Weaver v. State, 1 Div. 279
| Decision Date | 14 October 1986 |
| Docket Number | 1 Div. 279 |
| Parties | Von Roger WEAVER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Claude D. Boone and Timothy M. Grogan, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Mary Ellen Forehand, Asst. Atty. Gen., for appellee.
Von Roger Weaver was convicted for assault in the first degree and sentenced to ten years' imprisonment. The basis of this appeal is the failure of the trial judge to give three of the defendant's written requested charges relating to the use of deadly physical force.
The refused charges were:
According to the defendant's own testimony, this incident occurred in the middle of the street. The defendant testified that Barnette (Emphasis added.) The defendant also testified that
The trial judge charged the jury on the law of self-defense as contained in § 13A-3-23(a), Code of Alabama 1975, and the use of physical force but did not instruct the jury on the use of deadly physical force.
"[A] person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety: (1) By retreating." Alabama Code 1975, § 13A-3-23(b). "As a general rule, the accused is not entitled to have his claim of self-defense submitted to the jury if the undisputed evidence shows clearly any of the following: ..., that the accused was able to retreat...." C. Gamble, McElroy's Alabama Evidence § 457.02(5)(a) (3rd ed. 1977). "In the absence of evidence warranting a finding both that the accused was in actual or apparent imminent peril and that he was unable to retreat, it is assumed that he was not in such peril and that he was able to retreat." McElroy at § 457.02(5)(b). "Where the accused claims the [use of deadly physical force] was in self-defense, the onus rests on him to show that he could not safely retreat without increasing or apparently increasing his peril." McDonald v. State, 340 So.2d 80, 84 (Ala.Cr.App.), cert. denied, 340 So.2d 84 (Ala.1976).
Additionally, even if there were some evidence of inability to...
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