Lead Opinion
I
In his first рroposition of law, appellant argues that the Due Process Clause of the Fourteenth Amendment prohibits the state from placing the burden of proving self-defense on the аccused. Based upon our recent decision in State v. Martin (1986),
In Martin, supra, this court examined and analyzed the holdings of the United States Supreme Court and our own past holdings on this issue. We concluded that where the state is required to prove beyond a reasonable doubt every element of a crime as defined by statute, the defendant may fairly be required to prove, by a prеponderance of the evidence, the affirmative defense of self-defense. R.C. 2901.05 embodies this principle.
In the case sub judiee, the state proved that appellant purposely cаused the death of Young. Appellant admitted these facts but claimed his act was justified by self-defense. As we stated in Martin, supra, self-defense does not require the defendant to prove his innocence by negating an element of the crime with which he is charged. As long as the prosecution is required to prove the elements of a crime, there is no additional constitutiоnal requirement to prove the absence of self-defense. Id. at syllabus. Cf. Patterson v. New York (1977),
Accordingly, the judgment of the court of appeals on this issue is affirmed.
II
Appellant next contends that the trial court erred in failing to instruct the jury in accordance with his proposed special instruction on the duty to retreat.
This court held in State v. Robbins (1979),
In contrast, appellant’s proposed instruction states in essence that as long as a person is in any place where he has a right to be, there is no duty to retreat from an attack. As the appellate court noted, under appellant’s
The trial court instead gave a correct general instruction on self-defense in accordance with the elements enumerated in Robbins, supra. Appellant cоntends this was error because the trial court, in overruling his proposed instruction, failed to sua sponte specially instruct the jury that he had no duty to retreat when attacked in or about his home.
In State v. Guster (1981),
As made clear by this court in Robbins, supra, the elements of self-defense are cumulative. In order to prevail on the issue оf self-defense, the accused must show that he was not at fault in starting the affray, and that he had a bona fide belief that he faced imminent danger of death or great bodily harm and that his only mеans of escape was the use of such force, and that he violated no duty to retreat or avoid the danger. If the defendant fails to prove any one of these elements by a preponderance of the evidence he has failed to demonstrate that he acted in self-defense.
In the case sub judice, it is apparent from the verdict that the jury believed the testimony of the state’s witnesses that appellant did not believe he was in imminent danger of death or great bodily flarm from the victim. This testimony showed that appellant acted out of jealous anger toward the victim rather than out of fear for his life. Prosecution witness Delora Kilpatrick, who had been intimately involved with the victim for three and one-half years and bore his daughter, testified that she met the victim at appellant’s apartment house around 7:00 on the evening of the murder. Kilpatrick told the jury that appellant was angry at the victim about her presence at his home and that appellant was jealous of her relationship with the victim. Kilpatrick said she left the scene after appellant called her a “bitch” аnd she responded in kind.
The victim’s sister, Maudean Bolden, testified that she and her brother had gone to the victim’s apartment the afternoon of the murder in order to collect some “things” thе victim had left in appellant’s apartment. Bolden also testified that appellant and the victim had been homosexual lovers for several years. Bolden stated that the argument between the two men began when Kilpatrick arrived and continued after she left. Bolden told
Key defense witnesses, in contrast, were thoroughly discredited upon cross-examination. Rick Jackson, appellant’s nephew, one of the men who restrained the victim, admitted that he had wiped the murder gun free of fingerprints and had thrown it under the porch. Jackson also admitted that he had given police investigators a false name, and on many occasions was forced to acknowledge that his prior statement to police was inconsistent with his testimony at trial. James L. Teasley, who was also present аt the home, testified that he was not sufficiently concerned about appellant’s safety to have assisted in breaking up the fight in the yard. Teasley also admitted prior convictiоns for murder and felonious assault.
The weight to be given evidence and the credibility of the witnesses are primarily decisions for the jury. State v. DeHass (1967),
Although a special instruction frоm the trial court on appellant’s duty to retreat would have been appropriate to the evidence adduced at trial, we conclude that the failure to give such an instruction neither affected appellant’s substantial rights nor contributed to his conviction. Crim. R. 52(A); Chapman v. California (1967),
For the foregoing reasons, appellant’s second proposition of law is without merit. The judgment of the court of appeals is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. Based upon the reasoning articulated in my prior dissent in State v. Martin (1986),
The placement of the burden of proof of self-defense on the accused, pursuant to R.C. 2901.05, is patently unconstitutional as a violation of the Due Process Clauses of both the state and federal Constitutions.
As one court recently noted, “[rjooted in the Anglo-American tradition is the belief that a killing in self-defense is not a crime.” Thomas v. Leeke (C.A. 4, 1984),
I stand firm in my belief that the taking of thе life of another in self-defense is a completely lawful act. Since the affirmative defense of self-defense is one which serves to negate some of the facts (i.e., voluntаriness and unlawfulness) that are necessary to constitute the crime of murder, the burden of persuasion on self-defense is one which should be carried by the state,, once'the defense is raised by the accused.
Thus', I would reverse the decision of the court of appeals, and remand the cause .for further proceedings on this issue.