At defendant’s trial for attempted murder and malicious wounding of a drug seller who suspected defendant was a confidential informant for police, the trial court erred by not granting defendant’s jury instruction on justifiable self-defense, and the Court of Appeals reverses defendant’s convictions.
The trial court only instructed the jury on self-defense with fault, and denied defendant’s instruction on self-defense without fault. Justifiable self-defense differs from excusable self-defense because it does not necessitate that a defendant retreat and make known his desire for peace, two requirements of excusable self-defense.
We agree with defendant that he adduced adequate evidence at trial to require the court to instruct the jury on justifiable self-defense, as well as excusable self-defense.
Here, defendant presented other evidence in addition to his own testimony to support his claim of self-defense. Defendant does not dispute that he shot the victim twice, with the shots coming in quick succession. Another witness corroborated defendant’s testimony about the victim’s comment as the victim moved toward defendant. Three other witnesses stated the victim approached the SUV quickly and was holding a gun before he was shot. Two witnesses both testified that they saw the victim throw his gun into his home after he was shot. Viewing the evidence in the light most favorable to defendant, we find defendant produced more than a scintilla of evidence to support granting the instruction on justifiable self-defense.
We cannot say the error was harmless. Although the jury was instructed on excusable self-defense, that form of self-defense requires the defendant to add two additional elements for the jury to acquit him: that he retreated as far as he safely could under the circumstances in a good faith attempt to abandon the fight and that he made known his desire for peace by word or act.
Both the instruction offered by the commonwealth on excusable self-defense and the instruction proffered by defendant on justifiable self-defense were accurate statements of the law. Significant portions of the evidence were in controversy and if the jury accepted the testimony of the defense witnesses, it could have found defendant not guilty if properly instructed on justifiable self-defense.
We find the court erred in denying defendant’s proposed instruction on justifiable self-defense and the error was not harmless.
Reversed and remanded.
Bell v. Commonwealth (O’Brien) No. 1479-15-2, Aug. 2, 2016; King George County Cir.Ct.; Christopher M. Reyes for appellant; Christopher P. Schandevel, AAG, for appellee. VLW 016-7-189, 8 pp.