Case Notes on Self Defense

CASE NOTES ON SELF DEFENSE

ELEMENTS
A defendant who raises a claim of self-defense must offer some evidence to the trial court that each of the following elements existed at the time he or she acted: force had been threatened against defendant; defendant was not the aggressor; the danger of harm was imminent; the force threatened against defendant was unlawful; defendant had an actual belief that a danger existed that force was necessary to avert the danger; that the amount of force used was necessary; and that defendant's beliefs were reasonable. People v. Myles, 257 Ill. App. 3d 872, 196 Ill. Dec. 103, 629 N.E.2d 648 (1 Dist.), appeal denied, 156 Ill. 2d 564, 202 Ill. Dec. 928, 638 N.E.2d 1122 (1994).

Deadly force is necessary to prevent battery on a public way only when defendant reasonably believes he is in danger of death or great bodily harm. People v. Flores, 282 Ill. App. 3d 861, 218 Ill. Dec. 339, 668 N.E.2d 1171 (1 Dist. 1996), appeal denied, 172 Ill. 2d 557, 223 Ill. Dec. 197, 679 N.E.2d 382 (1997).

An accused may not assert a defense of self-defense when the perilous situation with which he was confronted arose out of his own aggressive conduct. People v. Echoles, 36 Ill. App. 3d 845, 344 N.E.2d 620 (1 Dist. 1976); People v. Barnes, 117 Ill. App. 3d 965, 73 Ill. Dec. 236, 453 N.E.2d 1371 (1 Dist. 1983).

“A person who seeks and brings on an assault and who, when he finds the person assaulted is armed and ready to defend himself, produces a weapon and kills him, cannot escape the consequences of the killing by setting up a claim of self-defense. People v. Tillman, 383 Ill. 560, 50 N.E.2d 751 (1943).”

Once the affirmative defense of self-defense is raised by a defendant, the state has the burden of proving beyond a reasonable doubt, not only all the elements of the offense, but also that the defendant's act was not in self-defense. People v. Adams, 113 Ill. App. 2d 205, 252 N.E.2d 35 (1 Dist. 1969); People v. Brown, 133 Ill. App. 2d 861, 272 N.E.2d 252 (5 Dist. 1971); People v. Bailey, 27 Ill. App. 3d 128, 326 N.E.2d 550 (1 Dist. 1975); People v. Baker, 31 Ill. App. 3d 51, 334 N.E.2d 249 (2 Dist. 1975); People v. Fleming, 36 Ill. App. 3d 612, 345 N.E.2d 10 (1 Dist. 1975);

VOLUNTARY MANSLAUGHTER- Distinguished

When an accused raises a self-defense argument he may be convicted of voluntary manslaughter (now second degree murder) when it is established that he committed first degree murder but at the time of the killing he unreasonably believed that he acted in self-defense or he acted under sudden and intense passion resulting from serious provocation. People v. Colson, 187 Ill. App. 3d 423, 135 Ill. Dec. 47, 543 N.E.2d 282 (1 Dist. 1989).

ABSENCE OF WEAPON
Although it is not necessary for the victim to have actually possessed or used a deadly weapon to justify a killing in self-defense, the absence of a weapon is a factor which may be considered by the trier of fact. People v. Lester, 102 Ill. App. 3d 761, 58 Ill. Dec. 416, 430 N.E.2d 358 (1 Dist. 1981).

ACTS AND THREATS OF VIOLENCE
In criminal prosecution, in the absence of preliminary evidence of self-defense, evidence of specific acts of violence and threats made by the victim should not be admitted; however, where defendant claims self-defense and some evidence of self-defense is introduced, evidence of victim's violent character and prior threats and attacks toward defendant are admissible for the purpose of showing defendant's apparent danger, the circumstances confronting him, and the motives which influenced his actions. People v. Carbajal, 67 Ill. App. 3d 236, 23 Ill. Dec. 917, 384 N.E.2d 824 (1 Dist. 1978).
Since defendant claiming self-defense in response to homicide charges may show specific acts of violence and threats by the deceased, and should be allowed substantial latitude in making such showing, and since the inclusion of the testimony referred to would tend to show justification for defendant's coming to the defense of his wife and decedent's wife, the exclusion of such proof was prejudicial. People v. Singleton, 41 Ill. App. 3d 665, 354 N.E.2d 464 (3 Dist. 1976).

PRIOR ACTS OF VIOLENCE
In cases where self-defense is an issue, prior specific acts of violence or turbulence by the victim that are known to the defendant are relevant and material to the issue whether the defendant's apprehension of imminent harm is reasonable. People v. Evans, 104 Ill. App. 3d 598, 60 Ill. Dec. 386, 432 N.E.2d 1285 (1 Dist. 1982).

Evidence of a complaining witness's aggressive and violent character or disposition may be relevant to support a theory of self-defense for two different and independent purposes: (1) to show the defendant's knowledge of the victim's violent tendencies to demonstrate the reasonableness of the defendant's state of mind in acting in self-defense, and (2) to support the defendant's assertion that the victim was the initial aggressor where there are conflicting accounts of the incident. People v. Ware, 180 Ill. App. 3d 921, 129 Ill. Dec. 663, 536 N.E.2d 713 (1 Dist. 1988).

DEFENDANT'S PERCEPTION
In reaching its determination regarding a claim of self-defense, the court must decide whether the facts and circumstances would induce a reasonable apprehension of serious bodily harm in light of defendant's perception of the situation when he used force against his aggressor. People v. Colson, 187 Ill. App. 3d 423, 135 Ill. Dec. 47, 543 N.E.2d 282 (1 Dist. 1989).

MORTAL WOUNDS
The defense of justifiable use of deadly force against any attacker would be meaningless if, as a prerequisite to such defense, the defendant would be required to exhibit mortal wounds to himself as well; the force used is justified if necessary to prevent imminent death or great bodily harm. People v. Gossett, 115 Ill. App. 3d 655, 71 Ill. Dec. 565, 451 N.E.2d 280 (2 Dist. 1983).

STATE OF MIND

Defendant's subjective feelings when being pulled out of a car and whether defendant was afraid during the altercation are matters which are relevant to the issue of whether defendant was justified in using the force that he used such that failure of defendant to raise exclusion of this evidence in his post-trial motion did not constitute a waiver to bring the issue on appeal under the principles of the plain error rule. People v. Keefe, 209 Ill. App. 3d 744, 153 Ill. Dec. 825, 567 N.E.2d 1052 (1 Dist. 1991).

Defendant's reasonable belief that force was necessary to prevent imminent death or great bodily harm to himself is an essential element of self-defense; thus, defendant's state of mind at the time of the occurrence is a material issue and is a proper subject of examination. People v. Kline, 90 Ill. App. 3d 1008, 46 Ill. Dec. 419, 414 N.E.2d 141 (1 Dist. 1980).

NECESSITY
The defendant in a murder prosecution was entitled to have the jury instructed with regard to self-defense where: (1) both a witness and the defendant testified that the victim made threatening remarks directed at defendant shortly before the victim engaged defendant in a verbal argument and that the victim was the aggressor, throwing the first punch and hitting defendant in the face with enough force to knock the defendant's glasses off, (2) the defendant testified that the victim then put him in a headlock, they struggled, and they both fell down the stairs, (3) the defendant then admitted that he got up, went over to the victim, who was lying on the ground, and kicked him six or seven times, and (4) the defendant stated that his only intent was to defend himself and that he believed the victim was still capable of attacking him. People v. Pinkney, Ill. App. 3d , 255 Ill. Dec. 756, 750 N.E.2d 673, 2000 Ill. App. LEXIS 789 (1 Dist. 2000).

--PATTERN INSTRUCTIONS
The omission of the I.P.I. Criminal instruction informing the jurors that the state had the burden of proving the defendant used more force than was justified for his own defense was reversible error. People v. Martinez, 76 Ill. App. 3d 280, 32 Ill. Dec. 139, 395 N.E.2d 86 (1 Dist. 1979).
Where self-defense is an issue, it is the judge's responsibility to make certain the jury is fully informed by giving I.P.I. Criminal No. 25.05, which informs the jury that the state must prove that the defendant was not justified in using the force which he used, and this obligation cannot be waived by defense counsel's failure to tender the appropriate instruction or to object to the instruction given. People v. Martinez, 76 Ill. App. 3d 280, 32 Ill. Dec. 139, 395 N.E.2d 86 (1 Dist. 1979).

PHYSICAL DISPARITIES
In prosecution for murder, where defendant pleaded self-defense, the court erred in refusing defendant's offered instruction that "in deciding whether the defendant was justified as a reasonable man in believing he was in great bodily danger from the deceased and the three other men with him, at the time and place in question, the jury had the right to consider the age, size, health and strength of the defendant as compared to that of the other three men there, and the situation in the rear of the building in which the defendant was, at and just before the shooting, so far as the same appear in evidence, together with all the other facts and circumstances then surrounding him in evidence in the case." People v. Renick, 368 Ill. 436, 14 N.E.2d 500 (1938).

A person is justified in the use of force against another when, and to the extent, that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force; however, deadly force or that likely to cause great bodily harm is permitted only if a defendant reasonably believes that such force is necessary to prevent imminent death or great bodily harm. People v. Ranola, 153 Ill. App. 3d 92, 106 Ill. Dec. 400, 505 N.E.2d 1191 (1 Dist. 1987).

FACTORS
Killing in self-defense is justified where (1) force has been threatened against a person; (2) the threatened person is not an aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; and (5) the threatened person must reasonably believe that danger exists, countering it requires force, and the force used was required. People v. Savickas, 230 Ill. App. 3d 322, 171 Ill. Dec. 713, 594 N.E.2d 1233 (1 Dist.), cert. denied, 146 Ill. 2d 646, 176 Ill. Dec. 816, 602 N.E.2d 470 (1992).

ABSENCE OF WEAPON
The aggressor need not have a weapon to justify one's use of deadly force in self-defense; a physical beating may qualify as such conduct that could cause great bodily harm. People v. Reeves, 47 Ill. App. 3d 406, 5 Ill. Dec. 696, 362 N.E.2d 9 (5 Dist. 1977).

INFALLIBLE JUDGMENT

Where defendant's testimony presented strong proof of self-defense in that the force he used was justifiable and that his belief that this conduct was necessary to save himself from imminent death or great bodily harm was reasonable, he was not required to use infallible judgment in the space of a few seconds while he was under great stress and excitement. People v. Harling, 29 Ill. App. 3d 1053, 331 N.E.2d 653 (1 Dist. 1975).

SHOWN
The defendant had good reason to believe that danger was imminent and that force was necessary to divert it where he was approached by a group of four men, one of whom was armed with a broken beer bottle, three of whom had bad reputations, one of whom had threatened the defendant several weeks before and again several minutes earlier. People v. Lenzi, 41 Ill. App. 3d 825, 355 N.E.2d 153 (1 Dist. 1976).

SUBJECTIVE BELIEF
Defendant need only to have subjectively believed she was in danger of losing her life or suffering great bodily harm to have been be justified in using deadly force. People v. Goodman, 77 Ill. App. 3d 569, 33 Ill. Dec. 49, 396 N.E.2d 274 (4 Dist. 1979).
Where one is assailed in such a manner as to induce in him a reasonable and well-grounded belief that he is actually in danger of losing his life or of receiving great bodily harm, he will be justified in defending himself whether the danger was real or only apparent. People v. Golson, 392 Ill. 252, 64 N.E.2d 462 (1945).

When one is threatened by a person who carried out his threats on a previous occasion, he does not have much time to reason out his response or judge precisely how much force is necessary to repel the threatened attack; consequently, the law does not charge a person, when he has reasonable grounds to believe himself in apparent danger of losing his life or suffering great bodily injury, to use infallible judgment. People v. White, 87 Ill. App. 3d 321, 42 Ill. Dec. 578, 409 N.E.2d 73 (1 Dist. 1980).

BELIEF
A person may use deadly force to protect himself or another if he reasonably believes that he or the other person are in imminent danger of death or great bodily harm even though the person is mistaken or the danger is only apparent; the test is what the defendant, as a reasonable man, believed under the circumstances. People v. Rodriguez, 187 Ill. App. 3d 484, 135 Ill. Dec. 89, 543 N.E.2d 324 (1 Dist. 1989).
Killing was justifiable if defendant reasonably believed the killing was necessary to prevent his own death or his receiving great bodily harm from the boy who he said had bullied and beaten him. People v. Lockett, 85 Ill. App. 2d 410, 229 N.E.2d 386 (1 Dist. 1967).

--DEFENDANT'S PERCEPTION
The issue in a determination of self-defense is whether the facts and circumstances induced a reasonable belief that the threatened danger, whether real or apparent, existed; it is a defendant's perception of the danger, and not the actual danger, which is dispositive. People v. Cochran, 178 Ill. App. 3d 728, 127 Ill. Dec. 686, 533 N.E.2d 558 (4 Dist. 1989).

--MISTAKEN BELIEF
A defendant is not required to be correct in his assessment of the danger presented by a set of circumstances; a belief may be reasonable even if he is mistaken. People v. Stokes, 185 Ill. App. 3d 643, 133 Ill. Dec. 691, 541 N.E.2d 1129 (1 Dist. 1989); In re W.D., 194 Ill. App. 3d 686, 141 Ill. Dec. 364, 551 N.E.2d 357 (1 Dist.), cert. denied, 132 Ill. 2d 545, 144 Ill. Dec. 267, 555 N.E.2d 386 (1990).

QUESTION OF FACT

Whether the facts and circumstances would induce a reasonable apprehension of serious bodily harm is a question of fact to be determined in light of the defendant's perception of the situation at the time he employed force against his aggressor. People v. Manley, 222 Ill. App. 3d 896, 165 Ill. Dec. 298, 584 N.E.2d 477 (1 Dist. 1991).

NO DUTY
There is no duty to retreat before one is entitled to defend himself or another. People v. Rodriguez, 187 Ill. App. 3d 484, 135 Ill. Dec. 89, 543 N.E.2d 324 (1 Dist. 1989).