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Bechtel v. State9/2/1992
y harm, is imminent. Based on the traditionally accepted definition of imminent and its functional derivatives , a battered woman, to whom the threat of serious bodily harm or death is always imminent , would be precluded from asserting the defense of self-defense.
Under our "hybrid" reasonableness standard, the meaning of imminent must necessarily envelope the battered woman's perceptions based on all the facts and circumstances of his or her relationship with the victim. In Women's Self-defense Cases: Theory and Practice (1981), Elizabeth Bochnak writes:
The battered woman learns to recognize the small signs that precede periods of escalated violence. She learns to distinguish subtle changes in tone of voice, facial expression, and levels of danger. She is in a position to know, perhaps with greater certainly than someone attacked by a stranger, that the batterer's threat is real and will be acted upon.
Thus, according to the author, an abused woman may kill her mate during the period of threat that precedes a violent incident, right before the violence escalates to the more dangerous levels of an acute battering episode. Or, she may take action against him during a lull in an assaultive incident, or after it has culminated, in an effort to prevent a recurrence of the violence. And so, the issue is not whether the danger was in fact imminent, but whether, given the circumstances as she perceived them, the defendant's belief was reasonable that the danger was imminent.
Because there is the presumption in imminence that the defender may find an alternative to the use of deadly force, we find it necessary to address the duty to retreat, which duty is implicit in said presumption. Additionally, Appellant complained that the trial court refused to give her requested instructions on "no duty to retreat" but gave instead OUJI-CR 748. The law in Oklahoma is well settled: There is no duty to retreat if one is threatened with bodily harm. Fowler v. State, 8 Okl.Cr. 130, 126 P. 831 (1912); Neal v. State, 597 P.2d 334, 337 (Okl.Cr. 1979). Where a person is in a place he has a right to be, and is not the aggressor in bringing on the conflict, and is assaulted by another person in such a way as to place him in danger of death or great bodily harm, the person thus assaulted is not bound to retreat, but, on the contrary, may stand his ground, and repel the danger in which he is placed with such force as will repel the attack, and protect his person from great bodily harm; and when it is necessary to protect himself from receiving a deadly assault, or from receiving great bodily harm, even to take the life of his assailant. Mahaffey v. Territory, 11 Okl. 213, 66 P. 342 (1901); See also Turner v. State, 4 Okl.Cr. 164, 111 P. 988 (1910). Therefore, we find that OUJI-CR 748 adequately states the law in Oklahoma and the trial court did not err in refusing to give Appellant's requested instruction. We are mindful of the jury's inquiry (See footnote 14 and feel that our new instruction on standard of reasonableness will address the issue of imminence.
4. HEARSAY AND THE BATTERED WOMAN SYNDROME
The trial of this case was replete with objections based upon the Hearsay Rule. Appellant attempted to offer testimony probative of the reasonableness of her apprehension of fear of the deceased. In so doing, she sought to introduce evidence of the deceased's violent propensities and past acts of aggression against her and third persons, including oral statements made by the deceased. However, the trial court sustained every objection made by the State where Appellant attempted to relate the deceased's actual statements of threats or declarations. Both the State
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