Alaska Criminal Pattern Jury Instructions
Controlled Substances
11.81.335 Justification: Use of Deadly Force in Defense of Self

§ 11.81.335 Justification: Use of Deadly Force in Defense of Self

The law of self defense regarding the use of deadly force is as follows:

A defendant may use deadly force upon another person when and to the extent the use of non-deadly force in self defense is justified, and the defendant reasonably believes the deadly force is necessary for self defense against [death] [serious physical injury] [kidnapping] [sexual assault in the first degree] [sexual assault in the second degree] [robbery in any degree].[However, a defendant may not use deadly force in self defense if the defendant knows that, with complete personal safety and with complete safety as to others, the defendant can avoid the necessity of using deadly force by retreating. [This “duty to retreat” does not apply if the defendant is [on premises which the defendant owns or leases, and the defendant is not the initial aggressor] [a peace officer acting within the scope and authority of the officer’s employment] [assisting someone whom the defendant reasonably believes is a peace officer in making an arrest or terminating or preventing an escape].]]

Unless the state has proven beyond a reasonable doubt that the defendant did not act in self defense, you shall find the defendant not guilty.

USE NOTE

This instruction must be given together with instruction 11.81.330 (use of nondeadly force in self defense).

The following terms are defined in other instructions:

“deadly force” – 11.81.900(b)
“force” – 11.81.900(b)
“leased” – 11.81.900(b)
“nondeadly force” – 11.81.900(b)
“peace officer” – 11.81.900(b)
“physical injury” – 11.81.900(b)
“premises” – 11.81.900(b)
“serious physical injury” – 11.81.900(b)

The decision about whether to instruct the jury on self defense belongs to the trial judge. The defendant bears the burden of producing some evidence in support of a claim of self defense before the court must give the instruction. The court need not give an instruction if the only basis for a self defense claim is speculation. Hamilton v. State, 59 P. 3d 760 (Alaska App. 2002). The “some evidence” burden, however, is not a heavy one, and is satisfied when the evidence, viewed in the light most favorable to the defendant, might arguably lead a juror to entertain a reasonable doubt as to the defendant’s guilt. Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982). Even a weak or implausible self defense claim is a question for the jury, and the trial judge should not evaluate the credibility, strength, or weight of evidence in determining whether the burden has been met. Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982);Paul v. State, 655 P.2d at 776. “Some evidence” may consist, for example, solely of the uncorroborated testimony of the defendant. Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985). But the defendant need not testify so long as there is other evidence of self defense. Blackhurst v. State, 721 P.2d 645 (Alaska App. 1986).

In determining whether there is some evidence of self defense, the court must examine every element of the justification, depending upon the particular facts of the case. For example, the court must evaluate whether there is some evidence that (1) the defendant actually believed the use of nondeadly force was necessary, and (2) a reasonable person would have held such a belief under the same circumstances. Weston v. State, 682 P.2d 1119, 1121 (Alaska, 1984). Similarly, it may be necessary in a particular case to determine whether there is some evidence that the defendant was not an initial aggressor. Brown v. State, 698 P.2d 671, 673-74 (Alaska App. 1985).

The definition of “force” in AS 11.81.900(b) includes actual bodily impact, restraint, or confinement, as well as the threat of imminent bodily impact, restraint, or confinement. Thus, self defense may apply where a defendant reasonably perceived a threat of harm, so long as the perceived harm was imminent. Ha v. State, 892 P.2d 184, 194 (Alaska App. 1995).

The reasonableness of a defendant’s beliefs must be evaluated by the jury based on the circumstances of the situation facing the defendant, including any relevant knowledge the defendant had about the other person; physical attributes of all persons involved (including the defendant); and any prior experiences that could provide a reasonable basis for the defendant’s beliefs. Ha v. State, 892 P.2d 184, 194-95 (Alaska App. 1995). Reasonable belief means that a reasonable person would have held such a belief under the same circumstances. Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984). A defendant’s distorted perceptions due to mental illness, however, may not be a factor in evaluating the reasonableness of the defendant’s beliefs. Ha, 892 at 195-96.

This pattern instruction may require slight modification when a defendant claims that an act of self defense was prompted by the danger posed by a group of attackers, and not just the danger posed by the alleged victim named in the charging document. Under such circumstances, the defendant is entitled to have the jury assess the defendant’s actions in light of the total danger posed (or apparently posed) by the group. Allen v. State, 51 P.3d 949, 958-59 (Alaska App. 2002).

 

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