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Castle doctrine update

When I wrote about the Castle Doctrine after it was first enacted, I questioned whether it was "worth all the fuss." The doctrine, codified in RC 2901.05(B), creates a presumption that the rightful occupant of a home or car is acting in self-defense if he uses deadly force against an intruder, and I noted that "it's not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar."

Confirming my prescience in matters of the law -- as opposed, say, to stocks, football, or life in general -- my BFF Lexis informs me that there have been only 13 cases involving the statute since its enactment over three years ago. But as shown by last week's decision by the 8th District in State v. Lewis, and the 5th District's decision earlier this year in State v. Petrone, whatever the law lacks in frequency of application, it more than makes up for in confusion.  

Let's start with Lewis, which features him responding to the drunken appearance of Rodgers, his ex-girlfriend, at his door one night, demanding visitation with the couple's daughter, of whom Lewis had custody. The daughter was at her grandmother's, but Lewis allowed Rodgers to stay overnight to sleep things off. In the morning, things escalated, with Rodgers pulling a knife and cutting Lewis across the shoulder. The two tussled and tumbled to the floor, and Rodgers wound up with a cut which proved fatal.

Self-defense when using deadly force requires the defendant to prove three things: he wasn't at fault in creating the affray, he had a reasonable belief that he was in danger of death or great bodily harm, and he didn't violate any duty to retreat. The trial judge instructed the jury on that, and then proceeded to instruct them on the Castle Doctrine. No problem, right?

Well, problem, because there are actually two Castle Doctrines. The first, in RC 2901.05(B), creates the presumption when the defendant is expelling an intruder, but the second, in RC 2901.09, codifies the common law precept that one has no duty to retreat in one's own home (the statute extends that to a person's vehicle). The judge didn't instruct on the latter one, and the appellate court correctly points out the problem with this. The jury could have concluded that the presumption didn't apply, on the grounds that the Rodgers wasn't an intruder. Lewis would still have been entitled to claim self-defense, but the jury could have convicted him believing that he violated his duty to retreat, never having been told that he had no such duty.

Petrone shows the difficulty of instructing a jury on all three concepts. The factual situation is somewhat blurred, but as can best be gleaned, Petrone and the victim, Ciptak, were both involved in the same woman, a situation which came to a head when Petrone pulled into a driveway and either (A) shot Ciptak while the latter was trying to enter Petrone's car, or (B) leaned out of the car and shot Ciptak.

The fact that the forensic evidence indicated Ciptak was shot in the back from six to seven feet away tended to lend support to Ciptak's version, but Petrone nonetheless asserted self-defense. The opinion recounts in full the instructions the judge gave the jury on self-defense. Petrone's brief characterized the instruction as a "six-page word salad, which did nothing but confuse the jury," and that seems an overly charitable description.

The judge began with the standard instruction on self-defense -- aggression, reasonable belief, duty to retreat -- and no problem there. He then gave the 2901.09 Castle Doctrine instruction, that Petrone had no duty to retreat. Again, no problem, although it's not quite as clean.

But then we get to the 2901.05(B) Castle Doctrine. There aren't any problems with the presumption itself. That's pretty simple: the presumption applies if the jury finds that Petrone was lawfully in his vehicle and Ciptak was intruding in it. How the presumption is overcome is where things go all to hell.

The statute says only that "the presumption is a rebuttable presumption and may be rebutted by a preponderance of the evidence." Evidence of what? The Ohio Jury Instructions don't say; they simply provide that the presumption doesn't apply if the State proves by a preponderance of the evidence that the victim was lawfully present in the residence or vehicle, or that the defendant wasn't. Does that mean the defendant has only the burden of going forward with evidence that the presumption applies, and the State has the burden of disproving that it does? It would seem so, although the judge in Petrone tells the jury that the defendant has the burden of establishing the presumption by a preponderance.

But assuming that the presumption does apply, how does the State overcome it? Since OJI has decided to treat this as a Delphic riddle, the judge is forced to wing it, and actually does a fair job: he tells the jury that if they find Petrone is entitled to the presumption, the State can rebut it by showing, by a preponderance of the evidence, that Petrone was the aggressor, or didn't have a reasonable fear of death or great bodily harm, or violated a duty to retreat. Except, of course, since he was in his car, he didn't have a duty to retreat. The judge tops it off by telling the jury that even if the State rebuts the presumption, Petrone is still entitled to claim self-defense if he proves all the elements of that defense by a preponderance of the evidence. How Petrone could prove all the elements of self-defense by a preponderance of the evidence if the State had just disproved at least one by a preponderance of the evidence isn't readily discernible.

That's not really the fault of the judge; the problem is with the jury instructions. (Similarly, in Lewis the problem got past a judge and defense attorney who are about as sharp as they come.) What should the jury instructions say? Well, for starters, it doesn't make sense to instruct the jury about a duty to retreat if you're going to tell them in the next breath that there's no duty to retreat. If that's a question -- if there's a factual issue as to whether the defendant was actually in his home or car -- that's another story, but if it's not, let's skip the duty to retreat.

Second, as far as the presumption of self-defense goes, clean up who's responsible for establishing it. The jury instructions suggest that it's the State's burden to show that the presumption doesn't apply, either because the defendant didn't have the right to be in the home/car, or the victim did. That works for me, but it seems contrary to the general rule that one seeking to invoke a presumption has the burden of establishing that it applies.

Finally, if the presumption applies, then the State has to rebut it by establishing, by a preponderance of the evidence, that the defendant was the aggressor or wasn't in fear of death or great bodily harm. And if it does, end of story; the burden doesn't shift back to the defendant.

The whole thing may only come up three or four times a year, but we might as well get it right when it does.

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