State v. Haakenson

KNUDSON, Judge

(dissenting):

It serves no purpose in disagreeing with the majority on the question of what is reviewable on an appeal only from the judgment as the statutes that were effective at the time of this appeal have been superseded by the new Rules of Appellate Procedure which became effective March 1, 1973, after the appeal in this case was perfected, and thereafter will govern all appeals.

However, I cannot agree with the majority in holding that the instruction on self-defense was erroneous and prejudicial to the defendant, requiring that the case be remanded for a new trial.

The claim is made that a part of the instruction is erroneous as being inconsistent.

A person attacked need not retreat before exercising the right of self-defense. However, the claim of self-defense is not maintainable, where the defendant had ample and full opportunity to retire to a place of safety and thus avert the crime.

An inadequacy in one part of the instruction relating to self-defense may be cured by other parts of the instruction which adequately explain the applicable law. 40 Am.Jur.2d Homicide § 519, p. 773.

The paragraph of the instruction drawn into question here was not prejudicial error when read in light of the other instructions given on the subject of self-defense. This paragraph appears to be introductory in nature, an overview which is amplified in paragraphs five and six of the instructions, which state:

You are instructed that generally the right to use deadly force in self-defense is not available to one who is the aggressor or provokes the conflict. However, if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he desires to end the conflict, and he is thereafter pursued, he is justified in using deadly force to save himself from imminent danger of death or serious bodily harm.

If' the Defendant was not the aggressor, and had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, he had the right to employ deadly force in order to defend himself. By “deadly force” is meant force which is likely to cause death or serious bodily harm.

The correctness of the instructions given is determined by the rule governing the right of self-defense as applied to the situation developed by the evidence. 40 Am. Jur.2d Homicide § 519, p. 772. We must therefore review the evidence in order to determine whether- the instructions given were correct.

*405 We will review the testimony of Dennis Sweep, an eyewitness and witness for the defendant, who presented the testimony most favorable to the defense.

Sweep testified that he and his wife spent the latter part of the evening of July 24 at the Earl Haakenson residence, departing for Bismarck at approximately 3:30 a. m. Shortly after departing, Sweep encountered several young people standing on the road who moved as his car approached. He inquired, “What seems to be the trouble?” and was met with a response of profane and abusive language against him and his wife, to which he responded in like kind. He then returned to the Haakenson residence, where he told defendant that they, the Sweeps, had “some trouble down at the corner and that there were some people blocking the road.” Sweep testified that defendant told his wife to call the sheriff, and that Sweep asked Haakenson to return with him to the corner “because he probably knew some of the kids or something and [would] be able to help me in some way.” In résponse to this request by Sweep for help to get back to their home Haakenson could have suggested they wait until the sheriff arrived, or told the Sweeps of the alternate route to return to Bismarck. He did not.

Then, Sweep testified, “and then Earl [Haakenson] asked me if I thought we should take a gun and I said, no, we didn’t need a gun . . . . ” Haakenson, nevertheless, took a loaded revolver. Sweep continued, “then we decided to go back up to the corner and find out what’s going on.” Again, Haakenson and Sweep could have awaited the sheriff’s arrival, or the Sweeps could have returned to Bismarck via the alternate route.

Sweep drove his automobile back to the place where the altercation had taken place. Although the defendant argued orally that there is no evidence as to who was driving the automobile — a point which may be crucial — Sweep testified that he drove the automobile, that it was his company’s automobile, and that Haakenson occupied the passenger seat in front.

They stopped close to the young people, with the car lights on, “trying to see if Earl could recognize any of the kids.” At this point Haakenson said, “We might as well find out what is going on,” and got out of the car on the passenger side, while Sweep got out on the driver’s side, and stood behind the door. Defendant said, “What’s going on?” The young people were quite abusive and profane, and their language carried a threat to kill both Sweep and the defendant. There was no need for them to get out of the automobile in the first place, and since the youths outnumbered them and acted in a. menacing manner, such as to raise fear for their safety, they should have retreated. Sweep testified, “Immediately people started walking toward the car and off to my left on the bank, and below the bank, a fellow was coming up carrying a shotgun.” A reasonable man should have known this was a dangerous situation, one that called for retreat. The defendant argued orally that the position of the defendant and of Sweep in relation to the automobile, and who was the driver, was not known, nor whether there was a possibility of retreat. However, the testimony of Sweep definitely places the parties near the door of the car and that Sweep was the driver. It is obvious that having left the car only seconds before, they could have got back in and left, under the circumstances, more quickly than they got out. The whole testimony indicates that neither Sweep nor Haaken-son was ever more than a few feet from the nearest door of the automobile.

It was John Tidball, who was carrying the shotgun which he aimed at Sweep, who said, “I will blow [their] heads off.” Sweep “froze and stood there and the gun went click.” Sweep jumped behind the car door, describing himself as “A lover, not a fighter,” who apparently was ready to retreat. Haakenson was not. He fired the first of three or four shots, the last of which killed John Tidball.

*406 The question of whether the defendant was an aggressor or non-aggressor is for the jury to determine from the evidence. In this case the jury must have found that the defendant was the aggressor and not entitled to the defense of self-defense.

From a review of the facts in this case, the jury was correct in finding the defendant guilty of manslaughter in the second degree.

The rule requiring accused to retreat is especially applicable where he was at fault in getting himself in the dangerous situation. 40 C.J.S. Homicide § 127, p. 1012.

It is obvious that this confrontation need not have developed in the first place, and that at several points warnings of impending danger should have been obvious, and the opportunity to escape was present. Yet Haakenson continued to apply pressure until the fatal bullet was fired.

In 40 C.J.S. Homicide § 114, page 964, the following is found:

a number of authorities, in enumerating the elements of self-defense, have referred to the following: (1) The absence of aggression or provocation on the part of the slayer in provoking or continuing the difficulty. (2) The actual and honest belief of the slayer that he was in imminent danger of death, great bodily harm, or some felony, and that there was a necessity to kill in order to save himself therefrom. (3) The existence of reasonable grounds to such belief. (4) The duty of the slayer to retreat or avoid the danger. The acts which accused may do and justify under a plea of self-defense depend primarily on his own conduct and secondarily on the conduct of deceased.

The elements stated above are required to be shown in a number of states. People v. Townes, 44 Mich.App. 383 , 205 N.W.2d 258 (1973); Commonwealth v. Daniels, 301 A.2d 841 (Pa. 1973); State v. Johnson, 277 Minn. 368 , 152 N.W.2d 529 (1967).

It is apparent that the defendant provoked the confrontation here, that the law therefore requires that he withdraw and communicate his withdrawal to the other parties; but that he did not do so. Under such circumstances it is doubtful whether he was entitled to claim self-defense, because he provoked the argument and failed to retreat. Under all of the circumstances, the instruction challenged here is clearly not prejudicially erroneous. If Haakenson had been attacked and had not provoked the confrontation, the instruction may have been ambiguous and prejudicial. But any ambiguity existing is one which, if anything, works to the defendant’s advantage. It could have raised in the minds of the jury the question of whether defendant need not be required to retreat. Since any doubt was resolved against Haakenson, there is no prejudice or any error found in this particular instruction.

In summary, the part of the instruction under attack here is not prejudicially erroneous, but if it is, is cured by the whole of the instruction which correctly states the law on self-defense as applied to the facts in this case.

The majority opinion recites that the defendant and his wife had trouble previously with trespassers, loud parties, and other nocturnal noises. However, there is no evidence in the record to show previous encounters between the defendant and the deceased, or to show previous trouble from trespassers, loud parties and other nocturnal noises, except that Mrs. Haakenson testified to trouble only in their yard with other people on other occasions, when the defendant had shot a gun into the air.

Nor is there any evidence that the defendant had trouble with other people in the area. There is no evidence to justify his action in leaving his home and yard to seek out those with whom Mr. Sweep had had an altercation. There was another street known to the defendant by which Mr. Sweep could return to his home in Bismarck and avoid a further confronta *407 tion with the boys and youths, and of which the defendant did not inform Mr. Sweep.

The majority suggests that upon a retrial the law is that there is no absolute duty to retreat on the part of a victim of an aggressor, but the reasonableness of retreat or standing one’s ground and the fact of aggression by one party against the other are circumstances which only the jury can consider in deciding whether the right of self-defense exists.

However, it is doubtful whether such instruction is applicable in this case. As stated before, from the evidence it is apparent that defendant was the aggressor or provoked the confrontation, and the jury must have found so. The determination of who was the aggressor was a question of fact for the jury. The suggested instruction fails to state a position with regard to the aggressor. Paragraph 4 of the trial court’s instructions states that self-defense is not available to one who is the aggressor or provokes the conflict unless he withdraws and informs his adversary of his intent to end the conflict, but the opinion of the majority holds, in effect, that this is not sufficient to overcome the prejudice it finds in paragraph 2. If this is so, the suggestion of the Court should include a separate instruction on retreat with regard to an aggressor.

The majority cites 1 Devitt and Black-mar, Federal Jury Practice and Instructions (2d ed. 1970), §§ 43.21, 43.23, in support of its proposed rule. Paragraph 4 of the court’s instructions under attack is a verbatim copy of the second section cited, § 43.23, which reads:

Generally the right to use deadly force in self-defense is not available to one who is the aggressor or provokes the conflict. However, if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he desires to end the conflict, and he is thereafter pursued, he is justified in using deadly force to save himself from imminent danger of death or serious bodily harm.

Paragraph 5 of the court’s instructions paraphrases § 43.21, which reads:

If the defendant had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm and that deadly force was necessary to repel such danger, he was not required to retreat or to consider whether he could safely retreat. He was entitled to stand his ground and use such force as was reasonably necessary under the circumstances to save his life or protect himself from serious bodily harm.

However, if the defendant could have safely retreated but did not do so, his failure to retreat is a circumstance which you may consider, together with all other circumstances, in determining whether he went farther in repelling the danger, real or apparent, than he was justified in doing under the circumstances.

These recommended instructions from Devitt and Blackmar which are cited by the majority in support of its recommended instruction on retrial, do not support the recommendation of the majority, but support the instructions as given by the court.

It must be reiterated that the instructions given by the trial court were not erroneous, and not prejudicial, when considered as a whole.