On March 11, 2014, a jury convicted Myah Evans Batie of domestic violence in violation of R.C. 2919.25(A) with a prior conviction specification.

On March 11, 2014, a jury convicted Myah Evans Batie of domestic violence in violation of R.C. 2919.25(A) with a prior conviction specification. The charge arose out of a physical altercation between Batie and her husband, where the husband called 911 for assistance. Batie appealed. The Ohio Court of Appeals affirmed.

[On direct examination, Officer Todd Simpson testified as follows at Myah Evans Batie’s trial:] Q. And when you respond to a domestic violence call, is it your duty to determine who is the primary physical aggressor? A. Yes, it is. Copyright 2017 Ccngagc Learning. Alt Rights Reserved . May not be copied, scanned. or duplicated. in whole or in part. Due to electronic rights, some third party content may be suppressed from the cBook and/or eChapter(s) Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Leaming reserves the right to remove additional content at any time if subsequent rights restrictions require it Q. Based on your conversation in speaking with the victim … outside, in speaking with the defendant inside, your observations, what did you conclude? A. The observations of the evidence proved that Miss BatieDefense Counsel: Objection. The Court: Overruled. A. Miss Evans started the disturbance, continued and assaulted and injured her husband. Q. And what was your basis for coming to that conclusion? A. His bruising obviously on his face, the scratches, bite marks on his arm, and I think his leg.

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On March 11, 2014, a jury convicted Myah Evans Batie of domestic violence in violation of R.C. 2919.25(A) with a prior conviction specification.
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A claim of self-defense requires the defendant prove by a preponderance of the evidence that ( 1) she “was not at fault in creating the situation giving rise to the affray” ; (2) that she “had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape from such danger was in the use of such force;” and (3) “that she did not violate any duty to retreat or avoid danger.”

The first prong of the test asks, in essence, whether the defendant was the initial aggressor. While the primary physical aggressor inquiry is not necessarily the same as whether a person was the initial aggressor, the primary aggressor question can nonetheless undermine a claim of self-defense. This is especially true when an officer’s testimony goes beyond the primary aggressor inquiry and treads into the realm of who initiated the altercation. That is exactly what happened in this case.

A careful review of the record in this case establishes that Officer Simpson did opine on an ultimate issue in the domestic violence defense. When asked what conclusions he drew based on his observations, Simpson responded by saying that the observations of the evidence proved that Batie “started the disturbance, continued, and assaulted and injured,” her husband (emphasis added). Simpson did not simply testify as to the reason why he treated Batie as the primary physical aggressor and choose to proceed with charging her-testimony that would otherwise be admissible. Rather, Simpson asserted that his observations proved Batie started the affray. This is exactly the type of improper testimony that must be omitted from trial, and we find that the trial court abused its discretion by allowing it.

Notwithstanding our determination that the trial court abused its discretion, we must nevertheless overrule the assignment of error because the testimony amounted to harmless error. Any error, defect, irregularity or variance which does not affect the substantial rights of the defendant shall be disregarded. The term “substantial rights” has been interpreted to require that the error be prejudicial-that is that it must have affected the outcome of the trial court proceedings.

Here, it cannot be said that allowing the testimony resulted in prejudice to the defendant. At trial, the state introduced numerous photographic exhibits detailing the extent of the husband’s injuries. Many of these exhibits detailed what appeared to be numerous, severe, scratch marks down the length of the husband’s face. The photos also depicted a large burn mark on his forearm- which corroborated the husband’s testimony that Batie attacked him with a hot iron. Other photos depicted what appeared to be bite marks on the husband’s upper arm, and pictures showing a bloody, swollen lip. Further, Simpson testified that when he arrived at the Batie household, the appellant did not have any visible marks on her that would indicate that her husband had been physical with her. In fact, the only evidence supporting Batie’s claim that she was acting in self-defense, was her own trial testimony. Therefore, even if the trial court had excluded Simpson’s improper testimony, it cannot be said that the exclusion would have had any effect on the outcome of the case.

Batie [also] argues that the jury’s verdict was against the manifest weight of the evidence. In a manifest weight analysis, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and … resolves conflicts in the evidence. An appellate court may not merely substitute its view for that of the jury, but must find that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

When analyzing a manifest weight challenge, appellate courts must give special deference to the conclusion reached by the trier of fact. Accordingly, reversal on manifest weight grounds is reserved for the exceptional case in which the evidence weighs heavily against the conviction.

We cannot say that this is the exceptional case that warrants reversal because the jury clearly lost its way. While contradictory testimony was presented by both the victim and the defendant at trial, the pictures of the victim’s injuries, together with the fact that Officer Simpson testified that there was not a mark on the appellant, is enough for a jury to conclude that Batie committed an act of domestic violence against her husband and was not acting in self-defense. Batie’s second assignment of error is also overruled. Judgment affirmed.

Questions

1. List all the facts relevant to deciding whether Myah Batie was the initial aggressor.

2. Summarize the court’s arguments to support its decision.

3. According to the court, what’s the difference between a “primary physical aggressor” and an “initial aggressor”?

4. Do you agree that Myah Batie was the original or primary aggressor? Defend your answer.

5. Explain how the court found Myah the primary aggressor, and therefore her husband was not guilty. Do you agree? Defend your answer.

Charles E. Haynes (Defendant-Appellant) entered a conditional plea of guilty in the United States District Court for the Western District of Wisconsin, to assault. Haynes appealed. The Court of Appeals affirmed.

Nelson Flores-Pedroso was playing dominoes after lunch in the cafeteria of the federal prison in Oxford, Wisconsin, when Charles Haynes emerged from the kitchen and poured scalding oil on his head. Severely burned over 18 percent of his body, Flores-Pedroso is disfigured for life. Haynes pleaded guilty to assault, and was sentenced to 33 months’ imprisonment (consecutive to the ten-year term he was serving for a drug offense). The guilty plea reserved the right to argue on appeal that the district judge erred in foreclosing Haynes from arguing to the jury that the attack was justified as a measure of self-defense.

Self-defense? How can a sneak attack be self-defense? Haynes made an offer of proof that Flores-Pedroso was a bully who had a reputation for coercing smaller inmates (such as Haynes) to provide favors of all kinds-food, commissary items, and sex. About a month before the incident in the cafeteria, Flores-Pedroso began pressuring Haynes to use Haynes’ position as a food preparer in the kitchen to do favors for him. Haynes refused, and in response Flores-Pedroso threatened to make Haynes his “bitch” (homosexual plaything).

For the next month stare downs and jostling occurred, while Flores-Pedroso kept up a stream of threats. One time Flores-Pedroso cornered Haynes in a bathroom, and Haynes thought that rape was imminent, but another inmate entered and Flores Pedroso left.

A day before Haynes poured the oil, Flores-Pedroso picked up Haynes and slammed him to the ground within sight of a guard, who did nothing. On the day of the oil incident, Flores-Pedroso told Haynes that as soon as food service was closed for the afternoon he would “finish what he started.” Haynes contends that he believed that he would be attacked as soon as he left the cafeteria, and that he struck first in order to protect himself.

Under the law of the jungle a good offense may be the best defense. But although prisons are nasty places, they are not jungles-and it is the law of the United States rather than Hobbes’ state of nature that regulates inmates’ conduct. Haynes concedes that he never reported Flores-Pedroso to the guards or sought protection-protection a prison is constitutionally obliged to provide. Haynes asserted in his offer of proof: He could not go to “the police” – a term used to describe the guards. If the guards elected to take him out of population, he would be forced to stay in administrative segregation which meant 24-hour-per-day lock-up. If his protective custody status resulted in a transfer, all the inmates of the receiving institution would know that he was in protective custody, for being victimized by another inmate and by being a “snitch,” which would result in further victimization and perhaps invite an assault by not just one inmate, but several. If Haynes went to the guards and they did not believe him and left him in population, things would only get worse. He would certainly be attacked, not only by [Flores] Pedroso, but by others who labeled him a “snitch.” Haynes did not believe he could go to the guards and help himself in any appreciable way.

In other words, Haynes did not fancy the prospect of administrative segregation, feared the consequences of appearing to be an informer, and decided that it was better to take matters into his own hands. What his claim of self-defense comes down to is the proposition that an inmate is entitled to attack and maim a prison bully even if there is ample time to report the threats and obtain protection from the guards.

The district court ruled that Haynes would not be allowed to argue self-defense or inform the jury about Flores-Pedroso’s threats. The evidence and line of defense Haynes wanted to pursue, as the district court saw things, was just a request for jury nullification-a plea to jurors to let the Davids of federal prisons smite the Goliaths, to give the predators a taste of their own medicine, without legal consequences. The judge ruled that an inmate must use available, lawful options to avoid violence, even if they find those options unpalatable. Haynes asks us to hold that the existence of lawful alternatives is irrelevant to a claim of self-defense.

All doubts about the role of lawful alternatives to one side, it is hard to see how Haynes’ offer of proof conforms to the normal understanding of selfdefense: a use of force necessary to defend against an imminent use of unlawful force. Haynes was not faced with an imminent use of force by FloresPedroso. There was a threat of action later that afternoon, but Flores-Pedroso had made unfulfilled threats before, and anyway “later” and “imminent” are opposites.

A judge may, and generally should, block the introduction of evidence supporting a proposed defense unless all of its elements can be established. But we need not dwell on timing, because we agree with the district judge’s reason: absence of lawful alternatives is an element of all lesser-evil defenses [ see “Choice of Evils,” on p. 192], of which self-defense is one. When A threatens B, and B hits A, the defense receives the name “self-defense.” When A threatens C, and B hits A, the name is “defense of another.”

But in all of these cases, the defense fails if the use of force was unjustified. This is the idea behind the “imminence” requirement (if the threat is not imminent, a retreat or similar step avoids injury) as well as the requirement that the object of the threat prefer a lawful response to an unlawful one.

Prisons collect violent persons who have little respect for the law, which makes them hard to control without the use of devices such as segregation that are unpleasant in their own right. If prisoners could decide for themselves when to seek protection from the guards and when to settle matters by violence, prisons would be impossible to regulate. The guards might as well throw the inmates together, withdraw to the perimeter, and let them kill one another, after the fashion of the movie Escape from New York (1981).

Perhaps Haynes was hoping that a jury would have this view of the right way to manage prisons. But it is not the view reflected in the United States Code or the United States Constitution. A prisoner who requests protection from the guards without success (or who lacks time to do so) may defend himself with force proportioned to the threat. But Haynes, who listened to Flores-Pedroso’s menaces for a month without seeking help, had no conceivable justification for a preemptive strike. The district judge correctly barred Haynes from making his proposed defense. Affirmed.

1. List the facts and circumstances relevant to deciding whether Charles Haynes was entitled to the defense of self-defense.

2. State the court’s definition of “imminent” danger.

3. Summarize the court’s arguments for ruling against imminent danger.

Bernhard Goetz (defendant) was indicted for criminal possession of a weapon, attempted murder, assault, and reckless endangerment. The Supreme Court, Trial Term, New York County, dismissed the indictment and the People appealed. The Supreme Court, Appellate Division affirmed, and the People appealed. The Court of Appeals reversed and dismissed, and reinstated all the counts of the indictment.

On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in the Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench toward the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38-caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed toward Chambers Street.

Canty approached Goetz, possibly with Allen beside him, and stated, “Give me five dollars.” Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun, and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur’s arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab.

After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Ca bey’s side and severed his spinal cord.

All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently taken cover, also laying on the floor.

Goetz told the conductor that the four youths had tried to rob him. While the conductor was aiding the youths, Goetz headed toward the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks, and fled.

Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed and has suffered some degree of brain damage.

On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier.

Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

According to Goetz’s statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked, “How are you?” to which he replied, “Fine.” Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car.

Canty then said, “Give me five dollars.” Goetz stated that he knew from the smile on Canty’s face that they wanted to “play with me.” Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being “maimed.”

Goetz then established “a pattern of fire,” deciding specifically to fire from left to right. His stated intention at that point was to “murder, to hurt them, to make them suffer as much as possible.” When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four.

Goetz recalled that the first two he shot “tried to run through the crowd but they had nowhere to run.” Goetz then turned to his right to “go after the other two.” One of these two “tried to run through the wall of the train, but … he had nowhere to go.” The other youth (Cabey) ” tried pretending that he wasn’t with [the others],” by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him.

He then ran back to the first two youths to make sure they had been “taken care of.” Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, “I said, ‘you seem to be all right, here’s another,”‘ and he then fired the shot which severed Cabey’s spinal cord. Goetz added that “If I was a little more under self-control. .. I would have put the barrel against his forehead and fired.” He also admitted that “If I had had more [bullets], I would have shot them again, and again, and again.”

After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a grand jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this grand jury.

On January 25, 1985, the grand jury indicted Goetz on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02) for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01) for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

Several weeks after the grand jury’s action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second grand jury. Supreme Court, Criminal Term, after conducting an in camera [in the judge’s chambers] inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident.

Goetz again chose not to testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first grand jury.

On March 27, 1985, the second grand jury filed a ten-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25[1]), four charges of assault in the first degree (Penal Law § 120.10[1]), one charge of reckless endangerment in the first degree (Penal Law§ 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of a loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.

On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment, alleging, among other things, that the prosecutor’s instructions to that grand jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective.

On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey’s hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him.

The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings and that Canty had said to him, “We were going to rob [Goetz].” The prosecutor immediately disclosed this information to the Court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information.

In an order dated January 21, 1986, the Court, after inspection of the grand jury minutes held that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz’s conduct was that of a “reasonable man in [Goetz’s] situation.”

The Court concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant’s state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case. [We disagree.]

Penal Law article 35 recognizes the defense of justification, which “permits the use of force under certain circumstances.” One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15(1) sets forth the general principles governing all such uses of force: A person may use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably [emphasis added] believes to be the use or imminent use of unlawful physical force by such other person. Section 35.15(2) sets forth further limitations on these general principles with respect to the use of “deadly physical force”: A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless a. He reasonably believes [emphasis added] that such other person is using or about to use deadly physical force or b. He reasonably believes [emphasis added] that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery.

Section 35.15(2)(a) further provides, however, that even under these circumstances a person ordinarily must retreat if he knows that he can with complete safety to himself and others avoid the necessity of using deadly physical force by retreating.

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor “reasonably believes” that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery.

As to the need for the use of deadly physical force as a response, the statute requires that the actor “reasonably believes” that such force is necessary to avert the perceived threat. While the portion of section 35.15(2)(6) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate “retreat” requirement, it is clear from reading subdivisions (1) and (2) of section 35 .15 together, as the statute requires, that the general “necessity” requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2)(6).

Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury. The prosecutor properly instructed the grand jurors to consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law§ 35.15. The defense does not contend that he committed any error in this portion of the charge.

When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term “reasonably believes.” The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine “whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.” It is this response by the prosecutor-and specifically his use of “a reasonable man”-which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division’s plurality opinion, because section 35 .15 uses the term “he reasonably believes,” the appropriate test, according to that court, is whether a defendant’s beliefs and reactions were “reasonable to him.”

Under that reading of the statute, a jury which believed a defendant’s testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant’s situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term “reasonably” in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.

Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in selfdefense. These provisions have never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness [ emphasis added] …. plurality below agreed with defendant’s argument that the change in the statutory language from “reasonable ground,” used prior to 1965, to “he reasonably believes” in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard.

We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. Statutes or rules of law requiring a person to act “reasonably” or to have a “reasonable belief” uniformly prescribe conduct meeting an objective standard measured with reference to how “a reasonable person” could have acted.

Goetz argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus require it to make a determination of “reasonableness” without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a 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.

As just discussed, these terms include any relevant knowledge the defendant had about that 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 rob him or that the use of deadly force was necessary under the circumstances.

Accordingly, a jury should be instructed to consider this type of evidence in weighing the defendant’s actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the “circumstances,” as explicated above, if a reasonable person could have had these beliefs.

The prosecutor’s instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz’s conduct was that of a reasonable man in his situation was thus essentially an accurate charge.

The order of the Appellate Division should be REVERSED, and the dismissed counts of the indictment reinstated.

Questions

1. Consider the following: a. New York tried Goetz for attempted murder and assault. The jury acquitted him of both charges. The jury said Goetz “was justified in shooting the four men with the silverplated .38-caliber revolver he purchased in Florida.” They did convict him of illegal possession of a firearm, for which the court sentenced Goetz to one year in jail. b. Following the sentencing, Goetz told the court: “This case is really more about the deterioration of society than it is about me …. I believe society needs to be protected from criminals.” Criminal law professor George Fletcher followed the trial closely. After the acquittal, he commented: The facts of the Goetz case were relatively clear, but the primary fight was over the moral interpretation of the facts … .I am not in the slightest bit convinced that the four young men were about to mug Goetz. If he had said, “Listen buddy, I wish I had $5, but I don’t,” and walked to the other side of the car the chances are 60-40 nothing would have happened. Street-wise kids like that are more attuned to the costs of their behavior than Goetz was. (qtd. in Roberts 1989) If Professor Fletcher is right, was Goetz justified in shooting?

2. Under what circumstances can people use deadly force, according to the New York statutes cited in the opinion?

3. Do you agree with those circumstances?

4. Would you add more? Remove some? Which ones? Why?

5. Were Goetz’s shots a preemptive strike? Retaliation? Necessary for self-protection? Defend your answer.

Peggy Stewart (Defendant) was charged with murder in the first degree of her husband. The Butler District Court, entered verdict of not guilty. The prosecution appealed with a question reserved. The Supreme Court (5-2) held that the statutory justification for the use of deadly force in self-defense did not excuse a homicide committed by a battered wife where there was no evidence of deadly threat or imminent danger contemporaneous with killing, sustained the Appeal.

Following an annulment from her first husband and two subsequent divorces in which she was the petitioner, Peggy Stewart married Mike Stewart in 1974. Evidence at trial disclosed a long history of abuse by Mike against Peggy and her two daughters from one of her prior marriages. Laura, one of Peggy’s daughters, testified that early in the marriage Mike hit and kicked Peggy, and that after the first year of the marriage Peggy exhibited signs of severe psychological problems. Subsequently, Peggy was hospitalized and diagnosed as having symptoms of paranoid schizophrenia; she responded to treatment and was soon released. It appeared to Laura, however, that Mike was encouraging Peggy to take more than her prescribed dosage of medication.

In 1977, two social workers informed Peggy that they had received reports that Mike was taking indecent liberties with her daughters. Because the social workers did not want Mike to be left alone with the girls, Peggy quit her job. In 1978, Mike began to taunt Peggy by stating that Carla, her 12-year-old daughter, was “more of a wife” to him than Peggy.

Later, Carla was placed in a detention center, and Mike forbade Peggy and Laura to visit her. When Mike finally allowed Carla to return home in the middle of summer, he forced her to sleep in an un-air conditioned room with the windows nailed shut, to wear a heavy flannel nightgown, and to cover herself with heavy blankets. Mike would then wake Carla at 5 :30 A.M. and force her to do all the housework. Peggy and Laura were not allowed to help Carla or speak to her.

When Peggy confronted Mike and demanded that the situation cease, Mike responded by holding a shotgun to Peggy’s head and threatening to kill her. Mike once kicked Peggy so violently in the chest and ribs that she required hospitalization. Finally, when Mike ordered Peggy to kill and bury Carla, she filed for divorce. Peggy’s attorney in the divorce action testified in the murder trial that Peggy was afraid for both her and her children’s lives.

One night, in a fit of anger, Mike threw Carla out of the house. Carla, who was not yet in her teens, was forced out of the home with no money, no coat, and no place to go. When the family heard that Carla was in Colorado, Mike refused to allow Peggy to contact or even talk about Carla.

Mike’s intimidation of Peggy continued to escalate. One morning, Laura found her mother hiding on the school bus, terrified and begging the driver to take her to a neighbor’s home. That Christmas, Mike threw the turkey dinner to the floor, chased Peggy outside, grabbed her by the hair, rubbed her face in the dirt, and then kicked and beat her.

After Laura moved away, Peggy’s life became even more isolated. Once, when Peggy was working at a cafe, Mike came in and ran all the customers off with a gun because he wanted Peggy to go home and have sex with him right that minute. He abused both drugs and alcohol, and amused himself by terrifying Peggy, once waking her from a sound sleep by beating her with a baseball bat. He shot one of Peggy’s pet cats, and then held the gun against her head and threatened to pull the trigger. Peggy told friends that Mike would hold a shotgun to her head and threaten to blow it off, and indicated that one day he would probably do it.

In May 1986, Peggy left Mike and ran away to Laura’s home in Oklahoma. It was the first time Peggy had left Mike without telling him. Because Peggy was suicidal, Laura had her admitted to a hospital. There, she was diagnosed as having toxic psychosis as a result of an overdose of her medication. On May 30, 1986, Mike called to say he was coming to get her. Peggy agreed to return to Kansas. Peggy told a nurse she felt like she wanted to shoot her husband. At trial, she testified that she decided to return with Mike because she was not able to get the medical help she needed in Oklahoma.

When Mike arrived at the hospital, he told the staff that he “needed his housekeeper.” The hospital released Peggy to Mike’s care, and he immediately drove her back to Kansas. Mike told Peggy that all her problems were in her head and he would be the one to tell her what was good for her, not the doctors. Peggy testified that Mike threatened to kill her if she ever ran away again. As soon as they arrived at the house, Mike forced Peggy into the house and forced her to have oral sex several times.

The next morning, Peggy discovered a loaded .357 magnum. She testified she was afraid of the gun. She hid the gun under the mattress of the bed in a spare room. Later that morning, as she cleaned house, Mike kept making remarks that she should not bother because she would not be there long, or that she should not bother with her things because she could not take them with her. She testified she was afraid Mike was going to kill her.

Mike’s parents visited Mike and Peggy that afternoon. Mike’s father testified that Peggy and Mike were affectionate with each other during the visit. Later, after Mike’s parents had left, Mike forced Peggy to perform oral sex. After watching television, Mike and Peggy went to bed at 8:00 P.M. As Mike slept, Peggy thought about suicide and heard voices in her head repeating over and over, “kill or be killed.” At this time, there were two vehicles in the driveway and Peggy had access to the car keys. About 10:00 P.M., Peggy went to the spare bedroom and removed the gun from under the mattress, walked back to the bedroom, and killed her husband while he slept. She then ran to the home of a neighbor, who called the police.

When the police questioned Peggy regarding the events leading up to the shooting, Peggy stated that things had not gone quite right that day, and that when she got the chance she hid the gun under the mattress. She stated that she shot Mike to “get this over with, this misery and this torment.” When asked why she got the gun out, Peggy stated to the police: “I’m not sure exactly what … led up to it … and my head started playing games with me and I got to thinking about things and I said I didn’t want to be by myself again …. I got the gun out because there had been remarks made about me being out there alone. It was as if Mike was going to do something again like had been done before. He had gotten me down here from McPherson one time and he went and told them that I had done something and he had me put out of the house and was taking everything I had. And it was like he was going to pull the same thing over again.”

Two expert witnesses testified during the trial. The expert for the defense, psychologist Marilyn Hutchinson, diagnosed Peggy as suffering from “battered woman syndrome,” or post-traumatic stress syndrome. Dr. Hutchinson testified that Mike was preparing to escalate the violence in retaliation for Peggy’s running away. She testified that loaded guns, veiled threats, and increased sexual demands are indicators of the escalation of the cycle. Dr. Hutchinson believed Peggy had a repressed knowledge that she was in a “really grave lethal situation.”

The State’s expert, psychiatrist Herbert Modlin, neither subscribed to a belief in the battered woman syndrome nor to a theory of learned helplessness as an explanation for why women do not leave an abusive relationship. Dr. Modlin testified that abuse such as repeated forced oral sex would not be trauma sufficient to trigger a post-traumatic stress disorder. He also believed Peggy was erroneously diagnosed as suffering from toxic psychosis. He stated that Peggy was unable to escape the abuse because she suffered from schizophrenia, rather than the battered woman syndrome.

At defense counsel’s request, the trial judge gave an instruction on self-defense to the jury. The jury found Peggy not guilty.

Although the State may not appeal an acquittal, it may reserve questions for appeal. We will not entertain an appeal by the prosecution merely to determine whether the trial court committed error. The appeal by the prosecution must raise a question of statewide interest, the answer to which is essential to the just administration of criminal law. The question reserved is whether the trial judge erred in instructing on self-defense when there was no imminent threat to the defendant and no evidence of any argument or altercation between the defendant and the victim contemporaneous with the killing. We find this question and the related question of the extent to which evidence of the battered woman syndrome will be allowed to expand the statutory justification for the use of deadly force in self-defense are questions of statewide importance.

The State claims that under the facts the instruction should not have been given because there was no lethal threat to defendant contemporaneous with the killing. The State points out that Peggy’s annulment and divorces from former husbands, and her filing for divorce after leaving Mike, proved that Peggy knew there were non-lethal methods by which she could extricate herself from the abusive relationship.

Early Kansas cases held that killing in selfdefense was justifiable when the defendant had reasonable grounds to believe that an aggressor ( 1) had a design to take the defendant’s life, (2) attempted to execute the design or was in an apparent situation to do so, and (3) induced in the defendant a reasonable belief that he intended to do so immediately. State v. Horne, 15 Kan. 547,554 (1875).

These common-law principles were codified in K.S.A. 21- 3211, which provides: A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.

The traditional concept of self-defense has posited one-time conflicts between persons of somewhat equal size and strength. When the defendant claiming selfdefense is a victim of long-term domestic violence, such as a battered spouse, such traditional concepts may not apply. Because of the prior history of abuse, and the difference in strength and size between the abused and the abuser, the accused in such cases may choose to defend during a momentary lull in the abuse, rather than during a conflict. However, in order to warrant the giving of a self-defense instruction, the facts of the case must still show that the spouse was in imminent danger close to the time of the killing.

A person is justified in using force against an aggressor when it appears to that person and he or she reasonably believes such force to be necessary. A reasonable belief implies both an honest belief and the existence of facts which would persuade a reasonable person to that belief. A self-defense instruction must be given if there is any evidence to support a claim of self-defense, even if that evidence consists solely of the defendant’s testimony.

Where self-defense is asserted, evidence of the deceased’s long-term cruelty and violence towards the defendant is admissible. In cases involving battered spouses, expert evidence of the battered woman syndrome is relevant to a determination of the reasonableness of the defendant’s perception of danger. In order to instruct a jury on self-defense, there must be some showing of an imminent threat or a confrontational circumstance involving an overt act by an aggressor. There is no exception to this requirement where the defendant has suffered long-term domestic abuse and the victim is the abuser. In such cases, the issue is not whether the defendant believes homicide is the solution to past or future problems with the batterer, but rather whether circumstances surrounding the killing were sufficient to create a reasonable belief in the defendant that the use of deadly force was necessary. In three recent Kansas cases where battered women shot their husbands, the women were clearly threatened in the moments prior to the shootings. [Summary of these cases omitted here.] Each case involved a threat of death to the wife and a violent confrontation between husband and wife, contemporaneous with the shooting.

Here, however, there is an absence of imminent danger to defendant: Peggy told a nurse at the Oklahoma hospital of her desire to kill Mike. She later voluntarily agreed to return home with Mike when he telephoned her. She stated that after leaving the hospital Mike threatened to kill her if she left him again. Peggy showed no inclination to leave. In fact, immediately after the shooting, Peggy told the police that she was upset because she thought Mike would leave her. Prior to the shooting, Peggy hid the loaded gun. The cars were in the driveway and Peggy had access to the car keys. After being abused, Peggy went to bed with Mike at 8 P.M. Peggy lay there for two hours, then retrieved the gun from where she had hidden it and shot Mike while he slept.

Under these facts, the giving of the self-defense instruction was erroneous. Under such circumstances, a battered woman cannot reasonably fear imminent life-threatening danger from her sleeping spouse.

Finally, our legislature has not provided for capital punishment for even the most heinous crimes. We must, therefore, hold that when a battered woman kills her sleeping spouse when there is no imminent danger, the killing is not reasonably necessary and a self-defense instruction may not be given. To hold otherwise in this case would in effect allow the execution of the abuser for past or future acts and conduct.

One additional issue must be addressed. In its amicus curiae brief, the Kansas County and District Attorney Association contends the instruction given by the trial court improperly modified the law of selfdefense to be more generous to one suffering from the battered woman syndrome than to any other defendant relying on self-defense. We agree …. Here, the trial judge gave the instruction, stating: The defendant has claimed her conduct was justified as self-defense. A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. Such justification requires both a belief on the part of the defendant and the existence of facts that would persuade a reasonable person to that belief. The trial judge then added the following: You must determine, from the viewpoint of the defendant’s mental state, whether the defendant’s belief in the need to defend herself was reasonable in light of her subjective impressions and the facts and circumstances known to her.

This addition was apparently encouraged by the following language in State v. Hodges, 239 Kan. 63, Syl. l)[ 4, 716 P.2d 563: Where the battered woman syndrome is an issue in the case, the standard for reasonableness concerning an accused’s belief in asserting self-defense is not an objective, but a subjective standard. The jury must determine, from the viewpoint of defendant’s mental state, whether defendant’s belief in the need to defend herself was reasonable.

The statement that the reasonableness of defendant’s belief in asserting self-defense should be measured from the defendant’s own individual subjective viewpoint conflicts with prior law. Our test for selfdefense is a two-pronged one. We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant’s belief was reasonable-specifically, whether a reasonable person in defendant’s circumstances would have perceived self-defense as necessary …. [I]n cases involving battered spouses, “the objective test is how a reasonably prudent battered wife would perceive the aggressor’s demeanor.” … [I]t was error for the trial court to instruct the jury to employ solely a subjective test in determining the reasonableness of defendant’s actions. The appeal is sustained.

… It is not within the scope of appellate review to weigh the evidence. An appellate court’s function is to merely examine the record and determine if there is any evidence to support the theory of self-defense. If the record discloses any competent evidence upon which self-defense could be based, then the instruction must be given. In judging the evidence for this purpose, all inferences should be resolved in favor of the defendant.

It is evident from prior case law … [ omitted] Peggy met her burden of showing some competent evidence that she acted in self-defense, thus making her defense a jury question. She testified she acted in fear for her life, and Dr. Hutchinson corroborated this testimony. The evidence of Mike’s past abuse, the escalation of violence, his threat of killing her should she attempt to leave him, and Dr. Hutchinson’s testimony that Peggy was indeed in a “lethal situation” more than met the minimal standard of “any evidence” to allow an instruction to be given to the jury.

Peggy introduced much uncontroverted evidence of the violent nature of the deceased and how he had brutalized her throughout their married life. It is well settled in Kansas that when self-defense is asserted, evidence of the cruel and violent nature of the deceased toward the defendant is admissible. The evidence showed Mike had a “Dr. Jekyll and Mr. Hyde” personality. He was usually very friendly and ingratiating when non-family persons were around, but was belligerent and domineering to family members. He had a violent temper and would blow up without reason.

Mike was cruel to his two stepdaughters, Carla and Laura, as well as to the Peggy. He took pride in hurting them or anything they held dear, such as their pets. Mike’s violence toward Peggy and her daughters caused Peggy to have emotional problems with symptoms of paranoid schizophrenia. He would overdose Peggy on her medication and then cut her off it altogether. Mike’s cruelty would culminate in an outburst of violence, and then he would suddenly become very loving and considerate. This was very confusing to Peggy. She lived in constant dread of the next outburst.

Peggy became progressively more passive and helpless during the marriage but finally became desperate enough to confront Mike and tell him the cruelty to her daughters had to stop. Mike responded by holding a shotgun to her head and threatening to kill her in front of the girls. The violence escalated. At one point, Mike kicked Peggy so violently in the chest and ribs that she required hospitalization.

Mike threw twelve-year-old Carla out of the house without resources, and Laura left home as soon as she could. Mike would not let Peggy see her daughters and ran Laura off with a shotgun when she tried to visit. Peggy’s life became even more isolated. Towards the end, both the phone and utilities were disconnected from the house.

Peggy finally took the car and ran away to Laura’s home in Oklahoma. It was the first time she had ever left Mike without telling him. She was suicidal and again hearing voices, and Laura had her admitted to a hospital. She was diagnosed as having toxic psychosis from a bad reaction to her medication. She soon felt better, but was not fully recovered, when Mike found out where she was and called her to say he was coming to get her. She told a nurse she felt like she wanted to shoot him, but the nurse noted her major emotion was one of hopelessness.

The hospital nevertheless released Peggy to Mike’s care, and he immediately drove her back to Kansas, telling her on the way she was going to have to “settle down now” and listen to him because he was the boss. He said if she ever ran away again, he would kill her.

When they reached the house, Mike would not let Peggy bring in her suitcases and forced her to have oral sex four or five times in the next 36 hours, with such violence that the inside of her mouth was bruised. The next morning, Peggy found a box of bullets in the car that had not been there before. She then discovered a loaded .357 magnum. This frightened her, because Mike had promised to keep his guns unloaded. She did not know how to unload the gun, so she hid it under the mattress of the bed in a spare room. As she cleaned house, Mike remarked she should not bother, because she would not be there long. He told her she should not bother with her things, because she could not take them with her. She took these statements to mean she would soon be dead and she grew progressively more terrified. Throughout the day Mike continued to force her to have oral sex, while telling her how he preferred sex with other women.

The sexual abuse stopped when Mike’s parents came to visit. Mike’s father testified everything seemed normal during their stay. After the visit, Mike again forced Peggy to perform oral sex and then demanded at 8:00 P.M. she come to bed with him. The cumulative effect of Mike’s past history, coupled with his current abusive conduct, justified Peggy’s belief that a violent explosion was imminent. As he slept, Peggy was terrified and thought about suicide and heard voices in her head repeating over and over, “kill or be killed.” The voices warned her there was going to be killing and to get away.

She went to the spare bedroom and removed the gun from under the mattress, walked back to the bedroom, and fatally shot Mike. After the first shot, she thought he was coming after her so she shot again and fled wildly outside, barefoot, wearing only her underwear. Ignoring the truck and car outside, although she had the keys in her purse inside, she ran over a mile to the neighbors’ house and pled with them to keep Mike from killing her. She thought she had heard him chasing her. The neighbor woman took the gun from Peggy’s hand and gave her a robe while her husband called the sheriff. The neighbor testified Peggy appeared frightened for her life and was certain Mike was alive and looking for her.

Psychologist Marilyn Hutchinson qualified as an expert on the battered woman syndrome and analyzed the uncontroverted facts for the jury. She concluded Peggy was a victim of the syndrome and reasonably believed she was in imminent danger. In State v. Hodges, 716 P.2d 563 (1986), we held it appropriate to permit expert testimony on the battered woman syndrome to prove the reasonableness of the defendant’s belief she was in imminent danger. Most courts which have addressed the issue are in accord.

The majority implies its decision is necessary to keep the battered woman syndrome from operating as a defense in and of itself. It has always been clear the syndrome is not a defense itself. Evidence of the syndrome is admissible only because of its relevance to the issue of self-defense. The majority of jurisdictions have held it beyond the ordinary jury’s understanding why a battered woman may feel she cannot escape, and have held evidence of the battered woman syndrome proper to explain it. The expert testimony explains how people react to circumstances in which the average juror has not been involved. It assists the jury in evaluating the sincerity of the defendant’s belief she was in imminent danger requiring self-defense and whether she was in fact in imminent danger.

Dr. Hutchinson explained to the jury at Peggy’s trial the “cycle of violence” which induces a state of “learned helplessness” and keeps a battered woman in the relationship. She testified Peggy was caught in such a cycle. The cycle begins with an initial building of tension and violence, culminates in an explosion, and ends with a “honeymoon.” The woman becomes conditioned to trying to make it through one more violent explosion with its battering in order to be rewarded by the “honeymoon phase,” with its expressions of remorse and eternal love and the standard promise of “never again.” After all promises are broken time after time and she is beaten again and again, the battered woman falls into a state of learned helplessness where she gives up trying to extract herself from the cycle of violence. She learns fighting back only delays the honeymoon and escalates the violence. If she tries to leave the relationship, she is located and returned and the violence increases. She is a captive. She begins to believe her husband is omnipotent, and resistance will be futile at best.

It is a jury question to determine if the battered woman who kills her husband as he sleeps fears he will find and kill her if she leaves, as is usually claimed. Under such circumstances the battered woman is not under actual physical attack when she kills but such attack is imminent, and as a result she believes her life is in imminent danger. She may kill during the tension-building stage when the abuse is apparently not as severe as it sometimes has been, but nevertheless has escalated so that she is afraid the acute stage to come will be fatal to her. She only acts on such fear if she has some survival instinct remaining after the husband-induced “learned helplessness.”

Dr. Hutchinson testified the typical batterer has a dichotomous personality, in which he only shows his violent side to his wife or his family. A batterer’s major characteristic is the need to blame all frustration on someone else. In a typical battering relationship, she said, the husband and wife are in traditional sex roles, the wife has low self-esteem, and the husband abuses drugs or alcohol. The husband believes the wife is his property and what he does to her is no one’s business. There is usually a sense of isolation, with the woman not allowed to speak with friends or children. Overlying the violence is the intimation of death, often created by threats with weapons.

It was Dr. Hutchinson’s opinion Mike was planning to escalate his violence in retaliation against Peggy for running away. She testified that Mike’s threats against Peggy’s life, his brutal sexual acts, and Peggy’s discovery of the loaded gun were all indicators to Peggy the violence had escalated and she was in danger. Dr. Hutchinson believed Peggy had a repressed knowledge she was in what was really a gravely lethal situation. She testified Peggy was convinced she must “kill or be killed.”

The majority claims permitting a jury to consider self-defense under these facts would permit anarchy. This underestimates the jury’s ability to recognize an invalid claim of self-defense. Although this is a case of first impression where an appeal by the State has been allowed, there have been several similar cases in which the defendant appealed on other grounds. In each of these cases where a battered woman killed the sleeping batterer, a self-defense instruction has been given when requested by the defendant.

The majority bases its opinion on its conclusion Peggy was not in imminent danger, usurping the right of the jury to make that determination of fact. The majority believes a person could not be in imminent danger from an aggressor merely because the aggressor dropped off to sleep. This is a fallacious conclusion. For instance, picture a hostage situation where the armed guard inadvertently drops off to sleep and the hostage grabs his gun and shoots him. The majority opinion would preclude the use of self-defense in such a case.

The majority attempts to buttress its conclusion Peggy was not in imminent danger by citing 19th Century law. The old requirement of “immediate” danger is not in accord with our statute on self-defense, K.S.A. 21-3211, and has been emphatically overruled by case law. Yet this standard permeates the majority’s reasoning. A review of the law in this state on the requirement of imminent rather than immediate danger to justify self-defense is therefore required. [Summary of cases purportedly supporting this conclusion omitted here.] I would deny this appeal.

Questions

1. List all the facts and circumstances relevant to deciding whether Peggy Stewart was in “imminent” danger.

2. Summarize the court majority’s arguments against imminent danger. Summarize the dissent’s arguments for imminent danger.

3. Consider the following comments: a. Retaliation, as opposed to defense, is a common problem in cases arising from wife battering and domestic violence. The injured wife waits for the first possibility of striking against a distracted or unarmed husband. The man may even be asleep when the wife finally reacts. b. Retaliation is the standard case of “taking the law into your own hands.” There is no way, under the law, to justify killing a wife batterer or a rapist in retaliation or revenge, however much sympathy there may be for the wife wreaking retaliation. Private citizens cannot act as judge and jury toward each other. They have no authority to pass judgment and to punish each other for past wrongs (Fletcher 1988, 21-22). c. “The right to use force in the defense of one’s person, family, habitation, lands, or goods is one of the unalienable rights of man. As it is a right not granted by any human code, no human code can take it away. It was recognized by the Roman law, declared by that law to be a natural right, and part of the law of nations. It is no doubt recognized by the code of every civilized State” (Thompson 1880, 546). d. “A man is not born to run away. The law must consider human nature and make some allowance for the fighting instinct at critical moments. In Texas it is well settled, as you might imagine, that a man is not born to run away” (DeWolfe Howe 1953, 1:331). Are any of the statements relevant to battered woman domestic violence cases? Do you agree with the statements? Explain your answer.

4. In your opinion, did Peggy Stewart kill Mike Stewart in self-defense? As a preemptive strike? Or as retaliation? Or something else? Defend your answer.

Jason Shelley was convicted in the Superior Court, King County, of second-degree assault, arising out of an incident in which Shelley intentionally punched another basketball player during a game. Shelley appealed. The Court of Appeals affirmed the conviction.

On March 31, 1993, Jason Shelley and Mario Gonzalez played “pickup” basketball on opposing teams at the University of Washington Intramural Activities Building (the IMA). Pickup games are not refereed by an official; rather, the players take responsibility for calling their own fouls.

During the course of three games, Gonzalez fouled Shelley several times. Gonzalez had a reputation for playing overly aggressive defense at the IMA. Toward the end of the evening, after trying to hit the ball away from Shelley, he scratched Shelley’s face and drew blood. After getting scratched, Shelley briefly left the game and then returned.

Shelley and Gonzalez have differing versions of what occurred after Shelley returned to the game. According to Gonzalez, while he was waiting for play in the game to return to Gonzalez’s side of the court, Shelley suddenly hit him. Gonzalez did not see Shelley punch him. According to Shelley’s version of events, when Shelley rejoined the game, he was running down the court and he saw Gonzalez make “a move towards me as if he was maybe going to prevent me from getting the ball.”

The move was with his hand up “across my vision.” Angry, he “just reacted” and swung. He said he hit him because he was afraid of being hurt, like the previous scratch. He testified that Gonzalez continually beat him up during the game by fouling him hard.

A week after the incident, a school police detective interviewed Shelley and prepared a statement for Shelley to sign based on the interview. Shelley reported to the police that Gonzalez had been “continually slapping and scratching him” during the game. Shelley “had been getting mad” at Gonzalez, and the scratch on Shelley’s face was the “final straw.”

As the two were running down the court side by side, “I swung my right hand around and hit him with my fist on the right side of his face.” Shelley asserted that he also told the detective that Gonzalez waved a hand at him just before Shelley threw the punch and that he told the detective that he was afraid of being injured.

Gonzalez required emergency surgery to repair his jaw. Broken in three places, it was wired shut for six weeks. His treating physician believed that a “significant” blow caused the damage.

During the course of the trial, defense counsel told the court he intended to propose a jury instruction that: “A person legally consents to conduct that causes or threatens bodily harm if the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful, athletic contest or competitive sport.”

Although the trial court agreed that there were risks involved in sports, it stated that “the risk of being intentionally punched by another player is one that I don’t think we ever do assume.” The court noted, “In basketball you consent to a certain amount of rough contact. If they were both going for a rebound and Mr. Shelley’s elbow or even his fist hit Mr. Gonzalez as they were both jumping for the rebound and Mr. Gonzalez’s jaw was fractured in exactly the same way then you would have an issue.”

Reasoning that “our laws are intended to uphold the public peace and regulate behavior of individuals,” the court ruled “that as a matter of law, consent cannot be a defense to an assault.” The court indicated that Shelley could not claim consent because his conduct “exceeded” what is considered within the rules of that particular sport: Consent is a contract that is contemplated within the rules of the game and that is incidental to the furtherance of the goals of that particular game. If you can show me any rule book for basketball at any level that says an intentional punch to the face in some way is a part of the game, then I would take another look at your argument. I don’t believe any such rule book exists.

Later, Shelley proposed jury instructions on the subject of consent: An act is not an assault, if it is done with the consent of the person alleged to be assaulted. It is a defense to a charge of second degree assault occurring in the course of an athletic contest if the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.

The trial court rejected these, and Shelley excepted. The trial court did instruct the jury about self-defense.

First, we hold that consent is a defense to an assault occurring during an athletic contest. This is consistent with the law of assault as it has developed in Washington. A person is guilty of second-degree assault if he or she “intentionally assaults another and thereby recklessly inflicts substantial bodily harm.”

One common law definition of assault recognized in Washington is “an unlawful touching with criminal intent.” At the common law, a touching is unlawful when the person touched did not give consent to it, and it was either harmful or offensive. As our Supreme Court stated in State v. Simmons, “Where there is consent, there is no assault.” The State argues that because Simmons was a sexual assault case, the defense of consent should be limited to that realm. We decline to apply the defense so narrowly.

Logically, consent must be an issue in sporting events because a person participates in a game knowing that it will involve potentially offensive contact and with this consent the “touchings” involved are not “unlawful.” The rationale that courts offer in limiting consent as a defense is that society has an interest in punishing assaults as breaches of the public peace and order, so that an individual cannot consent to a wrong that is committed against the public peace.

Urging us to reject the defense of consent because an assault violates the public peace, the State argues that this principle precludes Shelley from being entitled to argue the consent defense on the facts of his case. If consent cannot be a defense to assault, then most athletic contests would need to be banned because many involve “invasions of one’s physical integrity.” Because society has chosen to foster sports competitions, players necessarily must be able to consent to physical contact and other players must be able to rely on that consent when playing the game. This is the view adopted by the drafters of the Model Penal Code: There are, however, situations in which consent to bodily injury should be recognized as a defense to crime. There is the obvious case of participation in an athletic contest or competitive sport, where the nature of the enterprise often involves risk of serious injury. Here, the social judgment that permits the contest to flourish necessarily involves the companion judgment that reasonably foreseeable hazards can be consented to by virtue of participation.

The more difficult question is the proper standard by which to judge whether a person consented to the particular conduct at issue. The State argues that when the conduct in question is not within the rules of a given sport, a victim cannot be deemed to have consented to this act. The trial court apparently agreed with this approach.

Although we recognize that there is authority supporting this approach, we reject a reliance on the rules of the games as too limiting. Rollin M. Perkins in Criminal Law explains: The test is not necessarily whether the blow exceeds the conduct allowed by the rules of the game. Certain excesses and inconveniences are to be expected beyond the formal rules of the game. It may be ordinary and expected conduct for minor assaults to occur. However, intentional excesses beyond those reasonably contemplated in the sport are not justified.

Instead, we adopt the approach of the Model Penal Code which provides: 2. Consent to Bodily Injury. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: a. the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law.

The State argues the law does not allow “the victim to ‘consent’ to a broken jaw simply by participating in an unrefereed, informal basketball game.” This argument presupposes that the harm suffered dictates whether the defense is available or not. This is not the correct inquiry. The correct inquiry is whether the conduct of defendant constituted foreseeable behavior in the play of the game.

Additionally, the injury must have occurred as a byproduct of the game itself. In State v. Floyd, a fight broke out during a basketball game and the defendant, who was on the sidelines, punched and severely injured several opposing team members. The defense did not apply because the statute “contemplated a person who commits acts during the course of play.” There is a “continuum, or sliding scale, grounded in the circumstances under which voluntary participants engage in sport which governs the type of incidents in which an individual volunteers (i.e., consents) to participate.”

The New York courts provide another example. In a football game, while tackling the defendant, the victim hit the defendant. After the play was over and all of the players got off the defendant, the defendant punched the victim in the eye … .Initially it may be assumed that the very first punch thrown in the course of the tackle was consented to by defendant. The act of tackling an opponent in the course of a football game may often involve “contact” that could easily be interpreted to be a “punch.” Defendant’s response after the pileup to complainant’s initial act of “aggression” cannot be mistaken. This was not a consented to act. People v. Freer, 381 N.Y.S.2d 976, 978 (1976).

The State may argue that the defendant’s conduct exceeded behavior foreseeable in the game. Although in ” all sports players consent to many risks, hazards and blows,” there is “a limit to the magnitude and dangerousness of a blow to which another is deemed to consent.” This limit, like the foreseeability of the risks, is determined by presenting evidence to the jury about the nature of the game, the participants’ expectations, the location where the game has been played, as well as the rules of the game.

Here, taking Shelley’s version of the events as true, the magnitude and dangerousness of Shelley’s actions were beyond the limit. There is no question that Shelley lashed out at Gonzalez with sufficient force to land a substantial blow to the jaw, and there is no question but that Shelley intended to hit Gonzalez. There is nothing in the game of basketball, or even rugby or hockey, that would permit consent as a defense to such conduct. Shelley admitted to an assault and was not precluded from arguing that the assault justified self-defense; but justification and consent are not the same inquiry. We affirm.

Questions

1. According to the court, why can participants in a sporting event consent to conduct that would otherwise be a crime?

2. Why should they be allowed to consent to such conduct when in other situations (such as those enumerated in the Exploring Further cases that follow) they can’t consent?

3. Should individuals be allowed to knowingly and voluntarily consent to the commission of crimes against themselves? Why or why not?

4. Why was Shelley not allowed the defense of consent in this case ?

5. Do you agree with the court’s decision? Relying on the relevant facts in the case, defend your answer.

On March 11, 2014, a jur

y convicted Myah Evans Batie of domestic violence in violation of R.C.

2919.25(A) with a prior conviction specification. The charge arose out of a physical altercation between

Batie and her husband, where the husband called

911 for assistance. Batie appe

aled. The Ohio Court of

Appeals affirmed.

[On direct examination, Officer Todd Simpson testified as follows at Myah Evans Batie’s trial:]

Q. And

when you respond to a domestic violence call, is it your duty to determine who is the primary physical

aggres

sor? A. Yes, it is. Copyright 2017 Ccngagc Learning. Alt Rights Reserved . May not be copied,

scanned. or duplicated. in whole or in part. Due to electronic rights, some third party content may be

suppressed from the cBook and/or eChapter(s) Editorial revi

ew has deemed that any suppressed

content does not materially affect the overall learning experience. Cengage Leaming reserves the right

to remove additional content at any time if subsequent rights restrictions require it Q. Based on your

conversation in

speaking with the victim … outside, in speaking with the defendant inside, your

observations, what did you conclude? A. The observations of the evidence proved that Miss

BatieDefense Counsel: Objection. The Court: Overruled. A. Miss Evans started the dis

turbance,

continued and assaulted and injured her husband. Q. And what was your basis for coming to that

conclusion? A. His bruising obviously on his face, the scratches, bite marks on his arm, and I think his leg.

A claim of self

defense requires

the defendant prove by a preponderance of the evidence that ( 1) she

“was not at fault in creating the situation giving rise to the affray” ; (2) that she “had a bona fide belief

that she was in imminent danger of death or great bodily harm and that her on

ly means of escape from

such danger was in the use of such force;” and (3) “that she did not violate any duty to retreat or avoid

danger.”

The first prong of the test asks, in essence, whether the defendant was the initial aggressor. While the

primary phys

ical aggressor inquiry is not necessarily the same as whether a person was the initial

aggressor, the primary aggressor question can nonetheless undermine a claim of self

defense. This is

especially true when an officer’s testimony goes beyond the primary

aggressor inquiry and treads into

the realm of who initiated the altercation. That is exactly what happened in this case.

A careful review of the record in this case establishes that Officer Simpson did opine on an ultimate

issue in the domestic violence d

efense. When asked what conclusions he drew based on his

observations, Simpson responded by saying that the observations of the evidence proved that Batie

“started the disturbance, continued, and assaulted and injured,” her husband (emphasis added).

Simpso

n did not simply testify as to the reason why he treated Batie as the primary physical aggressor

and choose to proceed with charging her

testimony that would otherwise be admissible. Rather,

Simpson asserted that his observations proved Batie started the a

ffray. This is exactly the type of

improper testimony that must be

omitted from trial, and we find that the trial court abused its

discretion by allowing it.

Notwithstanding our determination that the trial court abused its discretion, we must neverthe

less

overrule the assignment of error because the testimony amounted to harmless error. Any error, defect,

irregularity or variance which does not affect the substantial rights of the defendant shall be

disregarded. The term “substantial rights” has been i

nterpreted to require that the error be prejudicial

that is that it must have affected the outcome of the trial court proceedings.

On March 11, 2014, a jury convicted Myah Evans Batie of domestic violence in violation of R.C.

2919.25(A) with a prior conviction specification. The charge arose out of a physical altercation between

Batie and her husband, where the husband called 911 for assistance. Batie appealed. The Ohio Court of

Appeals affirmed.

[On direct examination, Officer Todd Simpson testified as follows at Myah Evans Batie’s trial:] Q. And

when you respond to a domestic violence call, is it your duty to determine who is the primary physical

aggressor? A. Yes, it is. Copyright 2017 Ccngagc Learning. Alt Rights Reserved . May not be copied,

scanned. or duplicated. in whole or in part. Due to electronic rights, some third party content may be

suppressed from the cBook and/or eChapter(s) Editorial review has deemed that any suppressed

content does not materially affect the overall learning experience. Cengage Leaming reserves the right

to remove additional content at any time if subsequent rights restrictions require it Q. Based on your

conversation in speaking with the victim … outside, in speaking with the defendant inside, your

observations, what did you conclude? A. The observations of the evidence proved that Miss

BatieDefense Counsel: Objection. The Court: Overruled. A. Miss Evans started the disturbance,

continued and assaulted and injured her husband. Q. And what was your basis for coming to that

conclusion? A. His bruising obviously on his face, the scratches, bite marks on his arm, and I think his leg.

A claim of self-defense requires the defendant prove by a preponderance of the evidence that ( 1) she

“was not at fault in creating the situation giving rise to the affray” ; (2) that she “had a bona fide belief

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

such danger was in the use of such force;” and (3) “that she did not violate any duty to retreat or avoid

danger.”

The first prong of the test asks, in essence, whether the defendant was the initial aggressor. While the

primary physical aggressor inquiry is not necessarily the same as whether a person was the initial

aggressor, the primary aggressor question can nonetheless undermine a claim of self-defense. This is

especially true when an officer’s testimony goes beyond the primary aggressor inquiry and treads into

the realm of who initiated the altercation. That is exactly what happened in this case.

A careful review of the record in this case establishes that Officer Simpson did opine on an ultimate

issue in the domestic violence defense. When asked what conclusions he drew based on his

observations, Simpson responded by saying that the observations of the evidence proved that Batie

“started the disturbance, continued, and assaulted and injured,” her husband (emphasis added).

Simpson did not simply testify as to the reason why he treated Batie as the primary physical aggressor

and choose to proceed with charging her-testimony that would otherwise be admissible. Rather,

Simpson asserted that his observations proved Batie started the affray. This is exactly the type of

improper testimony that must be omitted from trial, and we find that the trial court abused its

discretion by allowing it.

Notwithstanding our determination that the trial court abused its discretion, we must nevertheless

overrule the assignment of error because the testimony amounted to harmless error. Any error, defect,

irregularity or variance which does not affect the substantial rights of the defendant shall be

disregarded. The term “substantial rights” has been interpreted to require that the error be prejudicial-

that is that it must have affected the outcome of the trial court proceedings.

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