defendant stood up, threw her drink at him, and ran downstairs to the basement. Shortly after, victim yelled down the stairs claiming he would kill the defendant and her children. Defendant began to call the police but hung up when victim said he would leave the house. Rather than leave, he came back to the top of the stairs. Victim began to phone the police but then took a rifle and shot the victim as he came down.
At trial, the judge instructed the jury that defendant had the duty to retreat, which is her basis for appeal.
Whether one has a duty to retreat, where the option is available, before resorting to the use of deadly force.
“In order to create a right to defend oneself with a dangerous weapon likely to cause serious injury or death, it must appear that the person using the weapon had a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm.”
Yes. “We prefer to follow our long-established rule that the right to use deadly force by way of self-defense is not available to one threatened until he has availed himself of all reasonable and proper means in the circumstance to avoid combat, and hold that this rule has equal application to one assaulted in his own home.” The rule imposes a duty to retreat until “there is no probable means of escape.” All means of escape must be exhausted, however. The question of the extent of the threat to the defendant and the reasonableness of her response are questions for the jury. Because defendant was assaulted specifically in her home does not absolve her of a duty to retreat.
Because defendant had retreated in her basement does not mean the use of deadly force was warranted – a reasonable jury could have found that she was not in imminent danger of serious bodily injury. Victim did not have a dangerous weapon and was only a few steps down the stairs before he was shot. The basement itself was escapable as well. Moreover, defendant did not warn the victim that she would shoot prior to killing him.
“In passing upon the reasonableness of the force used by the defendant… the jury should consider evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from the … area.”