State v. Carothers, C8-98-86

CourtSupreme Court of Minnesota (US)
Writing for the CourtRUSSELL A. ANDERSON
Citation594 N.W.2d 897
PartiesSTATE of Minnesota, Respondent, v. Tony Lamar CAROTHERS, petitioner, Appellant.
Docket NumberNo. C8-98-86,C8-98-86
Decision Date17 June 1999

Page 897

594 N.W.2d 897
STATE of Minnesota, Respondent,
Tony Lamar CAROTHERS, petitioner, Appellant.
No. C8-98-86.
Supreme Court of Minnesota.
June 17, 1999.
Syllabus by the Court

A duty to retreat does not attach to defense of dwelling claims. So long as a person claiming defense of dwelling meets all of the criteria for making his or her claim - that the killing was done in the belief that it was necessary to prevent the commission of a felony in the dwelling, that the person's judgment as to the gravity of the situation was reasonable under the circumstances, and that the person's election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended - the person need not have attempted to retreat from his or her home.

John M. Stuart, Minnesota State Public Defender, Mark F. Anderson, Assistant State Public Defender, Minneapolis, for appellant.

Michael A. Hatch, Minnesota Attorney General, St. Paul, James Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant Dakota County Attorney, Hastings, for respondent.

Heard, considered, and decided by the court en banc.



Appellant Tony Lamar Carothers was convicted of second-degree felony murder in violation of Minn.Stat. § 609.19, subd. 2(1) (1998), and sentenced to 165 months' confinement. He argues that the trial court erred in instructing the jury that he had a duty to retreat before using deadly force to prevent the commission of a felony in his dwelling. We hold that the duty to retreat does not attach to defense of dwelling

Page 898

claims, 1 and that it was error for the trial court to instruct the jury that appellant was under a duty to retreat from his home before using deadly force to prevent the commission of a felony, first-degree burglary, within his home. Further, we hold that the trial court's erroneous instruction had a significant impact on the jury's verdict, and we therefore reverse appellant's conviction and remand this case for a new trial in accordance with our ruling.

This case arises from the shooting death of Kevin Lee. Sometime between Thanksgiving and Christmas of 1997, appellant moved into the trailer home owned by his girlfriend's mother. He lived there with his girlfriend Kayce Liebrecht, her 13-year-old brother, and her mother. The day that appellant moved in, Kayce's ex-boyfriend threatened to blow up the trailer and shoot everyone in it. Soon after, appellant purchased a .25 caliber handgun to protect the household. To prevent Kayce's 13-year-old brother from gaining access to the gun, appellant generally kept the gun on his person.

Shortly after he moved in, appellant met Kayce's neighbor's friend, Kevin Lee. Lee, nicknamed "Big Lee," was 6' tall, weighed 260 pounds, and had a muscular build. 2 Lee also owned a .45 handgun. A member of the Gangster Disciple gang, Lee bragged that he was a gang enforcer, meaning that he physically assaulted gang members to insure gang discipline. Lee had a reputation in the neighborhood as a violent and ruthless person who became even more intimidating when drunk.

On the night of the shooting, Lee and his cousin Rodney Lee went to appellant's house to play cards with appellant and Kayce. Over the next few hours, marijuana was smoked and everyone drank alcohol. Lee consumed all the beer he brought and became angry when appellant and Kayce charged him for additional beer and brandy. Some of Kayce's friends stopped by during the evening, and Kayce showed them appellant's handgun in the bedroom before they left. Kayce then returned the gun to appellant.

Later that night, Kayce and appellant decided to stop playing cards. Lee claimed that Kayce and appellant owed him twenty dollars on the last card game, and an argument erupted. Kayce's mother put a twenty dollar bill on the kitchen table and told her son to give it to Lee. Lee took the money from Kayce's brother and left with Rodney.

Kayce did not notice her brother giving Lee the twenty dollars, and she became angry upon learning of it. She wanted to follow Lee to retrieve the money, but appellant persuaded her not to leave. After Lee and Rodney left, only Kayce, her mother, her brother, and appellant remained in the trailer.

From this point on, accounts of the evening differ. Rodney claimed that he and Lee went to visit appellant's neighbor, but the neighbor did not let them in because Lee was drunk. They returned to appellant's house and entered after knocking. Rodney testified that appellant was holding his handgun when they entered. He stated that appellant asked them why they had taken the twenty dollars, and that Lee took off his coat and asked appellant why he had the gun out. Lee became angry because appellant was displaying his gun,

Page 899

and began walking toward appellant. Appellant then shot Lee until Lee turned and fell.

Appellant and Kayce's brother claimed that Lee and Rodney entered the trailer without knocking. Kayce's brother and mother testified that the argument about the twenty dollars resumed upon the Lees' entry. According to Kayce's brother, appellant tried to calm the situation, but Lee removed his coat and began talking about "stepping up," meaning he was going to fight appellant. Kayce's brother was afraid that Lee would "beat [appellant's] ass." However, as Lee neared to within arm's reach of appellant, appellant shot Lee six times, killing him.

The medical examiner testified that up until Lee collapsed, he would have been able to cause physical harm to others, and that the force of impact from the .25 caliber bullets would not have caused Lee to collapse immediately. Rodney testified that Lee did not collapse to the floor until after the last shot was fired.

Appellant was indicted for first-degree premeditated intentional murder, second-degree intentional murder, and second-degree felony murder. At trial, appellant acknowledged intentionally shooting Lee but claimed that he acted in self-defense and in defense of his dwelling. The trial court instructed the jury on both defenses, referring to the defense of dwelling as self-defense in one's abode. Over defense counsel's objection, the court instructed that for both self-defense and self-defense in one's abode the appellant had a duty to retreat if reasonably possible. During its deliberations, the jury asked:

Does the self defense retreat duty of retreat [sic] apply to self defense causing death in place of abode?

The trial court answered the question over the objection of defense counsel:

The legal excuse of self defense is available only to those who act honestly and in good faith, even in one's place of abode. This includes the duty to retreat or avoid the danger if reasonably possible.

One hour after the question was answered, the jury returned guilty verdicts to second-degree felony murder and a lesser-included offense of first-degree heat of passion manslaughter. Since the offenses arose from the same behavioral incident, the trial court properly entered conviction for the greater offense of second-degree felony murder and sentenced appellant to the presumptive sentence of 165 months' confinement.

On appeal, appellant argued that the trial court erred in instructing the jury that there is a duty to retreat before using deadly force to defend one's place of abode. The court of appeals affirmed appellant's conviction, holding that the duty to retreat applies to defense of dwelling claims when "the facts indicate only a defense of self within the dwelling, and * * * the victim has already been admitted to the home." State v. Carothers, 585 N.W.2d 64, 67 (Minn.App.1998).


Trial courts have considerable latitude in selecting the language of jury instructions so long as the instructions do not materially misstate the law. State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997).

Minnesota has recognized that a person who kills another in self-defense must have attempted to retreat if reasonably possible. See State v. Buchanan, 431 N.W.2d 542, 548 (Minn.1988); State v. Austin, 332 N.W.2d 21, 24 (Minn.1983). Appellant distinguishes his claim, asserting that there is no duty to retreat before using deadly force to prevent the commission of a felony in one's home. The state argues that self-defense within the home

Page 900

and defense of dwelling are so similar that defense of dwelling must incorporate the self-defense duty to retreat.

Although self-defense retreat requirements were debated in common law, it was settled that there was no duty to retreat while in or defending one's dwelling. Cf. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 5.9(b) (1986); Rollin M. Perkins, Self-Defense Re-Examined, 1 UCLA L.Rev. 133, 150-53 (1953). The special status of the home has persisted over time, obviating retreat requirements for people engaging in self-defense within their homes. " 'It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.' " Gainer v. State, 40 Md.App. 382, 391 A.2d 856, 862 (1978) (quoting People v. Tomlins, 213 N.Y. 240, 107 N.E. 496, 497-98 (1914)).

Minnesota has long adhered to the common law recognition of the home's importance, holding that "the house has a peculiar immunity [in] that it is sacred for the protection of [a person's] family." State v. Touri, 101 Minn. 370, 374, 112 N.W. 422, 424 (1907); see also State v. Hare, 575 N.W.2d 828, 832 (Minn.1998) (citation omitted) (noting that at common law "defense of the home [was] considered equivalent to defense of life itself"). A resident has traditionally been empowered to use force, even deadly force, when necessary to protect the home. Hare, 575 N.W.2d at 832.


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    • Supreme Court of Minnesota (US)
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1 books & journal articles
  • The self-defensive cognition of self-defense.
    • United States
    • American Criminal Law Review Vol. 45 No. 1, January 2008
    • 1 Enero 2008
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