State v. Graham

• Decision Date: 18 February 1972
• Docket Number: No. 41744,41744
• Citation: 292 Minn. 308,195 N.W.2d 442
• Parties: , 55 A.L.R.3d 993 STATE of Minnesota, Respondent, v. George Allen GRAHAM, Appellant.
• Court: Minnesota Supreme Court

Page 442

195 N.W.2d 442

292 Minn. 308, 55 A.L.R.3d 993

STATE of Minnesota, Respondent, v. George Allen GRAHAM, Appellant.

No. 41744.

Supreme Court of Minnesota.

Feb. 18, 1972.

Syllabus by the Court

1. The trial court should have instructed the jury that an aggressor in a conflict may revive his right to assert selfdefense if he makes a clearly evinced withdrawal which the deceased noticed or should have noticed.

2. The failure to instruct the jury that an aggressor's right of self-defense revives when he withdraws from the conflict was harmless error. Defendant did not fulfill his duty to retreat or avoid the conflict. The only issue in the trial was whether defendant acted reasonably by refusing to retreat, and the jury found that he had not.

3. Evidence of deceased's bad character was properly excluded where defendant and deceased were strangers and no real dispute existed concerning the confrontation.

C. Paul Jones, Public Defender, G. Thomas MacIntosh II and Edgar H. Rex, Jr., Minneapolis, for appellant.

Warren R. Spannaus, Atty. Gen., Paul J. Tschida, Sp. Asst. Atty. Gen., St. Paul, J. Jerome Kluck, County Atty., John O. Sonsteng and George L. May, Asst. Co. Atty., Hastings, for respondent.

Heard befoe KNUTSON, C. J., and ROGOSHESKE, PETERSON, and KELLY, JJ.

OPINION

KELLY, Justice.

Defendant appeals from an order of the district court denying a motion for a new trial after his conviction for first-degree manslaughter. The issues presented for review are whether the trial court erred by refusing to instruct the jury that an aggressor who withdraws may regain the right to assert self-defense and whether evidence relating to the bad character of the deceased was properly excluded. We affirm.

The chain of events which led to the fatal encounter began in the evening of July 27, 1968, when a group calling itself the El Foresteros Motorcycle Club met in a park in the city of Hastings for an allnight drinking party. After midnight, a group of young men from Hastings, including defendant, went to the park to associate with the cyclists. Toward dawn several of the cyclists apparently began harassing the Hastings men. Defendant's watch was taken, and he fled from the park, leaving his car. One of the Hastings men testified that one of the cyclists had a gun. Concerned about his car, defendant returned to the park armed with a shotgun. Within the next hour he fired several shots into the cyclists' camp. When this failed to intimidate the cyclists, defendant and a companion who was then carrying the shotgun began to walk back to town.

While leaving the park the two Hastings men suddenly noticed deceased, one Michael Roger Tracy, walking toward them between 75 and 100 feet away. Defendant warned deceased to stay away and slowly walked backwards. Deceased, however, advanced more quickly, holding a stick or a club. Defendant told his companion to shoot, but his companion refused. Defendant then took the gun and shot deceased at a distance of about 60 feet. Defendant testified that he shot in self-defense and that he could not fire a warning shot because the gun was broken and could only be fired in a single-shot manner. Defendant stated that he did not run away because he thought other cyclists would catch him.

1. The judge gave instructions relating to self-defense as follows:

'The legal excuse of self defense is available only to those who act honestly and in good faith and it requires the following elements: the absence of aggression or provocation on the part of the person charged with the killing. An actual and honest belief on the part of the person charged that he is in eminent (sic) danger of death or great bodily harm. There must be the existence of reasonable grounds for such belief and the duty of the person charged to retreat or avoid the danger, if reasonably possible.'

There instructions are very similar to those we approved in State v. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (1967).

The trial court refused to give the following requested instruction:

'Self defense is not available to one who provokes the conflict. If you find that defendant in the first instance provoked the conflict, but thereafter actually and in good faith withdrew from the conflict, then upon his withdrawal he ceased to be a wrongdoer and his right of self defense revived. If (deceased) had reasonable grounds for believing that defendant had so withdrawn, the withdrawal is sufficient even though the fact was not clearly evidenced.'

We believe the trial judge should have given the requested instruction. We agree with defendant's contention that an aggressor who has withdrawn from the conflict may assert the defense of selfdefense. The deceased attacker, however, must know or have reasonable grounds to know that the former aggressor has withdrawn. A past aggressor must clearly evince his desire to make a good-faith withdrawal from the conflict. ¹ The question of whether the right of self-defense is revived by the withdrawal of an aggressor has not been ruled upon before by this court. States that have reached the issue have found such a revival. ² We agree with their rulings. Instructions to this effect should be given when there is evidence to support that theory of defense.

2. The failure to give the requested instruction in this case constituted harmless error. The facts surrounding the shooting are not in dispute. Defendant and his companion saw deceased walking toward them at a distance of about 75 to 100 feet. As deceased advanced, defendant urged his companion to fire the shotgun. When his companion refused, defendant grabbed the gun and fired the fatal shot. The distance was then about 60 feet. It is quite apparent that defendant did not fulfill his duty to retreat or avoid the danger.

The facts in this case are similar to State v. Rheams, 34 Minn. 18, 24 N.W. 302 (1885). There, deceased, a large strong unarmed man, was chasing defendant. The smaller defendant, while running away, turned and shot deceased. This court held that defendant had not fulfilled his duty to retreat (34 Minn. 20, 24 N.W. 303):

'* * * When the defendant commenced firing at the deceased the parties were so far apart that the opportunity for retreat was perfectly apparent, and it was equally apparent that, if the defendant should avail himself of that opportunity, the danger of personal injury was not immediate. * * * His Duty was to flee, and thus avoid the necessity for killing his adversary.'

The Rheams case was quoted with approval in State v. Boyce, 284 Minn. 242, 258, 170 N.W.2d 104, 114 (1969). In the instant case, we believe that defendant had a duty to run away from the advancing deceased. A careful review of the evidence demonstrates that the central issue of the trial was whether defendant had acted as a reasonable man when confronted by deceased. Defendant was convicted because the jury answered that question in the negative. We do not believe that the jury considered only whether defendant was an aggressor. Defendant admitted that he was once an aggressor and the four-day trial did not contest that. We cannot believe that the jury ignored four days of testimony to base its decision on an uncontested issue.

Under the circumstances of this case, the failure to instruct the jury regarding the revival of an aggressor's right to assert self-defense was not prejudicial. Erroneous instructions which are not prejudicial are not sufficient grounds for a new trial. ³

3. At the trial the defense offered the testimony of a psychiatrist and two young men who had known deceased. They were to testify regarding deceased's reputation for violence, turbulence, viciousness, and quarrelsomeness. Medical records from Willmar State Hospital and Southwestern Mental Health Center were also offered. Finally, the defense offered evidence of judgments of conviction against deceased for...