stating that the “duty to retreat relates to the election to kill, making a killing unjustified if the danger was reasonably avoidable,” and that the defendant’s self-defense claim failed where he had an opportunity to retreat when he shot the victim while the defendant “was in the driver’s seat of the van that was stopped in the middle of the street, the engine was running, nothing was blocking his exit, and [the victim] was on foot outside”
How later courts described this case
- stating that the “duty to retreat relates to the election to kill, making a killing unjustified if the danger was reasonably avoidable,” and that the defendant’s self-defense claim failed where he had an opportunity to retreat when he shot the victim while the defendant “was in the driver’s seat of the van that was stopped in the middle of the street, the engine was running, nothing was blocking his exit, and [the victim] was on foot outside”
- discussing the history of the revival instruction and noting that the then-existing CRIMJIG 7.07 misstates the law because it does not account for proportionality, i.e., if the defendant initiates an argument, that does not justify the victim in responding with deadly force
- “[T]he law does not permit or justify one who intends to commit an assault upon another to design in advance his own defense by instigating a quarrel or a combat with a view thereby to create a situation wherein the affliction of the intended injury will appear to have been done in self-defense.” (quotation omitted)
Written by the judges who cited it.
The opinion
ANDERSON, PAUL H., Justice
(concurring).
I concur. In so doing, I agree with the dissent’s concern that CRIMJIG 7.07 on self-defense may misstate the law and is in need of revision. Nevertheless, the facts of this case do not establish that appellant Brian Keith Edwards met his duty to retreat if at all possible to avoid any threatened harm presented by Timothy Oliver. For this reason, I agree with the majority’s alternative conclusion that any error in the submission of the instruction was harmless. Therefore, I agree that Edwards’ conviction should be affirmed.