July 14, 2017
Colts TE’s, Self-Defense and Justifiable Life Instructions
We are back after a week hiatus, although some would indicate week was spelled incorrectly. On July 12, 2017, the MN Supreme Court reviewed a case about the rules of evidence applying to a restitution hearing. As exciting as that subject could potentially be; we decided to skip it to talk about the justifiable taking of a life. On July 10, 2017, the MN COA published that case. It is called State v. Pollard, (A16-1005). The case is not about a former TE for the Indianapolis Colts. It is about a woman named Natalie who took someone’s life. Since this blog does not celebrate or condone life taking we will quickly go through the facts.
Pollard had a boyfriend with the initials, O.N. She said that O.N. was attempting to enter her townhouse. When she saw him, she let him in. She went downstairs with him to help him retrieve his things. She originally said that O.N. brought a knife with him and they fought and he got on top of her. She was able to move him and he fell and she called the police. Later, she said she brought the knife downstairs with her because he frequently came to the house angry. She held the blade behind her back and swung it at him when he hit her. She did claim he got on top of her and the knife flew from her hand. She did admit that she threw the knife in the garbage. She did admit that she did not know if she cut or stabbed O.N. but it was because he would not stop attacking her.
The issue, in this case: Is did the court use the wrong CRIMJIG?
A CRIMJIG is an abbreviation that stands for Jury Instruction Guide. I will not insult the intelligence level of blog readers by explaining what Crim means. JIG’s are read to the jury before closing arguments and the jury gets to take a copy into deliberations. The JIG’s contain the applicable law they are supposed to follow even if they do not agree with that law. The law is broken down into the elements of the offense. Therefore, there is a lot of attention paid to what law the jurors are supposed to follow. The majority of the time, the JIG’s are taken directly from the standard JIG language. Occasionally, the lawyers will craft their own versions and the Judge has to decide what will actually be used. The district court has “considerable latitude in selecting jury instructions.” State v. Peltier, 874 N.W.2d 792, 797 (Minn. 2016). The COA reviews the jury instructions in their entirety to determine if they “fairly and adequately explain the law.” Id.; State v. Kuhnau, 622 N.W.2d 552, 555-56 (Minn. 2001). So let’s look at self-defense versus justifiable taking of a life.
A person can use reasonable force to defend themselves or others. Minn. Stat. § 609.06, subd. 1(3). There are four elements of self-defense under section 609.06, subdivision 1(3), are, absent legalese:
(1) You can’t start it. So the whole “they started it,” argument championed by 5 year-olds actually matters. (2) You need to actually believe you are imminent danger of bodily harm. Someone can’t send you a threatening emoji and then you hit them. (3) That belief needs to be reasonable. Duh. (4) You need to retreat if you can safely do so. You can’t chase someone down who struck you after asking you the capital of Thailand and then ran away.
A person may intentionally take a life when it is “necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.” Id. So if you think you are going to be killed or if someone is acting feloniously in your house, but only if the following factors are satisfied:
(1)The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm. (2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. (3) The defendant’s election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended. State v. Edwards, 717 N.W.2d 405, 413 (Minn. 2006). So if you think you are going to die, that thought of death is reasonable, and a reasonable person would have done the same under the circumstances.
In State v. Carridine, 812 N.W.2d 130, 143-44 (Minn. 2012), the MNSC stated it is an error to use the justifiable taking of a life instruction instead of self-defense in a case when the defendant claims the death was unintentional. That is what happened here. The victim in this case died, but Pollard’s argument was not that she was trying to kill the victim. She was trying to use self-defense and victim died as a result. The intentional taking of a life is only justified where the actor believes he or she, or another, is exposed to “great bodily harm or death.” Minn. Stat. § 609.065. Because Pollard did not claim that she intended to kill O.N., an instruction based on Minn. Stat. § 609.065 was inappropriate as it required the jury to find that appellant feared great bodily harm or death. Essentially, the jury was instructed that Pollard had to believe she was exposed to great bodily harm or death. What the jury should have been instructed was that Pollard used a reasonable level of force that she reasonably believed was necessary in resisting an offense against a person. Minn. Stat. § 609.06, subd. 1(3).
The jury may have believed appellant’s statements to the investigators that she feared that O.N. was going to hit her, but rejected her statements that she feared O.N. would greatly harm or kill her. Whether she acted reasonably in response to that fear is a question for the jury. See State v. Glowacki, 630 N.W.2d 392, 399 (Minn. 2001) (requiring jury to find that defendant believed that force was necessary and that the level of force used was reasonable to prevent the harm feared).
So here is the deal. Try not to take anyone’s life and here are
some a Marcus Pollard highlight for you.