explaining that the original aggressor may gain the right to self-defense if he withdraws
How later courts described this case
- explaining that the original aggressor may gain the right to self-defense if he withdraws
- victim's mother's opinion that defendant had dominant role in sexual relationship helpful to jury's determination of defendant as aggressor, motive for killing
- “While we do not overrule our earlier holdings that a party has no duty to retreat from a confrontation, we believe the possibility of escape should be a recognized factor in determining whether deadly force was necessary to avoid death or great bodily harm.”
- privilege is a matter of law to be decided by the trial court
Written by the judges who cited it.
The opinion
LANE, Judge,
dissenting.
I must respectfully dissent to that part of the majority opinion which addresses the many facets of self-defense raised in this case.
That appellant shot and killed Gloria Leathers was not contested at trial. Of utmost importance to the appellant was her theory of self-defense. So important was this defense, she assumed the risk of cross-examination and exposure of her violent history to take the stand and present evidence necessary to raise it. The trial judge was satisfied she presented sufficient evidence to raise the defense and so instructed the jury. The record supports this discretionary determination. What the trial court did not do, and which requires reversal in this case, is instruct the jury that once the defense of self-defense is raised the State bears the burden to disprove it beyond a reasonable doubt. See OUJI-CR 745; West v. State, 798 P.2d 1083 (Okl.Cr.1990).
Imposing itself as the trier of fact the majority substitutes proper appellate review *105 with a “we don’t believe her” standard. Arguing its own factual spin the majority goes so far as announcing the trial court erred by finding the defendant put on enough evidence to take her theory of self defense to the jury. The simple truth is the record supports the trial court’s decision that the defendant raised the theory of self defense. Thus, the trial court did not abuse its discretion by so instructing the jury. Whether the appellate court believes, or indeed whether the jury ultimately would have believed the defense is of no analytical consequence. What does matter is whether the proper trial consequences flowed from the undeniable fact the appellant successfully raised the issue of self-defense. Unfortunately they did not.
The majority summarily dismisses a number of alleged errors stating self-defense was not raised in this case. Since the defense plainly was raised, I must dissent from the majority’s treatment of these issues as well. The most serious error is the failure of the trial court to instruct on the State’s shifting burden. This error requires reversal and remand to the district court for new trial.
I also take exception to the majority finding the evidence the appellant was the “man” in her lesbian relationship has any probative value at all. Were this a case involving a heterosexual couple, the fact that a male defendant was the “man” in the relationship likewise would tell me nothing. I find no proper purpose for this evidence, and believe its only purpose was to present the defendant as less sympathetic to the jury than the victim.