2015 #27 Self Defense Weekly Law Report

Law of Self Defense: Weekly Law Report
2015 #27 (June 22-26, 2015)

__________________________________________________________________________________________
__________________________________________________________________________________________
2015 www.lawofselfdefense.com
Page 1 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Frequently Asked Questions

Q:
What is the Law of Self Defense: Law Report Weekly?
A:
Each week Law of Self Defense staff review self-defense court decisions from around the country. Those
we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The
cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents
and then by individual case.
Q:
The Law of Self Defense is well-known for translating the legalese of self-defense law into plain
English easily understood by non-lawyers, as you do in your books, seminars, online training, and
blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain
English?
A:
Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for
weekly reports of this type. Therefore we consider these reports a graduate-level product, for people
who already have a solid understanding of the legal principles of self-defense law. To get up to speed we
encourage you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available
from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level.
You may also consider one of our state-specific live Law of Self Defense Seminars held all over the country
or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.
Q:
Do you recount each of the cases in their entirety?
A:
No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we
only summarize the portions of the cases that directly involve issues of self-defense law. What we do
include are the case citation, a list of the key self-defense law issues covered in that case, the date of the
decision, and the text of the decision that discusses the specific self-defense laws of interest.
The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.
Q:
What if I want to read the entire case?
A:
Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact,
strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best
way to understand the fullest context of the courts decisions.
__________________________________________________________________________________________
Page 2 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Table of Contents
CALIFORNIA
Page
People v. Green, 2015 Cal. App. Unpub. LEXIS 4408 (CA Ct. App. 2015)
Key issues:
Self-defense, elements
Burden of production, on the defendant
Mutual combat, elements
Innocence, recovering via withdrawal
Date:
June 23, 2015
People v. Delgado, 2015 Cal. App. Unpub. LEXIS 4375 (CA Ct. App. 2015)
15
Key issues:
Innocence, recovering, escalation

Innocence, mutual combat
Innocence, first aggressor
Avoidance, withdrawal, when safely possible
Date:
June 22, 2015
MINNESOTA
State v. Welle, 2015 Minn. LEXIS 368 (MN Supreme Court 2015)
25
Key issues:
Innocence, first aggressor; relevance of history of claiming self-defense
Date:
June 24, 2015
OHIO
State v. Bradley, 2015 Ohio App. LEXIS 2388 (OH Ct. App. 2015)
31
Key issues:
Burden of persuasion on the defendant, by a preponderance of the evidence
Self-defense, elements, cumulative
Date:
June 23, 2015
__________________________________________________________________________________________
Page 3 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
PENNSYLVANIA
Page
Commonwealth v. Rankin, 2015 Pa. Super. Unpub. LEXIS 1905 (PA Superior Court 2015)
37
Key issues:
Proportionality, deadly v. non-deadly force
Innocence, first aggressor, provocation
Avoidance, duty-to-retreat
Date:
June 24, 2015
WASHINGTON
State v. Thomas, 2015 Wash. App. LEXIS 1312 (WA Ct. app. 2015)
42
Key issues:
Burden of production on the defendant
Burden of persuasion on the State, beyond a reasonable doubt
Date:
June 22, 2015
__________________________________________________________________________________________
Page 4 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
CALIFORNIA
People v. Green, 2015 Cal. App. Unpub. LEXIS 4408 (CA Ct. App. 2015)
Key issues:
Burden of production, on the defendant
Mutual combat, elements
Innocence, recovering via withdrawal
Date:
June 23, 2015
Decision:
INTRODUCTION
committed in concert with others ( 422.75, subd.

(b)).
This case arises out of a racially-motivated attack on

Thomas Johnson by defendant Brian Clay Green,
After the jury rendered its verdicts, a bench trial was
Gunnar Stine and Jacob Gurfinkiel.1 The jury
conducted in which the trial court found that
convicted defendant of attempted murder (
defendant had suffered two prior serious felony
664/187, subd. (a)), assault with a deadly weapon or
convictions within the meaning of the Three Strikes
by force likely to cause great bodily injury ( 245,
law ( 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12,
subd. (a)(1)), and making criminal threats ( 422).2 In
subds. (a)-(d)) and section 667, subdivision (a)(1).
regard to the attempted murder conviction, the jury
The trial court sentenced defendant to an aggregate
found true the allegations that defendant personally
term of 125 years plus three consecutive life terms.
inflicted great bodily injury ( 12022.7, subd. (a)) and

that the offense was a hate crime committed in
In his appeal, defendant raised three claims of
concert with others ( 422.75, subd. (b)).3 In regard
instructional error: (1) the trial court erred in failing to
to the assault conviction, the jury found true the
instruct on the principles of self-defense, defense of
allegations that defendant personally used a deadly
others and mutual combat; (2) the trial had a sua
weapon, a knife ( 12022, subd. (b)(1)); that he
sponte duty to instruct on the lesser included offense
personally inflicted great bodily injury ( 12022.7,
of attempted voluntary manslaughter; and (3) the trial
subd. (a)), and that the offense was a hate crime
court erred in rejecting defense counsel's request for
committed in concert with others ( 422.75, subd.
the unanimity instruction. Next, defendant urged that
(b)). In regard to the criminal threats conviction, the
his sentence violated section 654. Lastly, defendant
jury found true the allegations that defendant
contended that trial counsel provided ineffective
personally used a deadly weapon, a knife ( 12022,
assistance because he failed to object to the
subd. (b)(1)) and that the offense was a hate crime

admission of defendant's pretrial interview with two
__________________________________________________________________________________________
Page 5 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
detectives, an interview that defendant claims, for the
Johnson was accompanied by his roommate Daniel
first time on appeal, was coerced.
Boston, who is white, when he (Johnson) was
In our opinion, filed on January 7, 2015, we found no
attacked by defendant, Stine and Gurfinkiel. During
prejudicial error and, other than correcting a minor
the attack, Johnson was punched, kicked, stabbed
error in the award of pre-sentence custody credit,
and threatened as the men yelled multiple racist
affirmed the judgment.
epithets. Defendant is a member of the SFV

Peckerwoods, a white-supremacist gang in the San
Defendant filed a petition for review in the California
Fernando Valley. Stine and Gurfinkiel are members of
Supreme Court. He raised only two contentions: (1)
the Chatsworth Skinheads, another white-
the trial court's rejection of his request for the
supremacist gang. The two gangs share a hatred of
unanimity instruction constituted prejudicial error; and
African-Americans. It is common for the two gangs to
(2) his sentence violated section 654.
commit crimes together.
The California Supreme Court granted review but not
On the day of the attack, Johnson was 26 years old,
on the issues raised by defendant. Instead, it
five feet six inches tall and weighed 145 pounds.
transferred the case to us "with directions to consider
Boston was between 19 and 21 years old, weighed
whether to remand to the trial court for resentencing
130 to 135 pounds and was five feet, eight or nine
in accordance with Penal Code section 667,
inches tall.4 Defendant was 27 years old. He weighed
subdivision (e)(2)(A) (see People v. Smith (2001) 24
220 pounds and was five feet 11 inches tall. Stine
Cal.4th 849, 852 [exception to the waiver rule for
was 17 years old, five feet eight inches tall, and
unauthorized sentence].)" (See Cal. Rules of Court,
weighed between 130 to 140 pounds. Gurfinkiel was
rules 8.500(b) & 8.528(d).)
almost 18 years old, five feet, seven inches tall, and

weighed 140 pounds.
We directed the parties to file letter briefs addressing

our Supreme Court's order. (See Cal. Rules of Court,
Defendant testified at trial and denied attacking
rule 8.200(b)(1).) Having received and reviewed those
Johnson. Defendant claimed that Stine assaulted
letters, we conclude that the trial court erred in two
Johnson and that he (defendant) entered the struggle
respects in calculating defendant's sentence but that
to stop it.
a remand is not necessary to correct those errors.

Instead, we re-file our earlier opinion with the addition
B. The Prosecution's Case-in-Chief
of a new section G ("Sentencing") and dispositional

paragraph correcting the sentencing errors.
1. Johnson's Testimony
STATEMENT OF FACTS
At approximately midnight on the evening of February

16, 2008, Johnson and Boston were walking on
A. Factual Overview
Winnetka Avenue in the San Fernando Valley,

heading towards their home. Johnson and Boston
The crimes were committed around midnight on
were on the opposite side of the street from
February 16, 2008. Johnson, the victim, is black.
defendant, Stine and Gurfinkiel. Johnson heard a
__________________________________________________________________________________________
Page 6 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
man say, in an "aggressive, angry tone[,]" "There is a
fucking nigger over there." Johnson ignored the
Gurfinkiel ran toward Johnson and joined in the
statement and continued to walk with Boston as a
attack. Johnson hit Gurfinkiel before Gurfinkiel could
man stated: "What are you doing over here,
hit him. Gurfinkiel said: "Fucking nigger[] hit me in the
nigger[?]." To get home, Johnson and Boston needed
face." Defendant, Stine, and Gurfinkiel formed a circle
to cross the street. To minimize the potential of any
around Johnson, and "operat[ing] as a team," hit him.
confrontation, they crossed to the north of the three
Defendant was behind Johnson most of the time as
men. Everyone was now on the same side of the
the three men punched him. Johnson tried to get out
street.
of the circle but defendant and Stine pushed him

back.
Johnson "heard footsteps coming towards [him],

running towards [him] at a fast pace." Johnson turned
At one point, Johnson saw that he was bleeding
around and Stine threw a "knock-out-punch" at him.
"everywhere." Johnson "kind of stopped" fighting and,
Johnson ducked and Stine's punch "missed."
accompanied by Boston, "rush[ed]" back to their
Johnson testified: "I kind of went back and I hit him
home. As he left the scene, Johnson heard bottles
[Stine] and he fell to the ground. . . . I kind of just put
breaking. One of his three assailants stated: "It's time
my hand on his chest or, like, upper neck area and I
for some white power on this motherfucker" and "Heil
kneeled on the ground, [and] was asking him if he
Hitler."
knew me or what his problem was." (When Johnson

first turned around, he saw defendant and Gurfinkiel
Johnson and Boston returned home and contacted
standing next to a car.)
the paramedics. Johnson was transported to the

hospital. He had been stabbed twice, once in his
Johnson knelt with one knee on the ground and used
lower back and once in his upper back. The latter stab
one arm to try "to hold [Stine] in place." Suddenly,
punctured his right lung and would have been fatal if
defendant came up and kicked Johnson "pretty hard"
he had not quickly received medical treatment.
on the left side of his face. Defendant tried to kick
Johnson underwent surgery and was hospitalized for
Johnson again but Johnson used his "arm to sweep
several weeks. In addition, his vision "is worse in [his]
[defendant's] leg away." Johnson looked up at
left eye than it is in [the] right eye."
defendant and said: "Are you guys going to jump me

now or whatever?" Defendant came around to
Boston did not help Johnson during the attack. During
Johnson's back, put his arm around him and pointed
the assault, one of the three men called Boston "a
a knife within one or two inches of Johnson's eyes.
fucking nigger lover."
Defendant said "Fuck you, nigger" and told Johnson

that if he did not "get off his friend [Stine], he [was]
2. Testimony from Two Eyewitnesses
going to cut [his] fucking throat." Johnson, believing

his life was in danger, pushed defendant's hand away,
Shortly before their attack on Johnson, defendant,
jumped up, and started boxing with defendant. Stine
Gurfinkiel and Stine had been at a party. They, along
stood up and joined defendant in fighting Johnson.
with three young women, left the party and drove to
Johnson punched Stine in the face.
Gurfinkiel's home. It was at that location that
__________________________________________________________________________________________
Page 7 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
defendant and his accomplices attacked Johnson. At
Stine. The men had been drinking. The six of them
trial, two of the women, Kirsten Marlow and
left by car to return to Gurfinkiel's home. When they
Samantha Parker, testified for the People.
arrived, everyone left the car except for Stine.

Defendant told the group that he knew how to get
a. Marlow's Testimony
Stine out of the car. Defendant then stated: "There is

a fucking nigger." Marlow saw Johnson and Boston
Marlow testified that the group arrived by car at
walking on the other side of the street. Stine left the
Gurfinkiel's home. Marlow saw Johnson and Boston
car and pursued Johnson. As Stine approached
walking in their direction on the opposite side of the
Johnson, Stine made a Nazi salute and loudly said:
street. Everyone except Stine exited the car.
"Nigger" and "White Power." At the same time,
Defendant first said: "If you yell nigger, [Stine will]
defendant shouted "White Power."
come out of the car." and then he yelled "Nigger." As

Johnson and Boston crossed the street in his
When Stine reached Johnson, Stine threw the first
direction, Stine left the car and yelled: "What the hell
blow and "[t]hey started fighting." Defendant joined
are you staring at, you dumb nigger?" Stine ran
the fight as Johnson and Stine "were wrestling on the
towards Johnson and "[t]hat's when the fight started
ground." Defendant kicked Johnson "pretty hard" in
breaking out." Johnson and Stine were "fighting on
the face. Soon, Gurfinkiel joined the fight, "yelling out
the ground," "[t]hey were all just in a fight" for a "few
racial stuff." The three men "piled on [Johnson]," "all
minutes." Johnson did not have any weapon in his
attacking [him] at the same time." "Towards the very
hand during the fight. Defendant approached the fight
end of the fight," Gurfinkiel gave a Nazi salute. The
and "kicked [Johnson] in the head." At some point,
fight ended when Johnson, who was bleeding, "[got]
Gurfinkiel joined the fight. According to Marlow,
up and [left]" with Boston. As Johnson was "walking
Johnson hit Gurfinkiel "for self-defense." Marlow did
[away] real quick," Gurfinkiel walked towards him but
not see who stabbed Johnson.
defendant held him back. Marlow did not see who

stabbed Johnson.
Eventually, the three men, Marlow and Parker

retreated to Gurfinkiel's home. Defendant and Stine
The three men and the women went to Gurfinkiel's
each had a bloody knife. Defendant told the group:
home. Defendant showed Parker a bloody knife and
"Look what I did. I stabbed the nigger."
said: "I stabbed a fucking nigger." Parker saw that

Stine also had a knife.
Initially, Marlow did not speak with the police about

the events. She "fear[ed]" for her "life" because
C. The Defense Case
defendant, Stine and Gurfinkiel were white

supremacists.
1. Defendant's Testimony
b. Parker's Testimony
Defendant testified at trial on his own behalf as

follows.
Parker testified that she, Marlow and another women

had been at a party with defendant, Gurfinkiel and
__________________________________________________________________________________________
Page 8 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
He and the others arrived by car at Gurfinkiel's home.
Johnson and defendant were soon on their feet. Stine
He (defendant) was intoxicated and Stine "was
remained on the ground "a little bit longer" "because
drunk." Defendant pulled Stine out of the car. Johnson
he was drunk." Defendant told Johnson to "just, get
and Boston walked near them on the other side of the
the fuck out of here."
street. Gurfinkiel yelled: "What the fuck are you

doing?" Johnson and Boston crossed the street
Defendant and Johnson "kind of squared off" but then
immediately in front of their car. From defendant's
Gurfinkiel "came back up" behind Johnson and "either
point of view, Johnson became the aggressor at this
pushed him or punched him." Stine stood up and
point. Defendant explained: "If we say something to
attempted to join the fight. Defendant grabbed Stine,
him and he doesn't want to engage or isn't involved in
"wrapped him up like a bear[,] . . . wrapped [his] arms
it, why didn't he just keep walking . . . instead of
around [Stine], holding him" and pulled him towards
crossing the street to where we were at in front of
Gurfinkiel's home in an effort to stop Stine from
us?"
fighting again. Stine "jerked away" and "went after"

Boston who was walking away. Stine yelled to Boston:
Stine approached Johnson and Boston. Stine started
"Come back here, mother fucker; it's white power."
"talking smack to the5; and they [Johnson and
Boston ran away so Stine rejoined the fight between
Boston] started talking smack back, and [Johnson]
Johnson and Gurfinkiel. Defendant "yell[ed] at them to
threw a beer bottle and then they started
get the fuck in the house." Boston started walking
fighting." (The bottle did not hit anyone.)
back towards the melee. Defendant testified that at

that moment, he "grabbed [Stine] again and
Stine and Johnson punched each other and fell to the
[Gurfinkiel's] mother grabbed [Gurfinkiel], and we
ground where they continued to fight. Johnson "was
pulled them back" and Johnson "walked off."
straddling [Stine], punching [him] in the head and

torso area." Stine was trying to fight back. Meanwhile,
Defendant did not "recall ever kicking [Johnson] in his
Gurfinkiel "was talking trash" with Boston.
face" but conceded that when they fell down, he "may

have" "kicked him in his shoulder." Defendant claimed
At that point, Marlow and Parker were "yelling and
that "there wasn't a time all three of us [defendant,
screaming" and Gurfinkiel's mother came out of her
Stine and Johnson] were fighting. I'm trying to break
home "and was yelling at [defendant] that they were
up the fight." (Italics added.)
fighting, to stop them." (Italics added.) Defendant told

Marlow, Parker and Gurfinkiel's mother to calm down.
Defendant denied having a knife, having threatened
After the women "had calmed down some," defendant
to cut Johnson's throat, having stabbed Johnson,
approached "and tried to pull [Johnson] off the top of
having seen anyone stab Johnson, or having said
[Stine]." Defendant testified that he "was trying to
"nigger" during the incident.
break up the fight because they were drunk." He "was

trying to stop the altercation and incident so that
Defendant claimed that after the fight had ended, he
nobody got in trouble." Defendant grabbed "Johnson
saw Stine's bloody knife on the sidewalk. Defendant
by his shoulders to pull him off" of Stine but he
picked up the knife and took it with him to Gurfinkiel's
(defendant) slipped on the wet grass and fell.
home. Defendant asked Stine if he (Stine) had
__________________________________________________________________________________________
Page 9 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
stabbed Johnson. Stine replied "that he just cut
Johnson and that he (defendant) knew where to find
himself."
the knife Stine had used.
In regard to gang affiliation, defendant denied being a
In addition, defendant, in the interview, set forth a
member of the SFV Peckerwoods but testified that he
more racially charged context for the fight and
believed in "White Power" which he defined as
described a more aggressive Stine than he had in his
"procreation," "[w]hite people with white people[,]"
trial testimony. Defendant told the detectives that the
"sticking with my own."
incident started when Stine called Johnson a "fucken

nigger" and "ran up from the car[], . . . swinging at
2. Impeachment of Defendant Through His 2008
[Johnson] [whereupon the two men] started fighting."
Interview With the Police

Defendant also gave the detectives a different
The police arrested defendant on November 12,
chronology of the latter part of the struggle and his
2008. That day, Detectives Fajardo and Doerbecker
role in it. As opposed to his trial testimony in which he
interviewed him. The interview was tape recorded.
claimed that only Stine was fighting with Johnson,
During cross-examination of defendant, the
defendant told the detectives that Johnson was
prosecutor sought to enter the interview into
"beating [Stine] up and then [Gurfinkiel] ran over and
evidence.6 The defense did not object.7 The tape
started fighting with [Johnson]." Defendant "ran over
recording was played for the jury and a transcript of
there" to pull Stine and Gurfinkiel off of Johnson
the interview was entered into evidence.8
because "they had gained the upper hand again."
As will be explained in more detail when we discuss
DISCUSSION
defendant's contention that trial counsel provided

ineffective assistance because he failed to object to
A. FAILURE TO INSTRUCT ON SELF-DEFENSE,
the introduction of the interview, defendant's
DEFENSE OF OTHERS AND MUTUAL COMBAT
statements to the police were, in large part, consistent

with his trial testimony. He denied attacking or
Defendant contends that the trial court committed
stabbing Johnson and claimed he entered the fight
prejudicial error because it failed sua sponte to
only to stop it.
instruct on the theories of self-defense, defense of

others and mutual combat. We disagree.
However, some of his statements were inconsistent

with his trial testimony. Defendant did not tell the
1. Factual Background
detectives that Johnson had been the aggressor,

either by crossing the street, talking "smack," or
Before closing argument, the trial court instructed the
throwing a beer bottle and, at one point, defendant
jury. The court read, among other instructions,
conceded to the detectives that Johnson fought only
CALJIC No. 9.00 which defines assault. The last
in self-defense. While defendant testified that he did
paragraph of that instruction reads: "A willful
not know who stabbed Johnson, defendant
application of physical force upon the person of
repeatedly told the detectives that Stine had stabbed
another is not unlawful when done in self-defense or
__________________________________________________________________________________________
Page 10 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
in defense of others. The People have the burden to
"[DEFENSE COUNSEL]: Again, he [defendant]
prove that the application of physical force was not in
testified one of the reasons that he got involved in
lawful self-defense or defense of others. If you have a
this was to pull Mr. Johnson off of Mr. Stine . . .
reasonable doubt that the application of physical force
because he was getting beat up.
was unlawful, you must find the defendant not guilty."

"[THE PROSECUTOR]: But if defense intends to
After the trial court finished reading the instructions to
argue that and wants to rely upon that paragraph,
the jury, the prosecutor requested a sidebar
there is a whole series of instructions which are
conference. The following exchange occurred.
actually not favorable to this defendant dealing

with mutual combat, contrived self-defense, et
"[THE PROSECUTOR]: I believe that [the last
cetera. That paragraph [in CALJIC No. 9.00] is
paragraph in CALJIC No. 9.00] is inapplicable
not the way to do it.
here. Defense has not sought any self-defense

instructions and, in fact, there is a series of
"If defense counsel wants to litigate whether he
instructions in the 5 section [of CALJIC] indicating
can be allowed to give other instructions, that's a
that they shouldn't be available in this case. . . . I
separate issue, but that paragraph would need to
would ask it be stricken from the written copy. . . .
be accompanied by those instructions and should

not be in front of the jury right now.
"THE COURT: [Defense counsel?]

"[DEFENSE COUNSEL]: I think those other
"[DEFENSE COUNSEL]: Well, we heard
instructions are sua sponte. . . .
testimony from the defendant, defense of others.

"THE COURT: . . . We spent three days going
"[THE PROSECUTOR]: Well, the thing is, though,
over jury instructions, and I asked both counsel
that that is a genuine defense that requires
numerous occasions if there were any other
supplemental instructions that defense counsel
instructions that were required or requested.
did not ask for and, in fact, it's mutual combat. It's
"And I specifically asked [defense counsel] twice
contrived. There was the failure to retreat from
if there were any instructions that were being
the fight. There was a whole series of instructions
requested, and none were requested.9
that would have been relevant.

"[DEFENSE COUNSEL]: I'm satisfied with the
"[The last] paragraph [of CALJIC No. 9.00] is not
jury instruction that we have here.
merited under these facts. . . . I think that putting

it in front of the jury is raising an issue that
"[THE PROSECUTOR]: I think legally that
defense, so far, has not raised, and it would be
argument is unsupportable because that
likely to lead to confusion if we have it in front of
bracketed paragraph which one would . . . have
them.
expected to have been stricken requires genuine

instructions that weren't requested.
__________________________________________________________________________________________
Page 11 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
"I will submit on that, Your Honor.
defense or defense of others]. The thing I think

defense counsel can argue is that the physical
"THE COURT: At this point in time, I am going to
action of the defendant was intended not to
strike the self-defense paragraph 9.00.
promote the fight, but to pull someone out of it.

But as to legally arguing it was defense of
"And I guess we are going to just send the jury
another, if defense counsel starts to make that
away and litigate the other issues regarding the
argument, I would be entitled to a series of
other instructions if defense is seeking to add
instructions which would invalidate that claim.
them at this point in time.

"[DEFENSE COUNSEL]: I will submit.
"[DEFENSE COUNSEL]: Well, I believe, even if
that is struck, I can argue to the jury that that fact
"THE COURT: . . . . I will strike [the last]
itself of him pulling someone away goes to his
paragraph [of CALJIC No. 9.00] and . . . will just
intent to commit a crime and is a specific intent,
go with argument of counsel. We won't include
also.
the extra instructions because testimony of the

defendant seemed to be pretty clear that he was
"THE COURT: So you are not going to argue self-
trying to break up the fight that was
defense, then. Because if you are going to argue
happening." (Italics added.)
self-defense, we are going to have the selfdefense instructions, with which there are a series
Proceedings resumed in the jury's presence. The trial
of those.
court stated: "With respect to the assault charge[,] the

jurors are not to consider self-defense or defense of
"I know [the] People, obviously, can argue that it
others, so that paragraph will be stricken." The trial
was contrived and not legitimate self-defense; so
court then reread CALJIC No. 9.00 to the jury,
they may or may not be given. This is why I asked
omitting the paragraph set forth earlier. The court also
for jury instructions at the beginning of trial so we
struck that paragraph from the written instruction
are all on the same page and we don't hold the
submitted to the jury.
jury up.
In closing argument, defense counsel urged, among
"[DEFENSE COUNSEL]: I understand.
other points, that defendant lacked any criminal intent

because "when you look at the totality of the actions,
"Then - I am still able to argue his act, however it
according to [defendant], he tried to break up this
may be characterized on the issue of his specific
fight."
intent.
2. Discussion
"THE COURT: Of course. . . .
Defendant contends that the trial court erred "by
"[THE PROSECUTOR]: I think that's legally not
failing to instruct the jury sua sponte on self defense/
supportable [for defense counsel to argue self-
defense of others and mutual combat."
__________________________________________________________________________________________
Page 12 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
is about to be inflicted upon himself or a third person
The parties agree that "a defendant has a right to
and (2) to use the force reasonably necessary to
have the trial court, on its own initiative, give a jury
prevent that imminent harm. (CALJIC Nos. 5.30 &
instruction on any affirmative defense for which the
5.32.) It is the prosecution's burden to prove beyond a
record contains substantial evidence [citation] --
reasonable doubt that the defendant did not act in
evidence sufficient for a reasonable jury to find in
exercise of one of those defenses. (See CALJIC No.
favor of defendant [citation] -- unless the defense is
9.00.) If the jury entertains a reasonable doubt
inconsistent with the defendant's theory of the case
whether the defendant's use of force was lawful, it
[citation]. In determining whether the evidence is
must find the defendant not guilty. (Ibid.)
sufficient to warrant a jury instruction, the trial court

does not determine the credibility of the defense
Here, nothing in the People's case suggested that
evidence, but only whether 'there was evidence
defendant acted in self-defense or defense of others.
which, if believed by the jury, was sufficient to raise a
Johnson's testimony and the testimony of the two
reasonable doubt . . . .'" (People v. Salas (2006) 37
eyewitnesses (Marlow and Parker) described, in
Cal.4th 967, 982.) But if the evidence of the purported
detail, an unprovoked and vicious attack fueled by
defense(s) is minimal or insubstantial there is no duty
racial hatred in which Johnson was the only individual
to instruct on them. (People v. Barnett (1998) 17 Cal.
who acted in self-defense.
4th 1044, 1145.)

In the defense case, defendant never testified that he
In this case, however, defendant misframes the issue
acted to defend either Stine or himself. Instead,
as being whether the trial court had a sua sponte duty
defendant, on multiple occasions, testified that the
to instruct upon self-defense, defense of others, or
reason he entered the fight between Stine and
mutual combat. As can be seen from the colloquy set
Johnson was to end it. Defendant explained that he
forth above, the trial court and the parties discussed
intervened after Gurfinkiel's mother asked him to stop
whether these very instructions were warranted. The
the fight. Defendant testified that he "was trying to
court ultimately ruled that it would not submit the
break up the fight because they were drunk"; that he
instructions "because testimony of the defendant
"was trying to stop the altercation and incident so that
seemed to be pretty clear that he was trying to break
nobody got in trouble"; and that he was "trying to
up the fight that was happening." Thus, the issue is
break up the fight." None of defendant's testimony
not whether the trial court had a sua sponte duty to
supports his appellate argument that he "reasonably
instruct but, instead, whether the trial court, once the
perceived Mr. Stine to be in imminent danger" so that
issue of these additional instructions had been
he acted first out of a desire to defend Stine and later
brought to its attention, correctly ruled that the record
a desire to defend himself. Stated another way,
did not contain substantial evidence to support their
defendant failed to present substantial evidence that
submission. We conclude that the trial court's ruling
could persuade a reasonable jury to entertain a
was correct.
reasonable doubt that he (defendant) acted lawfully,

e. g., to defend Stine or himself. (See, e.g., People v.
Self-defense or defense of others requires the
Kanawyer (2003) 113 Cal.App.4th 1233, 1243.) The
defendant: (1) to reasonably believe that bodily injury

__________________________________________________________________________________________
Page 13 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
trial court therefore did not err in declining to instruct
on those defenses.10
The trial court is required to instruct on mutual combat

only if there is substantial evidence from which the
Lastly, we reject defendant's argument that the trial
jury "could reasonably find that both combatants
court erred in failing to submit CALCRIM No. 3471,
actually consented or intended to fight before the
the pattern instruction about mutual combat. Mutual
claimed occasion for self-defense arose." (People v.
combat "consists of fighting by mutual intention or
Ross, supra, 155 Cal.App.4th at p. 1047.) The
consent, as most clearly reflected in an express or
singular fact that Johnson and Boston crossed the
implied agreement to fight." (People v. Ross (2007)
street (a lawful act) does not constitute substantial
155 Cal.App.4th 1033, 1046-1047.) CALCRIM No.
evidence that Johnson agreed to engage in combat
3471 sets forth the specific actions that a person who
with defendant or his accomplices. In a similar vein,
engages in mutual combat must take before he can
defendant's testimony that Johnson threw a bottle that
claim self-defense: (1) he must actually and in good
did not hit anyone does not constitute substantial
faith try to stop fighting; (2) he must communicate to
evidence from which a reasonable jury could find that
his opponent, by words or conduct, his intent to stop
Johnson agreed to fight. Further, there was no
the fight; and (3) he must give his opponent a chance
absolutely no evidence that, after the fight began,
to stop fighting. If a defendant's actions fulfill all of
defendant (or Stine or Gurfinkiel for that matter) ever
those requirements but the opponent continues to
communicated to Johnson an intent to end the fight.
fight, then the defendant has a right to act in self-
Thus, the predicate requirements for the instruction
defense.
were not supported by substantial evidence. In sum,

the trial court properly found that the record did not
In this appeal, defendant argues: "The fight was
warrant an instruction on mutual combat.
mutual combat when it began because all testimony

agreed that [the victim Johnson] crossed the street to
[]
[defendant's] and his friends' location when it was not

necessary for him to do so. Thus, when the fight
In all other respects, the judgment is affirmed.
began and continued it was by implied consent or

agreement." Based upon that characterization of the
record, defendant contends that the trial erred in not
submitting an instruction about mutual combat. We
are not persuaded.
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 14 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
CALIFORNIA
People v. Delgado, 2015 Cal. App. Unpub. LEXIS 4375 (CA Ct. App. 2015)
Key issues:
Innocence, recovering, escalation
Innocence, mutual combat
Innocence, first aggressor
Avoidance, withdrawal, when safely possible
Date:
June 22, 2015
Decision:
Defendant Floyd Ernest Delgado was convicted by a
667, subds. (b)-(i), 1170.12), and one prior serious
jury of the lesser-included offenses of voluntary
felony conviction ( 667, subd. (a)).
manslaughter (Pen. Code, 192, subd. (a))1 and

assault with a deadly weapon ( 245) following his
1. Rochelle Tinsley's testimony
acquittal on charges of murder ( 187) and attempted

premeditated murder ( 187, 189, 664). He was
Tinsley lived in an apartment complex at 711 Northrup
sentenced to a total term of 12 years in prison.
Street, in San Jose. On April 26, 2009, at

approximately 12:30 or 12:45 p.m., Tinsley heard
We find no error and will affirm the judgment.
people arguing in the parking lot, so she looked out

the window. Three Hispanic men and a "chubby"
I. Factual and Procedural Background
African-American man, later identified as Hyatt, were

standing in the parking lot below her window. One of
A. The prosecution's case
the Hispanic men, who Tinsley identified at trial as

Delgado, and Hyatt were facing off against each
On January 11, 2012, Delgado, Joseph Correa and
other, each of them in a fighting stance. Hyatt loudly
Ralph Ojeda were charged by amended information
asked Delgado, "What's up, motherfucker?"
with one count of murder (victim Michael Hazard) (
According to Tinsley, Hyatt had his fists up, but she
187, count 1) and one count of attempted murder
did not see any weapons in his hands. Delgado pulled
(victim Hamilton Hyatt) ( 187, 189, 664, count 2).3
out a knife, at which point Hyatt took three steps

backward, before he turned and ran toward a carport.
In connection with count 1, the information specially
Delgado, still holding the knife, and another of the
alleged that Delgado personally used a deadly
Hispanic men chased after him.
weapon ( 12022, subd. (b)(1)), and further alleged

that he had suffered one prior strike conviction (
__________________________________________________________________________________________
Page 15 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
About 10 seconds later, Tinsley saw Hazard run into
When Duran said she was calling the police, Hyatt left
the carport and try to kick the second Hispanic man in
and walked the two blocks to his sister Chanice's
the stomach. The second man grabbed Hazard's foot,
apartment, where he spent the night. About an hour
and Hazard fell to the ground. Delgado stabbed
later, Hazard, along with a few other friends, joined
Hazard in the neck as he tried to get up. Hazard
him.
made it to his feet, holding his neck, and Tinsley could

see blood. Hazard went back to his vehicle and drove
On the following day, April 26, at approximately 10:00
away.
a.m., Hyatt, Hazard, and two other friends, Dwayne

Young and Gerald Greene, got up and went to pick up
2. Hyatt's testimony
their friend Greg Thompson, who had been arrested

the prior evening. After picking up Thompson from jail,
Hyatt dated Delgado's sister, Rachel Duran, for nearly
the group went to the residence of Hyatt's cousin,
five years. Hyatt testified that he believed he had a
Jasmine Hazard, to eat.
good relationship with Delgado overall, saying "We

were cool. We were friends."
Meanwhile, Delgado went to Chanice's apartment and

asked to see Hyatt. Delgado seemed agitated and
On the evening of April 25, Hyatt went to a nightclub
spoke harshly to Chanice. Chanice told Delgado that
with Duran and a number of friends to celebrate
Hyatt was not there and asked him to leave, which he
several of their friends' birthdays. Hyatt's cousin,
did.
Hazard, was also at the nightclub.

As they pulled up to Jasmine's place, Hyatt got a
When the club closed, Hyatt and Duran, and some of
telephone call from Satis Chisolm,4 who was staying
their friends, went to the apartment of Hazard's
with Chanice at the time. Chisolm told Hyatt that
girlfriend. At some point, Duran's female cousin went
Delgado had been looking for him at Chanice's
downstairs with one of Hyatt's male friends, and Hyatt
apartment and "he has two--some people with him. I
said, "Dang, that's how you hoes get down?" Duran
seen [sic] people standing by the stairs." Hyatt turned
took offense to this remark and she began to argue
to Hazard and said, "I need to go to my sister's
with Hyatt.
house. Can you take me to my sister's house right

now?" Hyatt, Hazard, Young, Greene, and Thompson
During the argument, Hyatt revealed he had been
all drove to Chanice's apartment in Hazard's Ford
"messing with another girl and she might be
Explorer. Hyatt believed that Delgado wanted to fight
pregnant." Duran slapped Hyatt, "she just flashed on
him because of the argument he had gotten into with
me when I told her that, and she started slapping me
Duran the night before.
and shit and throwing stuff at me," but "I never

touched her, not once." He denied hitting Duran.
As Hazard parked his vehicle, Hyatt saw Delgado
Duran was crying and left, but Hyatt denied following
standing in the parking lot. Hyatt got out of Hazard's
her into the laundry room, shoving her against the
car and quickly walked toward Delgado. Hyatt was
wall and choking her. Hyatt admitted he shook up a
not armed and had no weapons in his possession.
can of beer and sprayed it on her dress, however.
His friends got out of the Explorer and were standing
__________________________________________________________________________________________
Page 16 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
nearby. Hyatt asked Delgado, "What the fuck you
back. He saw Hazard "coming off the ground," as if he
doing at my sister's house? What's up? What you
had slipped and was getting up. Delgado, Correa and
doing at my--my sister's house?" [Sic.] He thought
the "third friend" were in a circle around Hazard in the
that his hands were "probably closed into a fist, into a
carport, but "backing up, looking confused." He saw
ball, but they were still down, like, at my side."
Hazard run off towards his car, but he did not see that
Delgado said, "I'm here to fight you," and asked if
Hazard was injured.
Hyatt and his friends were going to "jump" him. Hyatt

suggested they go to a parking lot next door because
Hyatt was then joined by Young, who came running
he did not want to fight Delgado outside his sister's
out with a glass bottle. Hyatt tried to take the bottle,
house.
so he could use it to defend himself. Delgado, Correa

and the other man started running off, and Young
Delgado looked around, and asked Hyatt, "Why did
threw the bottle at them. Hyatt said Delgado called
you hit my sister?" When Hyatt denied hitting Duran,
out as they ran out of the parking lot, "I'm going to
Delgado "started getting real, real red. And . . . then
come back and blast you."
he reached behind him and pulled a knife5 out, was,

like, 'This is how I'm--this how we get down.'" [Sic.]
Hyatt learned that Hazard had been stabbed in the

melee. He and his friends started toward the hospital,
Hyatt backed away and ran around Hazard's vehicle
but saw that Hazard had crashed his car a short
which was parked nearby. He told Delgado, "Just put
distance away. Hazard was unconscious. The
the knife down. If--if all you're here to do is fight, we
paramedics arrived and pronounced Hazard dead at
can fight, but just put that knife down." Delgado did
the scene.
not drop the knife and kept walking toward Hyatt.

Meanwhile, a second Hispanic man, whom Hyatt did
As Hyatt started to walk back to the apartment
not recognize, approached. The man was not armed,
complex, he got a call from Duran. He told her, "Your
but his fists were clenched. Hyatt asked who he was,
brother just stabbed my cousin in the neck. So I'm
but the man just smiled at him "with a mean look on
going to kill you." He admitted that he was very angry
his face," and kept approaching.
at the time, and was speaking in the "heat of the

moment." Delgado also called Hyatt and Hyatt said he
Hyatt then noticed Correa running across the parking
"sounded kind of, like, in--like, in shock, like, surprise,
lot towards him with a knife. Delgado jumped over the
like, anxious." Hyatt believed he also threatened
hood of Hazard's vehicle and began chasing Hyatt,
Delgado's life during that conversation. Finally, Robert
who ran past the second, unarmed man who stepped
Rudolph, a friend of Delgado's, called Hyatt. Hyatt
aside and let him pass. Delgado and the other two
told Rudolph he was going to come over to his house
men then chased Hyatt through the carport toward his
and kill him and his family.
friends. Hyatt heard Delgado say, "Grab him. Get

him." As Hyatt reached the end of the carport, he saw
Hyatt was arrested and spoke to police later that
Hazard come "the other way kicking, like a ninja kick,
night. Prior to Delgado's trial, he pleaded guilty to
a karate kick in the air." Hyatt heard the kick land
making criminal threats to Duran and Rudolph.
"successfully or something," and stopped to look

__________________________________________________________________________________________
Page 17 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Hyatt further admitted having two prior convictions for
Young grabbed an empty vodka bottle and ran
assault with a deadly weapon other than a firearm
downstairs toward Delgado and his compatriots. As
and one conviction for grand theft from a person. One
he approached, Young said, "You stabbed Michael in
of the assaults was committed in conjunction with
the neck." Delgado said, "Whoa, whoa, whoa . . . .
Hazard.
Relax," before turning to Hyatt and saying "I'm going

to come back and blast you." Delgado and the others
3. Duran's testimony
turned and ran off. Young threw the vodka bottle at

the ground, where it shattered.
Duran claimed that Hyatt was angry all night at the

party. When they began to argue, Hyatt cornered her,
Greene said to Hyatt and Young, "Come on. We got
pushed her against a wall and choked her. Duran was
to go. We got to go. Michael just got stabbed." Young,
able to push him away, but he followed her into the
Hyatt, and Greene began running along Parkmoor
laundry room, where he again pushed and choked
Avenue towards a nearby hospital. They then saw
her. When her cousin, Christina Griffith, came into the
Hazard's vehicle, which had crashed in a parking lot.
laundry room, Duran was able to get away from Hyatt.
Hazard was collapsed over the steering wheel,
6 Hyatt followed her, then pushed her down onto a
bleeding profusely. When Hyatt tried to open the
couch, and poured beer all over her. After this, she
driver's side door, fire department personnel stopped
left the apartment and called the police. Duran also
him.
texted Delgado about what Hyatt had done to her,

and when she spoke to him later that morning,
5. Thompson's testimony
Delgado was very upset.7

Thompson testified that when Hyatt received the call
4. Young's testimony
informing him Delgado was looking for him, he

appeared a "little upset." Hyatt said he wanted the
Young testified that when Hyatt received the call
others to come along with him "in case something
telling him Delgado was looking for him, Hyatt yelled,
happened." On cross-examination, Thompson said
"They're at my sister's house. They're at my sister's
he, Hyatt and the others jumped out of Hazard's
house. Let's go. Let's go." Along with Hyatt, Hazard
Explorer when they got to Chanice's apartment
and Greene, Young jumped into Hazard's Explorer to
complex. Hyatt approached Delgado at a "fast-paced
drive to Chanice's apartment. Young said Hyatt was
walk." Hazard told Thompson and Greene to stay
angry, saying "somebody was over there
back so they did. Young went upstairs towards
disrespecting her or her house."
Chanice's apartment. Thompson saw Hazard go over

towards Hyatt and Delgado. He heard someone "talk
After they arrived, Young went up to the balcony of
about getting jumped," then saw Hyatt running.
Chanice's apartment, overlooking the scene. He saw

Hazard running toward his vehicle, bleeding and
During the altercation, Thompson did not see
holding his neck. Hazard said, "I got hit. I got hit."
Delgado stab Hazard. He heard Hazard yell and tell

everyone they needed to go because he had been
stabbed in the neck. Thompson ran with him back to
__________________________________________________________________________________________
Page 18 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Hazard's Explorer. Hazard began driving toward a
evidence. On tape, Delgado told Correa and Ojeda
nearby hospital, and "went through two red lights"
that he "can't be telling on you guys" and would say, "I
while Thompson tried to find something to put on
went there on my own." Ojeda confessed to Delgado
Hazard's neck. Hazard had difficulty breathing and
that he had already admitted to police that he was
began to lose consciousness. He passed out and the
there. Delgado responded, "I can't believe you told
vehicle swerved into a parked car.
them you were there asshole," and Correa said,

"They didn't know you were there fool." Delgado also
6. Autopsy
said to Correa, "I guarantee you won't get more than

five" and advised that he should "just stick to the
On April 27, 2009, Dr. Michelle Jorden performed an
script that you weren't there." He also claimed that the
autopsy on Hazard's body. Dr. Jorden found a stab
"fucking myates are not going to fucking testify and if
wound at the base of Hazard's neck which pierced the
they do fool you already know it's going to be fucking
right lung and the superior vena cava, a major vein.
mob fool."
The single stab wound caused massive internal

bleeding, resulting in Hazard's death. Dr. Jorden
B. Defense case
testified that a steak knife8 such as the one described

by Hyatt and other witnesses could have caused
1. Delgado's testimony
Hazard's wound.
Delgado testified he woke up on April 26 and saw he
7. Investigation and arrest
had missed numerous calls and text messages from

his sister, Duran. When he called her, she told him
After speaking to witnesses, police learned that
that Hyatt had "choked her, pushed her, poured beer
Delgado and Correa were involved in the stabbing,
on her, [and] cussed her out." This made Delgado feel
along with an unidentified third man. On April 27,
guilty for not going to the party the night before to
police pulled over Ojeda for a traffic violation and
protect his sister, and it also made him angry at Hyatt.
ended up searching Ojeda's apartment. The
Delgado told Duran he would talk to Hyatt and tell him
searching officers saw Delgado and Correa at Ojeda's
not to bother her anymore. Duran told him to leave it
home, but did not yet know they were wanted for
alone and not go, but Delgado decided he would
questioning in connection with the stabbing. When the
confront Hyatt anyway.
connection was made, officers went back to Ojeda's

home and arrested Delgado and Correa. When police
Delgado asked codefendants Correa and Ojeda to
questioned Ojeda, he admitted he was present during
accompany him to Chanice's apartment. When they
the stabbing whereupon he was arrested as well.
arrived, Correa asked Delgado if he wanted him to go

to the apartment with him. Delgado replied, "No. It's
After all three defendants were taken back to the
cool. I'm just going to talk to him." However, Correa
station, they were placed into a holding cell together
handed Delgado a knife telling him he should take it,
and their audio monitored and recorded. Excerpts of
"just in case."
those recordings were played to the jury and

transcripts of those excerpts were admitted into
__________________________________________________________________________________________
Page 19 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Delgado went to Chanice's apartment, but she told
reacted by swinging the knife toward the "big blur"
him Hyatt was not there. He overheard Chisolm call
that had kicked him. When Delgado looked down, he
Hyatt and kind of yell that Delgado was there to "talk
saw that Hazard had fallen to the ground, but Hazard
to" him. Delgado thought it "seemed weird" and
quickly jumped up and ran away.
started to leave. He told the women he would come

back later. Chanice was being "disrespectful," telling
2. Chisolm's testimony
him to "[g]et the fuck away from my house." He told

Correa and Ojeda that Chanice was "tripping," and all
Chisolm testified Hyatt looked angry when he jumped
three men started to walk off.
out of the car to confront Delgado. She heard

Delgado ask if Hyatt's friends were going to "jump"
As they were still in the apartment complex's parking
him and looked scared. Hyatt said something to the
lot, however, Chanice came out on the balcony of her
effect of, "My boys are here too." She saw Delgado
apartment and called out, "[Hyatt]'s here. What's up
pull out a knife and make jabbing or flinching
now, motherfucker?" Delgado saw Hyatt pull up in the
movements with it towards Hyatt. As Hyatt turned and
Explorer with several other men. They jumped out of
ran, Chisolm heard Delgado say, "What's up, fool?
the vehicle and ran towards him. Hyatt angrily said,
Why are you running?"
"What's up, motherfucker? You want to come to my

sister's house and disrespect? I'm a kill you, cuz. I'm
Chisolm said Hazard "came out of nowhere" and
a kill you." [Sic.] Delgado was frightened, backed
jumped into the air, performing a flying kick. He was in
away from Hyatt and said he just wanted to talk. Hyatt
the air when he got stabbed by Delgado's knife. She
and the others continued to advance on him, so
saw Hazard fall to the ground. He got up holding his
Delgado pulled out his knife and waved it around to
neck and ran to his car along with Thompson.
keep them away. He did not intend to stab anyone

with it.
3. Rudolph's testimony
Delgado asked Hyatt why he attacked Duran the night
Delgado called Rudolph that afternoon and, during
before. Hyatt responded, "I didn't do shit to that bitch.
that conversation, Rudolph told him Hazard was
She's a lying ass ho." [Sic.] Delgado got angry that
dead. Delgado seemed surprised by the news, and
Hyatt had called his sister a "bitch" and a "ho," so he
was crying. Based on other sounds he could hear,
"ran at" Hyatt. He was not intending to stab Hyatt, but
Rudolph also thought Delgado was vomiting.
the knife was still in his hand as he chased him.

Delgado had just caught Hyatt by the shirt when
4. Correa's testimony
suddenly someone punched Delgado in the back of

the head.
Correa also took the stand on his own behalf. He

testified that he and Ojeda did not go with Delgado to
Delgado let go of Hyatt and turned around. He saw an
Chanice's apartment, but waited in the car for five or
African-American man, who he did not recognize,
seven minutes first. He thought to himself that it was
holding what appeared to be a small baseball bat.
a mistake to let Delgado go by himself, so he and
Someone then kicked Delgado in the left hip and he
Ojeda \got out and went to find Delgado. Correa saw
__________________________________________________________________________________________
Page 20 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
him walking down some stairs and Delgado told him
police shortly after the incident, however, Patel said
Hyatt was not there. Delgado said they should go
that, none of the Hispanic men continued to attack the
because Hyatt's sister was "acting funny." Correa
African-American man after he was knocked to the
continued walking back to the car, even though
ground. Instead, they ran off.
Delgado and Ojeda turned back when they heard a

girl yelling. Correa heard someone yell his name, so
C. Verdict and sentencing
he ran back towards the apartments.

On March 26, 2012, Delgado was acquitted of murder
Correa saw Delgado had grabbed Hyatt by his collar
and attempted murder, but the jury found him guilty of
when someone came at Correa "pretty fast," and he
the lesser included offenses of voluntary
was hit in the stomach9 and the eye. Someone tried
manslaughter ( 192, subd. (a), count 1) and assault
to grab Correa and he pushed that person away.
with a deadly weapon ( 245, count 2), respectively.
Correa saw someone else running behind him, and
11 The jury further found true the allegation that
he turned because he thought he was getting
Delgado personally used a deadly weapon in the
attacked again. Correa also saw a man holding a
commission of count 1. In a bifurcated proceeding,
bottle. Delgado began to back away from Hyatt, and
the trial court found true the allegations that Delgado
Correa said they should go. Correa, Delgado and
suffered one prior strike conviction ( 667, subds.
Ojeda ran through the parking lot back to the car.
(b)-(i), 1170.12), and one prior serious felony

conviction ( 667, subd. (a)).
When they got back in the car, Delgado "sounded

panicked and said, 'I think I stabbed somebody.'" At
On November 9, 2012, the trial court sentenced
Ojeda's house later that day, they learned that Hazard
Delgado to prison for a total determinate term of 12
had died. Correa described Delgado as being upset:
years, consisting of: (1) the mitigated term of three
"[he was] crying, throwing up, [and had] wrapped
years on count 1, doubled to six years under section
himself in a blanket."
667, subdivision (e); (2) a concurrent mitigated term

of two years on count 2, doubled to four years under
5. Mayur Patel's testimony
section 667, subdivision (e); (3) a consecutive term of

one year for the personal use finding; and (4) a
Patel lived at the apartment complex where the fight
consecutive term of five years for the prior serious
occurred. He was coming down from his apartment
conviction finding.
on the third floor when he heard a fight. Patel saw two

Hispanic men arguing with an African-American male.
II. Discussion
10 He saw the African-American man swing at one of

the Hispanic men, but the Hispanic man hit the
A. There was no instructional error
African-American man in the jaw, knocking him to the

ground. At trial, Patel testified the Hispanic man put
1. CALCRIM No. 3471
the African-American man in a choke hold while he

was on the ground, and then the African-American
Delgado contends the trial court incorrectly instructed
man got up holding his neck. When interviewed by
the jury on self-defense thus violating his state and
__________________________________________________________________________________________
Page 21 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
federal constitutional rights to due process and a fair
trial. Specifically, he argues the jury was improperly
CALCRIM No. 3471 traces its roots to People v.
instructed with CALCRIM No. 3471 to the effect that,
Hecker (1895) 109 Cal. 451, which provides that
if the jury found Hazard suddenly escalated the fight
where "one is making a felonious assault upon
using deadly force, Delgado could only act in self-
another, or has created appearances justifying that
defense if he was unable to withdraw from the fight.
other in making a deadly counter attack in self-
Instead, the trial court should have modified the
defense, the original assailant cannot slay his
instruction to make clear that Delgado could act in
adversary and avail himself of the plea unless he has
self-defense only if he could not withdraw in safety
first and in good faith declined further combat, and
from the fray. As discussed below, this contention was
has fairly notified him that he has abandoned the
forfeited by Delgado's failure to object to the
contest." (Id. at p. 463.)
instruction given or request that it be modified.

Further, even if he could maintain this claim of error,
Hecker further creates an exception to the foregoing
we find it is without merit.
rule. A party who initiated a nonfelonious simple

assault may use deadly force in self-defense if (1) the
The trial court instructed the jury pursuant to
victim counterattacked using deadly force; (2) the
CALCRIM No. 3471 on an initial aggressor's right to
counterattack was so sudden and perilous that there
self-defense: "A person who engages in mutual
was no opportunity for the initial aggressor to decline,
combat or who starts a fight has a right to self-
or make known his willingness to decline, further
defense only if: [] 1. He actually and in good faith
fighting; and (3) the initial aggressor could not "retreat
tried to stop fighting; and [] 2. Indicated, by word or
with safety." (People v. Hecker, supra, 109 Cal. at p.
by conduct, to his opponent, in a way that a
464.)
reasonable person would understand, that he . . .

wanted to stop fighting and that he had stopped
Delgado seizes on the use of the phrase "retreat with
fighting; and [] 3. He gave his opponent a chance to
safety" in Hecker and subsequent cases, such as
stop fighting. [] If the defendant meets these
People v. Gleghorn (1987) 193 Cal.App.3d 196
requirements, he then . . . had a right to self-defense
(Gleghorn), in support of his argument that it is not
if the opponent continued to fight. [] However, . . . if
enough to be able to withdraw from combat, but that a
the defendant used only nondeadly force and the
defendant must be able to withdraw safely. However,
opponent responded with such sudden and deadly
these cases, along with others discussing this
force that the defendant could not withdraw from the
concept, use both terms, i.e., "withdraw" and "retreat
fight, then the defendant had the right to defend
with safety," interchangeably.
himself with deadly force and was not required to stop

fighting or communicate the desire to stop to the
In Hecker, before using the phrase "retreat with
opponent or give the opponent a chance to stop
safety," the California Supreme Court stated, as
fighting. [] A fight is mutual when it began or
follows: "The defendant was entitled to have the jury
continued by . . . mutual consent or agreement. That
instructed that even if he was in the act of committing
agreement may be expressly stated or implied and
a forcible trespass in endeavoring to take the horse, if
must occur before the claim of self-defense arose."
his act amounted to no more than a trespass, [victim]
__________________________________________________________________________________________
Page 22 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
was not justified in trying to kill him, if he did try, in
In People v. Quach (2004) 116 Cal.App.4th 294, the
attempting to prevent it. And if, under these
court quotes the "retreat with safety" language from
circumstances, [victim] did make the first felonious
Hecker, then subsequently quotes the "cannot
assault upon defendant, defendant in turn would be
withdraw" language from Sawyer. (Id. at p. 302.)
justified in killing [victim] if the circumstances of

[victim's] felonious assault were sufficient to excite
What these cases illustrate is that the concept of self-
defendant's fears as a reasonable man that he was in
defense at issue here, i.e., the circumstances in
danger of death or great bodily injury, and he acted
which a nonfelonious assailant may defend himself
under these fears alone, and had in good faith
with deadly force, is adequately conveyed by
declined further struggle before firing the fatal shot, or
CALCRIM No. 3471 as given by the trial court. That
was put in such sudden jeopardy by the acts of
instruction accurately reflects the language used not
deceased that he could not withdraw, and if it was
just in Hecker, but in every subsequent case
thus that [victim] met his death." (People v. Hecker,
addressing that defense.
supra, 109 Cal. at p. 461, italics added.)

2. Delgado failed to object and has forfeited the
In Gleghorn, the court posits the rule as follows:
argument
"[W]hen the victim of simple assault responds in a

sudden and deadly counterassault, the original
Because Delgado did not object to this instruction at
aggressor need not attempt to withdraw and may use
trial, or request that it be modified in any way, he has
reasonably necessary force in self-
forfeited the argument. As discussed above,
defense." (Gleghorn, supra, 193 Cal.App.3d at p.
CALCRIM No. 3471 is a correct statement of the law.
201.)
"To the extent the instruction was incomplete,

defendant may not be now heard to complain
In People v. Sawyer (1967) 256 Cal.App.2d 66, the
because he did not request clarifying language. '[A]
Court of Appeal approved the following instruction:
party may not complain on appeal that an instruction
"'Where a person seeks or induces a quarrel which
correct in law and responsive to the evidence was too
leads to the necessity in his own defense of using
general or incomplete unless the party has requested
force against his adversary, the right to stand his
appropriate clarifying or amplifying
ground and thus defend himself is not immediately
language.'" (People v. Jones (2013) 57 Cal.4th 899,
available to him, but, instead he first must decline to
969.) "The trial court cannot reasonably be expected
carry on the affray, must honestly endeavor to escape
to attempt to revise or improve accepted and correct
from it, and must fairly and clearly inform his
jury instructions absent some request from
adversary of his desire for peace and of his
counsel." (People v. Wolcott (1983) 34 Cal.3d 92,
abandonment of the contest unless the attack is so
108-109.)
sudden and perilous that he cannot withdraw. Only

when he has done so will the law justify him in
3. No reasonable likelihood the instruction was
thereafter standing his ground and using force upon
misapplied
his antagonist.'" (Id. at p. 75, fn. 2.)

__________________________________________________________________________________________
Page 23 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Even assuming Delgado did not forfeit this argument,
without harm. There is no reasonable likelihood that
we reject it on the merits as well. There is no
jurors would construe the instruction to deny the right
reasonable likelihood a jury would apply the
to self-defense to a nonfelonious initial aggressor so
instruction in the way Delgado contends.
long as he had the option of running away, even if his

retreat left him vulnerable to a deadly counterattack.
"When we review challenges to a jury instruction as

being incorrect or incomplete, we evaluate the
[]
instructions given as a whole, not in isolation.

[Citation.] 'For ambiguous instructions, the test is
III. Disposition
whether there is a reasonable likelihood that the jury

misunderstood and misapplied the
The judgment is affirmed.
instruction.'" (People v. Rundle (2008) 43 Cal.4th 76,

149, disapproved of on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The concept of withdrawing from a fight in the face of
a sudden, deadly counterattack necessarily implies
that the one seeking to withdraw be able to do so
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 24 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
MINNESOTA
State v. Welle, 2015 Minn. LEXIS 368 (MN Supreme Court 2015)
Key issues:
Innocence, first aggressor; relevance of history of claiming self-defense
Date:
June 24, 2015
Decision:
Following a jury trial in St. Louis County District Court,
replied: "You tell him I'm your father, and I'll take care
respondent Paul Joseph Welle was found guilty of: (1)
of it." A short time later, Anderson and Welle
unintentional second-degree murder, in violation of
exchanged words and a witness overheard Welle say:
Minn. Stat. 609.19, subd. 2(1) (2014); and (2) first-
"You don't threaten me. Nobody threatens me.
degree manslaughter, in violation of Minn. Stat.
Outside now." Anderson left the bar and Welle
609.20(2) (2014), in connection with the death of 60-
followed. About 20 seconds after Anderson and Welle
year-old Dale Anderson. The trial court convicted
walked out of the bar, one of the bar's patrons went
Welle of unintentional second-degree felony murder
outside and saw Anderson lying on the ground
and sentenced him to an executed term of 18 years in
bleeding from the head. Welle fled from the scene.
prison. On appeal, the court of appeals concluded
Anderson was transported to a hospital where he
that the trial court committed reversible error by
later died from a skull fracture.
improperly admitting evidence of other crimes. We

reverse the court of appeals.
After fleeing the scene, Welle called his wife, G.W.,

and asked her to pick him up, which she did. At some
Evidence at trial established the following facts. On
point, Welle told G.W. about the incident with
November 6, 2011, around 12:30 a.m., Dale
Anderson, explaining that Anderson hit him first and
Anderson and his brother went to the Powerhouse
that he punched Anderson in self-defense. G.W. told
Bar in Proctor. While there, Anderson and his brother
Welle to call the police and explain that he was
met and socialized with three women in their early
defending himself when he hit Anderson. Welle
20s: L.B., E.H., and K.H. Later that night, 32-year-old
eventually called 911 and indicated that he had been
Welle and his friend M.W. arrived at the Powerhouse
involved in an altercation outside the Powerhouse Bar
Bar. Welle and M.W. also socialized with L.B., E.H.,
in which he hit a man in self-defense. Later that night,
and K.H. At some point, Welle danced with K.H., who
the police met with Welle and G.W. to discuss the
was intoxicated. After K.H. returned from the dance
incident. During this meeting, Welle told the police
floor, Anderson asked E.H. if Welle was bothering
that he and M.W. were talking to L.B., E.H., and K.H.
them. E.H. responded: "He's not bothering me. He
when Anderson told him: "You better stop it right now
might be bothering her," referring to K.H. Anderson

or I'm going to take you outside and destroy you."
__________________________________________________________________________________________
Page 25 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Welle further claimed that he responded by saying:
Anderson died from his injuries on November 9, 2011.
"Show me the way." Welle told the police that, once
The State subsequently charged Welle with
outside, Anderson hit him once in the face and that he
unintentional second-degree felony murder, with the
hit Anderson back in self-defense, which caused
predicate felony being first-degree assault, and first-
Anderson to fall backwards. G.W. corroborated
degree manslaughter, causing death while committing
Welle's story. G.W. told the police that, as she was
fifth-degree assault. Before Welle's trial, the State
pulling up to the bar to pick up Welle, she saw
notified the defense of its intent to offer evidence of
Anderson hit him, and that Welle hit him back. Welle,
three previous assaults and two incidents of domestic
who did not have any noticeable injuries, received a
assault committed by Welle. The defense opposed
ticket for misdemeanor assault and was informed that
the State's notice, and provided notice of its intent to
the charges could be upgraded depending on
raise a self-defense claim. After a hearing on the
Anderson's medical condition. The next day, G.W.
motion, the trial court granted the State's motion as to
called the police and told them that she had lied about
the three assaults, but denied the motion as to the
what she had seen the night before. G.W. explained
two domestic assaults. The court explained that
that she was not present when the altercation took
evidence of the three assaults was admissible to
place between Anderson and Welle, and that Welle
"determin[e] [Welle's] intent" and to respond to
had told her to lie for him.
Welle's self-defense claim by showing "a modus

operandi from prior behavior."
Welle was interviewed on November 8, 2011, by

agents from the Bureau of Criminal Apprehension
At trial, Welle testified in his own defense. He claimed
(BCA). During this interview, Welle added new details
that, while at the Powerhouse Bar, he danced with
about what had occurred leading up to the altercation
one of the three young women whom he had met
with Anderson. According to Welle, before they went
earlier at the bar. Afterward, Anderson approached
outside, Anderson told him that Anderson was "a
him and told him to "leave them girls alone. I'm their
Vietnam Vet" who had killed people. Welle then
father" and "I'm a Vietnam Vet. I kill people."
explained that when they went outside, Anderson
According to Welle, Anderson then grabbed his arm
stepped on his foot and hit him once in the left
and said he would "destroy" him. Welle testified that
shoulder and once in the ribs. Welle responded,
he then followed Anderson outside to "make peace."
hitting Anderson once, which caused Anderson to fall
Once outside, Anderson stepped on Welle's right foot
to the ground. Welle claimed that his wife was there at
and hit him twice, once in the shoulder and once in
the time and that he left with her after the fight
the rib. Welle threw one punch and knocked
because he was drunk and wanted to leave. He also
Anderson down. Welle also testified that his wife was
indicated that his foot had been injured during the
not present during the altercation, explaining: "I told
altercation and claimed that he had seen a doctor for
her to basically lie for me."
the injury. The agents spoke with Welle's wife, who

again indicated that she was not present when the
As noted, the court allowed the State to admit
fight occurred.
evidence of three previous assaults that involved

Welle. The first incident occurred in 2001 and
involved Welle and M.H., a coworker at a restaurant
__________________________________________________________________________________________
Page 26 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
where Welle worked. One night, Welle called M.H. at
similarities between the three incidents and the
work and commented that M.H.'s girlfriend was flirting
charged offense. The jury subsequently found Welle
with another individual. In response, M.H. hung up the
guilty of both unintentional second-degree felony
phone. Welle called back, the two exchanged words,
murder and first-degree manslaughter. In his appeal
and Welle said that he would be waiting when M.H.
to the court of appeals, Welle claimed, among other
got off work. Welle met M.H. outside the restaurant
things, that the admission of evidence relating to the
and punched him, causing M.H.'s tooth to go through
three previous assaults constituted impermissible
M.H.'s lip. During the police investigation of this
character evidence. In a published decision, the court
incident, Welle, who had no visible signs of injury,
of appeals reversed and remanded for a new trial.
claimed that M.H. pushed him first and that he hit
See State v. Welle, 847 N.W.2d 52 (Minn. App. 2014).
M.H. in self-defense. Welle was criminally charged
The court of appeals concluded that the [district court
and ultimately pled guilty to disorderly conduct.
abused its discretion because "that evidence did not

tend to disprove the elements of self-defense and it
The second incident occurred in 2003 and involved
unfairly prejudiced the defense." Id. at 55.
A.R., Welle's neighbor. As A.R. and Welle were in the

living room at Welle's residence, an argument
I.
ensued, and Welle shoved A.R. against the couch.

A.R. grabbed an empty beer bottle and Welle
The issue before us is whether Welle's pattern of
grabbed a kitchen knife. After a tussle in the living
asserting self-defense after being the aggressor in an
room, Welle punched A.R. in the face. Following the
altercation is relevant for purposes of disproving the
altercation, Welle claimed that he had acted in self-
elements of self-defense. The State sought to
defense because A.R. had threatened to kill Welle's
introduce evidence, through the admission of
family and hit him with the beer bottle. According to
evidence of Welle's prior bad acts, that Welle has a
the detective assigned to the case, Welle showed no
pattern of shifting blame and falsely asserting self-
visible signs of injury. Welle eventually pled guilty to
defense after being the aggressor in an altercation.
gross misdemeanor assault.
We have referred to this type of evidence as Spreigl

evidence,1 which is inadmissible to prove a
The third incident took place in 2002 and involved
defendant's bad character, but may be admitted for
D.L., a mechanic who was living in Welle's mother's
other purposes, such as to show motive, intent,
home. One evening, Welle asked D.L. to change the
absence of mistake, identity, or a common scheme or
oil in his car. After D.L. refused, Welle punched him,
plan. Minn. R. Evid. 404(b). Such evidence cannot be
breaking D.L.'s eye-socket. Welle initially denied
admitted unless:
assaulting D.L., but later admitted that he punched

D.L. because D.L. had made a disparaging remark.
(1) the prosecutor gives notice of its intent to
Welle did not claim self-defense in this instance and
admit the evidence consistent with the rules of
pled guilty to third-degree assault.
criminal procedure; (2) the prosecutor clearly

indicates what the evidence will be offered to
In admitting evidence of the three assaults, the trial
prove; (3) the other crime, wrong, or act and the
court explained that there were "indisputable"
participation in it by a relevant person are
__________________________________________________________________________________________
Page 27 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
proven by clear and convincing evidence; (4) the
self-defense. Id. at 227. On Robinson's appeal, we
evidence is relevant to the prosecutor's case;
held that the trial court did not abuse its discretion
and (5) the probative value of the evidence is
because "the evidence shows a pattern of operation."
not outweighed by its potential for unfair
Id. Here, evidence of Welle's pattern of shifting blame
prejudice to the defendant.
and falsely asserting self-defense after being the

aggressor in an altercation is relevant to at least one
Id.
of the self-defense elements.2 See Minn. R. Evid. 401

(defining relevant evidence as "having any tendency
We first address the issue of whether the evidence of
to make the existence of any fact that is of
other crimes, wrongs, or acts introduced by the State
consequence to the determination of the action more
was relevant. As the court of appeals noted, the State
probable or less probable"). More specifically, Welle's
offered the evidence of other crimes, wrongs, or acts
past conduct had a tendency to make more or less
not to establish that Welle struck Anderson, but to
probable the fact that Welle had an actual and honest
establish a modus operandi and to counter Welle's
belief of danger of death or great bodily harm.
self-defense claim. The court of appeals then
Therefore, we conclude that evidence of Welle's
emphasized that after the defense had met its initial
pattern of shifting blame and falsely asserting self-
burden of producing evidence to support Welle's self-
defense is relevant to one or more of the elements of
defense claim, the burden shifted to the State to
Welle's self-defense claim.
disprove the elements of self-defense beyond a

reasonable doubt. After listing the elements of self-
II.
defense--(1) the absence of aggression or

provocation on the part of the defendant; (2) the
The remaining issue is whether the trial court
defendant's actual and honest belief of danger of
committed reversible error when it admitted the
death or great bodily harm; (3) reasonable grounds
previous incidents of assault. That is to say, was the
for that belief; and (4) the absence of a reasonable
Spreigl evidence admitted for any proper purpose and
possibility of retreat--the court of appeals summarily
was its probative value outweighed by its potential for
concluded that the "proffered Spreigl evidence was
unfair prejudice? See Minn. R. Evid. 404(b). We
not relevant to the issue of self-defense." Welle, 847
review a trial court's decision to admit evidence of
N.W.2d at 59. We disagree.
other crimes, wrongs, or acts for an abuse of

discretion. State v. Blom, 682 N.W.2d 578, 611 (Minn.
In State v. Robinson, we concluded that evidence of
2004) (citing State v. Kennedy, 585 N.W.2d 385, 389
other crimes, wrongs, or acts offered to establish a
(Minn. 1998)).
modus operandi of asserting self-defense was

relevant. 427 N.W.2d 217, 227 (Minn. 1988). In
Here, the trial court determined that the previous
Robinson, the defendant stabbed the victim, but
incidents were "markedly similar" to the charged
claimed that he did so in self-defense. Id. at 221-22.
offense such that they established a common scheme
At Robinson's trial, the trial court permitted the State
or plan. "[I]n determining whether a bad act is
to offer evidence that Robinson had previously
admissible under the common scheme or plan
stabbed another man and claimed that he did so in
exception, it must have a marked similarity in modus
__________________________________________________________________________________________
Page 28 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
operandi to the charged offense." State v. Ness, 707
Nevertheless, even if relevant, the probative value of
N.W.2d 676, 688 (Minn. 2006). The State contends
other crimes, wrongs, or acts evidence must not be
that the three previous assaults were "markedly
outweighed by its potential for unfair prejudice. State
similar" to the charged offense in this case. The State
v. Clark, 738 N.W.2d 316, 347 (Minn. 2007). We have
particularly relies on the trial court's finding, which
said that "prejudice" "does not mean the damage to
explained:
the opponent's case that results from the legitimate

probative force of the evidence; rather, it refers to the
The similarities between the three non-domestic
unfair advantage that results from the capacity of the
convictions is that Defendant, either unprovoked
evidence to persuade by illegitimate means." State v.
or provoked by words taken to be slights,
Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985)
assaulted the victim and then falsely claimed the
(citation omitted) (internal quotation marks omitted).
assault to be in self-defense or placed blame on
Welle argues that the probative value of the evidence
his victim. The prosecution characterizes this
relating to the 2001 incident was outweighed by its
behavior as a pattern displaying "a modus
potential for unfair prejudice because the evidence
operandi of intractable vengeance." They strongly
showed a general propensity or disposition to commit
relate to the current situation, because Defendant
the type of crime involved. We disagree. The trial
once again assaulted an individual and claimed it
court appears to have carefully weighed the potential
to be in self-defense. The correlation between
for unfair prejudice against the probative value of the
these events is indisputable . . . .
evidence. Moreover, at every juncture before

evidence of the 2001 incident was admitted and
Welle responds that the trial court abused its
during the final jury instructions, the trial court
discretion because the evidence was "not
instructed the jury on how to treat the evidence. We
markedly similar to the charged offense and,
presume that the jury followed these cautionary
therefore, not relevant and material as common-
instructions. See State v. James, 520 N.W.2d 399,
scheme-or-plan evidence."
405 (Minn. 1994). Thus, we conclude that the trial

court did not abuse its discretion in admitting
We begin by examining the 2001 incident in which
evidence of the 2001 incident.
Welle punched M.H. outside of a restaurant, causing

M.H.'s tooth to go through M.H.'s lip. Having reviewed
We next consider the 2003 incident involving Welle
the record in this case, we conclude that Welle's
and A.R., Welle's neighbor. For the same reasons
conduct in the 2001 incident is markedly similar to the
discussed above, we conclude that Welle's conduct in
charged offense because both incidents involved: (1)
the 2003 incident is markedly similar to the charged
Welle initiating contact with a punch to the individual's
offense. Here, both incidents involved: (1) Welle
head; (2) acts that were preceded by some verbal
punching the individual's head; (2) acts that were
disagreement; (3) a disagreement of minor
preceded by some verbal disagreement; (3) a
significance; (4) Welle claiming that he acted in self-
disagreement of minor significance; (4) Welle claiming
defense; and (5) Welle showing no visible signs of
that he acted in self-defense; and (5) Welle showing
injury from the altercation.
no visible signs of injury from the altercation. Similarly,

we conclude that the probative value of the evidence
__________________________________________________________________________________________
Page 29 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
is not outweighed by its potential for unfair prejudice.
importantly, the 2001 and 2003 incidents were both
Therefore, we also conclude that the trial court did not
properly admitted as evidence, which reduced the
abuse its discretion in admitting this evidence.
impact of the admission of the 2002 incident. Second,

witness testimony at Welle's trial established that on
Finally, we consider the 2002 incident between Welle
the night of the altercation Welle and Anderson
and D.L., the mechanic who was living in Welle's
argued, and Welle stated: "You don't threaten me.
mother's home. Here, unlike the 2001 and 2003
Nobody threatens me. Outside now." Third, Welle
incidents, the 2002 incident did not involve Welle
admitted that he asked his wife to lie for him, say that
asserting a self-defense claim. Absent the assertion
she witnessed the altercation, and say that she saw
of a self-defense claim by Welle, we fail to see how
Welle punch Anderson in self-defense. Fourth, Welle
the 2002 incident is relevant to Welle's assertion of
acknowledged to police that Anderson told him: "You
self-defense in this case. Thus, we conclude that the
better stop it now or I'm going to take you outside and
admission of evidence of the 2002 incident was
destroy you." To this statement, Welle responded:
erroneous.
"Show me the way." Therefore, based on the record in

this case, we conclude that the erroneous admission
We will nonetheless affirm the trial court unless Welle
of the 2002 incident was harmless.
can establish that he was prejudiced by the erroneous

admission of the evidence. See State v. Bolte, 530
For the foregoing reasons, we reverse the court of
N.W.2d 191, 198 (Minn. 1995). "[O]ur role is to
appeals.
examine the entire trial record and determine whether

there is a reasonable possibility that the wrongfully
Reversed.
admitted evidence significantly affected the

verdict . . . ." Id. (citation omitted) (internal quotation
marks omitted). Several factors support a conclusion
that, in this case, there was no reasonable possibility
that the admission of evidence relating to the 2002
incident significantly affected the jury's finding that
Welle was not acting in self-defense. First, and most
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 30 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
OHIO
State v. Bradley, 2015 Ohio App. LEXIS 2388 (OH Ct. App. 2015)
Key issues:
Burden of persuasion on the defendant, by a preponderance of the evidence
Self-defense, elements, cumulative
Date:
June 23, 2015
Decision:
Defendant-appellant, Leroi W. Bradley, appeals from
During voir dire, the court noted that each prospective
the judgment of conviction and sentence entered by
juror was a registered voter, and during general
the Franklin County Court of Common Pleas.
questioning, several jurors noted originally living
Because appellant's conviction is not against the
outside of the United States. Juror Mavis Forson
manifest weight of the evidence, and appellant's trial
stated to the court, "I'm from Ghana. I've been here
counsel was not ineffective, we affirm the judgment of
for nine years." (Tr. 37-38.) Juror Chris Joseph stated,
the trial court.
"Moved down from Toronto about 16 years ago." (Tr.

42.) Defense counsel made no further inquiry or
I. BACKGROUND
objection to either statement. Forson ultimately was

selected to serve on the jury, while Joseph was
On January 23, 2014, appellant was indicted for one
selected as the second alternate juror. The plaintiff-
count of attempted murder, in violation of R.C.
appellee, State of Ohio, then produced the following
2923.02 and 2903.02, and one count of felonious
relevant evidence in its case-in-chief.
assault, in violation of R.C. 2903.11, both with a

corresponding firearm specification, as well as one
At trial, the victim of the shooting, Tony Dobson,
count of having a weapon while under disability, in
testified that he first met appellant approximately
violation of R.C. 2923.13. The indictment arose out of
seven or eight months prior to the shooting incident
the shooting of Tony Dobson early in the morning on
when Dobson's daughter, who was eight months
July 26, 2013 on Oakland Park Avenue in Columbus.
pregnant, gave both men a ride in her two-door rental
Appellant entered a plea of not guilty to all charges.
car. During the ride, Dobson sat next to appellant in
The case proceeded to a jury trial on the counts of
the back seat, and Dobson's nephew sat in the front
attempted murder and felonious assault. Appellant
passenger seat. When they arrived at appellant's
voluntarily waived his right to a jury trial on the count
destination, Dobson testified that appellant attempted
of having a weapon while under disability, instead
to exit the vehicle through the driver-side door,
electing for that count to be tried by the judge.
pushing the driver's seat forward in the process.
__________________________________________________________________________________________
Page 31 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Concerned for his daughter's pregnancy, he yelled at
and walked east toward Westerville Road. Dobson
appellant to exit through the passenger-side door.
could see and feel blood on his head, but was still
able to walk.1 As he ran out of the area, Dobson
Appellant exited the passenger-side door, followed by
heard appellant fire another shot at him, but the bullet
Dobson. While out of the car, the men exchanged
did not strike him. Dobson made his way to a nearby
heated words, with appellant allegedly shouting "I'll
fast-food restaurant on Cleveland Avenue, where
whip your ass" and "I'll kick your ass," and Dobson
employees called 911. Medics arrived and transported
responding "Yeah. I got something for you" in
him to a hospital. At the hospital, Dobson was
reference to the pocket knife that he carried. (Tr.
eventually able to track down appellant's street name,
163-64.) At the urging of his daughter and nephew,
"Skee-Bop," and later learned appellant's real name.
Dobson got back in the car. Before they drove away,
Dobson testified that he was "positive, a hundred
Dobson recalled appellant saying "Don't worry. I catch
percent sure" that appellant was the man who shot
your ass later. I'll see your ass later." (Tr. 164.)
him. (Tr. 185.)
Dobson did not know appellant's name at the time.

On cross-examination, Dobson testified that he
Dobson did not see or hear anything about appellant
carried his pocket knife with him "[a]ll the time," but
over the next seven or eight months, until the evening
forgot the knife at home on the evening of the
he was shot. In the hours leading up to the shooting,
shooting. (Tr. 190.) Dobson admitted he had been
Dobson said he attended a barbeque at his parents'
drinking the evening of the shooting and had used
house and then later that night was dropped off
cocaine within the previous few days, but denied
outside of a friend's apartment located in the Oakland
using cocaine the evening of the shooting incident.
Park neighborhood. His friend was not home, so
Dobson also admitted he had been convicted of
Dobson walked around the street to kill time. At
several crimes of violence in the past. Dobson denied
approximately 2:45 a.m., Dobson ran into his friend's
that a confrontation had ensued where Dobson
niece walking with appellant along a dark stretch of
charged appellant with a knife after appellant
Oakland Park Avenue. His friend's niece recognized
allegedly hit him in the head with a gun.
him and then Dobson recalled appellant saying "Who

is that? That's Dopp? That's Dopp? * * * Didn't I tell
Officer Jared Barsotti of the Columbus Division of
you I will see your [sic] again? Remember all that shit
Police testified that he responded to a police dispatch
I was talking last time you was with your daughter?
stating a man had been shot and, upon arriving at the
Told you I'd get your ass." (Tr. 169-70.) Dobson
Cleveland Avenue fast food restaurant location,
testified he recognized appellant as the acquaintance
viewed Dobson lying on the ground with an injury to
of his daughter with whom he had had the altercation
his face. Barsotti said when asked who shot him,
previously, but still did not know his name.
Dobson pointed in a direction and replied that

"somebody had walked up to him and said, 'I told you
According to Dobson, appellant then pulled out a
I was going to get you,' and shot him." (Tr. 217.)
revolver, and the friend's niece pushed appellant and

told him not to shoot. Dobson testified that he put his
Officer Delbert Chapman of the Columbus Division of
hands in the air, but appellant shot him in the head
Police testified to investigating the shooting of
__________________________________________________________________________________________
Page 32 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Dobson. Chapman made contact with Dobson at the
evening of the shooting, but said he was probably
hospital and observed wounds on Dobson's face
asleep. Howe testified that appellant never contended
consistent with a gunshot. Chapman took pictures of
he acted in self-defense.
the wounds and later responded to the scene where

the shooting occurred. On cross-examination,
Also during the conversation, appellant provided
Chapman confirmed that police collected one spent
Howe with an incorrect cell phone number, but Howe
projectile from the shooting scene and also agreed
was eventually able to track down appellant's correct
that he never ruled out that some of Dobson's eye
cell phone number in order to examine his phone
swelling could have been a result of being hit by a
records. Howe determined that appellant's cell phone
gun.
accessed the cell tower located in the general

Oakland Park crime scene vicinity a couple of times
Officer James Howe of the Columbus Division of
prior to the shooting and did not access the tower
Police homicide unit and lead investigator on the
during the actual time of the crime.
Dobson shooting case testified that he was able to

conduct an interview with Dobson after he arrived at
The state admitted several exhibits, including
the hospital. According to Howe, Dobson told him that
Dobson's medical records, the crime scene
a person he knew from a prior incident had shot him
photographs, photographs of Dobson at the hospital,
and that Dobson could find out the shooter's name
a photo array, a rights waiver, and the projectile
from his daughter. Five days later, Howe conducted a
collected from the crime scene. The state then rested
follow-up telephone interview with Dobson in which
its case-in-chief.
Dobson gave Howe appellant's street name and

described the prior car ride altercation in more detail.
The defense stipulated to the issue of identity,
Dobson later contacted police to provide appellant's
admitting that appellant was the person who shot
real name. Howe described recovery of one bullet
Dobson. Appellant then testified on his own behalf
from the scene of the shooting, the police work in
that he acted in self-defense. Appellant stated that, as
canvassing the area for witnesses, and Dobson's
a result of being stabbed during an unrelated incident
positive identification of appellant in a photo line-up.
in 2004 and almost dying from those wounds, he
Howe further testified that police were unable to
carried a gun for protection. According to appellant,
locate the woman who walked with appellant and
when he came across Dobson on Oakland Park
witnessed the shooting.
Avenue, Dobson became belligerent and advanced

toward appellant with a knife. Appellant testified that
Howe also described a taped conversation that he
he stepped back, pulled out a gun, and used the gun
had with appellant a month after the shooting. In this
to hit Dobson on the head, causing Dobson to fall to
conversation, appellant denied shooting Dobson,
the ground. He then fired one shot to try to scare
knowing Dobson or his daughter, being in the area
Dobson away, but Dobson instead "jump[ed] up
the night of the shooting, knowing anyone in the area
immediately" and charged him with the knife. (Tr.
of the shooting, or ever even being in the Oakland
334.) Appellant testified that he aimed the gun toward
Park neighborhood in his life. According to Howe,
Dobson and, in a panic, shot him. Appellant said he
appellant could not identify exactly where he was the

__________________________________________________________________________________________
Page 33 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
saw Dobson fall down and then appellant fled the
served concurrently with the felonious assault
scene.
sentence.
According to appellant, he shot Dobson because he
II. ASSIGNMENTS OF ERROR
feared serious injury to himself. He was particularly

wary of knife fights because of his 2004 stabbing and
Appellant raises the following assignments of error for
particularly wary of Dobson because of his aggressive
our review:
conduct during their prior car altercation which, in

appellant's version of events, included Dobson acting
[I.] The trial court violated Leroi Bradley's rights
belligerent and pulling a knife on him over an
to due process and a fair trial when it entered a
overwhelming need for more beer. Appellant testified
judgment of guilt against him, when that finding
that he had six bullets in his gun, but did not fire them
was against the manifest weight of the evidence.
because he just wanted to get Dobson away from
[II.] Leroi Bradley's attorney provided him with
him. Appellant also explained that he did not tell the
the ineffective assistance of counsel and
police he acted in self-defense because he was afraid
violated his right to due process and a fair trial
that police would charge him with a crime, and he
where defense counsel failed to object to the
generally wanted nothing to do with the police.
impaneling of jurors.
On cross-examination, appellant admitted he was
III. DISCUSSION
intoxicated on the night of the shooting, he had been

previously convicted of dealing cocaine, and he was
A. First Assignment of Error
not supposed to be carrying a weapon. Appellant

confirmed that after shooting Dobson, he went to an
Appellant's first assignment of error asserts that his
after-party where he drank beer and did not call an
convictions were against the manifest weight of the
ambulance or the police. Appellant also admitted that
evidence because appellant proved the affirmative
he repeatedly lied to police throughout the
defense of self-defense by a preponderance of the
investigative process.
evidence. We disagree.
Each party then rested its case. After deliberations,
When presented with a manifest-weight challenge, an
the jury returned a verdict of not guilty on the
appellate court may not merely substitute its view for
attempted murder with specification count and guilty
that of the trier of fact, but must review the entire
on the felonious assault with specification count. The
record, weigh the evidence and all reasonable
judge found appellant guilty of having a weapon while
inferences, consider the credibility of witnesses, and
under disability. A sentencing hearing was held on
determine whether in resolving conflicts in the
September 4, 2014, after which the judge sentenced
evidence, the trier of fact clearly lost its way and
appellant to 4 years of incarceration for the felonious
created such a manifest miscarriage of justice that the
assault charge, plus a consecutive mandatory 3 years
conviction must be reversed and a new trial ordered.
of incarceration for the firearm specification, and 36
State v. Thompkins, 78 Ohio St.3d 380, 387, 1997
months of incarceration for the weapons count to be
Ohio 52, 678 N.E.2d 541 (1997), citing State v.
__________________________________________________________________________________________
Page 34 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485
N.E.3d 600, citing State v. G.G., 10th Dist. No.
N.E.2d 717 (1st Dist.1983). An appellate court should
12AP-188, 2012-Ohio-5902, 7.
reserve reversal of a conviction as being against the

manifest weight of the evidence for only the most
Furthermore, while the state bears the burden of
"'exceptional case in which the evidence weighs
proving the elements of a crime beyond a reasonable
heavily against the conviction.'" Id., quoting Martin at
doubt, it is the defendant who must prove, by a
175. "A conviction is not against the manifest weight
preponderance of the evidence, the affirmative
of the evidence because the trier of fact believed the
defense of self-defense. R.C. 2901.05(A); State v.
state's version of events over the appellant's version."
Martin, 21 Ohio St.3d 91, 94, 21 Ohio B. 386, 488
State v. Klinkner, 10th Dist. No. 13AP-469, 2014-
N.E.2d 166 (1986), aff'd, 480 U.S. 228, 107 S. Ct.
Ohio-2022, 51, appeal not allowed, 140 Ohio St.3d
1098, 94 L. Ed. 2d 267 (1987). To establish self-
1453, 2014-Ohio-4414, 17 N.E.3d 599. See also
defense, a defendant must prove: (1) he was not at
State v. Seals, 2d Dist. No. 04CA0063, 2005-
fault in creating the situation giving rise to the affray,
Ohio-4837, 47-48 (trial court did not lose its way in
(2) he had a bona fide belief that he was in imminent
rejecting claim of self-defense where testimony
danger of death or great bodily harm and his only
conflicted regarding how fight started and jury
means of escape from such danger was the use of
believed the victims' version of events).
such force, and (3) he must not have violated any

duty to retreat or avoid the danger. State v. Robbins,
In conducting a manifest weight of the evidence
58 Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph
review, an appellate court may consider the credibility
two of the syllabus. The elements of self-defense are
of the witnesses. State v. Cattledge, 10th Dist. No.
cumulative, and "[i]f the defendant fails to prove any
10AP-105, 2010-Ohio-4953, 6. However, in
one of these elements * * * he has failed to
conducting such review, "we are guided by the
demonstrate that he acted in self-
presumption that the jury, or the trial court in a bench
defense." (Emphasis sic.) State v. Jackson, 22 Ohio
trial, 'is best able to view the witnesses and observe
St.3d 281, 284, 22 Ohio B. 452, 490 N.E.2d 893
their demeanor, gestures and voice inflections, and
(1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370,
use these observations in weighing the credibility of
94 L. Ed. 2d 686 (1987) . In defending oneself, a
the proffered testimony.'" Id., quoting Seasons Coal
person may only use as much force as is reasonably
Co. v. Cleveland, 10 Ohio St.3d 77, 80, 10 Ohio B.
necessary to repel the attack. Id.; State v. Thomas, 77
408, 461 N.E.2d 1273 (1984). "Accordingly, we afford
Ohio St.3d 323, 329-30, 1997 Ohio 269, 673 N.E.2d
great deference to the jury's determination of witness
1339 (1997).
credibility." State v. Albert, 10th Dist. No. 14AP-30,

2015-Ohio-249, 14. "Mere disagreement over the
To establish his claim of self-defense, appellant relies
credibility of witnesses is not a sufficient reason to
on his own trial testimony. Appellant testified that
reverse a judgment on manifest weight grounds."
Dobson initially approached him belligerently and with
State v. Harris, 10th Dist. No. 13AP-770, 2014 Ohio
a knife drawn, so appellant struck Dobson in the head
App. LEXIS 2431 (June 10, 2014), appeal not
with the gun, causing Dobson to fall to the ground.
allowed, 140 Ohio St.3d 1455, 2014-Ohio-4414, 17
Appellant testified that when Dobson was on the

ground, appellant fired a shot to scare Dobson away,
__________________________________________________________________________________________
Page 35 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
but Dobson instead jumped up and charged at
Dobson's version of events over appellant's version of
appellant with the knife.
events. Based on this record, this is not the

exceptional case in which the evidence weighs
Dobson's testimony contradicted appellant's
heavily against the conviction such that the jury
testimony in most respects. Dobson testified that
clearly lost its way and created such a manifest
appellant referenced the prior car altercation and shot
miscarriage of justice.
him even after Dobson raised his hands to show he

was unarmed. If believed, Dobson's testimony
Accordingly, the jury's rejection of appellant's claim of
established that appellant was at fault in creating the
self-defense was not against the manifest weight of
situation giving rise to the altercation and that
the evidence, and, therefore, appellant's first
appellant did not believe he was in danger but shot at
assignment of error is overruled.
Dobson deliberately over the prior car altercation.

Dobson's consistent statements to police strengthen
[]
the believability of Dobson's version of the incident.

Minutes after being shot, Dobson told responding
Officer Barsotti that "somebody had walked up to him
IV. CONCLUSION
and said, 'I told you I was going to get you,' and shot
him." (Tr. 217.) Since that point, his story has not
Having overruled appellant's two assignments of
waivered. Conversely, appellant's version of events
error, we hereby affirm the judgment of the Franklin
changed dramatically, from claiming to have never
County Court of Common Pleas.
been in the neighborhood in his life to admitting, for

the first time at trial, that he was the person who shot
Dobson. Appellant's testimony that he repeatedly lied
to police and gave a false cell phone number to police
further marred appellant's credibility.
The jury here, in exercising its entitlement to weigh
credibility and resolve conflicts in evidence, believed
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 36 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
PENNSYLVANIA
Commonwealth v. Rankin, 2015 Pa. Super. Unpub. LEXIS 1905 (PA Superior Court 2015)
Key issues:
Proportionality, deadly v. non-deadly force
Innocence, first aggressor, provocation
Avoidance, duty-to-retreat
Date:
June 24, 2015
Decision:
Appellant, Quintelle Rankin, appeals from the
McKeesport, Pennsylvania, to continue their
judgment of sentence entered on November 18,
efforts to purchase marijuana. At approximately
2013, following his conviction by a jury on August 19,
4:00 p.m., they returned to the Brinton Manor
2013, of second-degree murder; robbery, serious
Apartments because they were unsuccessful in
bodily injury; conspiracy; and carrying a firearm
reaching their goal to obtain marijuana. While
without a license. We affirm.
they were still in the car, Mr. McCarthy stated

aloud that it appeared as though there were some
The trial court summarized the facts of the crime as
"licks" in the area. Mr. Estes testified that the term
follows:
"licks" referred to persons who were potential

robbery targets. Mr. McCarthy parked the car and
The convictions in this case are based heavily
the three men began to walk around the area.
on the testimony of Cory Estes. Mr. Estes is the
They soon encountered two other men and asked
nephew of [Appellant,] and he is related to the co-
those men if they could get them marijuana. One
defendant, Eugene McCarthy,1 by marriage. At
of the other men, Brandon Johns, directed Mr.
the time of trial, Mr. Estes was 19 years old. At
Estes, [Appellant] and Mr. McCarthy to follow him
trial, Mr. Estes testified that on August 7, 2012, he
into a building. All four men entered the building.
was at the Brinton Manor Apartments. He met
Mr. Estes testified that Brandon Johns then sat
[Appellant] and Mr. McCarthy around noon that
down on steps and pulled out a scale and large
day. They then left that area together in Mr.
bag of marijuana and discussed cost. The scale
McCarthy's car and proceeded to the Hill District
and marijuana were recovered from the scene. At
area of Pittsburgh attempting to locate someone
that point, Mr. McCarthy attempted to steal the
from whom they could purchase marijuana.
marijuana by grabbing the bag of marijuana and
Having been unsuccessful in their efforts to obtain
telling Brandon Johns that "you might as well give
marijuana, they then left that area and drove to

me all the shit." A few seconds later, [Appellant]
__________________________________________________________________________________________
Page 37 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
pulled out a gun. Brandon Johns then stated "you
can have it all." He then reached with both hands
On November 18, 2013, the trial court sentenced
into his pockets and he pulled out a black
Appellant to a term of life imprisonment for murder, a
handgun. Mr. Estes testified that Mr. McCarthy
consecutive term of five to ten years of imprisonment
and Brandon Johns began to "tussle" over the
for conspiracy, and a consecutive term of
black handgun. Mr. Estes ran up the steps of the
imprisonment of three and one-half to seven years for
building and, as he was running, he heard a
the firearms charge. No further penalty was imposed
gunshot. He testified that he did not know who
for robbery. Appellant filed a post-sentence motion on
fired it. Mr. Estes heard another shot and he
November 27, 2013, and on December 4, 2013, the
observed his uncle, [Appellant], slump over as
trial court granted a thirty-day extension beyond the
though he had been shot. [Appellant] then fired
filing date of the notes of testimony to permit the filing
his weapon at Brandon Johns. Mr. Estes believed
of a supplemental motion, pursuant to Pa.R.Crim.P.
he heard three or four gunshots. A nearby
720(B)(3)(b). Appellant filed a supplemental post-
witness, who was outside of the building, testified
sentence motion on February 25, 2014. The trial court
that he heard approximately six gunshots. In total,
denied both motions on March 14, 2014. Appellant
eight spent cartridges were found at the scene.
then filed a timely notice of appeal on March 24,
Six .40 caliber Smith & Wesson cartridges were
2014. Both the trial court and Appellant complied with
found at the scene and two .380 caliber cartridges
Pa.R.A.P. 1925.
were found. [Appellant] admitted at trial that he

possessed a .40 caliber handgun during the
Appellant raises the following issues on appeal:
incident and he did shoot Brandon Johns. Mr.

Estes testified that immediately after the shooting,
I. Was Quintelle Rankin erroneously convicted
the three men left the scene and Mr. McCarthy
of second degree murder violating his rights
drove [Appellant] to the hospital. Mr. McCarthy
under the U.S. Const. Amend. XIV and PA.
and [Appellant] were subsequently arrested. . . .
Const. Art. 1, 9, insofar as the Commonwealth

failed to prove beyond a reasonable doubt that
Trial testimony also established that Brandon
he did not act in self-defense and in defense of
Johns died from multiple gunshot wounds to his
others?
neck and chest. He was shot seven times. He

was shot twice in the neck. One wound was in the
II. Was Quintelle Rankin erroneously convicted
back of the neck and one was in the front of the
of second degree murder, robbery and
neck. Because of the gunpowder stippling on the
conspiracy to commit robbery violating his rights
skin, trial testimony indicated that these shots had
under the U.S. Const. Amend. XIV and PA.
been fired within four inches of the skin. He was
Const. Art. 1, 9, insofar as the Commonwealth
also shot in the right shoulder, the right upper
failed to prove beyond a reasonable doubt that
back, the right lower chest, the left posterior
he committed or attempted to commit a robbery,
shoulder and the right anterior thigh.
or was an accomplice in the commission of a

robbery, or that he agreed to commit a robbery
Trial Court Opinion, 7/19/14, at 1-3 (emphasis added).
or to aid in the commission of a robbery?
__________________________________________________________________________________________
Page 38 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
(1991). See also Commonwealth v. Harris, 550
Appellant's Brief at 5 (full capitalization omitted).
Pa. 92, 703 A.2d 441, 449 (1997); 18 Pa.C.S.

505.2. Although the defendant has no burden to
Both of Appellant's issues challenge the sufficiency of
prove self-defense, . . . before the defense is
the evidence. In reviewing the sufficiency of the
properly in issue, "there must be some
evidence, we must determine whether the evidence
evidence, from whatever source, to justify such
admitted at trial and all reasonable inferences drawn
a finding." Once the question is properly raised,
therefrom, viewed in the light most favorable to the
"the burden is upon the Commonwealth to
Commonwealth as verdict winner, were sufficient to
prove beyond a reasonable doubt that the
prove every element of the offense beyond a
defendant was not acting in self-defense."
reasonable doubt. Commonwealth v. Diamond, 83 A.
Commonwealth v. Black, 474 Pa. 47, 376 A.2d
3d 119 (Pa. 2013). It is within the province of the fact-
627, 630 (1977). The Commonwealth sustains
finder to determine the weight to be accorded to each
that burden of negation "if it proves any of the
witness's testimony and to believe all, part, or none of
following: that the slayer was not free from fault
the evidence. Commonwealth v. James, 46 A.3d 776
in provoking or continuing the difficulty which
(Pa. Super. 2012). The Commonwealth may sustain
resulted in the slaying; that the slayer did not
its burden of proving every element of the crime by
reasonably believe that he was in imminent
means of wholly circumstantial evidence.
danger of death or great bodily harm, and that it
Commonwealth v. Vogelsong, 90 A.3d 717 (Pa.
was necessary to kill in order to save himself
Super. 2014), appeal denied, 102 A.3d 985 (Pa.
therefrom; or that the slayer violated a duty to
2014). Moreover, as an appellate court, we may not
retreat or avoid the danger." Commonwealth v.
re-weigh the evidence and substitute our judgment for
Burns, 490 Pa. 352, 416 A.2d 506, 507 (1980)
that of the fact-finder. Commonwealth v. Ratsamy,

934 A.2d 1233 (Pa. 2007).
Commonwealth v. Mouzon, 53 A.3d 738, 740-741

(Pa. 2012).
In his first issue, Appellant avers that the

Commonwealth failed to disprove his theory of self-
The Pennsylvania Crimes Code governs self-defense
defense. A claim of self-defense requires evidence
and provides, in relevant part, as follows:
establishing the following three elements:

505. Use of force in self-protection
"(a) that the defendant reasonably believed
(a) Use of
force justifiable for protection of the person.-- The
that he was in imminent danger of death or
use of force upon or toward another person is
serious bodily injury and that it was necessary
justifiable when the actor believes that such force
to use deadly force against the victim to prevent
is immediately necessary for the purpose of
such harm; (b) that the defendant was free from
protecting himself against the use of unlawful force
fault in provoking the difficulty which culminated
by such other person on the present occasion.
in the slaying; and (c) that the defendant did not

violate any duty to retreat." Commonwealth v.
(b) Limitations on justifying necessity for use
Samuel, 527 Pa. 298, 590 A.2d 1245, 1247-48
of force.--
__________________________________________________________________________________________
Page 39 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
off safety, and I fired it." Appellant stated, "I had my
***
eyes closed tight. I'm in panic mode. I'm just firing.

Like uncontrollably." Id. at 1376. Appellant testified
(2) The use of deadly force is not justifiable
that Mr. McCarthy ran outside, and he and Mr. Estes
under this section unless the actor believes
helped Appellant to their automobile and drove him to
that such force is necessary to protect
the hospital. Id. at 1377-1379. En route to the
himself against death, serious bodily injury,
hospital, Appellant claimed that he "threw up all over
kidnapping or sexual intercourse compelled
the gun" so he "just tossed it out the window." Id. at
by force or threat; nor is it justifiable if:
1379.
(i) the actor, with the intent of causing
In rejecting this issue, the trial court stated the
death or serious bodily injury, provoked
following:
the use of force against himself in the

same encounter; or
The jury was free to make credibility

determinations concerning the trial evidence in
(ii) the actor knows that he can avoid
this case. It is clear from the verdict that the jury
the necessity of using such force with
believed the testimony of Mr. Estes. Prior to
complete safety by retreating. . . .
encountering Brandon Johns, Mr. McCarthy

spoke aloud that there were "licks" in the area
18 Pa.C.S. 505(a)-(b); Commonwealth v. Smith, 97
indicating his desire to rob someone. Once
A.3d 782, 786 (Pa. Super. 2014).
[Appellant] and Mr. McCarthy were inside the

building with Brandon Johns, Mr. McCarthy
Appellant asserts that he believed he was in imminent
attempted to steal [the] marijuana by grabbing a
danger of death or serious bodily harm and that it was
bag of marijuana from Brandon Johns. As Mr.
necessary to use deadly force against Brandon Johns
McCarthy attempted to steal the marijuana,
(the "victim") to prevent such harm. Appellant's Brief
[Appellant] brandished his .40 caliber handgun.
at 22. In making this claim, Appellant relies upon his
It is clear from Mr. Estes'[s] testimony that
own version of the events set forth in his trial
Brandon Johns only attempted to pull his gun
testimony, as follows: Appellant stated that as soon as
after [Appellant] had drawn his weapon.
he, Mr. Estes, and Mr. McCarthy entered the building
Although [Appellant] testified that Brandon
as they followed the victim, Mr. McCarthy asked
Johns pulled his weapon first, the jury was free
Appellant if he was going to "pitch in" for the
to discount that testimony as self-serving and
marijuana. N.T. Volume III, 8/5-16/13, at 1375.
believe Mr. Estes. Additionally, the evidence
Appellant responded that he wanted to buy his own.
indicated that Brandon Johns was shot seven
Id. Confusingly, despite claiming that he did not want
times, twice from behind. This evidence is not
to "pitch in," Appellant testified, "I'm going [in] to my
suggestive that [Appellant] was acting in self-
pocket to pull my money out," when "all of a sudden a
defense or the defense of others. Based on the
shot goes off." Id. Appellant claimed that he knew he
evidence adduced at trial, this [c]ourt believes
had been shot, "[s]o I pulled my gun out, and I took it
the Commonwealth adequately demonstrated
__________________________________________________________________________________________
Page 40 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
that [Appellant] and Mr. McCarthy attempted to
body, causing death; jury was free to reject
rob Brandon Johns by force, thereby provoking
defendant's contention that he acted in self-defense).
the events that led to the deadly shooting. This

[c]ourt, therefore, rejects any notion that the
"Likewise, the Commonwealth can negate a self-
evidence was insufficient to disprove that
defense claim by proving the defendant 'used more
[Appellant] acted in self-defense or in the
force than reasonably necessary to protect against
defense of others.
death or serious bodily injury.'" Commonwealth v.

Williams, 91 A.3d 240, 251 (Pa. Super. 2014) (quoting
Trial Court Opinion, 7/19/14, at 6.
Commonwealth v. Truong), 36 A.3d 592, 599 (Pa.

Super. 2012) (en banc)). Here, the victim sustained a
We agree with the trial court. The Commonwealth
total of seven gunshot wounds, fired from a close
presented the testimony of Mr. Estes, Appellant's
range of less than ten centimeters, with at least two
nephew and an eye witness to the shooting, who
shots fired from behind the victim. N.T. Volume 1,
clearly and compellingly established that Appellant:
8/5-16/13, at 78-88. The jury was free to believe this
(1) went along with Mr. McCarthy to steal marijuana
evidence and to conclude it was more force than
from the victim; (2) introduced a firearm into the
necessary to protect Appellant or anyone else. In light
situation; (3) shot the victim multiple times, twice in
of the evidence of record, the Commonwealth
the back; and (4) three of the gunshot wounds were
sustained its burden to disprove self-defense.
inflicted within ten centimeters of the victim's body.

N.T. Volume 1, 8/5-16/13, at 83, 183-184, 190-192,
[]
194-196. Indeed, Mr. Estes testified that Appellant

pulled out his gun before the victim displayed his
Judgment of sentence affirmed.
weapon. Id. at 201. This evidence, which the jury

obviously believed, disproved self-defense. See
Commonwealth v. Jones, 886 A.2d 689 (Pa. Super.
2005) (although defendant alleged that he shot victim
in self-defense, evidence showed that defendant used
deadly force, at close range, on a vital part of victim's
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 41 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
WASHINGTON
State v. Thomas, 2015 Wash. App. LEXIS 1312 (WA Ct. app. 2015)
Key issues:
Burden of production on the defendant
Burden of persuasion on the State, beyond a reasonable doubt
Date:
June 22, 2015
Decision:
This is an appeal of a conviction for second degree
The State charged Thomas with second degree
assault. Taken as a whole, the instructions did not
assault in violation of RCW 9A.36.021(1)(c), assault
relieve the State of its burden to disprove self-
with a deadly weapon.
defense. But the instruction defining assault permitted

the jury to convict the defendant of a felony based on
A trial was held in April 2013. JC testified about what
facts that would prove only misdemeanors. The
happened when he rode back down to where he first
misleading instruction was proposed by defense
encountered Thomas:
counsel. We conclude appellant is entitled to a new

trial due to ineffective assistance of counsel.
And when I got close enough, he came out of the

bushes holding a gun out to me saying stop. So my
Appellant Joshua Thomas, a man in his sixties, lives
bike died, and I restarted it and tried to turn around.
in a rural part of southern Whatcom County near
By that time, he was right next to me and then pulled
Camp 2 Road, a hard-pack road covered by loose
me off my bike and held a gun to my head and started
gravel. Camp 2 Road is not maintained by the county.
yelling at me.
Thomas and other adjacent property owners are

responsible or its upkeep. Speeders have caused
JC testified that Thomas cocked his gun and said,
recurring problems for the residents because they
"'don't move or I'll shoot you, you little bastard,'" while
tear up the road.
pulling him off the motorcycle. Then Thomas "let go of

me and told me to leave. He uncocked his gun, and
On July 19, 2011, a 15-year-old boy, JC, was heard
then I went, picked up my bike and started it and left."
by neighbors speeding with his motorcycle up and

down Camp 2 Road. Thomas came out to the road
According to Thomas, he held the gun in the air but
and confronted him. JC sped off up a logging road but
never pointed the gun at JC. Thomas testified that he
returned a short time later. He was again confronted
was annoyed when he heard the sound of a
by Thomas, who pulled out a gun and started cursing.
motorcycle exhaust system that day and he decided
According to JC, Thomas pointed the gun at his head.

to try to contact the rider. Thomas testified that when
__________________________________________________________________________________________
Page 42 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
he was about 15 feet away, the rider gave him the
Thomas contends the instructions taken as a whole
"one-finger salute," gunned his engine, and spun out,
failed to meet these standards in two ways: first,
causing gravel to fly up and hit Thomas. The rider
because instruction 13, the to-convict instruction, did
came back a few minutes later, still traveling at high
not set forth the State's obligation to prove the
speed. The rider then stopped abruptly about 40 feet
absence of self-defense along with the other
away, hunkered down, and revved his engine.
elements of second degree assault; and second,
Thomas said he was afraid the rider was about to
because the phrase "with unlawful force" was
charge at him, so he walked toward the motorcycle to
included in one definition of assault in instruction 11
give the rider less room to gain speed. Thomas said
but not the other.
he pulled out a small pistol and pointed it upwards so

the rider would see it and stand down. He testified
1. State's Burden To Disprove Self-Defense
that he put his left hand on the rider's shoulder, glared

at him, and told him to slow down because speeding
The to-convict instruction for the charge of second
damages the road.
degree assault was instruction 13, quoted above. It

stated there were two elements of the crime that had
The jury convicted Thomas of second degree assault
to be proved beyond a reasonable doubt: that the
and returned a special verdict finding that Thomas
defendant assaulted JC with a deadly weapon on the
was armed with a firearm.
date in question and that the act occurred in

Washington. It further stated, "If you find from the
[]
evidence that each of these elements have been

proved beyond a reasonable doubt, then it will be
SELF-DEFENSE
your duty to return a verdict of guilty."
Once the issue of self-defense is properly raised, the
Because the jury has the right to regard the to-convict
absence of self-defense "becomes another element of
instruction as a complete statement of the law, it
the offense which the State must prove beyond a
should state all elements the State is required to
reasonable doubt." State v. McCullum, 98 Wn.2d 484,
prove. State v. Smith, 131 Wn.2d 258, 263, 930 P.2d
493-94, 656 P.2d 1064 (1983).
917 (1997). Thomas contends that under this rule, the

State's burden to disprove self-defense belongs in the
Jury instructions on self-defense must more than
to-convict instruction. He argues that omitting any
adequately convey the law. Read as a whole, the jury
reference to this burden in instruction 13
instructions must make the relevant legal standard
unconstitutionally relieved the State of its burden to
manifestly apparent to the average juror. Kyllo, 166
prove every element of second degree assault. The
Wn.2d at 864. "The jury should be informed in some
prejudicial nature of the omission, Thomas argues,
unambiguous way that the State must prove absence
was demonstrated in closing argument when the
of self-defense beyond a reasonable doubt." State v.
prosecutor used instruction 13 to assert that there
Acosta, 101 Wn.2d 612, 621-22, 683 P.2d 1069
were "only two elements" on which the State had the
(1984).
burden of proof: "We have the burden here, and we

have to prove what is enumerated as two different
__________________________________________________________________________________________
Page 43 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
elements, only two elements." The prosecutor was
able to track instruction 13 in argument without
It is a defense to a charge of Assault in the
acknowledging the State's burden of disproving the
Second Degree, Assault in the Fourth Degree
absence of self-defense. In discussing the claim of
and Unlawful Display of a Weapon that the force
self-defense, the prosecutor simply argued that
offered to be used was lawful as defined in this
Thomas used more force than was necessary.
instruction.
Thomas did not object to instruction 13 below, and his
The offer to use force upon or toward the person
motion for a new trial did not allege that trial counsel
of another is lawful when offered by a person
was ineffective for failing to object to it. We determine
who reasonably believes that he is about to be
on a case-by-case basis whether an unpreserved
injured in preventing or attempting to prevent an
claim of error regarding a self-defense jury instruction
offense against the person, and when the force
constitutes a manifest constitutional error that can be
is not more than is necessary.
raised for the first time on appeal. State v. O'Hara,

167 Wn.2d 91, 101, 217 P.3d 756 (2009) (as
... .
amended by order dated Jan. 21, 2010).

The State has the burden of proving beyond a
Including the State's burden to disprove self-defense
reasonable doubt that the force offered to be
in the to-convict instruction may well be a preferred
used by the defendant was not lawful. If you find
practice. On its face, instruction 13 imposed upon the
that the State has not proved the absence of this
jury a duty to render a verdict of guilty if the State
defense beyond a reasonable doubt, it will be
proved an assault with a deadly weapon occurred in
your duty to return a verdict of not guilty.
Washington. Because there was a claim of selfdefense, instruction 13 standing alone would likely
constitute manifest constitutional error. See Acosta,
Instruction 14 informed the jury that the State had the
101 Wn.2d at 615 (reversible error where no
burden of proving the absence of self-defense beyond
instruction informed the jury whether petitioner or the
a reasonable doubt. It also instructed the jury to
State bore the burden of proving or disproving self-
return a verdict of not guilty if the State did not meet
defense).
that burden.
But instruction 13 did not stand alone. If a separate
In view of instruction 14's correct statement of the
instruction is used to state the State's obligation to
State's burden to prove the absence of self-defense,
prove the absence of self-defense, omitting similar
we conclude Thomas has not shown manifest
language from the to-convict instruction is not
constitutional error in the omission of the same
reversible error. State v. Hoffman, 116 Wn.2d 51, 109,
language from instruction 13.
804 P.2d 577 (1991). In this case, the court did give a
separate instruction, instruction 14, modeled on
Washington Pattern Jury Instructions: Criminal
[]
17.02 (2008) (WPIC).

__________________________________________________________________________________________
Page 44 of 45

2015 #27 (June 22-26, 2015)
__________________________________________________________________________________________
In summary, Thomas is entitled to a new trial due to
ineffective assistance of counsel. Our confidence in
Reversed..
the result of the trial is undermined by the misleading

nature of the definitions of assault contained in
instruction 11, though not by the irregularities in
conveying the State's burden to prove absence of
self-defense.
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 45 of 45

2015 #27 Self Defense Weekly Law Report

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

2015 #27 Self Defense Weekly Law Report

Загружено:

Авторское право:

Доступные форматы

Law of Self Defense: Weekly Law Report

2015 #27 (June 22-26, 2015)

Law of Self Defense: Weekly Law Report

Frequently Asked Questions

What is the Law of Self Defense: Law Report Weekly?

Do you recount each of the cases in their entirety?

What if I want to read the entire case?

Law of Self Defense: Weekly Law Report

June 23, 2015

Innocence, recovering, escalation

June 22, 2015

June 24, 2015

June 23, 2015

Law of Self Defense: Weekly Law Report

June 24, 2015

June 22, 2015

Law of Self Defense: Weekly Law Report

June 23, 2015

committed in concert with others ( 422.75, subd.

This case arises out of a racially-motivated attack on

After the jury rendered its verdicts, a bench trial was

Gunnar Stine and Jacob Gurfinkiel.1 The jury

conducted in which the trial court found that

convicted defendant of attempted murder (

defendant had suffered two prior serious felony

664/187, subd. (a)), assault with a deadly weapon or

convictions within the meaning of the Three Strikes

by force likely to cause great bodily injury ( 245,

law ( 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12,

subd. (a)(1)), and making criminal threats ( 422).2 In

subds. (a)-(d)) and section 667, subdivision (a)(1).

regard to the attempted murder conviction, the jury

The trial court sentenced defendant to an aggregate

found true the allegations that defendant personally

term of 125 years plus three consecutive life terms.

inflicted great bodily injury ( 12022.7, subd. (a)) and

In his appeal, defendant raised three claims of

concert with others ( 422.75, subd. (b)).3 In regard

instructional error: (1) the trial court erred in failing to

to the assault conviction, the jury found true the

instruct on the principles of self-defense, defense of

allegations that defendant personally used a deadly

others and mutual combat; (2) the trial had a sua

weapon, a knife ( 12022, subd. (b)(1)); that he

sponte duty to instruct on the lesser included offense

personally inflicted great bodily injury ( 12022.7,

of attempted voluntary manslaughter; and (3) the trial

subd. (a)), and that the offense was a hate crime

court erred in rejecting defense counsel's request for

committed in concert with others ( 422.75, subd.

the unanimity instruction. Next, defendant urged that

(b)). In regard to the criminal threats conviction, the

his sentence violated section 654. Lastly, defendant

jury found true the allegations that defendant

contended that trial counsel provided ineffective

personally used a deadly weapon, a knife ( 12022,

assistance because he failed to object to the

subd. (b)(1)) and that the offense was a hate crime

Law of Self Defense: Weekly Law Report

Johnson was accompanied by his roommate Daniel

first time on appeal, was coerced.

Boston, who is white, when he (Johnson) was

In our opinion, filed on January 7, 2015, we found no

attacked by defendant, Stine and Gurfinkiel. During