NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
XI VAN HA, )
) Court of Appeals No. A-4818
Appellant, ) Trial Court No. 3AN-91-4014 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1400 - March 31, 1995]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: David B. Koch, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. James L.
Hanley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
COATS, Judge, dissenting.
Xi Van Ha1 appeals his conviction for second-degree
murder, AS 11.41.110(a)(1). As explained in more detail below,
the superior court refused to allow Ha to argue self-defense to
the jury. The court allowed Ha to argue heat of passion to the
jury, but the court instructed the jurors that they should
evaluate the extent of the victim's provocation and the extent of
Ha's opportunity to calm himself from the point of view of a
"mentally healthy" person. On appeal, Ha contends that the
superior court should have instructed the jury on self-defense,
and he contends that the court should have allowed the jury to
consider evidence of Ha's mental abnormality when they assessed
his heat of passion defense. We conclude that the superior court
correctly resolved these issues, and thus we affirm Ha's
conviction.
Ha came to the United States from Vietnam in 1980. He
lived in California for ten years and then, in 1990, he moved to
Dillingham, where he worked as a fisherman, a trade he had
pursued both in his native country and in Malaysia. Despite his
years in the United States, Ha's English remained rudimentary.
On June 7, 1991, Ha was employed to fish aboard the F/V
(fishing vessel) Ultimate. After work on June 7th, Ha and his
long-time friend Tran Gioi were socializing in the Willow Tree
Bar in Dillingham. Later that evening they were joined by other
Vietnamese fishermen. Among the new arrivals were Ly Van Hop and
Buu Van Truong. Ha knew Buu and his family from the Vietnamese
community in California, and he was also aware that Buu and Ly
were roommates in Dillingham.
The men shared drinks in the Willow Tree; Ha later
testified that he thought Buu was drunk by the time they left the
bar. Ha, Tran, Ly, and Buu returned together to the Ultimate
after Ha volunteered to reheat some leftover food. Ha later
testified that his invitation to cook food was directed only to
Tran and Ly. Ha did not wish to socialize with Buu because Buu
was known as a violent person. According to Ha, Buu's family in
California had a reputation for violence; Ha testified that, in
California, Buu and his brothers (as well as other family
members) had been known to threaten and beat people who crossed
them. Knowing that Buu had been drinking, Ha suspected that Buu
would be even more prone to violence.
The four men reached the boat and went aboard; Ha
started the generator to heat the stove. While they waited for
the stove to heat up, Ha's friend Tran lay down on a bunk, while
Buu's friend Ly went out on deck. After about fifteen minutes,
Buu began to get impatient that the food was not yet heated. He
began to harass Ha, swearing at Ha and making comments such as
"fuck your mother". Ha started swearing at Buu and told him to
get off the boat. In response, Buu began to beat Ha. Ly ran in
from the deck to assist Buu. Ly held Ha's arms to his side while
Buu continued to beat him. Buu seized Ha by the hair and struck
his face and head repeatedly with his fists.
As the beating continued, Ha began shouting for help.
He yelled to his friend Tran, "Gioi, come out and ... fight: Buu
is hitting me and killing me!" At one point, Ha yelled, "I'm
dying!" When Tran heard Ha's cries for help, he rose from his
bunk and came to Ha's aid. Tran physically separated Buu from
Ha, but Buu was able to strike Ha four or five more times before
he was pulled away. Ha testified that, at times during the
beating, Buu hit him so hard that he fell down. Ha also
testified that the attack left him with blurred vision.
Buu and Ly left the Ultimate, but they returned a few
minutes later. This time, Buu was armed with a hammer. Buu came
at Ha, screaming, "I'm going to kill you, and I will strike you
until you die!" Buu swung the hammer at Ha's head, but Ha jumped
from the Ultimate to the F/V Misty, which was berthed alongside.
When Buu followed Ha onto the Misty, Ha ran into the cabin and
held the door closed. Buu stood outside the cabin and, through
the glass in the door, he shouted, "Fuck your mother! I will
strike you and I will kill you!"
Buu continued his tirade for four or five minutes until
Ha's friend Tran ran aboard the Misty and grabbed the hammer from
Buu's hand. Ly came aboard too and escorted Buu away. Ha
remained on the Misty for several minutes before returning to the
Ultimate.
That night, Ha could not sleep. He feared that Buu was
bound to return and kill him as he had promised. Tran attempted
to reassure Ha, but Ha remained awake after his friend fell
asleep. Ha's head was throbbing in pain. He paced throughout
the boat.
As he paced, Ha remembered that there was a rifle
aboard the Misty; Ha had previously used this weapon to shoot at
birds while he was fishing. Ha went back to the Misty, retrieved
the weapon, and loaded it.
Ha later testified that he was "very frightened". He
lay awake on his bunk throughout the night, with the rifle at his
side, "the voice of Mr. Buu ... resounding in [his] ears". Tran
awoke and left the boat around 7:00 or 8:00 the next morning. Ha
continued to lie awake on his bunk, thinking about Buu, the rifle
still underneath his blanket. Several hours later (around 8:00
in the morning), Victor Sifsof, the owner of the boat, came
aboard.
Ha was still lying on his bunk when Sifsof arrived.
Sifsof spoke to Ha about mending nets that day, but Ha's head was
still giving him great pain. Ha told Sifsof about the beating he
had received from Buu and Ly the night before - that his head
still hurt and his vision was still blurred. Sifsof saw that Ha
was still very upset, even though he was acting sluggish. Ha
told Sifsof that the two men who had attacked him worked on a
boat owned by Billy Johnson, another local fisherman. Sifsof
told Ha that he would speak to Johnson about his employees.
Around 10:00 that morning, Ha and Sifsof moved the
Ultimate to a different location in preparation for the upcoming
fishing opening. While the men were working, Ha left the rifle
in his bunk. The Ultimate's new location happened to be closer
to Johnson's boat, the boat on which Buu worked. Sifsof then
left Ha alone on the Ultimate. The pain in Ha's head grew worse,
and Ha became more frightened, realizing that he was closer to
Buu. In his head, Ha heard Buu's voice becoming stronger and
stronger, and he became more and more frightened. He lay down to
try to sleep, but he found he could not. Ha tried to think of
someone who could help him, but he was unable to think of anyone
who could. Ha testified that Buu's voice remained in his head;
he stated, "I [did] not think that I should call the police to
help me - [b]ecause [Buu's] voice was just so ferocious and it
stayed in my ears."
Finally, Ha retrieved the rifle from his bunk, left the
Ultimate, and went in search of Buu. He kept the rifle hidden
underneath his jacket. Ha later testified, "[M]y head was
controlling my actions, and it was commanding me to go kill
[Buu]."
Shortly after noon, Ha went to where he believed Buu
was working. When he discovered that Buu was not there, Ha sat
down for a while to wait for him. Ha then loitered in the
vicinity of Buu's boat, where he was observed by other Vietnamese
fishermen, including Buu's friend Ly. Ly saw Ha carrying a long
object concealed under his jacket. Although Ha apparently did
not remember speaking to anyone at the boat, Ly testified that he
approached Ha and spoke to him. After learning that Ha was
searching for Buu, Ly begged Ha to go back home. Ha refused.
A little later, Ha encountered his friend Charlie
Tran. Tran observed that Ha was trembling and pale. Tran asked
what was wrong and Ha responded, with seeming difficulty, that
Buu had assaulted him and threatened to kill him. When Tran
asked Ha what he was carrying under his coat, Ha told him, "This
is none of your business." Tran urged Ha to let the incident
pass, but Ha replied, "How can I let it go? Last night he beat
me up and told me he was going to kill me; he already threatened
to kill me. If he doesn't kill me today, he'll kill me
tomorrow."
At 1:30 in the afternoon, Ha spotted Buu returning from
a grocery store, carrying a bag of groceries. With Buu's voice
still speaking in his head, Ha pulled out his rifle and ran
towards Buu from behind. Ha repeatedly shot Buu in the back,
firing the rifle thirteen times until he had emptied the weapon
of ammunition. Buu was struck by seven of these rounds; he died
immediately.
At trial, Ha testified that, after shooting Buu, he
simply turned around and went back to the Ultimate. In contrast,
another witness to the shooting testified that Ha walked up to
Buu's body, kicked dirt on it, and then, in English, swore at Buu
and said to the corpse, "I told you I was going to kill you."
Upon his return to the Ultimate, Ha changed his shirt,
replaced the rifle in his bed, and hid. The police arrived and
searched the boat, but they did not find Ha. Later, Ha heard
Victor Sifsof's voice. Ha emerged, holding his head, and
explained to Sifsof that he might have to go to jail. Sifsof
advised Ha to obtain an interpreter and go to the police, but Ha
was reluctant to do this. Eventually, the police returned to the
boat, found Ha, and arrested him.
Ha was indicted and tried for first-degree murder. The
jury was instructed on the lesser included offenses of second-
degree murder and manslaughter (under a heat of passion theory).
The jury ultimately acquitted Ha of first-degree murder but found
him guilty of second-degree murder.
Should the Trial Court Have Instructed
the Jury on Self-Defense?
From the beginning of trial, Ha argued that he had
acted in self-defense. In the defense opening statement to the
jury (which was delivered immediately after the prosecutor's
opening statement), Ha's attorney described how Buu had attacked
Ha and threatened him with death; the attorney then continued:
DEFENSE ATTORNEY: [V]iolence was not
uncommon for Buu. You will hear about this
man and his dark, brooding, combative nature.
... And I invite your close scrutiny and
attention as the evidence comes in regarding
[Buu's] character, because you will come to
understand and appreciate not only the dark,
dangerous, deadly side of this man, but also
the signifi-cance of his threats. For anyone
who knew Buu did not take his threats
lightly. A threat from Buu that he would
kill you was as good, had as much weight, as
a kiss on [the] cheek by a ... Mafia godfa
ther. That's how deadly Buu's threats were.
. . . .
From knowing Buu, [Ha] knew that there
was no escape. You see, Buu comes from ... a
family of thugs who have a reputation for
violence and extortion. You will hear that.
... [Ha knew that] he would have to deal
with the family, or with Buu himself. Today,
tomorrow, they would stalk him down.
At the close of the evidence, Ha submitted proposed
instructions on self-defense, but Superior Court Judge Milton M.
Souter questioned whether the evidence supported all the elements
of self-defense. Specifically, Judge Souter questioned whether
there was any evidence that Ha faced imminent harm when he shot
Buu.
THE COURT: There's something missing
from the [proposed] self-defense instructions
that I've already read, and that is the
requirement of imminency of harm coming from
the aggressor.
... [AS] 11.81.330 states, [in] part (a),
[that] "a person may use ... force upon
another when and to the extent that person
reasonably believes it is necessary for self-
defense against what the person reasonably
believes to be the use of unlawful force by
the other". ... And [if] you look to [AS]
11.81.900[(b)], subpart [(23)], ... "`force'
means any bodily impact, restraint, or
confinement, or the threat of imminent bodily
impact, restraint, or confinement". ... So
it's clear to me [that] ... the definition of
"force" ... includes the requirement of
imminency of threat of use of force as part
of the definition. ... It's not included in
any of these self-defense instructions that
I've seen.
And I don't even know if self-defense is
appropriate ... in this case, because I'm not
aware of any evidence that shows any
imminency of [harm]. ... Bearing in mind that
the alter-cation ... between these two men
took place a good twelve hours before the
killing[,] given the fact that it's
uncontradicted that the defendant stalked
this man for over an hour before he killed
him[, and] [g]iven the fact [that] there's
absolutely no evidence that the victim
approached the defendant in the hour or hour
and a half before the shooting, there was no
imminency here at all. ... I don't see it.
And I'm going to want to be hearing argument
on that.
Ha's attorney responded:
DEFENSE ATTORNEY: I think "imminency"
[is viewed through] the eyes of the person
asserting justifiable force. Not whether ...
an independent person such as the judge
looking at the evidence would see ...
imminency under the facts, but whether in
[the] defendant's mind he felt that he was in
imminent danger. I think there's been
overwhelming evidence ... that he was in
imminent fear.
Ha's attorney then analogized Ha's case to cases
involving the "battered woman syndrome". The defense attorney
claimed that, in cases where battered women shot their husbands
while they slept, courts had ruled that the trial juries should
receive instructions on self-defense.2 The defense attorney told
Judge Souter:
DEFENSE ATTORNEY: [T]he fact that Buu
was shot from behind is irrelevant, just like
the fact that a husband is shot while he's
asleep. I think what the court has to [ask],
and what the jury has to [ask], is, did the
defendant feel that he was in imminent fear
for his own safety? That's the first prong
of self-defense. And then, on the second
prong, ... would a reasonable person under
like circumstances, another person who was in
the situation of the defendant, given [the
defendant's] background, experience, and what
have you - how would that person feel? ...
The jury may find that [Ha] was in imminent
fear, but they may find that the reasonable
person would not have been. ...
[Nonetheless], I think we meet the "some
evidence" test. ... [This is] an issue for
the jury to decide.
Despite the defense attorney's argument, Judge Souter
ruled that he would not instruct the jury on self-defense. He
found that there was not a "single shred of evidence [to
indicate] any imminency of harm or threat of harm facing [the
defendant] at the time that he stalked [the victim] for an hour
to an hour and a half, and shot him in the back and killed him.
... It's absolutely, abundantly clear to me that an essential
element of the self-defense justification [is] totally missing in
this case."
The next morning, Ha's attorney renewed his argument
for self-defense. He pointed to the evidence tending to prove
that Ha had been in fear for his life and that a reasonable
person in Ha's position would also have been afraid. The defense
attorney argued,
DEFENSE ATTORNEY: You'd have to [ask]
how would another Vietnamese, knowing how
Vietnamese behave, knowing how, when
Vietnamese make a public threat, that they
carry it out and that you should take those
threats seriously, knowing that this person
making the threat has a violent temper [and]
usually carries out his [threats]. You've
got to take all of those circumstances into
consideration and then ask yourself, would
another person under those circumstances act
the same way?
However, Judge Souter again concluded that the evidence did not
justify an instruction on self-defense.
THE COURT: The evidence in this case is
absolutely devoid of any evidence that there
was ... any threat of imminent harm from Mr.
Buu to this defendant. The evidence is abso
lutely clear ... that this defendant, even
according to his own testimony, stalked the
victim, looking for him for better than an
hour before he ... shot him in the back,
gunned him down. ... The victim was unarmed.
Any threat of harm ... had been made twelve
to thirteen hours earlier. This is the
uncontradicted state of this record. To an
objective third-party observer, that could
not possibly amount to imminency of threat of
harm. ... [I]f somebody beats you up and
threatens to hurt you some more, the next day
you can stalk them down and kill them?
That's not the law of this state[.]
Judge Souter then noted a second ground for denying the
requested self-defense instruction: the evidence showed that Ha
had been the aggressor during the afternoon encounter with Buu on
June 8th. Because AS 11.81.330(a) declares that self-defense is
not available to the aggressor in a conflict, Judge Souter ruled
that Ha's uncontroverted status as the aggressor on June 8th was
another reason for not giving self-defense instructions.3
In Alaska, all use of force in self-defense is governed
by AS 11.81.330(a). If the force used in self-defense rises to
the level of deadly force as defined in AS 11.81.900(b)(12), then
a claim of self-defense must additionally satisfy the require
ments of AS 11.81.335. Section 335(a) limits deadly force to
situations in which (1) the force is justified under AS 11.81.330
and (2) the actor "reasonably believes [that] the use of deadly
force is necessary for self defense against death, serious
physical injury", or one of the serious felonies listed in the
statute. Section 335(b) declares that, even when the use of
deadly force would be justified under section 335(a), a person
must still refrain from using deadly force "if the person knows
that, with complete ... safety ... , the person can avoid the
necessity of using deadly force by retreating".4
Under Alaska law, a trial judge's obligation to
instruct the jury on self-defense arises only if there is some
evidence tending to prove each element of the defense. AS 11.81.
900(b)-(15)(A). The rule was the same before the enactment of
the present criminal code:
It is well recognized that the burden is
on the defendant to produce some evidence in
support of a claim of self-defense before he
will be entitled to a jury instruction.
Bangs v. State, 608 P.2d 1, 5 (Alaska 1980);
Toomey v. State, 581 P.2d 1124, 1126 (Alaska
1978); Folger v. State, 648 P.2d 111 (Alaska
App. 1982).
Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982).
Nevertheless,
The burden to produce some evidence of self-
defense is not ... a heavy one; this standard
is satisfied when self-defense has fairly
been called into issue. ... A jury question
will be presented and [a self-defense]
instruction required if the evidence, when
viewed in the light most favorable to the
accused, might arguably lead a juror to
entertain a reasonable doubt as to the
defendant's guilt.
Paul, 655 P.2d at 775.
While the "some evidence" test may not be exacting in
terms of the amount of evidence needed, the defendant's evidence
must address all the legal elements of self-defense.
[T]he trial court must ... determine whether
or not [the evidence, viewed in the light
most favorable to the defendant,] is adequate
to raise the self-defense issue and, if
believed, would under the legal tests applied
to a claim of self-defense permit a
reasonable doubt as to guilt[.]
State v. Millet, 273 A.2d 504, 508 (Maine 1971) (quoted in Paul,
655 P.2d at 775 n.4) (emphasis added).
In this case, Judge Souter ruled that Ha failed to meet
the requirements of the general statute, AS 11.81.330, because
there was no evidence that Ha faced imminent peril. On appeal,
Ha claims that Judge Souter misconstrued the requirement of
"imminency".
Both at common law and under modern statutes, a person
claiming self-defense as a justification for assaulting someone
else has to show, not only that he or she reasonably feared harm
at the hands of the other person, but also that he or she
reasonably feared that the threatened harm was imminent.
Case law and legislation concerning self-
defense require that the defendant reasonably
believe his adversary's violence to be almost
immediately forthcoming. Most of the modern
codes require that the defendant reasonably
perceive an "imminent" use of force, although
other language making the same point is some
times found.
Wayne R. LaFave and Austin W. Scott, Substantive Criminal Law
(1986), 5.7(d), "Imminence of Attack", Vol. 1, pp. 655-56. See
also Rollin M. Perkins and Ronald N. Boyce, Criminal Law (3rd ed.
1982), Ch. 10, Sec. 4, "Self-Defense", p. 1114. ("The danger
must be, or appear to be, pressing and urgent. A fear of danger
at some future time is not sufficient.")
Alaska's self-defense statute, AS 11.81.330(a), does
not specifically mention the requirement of imminency:
A person may use ... force upon another
when and to the extent the person reasonably
believes it is necessary for self defense
against what the person reasonably believes
to be the use of unlawful force by the other,
unless
. . . .
(3) the person claiming the defense of
justification was the initial aggressor.
LaFave & Scott cites this statute as one of the few "self-defense
provisions in the modern codes [that] fail to address [the
requirement of imminency] explicitly". LaFave and Scott, Substan
tive Criminal Law, 5.7(d), Vol. 1, p. 656 n.38. However, as
Judge Souter correctly perceived, AS 11.81.330 can be silent on
this point because the legislature placed the requirement of
imminency in the statutory definition of "force" contained in
AS 11.81.900(b)(23):
"[F]orce" means any bodily impact, re
straint, or confinement[,] or the threat of
imminent bodily impact, restraint, or confine
ment[;] "force" includes deadly and non-
deadly force[.]
The interrelationship of these statutes is explicitly noted in
the legislative commentary to the self-defense statutes,
AS 11.81.330- 335: "Since force is defined to include the threat
of imminent bodily impact, a person may defend himself from
threats of imminent impact as well as actual impact." 1978
Senate Journal, Supp. No. 47 (June 12), p. 126.
Ha argues that the imminency of a defendant's peril
must be judged from the standpoint of the defendant. Ha contends
that a reasonable person in Ha's position - a person who had
heard Buu threaten his life and who knew the vicious propensities
of Buu and his criminal family - would reasonably fear that Buu
or one of his relatives would inevitably come some day to carry
out Buu's threat to kill Ha.
Viewing the evidence in the light most favorable to Ha,
we agree that there was sufficient evidence that a reasonable
person in Ha's position would have feared death or serious
physical injury from Buu. Buu had threatened Ha with death. Buu
was a violent man who nursed grudges and who was likely to carry
out his threat someday. Moreover, the evidence suggested that
Buu came from a violent, criminal clan, and that Buu's relatives
might very well help Buu carry out the threat - or might carry it
out themselves if Buu was unable. In sum, Ha produced evidence
to justify the remarks his attorney made during the defense
opening statement:
DEFENSE ATTORNEY: A threat from Buu
that he would kill you was as good, had as
much weight, as a kiss on [the] cheek by a
... Mafia godfather. That's how deadly Buu's
threats were.
. . . .
From knowing Buu, [Ha] knew that there
was no escape. ... Buu comes from ... a
family of thugs who have a reputation for
violence and extortion. ... [Ha knew that]
he would have to deal with the family, or
with Buu himself. Today, tomorrow, they
would stalk him down.
However, "inevitable" harm is not the same as "imminent" harm.
Even though Ha may have reasonably feared that Buu (or one of
Buu's relatives) would someday kill him, a reasonable fear of
future harm does not authorize a person to hunt down and kill an
enemy.
This court discussed the requirement of imminency in a
footnote in Paul; the court noted that a trial judge is
authorized to reject self-defense instructions
where there is some evidence that the
defendant acted to defend himself, but no
evidence of imminent peril. An example of
circumstances under which self-defense
instructions might be denied based on lack of
imminent peril may be found in "battered wife
syndrome" homicides. Typically, these cases
involve a battered wife who kills her husband
in his sleep. Although in such instances
there is commonly ample evidence to support a
finding that the killing was motivated by
fear and that the fear was as real and as
urgent at the time of the killing as it was
when the husband was awake and actually
capable of immediate physical abuse, cases
have uniformly refused to apply self-defense
to this category of crime. The basis of the
refusal has been lack of an immediate threat
of harm.
Paul, 655 P.2d at 778 n.8.
A recent case illustrating this principle is State v.
Stewart, 763 P.2d 572 (Kan. 1988). The defendant in that case
had been subjected to years of horrifying treatment by her
husband. He had repeatedly sexually abused her, beaten her, and
threatened to kill her. When she ran away, he found her and
brought her back. One evening, as her husband slept, the
defendant heard voices repeating the phrase, "Kill or be killed."
Responding to these voices, and to "get this over with, this
misery and this torment", she took a revolver and shot her
husband to death. Id. at 574-75.
The Kansas court held that, under these facts, the
defendant had failed to establish the imminency of any threatened
harm, and thus the trial judge should not have instructed the
jury on self-defense.
No one can attack and kill another because he
may fear injury at some future time. The
perceived imminent danger [must] occur ...
during the time in which the defendant and
the deceased were engaged in their final con
flict.
. . . .
Because of [a] prior history of abuse, and
[because of] the difference in strength and
size between the abused and the abuser, the
accused in such cases may choose to defend
during a momentary lull in the abuse, rather
than during [an active] conflict. ...
However, in order to warrant the giving of a
self-defense instruction, the facts of the
case must still show that the spouse was in
imminent danger close to the time of the
killing.
Stewart, 763 P.2d at 577 (citations omitted).
The Kansas court agreed that evidence of a prior
history of abuse and evidence of a woman's knowledge of her
husband's personal characteristics and propensity for violence
was relevant to show that the husband's conduct on a particular
occasion gave the woman reason to fear that another episode of
abuse was about to commence. Id. at 577. The court also agreed
that the test for self-defense is whether a reasonable person in
the defendant's position would have perceived defensive action as
necessary. Specifically, "in cases involving battered spouses,
the objective test is how a reasonably prudent battered wife
would perceive the aggressor's demeanor". Id. at 579. However,
the court found Stewart's case to be distinguishable from other
spousal abuse cases in which (1) the wife shot the husband during
a contemporaneous violent confrontation, or in which (2) the
husband's words or actions gave the wife good cause to believe
that she was about to be attacked. Id. at 577-79.
We must, therefore, hold that when a battered
woman kills her sleeping spouse when there is
no imminent danger, the killing is not reason
ably necessary and a self-defense instruction
may not be given. To hold otherwise ...
would in effect allow the execution of the
abuser for past or future acts and conduct.
Stewart, 763 P.2d at 579.5
Turning from cases involving battered spouses and
children, the case of State v. Buggs, 806 P.2d 1381 (Ariz. App.
1990), illustrates the requirement of imminency under facts more
analogous to Ha's case. Buggs was involved in a pool hall fight;
he was kicked and stabbed by three men and a woman. One of
Buggs's friends grabbed him and helped him to safety on the other
side of the building. There, the friend handed Buggs a pistol
and told him to "take care of himself". Id. at 1383. Buggs
returned to the front of the pool hall, found the woman and two
of the men who had assaulted him, and began firing his pistol at
them. He succeeded in wounding the woman. Id.
Buggs was charged with aggravated assault, and he
claimed self-defense. He presented evidence that the men he had
fought with were members of a street gang called the "Crips", and
that these men and their fellow gang members would eventually
find him and finish what they had begun:
At various points in his testimony, the
defendant elaborated on his fear of the
Crips. When asked why he felt he was in
danger when he returned to the [pool hall]
parking lot, he said: "Because I know the
Crips, I know what they do. You have to get
them before they get you. ... [S]ee, I've
been on the streets a long time, I have seen
how the Crips act, I know what they do, and
they get you in a position where you don't
[have] protection, [and] they will wipe you."
Buggs, 806 P.2d at 1383.
The Arizona court acknowledged that a defendant is
entitled to a self-defense instruction "if there is the slightest
evidence of justification for his act". Id. However, the court
found no evidence that the defendant had been in danger of
imminent harm from his enemies.
[When] the defendant shot in the direction of
the Crips, they were not advancing upon or
physically menacing him in any way.
Characterized most strongly for the
defendant, all that the evidence showed was
that the defendant thought the two men he
shot at were highly dangerous individuals who
meant to do him harm, and who ... had to be
eradicated right away to prevent them from
gaining an advantage over him and injuring
him at some later time. The question is,
does this kind of threat justify the
defendant's action? We believe it does not.
. . . .
We have not found any case that would
allow a claim of self-defense under the
circumstances presented here. While we agree
that a victim's past acts and reputation for
violence will often be relevant on the
question of the reasonableness of a
defendant's use of force in self-defense, ...
one may resort to deadly force only if it is
necessary to prevent immediate harm. The
defendant's "self-defense" in this case was
nothing more than a "preemptive strike"
against the men he feared.
Buggs, 806 P.2d at 1384-85.
The Arizona court conceded that there might be times
when the requirement of imminency should be relaxed. The court
referred to an example described in LaFave & Scott, 5.7(d),
Vol. 1, p. 656, of a kidnapping victim who is informed that he
will be killed at the end of the week and whose best opportunity
to escape this fate is to kill his kidnapper early in the week.
Under such circumstances, LaFave suggests, "[t]he proper inquiry
is not the immediacy of the threat but the immediacy of the
response necessary in defense. If a threatened harm is such that
it cannot be avoided if the intended victim waits until the last
moment, the principle of self-defense must permit him to act
earlier - as early as is required to defend himself effectively".
Id.
However, the Arizona court found that the case in front
of them was readily distinguishable from LaFave's example:
Here, when the defendant returned to the area
of the confrontation and fired his pistol at
the men who had kicked him, he was not under
their domination and control, and they gave
no signal that they intended to renew their
attack. Our conclusion is in line with
settled authority to the effect that after a
fight has broken off, one cannot pursue and
kill merely because he once feared for his
life.
Buggs, 806 P.2d at 1385 (citations omitted). The court therefore
ruled that Buggs was not entitled to an instruction on self-
defense. Id.
Hernandez v. State, 861 P.2d 814 (Kan. 1993), is in
accord with Buggs. In Hernandez, the defendant's sister was
having marital problems and wanted to leave her husband. The
sister's husband threatened her with violence if she left him or
if she contacted the police. To support his sister, the
defendant went to confront the husband. When the husband told
the defendant to mind his own business, the defendant shot him.
Charged with murder, Hernandez claimed that he acted in defense
of another (his sister), because his brother-in-law would have
killed or seriously injured the sister in the near future. The
court held that defense of others was not available to the
defendant because he had no reason to believe that his brother-in-
law posed a threat of imminent harm to his sister. Id. at 820.
Also in accord with Buggs is State v. Mize, 340 S.E.2d
439 (N.C. 1986). A man named McDonald had spent the day looking
for Mize because he believed that Mize had raped his girlfriend.
All during that day, Mize hid. When night came, Mize went to
McDonald's residence, woke him up, and shot him. Mize claimed
that he had acted in self-defense because he reasonably believed
that McDonald would eventually find him and try to kill him. The
court answered:
Here, although the victim had pursued [the]
defendant during the day approximately eight
hours before the killing, defendant Mize was
in no imminent danger when McDonald was at
home asleep. When Mize went to McDonald's
trailer with his shotgun, this was a new
confrontation. Therefore, even if Mize
believed it was necessary to kill McDonald to
avoid his own imminent death, that belief was
unreasonable.
Mize, 340 S.E.2d at 442 (citations omitted).
Consistent with the above authorities, and in accord
with the wording of AS 11.81.330 and AS 11.81.900(b)(23), we hold
that a defendant claiming self-defense as justification for the
use of force must prove that he or she acted to avoid what he or
she reasonably perceived to be a threat of imminent harm. A
defendant's reasonable belief that harm will come at some future
time is not sufficient to support a claim of self-defense or
defense of others.
Ha's evidence supported the conclusion that he
reasonably believed that Buu would someday harm him. But the
requirement of imminency limits the scope of authorized self-
defense. A defendant may actually and reasonably believe that,
sooner or later, his enemy will choose an opportune moment to
attack and kill him. Nevertheless, as Judge Souter noted, the
law does not allow a defendant to seek out and kill his enemy so
that he no longer has to live in fear. The defendant's use of
force against his enemy is authorized only when the defendant
actually and reasonably believes that the enemy's threatened
attack is imminent. AS 11.81.900(b)(23); Paul v. State, 655 at
777, 778 n.8.
Ha argues that, when determining whether a defendant
reasonably believed that harm was imminent, the trial judge and
the jury must consider the circumstances as they appeared to the
defendant. Ha contends that, in his case, these circumstances
include "[Ha's] past experiences, his knowledge of [Buu], as well
as [Ha's] physical and mental condition". We agree with Ha up to
a point.
A defendant's knowledge of the deceased's violent
nature must be considered when judging the reasonableness of the
defendant's actions and perceptions. Byrd v. State, 626 P.2d
1057, 1058 (Alaska 1980). And we agree with Ha that the
reasonableness of his perception of imminent harm must be
evaluated, not just based on Buu's words and actions on the
specific occasion when Ha killed him, but also based on Ha's
knowledge of Buu's propensities and past conduct.
[T]he determination of reasonableness must be
based on the "circumstances" facing a defen
dant or his "situation"[.] Such terms encom
pass more than the physical movements of the
potential assailant. ... [T]hese terms
include any relevant knowledge the defendant
had about the person. They also necessarily
bring in the physical attributes of all
persons involved, including the defendant.
Furthermore, the defendant's circumstances
encompass any prior experiences he had which
could provide a reasonable basis for a belief
that another person's intentions were to
injure [or commit a crime upon] him or that
the use of deadly force was necessary under
the circumstances.
People v. Goetz, 497 N.E.2d 41, 52 (N.Y. 1986) (citations
omitted).
Thus, Ha is correct when he asserts that the reason
ableness of his belief that he faced imminent harm must be
analyzed in light of the severe beating that Ha had sustained at
Buu's hands twelve hours before, in light of Buu's earlier
repeated threats to kill Ha, and in light of Ha's knowledge of
Buu and his family, whose criminal history indicated that Buu's
threats should be taken seriously. And, to the extent that an
understanding of Vietnamese culture was relevant to evaluating
Buu's motivation or readiness to kill Ha, this too was a proper
matter to be considered.
However, Ha argues that, because of his cultural
background and his poor command of English, he felt that it would
be useless to go to the police for help and that he had "no
viable alternatives" to killing Buu. The evidence at Ha's trial
shows that Ha had ample opportunity to inform others of his
conflict with Buu and to seek their assistance. During the
twelve or thirteen hours between the fight on board the Ultimate
and the shooting, Buu left Ha completely alone. During this
period, Ha had conversations with the skipper of his fishing boat
and with various acquaintances in the Vietnamese community.
Moreover, even assuming that Ha believed it would be pointless to
speak with any of these people about Buu's threats, this does
nothing to establish that Buu posed an imminent danger to Ha or
that Ha could have reasonably believed that Buu posed such a
danger. Ha's argument is simply another way of saying that Ha
believed Buu would inevitably kill him if Ha did not act first.
As we have said, a reasonable fear of future harm does not
justify killing one's enemy.
Ha also appears to argue that Vietnamese culture
teaches that all police are corrupt, that one can expect no help
from the authorities, and that people must take the law into
their own hands to resolve personal disputes. Assuming for
purposes of argument that Ha's characterization of Vietnamese
culture is accurate, and further assuming that Ha believed all
these things, this still does not establish that Ha reasonably
believed that Buu posed an imminent danger to him. To the extent
that Ha might be arguing that the law of self-defense should make
exceptions for people whose culture encourages vendettas,
killings to assuage personal honor, or preemptive killings to
forestall future harm, we reject Ha's argument.
Ha next contends that Judge Souter (and ultimately the
jury) should have evaluated the imminency of harm from the point
of view of someone who was not thinking clearly. Ha argues that,
because of his extreme fear and because he had possibly sustained
brain injury during Buu's earlier attack, he was subjectively
convinced that Buu was about to kill him at any moment. Assuming
this is true, this would not establish the reasonableness of Ha's
subjective perception. (In fact, if Ha is arguing that he would
not have perceived an imminent danger were it not for his mental
abnormality, his argument establishes that he was acting unreason
ably.)
When the law says that the reasonableness of self-
defense must be evaluated from the point of view of the
defendant, this does not mean from the point of view of a
mentally ill defendant. The reasonableness of a defendant's
perceptions and actions must be evaluated from the point of view
of a reasonable person in the defendant's situation, not a person
suffering mental dysfunction. This distinction was elaborated in
People v. Goetz:
[The lower court concluded that] the appropri
ate test ... is whether a defendant's beliefs
and reactions were "reasonable to him".
Under that reading of the statute, a jury
which believed a defendant's testimony that
he felt that his own actions were warranted
and were reasonable would have to acquit him,
regardless of what anyone else in the
defendant's situation might have concluded.
Such an interpretation defies the ordinary
meaning and significance of the term
"reasonably" ... and misconstrues the clear
intent of the Legislature[.]
. . . .
[There must] be a reasonable basis, viewed
objectively, for the [defendant's] beliefs.
... [A] belief based upon mere fear or fancy
... or a delusion pure and simple would not
satisfy the requirements of the statute.
. . . .
To completely exonerate such an individual,
no matter how aberrational or bizarre his
thought patterns, would allow citizens to set
their own standards for the permissible use
of force. It would also allow a ...
defendant suffering from delusions to kill or
perform acts of violence with impunity,
contrary to fundamental principles of justice
and criminal law.
Goetz, 497 N.E.2d at 47-48, 50 (emphasis in the original)
(citations omitted). See also Werner v. State, 711 S.W.2d 639,
645 (Tex.Crim.App. 1986) ("[A] `reasonable belief' [in the
necessity of self-defense] is one that would be held by an
`ordinary and prudent [person] in the same circumstances as the
actor.' ... [T]he test [incorporates] the `ordinary prudent man
test of tort law.'")
Thus, the reasonableness of Ha's belief in the
imminence of danger must be evaluated from the point of view of a
reasonable person in his situation - someone with Ha's pertinent
knowledge of and experience with Buu, but someone whose
perceptions were clear and rational. If the rule were otherwise,
judges and juries would be obliged to acquit defendants who
killed under a psychotic delusion that they were about to suffer
serious harm.
In this case, despite the evidence suggesting that Ha
had good reason to fear future harm from Buu, there was no
evidence that Ha was in imminent danger, or could have reasonably
believed himself to be in imminent danger, when he hunted Buu
through the streets of Dillingham and then shot him from behind
while Buu was carrying groceries. Judge Souter therefore
correctly declined to instruct the jury on self-defense.
Did the Trial Court Give a Proper
Instruction on Heat of Passion?
Although Judge Souter ruled that Ha could not argue
self-defense to the jury, the judge allowed Ha to argue that his
homicide should be mitigated to manslaughter under the doctrine
of heat of passion. This doctrine is codified in AS
11.41.115(a):
In a prosecution [for first-degree
murder] under AS 11.41.100(a)(1)(A) or [for
second-degree murder under] AS
11.41.110(a)(1), it is a defense that the
defendant acted in [the] heat of passion,
before there had been a reasonable
opportunity for the passion to cool, when the
heat of passion resulted from a serious provo
cation by the intended victim.
The term "serious provocation" is defined in AS 11.41.115(f)(2)
as:
conduct which is sufficient to excite an
intense passion in a reasonable person in the
defendant's situation, other than a person
who is intoxicated, under the circumstances
as the defendant reasonably believed them to
be; insulting words, insulting gestures, or
hearsay reports of conduct engaged in by the
intended victim do not, alone or in
combination with each other, constitute
serious provocation.
This court has recognized that the "passion" spoken of in
AS 11.41.115(a) encompasses more than rage - that it includes
terror and other intense emotions. LaPierre v. State, 734 P.2d
997, 1001 (Alaska App. 1987). Thus, if Ha killed Buu while in
great fear for his life, this could qualify as "heat of passion"
assuming the other statutory conditions were met.
However, it is not sufficient that the defendant
experience heat of passion. Under AS 11.41.115(f)(2), the
defendant's passion must be caused by "conduct ... sufficient to
excite an intense passion in a reasonable person in the
defendant's situation ... under the circumstances as the
defendant reasonably believed them to be". Moreover, under AS
11.41.115(a), the defendant's use of force must occur "before
there [was] a reasonable opportunity for the [defendant's]
passion to cool".6
When the heat of passion jury instructions were argued
at Ha's trial, the prosecutor proposed an instruction that would
define "reasonable person" as a "reasonably healthy person whose
thinking is not influenced by mental difficulties that skew or
affect his ability to form reasonable thought processes or act in
a reasonable fashion". The prosecutor further proposed that the
jury be told that a "reasonable person" is someone "unaffected by
cultural mores of foreign countries", and that the "reasonable
person" standard incorporated "the cultural standards and legal
rules of orderly conduct of the United States and the State of
Alaska".
Ha's attorney took strong exception to the prosecutor's
proposed instruction.
DEFENSE ATTORNEY: [A]s far as a normal,
healthy person, ... the court has allowed
testimony to come in regarding [the defend
ant's] state of mind. I think the court has
to allow the jury to consider that.
Particularly in light of the court's ruling
that heat of passion comes in. So I ...
disagree with [the] interpretation that a
reasonable person is some normal American
devoid of the circumstances we have here.
And the circumstances include someone's
cultural background, because [this] may go to
mitigating the [killing]. ... [T]he
circumstances in this particular case
[include] my client's knowledge of the
deceased, the deceased's background for
violence, his history for violence, his ...
cultural history of carrying out threats, and
in that particular culture people would take
him seriously. So I think it would be wrong
for the court to [instruct the jury] that a
reasonable person is ... some normal American
farm boy from Iowa.
Judge Souter agreed with the defense attorney that Ha's cultural
background and knowledge were relevant when assessing the reason
ableness of his actions. For this reason, Judge Souter ruled
that he would give only the first part of the prosecutor's
proposed instruction. The instruction, in its final form, read:
When these instructions use the term
"reasonable person" or "reasonably believe",
they mean a reasonable, mentally healthy
person whose thinking is not influenced by
mental difficulties that skew or affect his
ability to form reasonable thought processes
or to act in a reasonable fashion.
Ha's attorney continued to object to the abridged
instruction, but in a conclusory fashion:
DEFENSE ATTORNEY: [J]ust for clarifica
tion purposes, I take it this [instruction]
is from one of the standard instructions?
PROSECUTOR: I wrote it last night.
THE COURT: I don't think it's standard
at all.
. . . .
DEFENSE ATTORNEY: Precisely.
. . . .
THE COURT: [W]e could never make any
progress in this world if we [always did]
what has been done in the past.
DEFENSE ATTORNEY: I agree, Judge, but I
don't think the instruction follows the law.
I don't think it follows the law.
THE COURT: [T]his is an instance of
giving an instruction specifically tailored
to this case, and I believe it does state the
law, so I shall give it over objection.
DEFENSE ATTORNEY: I disagree[.] [I]t
doesn't follow the law, but I've made my
record.
THE COURT: You've made your record.
On appeal, Ha argues that the jury instruction defining
"reasonable person" was erroneous - that the reasonableness of
his conduct should have been evaluated in light of his mental
abnormality. In particular, Ha relies on the expert testimony
presented at his trial which indicated that, because of Buu's
attack the night before, Ha might have been suffering from "post-
concussion syndrome", a mental condition brought on by head
injury. According to this expert testimony, post-concussion
syndrome causes the sufferer to have a lowered tolerance to
stress and to be more susceptible to emotional instability. Ha
argues that the reasonableness of his perceptions, reactions, and
conduct should have been evaluated in light of this syndrome.
When the law tests the reasonableness of a defendant's
actions, the issue is what a reasonable person would have done in
the defendant's circumstances. As we indicated in our discussion
of self-defense, a defendant's "circumstances" encompass the
various aspects of a defendant's knowledge, experience, and
physical situation. However, we agree with Judge Souter that the
reasonableness of the defendant's conduct must not be evaluated
by asking what a person suffering from mental abnormality would
have thought or done.
Some cases have considered whether the
law should take into account, in measuring
the adequacy of the provocation, the fact
that the defendant possesses some peculiar
mental or physical characteristic, not
possessed by the ordinary person, which
caused him, in the particular case, to lose
self-control. It is quite uniformly held
that the defendant's special mental qualities
- as where, because of sunstroke or head
injury, he is particularly excitable - are
not to be considered.
LaFave and Scott, Substantive Criminal Law (1986), 7.10, Vol.
2, p. 262.
In State v. Russo, 734 P.2d 156 (Haw. 1987), the
defendant was charged with two counts of murder for shooting into
a bar and killing two patrons. He defended on the basis that he
had an insane belief that "these guys were going to kill me
unless I killed them". Id. at 160. Besides the defense of
insanity, Russo also asked the trial judge to instruct the jury
that his killings might be manslaughter under the Hawaii statute
that mitigates a homicide committed "under the influence of
extreme mental or emotional disturbance for which there is a
reasonable explanation". Id. at 158. The trial judge rejected
the proposed instruction, and the Hawaii Supreme Court affirmed:
The [common-law] rule that provocation
could, within narrow bounds, reduce murder to
manslaughter, represented a limited
concession to human weakness. While
[Hawaii's statute] relaxes the rigorous
objectivity of the common-law doctrine, it
still requires that the actor's emotional
distress be based on "reasonable explanation
or excuse". This key phrase preserves the
essentially objective character of the
inquiry and erects a barrier against
debilitating individualization of the legal
standard.
. . . .
Granted, [Russo] may have been mentally or
emotionally disturbed; but nothing Russo
offered ... provided "a reasonable
explanation or excuse" for his conduct under
any test of reasonableness. ... A ruling
that evidence of this nature ... furnishes a
basis for mitigating the offense of murder to
manslaughter would undermine the normative
message of the criminal law[.]
Russo, 734 P.2d at 160 (citations omitted).
On appeal, Ha argues that his case should be viewed
differently because there was at least some evidence that his
mental abnormality stemmed from a head injury caused by Buu's
earlier assault. This proposed distinction (between unreasonable
behavior stemming from pre-existing mental dysfunction and
unreasonable behavior stemming from mental dysfunction caused by
the victim's prior assault on the defendant) was not argued in
the trial court, and we do not find plain error. As noted above,
the law has traditionally refused to consider a defendant's
mental abnormality when deciding heat of passion claims, and Ha
cites no heat of passion cases which have accepted his proposed
rule of law.
Conclusion
For the reasons explained above, we uphold Judge
Souter's refusal to instruct the jury on self-defense, and we
also uphold his decision to instruct the jury that Ha's mental
abnormalities should not be considered when deciding Ha's claim
of heat of passion.
The judgement of the superior court is AFFIRMED.
COATS, Judge, dissenting.
In Folger v. State, 648 P.2d 111 (Alaska App. 1982), we
concluded that the trial judge erred in failing to give an
instruction on self-defense. In that case, we stated:
From his opening statement it
appears that Folger's primary defense was
self-defense. Although his defense was
extremely weak, he did present evidence from
which a reasonable juror could conclude that
self-defense existed. It is obvious why a
trial judge would be less than impressed with
Folger's explanation for his use of a
dangerous weapon. However, Folger was
entitled to trial by jury and a jury should
have been instructed on his self-defense
claim.
Id. at 113-14 (footnote omitted). In a footnote we went on to
say:
We think a strong argument can be made
that a trial judge should err on the side of
giving instructions on self-defense so as to
avoid a needless appellate issue in cases in
which a weak case for self-defense is
presented. We also think in a case such as
this where self-defense is presented as a
possible defense, there is a danger that the
jury may consider its own understanding of
what self-defense is in the absence of an
instruction from the court. It seems
preferable to have the jury correctly
instructed.
Id. at 113-14 n.3. In reaching this decision in Folger, we
relied on decisions of the Alaska Supreme Court which we
concluded required the trial judge to instruct on self-defense
even where the evidence supporting the defendant's self-defense
claim was weak or implausible. Houston v. State, 602 P.2d 784,
785 (Alaska 1979); Toomey v. State, 581 P.2d 1124, 1126 n.6
(Alaska 1978). We have consistently adhered to this precedent.
See, e.g., Willett v. State, 836 P.2d 955, 958 (Alaska App.
1992); Carson v. State, 736 P.2d 356, 359 (Alaska App. 1987). I
see our decision in this case as a departure from that precedent
and consequently dissent.
Ha's primary defense was self-defense. I agree that
Ha's defense suffered severe problems because of the time that
elapsed between Buu's assault and the moment when Ha shot Buu.
There is little evidence that Ha had a need to defend himself
from Buu at the time he shot Buu.
However, despite the problems with his defense, Ha was
entitled to a jury trial, and it seems to me that it was Ha's
right to have the jury decide his claim of self-defense based on
proper instructions. Since Judge Souter did not instruct the
jury on self-defense, this probably had the effect of taking Ha's
defense from the jury. The jury either did not decide the issue
of self-defense, or had to decide whether self-defense existed
based upon their own understanding of the issue. Either result
seems to me to be improper, and undermines Ha's right to a jury
trial. I therefore conclude that Judge Souter erred in failing
to instruct the jury on self-defense and that his action tended
to deprive Ha of his right to a jury trial. I would reverse Ha's
conviction.
_______________________________
1 In a Vietnamese name, the first name is the family name.
Thus, the appellant's family name is "Xi". However, in all of
the court documents in this case, Xi Van Ha is referred to as Mr.
Ha. To avoid confusion, we will continue to refer to him in this
manner.
2 As explained below, this is not an accurate
characterization of the current law.
3 Because there was no renewal of conflict on the afternoon
of June 8th (other than Ha's act of shooting Buu), a conclusion
that Ha was the aggressor at that encounter is really a
restatement of the conclusion that Ha faced no imminent danger.
Ha's status as the aggressor would have been important if there
had been evidence that, during the encounter on the afternoon of
June 8th, Buu had said or done something that reasonably put Ha
in fear of imminent bodily harm. If that had been the case, then
it would have been important whether Ha had been the aggressor on
that occasion. Under the facts of this case, however, imminency
of harm is the real issue.
4 The statute makes exceptions for (1) people who are in
their own homes and who do not initiate the conflict, and (2)
police officers or private citizens assisting police officers in
the performance of their duties.
5 Accord, State v. Reid, 747 P.2d 560 (Ariz. 1987) (The
defendant's father had subjected her to years of physical and
sexual abuse. To prevent further abuse, the defendant shot and
killed her father while he slept. Held: the defendant was not
entitled to a self-defense instruction.); Jahnke v. State, 682
P.2d 991, 995-97, 1006-07 (Wyo. 1984) (The defendant's father had
mentally and physically abused him for years. The defendant lay
in ambush for his father one night as the father returned home
from a restaurant, then shot and killed him. Held: the defendant
was not entitled to a self-defense instruction because he had no
reason to believe that he was in imminent danger.); State v.
Norman, 378 S.E.2d 8, 13-16 (N.C. 1989) (The defendant had
suffered long-term abuse at the hands of her husband. Each time
she attempted to escape, he found her and beat her. On the day
of the shooting, the husband beat the defendant throughout the
day and threatened to kill or mutilate her. In the afternoon,
the defendant shot her husband while he was taking a nap. Held:
the defendant was not entitled to self-defense instructions
because there was no evidence that she reasonably believed that
death or great bodily harm was imminent.); Whipple v. State, 523
N.E.2d 1363, 1365-67 (Ind. 1988) (The seventeen-year-old
defendant and his sister had suffered years of mental and
physical abuse at the hands of their parents. The defendant
retaliated by killing first his mother and then his father with
an axe. The defendant claimed that he had acted in self-defense
because he and his sister "lived in an ongoing atmosphere of
imminent danger of serious bodily harm and fear of death". Held:
the defendant was not entitled to self-defense instructions
because there was no evidence that the defendant reasonably
believed that he or his sister faced imminent danger.).
6 Heat of passion does not require that the act of killing
be reasonable, for a reasonable killing is no crime. "What is
really meant by `reasonable provocation' is provocation which
causes a reasonable [person] to lose his [or her] normal self-
control; and although a reasonable [person] who has thus lost
control ... would not kill, yet his [or her] homicidal reaction
to the provocation is at least understandable." W. LaFave and A.
Scott, Substantive Criminal Law (1986), 7.10, Vol. 2, p. 256.
