The Castle Doctrine revisited
Two years ago, the legislature passed the New, Improved version of the Castle Doctrine. Unlike the old Economy Size Castle Doctrine, which merely held that the duty to retreat before claiming self-defense did not apply to a person in his own home, this version actually shifted the burden of proof from the defendant to the prosecution when the self-defense claim arose in the context of a person lawfully in a residence or vehicle vending off an intruder.
When I first discussed this, I predicted that this was not going to result in much litigation, given the fact that, in this climate, shooting an intruder in your home would more likely result in congratulation, not indictment. So it's not surprising that, over two years after the passage of RC 2901.05(B), my BFF Lexis shows that there are a grand total of four cases on the statute. I don't know whether there are going to be more, but I hope so, because a couple of them show there are some issues to be addressed, especially with jury instructions.
Take State v. Miller, a case out of the 12th District back in August. Miller was convicted of assault after he and some guys riding in his car got into a fight with some guys riding in another car; after throwing bottles at each other as they were driving on the highway, the two cars pulled over, whereupon Miller and his friends got out, opened the doors to other car, and started punching the occupants. Miller relied on the Castle Doctrine for his defense.
Which made no sense, on several levels. First, Miller was convicted of assault, which involves non-deadly force, and the castle doctrine applies to the use of deadly force. (Although, as I recounted here -- scroll to the bottom -- whether that was intended is another matter.) Second, while the doctrine does apply to vehicles, Miller admitted to the police that he had gotten out of his car and gone to the other one, where the fight occurred. So the court could have just said that the statute didn't apply on those grounds and called it a day.
But it went further, and held that since there was evidence to show that Miller was the aggressor, he wasn't entitled to claim self-defense, and the castle doctrine didn't apply.
Let's take a closer look at that. Self-defense requires a showing that (1) the defendant wasn't at fault in creating the situation giving rise to the affray, (2) he had a legitimate belief he was in danger of death or great bodily harm, and (3) he didn't violate any duty of retreat. Normally, the defendant has to prove that. The statute, though, creates a rebuttable presumption that the defendant acted in self-defense. The only thing required to create the presumption, according to both the statute and the official jury instructions, is that the defendant is lawfully in his home or car and is fending off an intruder who isn't entitled to be there.
The effect of the presumption is to shift the burden of proof, and in this context, I think that means shifting the burden on the first two aspects of self-defense -- fault and fear of death or great bodily harm. (Duty to retreat is obviously taken out of the equation.) I don't think the Miller court holding that the defendant still has the burden of proving one of the elements of self-defense -- that he wasn't the aggressor -- is supportable. The basis of the court's decision is a 2006 Franklin county case which held that "the castle doctrine only applies if the defendant is not at fault," but as can be gleaned from the date, the court there was talking about the old castle doctrine, which simply held that a person didn't have a duty to retreat in his own home. If he was the aggressor in that situation, it makes sense that he wouldn't be entitled to claim self-defense, but that has nothing to do with the new doctrine.
The 8th District took a stab at the doctrine in a decision last month, State v. Madera. And "stab" is the word: the defendant was accused of striking the victim several times with a Samurai sword. The facts giving rise to the altercation are aptly summarized by this quote early on in the opinion:
An unknown author once said, "The first thing in the human personality that dissolves in alcohol is dignity." The facts in this case highlight that view.
Basically, Madera and the victim, Gould, and several other people went back to Madera's house after a drinking bout. Madera and Gould got into an argument, Madera told him to leave, Gould refused, so Madera decided to do his John Belushi impersonation.
Most of the court's opinion is taken up by its discussion, and ultimate reversal, of Madera's aggravated robbery conviction. But Madera also made a claim of self-defense under the castle doctrine, contending that when he ordered Gould out of the house, Gould ceased to be lawfully on the premises, and became an intruder.
As indicated above, and according to the OJI instructions, the presumption does not apply if the person against whom force is used was lawfully on the premises. The state has the burden of showing this, too, and argued that it had rebutted the presumption by showing that Gould was lawfully present. The court agreed, noting that Gould and Madera had known each other for ten years, had frequently visited Madera, had even stayed overnight there, and that "he was only asked to leave immediately before the physical altercation began." The judge had given the OJI instruction on the castle doctrine, so that's that.
Well, maybe not. There's no question Gould lawfully entered the premises, but there's also no question that Madera told him to leave. Did that revoke Gould's right to be there, so that the doctrine's presumption was triggered? There's a lot of cases which hold that even where a person has lawfully come onto the premises, if the privilege to do so is revoked by the owner, he becomes a trespasser. Madera argued that he was entitled to a jury instruction to that effect, an argument that would have gone much further had his trial attorney requested one. The basic problem here was trying to apply the castle doctrine to these facts; as the court noted,
The Castle Doctrine is often applied to situations where an intruder enters a home, and the resident uses force to protect himself or his family. We have not seen it applied successfully in situations where a party of drunken friends dissolves into an all-out brawl, and subsequently the resident attacks a guest to forcibly remove him from the premises.
Still, there's some need for clarity here. The state's argument that it had rebutted the presumption by showing Gould was lawfully on the premises isn't technically correct: by proving that, it prevented the presumption from arising in the first place. But you wouldn't know that from reading the OJI instructions, nor would you know what the effect of the presumption is -- what elements need to be proven -- or how that's done. If you're handling a case on this, you might want to look elsewhere for help with jury instructions.