First look at the Castle Doctrine
In September of 2008, Ohio's New, Improved Castle Doctrine went into effect. This wasn't the one from Merry Old Englande, which held that the duty to retreat in self-defense cases did not apply if the defendant was in his own home. The new statute, RC 2901.05(B), as I explained here, basically creates a rebuttable presumption that someone in his own home who uses deadly force to expel an intruder has acted in self-defense.
Last week's decision by the 8th District in State v. Johnson is the first appellate decision on the new statute, and the result is not helpful.
The facts are simple. The victim, a woman named Blevins, and Johnson lived together in the latter's apartment, and the victim returned a couple days after they'd broken up to retrieve her possessions. Johnson lived in a house divided into three units, and an upstairs tenant let Blevins in. She walked down a common hallway to Johnson's unit, knocked on his door, whereupon he came out and beat the stuffings out of her. (Johnson was 6'6" and weighed 220 pounds; Blevins was a foot shorter and 85 pounds lighter.)
The legal argument was relatively simple, too. Besides the obligatory assignments about weight and sufficiency, the gravamen of Johnson's appeal was that the trial court failed "to instruct the jury fully and completely on issues relating to self defense," i.e., the new Castle Doctrine.
The first problem with the court's opinion is that it misses the fact that the case doesn't even fall within the statute, which applies if the person against whom force is used "is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence... occupied by the person using the defensive force." Given that the beating took place in a common hallway into which Blevins had been invited by another tenant, it's hard to see how she was "unlawfully and without privilege" on Johnson's property in the first place. What's more, the statute only applies to the use of deadly force; although the beating Johnson administered was severe, it arguably did not rise to that level.
Having missed the fact that the new statute isn't implicated, the court proceeds to decide that it didn't matter, for two reasons: first, the court did instruct the jury on the new statute, and secondly, Johnson couldn't claim the benefit of the statute, since although it had gone into effect just a week before trial, the effective date was five months after the incident, and so it didn't apply retroactively.
The first reason is somewhat questionable. From the opinion, it appears that the judge simply read the statute to the jury. Left unexplained would have been the meaning of terms like "privilege" and the effect of the presumption. (The Judicial Conference issued jury instructions on the statute in November of 2008; curiously, they don't address those issues either.)
But it is the second issue, retroactivity, where the real problem with the court's decision lies. The court's entire analysis of this consists of four sentences:
Johnson failed to provide any case law or evidence on behalf of the court or the legislature demonstrating that the Castle Doctrine was meant to be applied retroactively. The changes Johnson mentions did not exist at the time of the offense. The assault occurred on May 26, 2008, and S.B. 184 did not go into effect until September 2008. Johnson is unable to claim that he was acting in self-defense under the new S.B. 184 changes when the attack actually occurred before the changes went into effect.
The Castle Doctrine was passed just a few days before the trial began. Accordingly, there was no case law as to the language required for any "new" or "necessary" jury instructions.
How Johnson's lawyer could have provided "case law... demonstrating that the Castle Doctrine was meant to be applied retroactively" when the statute had been in effect only a week is a mystery. As for the legislature, the lack of anything in Ohio paralleling the Congressional Record on the federal level is always a handicap in determining intent. But the question presented by this case is hardly unique: there are hundreds of cases dealing with the issue of whether a statute is to be applied retroactively. In fact, I wrote another post on this very subject, citing some of those cases, and arguing that there's good reason to treat the new statute as an evidentiary rule, which does apply retroactively.
The result of all this is that we now have a decision from the state's largest appellate district saying that the new castle doctrine doesn't apply retroactively, without any legal analysis, and when the statute probably wasn't even implicated in the first place.