State v. Leidholm
North Dakota Supreme Court, 1983
334 N.W.2d 811 (1983)
State of North Dakota, Plaintiff and Appellee v. Janice
Leidholm, Defendant and Appellant
Criminal No. 855
Supreme Court of North Dakota
May 12, 1983
PRIOR HISTORY:
[**1]
Appeal from the District Court of McLean County, the Honorable Dennis A.
Schneider, Judge.
DISPOSITION: REVERSED AND REMANDED FOR NEW TRIAL.
COUNSEL: John Romanick, State's Attorney, Washburn, for Plaintiff and Appellee State of
North Dakota.
Irvin B. Nodland, of Lundberg, Conmy, Nodland, Lucas
& Schulz, Bismarck, for Defendant and Appellant.
JUDGES: Pederson, Sand, Paulson, JJ., Erickstad, C.J. Opinion of the Court by
VandeWalle, Justice.
OPINIONBY: VANDEWALLE
OPINION:
[*813] Janice Leidholm was charged with murder for the stabbing death of her husband,
Chester Leidholm, in the early morning hours of August 7, 1981, at their farm
home near Washburn. She was found guilty by a McLean County jury of
manslaughter and was sentenced to five years' imprisonment in the State Penitentiary with
three years of the sentence suspended. Leidholm appealed from the judgment of
conviction. We reverse and remand the case for a
new trial.
I
According to the testimony, the Leidholm marriage relationship in the end was
an unhappy one, filled with a mixture of alcohol abuse, moments of kindness
toward one another, and moments of violence. The alcohol abuse and violence was
exhibited by both parties on the night
[**2] of Chester's death.
Early in the evening of August 6, 1981, Chester and Janice attended a gun club
party in the city of Washburn where they both
consumed a large amount of alcohol. n1
[*814] On the return trip to the farm, an argument developed between Janice and
Chester which continued after their arrival home just after midnight. Once
inside the home, the arguing did not stop; Chester was shouting, and Janice was
crying.
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n1 A Breathalyzer test administered to Janice shortly after the stabbing, at
approximately 3:30 a.m., showed her blood-alcohol content was .17 of 1 percent.
The analysis of a blood sample from Chester showed his blood-alcohol content
was .23 of 1 percent.
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At one point in the fighting, Janice tried to telephone Dave Vollan, a deputy
sheriff of McLean County, but Chester prevented her from using the phone by
shoving her away and pushing her down. At another point, the argument moved
outside the house, and Chester once again was pushing Janice to the
ground. Each time Janice attempted to
[**3] get up, Chester would push her back again.
A short time later, Janice and Chester re-entered their home and went to bed.
When Chester fell asleep, Janice got out of bed, went to the kitchen, and got a
butcher knife. She then went back into the bedroom and stabbed Chester. In a
matter of minutes Chester died from shock and loss of blood.
II
Leidholm raises seven issues on appeal, but because of the particular
disposition of the case, we do not find it necessary to answer all of them.
The first, and controlling, issue we consider is whether or not the trial court
correctly instructed the jury on
self-defense. Our resolution of the issue must of necessity begin with an explanation of
the basic operation of the law of
self-defense as set forth in Chapter 12.1-05 of the North Dakota Century Code.
Our criminal code is the product of a
massive revision which began in 1971 and culminated in 1973 with the
legislative enactment of Senate Bill No. 2045. Although remnants of the
"old code" survived revision and remain in the present code, most of its provisions are
in substantial part modeled after the Proposed New Federal Criminal Code n2
[Report of the North Dakota Legislative Council
[**4] (1973) at 81], which in turn relies heavily on the American Law Institute
Model Penal Code. See, generally, Working Papers (1970-1971). Both the Proposed
Code and the Model Penal Code are highly integrated codifications of the
substantive criminal law which exhibit close interrelationships between their
respective parts. Final Report, Foreword at xiii (1971). This integration is
especially apparent in Chapter 12.1-05 of the North Dakota Century Code, which
is an almost complete adoption of Chapter 6 of the Proposed
Code dealing with defenses involving justification and excuse. It is to Chapter
12.1-05, N.D.C.C., that we now turn.
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n2 The Proposed New Federal Criminal Code ("Proposed Code") with annotations comprises the Final Report of the National Commission on
Reform of Federal Criminal Laws (1971) ("Final Report") and is supplemented by three volumes of the Working Papers of the National
Commission on the Reform of Federal Criminal Laws (1970-1971) ("Working Papers") which contain materials used by the Commission in drafting the Proposed Code.
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[**5]
Conduct which constitutes
self-defense may be either justified [Section 12.1-05-03, N.D.C.C.] or
excused [Section 12.1-05-08, N.D.C.C.]. Although the distinction between
justification and excuse may appear to be theoretical and without significant
practical consequence, because the distinction has been made in our criminal
statutes we believe a general explanation of the
difference between the two concepts--even though it requires us to venture
briefly into the pathway of academicism--is warranted.
A defense of justification is the product of society's determination that the
actual existence of certain circumstances will operate to make proper and legal what otherwise
would be criminal conduct. A defense of excuse, contrarily, does not make legal
and proper conduct which ordinarily would result in criminal liability;
instead, it openly recognizes the criminality of the conduct but excuses it
because the actor believed that circumstances actually existed which would
justify his conduct when in fact they
[*815] did not. In short, had the facts been as he supposed them to be, the actor's
conduct would have been justified rather than
excused. See Final Report, Comment on
[**6]
§ 601 at 44 (1971); Note,
Justification: The Impact of the Model Penal Code on Statutory Reform,
75 Colum.L.Rev. 914 (1975); Note:
Justification and Excuse in the Judaic and Common Law: The Exculpation of
a Defendant Charged With
Homicide,
52 N.Y.U. L.Rev. 599 (1977).
In the context of
self-defense, this means that a person who believes that the force he uses is necessary to
prevent
imminent unlawful harm is
justified in using such force if his belief is a
correct belief; that is to say, if his belief corresponds with what actually is the
case. If, on the other hand, a person
reasonably but incorrectly believes that the force he uses is
necessary to protect himself against
imminent harm, his
use of force is
excused.
The distinction is arguably superfluous because whether a person's belief is
correct and his conduct justified, or whether it is merely reasonable and his
conduct
excused, the end result is the same, namely, the person avoids punishment for his
conduct. Furthermore, because a correct belief corresponds with an actual state
of affairs, it will always be a
reasonable belief; but a
reasonable belief will not always be a
correct belief, viz., a person
[**7] may reasonably believe what is not actually the case. n3 Therefore, the
decisive issue under our law of
self-defense is not whether a person's beliefs are correct, but rather whether they are
reasonable and thereby
excused or justified. See Vol. I, Working Papers, Comment on Excuse at 271 (1970);
State v. Schimetz, 328 N.W.2d 808 (N.D. 1982);
State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (1907). See also ALI Model Penal Code
§ 3.04, Comment at 15, and
§ 3.09, Comment at 77-79 (Tentative Draft No. 8, 1958).
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n3 For example, a person may reasonably, but mistakenly, believe that a gun
held by an
assailant is loaded.
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Section 12.1-05-08, N.D.C.C., which sets forth the
general conditions that excuse a person's conduct, states:
"A person's conduct is
excused if he believes that the facts are such that his conduct is necessary and
appropriate for any of the purposes which would establish a justification or
excuse under this chapter, even though his belief is mistaken. However, if his
belief is negligently
[**8] or recklessly held [i.e., unreasonably], it is not an excuse in a prosecution
for an offense for which negligence or recklessness, as the case may be,
suffices to establish culpability. Excuse under this section is a defense or
affirmative defense according to which type of defense would be established had
the facts been as the person believed them to be."
The first sentence of Section 12.1-05-08, N.D.C.C., in combination with Section
12.1-05-03, N.D.C.C., which contains the kernel statement of
self-defense, yields the following expanded proposition: A person's conduct is
excused if he
believes that the
use of force upon another person is necessary and appropriate to defend himself against
danger of
imminent unlawful harm, even though his belief is mistaken. n4 Thus we have a statement
of the first element of
self-defense, i.e., a person must actually and sincerely believe that the conditions exist
which give rise to a claim of
self-defense. See Vol. I, Working Papers, Comment on Excuse, at 271-272 (1970). See also
State v. Jacob, 222 N.W.2d 586 (N.D. 1974);
Hazlett, supra, 113 N.W. at 380.
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n4 If the danger against which a person uses force to defend himself is
"death, serious bodily injury, or the commission of a felony involving violence," the person may use deadly force [Section 12.1-05-07, N.D.C.C.], which is
defined as that force
"which a person uses with the intent of causing, or which he knows creates a
substantial risk of causing, death or serious bodily injury."
Sec. 12.1-05-12(2), N.D.C.C.
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[**9]
From the next sentence of Section 12.1-05-08 we may infer that, besides being
actual and sincere, a person's belief that the
use of force is
necessary to protect himself against
imminent unlawful harm must be reasonable. Here, we have the second element of
self-defense, namely, a person must
[*816] reasonably believe that circumstances exist which permit him to use defensive
force. See Vol. I, Working Papers, Comment on Excuse, at 271-272 (1970). See
also
Jacob, supra, 222 N.W.2d at 588-589;
Hazlett, supra, 113 N.W. at 380.
If, therefore, a person has an actual and
reasonable belief that force is
necessary to protect himself against danger of
imminent unlawful harm, his conduct is justified or
excused. See Sec. 12.1-05-08, N.D.C.C.; Vol. I, Working Papers,
Comment on Excuse, at 271 (1970). If, on the other hand, a person's actual
belief in the necessity of using force to prevent
imminent unlawful harm is unreasonable, his conduct will not be justified or
excused. See Sec. 12.1-05-08, N.D.C.C.; Final Report, Comment on
§ 608,
Excuse, at 52 (1971); Vol. I, Working Papers, Comment on Excuse, at 271 (1970).
Instead, he will be guilty of an offense for which negligence
[**10] or recklessness suffices to establish culpability. See Sec. 12.1-05-08,
N.D.C.C. For example, if a person recklessly believes that the
use of force upon another person is
necessary to protect himself against unlawful
imminent serious bodily injury
and the force he uses causes the death of the other person, he is guilty of
manslaughter. See Sec. 12.1-16-02(1), N.D.C.C.; Vol. I, Working
Papers, Comment on Excuse, at 271 (1970); Cf. ALI Model Penal Code and
Commentaries, Part II,
§ 210.3(a), Comment at 74-75 (1980); ALI Model Penal Code,
§ 3.04, Comment at 15, and
§ 3.09, Comment at 78-79 (Tent. Draft No. 8, 1958); Note,
Justification: The Impact of the Model Penal Code on Statutory Reform,
75 Colum.L.Rev. 914 (1975). And if a person's belief is negligent in the same regard, he is guilty of
negligent homicide. See Sec. 12.1-16-03, N.D.C.C.
We are not the only State to make distinctions like this in the law of
self-defense. Other States distinguish between reasonable and unreasonable beliefs when
attaching liability for acts assertedly committed in
self-defense. E.g.,
Weston v. State, 656 P.2d 1186 (Alaska App. 1982);
People v. Scott, 53 Ill.Dec. 657, 97 Ill.App.3d
[**11] 899, 424 N.E.2d 70 (1981);
State v. Mendoza, 80 Wis.2d 122, 258 N.W.2d 260 (1977). However, they do not further subdivide the class of unreasonably held beliefs,
as our Legislature has done, into the subclass of recklessly held beliefs and
the subclass of negligently held beliefs. Still, such interpretations do not
significantly differ from our own.
Under both approaches, if a person reasonably believes
self-defense is necessary, his conduct is
excused or justified. And even though under our view an unreasonable belief may result
in a conviction for either
manslaughter or
negligent homicide, and under theirs an unreasonable belief may result only in a conviction for
manslaughter, they are the same to the extent that an
honest but
unreasonable belief will never result in a conviction for murder.
It must remain clear that once the
factfinder determines under a claim of
self-defense that the actor
honestly and sincerely held the belief that the use of defensive force was required to
protect himself against
imminent unlawful injury, the actor may not be convicted of more than a crime of
recklessness or negligence; but, if the
factfinder determines, to the contrary, that the actor
[**12] did not
honestly and sincerely hold the requisite belief under a claim of
self-defense, the actor may not appeal to the doctrine of
self-defense to avoid punishment, but will be subject to conviction for the commission of
an intentional and knowing crime. See Sec. 12.1-05-08, N.D.C.C.; Vol. I,
Working Papers, Comment on Excuse, at 271-272 (1970). See also
Weston, supra, 656 P.2d at 1187-1188;
Scott, supra, 424 N.E.2d at 72-73.
As stated earlier, the critical issue which a jury must decide in a case
involving a claim of
self-defense is whether or not the accused's belief that force is
necessary to protect himself against
imminent unlawful harm was reasonable. However, before the jury can make this
determination, it must have a standard of
reasonableness against which it can measure the accused's belief.
Courts have traditionally distinguished between standards of
reasonableness by characterizing them as either
"objective" or
"subjective." E.g.,
State v. Simon, 231 Kan. 572,
[*817] 646 P.2d 1119 (1982). An objective standard of
reasonableness requires the
factfinder to view the circumstances surrounding the accused at the time he used force
from the
standpoint of a
[**13] hypothetical reasonable and prudent person. E.g.,
Mendoza, supra, 258 N.W.2d at 272. Ordinarily, under such a
view, the unique physical and
psychological characteristics of the accused are not taken into consideration in judging the
reasonableness of the accused's belief. See
State v. Cadotte, 17 Mont. 315, 42 P. 857 (1895). See also
People v. Cisneros, 34 Cal.App.3d 399, 110 Cal.Rptr. 269 (1973);
State v. Baker, 103 Idaho 43, 644 P.2d 365 (1982);
State v. Rodriguez, 93 Idaho 286, 460 P.2d 711 (1969).
This is not the case, however, where a
subjective standard of
reasonableness is employed. See
State v. Wanrow, 88 Wash.2d 221, 559 P.2d 548 (1977). Under the
subjective standard the issue is not whether the circumstances attending the accused's
use of force would be sufficient to create in the mind of a reasonable and prudent person
the belief that the
use of force is
necessary to protect himself against immediate unlawful harm, but rather whether the circumstances
are sufficient to induce in
the accused an
honest and
reasonable belief that he must use force to defend himself against
imminent harm.
Jacob, supra, 222 N.W.2d at 588-589;
Hazlett, supra
[**14] , 113 N.W. at 381;
Wanrow, supra, 559 P.2d at 558-559;
State v. Kelly, 33 Wash.App. 541, 655 P.2d 1202 (1982);
State v. Adams, 31 Wash.App. 393, 641 P.2d 1207 (1982);
State v. Painter, 27 Wash.App. 708, 620 P.2d 1001 (1980). Cf.
People v. Robinson, 79 Mich.App. 145, 261 N.W.2d 544 (1977) [where the court did not impose a requirement that the
accused's belief be reasonable;
contra,
People v. Green, 113 Mich.App. 699, 318 N.W.2d 547 (1982)].
Neither Section 12.1-05-03, N.D.C.C., nor Section 12.1-05-08, N.D.C.C.,
explicitly states the viewpoint which the
factfinder should assume in assessing the
reasonableness of an accused's belief. Moreover, this court has not yet decided the issue of
whether Sections 12.1-05-03 and 12.1-05-08 should be construed as requiring an
objective or
subjective standard to measure the
reasonableness of an accused's belief under a claim of
self-defense. Finally, the legislative history of our
self-defense statutes, as well as the commentaries to the codified criminal statutes which
form the basis of the North Dakota Criminal Code, give no indication of a
preference for an objective standard of
reasonableness over a
subjective standard,
[**15] or vice versa. n5
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n5 One
defense in Chapter 12.1-05, N.D.C.C., which involves an objective standard is
entrapment. In Section 12.1-05-11(2), N.D.C.C., the Legislature, by the
specific words
"likely to cause
normally law-abiding persons to commit the offense," eliminated the
subjective test for that defense.
State v. Pfister, 264 N.W.2d 694 (N.D. 1978). See also
State v. Hoffman, 291 N.W.2d 430 (N.D. 1980);
State v. Unterseher, 289 N.W.2d 201 (N.D. 1980);
State v. Folk, 278 N.W.2d 410 (N.D. 1979);
State v. Mees, 272 N.W.2d 284 (N.D. 1978).
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We do, however, find guidance for our decision on this issue from past
decisions of this court which developed the law of
self-defense prior to the adoption in 1975 of Chapter 12.1-05, N.D.C.C. In 1907, the members of this court, confronted with the same issue
whether to adopt an objective or
subjective standard of
reasonableness, unanimously decided to accept the latter standard for judging the
reasonableness of an accused's belief because they believed
[**16] it to be more just than an objective standard.
Hazlett, supra, 113 N.W.2d at 380-381. As late as 1974, this court has confirmed that early decision.
Jacobs, supra, 222 N.W.2d at 588-589.
Because (1) the law of
self-defense as developed in past decisions of this court has been interpreted to require
the use of a
subjective standard of
reasonableness, and (2) we agree with the court in
Hazlett that a
subjective standard is the more just, and (3) our current law of
self-defense as codified in Sections 12.1-05-03, 12.1-05-07, and 12.1-05-08 does not
require a contrary conclusion, that is to say, our current law of
self-defense is consistent with either a
subjective or objective standard, we now decide that the finder of fact must view the
circumstances attending an accused's
use of
[*818] force from the
standpoint of the accused to determine if they are sufficient to create in the accused's
mind an
honest and
reasonable belief that the
use of force is
necessary to protect himself from
imminent harm.
Jacobs, supra, 222 N.W.2d at 588-589;
Hazlett, supra, 113 N.W. at 380;
People v. White, 42 Ill.Dec. 578, 87 Ill.App.3d 321, 409 N.E.2d 73 (1980);
People v. Pappas
[**17] , 23 Ill.Dec. 163, 66 Ill.App.3d 360, 383 N.E.2d 1190 (1978),
cert. denied
444 U.S. 843, 100 S. Ct. 85, 62 L. Ed. 2d 55 (1979);
People v. Kelly, 24 Ill.App.3d 1018, 322 N.E.2d 527 (1975);
Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234 (1977);
Wanrow, supra, 559 P.2d at 558-559;
Kelly, supra, 655 P.2d at 1203;
Adams, supra, 641 P.2d at 1209;
Painter, supra, 620 P.2d at 1003.
The practical and logical consequence of this interpretation is that an
accused's actions are to be viewed from the
standpoint of a person whose mental and physical characteristics are like the accused's
and who sees what the accused sees and knows what the accused knows.
Robinson, supra, 261 N.W.2d at 552;
Wanrow, supra, 559 P.2d at 558-559;
State v. Crigler, 23 Wash.App. 716, 598 P.2d 739 (1979);
Kelly, supra, 655 P.2d at 1203.
See also
Green, supra, 318 N.W.2d at 548-550. For example, if the accused is a timid, diminutive male, the
factfinder must consider these characteristics in assessing the
reasonableness of his belief. If, on the other hand, the accused is a strong, courageous, and
capable female, the
factfinder must consider these characteristics in judging
[**18] the
reasonableness of her belief.
In its statement of the law of
self-defense, the trial court instructed the jury:
"The circumstances under which she acted must have been such as to produce in
the mind of reasonably prudent persons, regardless of their sex, similarly
situated, the
reasonable belief that the other person was then about to kill her or do serious bodily harm to
her."
In view of our decision today, the court's instruction was a misstatement of
the law of
self-defense. A correct statement of the law to be applied in a case of
self-defense is:
"[A] defendant's conduct is not to be judged by what a reasonably
cautious person might or might not do or consider necessary to do under the
like circumstances, but what he himself in good faith
honestly believed and had reasonable ground to believe was necessary for him to do to
protect himself from apprehended death or great bodily injury."
Hazlett, supra, 113 N.W. at 380.
The significance of the difference in viewing circumstances from the
standpoint of the
"defendant alone" rather than from the
standpoint of a
"reasonably cautious person" is that the jury's consideration of the unique physical and
[**19]
psychological characteristics of an accused allows the jury to judge the
reasonableness of the accused's actions against the accused's
subjective
impressions of the need to use force rather than against those
impressions which a jury determines that a hypothetical reasonably cautious person would
have under similar circumstances.
Kelly, supra, 655 P.2d at 1203;
State v. Jones, 32 Wash.App. 359, 647 P.2d 1039 (1982);
Painter, supra, 620 P.2d at 1003;
Crigler, supra, 598 P.2d at 742. See also
Commonwealth v. Watson, 494 Pa. 467, 431 A.2d 949 (1981).
Hence, a correct statement of the law of
self-defense is one in which the court directs the jury to assume the physical and
psychological properties peculiar to the accused, viz., to place itself as best it can in
the shoes of the accused, and then decide whether or not the particular
circumstances surrounding the accused at the time he used force were sufficient
to create in his mind a sincere and
reasonable belief that the
use of force was
necessary to protect himself from
imminent and unlawful harm. See
Hazlett, supra, 113 N.W. at 380-381;
Wanrow, supra, 559 P.2d at 558-559;
Painter, supra, 620 P.2d at
[**20] 1003-1004. Cf.
Robinson, supra, 261 N.W.2d at 552.
Leidholm argued strongly at trial that her stabbing of Chester was done in
self-defense and in reaction to the severe mistreatment she received from him over
[*819] the years. Because the court's instruction in question is an improper
statement of the law concerning a vital issue in Leidholm's defense, we
conclude it amounts to reversible error requiring a
new trial. See
State v. Trieb, 315 N.W.2d 649 (N.D. 1982).
III
Although we decide that this case must be sent back to the district court for a
new trial, there still remain several other issues raised by Leidholm on appeal which
must be addressed to ensure a proper disposition of the case on remand.
Expert testimony was presented at trial on what has come to be commonly
referred to as the
"battered
woman
syndrome." Such testimony generally explains the
"phenomenon" as one in which a regular pattern of
spouse
abuse n6 creates in the
battered
spouse low self-esteem and a
"learned helplessness," i.e., a sense that she cannot escape from the
abusive relationship she has become a part of. See Comment,
The Admissibility of Expert Testimony on the
Battered
Woman
Syndrome
[**21]
in Support of a Claim of
Self-Defense,
15 Conn.L.Rev. 121 (1982).
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n6 Typically, the pattern begins with a tension-building phase, followed by an
intermediate phase where one
spouse physically, with undoubted
psychological effects, abuses the other, and a final phase where the battering
spouse feels remorse for his actions and then attempts to
"make up" with the
battered
spouse.
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The expert witness in this case testified that Janice Leidholm was the victim
in a battering relationship which caused her to suffer
battered
woman
syndrome manifested by (1) a
psychological
condition of low self-esteem and (2) a
psychological state of
"learned helplessness." On the basis of the expert testimony, Leidholm offered the following proposed
instruction on
battered
woman
syndrome:
"A condition known or described by certain witnesses as the 'battered wife
syndrome' if shown by the evidence to have existed in the accused at the time she
allegedly committed the crime charged, is not of itself a defense. However, as
a general
[**22] rule, whether an accused was assaulted by the victim of the
homicide prior to the commission of a fatal act by the accused may have relevance in
determining the issue of self defense.
"Whenever the actual existence of any particular purpose, motive or intent is a
necessary element to the commission of any particular species or degree of
crime, you may take into consideration evidence that the accused was or had
been assaulted by the victim in determining the purpose, motive or intent with
which the act was committed.
"Thus, in the crime of
murder of which the accused is charged in this case, specific intent is a
necessary element of the crime. So, evidence the accused acted or failed to act
while suffering the condition known as the 'battered wife
syndrome' may be considered by the jury in determining whether or not the accused acted
in self defense. The weight to be given the evidence on that question, and the
significance to attach to it in relation to all the other evidence in the case,
are for you the jury to determine." n7
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n7 Leidholm's counsel in his brief indicates that an instruction almost
identical with this one was given in
United States v. Mary Ann Ironshield, No. Cl-81-40 (D.N.D. 1982), and
United States v. Vicki Starr, No. Cl-79-33 (D.N.D. 1980).
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[**23]
The court's refusal to include the proposed instruction in its charge to the
jury, Leidholm contends, was error.
The
instruction on
battered
woman
syndrome was designed to support Leidholm's claim of
self-defense by focusing the jury's attention on the
psychological characteristics common to women who are victims in
abusive relationships, and by directing the jury that it may consider evidence that
the accused suffered from
battered
woman
syndrome in determining whether or not she acted in
self-defense. The instruction correctly points out that
battered
woman
syndrome is
not of itself a defense. In other words,
"The existence of the
syndrome
[*820] in a marriage does not of itself establish the legal right of the wife to kill
the husband, the evidence must still be considered in the context of
self-defense." n8
Kelly, supra, 655 P.2d at 1203.
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n8 And, if the particular facts of a defendant's case do not fit well with a
claim of
self-defense, the defendant perhaps should consider abandoning any such
claim because the law of
self-defense will not be judicially orchestrated to accommodate a theory that the existence
of
battered
woman
syndrome in an
abusive relationship operates in and of itself to justify or excuse a
homicide. When a
battered
spouse argues that a killing was committed in
self-defense, the issue raised is not whether the
battered
spouse believes that
homicide or suicide are the only available solutions to the problems she faces in her
relationship with the
abusive
spouse, nor is it whether the cumulative effect of a series of beatings caused the
battered
spouse to react violently
"under the influence of extreme emotional disturbance" by killing the batterer; under a claim of
self-defense the only issue is whether the circumstances surrounding the killing were
sufficient to create in the accused's mind
an
honest and sincere belief that the
use of deadly force is necessary to defend herself against
imminent unlawful harm. See
Kelly, supra, 655 P.2d at 1203.
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[**24]
There is nothing in the proposed instruction at issue which would add to or
significantly alter a correct instruction on the law of
self-defense. The jury's use of a
subjective standard of
reasonableness in applying the principles of
self-defense to the facts of a particular case requires it to consider expert testimony,
once received in evidence, describing
battered
woman
syndrome and the
psychological effects it produces in the
battered
spouse when deciding the issue of the
existence and
reasonableness of the accused's belief that force was
necessary to protect herself from
imminent harm. If an instruction given is modeled after the law of
self-defense which we adopt today, the court need not include a specific instruction on
battered
woman
syndrome in its charge to the jury.
IV
An inseparable and essential part of our law of
self-defense limits the
use of deadly force to situations
in which its use is
necessary to protect the actor against death or serious bodily injury. Sec. 12.1-05-07(2)(b),
N.D.C.C. However, the
use of deadly force by an actor in
self-defense is not justified if a
retreat from the
assailant can be accomplished with safety to the actor and others.
[**25] Sec. 12.1-05-07(2)(b), N.D.C.C. Thus, before it can be said that the
use of deadly force is
"necessary" to protect the actor against death or serious injury, it must first be the
case that the actor cannot
retreat from the
assailant with safety to himself and others. In short, the
use of deadly force is not necessary (and therefore not justified) within the meaning of our law
of
self-defense unless the actor has no safe avenue of
retreat. n9
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n9 This principle follows strictly from the language of Section
12.1-05-07(2)(b). It states that the
use of deadly
force is
justified if such force is
necessary to protect the actor against death or serious injury. It also states that the
use of deadly force is
not justified if the actor
can
retreat with safety to himself and others. Therefore, if the actor
can
retreat (and the
use of deadly force is not justified), the
use of deadly force cannot be necessary (i.e., justified); otherwise, the use of such force would
be at the same time both
"not justified" and
"justified."
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[**26]
The practical effect of this statement is that the jury must first satisfy
itself that an actor could not safely
retreat before it can find that the actor's
use of deadly force was
necessary to protect himself against death or serious injury. And the way in which the jury
determines whether or not the actor could not
retreat safely is by considering whether or not the actor
honestly and reasonably believed that he could not
retreat from his attacker with safety. See Sections 12.1-05-07(2)(b) and
12.1-05-08, N.D.C.C.; Note,
Justification: The Impact of the Model Penal Code on Statutory Reform,
75 Colum.L.Rev. 914, 938 (1975).
The duty to
retreat, however, is not a rule without exceptions. Section 12.1-05-07(2)(b),
N.D.C.C., provides, in part:
". . . (2)
no person is required to
retreat from his dwelling, or place of work,
unless he was the original aggressor or
is assailed by a person who he knows also
[*821] dwells or works
there." [Emphasis added.]
Included within the trial court's instruction to the jury on the law of
self-defense was a statement roughly equivalent to the underscored language above. Leidholm
maintains that the principle stated
[**27] by this language violates the Equal Protection Clause, the Due Process Clause,
and the Privileges and Immunities Clause of Article 14, Section 1, of the
Amendments to the United States Constitution. Her argument seems to be that
making an individual's
duty to
retreat from his dwelling dependent upon the status of the
assailant unduly discriminates against the accused if the attacker is a cohabitant. We
find no merit in this argument.
If the facts and circumstances attending a person's
use of deadly force against an
assailant who is a cohabitant are sufficient to create in his own mind an
honest and
reasonable belief that he cannot
retreat from the
assailant with safety to himself and others, his
use of deadly force is justified or
excused, and his failure to
retreat is of no consequence. See Sections 12.1-05-07(2)(b) and 12.1-05-08, N.D.C.C.
Cf.
Hazlett, supra, 113 N.W. at 380.
This is a certain corollary to the guiding principle in our law of
self-defense that the
reasonableness of an accused's belief is to be measured against the accused's
subjective
impressions and not against the
impressions which a jury might determine to be objectively reasonable.
V
Leidholm also argues
[**28] it was
error for the trial court to instruct the jury that
manslaughter is a lesser included offense of murder.
Whether or not a lesser included offense instruction on
manslaughter is appropriate in a murder trial depends upon the particular facts and
circumstances of the case. See
Trieb, supra, 315 N.W.2d at 656. We have no question that the court's instruction on
manslaughter was warranted in this case. See
Trieb, supra, 315 N.W.2d at 656-657; Vol. II, Working Papers, Comment on
Manslaughter, at 829 (1970).
Moreover, any time the court instructs a jury on
self-defense, it must of necessity include a special instruction on
manslaughter as well as an instruction on
negligent homicide. Sec. 12.1-05-08, N.D.C.C.; Vol. I, Working Papers, Comment on Excuse, at
271-272 (1970). See also
Scott, supra, 424 N.E.2d at 72-73. The difference between
self-defense and
manslaughter is the
reasonableness of the accused's belief that the
use of force is necessary to prevent
imminent unlawful harm. If the accused's belief is reasonable, he will be found to have
acted in
self-defense. If unreasonable, he is guilty of either
manslaughter or
negligent homicide, depending upon whether his
[**29] belief was held recklessly or negligently, respectively. Sec. 12.1-05-08,
N.D.C.C.; Final Report, Comment on
§ 608,
Excuse, at 52 (1971); Vol. I, Working Papers, Comment on Excuse, at 271 (1970). See
also
Weston, supra, 656 P.2d at 1187-1188;
Scott, supra, 424 N.E.2d at 72-73.
VI
Prior to the commencement of trial, Leidholm's attorney moved the district
court of McLean County for an order granting a
change of venue. The motion was denied, which Leidholm alleges was error.
According to Rule 21(a), N.D.R.Crim.P.,
"if the court is satisfied that there exists in the county or municipality where
the prosecution is pending so great a prejudice against the defendant that he
cannot obtain a fair and impartial trial," a motion for
change of venue should be granted.
Leidholm argues that the pre-trial publicity attending this case precluded the
possibility of her receiving a fair and impartial trial in McLean County. As
evidence of the prejudicial atmosphere which allegedly prevailed in McLean
County, Leidholm refers us to pre-trial local newspaper coverage of Chester
Leidholm's death plus selected comments of prospective jurors during voir dire.
[*822] A motion for
change
[**30] of venue is addressed to the sound discretion of the trial court, and the trial court's
decision on the motion will not be reversed absent a showing of abuse of
discretion prejudicial to the defendant.
State v. Engel, 289 N.W.2d 204 (N.D. 1980);
Olson v. North Dakota Dist. Court, Etc., 271 N.W.2d 574 (N.D. 1978).
In its order denying the pre-trial motion for
change of venue, the district judge stated that the newspaper coverage concerning Leidholm's
case did not
"exhibit or show a general attitude of prejudice or the distinct possibility of
prejudgment as to the issues involved in this case." And again, when the motion was renewed following voir dire examination of 12
members of the jury panel, the trial judge answered,
"I am satisfied at this point that a fair, impartial jury of 12 people can be
found amidst those 70 some people we have in this courtroom."
Our examination of the newspaper coverage preceding the trial as well as the
selected comments from the voir dire of the jury panel does not cause us to
take issue with the trial court's conclusions in support of its
denial of the motions for
change of venue. We find no abuse of discretion on the part of the trial court
[**31] in denying the motions.
However, this is not to say that a motion for
change of venue would be improper on remand, or that if made on remand, the trial court must
deny it. The import of our decision on this issue is that the trial court did
not, in view of the facts in existence at the time the motion was made and
renewed, abuse its discretion in denying the motions for
change of venue. Whether or not the publicity generated by the past trial or the events which
lead up to the
new trial require a
change of venue is a matter for the trial court to decide anew should it arise.
VII
The final issue which we will consider is whether or not the trial court erred
when it denied Leidholm's motion for judgment of acquittal at the close of the
State's case in chief.
Leidholm's argument is that the introduction of State's
Exhibit 17--notes of Dr. Thakor, a psychiatrist, recorded from two separate
interviews with Leidholm--provided some evidence of insanity which rebutted the
usual presumption of sanity and required the State to prove beyond a reasonable
doubt that she was sane at the time of the alleged murder. And, Leidholm
continues, because the State did not offer any proof of sanity
[**32] until after the defense had rested, the court should have granted the motion
for judgment of acquittal.
It is a generally accepted rule that a defendant is presumed to be sane at the
time he commits the offense for which he is charged. E.g.,
United States v. American Horse, 671 F.2d 286 (8th Cir. 1982). Yet it is not settled whether the defendant has the burden to introduce
evidence sufficient to overcome the presumption and place his mental capacity
at the time of the crime in issue, or whether such evidence may be introduced
by either side. There is some authority for the proposition that evidence
presented
by the State, as well as by the defendant, may be sufficient to rebut the
presumption of sanity.
United States v. Bettenhausen, 499 F.2d 1223 (10th Cir. 1974);
State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978);
Herron v. State, 287 So.2d 759 (Miss. 1974),
cert. denied
417 U.S. 972, 94 S. Ct. 3179, 41 L. Ed. 2d 1144 (1974). However, the prevailing view appears to be that the defendant has the burden
of rebutting the presumption and cannot rely on evidence presented by the State
which inadvertently may have the effect of negating the presumption.
United
[**33]
States v. Hearst, 563 F.2d 1331 (9th Cir. 1978),
cert. denied
435 U.S. 1000, 98 S. Ct. 1656, 56 L. Ed. 2d 90 (1978);
State v. Parker, 113 Ariz. 560, 558 P.2d 905 (1976);
Pierce v. State, 243 Ga. 454, 254 S.E.2d 838 (1979);
People v. Spears, 20 Ill.Dec. 445, 63 Ill.App.3d 510, 380 N.E.2d 423 (1978);
State v. Trask, 581 S.W.2d 417 (Mo. 1979);
State v. Hartley, 90 N.M. 488, 565 P.2d 658 (1977);
People v. Silver, 33 N.Y.2d 475, 354 N.Y.S.2d 915, 310
[*823] N.E.2d 520 (1974);
Bills v. State, 585 P.2d 1366 (Okla. 1978).
We do not have to decide now between these contrary positions because there is
a currently existing statutory basis in our law for a resolution of this issue.
Section 12.1-01-03(2) states, in pertinent part:
"2. Subsection 1 does not require [the State's] negating a defense: n10 . . .
b. by proof, unless the issue is in the case as a result of evidence
sufficient to raise a reasonable doubt on the issue." [Emphasis added.]
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 Insanity is a defense. Sec. 12.1-04-03, N.D.C.C. Rule 12.2, N.D.R.Crim.P.,
requires that a defendant who intends to rely upon this defense must give
notice of his intention to the prosecution. Leidholm gave notice of her
intention to proceed under Rule 12.2.
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[**34]
Regardless of the source of the evidence in this case, we conclude that State's
Exhibit 17 is insufficient to
"raise a reasonable doubt" on the issue of Leidholm's sanity, and therefore the State was not required in
its case in chief to prove beyond
a reasonable doubt that Leidholm was sane at the time in question. Leidholm
maintains that her mental capacity became an issue during the State's case in
chief with the introduction of State's Exhibit 17 because it contained Dr.
Thakor's diagnosis that Leidholm was suffering from
"depressive
neurosis," which is classified as a form of mental illness, and because it contained
several statements made by Leidholm to Dr. Thakor which, Leidholm suggests,
show she wasn't aware of her actions when she stabbed Chester.
We disagree for a number of reasons:
1. Leidholm's statements to Dr. Thakor which she believes give some indication
that she was not conscious of her actions when Chester was killed are of
dubious significance because State's Exhibit 17 also includes a statement by
Dr. Thakor that
"[she] seems to remember in great detail what has transpired about the episode
[i.e., stabbing Chester]."
2. Although Leidholm states in her brief
[**35] that
"depressive
neurosis" is a
mental illness, there is no corresponding statement in State's Exhibit 17 to
that effect. The equivalence established between
"depressive
neurosis" and mental illness is supplied by Leidholm in her brief, not by the exhibit at
issue.
3. Furthermore, even if we were to assume that it may readily be inferred from
the fact a person suffers from
depressive
neurosis that the person is mentally ill, we are unwilling to say that a person who is
mentally ill necessarily is insane and lacks responsibility for his criminal
conduct.
4. Lastly, the defense of lack of criminal responsibility by reason of mental
disease or defect requires that the claimed mental disease or defect exist
at the time of the alleged crime. It is obvious upon reading Dr. Thakor's notes that he diagnosed Leidholm as
presently suffering from
depressive
neurosis. There is no statement in State's Exhibit 17 which can reasonably be read as
an assertion that at the time of the alleged crime,
Leidholm had a mental disease or defect.
Consequently, State's Exhibit 17 does not raise the issue whether or not
Leidholm was sane when she stabbed Chester, and the court therefore did not err
[**36] in refusing to grant Leidholm's motion for judgment of acquittal.
The judgment of conviction is reversed and the case is remanded to the district
court of McLean County for a
new trial.
Pederson, Sand, Paulson, JJ., Erickstad, C.J., concur.
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