7.2: Self-Defense

Self-defense is one of the most litigated justification defenses. Self-defense (i.e., the need to defend oneself from physical harm) is frequently misunderstood and misapplied in everyday nomenclature. To understand self-defense (formally referred to as the “use of force justification”), one must first understand the underpinnings of the defense.

Self-defense is an inherent right grounded in natural law. Everyone has a fundamental right to be free from harm or the threat of harm. It is part of our primal instinct of self-preservation – i.e., when confronted with a perceived or real threat of harm, our body naturally engages in a “fight or flight” physiological response. We seek to repel harm directed at us. This natural reaction informs the law. Recall that in District of Columbia v. Heller, 554 U.S. 570, 628 (2008), the US Supreme Court held that the Second Amendment prohibited government regulation of a handgun in the privacy of one’s own home because of our inherent right to protect ourselves. Our fundamental right to bear arms exists because of our fundamental right of self-defense. See id. Thus, while individual states have the right to expand or restrict a citizen’s right to claim self-defense for otherwise criminal behavior, an outright elimination of the right to self-defense is likely unconstitutional.

But remember that no right is absolute. Every jurisdiction has authorized the use of force under certain circumstances, but such laws vary greatly. Some states have an expansive view of self-defense while others have a narrow view. At its core, self-defense laws are a series of legislative value judgments about the need (and right) to use physical violence to prevent harm. This chapter focuses on the use of force justification as authorized under Alaska law. Alaska treats self-defense as a “defense,” meaning the government must disprove its existence beyond a reasonable doubt. The defendant need not prove he was justified in using force, but instead, the government must prove that self-defense was not applicable. Not all jurisdictions follow this model. Some states treat self-defense as an imperfect defense or an affirmative defense.

While each state is free to establish the parameters of self-defense, most self-defense statutes contain two basic principles: necessity and proportionality. These two interrelated concepts form the basis of all self-defense laws – the degree of force must be necessary to protect the person against future harm, and the degree of force must be proportional and reasonably related to the harm threatened. Alaska law largely focuses on the first element and less on the second. In Alaska, the central question in any self-defense case is: was the defendant’s use of force necessary under the circumstances? As you will see, this question is sometimes difficult to answer.

Figure 7.1 Justification: Use of Nondeadly Force Diagram.

Alaska treats self-defense as a perfect defense. If the defendant’s use of force was objectively necessary, the defendant is exonerated of any criminal wrongdoing; the defendant was legally justified in the use of force. Alaska authorizes a person to use force “when and to the extent the person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the person.” AS 11.81.330(a). As you can see, Alaska self-defense is relatively expansive, but limitations do exist.

Self-Defense is the Use of Force

Self-defense justifies the use of “force” to repel harm. Therefore, self-defense is not a defense to any crime that does not criminalize the use of force. Put another way, self-defense applies to crimes like assault, sexual assault, homicide, or robbery. It does not apply to crimes that do not involve force like drug-trafficking or DUI. That is not to say that a different justification or excuse may apply, but self-defense only applies when seeking to repel violence or the threat of violence. Further, the force being used against the defendant must be unlawful. A person may not use force to repeal lawful force. For example, a person may not claim self-defense when they are being lawfully arrested. AS 11.81.370.

Necessity – Imminency Requirement

A defendant cannot use force unless such force is necessary to prevent a future harm. The threat of harm must be imminent. AS 11.81.900(b)(27). The law does not allow retaliatory or preemptive strikes. If a person is not faced with an immediate threat of harm, a person is not justified in using self-defense. In the eyes of the law, the appropriate response is to seek lawful intervention (i.e., notify law enforcement, seek judicial intervention, and the like). The law does not permit “self-help” remedies. Similarly, the law does not allow the use of force to remedy a past or previous attack. Retaliatory attacks – attacks that are motivated by anger or malice – are not permitted.

Ha v.State, 892 P.2d 184 (Alaska App. 1995)

Ha v. State is an example of when, and to what extent, a person may use force when confronted by an attacker. As you read Ha, ask yourself if you found the defendant’s fear reasonable under the circumstances. If not, why not?

892 P.2d 184
Court of Appeals of Alaska.
Xi Van HA, Appellant,
v.
STATE of Alaska, Appellee.
March 31, 1995.

OPINION

MANNHEIMER, Judge.

Xi Van Ha appeals his conviction for second-degree murder, AS 11.41.110(a)(1). As explained in more detail below, the superior court refused to allow Ha to argue self-defense to the jury. … On appeal, Ha contends that the superior court should have instructed the jury on self-defense[.] We conclude that the superior court correctly resolved [this] issue, and thus we affirm Ha’s conviction.

Ha came to the United States from Vietnam in 1980. He lived in California for ten years and then, in 1990, he moved to Dillingham, where he worked as a fisherman, a trade he had pursued both in his native country and in Malaysia. Despite his years in the United States, Ha’s English remained rudimentary.

On June 7, 1991, Ha was employed to fish aboard the F/V (fishing vessel) Ultimate. After work on June 7th, Ha and his long-time friend Tran Gioi were socializing in the Willow Tree Bar in Dillingham. Later that evening they were joined by other Vietnamese fishermen. Among the new arrivals were Ly Van Hop and Buu Van Truong. Ha knew Buu and his family from the Vietnamese community in California, and he was also aware that Buu and Ly were roommates in Dillingham.

The men shared drinks in the Willow Tree; Ha later testified that he thought Buu was drunk by the time they left the bar. Ha, Tran, Ly, and Buu returned together to the Ultimate after Ha volunteered to reheat some leftover food. Ha later testified that his invitation to cook food was directed only to Tran and Ly. Ha did not wish to socialize with Buu because Buu was known as a violent person. According to Ha, Buu’s family in California had a reputation for violence; Ha testified that, in California, Buu and his brothers (as well as other family members) had been known to threaten and beat people who crossed them. Knowing that Buu had been drinking, Ha suspected that Buu would be even more prone to violence.

The four men reached the boat and went aboard; Ha started the generator to heat the stove. While they waited for the stove to heat up, Ha’s friend Tran lay down on a bunk, while Buu’s friend Ly went out on deck. After about fifteen minutes, Buu began to get impatient that the food was not yet heated. He began to harass Ha, swearing at Ha and making comments such as “fuck your mother”. Ha started swearing at Buu and told him to get off the boat. In response, Buu began to beat Ha. Ly ran in from the deck to assist Buu. Ly held Ha’s arms to his side while Buu continued to beat him. Buu seized Ha by the hair and struck his face and head repeatedly with his fists.

As the beating continued, Ha began shouting for help. He yelled to his friend Tran, “Gioi, come out and … fight: Buu is hitting me and killing me!” At one point, Ha yelled, “I’m dying!” When Tran heard Ha’s cries for help, he rose from his bunk and came to Ha’s aid. Tran physically separated Buu from Ha, but Buu was able to strike Ha four or five more times before he was pulled away. Ha testified that, at times during the beating, Buu hit him so hard that he fell down. Ha also testified that the attack left him with blurred vision.

Buu and Ly left the Ultimate, but they returned a few minutes later. This time, Buu was armed with a hammer. Buu came at Ha, screaming, “I’m going to kill you, and I will strike you until you die!” Buu swung the hammer at Ha’s head, but Ha jumped from the Ultimate to the F/V Misty, which was berthed alongside. When Buu followed Ha onto the Misty, Ha ran into the cabin and held the door closed. Buu stood outside the cabin and, through the glass in the door, he shouted, “Fuck your mother! I will strike you and I will kill you!”

Buu continued his tirade for four or five minutes until Ha’s friend Tran ran aboard the Misty and grabbed the hammer from Buu’s hand. Ly came aboard too and escorted Buu away. Ha remained on the Misty for several minutes before returning to the Ultimate.

That night, Ha could not sleep. He feared that Buu was bound to return and kill him as he had promised. Tran attempted to reassure Ha, but Ha remained awake after his friend fell asleep. Ha’s head was throbbing in pain. He paced throughout the boat.

As he paced, Ha remembered that there was a rifle aboard the Misty; Ha had previously used this weapon to shoot at birds while he was fishing. Ha went back to the Misty, retrieved the weapon, and loaded it.

Ha later testified that he was “very frightened”. He lay awake on his bunk throughout the night, with the rifle at his side, “the voice of Mr. Buu … resounding in [his] ears”. Tran awoke and left the boat around 7:00 or 8:00 the next morning. Ha continued to lie awake on his bunk, thinking about Buu, the rifle still underneath his blanket. Several hours later (around 8:00 in the morning), Victor Sifsof, the owner of the boat, came aboard.

Ha was still lying on his bunk when Sifsof arrived. Sifsof spoke to Ha about mending nets that day, but Ha’s head was still giving him great pain. Ha told Sifsof about the beating he had received from Buu and Ly the night before—that his head still hurt and his vision was still blurred. Sifsof saw that Ha was still very upset, even though he was acting sluggish. Ha told Sifsof that the two men who had attacked him worked on a boat owned by Billy Johnson, another local fisherman. Sifsof told Ha that he would speak to Johnson about his employees.

Around 10:00 that morning, Ha and Sifsof moved the Ultimate to a different location in preparation for the upcoming fishing opening. While the men were working, Ha left the rifle in his bunk. The Ultimate’s new location happened to be closer to Johnson’s boat, the boat on which Buu worked. Sifsof then left Ha alone on the Ultimate. The pain in Ha’s head grew worse, and Ha became more frightened, realizing that he was closer to Buu. In his head, Ha heard Buu’s voice becoming stronger and stronger, and he became more and more frightened. He lay down to try to sleep, but he found he could not. Ha tried to think of someone who could help him, but he was unable to think of anyone who could. Ha testified that Buu’s voice remained in his head; he stated, “I [did] not think that I should call the police to help me—[b]ecause [Buu’s] voice was just so ferocious and it stayed in my ears.”

Finally, Ha retrieved the rifle from his bunk, left the Ultimate, and went in search of Buu. He kept the rifle hidden underneath his jacket. Ha later testified, “[M]y head was controlling my actions, and it was commanding me to go kill [Buu].”

Shortly after noon, Ha went to where he believed Buu was working. When he discovered that Buu was not there, Ha sat down for a while to wait for him. Ha then loitered in the vicinity of Buu’s boat, where he was observed by other Vietnamese fishermen, including Buu’s friend Ly. Ly saw Ha carrying a long object concealed under his jacket. Although Ha apparently did not remember speaking to anyone at the boat, Ly testified that he approached Ha and spoke to him. After learning that Ha was searching for Buu, Ly begged Ha to go back home. Ha refused.

A little later, Ha encountered his friend Charlie Tran. Tran observed that Ha was trembling and pale. Tran asked what was wrong and Ha responded, with seeming difficulty, that Buu had assaulted him and threatened to kill him. When Tran asked Ha what he was carrying under his coat, Ha told him, “This is none of your business.” Tran urged Ha to let the incident pass, but Ha replied, “How can I let it go? Last night he beat me up and told me he was going to kill me; he already threatened to kill me. If he doesn’t kill me today, he’ll kill me tomorrow.”

At 1:30 in the afternoon, Ha spotted Buu returning from a grocery store, carrying a bag of groceries. With Buu’s voice still speaking in his head, Ha pulled out his rifle and ran towards Buu from behind. Ha repeatedly shot Buu in the back, firing the rifle thirteen times until he had emptied the weapon of ammunition. Buu was struck by seven of these rounds; he died immediately.

At trial, Ha testified that, after shooting Buu, he simply turned around and went back to the Ultimate. In contrast, another witness to the shooting testified that Ha walked up to Buu’s body, kicked dirt on it, and then, in English, swore at Buu and said to the corpse, “I told you I was going to kill you.”

Upon his return to the Ultimate, Ha changed his shirt, replaced the rifle in his bed, and hid. The police arrived and searched the boat, but they did not find Ha. Later, Ha heard Victor Sifsof’s voice. Ha emerged, holding his head, and explained to Sifsof that he might have to go to jail. Sifsof advised Ha to obtain an interpreter and go to the police, but Ha was reluctant to do this. Eventually, the police returned to the boat, found Ha, and arrested him.

Ha was indicted and tried for first-degree murder. The jury was instructed on the lesser included offenses of second-degree murder and manslaughter (under a heat of passion theory). The jury ultimately acquitted Ha of first-degree murder but found him guilty of second-degree murder.

Should the Trial Court Have Instructed the Jury on Self–Defense?

From the beginning of trial, Ha argued that he had acted in self-defense. In the defense opening statement to the jury (which was delivered immediately after the prosecutor’s opening statement), Ha’s attorney described how Buu had attacked Ha and threatened him with death; the attorney then continued:

DEFENSE ATTORNEY: [V]iolence was not uncommon for Buu. You will hear about this man and his dark, brooding, combative nature…. And I invite your close scrutiny and attention as the evidence comes in regarding [Buu’s] character, because you will come to understand and appreciate not only the dark, dangerous, deadly side of this man, but also the significance of his threats. For anyone who knew Buu did not take his threats lightly. A threat from Buu that he would kill you was as good, had as much weight, as a kiss on [the] cheek by a … Mafia godfather. That’s how deadly Buu’s threats were.
….
From knowing Buu, [Ha] knew that there was no escape. You see, Buu comes from … a family of thugs who have a reputation for violence and extortion. You will hear that…. [Ha knew that] he would have to deal with the family, or with Buu himself. Today, tomorrow, they would stalk him down.

At the close of the evidence, Ha submitted proposed instructions on self-defense, but Superior Court Judge Milton M. Souter questioned whether the evidence supported all the elements of self-defense. Specifically, Judge Souter questioned whether there was any evidence that Ha faced imminent harm when he shot Buu.

THE COURT: There’s something missing from the [proposed] self-defense instructions that I’ve already read, and that is the requirement of imminency of harm coming from the aggressor…. [AS] 11.81.330 states, [in] part (a), [that] “a person may use … force upon another when and to the extent that person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the other”…. And [if] you look to [AS] 11.81.900[ (b) ], subpart [ (23) ], … “ ‘force’ means any bodily impact, restraint, or confinement, or the threat of imminent bodily impact, restraint, or confinement”…. So it’s clear to me [that] … the definition of “force” … includes the requirement of imminency of threat of use of force as part of the definition…. It’s not included in any of these self-defense instructions that I’ve seen.

And I don’t even know if self-defense is appropriate … in this case, because I’m not aware of any evidence that shows any imminency of [harm]…. Bearing in mind that the altercation … between these two men took place a good twelve hours before the killing[,] given the fact that it’s uncontradicted that the defendant stalked this man for over an hour before he killed him [, and] [g]iven the fact [that] there’s absolutely no evidence that the victim approached the defendant in the hour or hour and a half before the shooting, there was no imminency here at all…. I don’t see it. And I’m going to want to be hearing argument on that.

Ha’s attorney responded:

DEFENSE ATTORNEY: I think “imminency” [is viewed through] the eyes of the person asserting justifiable force. Not whether … an independent person such as the judge looking at the evidence would see … imminency under the facts, but whether in [the] defendant’s mind he felt that he was in imminent danger. I think there’s been overwhelming evidence … that he was in imminent fear.

Ha’s attorney then analogized Ha’s case to cases involving the “battered woman syndrome”. The defense attorney claimed that, in cases where battered women shot their husbands while they slept, courts had ruled that the trial juries should receive instructions on self-defense. The defense attorney told Judge Souter:

DEFENSE ATTORNEY: [T]he fact that Buu was shot from behind is irrelevant, just like the fact that a husband is shot while he’s asleep. I think what the court has to [ask], and what the jury has to [ask], is, did the defendant feel that he was in imminent fear for his own safety? That’s the first prong of self-defense. And then, on the second prong, … would a reasonable person under like circumstances, another person who was in the situation of the defendant, given [the defendant’s] background, experience, and what have you—how would that person feel? … The jury may find that [Ha] was in imminent fear, but they may find that the reasonable person would not have been…. [Nonetheless], I think we meet the “some evidence” test…. [This is] an issue for the jury to decide.

Despite the defense attorney’s argument, Judge Souter ruled that he would not instruct the jury on self-defense. He found that there was not a “single shred of evidence [to indicate] any imminency of harm or threat of harm facing [the defendant] at the time that he stalked [the victim] for an hour to an hour and a half, and shot him in the back and killed him…. It’s absolutely, abundantly clear to me that an essential element of the self-defense justification [is] totally missing in this case.”

The next morning, Ha’s attorney renewed his argument for self-defense. He pointed to the evidence tending to prove that Ha had been in fear for his life and that a reasonable person in Ha’s position would also have been afraid. The defense attorney argued,

DEFENSE ATTORNEY: You’d have to [ask] how would another Vietnamese, knowing how Vietnamese behave, knowing how, when Vietnamese make a public threat, that they carry it out and that you should take those threats seriously, knowing that this person making the threat has a violent temper [and] usually carries out his [threats]. You’ve got to take all of those circumstances into consideration and then ask yourself, would another person under those circumstances act the same way?

However, Judge Souter again concluded that the evidence did not justify an instruction on self-defense.

THE COURT: The evidence in this case is absolutely devoid of any evidence that there was … any threat of imminent harm from Mr. Buu to this defendant. The evidence is absolutely clear … that this defendant, even according to his own testimony, stalked the victim, looking for him for better than an hour before he … shot him in the back, gunned him down…. The victim was unarmed. Any threat of harm … had been made twelve to thirteen hours earlier. This is the uncontradicted state of this record. To an objective third-party observer, that could not possibly amount to imminency of threat of harm…. [I]f somebody beats you up and threatens to hurt you some more, the next day you can stalk them down and kill them? That’s not the law of this state[.]

[…]

In Alaska, all use of force in self-defense is governed by AS 11.81.330(a). If the force used in self-defense rises to the level of deadly force as defined in AS 11.81.900(b)(12), then a claim of self-defense must additionally satisfy the requirements of AS 11.81.335. Section 335(a) limits deadly force to situations in which (1) the force is justified under AS 11.81.330 and (2) the actor “reasonably believes [that] the use of deadly force is necessary for self defense against death, serious physical injury”, or one of the serious felonies listed in the statute. Section 335(b) declares that, even when the use of deadly force would be justified under section 335(a), a person must still refrain from using deadly force “if the person knows that, with complete … safety …, the person can avoid the necessity of using deadly force by retreating”.

Under Alaska law, a trial judge’s obligation to instruct the jury on self-defense arises only if there is some evidence tending to prove each element of the defense. AS 11.81.900(b)(15)(A).
[…]

While the “some evidence” test may not be exacting in terms of the amount of evidence needed, the defendant’s evidence must address all the legal elements of self-defense.
[…]

In this case, Judge Souter ruled that Ha failed to meet the requirements of the general statute, AS 11.81.330, because there was no evidence that Ha faced imminent peril. On appeal, Ha claims that Judge Souter misconstrued the requirement of “imminency”.

Both at common law and under modern statutes, a person claiming self-defense as a justification for assaulting someone else has to show, not only that he or she reasonably feared harm at the hands of the other person, but also that he or she reasonably feared that the threatened harm was imminent.

Case law and legislation concerning self-defense require that the defendant reasonably believe his adversary’s violence to be almost immediately forthcoming. Most of the modern codes require that the defendant reasonably perceive an “imminent” use of force, although other language making the same point is sometimes found.

Wayne R. LaFave and Austin W. Scott, Substantive Criminal Law (1986), § 5.7(d), “Imminence of Attack”, Vol. 1, pp. 655–56. See also Rollin M. Perkins and Ronald N. Boyce, Criminal Law (3rd ed. 1982), Ch. 10, Sec. 4, “Self–Defense”, p. 1114. (“The danger must be, or appear to be, pressing and urgent. A fear of danger at some future time is not sufficient.”)

[…]

Ha argues that the imminency of a defendant’s peril must be judged from the standpoint of the defendant. Ha contends that a reasonable person in Ha’s position—a person who had heard Buu threaten his life and who knew the vicious propensities of Buu and his criminal family—would reasonably fear that Buu or one of his relatives would inevitably come some day to carry out Buu’s threat to kill Ha.

Viewing the evidence in the light most favorable to Ha, we agree that there was sufficient evidence that a reasonable person in Ha’s position would have feared death or serious physical injury from Buu. Buu had threatened Ha with death. Buu was a violent man who nursed grudges and who was likely to carry out his threat someday. Moreover, the evidence suggested that Buu came from a violent, criminal clan, and that Buu’s relatives might very well help Buu carry out the threat—or might carry it out themselves if Buu was unable.

[…]

However, “inevitable” harm is not the same as “imminent” harm. Even though Ha may have reasonably feared that Buu (or one of Buu’s relatives) would someday kill him, a reasonable fear of future harm does not authorize a person to hunt down and kill an enemy.

[…]

Consistent with [court opinions from other states] and in accord with the wording of AS 11.81.330 and AS 11.81.900(b)(23), we hold that a defendant claiming self-defense as justification for the use of force must prove that he or she acted to avoid what he or she reasonably perceived to be a threat of imminent harm. A defendant’s reasonable belief that harm will come at some future time is not sufficient to support a claim of self-defense or defense of others.

Ha’s evidence supported the conclusion that he reasonably believed that Buu would someday harm him. But the requirement of imminency limits the scope of authorized self-defense. A defendant may actually and reasonably believe that, sooner or later, his enemy will choose an opportune moment to attack and kill him. Nevertheless, as Judge Souter noted, the law does not allow a defendant to seek out and kill his enemy so that he no longer has to live in fear. The defendant’s use of force against his enemy is authorized only when the defendant actually and reasonably believes that the enemy’s threatened attack is imminent.

Ha argues that, when determining whether a defendant reasonably believed that harm was imminent, the trial judge and the jury must consider the circumstances as they appeared to the defendant. Ha contends that, in his case, these circumstances include “[Ha’s] past experiences, his knowledge of [Buu], as well as [Ha’s] physical and mental condition”. We agree with Ha up to a point.

A defendant’s knowledge of the deceased’s violent nature must be considered when judging the reasonableness of the defendant’s actions and perceptions. And we agree with Ha that the reasonableness of his perception of imminent harm must be evaluated, not just based on Buu’s words and actions on the specific occasion when Ha killed him, but also based on Ha’s knowledge of Buu’s propensities and past conduct.

[T]he determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation”[.] Such terms encompass more than the physical movements of the potential assailant…. [T]hese terms include any relevant knowledge the defendant had about the person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant’s circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person’s intentions were to injure [or commit a crime upon] him or that the use of deadly force was necessary under the circumstances.

People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 29, 497 N.E.2d 41, 52 (1986) (citations omitted).

Thus, Ha is correct when he asserts that the reasonableness of his belief that he faced imminent harm must be analyzed in light of the severe beating that Ha had sustained at Buu’s hands twelve hours before, in light of Buu’s earlier repeated threats to kill Ha, and in light of Ha’s knowledge of Buu and his family, whose criminal history indicated that Buu’s threats should be taken seriously. And, to the extent that an understanding of Vietnamese culture was relevant to evaluating Buu’s motivation or readiness to kill Ha, this too was a proper matter to be considered.

However, Ha argues that, because of his cultural background and his poor command of English, he felt that it would be useless to go to the police for help and that he had “no viable alternatives” to killing Buu. The evidence at Ha’s trial shows that Ha had ample opportunity to inform others of his conflict with Buu and to seek their assistance. During the twelve or thirteen hours between the fight on board the Ultimate and the shooting, Buu left Ha completely alone. During this period, Ha had conversations with the skipper of his fishing boat and with various acquaintances in the Vietnamese community. Moreover, even assuming that Ha believed it would be pointless to speak with any of these people about Buu’s threats, this does nothing to establish that Buu posed an imminent danger to Ha or that Ha could have reasonably believed that Buu posed such a danger. Ha’s argument is simply another way of saying that Ha believed Buu would inevitably kill him if Ha did not act first. As we have said, a reasonable fear of future harm does not justify killing one’s enemy.

Ha also appears to argue that Vietnamese culture teaches that all police are corrupt, that one can expect no help from the authorities, and that people must take the law into their own hands to resolve personal disputes. Assuming for purposes of argument that Ha’s characterization of Vietnamese culture is accurate, and further assuming that Ha believed all these things, this still does not establish that Ha reasonably believed that Buu posed an imminent danger to him. To the extent that Ha might be arguing that the law of self-defense should make exceptions for people whose culture encourages vendettas, killings to assuage personal honor, or preemptive killings to forestall future harm, we reject Ha’s argument.

Ha next contends that Judge Souter (and ultimately the jury) should have evaluated the imminency of harm from the point of view of someone who was not thinking clearly. Ha argues that, because of his extreme fear and because he had possibly sustained brain injury during Buu’s earlier attack, he was subjectively convinced that Buu was about to kill him at any moment. Assuming this is true, this would not establish the reasonableness of Ha’s subjective perception. (In fact, if Ha is arguing that he would not have perceived an imminent danger were it not for his mental abnormality, his argument establishes that he was acting unreasonably.)

When the law says that the reasonableness of self-defense must be evaluated from the point of view of the defendant, this does not mean from the point of view of a mentally ill defendant. The reasonableness of a defendant’s perceptions and actions must be evaluated from the point of view of a reasonable person in the defendant’s situation, not a person suffering mental dysfunction.

[…]

Thus, the reasonableness of Ha’s belief in the imminence of danger must be evaluated from the point of view of a reasonable person in his situation—someone with Ha’s pertinent knowledge of and experience with Buu, but someone whose perceptions were clear and rational. If the rule were otherwise, judges and juries would be obliged to acquit defendants who killed under a psychotic delusion that they were about to suffer serious harm.

In this case, despite the evidence suggesting that Ha had good reason to fear future harm from Buu, there was no evidence that Ha was in imminent danger, or could have reasonably believed himself to be in imminent danger, when he hunted Buu through the streets of Dillingham and then shot him from behind while Buu was carrying groceries. Judge Souter therefore correctly declined to instruct the jury on self-defense.

[…]
Conclusion
For the reasons explained above, we uphold Judge Souter’s refusal to instruct the jury on self-defense[.]

North Carolina v. Norman, 378 S.E.2d 8 (N.C. 1998) (Battered Spouse Defense)

Throughout the years, there have been several cases addressing domestic violence situations where an intimate partner is physically or sexually abused for years until the abused partner kills or seriously injurers the abusive partner. These cases may involve a battered wife who kills her husband in his sleep. The following case, North Carolinav. Norman, 378 S.E.2d 8 (N.C. 1998), is demonstrative of the issue. As you read Norman, compare how the majority opinion articulates the imminency requirement different than the dissenting opinion. Also, ask yourself if Norman is consistent with, or inconsistent with, Ha v. State?

324 N.C. 253
Supreme Court of North Carolina.
STATE of North Carolina
v.
Judy Ann Laws NORMAN.
April 5, 1989.

Opinion

MITCHELL, Justice.

The defendant was [charged] with the first degree murder of her husband. The jury found the defendant guilty of voluntary manslaughter. The defendant appealed[.] [The North Carolina Court of Appeals found that the trial court erred in declining to instruct on self-defense and granted the defendant a new trial. This appeal followed.]

[…]

At trial, the State presented the testimony of Deputy Sheriff R.H. Epley of the Rutherford County Sheriff’s Department, who was called to the Norman residence on the night of 12 June 1985. Inside the home, Epley found the defendant’s husband, John Thomas Norman, lying on a bed in a rear bedroom with his face toward the wall and his back toward the middle of the room. He was dead, but blood was still coming from wounds to the back of his head. A later autopsy revealed three gunshot wounds to the head, two of which caused fatal brain injury. The autopsy also revealed a .12 percent blood alcohol level in the victim’s body.

Later that night, the defendant related an account of the events leading to the killing, after Epley had advised her of her constitutional rights and she had waived her right to remain silent. The defendant told Epley that her husband had been beating her all day and had made her lie down on the floor while he slept on the bed. After her husband fell asleep, the defendant carried her grandchild to the defendant’s mother’s house. The defendant took a pistol from her mother’s purse and walked the short distance back to her home. She pointed the pistol at the back of her sleeping husband’s head, but it jammed the first time she tried to shoot him. She fixed the gun and then shot her husband in the back of the head as he lay sleeping. After one shot, she felt her husband’s chest and determined that he was still breathing and making sounds. She then shot him twice more in the back of the head. The defendant told Epley that she killed her husband because “she took all she was going to take from him so she shot him.”

The defendant presented evidence tending to show a long history of physical and mental abuse by her husband due to his alcoholism. At the time of the killing, the thirty-nine-year-old defendant and her husband had been married almost twenty-five years and had several children. The defendant testified that her husband had started drinking and abusing her about five years after they were married. His physical abuse of her consisted of frequent assaults that included slapping, punching and kicking her, striking her with various objects, and throwing glasses, beer bottles and other objects at her. The defendant described other specific incidents of abuse, such as her husband putting her cigarettes out on her, throwing hot coffee on her, breaking glass against her face and crushing food on her face. Although the defendant did not present evidence of ever having received medical treatment for any physical injuries inflicted by her husband, she displayed several scars about her face which she attributed to her husband’s assaults.

The defendant’s evidence also tended to show other indignities inflicted upon her by her husband. Her evidence tended to show that her husband did not work and forced her to make money by prostitution, and that he made humor of that fact to family and friends. He would beat her if she resisted going out to prostitute herself or if he was unsatisfied with the amounts of money she made. He routinely called the defendant “dog,” “bitch” and “whore,” and on a few occasions made her eat pet food out of the pets’ bowls and bark like a dog. He often made her sleep on the floor. At times, he deprived her of food and refused to let her get food for the family. During those years of abuse, the defendant’s husband threatened numerous times to kill her and to maim her in various ways.

The defendant said her husband’s abuse occurred only when he was intoxicated, but that he would not give up drinking. She said she and her husband “got along very well when he was sober,” and that he was “a good guy” when he was not drunk. She had accompanied her husband to the local mental health center for sporadic counseling sessions for his problem, but he continued to drink.

In the early morning hours on the day before his death, the defendant’s husband, who was intoxicated, went to a rest area off I-85 near Kings Mountain where the defendant was engaging in prostitution and assaulted her. While driving home, he was stopped by a patrolman and jailed on a charge of driving while impaired. After the defendant’s mother got him out of jail at the defendant’s request later that morning, he resumed his drinking and abuse of the defendant.

The defendant’s evidence also tended to show that her husband seemed angrier than ever after he was released from jail and that his abuse of the defendant was more frequent. That evening, sheriff’s deputies were called to the Norman residence, and the defendant complained that her husband had been beating her all day and she could not take it anymore. The defendant was advised to file a complaint, but she said she was afraid her husband would kill her if she had him arrested. The deputies told her they needed a warrant before they could arrest her husband, and they left the scene.

The deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant’s husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. A sheriff’s deputy finally chased him back into his house as the defendant was put into an ambulance. The defendant’s stomach was pumped at the local hospital, and she was sent home with her mother.

While in the hospital, the defendant was visited by a therapist with whom she discussed filing charges against her husband and having him committed for treatment. Before the therapist left, the defendant agreed to go to the mental health center the next day to discuss those possibilities. The therapist testified at trial that the defendant seemed depressed in the hospital, and that she expressed considerable anger toward her husband. He testified that the defendant threatened a number of times that night to kill her husband and that she said she should kill him “because of the things he had done to her.”

The next day, the day she shot her husband, the defendant went to the mental health center to talk about charges and possible commitment, and she confronted her husband with that possibility. She testified that she told her husband later that day: “J.T., straighten up. Quit drinking. I’m going to have you committed to help you.” She said her husband then told her he would “see them coming” and would cut her throat before they got to him.

The defendant also went to the social services office that day to seek welfare benefits, but her husband followed her there, interrupted her interview and made her go home with him. He continued his abuse of her, threatening to kill and to maim her, slapping her, kicking her, and throwing objects at her. At one point, he took her cigarette and put it out on her, causing a small burn on her upper torso. He would not let her eat or bring food into the house for their children.

That evening, the defendant and her husband went into their bedroom to lie down, and he called her a “dog” and made her lie on the floor when he lay down on the bed. Their daughter brought in her baby to leave with the defendant, and the defendant’s husband agreed to let her baby-sit. After the defendant’s husband fell asleep, the baby started crying and the defendant took it to her mother’s house so it would not wake up her husband. She returned shortly with the pistol and killed her husband.

The defendant testified at trial that she was too afraid of her husband to press charges against him or to leave him. She said that she had temporarily left their home on several previous occasions, but he had always found her, brought her home and beaten her. Asked why she killed her husband, the defendant replied: “Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been. I just couldn’t take it no more. There ain’t no way, even if it means going to prison. It’s better than living in that. That’s worse hell than anything.”

The defendant and other witnesses testified that for years her husband had frequently threatened to kill her and to maim her. When asked if she believed those threats, the defendant replied: “Yes. I believed him; he would, he would kill me if he got a chance. If he thought he wouldn’t a had to went to jail, he would a done it.”

Two expert witnesses in forensic psychology and psychiatry who examined the defendant after the shooting, Dr. William Tyson and Dr. Robert Rollins, testified that the defendant fit the profile of battered wife syndrome. This condition, they testified, is characterized by such abuse and degradation that the battered wife comes to believe she is unable to help herself and cannot expect help from anyone else. She believes that she cannot escape the complete control of her husband and that he is invulnerable to law enforcement and other sources of help.

Dr. Tyson, a psychologist, was asked his opinion as to whether, on 12 June 1985, “it appeared reasonably necessary for Judy Norman to shoot J.T. Norman?” He replied: “I believe that … Mrs. Norman believed herself to be doomed … to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable….” Dr. Tyson later added: “I think Judy Norman felt that she had no choice, both in the protection of herself and her family, but to engage, exhibit deadly force against Mr. Norman, and that in so doing, she was sacrificing herself, both for herself and for her family.”

Dr. Rollins, who was the defendant’s attending physician at Dorothea Dix Hospital when she was sent there for evaluation, testified that in his opinion the defendant was a typical abused spouse and that “[s]he saw herself as powerless to deal with the situation, that there was no alternative, no way she could escape it.” Dr. Rollins was asked his opinion as to whether “on June 12th, 1985, it appeared reasonably necessary that Judy Norman would take the life of J.T. Norman?” Dr. Rollins replied that in his opinion, “that course of action did appear necessary to Mrs. Norman.”

Based on the evidence that the defendant exhibited battered wife syndrome, that she believed she could not escape her husband nor expect help from others, that her husband had threatened her, and that her husband’s abuse of her had worsened in the two days preceding his death, the Court of Appeals concluded that a jury reasonably could have found that her killing of her husband was justified as an act of perfect self-defense. The Court of Appeals reasoned that the nature of battered wife syndrome is such that a jury could not be precluded from finding the defendant killed her husband lawfully in perfect self-defense, even though he was asleep when she killed him. We disagree.

The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. Our law has recognized that self-preservation under such circumstances springs from a primal impulse and is an inherent right of natural law.

In North Carolina, a defendant is entitled to have the jury consider acquittal by reason of perfect self-defense when the evidence, viewed in the light most favorable to the defendant, tends to show that at the time of the killing it appeared to the defendant and she believed it to be necessary to kill the decedent to save herself from imminent death or great bodily harm. That belief must be reasonable, however, in that the circumstances as they appeared to the defendant would create such a belief in the mind of a person of ordinary firmness. Further, the defendant must not have been the initial aggressor provoking the fatal confrontation. A killing in the proper exercise of the right of perfect self-defense is always completely justified in law and constitutes no legal wrong.

Our law also recognizes an imperfect right of self-defense in certain circumstances, including, for example, when the defendant is the initial aggressor, but without intent to kill or to seriously injure the decedent, and the decedent escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill the decedent to save herself from imminent death or great bodily harm. Although the culpability of a defendant who kills in the exercise of imperfect self-defense is reduced, such a defendant is not justified in the killing so as to be entitled to acquittal, but is guilty at least of voluntary manslaughter

The defendant in the present case was not entitled to a jury instruction on either perfect or imperfect self-defense. The trial court was not required to instruct on either form of self-defense unless evidence was introduced tending to show that at the time of the killing the defendant reasonably believed herself to be confronted by circumstances which necessitated her killing her husband to save herself from imminent death or great bodily harm. No such evidence was introduced in this case, and it would have been error for the trial court to instruct the jury on either perfect or imperfect self-defense.

[…]

The killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent. For that reason, our law of self-defense has required that a defendant claiming that a homicide was justified and, as a result, inherently lawful by reason of perfect self-defense must establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm. Only if defendants are required to show that they killed due to a reasonable belief that death or great bodily harm was imminent can the justification for homicide remain clearly and firmly rooted in necessity. The imminence requirement ensures that deadly force will be used only where it is necessary as a last resort in the exercise of the inherent right of self-preservation. It also ensures that before a homicide is justified and, as a result, not a legal wrong, it will be reliably determined that the defendant reasonably believed that absent the use of deadly force, not only would an unlawful attack have occurred, but also that the attack would have caused death or great bodily harm. The law does not sanction the use of deadly force to repel simple assaults.

The term “imminent,” as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as “immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law.” Black’s Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase “about to suffer” interchangeably with “imminent” to describe the immediacy of threat that is required to justify killing in self-defense.

The evidence in this case did not tend to show that the defendant reasonably believed that she was confronted by a threat of imminent death or great bodily harm. The evidence tended to show that no harm was “imminent” or about to happen to the defendant when she shot her husband. The uncontroverted evidence was that her husband had been asleep for some time when she walked to her mother’s house, returned with the pistol, fixed the pistol after it jammed and then shot her husband three times in the back of the head. The defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured. Instead, all of the evidence tended to show that the defendant had ample time and opportunity to resort to other means of preventing further abuse by her husband. There was no action underway by the decedent from which the jury could have found that the defendant had reasonable grounds to believe either that a felonious assault was imminent or that it might result in her death or great bodily injury. Additionally, no such action by the decedent had been underway immediately prior to his falling asleep.

[…]

Additionally, the lack of any belief by the defendant-reasonable or otherwise-that she faced a threat of imminent death or great bodily harm from the drunk and sleeping victim in the present case was illustrated by the defendant and her own expert witnesses when testifying about her subjective assessment of her situation at the time of the killing. The psychologist and psychiatrist replied affirmatively when asked their opinions of whether killing her husband “appeared reasonably necessary” to the defendant at the time of the homicide. That testimony spoke of no imminent threat nor of any fear by the defendant of death or great bodily harm, imminent or otherwise. Testimony in the form of a conclusion that a killing “appeared reasonably necessary” to a defendant does not tend to show all that must be shown to establish self-defense. More specifically, for a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm.

Dr. Tyson additionally testified that the defendant “believed herself to be doomed … to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable.” Such evidence of the defendant’s speculative beliefs concerning her remote and indefinite future, while indicating she had felt generally threatened, did not tend to show that she killed in the belief-reasonable or otherwise-that her husband presented a threat of imminent death or great bodily harm. Under our law of self-defense, a defendant’s subjective belief of what might be “inevitable” at some indefinite point in the future does not equate to what she believes to be “imminent.” Dr. Tyson’s opinion that the defendant believed it was necessary to kill her husband for “the protection of herself and her family” was similarly indefinite and devoid of time frame and did not tend to show a threat or fear of imminent harm.

The defendant testified that, “I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been.” She also testified, when asked if she believed her husband’s threats: “Yes…. [H]e would kill me if he got a chance. If he thought he wouldn’t a had to went to jail, he would a done it.” Testimony about such indefinite fears concerning what her sleeping husband might do at some time in the future did not tend to establish a fear-reasonable or otherwise-of imminent death or great bodily harm at the time of the killing.

[…]

As we have stated, stretching the law of self-defense to fit the facts of this case would require changing the “imminent death or great bodily harm” requirement to something substantially more indefinite than previously required and would weaken our assurances that justification for the taking of human life remains firmly rooted in real or apparent necessity. That result in principle could not be limited to a few cases decided on evidence as poignant as this. The relaxed requirements for perfect self-defense proposed … would tend to categorically legalize the opportune killing of abusive husbands by their wives solely on the basis of the wives’ testimony concerning their subjective speculation as to the probability of future felonious assaults by their husbands. Homicidal self-help would then become a lawful solution, and perhaps the easiest and most effective solution, to this problem. It has even been suggested that the relaxed requirements of self-defense found in what is often called the “battered woman’s defense” could be extended in principle to any type of case in which a defendant testified that he or she subjectively believed that killing was necessary and proportionate to any perceived threat.

In conclusion, we decline to expand our law of self-defense beyond the limits of immediacy and necessity which have heretofore provided an appropriately narrow but firm basis upon which homicide may be justified and, thus, lawful by reason of perfect self-defense or upon which a defendant’s culpability may be reduced by reason of imperfect self-defense. As we have shown, the evidence in this case did not entitle the defendant to jury instructions on either perfect or imperfect self-defense.

For the foregoing reasons, we conclude that the defendant’s conviction for voluntary manslaughter and the trial court’s judgment sentencing her to a six-year term of imprisonment were without error.

[The North Carolina Court of Appeals is REVERSED and the trial court’s judgment is affirmed].

MARTIN, Justice, dissenting.

At the outset it is to be noted that the peril of fabricated evidence is not unique to the trials of battered wives who kill. The possibility of invented evidence arises in all cases in which a party is seeking the benefit of self-defense. Moreover, in this case there were a number of witnesses other than defendant who testified as to the actual presence of circumstances supporting a claim of self-defense. This record contains no reasonable basis to attack the credibility of evidence for the defendant.

Likewise, the difficulty of rebutting defendant’s evidence because the only other witness to many of the events is deceased is not unique to this type of case. This situation is also commonplace in cases in which self-defense is raised, although, again, in the case sub judice there was more than one surviving witness to such events. In considering the argument that the state is faced with a difficult burden in attempting to rebut evidence of which defendant is the only surviving witness, one must not overlook the law: the burden is always on the state to prove that the killing was intentional beyond a reasonable doubt. “Defendant may always rest ultimately on the weakness of the state’s case and the state’s failure to carry its burden of proof.”

At the heart of the majority’s reasoning is its unsubstantiated concern that to find that the evidence presented by defendant would support an instruction on self-defense would “expand our law of self-defense beyond the limits of immediacy and necessity.” Defendant does not seek to expand or relax the requirements of self-defense and thereby “legalize the opportune killing of allegedly abusive husbands by their wives,” as the majority overstates. Rather, defendant contends that the evidence as gauged by the existing laws of self-defense is sufficient to require the submission of a self-defense instruction to the jury. The proper issue for this Court is to determine whether the evidence, viewed in the light most favorable to the defendant, was sufficient to require the trial court to instruct on the law of self-defense. I conclude that it was.

In every jury trial, it is the duty of the court to charge the jury on all substantial features of the case arising on the evidence, whether or not such instructions have been requested. All defenses presented by the defendant’s evidence are substantial features of the case, even if that evidence contains discrepancies or is contradicted by evidence from the state. This rule reflects the principle in our jurisprudence that it is the jury, not the judge, that weighs the evidence.

[…]

Evidence presented by defendant described a twenty-year history of beatings and other dehumanizing and degrading treatment by her husband. In his expert testimony a clinical psychologist concluded that defendant fit “and exceed[ed]” the profile of an abused or battered spouse, analogizing this treatment to the dehumanization process suffered by prisoners of war under the Nazis during the Second World War and the brainwashing techniques of the Korean War. The psychologist described the defendant as a woman incarcerated by abuse, by fear, and by her conviction that her husband was invincible and inescapable:

Mrs. Norman didn’t leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief. She fully believed that he was invulnerable to the law and to all social agencies that were available; that nobody could withstand his power. As a result, there was no such thing as escape.

When asked if he had an opinion whether it appeared reasonably necessary for Judy Norman to shoot her husband, this witness responded:

Yes…. I believe that in examining the facts of this case and examining the psychological data, that Mrs. Norman believed herself to be doomed … to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable; death of herself, which was not such, I don’t think was such an issue for her, as she had attempted to commit suicide, and in her continuing conviction of J.T. Norman’s power over her, and even failed at that form of escape. I believe she also came to the point of beginning to fear for family members and her children, that were she to commit suicide that the abuse and the treatment that was heaped on her would be transferred onto them.

This testimony describes defendant’s perception of circumstances in which she was held hostage to her husband’s abuse for two decades and which ultimately compelled her to kill him. This testimony alone is evidence amply indicating the first two elements required for entitlement to an instruction on self-defense.

In addition to the testimony of the clinical psychologist, defendant presented the testimony of witnesses who had actually seen defendant’s husband abuse her. These witnesses described circumstances that caused not only defendant to believe escape was impossible, but that also convinced them of its impossibility. Defendant’s isolation and helplessness were evident in testimony that her family was intimidated by her husband into acquiescing in his torture of her. Witnesses also described defendant’s experience with social service agencies and the law, which had contributed to her sense of futility and abandonment through the inefficacy of their protection and the strength of her husband’s wrath when they failed. Where torture appears interminable and escape impossible, the belief that only the death of the oppressor can provide relief is reasonable in the mind of a person of ordinary firmness, let alone in the mind of the defendant, who, like a prisoner of war of some years, has been deprived of her humanity and is held hostage by fear.

In [a prior decision], this Court noted that if the defendant was in “no imminent danger” at the time of the killing, then his belief that it was necessary to kill the man who had pursued him eight hours before was unreasonable. The second element of self-defense was therefore not satisfied. In the context of the doctrine of self-defense, the definition of “imminent” must be informed by the defendant’s perceptions. It is not bounded merely by measurable time, but by all of the facts and circumstances. Its meaning depends upon the assessment of the facts by one of “ordinary firmness” with regard to whether the defendant’s perception of impending death or injury was so pressing as to render reasonable her belief that it was necessary to kill.

Evidence presented in the case revealed no letup of tension or fear, no moment in which the defendant felt released from impending serious harm, even while the decedent slept. This, in fact, is a state of mind common to the battered spouse[.] Psychologists have observed and commentators have described a “constant state of fear” brought on by the cyclical nature of battering as well as the battered spouse’s perception that her abuser is both “omnipotent and unstoppable.” Constant fear means a perpetual anticipation of the next blow, a perpetual expectation that the next blow will kill. “[T]he battered wife is constantly in a heightened state of terror because she is certain that one day her husband will kill her during the course of a beating…. Thus from the perspective of the battered wife, the danger is constantly ‘immediate.’ ” [citations omitted] For the battered wife, if there is no escape, if there is no window of relief or momentary sense of safety, then the next attack, which could be the fatal one, is imminent. In the context of the doctrine of self-defense, “imminent” is a term the meaning of which must be grasped from the defendant’s point of view. Properly stated, the second prong of the question is not whether the threat was in fact imminent, but whether defendant’s belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.

Defendant’s intense fear, based on her belief that her husband intended not only to maim or deface her, as he had in the past, but to kill her, was evident in the testimony of witnesses who recounted events of the last three days of the decedent’s life. This testimony could have led a juror to conclude that defendant reasonably perceived a threat to her life as “imminent,” even while her husband slept. Over these three days, her husband’s anger was exhibited in an unprecedented crescendo of violence. The evidence showed defendant’s fear and sense of hopelessness similarly intensifying, leading to an unsuccessful attempt to escape through suicide and culminating in her belief that escape would be possible only through her husband’s death.

Defendant testified that on 10 June, two days before her husband’s death, he had again forced her to go to a rest-stop near Kings Mountain to make money by prostitution. Her daughter Phyllis and Phyllis’s boyfriend Mark Navarra accompanied her on this occasion because, defendant said, whenever her husband took her there, he would beat her. Phyllis corroborated this account. She testified that her father had arrived some time later and had begun beating her mother, asking how much money she had. Defendant said they all then drove off. Shortly afterwards an officer arrested defendant’s husband for driving under the influence. He spent the night in jail and was released the next morning on bond paid by defendant’s mother.

Defendant testified that her husband was argumentative and abusive all through the next day, 11 June. Mark Navarra testified that at one point defendant’s husband threw a sandwich that defendant had made for him on the floor. She made another; he threw it on the floor, as well, then insisted she prepare one without touching it. Defendant’s husband had then taken the third sandwich, which defendant had wrapped in paper towels, and smeared it on her face. Both Navarra and Phyllis testified that they had later watched defendant’s husband seize defendant’s cigarette and put it out on her neck, the scars from which defendant displayed to the jury.

A police officer testified that he arrived at defendant’s home at 8:00 that evening in response to a call reporting a domestic quarrel. Defendant, whose face was bruised, was crying, and she told the officer that her husband had beaten her all day long and that she could not take it any longer. The officer told her that he could do nothing for her unless she took out a warrant on her husband. She responded that if she did, her husband would kill her. The officer left but was soon radioed to return because defendant had taken an overdose of pills. The officer testified that defendant’s husband was interfering with ambulance attendants, saying “Let the bitch die.” When he refused to respond to the officer’s warning that if he continued to hinder the attendants, he would be arrested, the officer was compelled to chase him into the house.

Defendant’s mother testified that her son-in-law had reacted to the discovery that her daughter had taken the pills with cursing and obscenities and threats such as, “Now, you’re going to pay for taking those pills,” and “I’ll kill you, your mother and your grandmother.” His rage was such that defendant’s mother feared he might kill the whole family, and knowing defendant’s sister had a gun in her purse, she took the gun and placed it in her own.

Defendant was taken to the hospital, treated, and released at 2:30 a.m. She spent the remainder of the night at her grandmother’s house. Defendant testified that the next day, 12 June, she felt dazed all day long. She went in the morning to the county mental health center for guidance on domestic abuse. When she returned home, she tried to talk to her husband, telling him to “straighten up. Quit drinking…. I’m going to have you committed to help you.” Her husband responded, “If you do, I’ll see them coming and before they get here, I’ll cut your throat.”

Later, her husband made her drive him and his friend to Spartanburg to pick up the friend’s paycheck. On the way, the friend testified, defendant’s husband “started slapping on her” when she was following a truck too closely, and he periodically poured his beer into a glass, then reached over and poured it on defendant’s head. At one point defendant’s husband lay down on the front seat with his head on the arm rest, “like he was going to go to sleep,” and kicked defendant, who was still driving, in the side of the head.

Mark Navarra testified that in the year and a half he had lived with the Normans, he had never seen defendant’s husband madder than he was on 12 June, opining that it was the DUI arrest two days before that had ignited J.T.’s fury. Phyllis testified that her father had beaten her mother “all day long.” She testified that this was the third day defendant’s husband had forbidden her to eat any food. Phyllis said defendant’s family tried to get her to eat, but defendant, fearing a beating, would not. Although Phyllis’s grandmother had sent over a bag of groceries that day, defendant’s husband had made defendant put them back in the bag and would not let anyone eat them.

Early in the evening of 12 June, defendant’s husband told defendant, “Let’s go to bed.” Phyllis testified that although there were two beds in the room, her father had forbidden defendant from sleeping on either. Instead, he had made her lie down on the concrete floor between the two beds, saying, “Dogs don’t lay in the bed. They lay in the floor.” Shortly afterward, defendant testified, Phyllis came in and asked her father if defendant could take care of her baby while she went to the store. He assented and eventually went to sleep. Defendant was still on the floor, the baby on the small bed. The baby started to cry and defendant “snuck up and took him out there to [her] mother’s [house].” She asked her mother to watch the baby, then asked if her mother had anything for headache, as her head was “busting.” Her mother responded that she had some pain pills in her purse. Defendant went in to get the pills, “and the gun was in there, and I don’t know, I just seen the gun, and I took it out, and I went back there and shot him.”

From this evidence of the exacerbated nature of the last three days of twenty years of provocation, a juror could conclude that defendant believed that her husband’s threats to her life were viable, that serious bodily harm was imminent, and that it was necessary to kill her husband to escape that harm. And from this evidence a juror could find defendant’s belief in the necessity to kill her husband not merely reasonable but compelling.

[…]

Deadly Force – Excessive Force

A person may only use force “when and to the extent” necessary to repeal the threatened harm. Thus, the law does not allow a person to use deadly force when non-deadly force would be sufficient. Non-deadly force is a force that is unlikely to cause death or serious physical injury. AS 11.81.900(b)(39). Deadly force is the opposite – a force that is likely to cause death or serious physical injury. AS 11.81.900(b)(16). Examples of deadly force may include the use of a knife, gun, vehicle, or even bare hands depending on how they were used.

Thus, if a person is faced with a punch, it is unlikely that they would be able to defend themselves with a knife. In other words, a person may not use excessive force. A person may only use deadly force if it is necessary to prevent death, serious physical injury, kidnapping, sexual assault, or robbery. AS 11.81.335(a).

Figure 7.2 AS 11.81.335. Justification: Use of deadly Force Diagram.

The force used must be objectively reasonable under the circumstances. The defendant must “reasonably believe” that the force is necessary to repeal the threatened harm. When the threat ends, the use of force must end. Unnecessary force – that is, excessive force – is never permitted.

But similarly, if the defendant is entitled to use deadly force under the circumstances, the law does not require the defendant to use “minimal deadly force” before using “all-out deadly force.” There is no such thing as “almost deadly force”. Force, in the context of self-defense, is binary: it is either deadly or non-deadly. For example, a defendant who is facing a deadly attacker is not required to shoot their assailant in the leg before shooting the assailant in the chest. If the defendant is entitled to use deadly force, they are entitled to use sufficient deadly force to stop the threat: no more, no less.

Finally, even though we frequently discuss self-defense in hindsight, the jury must evaluate the defendant’s use of force based on the circumstances as they were known to the defendant at the time force was used. Thus, the jury is required to view the events leading up to the force through the eyes of the defendant and ask themselves whether such action was reasonable. They are not permitted to retroactively (that is, in hindsight) assess the reasonableness of the defendant’s decision.

Jones-Nelson v. State, ___ P.3d ___ (Alaska 2022)

In the following case, the court is faced with the question of objective reasonableness, “excessive” deadly force, and how these terms are defined for the trier of fact.

___ P.3d ___
Supreme Court of Alaska.
Marquinn JONES-NELSON, Appellant,
v.
STATE of Alaska, Appellee.
June 24, 2022

OPINION
Carney, Justice.

INTRODUCTION

A defendant convicted of first-degree murder appealed his conviction to the court of appeals, arguing that the trial court erroneously instructed the jury on the law of self-defense. The court of appeals agreed the instruction was erroneous but concluded that the error was harmless and affirmed the defendant’s conviction.

The defendant petitioned us, asking that we reverse the court of appeals’ decision and his conviction because the erroneous instruction relieved the State of its burden to disprove self-defense beyond a reasonable doubt. We agree. We therefore reverse the decisions of the superior court and court of appeals and vacate the defendant’s conviction because the challenged instruction is legally incorrect and impermissibly lightens the prosecution’s burden to disprove self-defense.

FACTS AND PROCEEDINGS

1. Facts[1]

[On the evening of March 23, 2011, Jones-Nelson and two of his friends attended a party at an Anchorage apartment. Jordan and some of his friends attended the same party.

At some point, Jordan confronted Jones-Nelson in a bedroom, accusing him of spreading the rumor that Jordan was a police snitch. During this confrontation, Jordan came within three feet of Jones-Nelson, and he was acting aggressively. However, Jordan ultimately left the room and returned to sit with his friends in the kitchen.

One of Jordan’s friends who lived in the apartment, Nikita Sanders, could see that Jordan was angry. She asked him if he was “good,” and Jordan replied that he was. But Jordan then asked another friend, Parrish Harris, whether he should “drop” Jones-Nelson. Sanders heard this comment, and she told Jordan, “Not in my apartment.”

(Because Jones-Nelson was still in the bedroom, he did not hear Jordan’s comment.)

A little later, Jones-Nelson called Harris into the bedroom and told him to fetch Jordan. Harris did so; moments later, Jordan came into the bedroom.

According to the testimony later given by Jones-Nelson and two of his friends (Dorian Topps and Dionte Wren), Jordan approached Jones-Nelson in an aggressive manner. He came within a foot and a half of Jones-Nelson, stood over him, and asked, “What’s up?” (Jordan, who was about 6 foot 3 inches tall and weighed 170 pounds, was significantly bigger than Jones-Nelson, who was 5 foot 7 inches tall and weighed about 135 pounds.)

According to the defense witnesses, Jordan looked like he was going to hit Jones-Nelson. In addition, Topps (one of Jones-Nelson’s friends) testified that he saw Jordan reaching for a handgun in his waistband as he approached Jones-Nelson. However, Wren (Jones-Nelson’s other friend) testified that he did not see Jordan with a firearm, nor did he see Jordan actually try to hit Jones-Nelson.

Regardless of this discrepancy in the testimony, it is undisputed that Jones-Nelson pulled out a handgun and started shooting at Jordan. Jones-Nelson fired two shots in quick succession, at which point Jordan turned and ran toward the kitchen. As Jordan ran away, Jones-Nelson fired four more shots. Jordan died as a result of his wounds.

Following the shooting, Jones-Nelson fled the apartment, accompanied by Wren and Topps. Jones-Nelson’s girlfriend was waiting outside in a car, and the four drove away from the apartment. When Jones-Nelson’s girlfriend asked him what happened, Jones-Nelson replied that he had just “smoked” Jordan. Jones-Nelson later disposed of the handgun by tossing it over a bridge.

The next day, Jones-Nelson contacted a person to obtain a fake birth certificate and other false documents so that he could leave Alaska under a false identity. The person that Jones-Nelson contacted was secretly a federal informant, and she alerted the authorities to Jones-Nelson’s plan. The police arrested Jones-Nelson when he went to retrieve the false documents. When Jones-Nelson was interviewed following his arrest, he denied being at the scene of the shooting.

At trial, there was no dispute that Jones-Nelson shot and killed Jordan. The only question was whether this shooting was justified by self-defense.

[…]

Both Jones-Nelson and his friend Topps testified that Jordan approached Jones-Nelson in an aggressive manner, and that Jordan reached into his waistband for a gun. (As we noted earlier, Jones-Nelson’s other friend, Wren, testified that he did not see Jordan reach for a gun.) Jones-Nelson testified that when he saw Jordan reaching for a gun, he was afraid that he would be pistol-whipped or shot, so he grabbed a revolver from the window ledge and started shooting at Jordan. Jones-Nelson conceded that, after the first few shots, Jordan dropped his gun and ran, but Jones-Nelson testified that he kept firing because he was afraid that Jordan’s friends might have guns and might come to Jordan’s aid.

The prosecutor argued that neither Jones-Nelson nor his friend Topps were credible witnesses, and that their testimony about Jordan reaching for a gun was false. The prosecutor asserted that Jones-Nelson never subjectively believed that he needed to use deadly force to repel an imminent attack.]

1. Trial

Jones-Nelson gave notice before trial that he would claim self-defense. At the end of the four-week-long trial, the trial court gave the jury three instructions on the law of self-defense. The first two, numbered 30 and 31, were pattern instructions that described the use of nondeadly force and deadly force in self-defense. These instructions correctly stated the relevant law. The deadly force instruction explained that if a person is justified in using nondeadly force in self-defense, the person can also use deadly force “when the person reasonably believes the use of deadly force is necessary for self-defense.”

At the prosecution’s request and over Jones-Nelson’s objection, the court also gave the following instruction, drafted by the prosecutor:

A basic tenet of the doctrine of self-defense is that [the] use of deadly force is unreasonable … if non-deadly force is obviously sufficient to avert the threatened harm. Even in circumstances when a person is permitted to use deadly force in self-defense[,] that person may still not be authorized to employ all-out deadly force because such extreme force is not necessary to avert the danger.

[…]

The jury rejected Jones-Nelson’s self-defense claim and convicted him of first-degree murder. [On appeal to the Alaska Court of Appeals, Jones-Nelson argued that the self-defense instruction was legal error. The Court of Appeals agreed that the jury instruction was legally unnecessary, but found the legal error harmless.]

DISCUSSION

Jones-Nelson argues that the court of appeals was wrong to conclude that the incorrect jury instruction was harmless. And he argues that the instruction reduced the State’s duty to disprove self-defense beyond a reasonable doubt. The State argues that the jury instruction correctly stated the law and that any imperfections in the jury instruction did not affect the verdict. We agree with Jones-Nelson that the instruction erroneously described the law of self-defense, the error was constitutional in nature, and the error was not harmless beyond a reasonable doubt.

[…]

The Instruction Incorrectly Directed The Jury To Retroactively Assess The Reasonableness Of Jones-Nelson’s Use Of Force.

Jones-Nelson argues that the instruction improperly directed the jury to retroactively assess his use of force. Alaska has codified the common law of self-defense. The use of nondeadly force is governed by AS 11.81.330. When a defendant uses deadly force as defined in AS 11.81.900(b)(16), the defendant must show that the additional requirements of AS 11.81.335 are satisfied. A person is entitled to use deadly force in self-defense if nondeadly force is justified under AS 11.81.330 and the person “reasonably believes the use of deadly force is necessary for self-defense against … death[,] … serious physical injury,” or one of the crimes listed in the statute.

Whether such force is necessary must be evaluated based on the circumstances as they appeared to the defendant at the time the force was used. We have recognized that “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” For that reason, “[e]ven if the defendant’s fear turns out to have been mistaken, [self-defense] still may be established if the defendant proves that, under the circumstances, he or she reasonably feared imminent deadly attack at the hand of the victim.”

[…]

In this case, the first two self-defense instructions were pattern instructions presenting the jury with the definitions of nondeadly and then deadly force. The pattern instructions closely tracked the statutory language. The third instruction, number 34, was drafted by the prosecutor.

[…]

The court of appeals concluded that the error in Instruction 34 was that “the wording … failed to unambiguously recite the concept of ‘reasonableness’ that is central to the law of self-defense.” The court observed that the question before the jury “is not whether a defendant’s use of force, and the level of force used, was necessary in hindsight (or, using the language of the challenged instruction, whether some lesser amount of force can now be seen to be ‘obviously sufficient to avert the threatened harm’).” We agree. Because the instruction implied that reasonableness could be assessed in hindsight, the instruction was in error.

The Instruction Erroneously Distinguished Between Deadly And “All-Out Deadly” Force.

Jones-Nelson also argues that the instruction improperly distinguished between deadly force and “all-out deadly force” or “extreme force.” The second sentence of the instruction directed that “[e]ven in circumstances when a person is permitted to use deadly force in self-defense[,] that person may still not be authorized to employ all-out deadly force because such extreme force is not necessary to avert the danger.” The instruction is derived from language in State v. Walker, 887 P.2d 971, 978 (Alaska App. 1994). Jones-Nelson contends that [the] language was taken out of context and was “quite specific to the facts of that case.” The court of appeals rejected this argument, noting that the “instruction correctly captured the concept that the defendant’s use of force must be proportionate to the perceived danger.”

Alaska law permits the use of deadly force “when and to the extent the person reasonably believes the use of deadly force is necessary.” The State argues that this “when and to the extent” language requires courts to distinguish not only between deadly and nondeadly force, but also between different degrees of deadly force. In addition to Walker, the State bases its argument on the common law principle of proportionality. We have not previously addressed whether the “when and to the extent” language in AS 11.81.335(a) requires a defendant authorized to use deadly force to distinguish between different degrees of deadly force. We hold that it does not.

Alaska’s law of self-defense is contained in a pair of interlocking statutes. The first, AS 11.81.330, sets out the general principles authorizing the use of nondeadly force: “A person is justified in using nondeadly force upon another when and to the extent the person reasonably believes it is necessary for self-defense against what the person reasonably believes to be the use of unlawful force by the other person,” unless a specified exception applies. Alaska Statute 11.81.335(a) provides for the use of deadly force in self-defense: “[A] person who is justified in using nondeadly force in self-defense under AS 11.81.330 may use deadly force in self-defense … when and to the extent the person reasonably believes the use of deadly force is necessary for self-defense against (1) death; [or] (2) serious physical injury ….” Both statutes require that the person using force in self-defense reasonably believe that the force is necessary and that the person reasonably believe that the other person is using unlawful force. The plain language of both statutes makes clear that if either of these beliefs is unreasonable at the time the person uses force in self-defense, then the use of force in self-defense is not permitted. Nothing in the plain language of AS 11.85.335(a) even implies an additional reasonable belief about the level of deadly force necessary to defend against death or serious physical injury.

Although the dissent asserts that our decision removes a “proportionality” requirement in Alaska’s law of self-defense which implies levels of deadly force, its discussion actually supports the premise that the use of any force in self-defense is justified only when necessary.[2] […] Jones-Nelson’s case also raises the question of the necessity of firing shots at Jordan after he fled the room, but that issue has nothing to do with the degree of force Jones-Nelson used.

[…]

There is little support for the State’s argument that common law principles of proportionality require a distinction between different degrees of deadly force. In Rowe v. United States, 164 U.S. 546, 558 (1896), the United States Supreme Court held that a defendant wielding deadly force in self-defense had no duty to “so carefully aim[ ] his pistol as to paralyze the arm of his assailant, without more seriously wounding him.” Many courts have applied general principles of proportionality to self-defense without distinguishing between subcategories of deadly force.

We have adopted the United States Supreme Court’s view that “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” We agree with the [United States Supreme] Court’s observation that a person justified in using deadly force need not “consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.” Legislative history and the common law do not support the State’s argument that AS 11.81.335(a) distinguishes between regular and “all-out” deadly force. The State concedes that a defendant “faced with a knife-wielding assailant” need not “analyze each [defensive] option and decide which would best do the defensive job while minimizing the harm to one’s assailant, at risk of getting stabbed … while pondering the options.” But distinguishing between ordinary deadly force and “all-out deadly force” would require defendants to do just that.

[…]

Alaska law recognizes only two categories of force: nondeadly and deadly. It is a binary choice: either the force used is deadly or it is not. The [challenged instruction, number 34,] implies that there is an additional distinction — that there can be more or less deadly versions of deadly force. This is legal error.

[…]

CONCLUSION

We REVERSE the court of appeals’ decision that the erroneous jury instruction was harmless error. Accordingly, we VACATE the conviction and REMAND the case to the superior court for further proceedings consistent with this opinion.

[1] Facts taken from the court of appeals’ decision, Jones-Nelson v. State, 446 P.3d 797, 798-801 (Alaska App. 2019).

[2] The Court included the following footnote to help explain “necessary” in AS 11.81.335(a): “Our interpretation of the “to the extent necessary” language is temporal — deadly force is not justified after its use for self-defense has ended. The dissent, in contrast, interprets it to mean that only a proportionally necessary amount of deadly force can be justified, using the example of a police officer continuing a choke-hold after subduing a subject. But neither interpretation would allow an officer to continue using deadly force against a subdued subject.

As you can see, the concept of proportionality is largely subsumed into necessity. What may be necessary under the circumstance may also be proportional. The inverse is also true. In the eyes of the Alaska Supreme Court, the proportionality distinction is limited to the type of force used – deadly or non-deadly; if the type of force used is necessary, it is also likely proportional. Although the law may discuss the two concepts separately, it may be easier to consider them as a collective whole.

Unreasonable Fear of Injury or Death

As Jones-Nelson teaches us, a defendant cannot claim self-defense unless a reasonable person in the defendant’s situation would believe that deadly force was necessary to avoid death or serious harm. In some jurisdictions, however, like North Carolina, if the defendant honestly but unreasonably believes deadly force is necessary under the circumstances, a claim of imperfect self-defense may reduce the severity of the offense. The defendant is still guilty of a crime, albeit a less serious crime, like manslaughter. Alaska has no such exception, and has expressly abolished imperfect self-defense. See Howell v. State, 917 P.2d 1202, 1211 n.7 (Alaska App. 1996). Instead, if the defendant honestly, but unreasonably, believes self-defense was necessary, the defendant may seek the application of a statutory mitigator that may lessen the punishment imposed. AS 12.55.155(d)(4).

Duty to Retreat – Withdrawal

Is self-defense, especially the use of deadly force, truly necessary if the defendant can avoid the confrontation entirely by running away? This question surrounds the doctrine of duty to retreat. Some jurisdictions require the defendant to retreat and avoid the confrontation if possible before using deadly force. Alaska has largely rejected this doctrine. Under Alaska’s “stand your ground” law, a person has no duty to retreat before using deadly force if the person is legally present when deadly force is used. Put another way, Alaska’s duty to retreat only applies to trespassers. A person trespassing must retreat prior to using deadly force. AS 11.81.335(b). Others need not retreat.

Self-Defense – Exclusions

Because self-defense is a creature of statute, legislators frequently limit the circumstances in which it is available. Alaska is no different. The Alaska Legislature has carved out several exclusions in which a person may not claim self-defense as a matter of law. For example, a person may not claim self-defense if the use of force was part of mutual combat, if the defendant initiated or provoked an attack, or if the defendant is engaging in inherently dangerous criminal conduct. AS 11.81.330(a)(1)-(4).

In essence, these statutory exclusions are based on a legislative decision that individuals who voluntarily engage in certain activities lose the right to claim self-defense. The legislative exclusions are built upon the assumption that individuals can avoid the need to use self-defense by avoiding such dangerous activities.