Patterson v. State , 1984 Wyo. LEXIS 293 ( 1984 )

ROSE, Justice,

specially concurring.

I will concur in the result reached by the majority opinion, based on the evidence that Riddle died from a severed carotid artery rather than from a blow to the head. The majority conclude, and I agree, that no self-defense instruction was warranted where the evidence established that Riddle died from two stab wounds received while he was in a partially conscious state and bound hand and foot. Instead of stopping at this point, however, the majority go on to hypothesize:

“Even if this were not the case, we would be compelled to hold that the evidence surrounding the head-hitting incident does not give rise to the defense of self-defense.”

In concluding that the trial court properly refused to instruct on self-defense even if death resulted from the blows to the victim’s head, the majority make assumptions and rulings not relevant to the resolution of the issue raised by this appeal. While I don’t wish to fall into the trap of arguing with dicta, I am sufficiently concerned about this court’s concept of self-defense to articulate my objections to the following erroneous propositions in the majority opinion:

“ * * ⅛ The right to kill in self-defense exists only in extremity; there must be no other practicable means to avoid the threatened harm.”

“ * ⅜ * The defense of self-defense can only be used when there are no other alternatives but to kill the assailant.”

The existence of alternatives to homicide does not prevent the assertion of self-defense but goes to the reasonableness of the defendant’s belief that he was .in imminent danger of death or great bodily harm. This court said in Garcia v. State, Wyo., 667 P.2d 1148, 1152 (1983):

“ ‘ * * ⅜ To justify a’ homicide, it must appear that the slayer was in great peril of death or serious bodily harm, or had reasonable ground for believing and did believe, that he was in such peril and that the killing was necessary to avert such peril, and that no other reasonable means of avoiding it was open to him. * * * ’ ” Quoting from Durham v. State, 29 Wyo. 85, 210 P. 934, 938 (1922).

The Wyoming Pattern Jury Instruction on self-defense encompasses this concept and states:

“ * * * [H]is right of self-defense is the same whether the danger is real or merely apparent,”

with the following Comment:

“The defendant must believe that the threatening danger is imminent, but the danger does not have to be imminent in fact. Parker v. State, 24 Wyo. 491, 161 P. 552, 555 (1916).

“To claim self-defense, the defendant’s belief as to the necessity of defending himself must have been based on reasonable grounds. A subjective belief does not by itself entitle defendant to use the justification of self-defense. Loy v. State, 26 Wyo. 381, 185 P. 796, 799 (1919).

“When the evidence presents the theory of apparent danger, ‘an instruction which limits the right of self-defense to actual or real danger alone is erroneous.’ State v. Radon, 45 Wyo. 383, 19 P.2d 177, 182 (1933).”

The question of reasonableness of the defendant’s belief is, of course, for the jury. Parker v. State, 24 Wyo. 491, 161 P. 552 (1916).

It seems to me that the foundation predicate for these majority-opinion propositions is that, before the accused may justifiably employ deadly force in self-defense, he must have in fact been in actual danger of death or great bodily harm. How else could it be said,

“ * * * [Tjhere must be no other practicable means to avoid the threatened harm.”?

Or how else could it be said that the use of deadly force in self-defense could only be employed

“ ⅜ * * when there are no other alternatives than to kill the assailant.”?

These statements must logically contemplate the “threatened harm” of an actual, on-going danger presenting “no other alternatives” to homicide.

In order for the accused to assert the right of self-defense, he need not have faced an actual danger of imminent harm with respect to which this court can discover no means of avoidance short of homicide. It is only necessary that the defendant reasonably believed that he was in danger because of some act which gave the appearance of imminent danger. See my dissent in Jahnke v. State, 682 P.2d 991, and cases cited therein. In State v. Radon, 45 Wyo. 383, 19 P.2d 177, 182 (1933), the deceased, with a package in his hand which contained two gloves, started walking toward the defendant, and the testimony was that Radon believed that the package contained a gun. Acting upon this belief, he shot and killed the victim. Thus — there was neither a threat of assault, an actual assault, nor actual danger of imminent harm, yet this court reversed for giving to the jury instructions which said in relevant part:

“ ‘The jury is instructed that in order to excuse the defendant on the ground of self-defense, there must be some act or declaration at the time of the killing of the person on the part of the deceased to kill him or to do him great bodily harm’ ” (emphasis added), 19 P.2d at 181,

and an instruction which said:

“ ‘The danger which will justify the killing of a human being must be actual, present and urgent, and appear to a reasonable mind to be actual, present and urgent.’ ” 19 P.2d at 181.

We held that it was error to direct that, in order for the jury to resolve the reasonableness issue it must first appear that the victim tried “to kill him or to do him great bodily harm,” and that the danger to the defendant “must be actual.”

Thus, where the evidence supports the self-defense theory of apparent danger, an instruction which limits the right of self-defense to actual or real danger alone is erroneous. Furthermore, the right of self-defense ends only when it reasonably appears to the accused that the danger has ceased. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 878 (1945).

I object to the aforementioned statements contained in the majority opinion because the existence of alternatives to homicide does not prevent the assertion of self-defense but goes to the reasonableness of defendant’s belief that he was in imminent danger.