Defendant became a part of a dispute between two men concerning a $10 debt. The argument became more heated between the two, and one started walking toward the defendant aggressively, who then shot him. Defendant claims justification by self-defense. The victim had previously engaged in fights and assaults with the defendant and had previously threatened to kill him. Defendant was also doing work as a narcotics agent and defendant had heard there was a contract out for his killing; and defendant heard of this from the victim, who said he would collect on it. Defendant had been seriously injured in prior fights with the victim. Defendant also testified that he pulled the gun out and shot it in the air to warn the victim and the victim continued advancing toward him.
At trial jury was instructed that if a reasonable person could have avoided the use of unlawful force, “he must have taken or used the alternative course of action before he is justified in repelling the force used against him.” Defendant appeals on the basis that the statute excuses him from taking an alternative course of action if the alternative involved a risk of life or safety.
“Reasonable force is that force which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss, and no more, except that the use of deadly force against another is reasonable only to resist a like force or threat. Reasonable force, including deadly force, may be used even if an alternative course of action is available if the alternative entails a risk to one’s life or safety.”
Whether the defendant must necessarily seek an alternate use of force or course of action prior to the use of deadly force in self-defense.
No, new trial ordered. “The instructions, considered together, omit a critical element of defendant’s defense – his right to stand his ground without taking alternative action because of his fear of injury or death at the victim’s hands.” The jury is entitled to decide whether defendant should have retreated from the conflict at an earlier stage, whether he could have fled prior to the shooting, and whether his fear of death or serious bodily injury was reasonable. “The defect in the instructions is that the jury was not told any place the circumstances under which defendant was legally entitled to use reasonable force without first taking alternative action.”