State v. BurnsState v. Burns
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- Before:
- Tanzer
Defendant was convicted of murder,
The testimony given by the only two living eyewitnesses to the killing, defendant and his wife, was essentially identical. Defendant’s two minor daughters did not see the killing or the events immediately preceding it, bnt they did testify as to what they heard from upstairs, and their recollection of the incident was consistent with that of their parents.
The evidence shows that the deceased, Robert McCoy, had been living with defendant and defendant’s wife in their home prior to the killing. The three individuals had been drinking at various establishments on the night of February 28, 1973, and returned home at approximately 1:30 the following morning. Defendant and his wife both testified that McCoy had been acting in an obnoxious fashion throughout the evening, despite their efforts to quiet him. When they arrived at home, McCoy had fallen asleep in the car and defendant and his wife decided to leave McCoy in the car to sleep.
Shortly after defendant and his wife went to bed, McCoy came in the house and, indicating that he was cold, began kicking and cursing the heater saying that he wanted the heater turned on. At that, defendant’s wife got out of bed and told McCoy that he would have to either stop cursing and go to bed, or else leave the house because she did not want her children (who were upstairs) to hear his foul language. McCoy complied with her request momentarily, but soon began to curse and kick the heater again. This time defendant came out of the bedroom with his wife and told McCoy to leave the house and sleep in the car. McCoy responded that defendant was not man enough to make him leave, and that he was not going to leave because it was too cold ontside. Defendant replied, “If I get my gun, you’ll get out,” and went back into the bedroom. Defendant proceeded to get a .22 caliber rifle out of a closet and load it. While defendant was loading the rifle, defendant’s wife continued to plead with McCoy to leave the house, but McCoy refused.
Defendant emerged from the bedroom holding the rifle and again told McCoy to leave, informing him that he would shoot him if he did not leave. McCoy replied that defendant did not have the “guts” to shoot him and moved toward defendant, grabbing at the rifle. While he was reaching for the rifle, McCoy told defendant that if he were successful in getting it away from defendant he would beat defendant over the head with it. As McCoy grabbed at the gun, defendant raised the rifle and backed away from McCoy, waving the gun from side to side to keep McCoy from grabbing it. Neither defendant nor his wife could testify whether McCoy actually touched the gun. Finally, defendant backed into a television set, and as he did so, the gun discharged. Defendant testified that he did not think he pulled the trigger, and that he did not intend to pull
The fact that defendant claimed accident by testifying that he did not intend to kill McCoy does not deprive him of the right to an instruction on self-defense if there is also evidence in the record from which the jury could have inferred that defendant was acting in self-defense. While ordinarily a defendant is not entitled to the benefit of mutually exclusive defenses, the rush of events may be such that the memory is clouded and the testimony inconclusive as between them. Where the evidence can support the defense it is better to give the instruction and allow the jury to determine the truth from among conflicting available inferences. Cf . State v. Anderson, 207 Or 675, 298 P2d 195 (1956), where the court stated that a defendant who denies the homicide is still entitled to an instruction on self-defense if the evidence in the record supports it.
Whether defendant’s evidence entitled him to a jury instruction on the issue of self-defense is governed by
The self-defense sections of the 1971 Oregon Criminal Code are “basically a codification of Oregon case law doctrines,” designed to “formulate statutory guidelines to be followed in determining when and to what degree a person is justified in using physical force against another in self-defense.” Commentary at 23-24. It is therefore necessary to look to the cases which have articulated the principles in this area.
The first Oregon case dealing with justifiable homicide is Goodall v. State, 1 Or 333, 80 Am Dec 396 (1861), in which the court stated that the jury should have been instructed that if they believed that there was “reasonable ground for [the defendant therein] to believe Ms life in danger, or that he was in danger of great bodily harm from the deceased, and that such danger was imminent, and he did so believe, and acting on such belief ldlled tlie deceased, lie was excusable; and tbat it was not necessary that he should wait until an assault was actually committed.” 1 Or at 337.
These basic principles have been restated in numerous subsequent self-defense cases, including the leading Oregon cases of State v. Rader, 94 Or 432, 186 P 79 (1919), and State v. Gray, 43 Or 446, 74 P 927 (1904). Because of the similarities of those cases to the case at bar, and also because of the Criminal Law Revision Commission’s express reliance upon them in formulating the statutory standards (See Commentary at 24-25), we consider the facts of those cases at some length.
In Gray, the defendants were walking down a road past the decedent’s premises when a conversation started between defendants and the decedent. The decedent became angry, leaped the fence, and walked toward one of the defendants in a threatening manner. One of the defendants drew a pistol and warned the decedent to withdraw. The decedent disregarded the warning and continued to advance toward the defendant, threatening to take the gun from defendant and “beat his brains out with it.” When decedent came within reach of defendant, he seized the gun, and attempted to take it away from defendant. During the ensuing struggle, the decedent was shot and killed. The trial court instructed the jury that taking the decedent’s life could only be justified if defendant were threatened with “great bodily harm” and that danger of battery was not sufficient. In so doing, it refused to give an instruction that the killing was justified if defendant “had reason to believe, and did believe, that he was in imminent danger of death or great bodily harm at the hands of the deceased.” The Oregon Supreme Court held that the refused instruction should have been given:
“* * * Where * * * the assault is attended with such demonstration [of imminent danger to life or great bodily injury, real or apparent], and the present ability to execute it, whether the assailant is armed with a deadly weapon or not, as to indicate that he is in imminentdanger of being beaten and maltreated, and probably disfigured or maimed, or his life imperiled, he has a right to withstand the assault, even to the taking of the life of the aggressor.” 43 Or at 455.
The Gray court concluded that “[t]he present was manifestly a proper case to be submitted to the jury * * * as to whether the defendant, at the time he fired at the deceased, acting from the standpoint of a reasonable man, had reason to believe that he was in imminent peril of great bodily harm or of losing his life.” 43 Or at 455-456.
. The facts of the Bader case were substantially similar. Defendant, armed with a rifle, entered into a conversation with the decedent. During the conversation defendant set the rifle aside, and shortly thereafter the deceased struck defendant a number of times. While being attacked, defendant drew a pistol and fired, killing the deceased. The Bader court phrased the standard in the following way:
“* * * [T]he killing of an assailant will not be justifiable unless, judging of the situation from the .standpoint of a reasonable man under all the circumstances surrounding the defendant at the time, he has reasonable cause to believe himself to be in imminent danger of death or great bodily harm at the hands of his assailant. * * *” 94 Or at 446.
,The passage of time has not significantly altered these basic principles. This court stated in State v. Hansen, 3 Or App 378, 381, 474 P2d 17 (1970):
“Our Supreme Court has consistently held in justifiable homicide cases that the defendant must have reasonably believed that he was in danger of death or great bodily harm to be entitled to assert self-defense. * * *”
Since the legislature’s intention in enacting
One further point merits discussion. The state contends that defendant was not entitled to an instruction on the law of self-defense because defendant introduced the firearm into the conflict and was thus the aggressor. A person may not provoke a quarrel to the point where weapons are used, and then justify his slaying of his opponent on the ground of self-defense.
See State v. Joseph,
230 Or 585, 371 P2d 689 (1962);
State v. McCann,
43 Or 155, 72 P 137 (1903);
State v. Hawkins,
18 Or 476, 23 P 475 (1890). In this case, however, defendant was attempting to terminate McCoy’s criminal trespass, and he was authorized to use reasonable
Beversed and remanded.
Notes
On direct examination, defendant testified as follows:
“Q Did you pull the trigger of the gun?
“A No, sir. I don’t think I did. I definitely don’t think I did.
“Q Did you have any intent one way or another to pull that trigger?
“A No, I know I didn’t intend to pull it. I know that. I was trying to get away from him.”
And on redirect, defendant testified:
“Q Did you intentionally pull the trigger when that gun went off?
“A No, sir. I did not, I definitely did not.”
The testimony of the other people in the house differed to a minor extent from that of defendant’s wife. Defendant himself testified that McCoy said “I am shot” and that defendant replied, “yeah, and I’ll shoot you again if you don’t get out of here.” One of defendant’s daughters, Sherry Burns, testified that McCoy said “Why did you do that for, John,” and that defendant responded “You’re shot, damn you, that’s right, your [sic] shot. If you don’t get the hell out of here, I am going to shoot you again.” Defendant’s other daughter, Teresa Burns, testified that defendant simply said “You’re shot.”
The full text of
“Notwithstanding the provisions of
“(1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or
“(2) Committing or attempting to commit a burglary in a dwelling; or
“(3) Using or about to use unlawful deadly physical force against a person.”
“(1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.
“(2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this section only:
“(a) In defense of a person as provided in
“(b) When he reasonably believes it necessary to prevent the commission of arson or a felony by force and violence by the trespasser.
“(3) As used in subsection (1) and paragraph (a) of subsection (2) of this section, ‘premises’ includes any building as defined in
“(1) A person commits the crime of criminal trespass in the second degree if he enters or remains unlawfully in or upon premises.
“(2) Criminal trespass in the second degree is a Class C misdemeanor.”
“(1) A person commits the crime of criminal trespass in the first degree if he enters or remains unlawfully in a dwelling.
“(2) Criminal trespass in the first degree is a Class A misdemeanor.”
The equivalence of these concepts was recognized in State v. Rader, supra, 94 Or at 486 (Harris, J., concurring), and again in State v. Hansen, 3 Or App 378, 382, 474 P2d 17 (1970), where the court stated:
“* * * Fear of ‘great bodily harm’ is thus a requirement in homicide cases, because the statute requires fear of a felony.”