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Unlucky punch

Branch Rickey famously observed that luck is the residue of design, so it may be that bad luck is the residue of lack of design.  Walter Triplett, Jr. didn't have a lot of luck growing up on the streets of Cleveland, but he didn't do much to improve it.  By the time he was 23, he'd already done four stints in the joint, and then he picked up two more cases, one for drugs and one for felonious assault with a gun, and did another three years.  By the early morning hours of April 30, 2009, he'd managed to stay out of trouble for nine months, the longest period of his adult life.  So when he got into a fight outside the Barley House, a local Cleveland pub, and punched Michael Corrado, it wasn't likely that the Fates would be smiling.

They weren't.  The single punch sent Corrado to the pavement, where his skull fractured.  He was on a ventilator for 18 hours before he died.  Triplett was charged with involuntary manslaughter and felonious assault.  Someone, maybe Corrado, had thrown a punch at Triplett's sister, and Triplett's claim was that he was defending her.  The jury didn't buy it, convicting him of the felonious assault and deadlocking on the manslaughter.  The judge maxed him out on the assault with eight years, and then tacked on the maximum ten for the repeat violent offender specification.

But last week, Triplett's luck took a major turn for the better, when the 8th District reversed his conviction and sent the case back because the instructions on self-defense were messed up.

It's hard to argue with that conclusion.  The major problem was the trial court commingled the instruction on defense of another -- which was Triplett's claim -- with self-defense.  It began by correctly telling the jury that Triplett had to show that that his sister wasn't at fault in creating the situation and violated no duty to retreat, that Triplett had an honest and reasonable belief that his sister was in danger of death or great bodily harm, and that the only means of protecting her was by the use of deadly force.  At that point, though, the instructions veered into those for self-defense, with the jury told they had to decide whether "defendant had reasonable grounds to believe that he was in immediate danger of death or great bodily harm," and that they had to consider Corrado's actions to determine "if his acts and words caused the defendant reasonably and honestly to believe that he was about to be killed or to receive great bodily harm."  The judge never explained what the "duty to retreat was," and although she correctly instructed the jury that Triplett had the burden of proving defense of another by a preponderance of the evidence, it didn't define what that meant.  The court concluded that the jury was so confused by the instructions -- not knowing whether Triplett had to prove the danger was to his sister or to himself -- that reversal was necessary.

There are several lessons to be learned from the decision, and one of them is that you should pay attention to jury instructions and not just pull them out of OJI.  This isn't to fault only the trial judge.  Neither the prosecutor nor the defense counsel picked up on the problems; the court reviewed, and reversed, on plain error.

If the opinion ended at that point, it would be unremarkable.  But let's look at the larger question:  did Triplett use deadly force? 

The trial judge figured he did, because after all, Corrado died.  But as the court points out, "a failure to instruct on non-deadly force when the death is the result of one punch places the focus on the death and not the force used (one punch)."  That echoed the analysis of the 11th District a few years back in State v. JeffersThe court there pointed out that "deadly force" is statutorily defined as "any force that carries a substantial risk that it will proximately result in the death of any person, while "''substantial risk' means a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist."  Well, if a single punch created a "strong possibility" that it would result in death, there'd be bodies stacked up like cordwood at some of Cleveland's more notorious drinking holes.  The Triplett court agreed (well, maybe not with the part about bodies being stacked like cordwood), and held that Triplett was entitled to an instruction on non-deadly force:  "We do not agree that one punch, even when a death occurs, is comparable to deadly force."

That's a game-changer.  You could make a pretty good argument that giving only an instruction on deadly force was outcome-determinative in Triplett's trial.  It put him in the position of having to argue that he reasonably believed that his sister was in danger of death or great bodily harm, and given that the only evidence was that somebody -- maybe Corrado, maybe not -- threw a punch at her (and it's not even clear from the opinion that the punch landed), that was an extremely hard sell. 

But when Triplett is retried, he won't have to show that he believed his sister was in fear of death or great bodily harm; simple harm is sufficient.  The non-deadly force instruction won't mention retreat; retreat isn't required for use of nondeadly force.  Triplett may even be entitled to an instruction on the lesser-included offenses of assault.  (That's what the Jeffers court held.)  Sure, the involuntary manslaughter is still out there -- the state dismissed it without prejudice -- but if Triplett is convicted only of assault, the manslaughter is a third degree felony, and you can't tack an RVO spec onto anything below a second degree felony.

In short, the odds of Triplett having to do anything close to eighteen years for his unlucky punch just got a lot longer.

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