DEEE-fense!
There was a dustup between Michael Hawthorne and James Cooperwood; something about Hawthorne stealing Cooperwood's duffel bags, the situation aggravated by the fact that Cooperwood was dating the woman with whom Hawthorne had three children. Hawthorne came over to the house where Cooperwood and the girlfriend stayed, and on his way downstairs to meet Hawthorne, Cooperwood grabbed a baseball bat and announced that he was "about to bust the bitch's head open."
Shots rang out shortly thereafter, and Cooperwood learned to his chagrin that he had brought a baseball bat to a gunfight. Hawthorne was charged with felonious assault, and his attempt to argue self-defense foundered on the judge's insistence that there would be no jury instruction on self-defense unless Hawthorne himself testified. He chose not to, there was no self-defense instruction, and the jury convicted him.
And that gets reversed in the 8th District's decision in State v. Hawthorne,
A couple things we need to cover here. First, the standard for determining whether to instruct on self-defense is if there is some evidence by which a jury can find it. Second, one of the elements of self-defense is that the defendant was in fear of death or great bodily harm.
The latter is a subjective/objective test: the defendant must show that he was subjectively in fear, and that his being in fear was objectively reasonable.
The trial judge focused on the first part, subjectivity, and reasoned that the only way the defendant could establish that he was subjectively in fear was to testify to that effect.
There are a couple of problems with that. The first is that we determine the defendant's subjective mindset without his testimony all. The. Time. Did the defendant intend to kill? Did he plan it? What reason did he have for entering somebody's home?
The second problem is the test for charging: whether there is "some" evidence supporting it. Yes, it would be nice if the Hawthorne got up and testified that the victim had previously threatened him with a gun, had told him that he intended to kill Hawthorne, Hawthorne's friends told him that the victim was threatening to kill him, and in the incident, Hawthorne saw the victim reach inside his jacket as if to pull a gun. That certainly gets you a charge. But if you've got witnesses to testify to the same thing, why would the defendant also have to testify?
This is what you need to know about Hawthorne. It specifically disposed of a bright-line rule - that the defendant can't argue self-defense if he doesn't testify. But the key is the facts. If you don't have any other evidence, then Hawthorne doesn't save you: you're going to have to put your client on, which most of us have found to be an interesting adventure, at the least, and quite often a disaster of Hindenburg proportions. Oh, the humanity!
I'm convinced that the most important part of an appeal isn't the law, it's the facts. If you can persuade a court of appeals that your client is innocent, or at least got such a raw deal at trial that we can't be sure one way or the other, it's probably coming back.
And as we see in State v. Echevarria, if you don't, it's not. The facts in Echevarria aren't good - for her. She and the victim, who'd been previously romantically involved, had gone to her apartment to watch television. According to the victim, Echevarria went batshit crazy and attacked him with a knife, stabbing him in the side of the head. Echevarria's story is multifaceted, contradictory, and complicated by the fact that she's too drunk to be coherent. Her testimony at trial isn't much better, and her conviction is the outcome.
Her argument is also self-defense, and she presses it on two fronts. First, she argues that the judge erred by not telling the jury that Echevarria didn't have a duty to retreat. The judge didn't because she didn't have a duty to retreat, so there was no reason to instruct the jury about a duty she didn't have. The panel buys into that.
I don't. There's a statute in Ohio, 2901.09(B), which is known as the Castle Doctrine and says that a person lawfully in that person's residence has no duty to retreat before using force in self-defense. If it's that important to pass a law about it, why shouldn't the jury know that, instead of possibly speculating, "Well, she could've gotten away"?
The other line of attack is rejected, too, but that's more troublesome. Echevarria argues that the judge should have instructed the jury under RC 2901.05(A)(1), which says that a defendant is presumed to have acted in self-defense "if the person against whom the defensive 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." The panel notes that the victim was invited into the apartment, so he was a lawful entrant.
Hey, Gang, It's Time for a Hypothetical! I answer the door late at night, and it's two guys, Norm and Fred, who claim that they've run out of gas and would like to use my phone to call Triple-A. Trusting sort that I am, I let them in, and no sooner do they get near the phone but they turn, each armed with a rather impressive gravity knife. Of course, one of the reasons I'm so trusting is that my Glock .40 is in a holster under my robe, and before my new acquaintances know it, I've put two hollowpoints into Norm's chest, leaving a hole big enough to throw a cat through, and Fred, voluntarily unarmed, is whimpering on the floor. (Note to self: probably not good idea to have gone to see the Death Wish sequel.)
Question: Is Fred guilty of aggravated burglary?
Answer: Of course he is. Oh, yes, I invited him in, but there's a ton of case law holding that if a person lawfully enters a premises but then seeks to commit a crime, the invitation is implicitly revoked.
Question: Am I entitled to a presumption that I acted in self-defense?
Answer: I certainly should be; if the invitation is implicitly revoked for one, it should be for the other. But under Echevarria, I'm not.
The lesson here is that the court isn't going to do your work. Sure, sometimes a judge or some enterprising law clerk will pick up on something that's not squarely presented, and run with it. But more often not, if you don't raise it, they won't. I went back and read the appellant's brief, and although it argued that Echevarria "rescinded" the victim's invitation, it didn't make the analogy to burglary or cite the cases on that.
I'm thinking, though, that if Echevarria's facts were a lot better, some judge or enterprising law clerk would have picked up on that.
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