State v. Pollard, Minn.Ct.App., 7/10/2017. A jury convicted Ms. Pollard of second degree felony murder for the stabbing death of her boyfriend. Ms. Pollard did not admit to killing her boyfriend intentionally; rather, she said that she swung the knife at her boyfriend as the two of them were fighting. She claimed self defense, and defense of dwelling. On appeal she said that because the trial judge gave the wrong self defense instruction she is entitled to a new trial. She had requested the general self defense instruction from CRIMJIG 7.05; the state wanted the justifiable taking of life instruction from CRIMJIG 7.06. The court of appeals agrees with Ms. Pollard and sends the case back for a new trial.
There are two self defense statutes in Minnesota (and two corresponding JIGS). Minn.Stat. 609.06, subd. 1 - general self defense - permits the use of reasonable force against another in certain circumstances. Intentionally taking the life of another person - justifiable taking of life - however, is covered under Minn.Stat. 609.065. Each of these statutes has different requirements:
The elements of self-defense under section 609.06, subdivision 1(3), are
(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of . . . bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.
A person may intentionally take the life of another " when it is “necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.” Minn.Stat. 609.065. The requirements are:
(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm. (2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances. (3) The defendant’s election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.
There's a whole slew of cases in which the Minnesota Supreme Court has said that it's error to give the justifiable taking of life instruction when the defendant asserts self defense but claims that the death was not the intended result:
See State v. Carridine, 812 N.W.2d 130, 143-44 (Minn. 2012) (concluding that the justifiable taking-of-life instruction was given in error where the defendant’s defense was that the death was unintended); Hare, 575 N.W.2d at 832-33 (concluding that the “self-defense— causing death” instruction was given in error where the defendant claimed the death was accidental); State v. Robinson, 536 N.W.2d 1, 2-3 (Minn. 1995) (concluding that the instruction was given in error where the defendant claimed the death was accidental); State v. Marquardt, 496 N.W.2d 806, 806 (Minn. 1993) (noting that the general self-defense instruction should be given, or the justifiable-taking-of-life instruction modified, if the defendant claims that he did not intend to kill the victim); see also State v. Dolbeare, 511 N.W.2d 443, 446 (Minn. 1994) (“[E]ven where death has resulted from a defendant’s action, the judge should use [the general instruction] if the defendant’s theory does not include a concession that there was an intent to kill.”); State v. Sanders, 376 N.W.2d 196, 201 (Minn. 1985) (noting that an instruction that “‘the killing must have been done in the belief that it was necessary to avert death or great bodily harm’ is language that would better fit a case in which the defendant claimed he intentionally killed in self-defense”); State v. Edwards, 343 N.W.2d 269, 277 (Minn. 1984) (providing that the general self defense instruction was properly provided to the jury, rather than the justifiable-taking-of life instruction, as “[t]he latter is useful only when the death was intended”); State v. Fidel, 451 N.W.2d 350, 355 (Minn. App. 1990) (noting that the general self-defense instruction “is the appropriate self-defense standard for second-degree felony murder”), review denied (Minn. Apr. 13, 1990).
The state said that giving the justifiable taking of life instruction, now CRIMJIG 7.06, was just all a clerical error. Here's why: A few years back the JIGS Committee switched the numbers on the self defense and justifiable taking of life instructions. Justifiable taking of life used to be CRIMJIG 7.05; and the general self defense instruction was CRIMJIG 7.06. Now, it's the reverse of that: CRIMJIG 7.05 is now the general self defense instruction, and CRIMJIG 7.06 is now the justifiable taking of life instruction.
The state went on to point out that there's this case, issued before the numbering switch, that said that the court should give CRIMJIG 7.06 where the defendant claimed that the resulting death was unintentional. State v. Hare, 575 N.W.2d 828 (Minn. 1998). The state said never mind that the CRIMJIG 7.06 from Hare was then the general self defense instruction and is now the justifiable taking of life instruction. The court's response to this argument is to say that the trial court had to do more than rotely read the cases; rather, it had to use "analytic precision" in drafting jury instructions.
Besides, having gone to the trouble of looking up all these cases and then reciting them, the court of appeals was hardly going to give the trial court and state a pass. The court concludes that the trial court committed error in giving the justifiable taking of life instruction. The court also said that this error was not harmless:
We cannot say whether the jury would or would not have believed that appellant’s acts were justified if they were properly instructed under Minn. Stat. § 609.06, subd. 1(3), that appellant only had to have an actual and honest belief that she was in imminent danger of bodily harm, rather than death or great bodily harm.Ms. Pollard gets a new trial.
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