Rulings show that self-defense may be no defense

There’s an old saying in sports that “The best defense is a good offense.” By scoring a lot of points, a combatant may keep the other team off the field and off the scoreboard as well. Actually, the phrase may be attributable to the Roman orator Ovid, who inquired a couple of millennia ago: “Isn’t the best defense always a good attack?”

Criminal defendants occasionally resort to a version of this philosophy to justify their offenses, asserting a claim of self-defense.

Two recent rulings of the Minnesota Supreme Court, both decided the same day this spring, show that the claim of self-defense often may not even make it to the litigation battlefield at all.

Don’t ask, don’t tell

Because it is an affirmative defense, self-defense must be raised by serving notice to the state prior to trial under Rule 9.02 subd. 1(3)(a)of the Rules of Criminal Procedure. Failing to assert the claim before trial, combined with the absence of any request for jury instruction at trial, was fatal to the maintenance of the defenses in State v. Gustafson, 2000 WL 637016 (Minn. May 18, 2000). By not asking that the defense be presented to the jury, and not objecting when it wasn’t submitted, the defendant effectively waived the claim, which had not been raised before the trial, either.

The case arose out of a domestic dispute between a Beltrami County couple after a night of heavy drinking. The husband left home and then returned, where he engaged in a shouting match with his wife, who happened to be holding a shotgun that discharged and struck him in the leg. Convicted of first- and second-degree assault, the woman appealed, alleging the trial court erred in not giving jury instructions on accident and self-defense, and blaming her lawyer for ineffective counsel because the requested instructions were not furnished.

Affirming a ruling of the Court of Appeals, the Supreme Court held that the judge was blameless, while declining to rule on the claim against the lawyer. Failing to give an instruction on accident was not erroneous because the trial court instructions “adequately informed” the jury that intent was a necessary element of the offense. There was sufficient evidence in the record to support a claim of self-defense, including the woman’s concern that her husband may have been an intruder, as reflected in the 911 call in which she said she thought he was “breaking in.” But since the defendant did not ask for such an instruction, the trial court did not have any obligation to provide such guidance to the jury sua sponte.

The self-defense of the defendant was a late blooming one. The court noted that the defendant failed to give pretrial notice, as required by Rule 9.02. Not only was there no request for a self-defense instruction at trial, but no objection when it was not given. Under these circumstances, the defendant’s failure to ask for a jury instruction did not obligate the trial judge to tell the jury that it could acquit on this basis.

The woman’s claim of ineffective counsel lacked sufficient evidentiary basis, and the court refused to engage in “pure speculation” on the decisions made by trial counsel. It did, however, note that the defendant could pursue the claim in a petition for post-conviction of relief.

Environmental exclusion

An incarcerated first-degree murderer who killed a fellow inmate was not entitled to raise the “violent nature of the prison environment,” including unrelated assaults by other inmates, as a defense to the first-degree murder charge for which he was convicted. In State v. Bjork, 2000 WL 637018 (Minn. May 18, 2000), the court rejected this form of self-defense, upholding the prisoner’s conviction.

The assailant and victim worked in the kitchen at the Minnesota correctional facility in Stillwater, where the homicide occurred on Thanksgiving Day last year. At trial, the assailant testified that he had been the victim of sexual teasing, taunts and harassment from the co-worker for some period of time and that the slaying occurred when the other man was about to commit a sexual assault, although this account varied markedly from statements made by the killer shortly after the incident in which he professed that the killing was premeditated. The trial court reject the killer’s proffered evidence of the “violent nature of the prison environment” as well as general evidence of prison assaults, which he contended was necessary in order to “give the jury insight into the violent nature of prison life.”

The Supreme Court affirmed, distinguishing a case in another jurisdiction in which such evidence was allowed, of where the slaying followed general threats to the defendant. The court found the precedent distinguishable from this case where the claimed threat was “clear” and “immediate.” Because of the imminence of the claimed threat, the general nature of prison life and other unrelated attacks between other inmates “was not likely to be helpful to the jury” in deciding whether the Stillwater defendant was acting with the “genuineness and reasonableness” referred for the exercise of self-defense. As in the Gustafson case, the court refused to rule on the defendant’s ineffective counsel rule, noting that it was preserved for a close conviction proceeding.

Even when properly raised, self-defense is no assurance of acquittal, as reflected in a ruling of the Court of Appeals a week later. In The Matter of N.E., 2000 WL 665696 (Minn. Ct. App. May 23, 2000)(unpublished), a teenager was adjudicated delinquent in two assault charges for stabbing a fellow teen during a fight. The youth’s claim of self-defense was rejected by the Ramsey County District Court, and the Court of Appeals affirmed because the evidence did not show that the culprit “was in physical danger” when the stabbing occurred. The court noted a number of facts indicating that the assailant was the “aggressor,” used “excessive force,” and could have “retreated.” Because those elements of self-defense were missing, the adjudication of delinquency was appropriate.

Similarly, self-defense was allowed to be raised, but was rejected in State v. Henderson, 2000 WL 68500 (Minn. Ct. App. May 30, 2000)(unpublished). The defendant, who was strung out on drugs, knifed and killed a man on a Minneapolis street corner who had been taunting his personal hygiene. Affirming a conviction of unintentional second-degree murder, the Court of Appeals held that the state had adequately refuted the elements of a claim of self-defense. Because the victim was unarmed and his sole threat was verbal, the jury could reasonably have found that the assailant was not in “imminent danger of great bodily harm or death” and there was ample opportunity to retreat” without slaying the other man.

A jury instruction about the role of self-defense for an aggressor was upheld by the Court of Appeals in State v. King, 2000 WL 1146710 (Minn. Ct. App. Aug. 15, 2000). The defendant appealed his conviction by an Anoka County District Court jury for assault arising out of a “lover’s triangle” fracas. The defendant objected to the use of CRIM.JUST.107.07, which allows an individual who started a confrontation to “stand [his] ground and thus defend himself” if reasonable to respond to the thrusts of the other party. He claimed that the portion of the instruction referring to a defendant who “began or induced the incident” was impermissibly vague.

The Court of Appeals disagreed, holding that the clause is not too vague. It also noted that the evidence showed the defendant was the “aggressor” when the “bad blood” between the competing lovers “boiled over into a fight.”

Rare reversals

Reversals on grounds of self-defense claims are rare. But two occurred recently.

A co-occupant of a residence was allowed to invoke the doctrine of self-defense without having to show he tried to avoid an attack. In State v. Glowacki, 2000 WL 978743 (Minn. Ct. App. July 18, 2000), a man was convicted for domestic assault and related offenses due to an altercation with a female companion in the home in which they lived together. The Hennepin County District Court judge had instructed the jury that the accused man could not assert self-defense unless he tried “to avoid danger if reasonably possible,” which embraces the common law “duty of retreat.”

The Court of Appeals reversed, holding that the alleged assailant was not required to “avoid danger” because “his conduct involves defense of a dwelling.” Citing State v. Carothers, 594 N.W.2d 897 (Minn. 1999), the court held that the “duty of retreat” does not apply to incidents that occur when people “are protecting themselves in their own homes.”

A convicted murderer was also entitled to a new trial because his self-defense claim was impaired by cross-examination about statements made in a court-ordered mental examination. In State v. Villalobos, 2000 WL 94356 (Minn. Ct. App. July 11, 2000)(unpublished), the defendant asserted self-defense after being charged with murder for knifing a drinking buddy in a fracas that no one else witnessed. The defendant was required to undergo an examination under Rule 20 of the Rules of Criminal Procedure to determine competency, but did not claim a mental defect during the trial. In the exam, he admitted lying to the police, which was used to impeach him at trial.

The Court of Appeals reversed the knife wielder’s conviction by the Hennepin County District Court. The Rule 20 material should not have been admitted because the defendant “did not raise the issue of mental deficiency at trial.” The evidence was prejudicial because it undercut his credibility, which was “vital to his [self-] defense claim.”

Contrary to the “best defense is a good offense” outlook, in some criminal law cases, the “best offense is a good defense.” But as this pair of Supreme Court cases reflects, getting the defense in play often is half the battle, and when that battle is lost, the case is too.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Mansfield, Tanick & Cohen, P.A. He is certified as a civil trial specialist by the Minnesota State Bar Association and represents employers and employees in a variety of workplace-related matters.