State v. Charles

• Decision Date: 29 June 1982
• Docket Number: No. 16674,No. 28238,16674,28238
• Parties: STATE of Oregon, Respondent on Review, v. Anthony Arnold CHARLES, Petitioner on Review. CA; SC
• Court: Oregon Supreme Court

Page 897

647 P.2d 897

293 Or. 273

STATE of Oregon, Respondent on Review, v. Anthony Arnold CHARLES, Petitioner on Review.

CA No. 16674; SC No. 28238.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 4, 1982.

Decided June 29, 1982.

J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief was Gary D. Babcock, Public Defender, Salem.

William F. Gary, Sol. Gen., Salem, argued the cause for respondent on review. With him on the brief was James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., ^* and Robert C. Cannon, Asst. Atty. Gen., Salem.

ROBERTS, Judge.

We allowed review in this case to consider a single issue: under Oregon law, does a defendant, confronted by an assailant using deadly physical force, having an opportunity to retreat in safety, have a duty to retreat, or may he stand his ground and use deadly physical force against the assailant?

The facts of this case arose out of a street fight in Eugene which involved defendant and four other individuals; it is not necessary to recite the details. What is significant is that a homicide occurred and defendant was convicted of murder. At trial defendant relied on the defense of self-defense. He requested the following instruction:

"A person claiming the right of self-defense is not required to retreat or to consider whether he could safely retreat. If he is honestly and reasonably in fear of death or serious bodily harm he may stand his ground and use whatever force is reasonably necessary under the circumstances, even to the extent of taking the life of the attacker."

The court refused to give the requested instruction; defendant claims that was error.

Defendant relies on State v. Rader, 94 Or. 432, 443, 186 P. 79, 83 (1919) in which it was held to be error not to give the following instruction.

"I instruct you that when a man is where he has a right to be, retreat is not necessary and he is not bound to retreat until his back is at the wall, as is the old saying, but he may stand his ground and repel the attack and meet force with force if necessary, even to the extent of taking the life of his adversary." ¹

Defendant maintains that the language of Rader establishes that the law of Oregon is one of "no duty to retreat." There is, however, a long line of Oregon cases before and after Rader which can be read to hold that a defendant has a duty to retreat. Confusion is perhaps understandable.

The historical development of the question whether one is required to "retreat to the wall" or may stand his ground and defend himself contains many contradictions. One early twentieth century writer reports:

" 'A true man, who is without fault, is not obliged to fly from an assailant who by violence or surprise maliciously seeks to take his life, or to do him enormous bodily harm.' These words of the Supreme Court of Ohio were quoted with approval and followed by the Supreme Court of the United States in 1895. ¹ Two years later the same court sustained a charge to the effect that 'if he is attacked by another in such a way as to denote a purpose to take away his life, or to do him some great bodily harm ... he may lawfully kill the assailant ... provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling him without killing him, if it be in his power.' 2 These contradictory views, thus held by the same court at substantially the same time, have pretty evenly divided the jurisdictions in this country. One view must be right; both cannot be." Beale, Retreat from a Murderous Assault, 16 Harv.L.Rev. 567 (1903).

The two views have developed concurrently; jurisdictions have simply adopted one rule or the other. According to W. LaFave & A. Scott, Criminal Law, § 53 at 395-96 (1972) ² the majority of jurisdictions hold that a defender, who was not the original aggressor, need not retreat even if he can do so safely before using deadly force upon an assailant whom he reasonably believes will kill him or do him serious bodily harm. ³ A strong minority holds a defender must retreat before using deadly force if he can do so in complete safety. In 1926 the American Law Institute took a position favoring the "retreat" rule, recognizing it as the minority view. Restatement (First) of Torts § 65(2) (1934); Perkins, Self-Defense Re-examined, 1 U.C.L.A.L.Rev. 133, 150 (1954).

Professor Perkins concludes that the concurrent development of the "retreat" or "no retreat" rules is the basis of the current split among jurisdictions. He, likewise, concludes that the prevailing view is a "no retreat" rule, and identifies Oregon as one of the "no retreat" jurisdictions. Perkins, supra, 1 U.C.L.A. L.Rev. at 145, n. 76, citing State v. Rader, supra. However, Oregon cases decided subsequent to Rader have not followed it: there appears to be only a single instance in which it has been cited. ⁴ On the other hand, no Oregon case has explicitly held that there is a duty to retreat, but cases before and after Rader hold consistently that self-defense is to be justified on the basis of necessity, that is, retreat is excused when the danger to the defendant is so absolute and imminent that there is no possibility of avoiding the conflict with safety.

The Oregon legislature has had the opportunity to consider adopting a general rule requiring retreat. The final draft of the proposed 1971 Criminal Code specifically dealt with this subject. It provided:

"Notwithstanding the provisions of (ORS 161.209), a person is not justified in using deadly physical force upon another person unless he reasonably believes that the other person is:

" * * *

"(3) Using or about to use unlawful deadly force; however, a person shall not use deadly physical force in defense of himself if he knows that he can with complete safety avoid the necessity of using such force by retreating. A person is under no duty to retreat if he is:

"(a) In his dwelling and is not the original aggressor; or

"(b) A peace officer or a person assisting a peace officer at his direction, acting under (ORS 161.249)." Proposed Oregon Criminal Code, § 23 at 22 (1970).

The rule was rejected. The commentary to the proposed code noted that, under the case law as it had developed in Oregon, the statute was probably not necessary. Commentary, Proposed Oregon Criminal Code, § 23 at 23-25 (1970); Commentary, Oregon Criminal Code of 1971 § 23 at 22-24 (1975). Oregon case law, then controls the subject, and we turn now to a review of that case law.

In State v. Porter, 32 Or. 135, 157, 49 P. 964, 970 (1897) this court found no error in an instruction stating that the danger justifying self-defense "must be absolute, imminent, and unavoidable, or the defendant must, from all the circumstances, have honestly believed it to be so." State v. Gibson, 43 Or. 184, 73 P. 333 (1903) lays down guidelines for various self-defense situations. See infra note 3. Where the attack is without deadly force, "(t) he right of self-defense being founded upon necessity, the party who would invoke it must avoid the attack, if he can do so without danger or peril to himself." Where the defendant provoked the attack, he must withdraw and

"in good faith retreating to a place of apparent safety, and then, if his antagonist pursues him and renews the encounter by an attack such as to endanger life, he may protect his own life by killing his aggressor." 43 Or. at 192, 73 P. at 336.

Where the assault is without provocation, and

"a man, being upon his own premises, or in a place where he has a right to be, is assailed * * * by a person with a deadly weapon, and apparently seeking his life, he is not obliged to retreat, or consider whether he could safely do so, but may stand his ground, and meet the attack in such a way and with such force as, under all the circumstances, he at the moment honestly believes and has reasonable ground to believe is necessary to save his own life or protect himself from great bodily harm." 43 Or. at 193, 73 P. at 336.

Soon after Rader, in State v. Butler, 96 Or. 219, 242-43, 186 P. 55, 60-61 (1920), overruled on other grounds, 260 Or. 416, 490 P.2d 491 (1971), the following instruction was found to be without error:

" 'The law regards human life as the most sacred of all interests committed to its protection, and there can be no setting up of self-defense, unless the necessity of taking human life is actual, present, urgent, unless, in a word, the taking of his adversary's life is the only reasonable resort of the party to save his own life or his person from deadly harm or severe calamity felonious in its character, or from all of the circumstances he had reasonable ground to believe his life or person was in such grave danger.' "

In State v. Holbrook, 98 Or. 43, 71, 188 P. 947, 956 (1920), reh den 98 Or. 43, 192 P. 640 (1920) second reh den 98 Or. 43, 193 P. 434 (1920), defendant objected to an instruction which stated:

"It must be danger so urgent that the killing is absolutely or apparently absolutely necessary, and the danger must not have been brought on by the slayer."

Defendant there argued that the use of the word "absolutely" required him to establish with mathematical certainty his claim of self-defense. Relying on Porter, supra, which upheld the use of the word "absolute", we said, "(t)he measure of proof required of (defendant) in such a case is not mathematical demonstration, but enough merely to raise a reasonable doubt of his guilt in the minds of the jurors." 98 Or. at 72, 188 P. at 956. The Holbrook instruction was upheld. State v. Banks, 147 Or. 157, 32 P.2d 571 (1934) also allowed the use of the word "absolutely", relying on Porter, supra, and Holbrook, supra. The challenged instruction in Banks stated:

"To justify homicide, the defendant may act upon an honest or well founded belief that it is necessary to take life to prevent death or...