On March 11, 2014, a jury convicted Myah Evans Batie of domestic violence in violation of R.C. 2919.25(A) with a prior conviction specification. The charge arose out of a physical altercation between Batie and her husband, where the husband called 911 for assistance. Batie appealed. The Ohio Court of Appeals affirmed.

[On direct examination, Officer Todd Simpson testified as follows at Myah Evans Batie’s trial:] Q. And when you respond to a domestic violence call, is it your duty to determine who is the primary physical aggressor? A. Yes, it is. Copyright 2017 Ccngagc Learning. Alt Rights Reserved . May not be copied, scanned. or duplicated. in whole or in part. Due to electronic rights, some third party content may be suppressed from the cBook and/or eChapter(s) Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Leaming reserves the right to remove additional content at any time if subsequent rights restrictions require it Q. Based on your conversation in speaking with the victim … outside, in speaking with the defendant inside, your observations, what did you conclude? A. The observations of the evidence proved that Miss BatieDefense Counsel: Objection. The Court: Overruled. A. Miss Evans started the disturbance, continued and assaulted and injured her husband. Q. And what was your basis for coming to that conclusion? A. His bruising obviously on his face, the scratches, bite marks on his arm, and I think his leg.

A claim of self-defense requires the defendant prove by a preponderance of the evidence that ( 1) she “was not at fault in creating the situation giving rise to the affray” ; (2) that she “had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape from such danger was in the use of such force;” and (3) “that she did not violate any duty to retreat or avoid danger.”

The first prong of the test asks, in essence, whether the defendant was the initial aggressor. While the primary physical aggressor inquiry is not necessarily the same as whether a person was the initial aggressor, the primary aggressor question can nonetheless undermine a claim of self-defense. This is especially true when an officer’s testimony goes beyond the primary aggressor inquiry and treads into the realm of who initiated the altercation. That is exactly what happened in this case.

A careful review of the record in this case establishes that Officer Simpson did opine on an ultimate issue in the domestic violence defense. When asked what conclusions he drew based on his observations, Simpson responded by saying that the observations of the evidence proved that Batie “started the disturbance, continued, and assaulted and injured,” her husband (emphasis added). Simpson did not simply testify as to the reason why he treated Batie as the primary physical aggressor and choose to proceed with charging her-testimony that would otherwise be admissible. Rather, Simpson asserted that his observations proved Batie started the affray. This is exactly the type of improper testimony that must be omitted from trial, and we find that the trial court abused its discretion by allowing it.

Notwithstanding our determination that the trial court abused its discretion, we must nevertheless overrule the assignment of error because the testimony amounted to harmless error. Any error, defect, irregularity or variance which does not affect the substantial rights of the defendant shall be disregarded. The term “substantial rights” has been interpreted to require that the error be prejudicial-that is that it must have affected the outcome of the trial court proceedings.

Here, it cannot be said that allowing the testimony resulted in prejudice to the defendant. At trial, the state introduced numerous photographic exhibits detailing the extent of the husband’s injuries. Many of these exhibits detailed what appeared to be numerous, severe, scratch marks down the length of the husband’s face. The photos also depicted a large burn mark on his forearm- which corroborated the husband’s testimony that Batie attacked him with a hot iron. Other photos depicted what appeared to be bite marks on the husband’s upper arm, and pictures showing a bloody, swollen lip. Further, Simpson testified that when he arrived at the Batie household, the appellant did not have any visible marks on her that would indicate that her husband had been physical with her. In fact, the only evidence supporting Batie’s claim that she was acting in self-defense, was her own trial testimony. Therefore, even if the trial court had excluded Simpson’s improper testimony, it cannot be said that the exclusion would have had any effect on the outcome of the case.

Batie [also] argues that the jury’s verdict was against the manifest weight of the evidence. In a manifest weight analysis, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and … resolves conflicts in the evidence. An appellate court may not merely substitute its view for that of the jury, but must find that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

When analyzing a manifest weight challenge, appellate courts must give special deference to the conclusion reached by the trier of fact. Accordingly, reversal on manifest weight grounds is reserved for the exceptional case in which the evidence weighs heavily against the conviction.

We cannot say that this is the exceptional case that warrants reversal because the jury clearly lost its way. While contradictory testimony was presented by both the victim and the defendant at trial, the pictures of the victim’s injuries, together with the fact that Officer Simpson testified that there was not a mark on the appellant, is enough for a jury to conclude that Batie committed an act of domestic violence against her husband and was not acting in self-defense. Batie’s second assignment of error is also overruled. Judgment affirmed.

Questions

1. List all the facts relevant to deciding whether Myah Batie was the initial aggressor.

2. Summarize the court’s arguments to support its decision.

3. According to the court, what’s the difference between a “primary physical aggressor” and an “initial aggressor”?

4. Do you agree that Myah Batie was the original or primary aggressor? Defend your answer.

5. Explain how the court found Myah the primary aggressor, and therefore her husband was not guilty. Do you agree? Defend your answer.

Charles E. Haynes (Defendant-Appellant) entered a conditional plea of guilty in the United States District Court for the Western District of Wisconsin, to assault. Haynes appealed. The Court of Appeals affirmed.

Nelson Flores-Pedroso was playing dominoes after lunch in the cafeteria of the federal prison in Oxford, Wisconsin, when Charles Haynes emerged from the kitchen and poured scalding oil on his head. Severely burned over 18 percent of his body, Flores-Pedroso is disfigured for life. Haynes pleaded guilty to assault, and was sentenced to 33 months’ imprisonment (consecutive to the ten-year term he was serving for a drug offense). The guilty plea reserved the right to argue on appeal that the district judge erred in foreclosing Haynes from arguing to the jury that the attack was justified as a measure of self-defense.

Self-defense? How can a sneak attack be self-defense? Haynes made an offer of proof that Flores-Pedroso was a bully who had a reputation for coercing smaller inmates (such as Haynes) to provide favors of all kinds-food, commissary items, and sex. About a month before the incident in the cafeteria, Flores-Pedroso began pressuring Haynes to use Haynes’ position as a food preparer in the kitchen to do favors for him. Haynes refused, and in response Flores-Pedroso threatened to make Haynes his “bitch” (homosexual plaything).

For the next month stare downs and jostling occurred, while Flores-Pedroso kept up a stream of threats. One time Flores-Pedroso cornered Haynes in a bathroom, and Haynes thought that rape was imminent, but another inmate entered and Flores Pedroso left.

A day before Haynes poured the oil, Flores-Pedroso picked up Haynes and slammed him to the ground within sight of a guard, who did nothing. On the day of the oil incident, Flores-Pedroso told Haynes that as soon as food service was closed for the afternoon he would “finish what he started.” Haynes contends that he believed that he would be attacked as soon as he left the cafeteria, and that he struck first in order to protect himself.

Under the law of the jungle a good offense may be the best defense. But although prisons are nasty places, they are not jungles-and it is the law of the United States rather than Hobbes’ state of nature that regulates inmates’ conduct. Haynes concedes that he never reported Flores-Pedroso to the guards or sought protection-protection a prison is constitutionally obliged to provide. Haynes asserted in his offer of proof: He could not go to “the police” – a term used to describe the guards. If the guards elected to take him out of population, he would be forced to stay in administrative segregation which meant 24-hour-per-day lock-up. If his protective custody status resulted in a transfer, all the inmates of the receiving institution would know that he was in protective custody, for being victimized by another inmate and by being a “snitch,” which would result in further victimization and perhaps invite an assault by not just one inmate, but several. If Haynes went to the guards and they did not believe him and left him in population, things would only get worse. He would certainly be attacked, not only by [Flores] Pedroso, but by others who labeled him a “snitch.” Haynes did not believe he could go to the guards and help himself in any appreciable way.

In other words, Haynes did not fancy the prospect of administrative segregation, feared the consequences of appearing to be an informer, and decided that it was better to take matters into his own hands. What his claim of self-defense comes down to is the proposition that an inmate is entitled to attack and maim a prison bully even if there is ample time to report the threats and obtain protection from the guards.

The district court ruled that Haynes would not be allowed to argue self-defense or inform the jury about Flores-Pedroso’s threats. The evidence and line of defense Haynes wanted to pursue, as the district court saw things, was just a request for jury nullification-a plea to jurors to let the Davids of federal prisons smite the Goliaths, to give the predators a taste of their own medicine, without legal consequences. The judge ruled that an inmate must use available, lawful options to avoid violence, even if they find those options unpalatable. Haynes asks us to hold that the existence of lawful alternatives is irrelevant to a claim of self-defense.

All doubts about the role of lawful alternatives to one side, it is hard to see how Haynes’ offer of proof conforms to the normal understanding of selfdefense: a use of force necessary to defend against an imminent use of unlawful force. Haynes was not faced with an imminent use of force by FloresPedroso. There was a threat of action later that afternoon, but Flores-Pedroso had made unfulfilled threats before, and anyway “later” and “imminent” are opposites.

A judge may, and generally should, block the introduction of evidence supporting a proposed defense unless all of its elements can be established. But we need not dwell on timing, because we agree with the district judge’s reason: absence of lawful alternatives is an element of all lesser-evil defenses [ see “Choice of Evils,” on p. 192], of which self-defense is one. When A threatens B, and B hits A, the defense receives the name “self-defense.” When A threatens C, and B hits A, the name is “defense of another.”

But in all of these cases, the defense fails if the use of force was unjustified. This is the idea behind the “imminence” requirement (if the threat is not imminent, a retreat or similar step avoids injury) as well as the requirement that the object of the threat prefer a lawful response to an unlawful one.

Prisons collect violent persons who have little respect for the law, which makes them hard to control without the use of devices such as segregation that are unpleasant in their own right. If prisoners could decide for themselves when to seek protection from the guards and when to settle matters by violence, prisons would be impossible to regulate. The guards might as well throw the inmates together, withdraw to the perimeter, and let them kill one another, after the fashion of the movie Escape from New York (1981).

Perhaps Haynes was hoping that a jury would have this view of the right way to manage prisons. But it is not the view reflected in the United States Code or the United States Constitution. A prisoner who requests protection from the guards without success (or who lacks time to do so) may defend himself with force proportioned to the threat. But Haynes, who listened to Flores-Pedroso’s menaces for a month without seeking help, had no conceivable justification for a preemptive strike. The district judge correctly barred Haynes from making his proposed defense. Affirmed.

1. List the facts and circumstances relevant to deciding whether Charles Haynes was entitled to the defense of self-defense.

2. State the court’s definition of “imminent” danger.

3. Summarize the court’s arguments for ruling against imminent danger.

Bernhard Goetz (defendant) was indicted for criminal possession of a weapon, attempted murder, assault, and reckless endangerment. The Supreme Court, Trial Term, New York County, dismissed the indictment and the People appealed. The Supreme Court, Appellate Division affirmed, and the People appealed. The Court of Appeals reversed and dismissed, and reinstated all the counts of the indictment.

On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in the Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench toward the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38-caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed toward Chambers Street.

Canty approached Goetz, possibly with Allen beside him, and stated, “Give me five dollars.” Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun, and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur’s arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab.

After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Ca bey’s side and severed his spinal cord.

All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently taken cover, also laying on the floor.

Goetz told the conductor that the four youths had tried to rob him. While the conductor was aiding the youths, Goetz headed toward the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks, and fled.

Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed and has suffered some degree of brain damage.

On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier.

Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

According to Goetz’s statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked, “How are you?” to which he replied, “Fine.” Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car.

Canty then said, “Give me five dollars.” Goetz stated that he knew from the smile on Canty’s face that they wanted to “play with me.” Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being “maimed.”

Goetz then established “a pattern of fire,” deciding specifically to fire from left to right. His stated intention at that point was to “murder, to hurt them, to make them suffer as much as possible.” When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four.

Goetz recalled that the first two he shot “tried to run through the crowd but they had nowhere to run.” Goetz then turned to his right to “go after the other two.” One of these two “tried to run through the wall of the train, but … he had nowhere to go.” The other youth (Cabey) ” tried pretending that he wasn’t with [the others],” by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him.

He then ran back to the first two youths to make sure they had been “taken care of.” Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, “I said, ‘you seem to be all right, here’s another,”‘ and he then fired the shot which severed Cabey’s spinal cord. Goetz added that “If I was a little more under self-control. .. I would have put the barrel against his forehead and fired.” He also admitted that “If I had had more [bullets], I would have shot them again, and again, and again.”

After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a grand jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this grand jury.

On January 25, 1985, the grand jury indicted Goetz on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02) for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01) for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

Several weeks after the grand jury’s action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second grand jury. Supreme Court, Criminal Term, after conducting an in camera [in the judge’s chambers] inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident.

Goetz again chose not to testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first grand jury.

On March 27, 1985, the second grand jury filed a ten-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25[1]), four charges of assault in the first degree (Penal Law § 120.10[1]), one charge of reckless endangerment in the first degree (Penal Law§ 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of a loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.

On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment, alleging, among other things, that the prosecutor’s instructions to that grand jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective.

On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey’s hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him.

The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings and that Canty had said to him, “We were going to rob [Goetz].” The prosecutor immediately disclosed this information to the Court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information.

In an order dated January 21, 1986, the Court, after inspection of the grand jury minutes held that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz’s conduct was that of a “reasonable man in [Goetz’s] situation.”

The Court concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant’s state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case. [We disagree.]

Penal Law article 35 recognizes the defense of justification, which “permits the use of force under certain circumstances.” One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15(1) sets forth the general principles governing all such uses of force: A person may use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably [emphasis added] believes to be the use or imminent use of unlawful physical force by such other person. Section 35.15(2) sets forth further limitations on these general principles with respect to the use of “deadly physical force”: A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless a. He reasonably believes [emphasis added] that such other person is using or about to use deadly physical force or b. He reasonably believes [emphasis added] that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery.

Section 35.15(2)(a) further provides, however, that even under these circumstances a person ordinarily must retreat if he knows that he can with complete safety to himself and others avoid the necessity of using deadly physical force by retreating.

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor “reasonably believes” that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery.

As to the need for the use of deadly physical force as a response, the statute requires that the actor “reasonably believes” that such force is necessary to avert the perceived threat. While the portion of section 35.15(2)(6) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate “retreat” requirement, it is clear from reading subdivisions (1) and (2) of section 35 .15 together, as the statute requires, that the general “necessity” requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2)(6).

Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury. The prosecutor properly instructed the grand jurors to consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law§ 35.15. The defense does not contend that he committed any error in this portion of the charge.

When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term “reasonably believes.” The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine “whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.” It is this response by the prosecutor-and specifically his use of “a reasonable man”-which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division’s plurality opinion, because section 35 .15 uses the term “he reasonably believes,” the appropriate test, according to that court, 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 defendant’s situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term “reasonably” in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.

Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in selfdefense. These provisions have never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness [ emphasis added] …. plurality below agreed with defendant’s argument that the change in the statutory language from “reasonable ground,” used prior to 1965, to “he reasonably believes” in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard.

We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. …