I originally received this from John Caile.....gives you a good starting point for research... --- Justification that exonerates a defendant from criminal responsibility for the use of deadly force is limited by an objective standard, where society would agree that the use of deadly force was necessary, and a part of that objectivity analysis includes the duty to retreat if at all possible to avoid the harm. (Per Anderson, Russell A., C.J., with two justices joining and one justice concurring.) State v. Edwards, 2006, 717 N.W.2d 405. Homicide 769; Homicide 799
Burden is upon the state, in a homicide case involving a claim of self-defense, to prove beyond a reasonable doubt that the killing was not justifiable. (Per Anderson, Russell A., C.J., with two justices joining and one justice concurring.) State v. Edwards, 2006, 717 N.W.2d 405. Homicide 942
Defendant's offer of proof, which alleged that defendant shot victim in order to protect defendant's estranged wife and wife's children, did not support availability of defense-of-others defense in prosecution for first-degree murder, since defendant was aggressor, and use of deadly force was totally without reason. State v. Richardson, 2003, 670 N.W.2d 267, habeas corpus dismissed 2006 WL 47339. Homicide 774
Ordinarily, one who is aggressor, provoking difficulty in which he finds it necessary to use deadly force, has no right to claim self-defense. State v. Richardson, 2003, 670 N.W.2d 267, habeas corpus dismissed 2006 WL 47339. Homicide 774
Justification for homicide in defense of another parallels defense of self. State v. Richardson, 2003, 670 N.W.2d 267, habeas corpus dismissed 2006 WL 47339. Homicide 757
To find that a defendant acted in self-defense, a jury must find that the defendant reasonably believed that force was necessary and that the defendant used only the level of force reasonably necessary to prevent the harm feared. State v. Glowacki, 2001, 630 N.W.2d 392, rehearing denied, on remand 2001 WL 1182376. Assault And Battery 67
The elements of “self-defense” are: (1) the 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 that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger. State v. Nystrom, 1999, 596 N.W.2d 256. Homicide 766
Elements of self-defense are (1) absence of aggression or provocation on part of defendant; (2) defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) existence of reasonable grounds for that belief; and (4) absence of reasonable possibility of retreat to avoid danger. State v. Basting, 1997, 572 N.W.2d 281. Assault And Battery 67
Jury could have reasonably concluded that defendant was not justified in killing victim, where jury could reasonably have concluded that following first of two sets of shots no reasonable person would have believed any peril existed and that no reasonable person would have elected to kill, given testimony that defendant shot victim again as he lay weaponless on ground due to first set of shots, no visible threat was posed to defendant after victim fell to ground following first set of shots, and defendant paused for at least 30 seconds after first two shots before shooting two more times, and where jury could reasonably have concluded that defendant did not fulfill his duty to retreat, as evidence demonstrated that defendant was twice asked to leave in order to avoid further conflict with victim, but refused. State v. Buchanan, 1988, 431 N.W.2d 542. Homicide 1198; Homicide 1199
Defendant's conviction for third-degree assault was sustained by evidence that he approached victim, engaged in argument with him, raised his fist to strike the victim, grabbed the victim's hand, and twisted one finger until it broke, notwithstanding defendant's claim that he was acting in self-defense. State v. Witucki, App.1988, 420 N.W.2d 217, review denied. Assault And Battery 91.5(3)
Self-defense did not justify defendant's actions in threatening two innocent bystanders in an effort to seek out and even the score with his antagonists at a bar. State v. Soine, App.1984, 348 N.W.2d 824, review denied. Assault And Battery 67
Evidence in defendant's prosecution for assault with dangerous weapon, including defendant's admission that victim was about eight feet from him at time of shooting, that victim was standing still, and that he shot victim without warning, was sufficient to justify jury conclusion that State met its burden of proving defendant did not act in self-defense. State v. Bland, 1983, 337 N.W.2d 378. Assault And Battery 91.13(5)
Self-defense does not apply to all behaviors that may constitute violations of the disorderly conduct statute; rather, the offense to which a person asserts self-defense must be considered an offense of a physical nature, carrying the potential to cause bodily harm, that is, an offense against the person. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Disorderly Conduct 2
Principles of self-defense apply to assault cases. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Assault And Battery 67
The four elements of self-defense are: (1) an absence of aggression or provocation; (2) an actual and honest belief that imminent death or great bodily harm would result; (3) a reasonable basis existed for this belief; and (4) an absence of reasonable means to retreat or otherwise avoid the physical conflict. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Assault And Battery 67; Homicide 766
The claim of self-defense is sufficiently raised when a defendant creates a reasonable doubt as to whether the level of force used was justified. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Assault And Battery 67; Homicide 766
Reasonable belief, self-defense To excuse or justify homicide under statutes governing authorized use of force and justifiable taking of life, killing must have been done in belief that it was necessary to avert death or grievous bodily harm, judgment of defendant as to gravity of peril to which he was exposed must have been reasonable under the circumstances, and defendant's election to kill must have been such as reasonable man would have made in light of danger to be apprehended. State v. Richardson, 2003, 670 N.W.2d 267, habeas corpus dismissed 2006 WL 47339. Homicide 794; Homicide 795
In cases where death resulted from self-defense, a defendant must have reasonably feared that he was threatened with great bodily harm or death and that the use of force to prevent that harm was reasonable. State v. Glowacki, 2001, 630 N.W.2d 392, rehearing denied, on remand 2001 WL 1182376. Homicide 795
The Cheek exception to general rule that ignorance of law is no defense to criminal prosecutions applies only to mistakes of law, particularly violations of complex tax law, and not to mistakes of fact, and thus defendant was not entitled to “imperfect self-defense” instruction in homicide prosecution that jury should adjudicate his claim of self-defense based upon his subjective belief that he had justifiably acted. Sanford v. State, App.1993, 499 N.W.2d 496, review denied. Homicide 1484
Finding that defendant's judgment of the gravity of the peril he faced was unreasonable, so that he could not assert self-defense to charged homicide, was supported by his own admission that he did not see any of his three victims holding a weapon, that he knew that the victim who had previously threatened to kill him was unarmed at the time of the killings, and that two of the victims were substantially smaller than he. State v. Sanford, App.1990, 450 N.W.2d 580, review granted, review vacated, denial of post-conviction relief affirmed 499 N.W.2d 496, review denied. Homicide 1201
Self-defense instruction which required finding that defendant reacted in reasonable apprehension to threat of great bodily harm or death was appropriate and defendant was not unduly prejudiced, where defendant intended to stab victim, even if death was not intended. State v. Smith, App.1985, 374 N.W.2d 520, review denied.
Legal excuse of self-defense is generally available only to those who act honestly and in good faith and rule requires: absence of aggression or provocation on part of person charged; actual and honest belief of assaulting party that he was in imminent danger of death, great bodily harm, or some felony and that it was necessary that he take action he did; existence of reasonable grounds for such belief; and duty on part of party charged to retreat or avoid danger if reasonably possible. State v. Baker, 1968, 280 Minn. 518, 160 N.W.2d 240. Assault And Battery 67
To justify the use of force on the ground of self-defense, it is not essential to show that in fact it was necessary to use such force in order to protect the defendant from imminent personal injury; for it is sufficient if it appears that the necessity was real or apparent; the mere belief of the defendant that it is necessary to use force is not alone sufficient to make out a case of self-defense; for the facts as they appear to him at the time must be such as to reasonably justify the belief. Germolus v. Sausser, 1901, 83 Minn. 141, 85 N.W. 946. Assault And Battery 13
One has no right to commit an assault with intent to do great bodily harm to another for a wrong which he has not reasonable ground to believe to be dangerous to himself. State v. Tripp, 1885, 34 Minn. 25, 24 N.W. 290. Assault And Battery 67
Self-defense is applicable to a charge of disorderly conduct where the behavior forming the basis of the offense presents the threat of bodily harm. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Disorderly Conduct 2
In a claim of self defense, a defendant may use reasonable force only in the absence of a reasonable alternative. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Assault And Battery 67; Homicide 766
A number of factors are relevant to the determination of whether the level of force used was reasonable, in a claim of self-defense: age and size of victim and defendant; victim's reputation for violence; previous threats and/or altercations between victim and defendant; defendant's aggression, if any; and victim's provocation, if any. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Assault And Battery 67; Homicide 1051(2)
Duty to retreat, self-defense For purposes of a claim of self-defense in a homicide prosecution, there is a duty to retreat and avoid danger if reasonably possible; the duty to retreat relates to the election to kill, making a killing unjustified if the danger was reasonably avoidable. (Per Anderson, Russell A., C.J., with two justices joining and one justice concurring.) State v. Edwards, 2006, 717 N.W.2d 405. Homicide 799
There is no duty to retreat from one's own home when acting in self-defense in the home regardless of whether the aggressor is a co-resident, although any use of force must be reasonable under the specific circumstances of each case. State v. Glowacki, 2001, 630 N.W.2d 392, rehearing denied, on remand 2001 WL 1182376. Assault And Battery 67
Defendant did not have duty to retreat before acting in self-defense during altercation with a co-resident in home in which they both resided. State v. Glowacki, App.2000, 615 N.W.2d 843, review granted, reversed 630 N.W.2d 392, rehearing denied, on remand 2001 WL 1182376. Assault And Battery 13
There is a duty to retreat if reasonably possible, even in one's place of abode, prior to using lethal force in self-defense. State v. Carothers, App.1998, 585 N.W.2d 64, review granted, reversed 594 N.W.2d 897. Homicide 802
As against claim of self-defense in homicide prosecution, duty to retreat or avoid danger if reasonably possible applies even if danger is present in defendant's home. State v. Hennum, App.1988, 428 N.W.2d 859, review granted, reversed on other grounds 441 N.W.2d 793. Homicide 802
Any right of self-defense defendant might have had ended when the aggressors withdrew, leaving defendant the opportunity to retreat in safety. State v. Soine, App.1984, 348 N.W.2d 824, review denied. Assault And Battery 67
Instruction that “before you can avail yourself of self-defense, you must retreat and avoid the danger if you can reasonably do so,” and that “if you can reasonably avoid it, you must retreat and avoid the danger, rather than charge into the fight and flail away,” properly characterized law of retreat. State v. Austin, 1983, 332 N.W.2d 21. Homicide 1485
Where defendant posed as homosexual and invited advances, and made no attempt to retreat or otherwise avoid the advances, defendant was precluded from claiming that shooting of victim was an authorized use of force despite defendant's reasonable belief that victim was about to commit offense of sodomy against him. State v. Morgan, 1980, 296 N.W.2d 397. Homicide 784; Homicide 800
Where a party has not retreated from or attempted to shun the combat, but has unnecessarily entered into it, his act is not one of self-defense. State v. Baker, 1968, 280 Minn. 518, 160 N.W.2d 240. Assault And Battery 67
A defendant who, with a number of companions, wrongfully invades plaintiff's premises, and in doing so assaults the latter, and makes no attempt whatever to desist or withdraw from the fray until it is ended by plaintiff's resistance and the interference of others, cannot, on the ground of self-defense, justify the injury to the plaintiff resulting from the fray. Guyer v. Smullen, 1924, 160 Minn. 114, 199 N.W. 465. Assault And Battery 13
If a defendant has not attempted to evade or retreat from combat, but instead has needlessly joined into it, that use of force is not self-defense. State v. Soukup, App.2003, 656 N.W.2d 424, review denied. Assault And Battery 67; Homicide 799
Defense of dwelling The defense of dwelling defense is not available between co-residents, but only for those who use force against an intruder. State v. Glowacki, App.2000, 615 N.W.2d 843, review granted, reversed 630 N.W.2d 392, rehearing denied, on remand 2001 WL 1182376. Assault And Battery 15
Defense of dwelling defense anticipates an unauthorized intrusion into defendant's dwelling; when defendant and victim reside in same dwelling, defendant cannot raise defense of dwelling defense. State v. Hare, 1998, 575 N.W.2d 828. Homicide 760
Defendant did not have legitimate defense of dwelling claim in prosecution for murder of another resident of same apartment in which defendant lived at time of incident. State v. Hare, 1998, 575 N.W.2d 828. Homicide 760
_________________ Paul Horvick
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