West Virginia Homicide Jury Instructions Project
Professor James R. Elkins & Students at the West Virginia
University College of Law [Spring]
Standard Jury Instruction: One of the questions to be determined by you in this case is whether or not the Defendant acted in self-defense so as to justify his acts. Under the laws of this state, if the Defendant was not the aggressor, and had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, then he had the right to employ deadly force in order to defend himself. Deadly force is meant force which is likely to cause death or serious bodily harm.
In order for the Defendant to have been justified in the use of deadly force in self-defense, he must not have provoked the assault on him or have been the aggressor. Mere words, without more, do not constitute provocation or aggression.
Proposed Jury Instruction: A defendant who claims self-defense must have acted in the reasonable belief that he was in imminent danger of death or serious bodily harm. The defendant must present evidence to show that [he][she] believed it was necessary to use deadly force in order to save himself from death or serious bodily harm, that the belief was reasonable, and in the use of force he was not the aggressor.
When the defendant presents evidence of self-defense, the State is required to prove beyond a reasonable doubt that the defendant did not act in self-defense. If the State does not meet that burden, your verdict must be not guilty.
Some of the terms used in a criminal prosecution have a meaning that might be different from ordinary, everyday use of the terms. In your deliberations, you must, in evaluating defendant's claims of self-defense, use the following definitions:
An aggressor is a person who starts the altercation by use of physical force or, continues to use force when the initial aggressor withdraws or clearly communicates a desire to withdraw. An aggressor is one who responds with disproportionate force, that is more force than is necessary, to repel an attack.
Deadly force is any force that is likely to cause death or serious bodily harm.
Serious bodily harm is any impairment of a person's physical condition that creates a substantial risk of death.
Before a defendant can claim self-defense, the danger to the defendant must have been imminent. Imminent means near at hand, impending, on the point of happening, threatening to occur.
To accept the defendant's claim of self-defense, you must find that the defendant's belief that [he] [she] was in imminent danger to be a reasonable belief. A belief in the imminence of danger is reasonable if an ordinary prudent person, knowing what the defendant knew and being in the same circumstances as the defendant, would have acted to protect [himself] [herself]. The reasonableness of the defendant’s belief depends upon all the circumstances [including any past actions or conduct of the victim as it may have been known by or directed toward the defendant, including threats of violence.] [You may also consider, in your determination of the reasonableness of the defendant's belief, the general reputation of the victim as it was known by the defendant at the time of the claimed self-defense.]
A person who:
If the defendant was the original aggressor, then [he] [she]:
1. Self-defense constitutes a complete justification for a homicide. State v. Kirtley, 162 W.Va. 249, 262, 252 S.E.2d 374, 381 (W.Va. 1978).
2. In West Virginia, the law governing the use of self-defense has been stated by the Court as follows: “[A] defendant who is not the aggressor and has reasonable grounds to believe, and actually does believe, that he is in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant has the right to employ deadly force in order to defend himself.” State v. W.J.B., 166 W.Va. 602, 606, 276 S.E.2d 550, 553 (W.Va. 1981).
Evidentiary Thresholds & Burden of Proof :
2. Once there is sufficient evidence in the case to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Kirtley, 162 W.Va. 249, 262, 252 S.E.2d 374, 381 (W.Va. 1978).
3. The question of the sufficiency of an overt act or hostile demonstration to show a design real or apparent to do him great bodily harm, which would warrant the defendant acting in self-defense, is purely a question for the jury. State v. McMillion, 104 W. Va. 1, 10-11 (1927).
1. An expert's testimony may be used by the jury to aid in determining whether, under the circumstances, a reasonable person would have believed there was imminent danger to a defendant’s life. State v. Steele, 178 W. Va. 330 (1987).
1. An aggressor is a party who initiates use of force, either deadly or non-deadly, that justifies response in like force. People v. Peoples, 255 N.W.2d 707 (Mich. App. 1977).
Mere words, without more, do not constitute provocation or aggression. State v. Brooks, 591 S.E.2d 120, 124, 214 W.Va. 562, 566 (W.Va. 2003).
2. The defendant may not rely on self defense where he was the aggressor. State v. Knotts, 187 W.Va. 795, 421 S.E. 2d 917 (1992).
The doctrine of self-defense cannot be successfully invoked where defendant was the aggressor, where he used more force than was reasonably necessary for his protection, or where, after the assault had terminated and all danger past, he struck or beat the aggressor by way of revenge. Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713 (W.Va. 2001).
3. A defendant's role may shift from aggressor to victim during the course of an altercation because only reasonable and proportionate force may be used to repel an assault. Where a person assaulted uses disproportionate force to repel an attack, the privilege of self-defense is lost and the person so assaulted is entitled to defend himself. State v. Brooks, 591 S.E.2d 120, 125, 214 W.Va. 562, 567 (W.Va. 2003).
1. In addressing the standard by which the reasonableness of an individual’s beliefs and actions in self-defense must be judged, we have recognized that the reasonableness of such beliefs and actions must be viewed in light of the circumstances in which he acted at the time and not measured by subsequently developed facts. State v. Plumley, 184 W.Va. 536, 540, 401 S.E.2d 469, 473 (W.Va. 1990).
2. The reasonableness of the defendant’s belief and conduct may depend on the past actions of the deceased, and for this reason the victim’s history of threats, brandishing of arms, and violence toward the defendant and his family and his general reputation for violence are admissible evidence on the issue of self-defense. State v. W.J.B., 166 W.Va. 602, 613, 276 S.E.2d 550, 556 (W.Va. 1981).
3. The circumstances under which the defendant acted “must have been such as to produce in the mind of a reasonable prudent person, similarly situated, the reasonable belief that the other person was then about to kill him or do him serious bodily harm.” State v. Plumley, 184 W.Va. 536, 540, 401 S.E.2d 469, 473 (W.Va. 1990)(quoted language comes from a jury instruction given by the trial court and approved by the West Virginia Supreme Court).
2. A defendant may use only non-deadly force where he is threatened with only non-deadly force. State v. Knotts, 187 W.Va. 795, 801, 421 S.E.2d 917, 923 (W.Va. 1992) (citing State v. Baker, 356 S.E.2d 862 (W.Va. 1987).
2. “The Court instructs the jury that when there is a quarrel between two or more persons and both or all are at fault, and the combat as the result of such quarrel takes place and death ensues as a result, in order to reduce the offense to killing in self-defense, two things must appear from the evidence and circumstances in the case:
State v. Boggess, 512 S.E.2d 189, 195 (W.Va.,1998).
3. In case of affray, where retreat is necessary before taking the adversary's life in self-defense, that retreat must be in good faith, not as a cover to execute a fixed design to kill. State v. Hood, 59 S.E. 971, 971 (W.Va., 1907).
Duty to Retreat:
1. West Virginia currently has no "proposed" jury instruction on the issue of duty to retreat. West Virginia case law was used in the new proposed instruction on duty to retreat.
2.“A person who is without fault in an altercation has no duty to retreat while acting in self defense. If the person is in a substantial degree at fault, he must retreat if able to do so, however, if from the fierceness of the attack or if they are prevented from retreating, or for other reasons they are unable to retreat, they will be excused by the law from not doing so.” State v. Dinger, 624 S.E.2d 572, 575 (W.Va., 2005).
Prior Reputation of the Victim:
1. Evidence of prior acts of violence toward a defendant by the deceased is relevant because it relates to the reasonableness of the defendant's belief that the deceased intended to inflict serious bodily injury or death. State v. Steele, 178 W. Va. 330, 336 (1987).
Where self-defense is relied upon to excuse homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man; and, to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof. State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922).
2. When in a prosecution for murder the defendant relies upon self-defense to excuse the homicide and the evidence does not show or tend to show that the defendant was acting in self-defense when he shot and killed the deceased, the defendant will not be permitted to prove that the deceased was of dangerous, violent and quarrelsome character or reputation. State v. Collins, 154 W. Va. 771, 180 S.E.2d 54 (1971).
If there is no evidence that the defendant believed an imminent danger to herself or others existed when deadly force was used, evidence of the deceased’s prior conduct is inadmissible and a self defense instruction is not warranted. State v. Smith, 198 W. Va. 441 (1996).
Felony Murder: Self defense and provocation are defenses that are not available to defendants in felony murder prosecutions. State v. Wade, 200 W. Va. 637; 490 S.E.2d 724 (W.Va., 1997).