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State v. Smith12/9/2004
Id. at 558. The court stated that once the defendant reached his own apartment, he had no duty to retreat any farther. Further, once he was in his bedroom, he was not required to remain there. "Implicit in the privilege to use necessary force to repel an intruder from one's own home is the opportunity to move about within the sanctuary of that home to retrieve an available weapon. Also implicit in that privilege is that a person is not under a duty to wait for an anticipated intruder in the part of the home most distant from the location at which he expects the intruder to enter." Id.
{ } In this case, the state contends the court's instruction on the duty to retreat was adequate because this court approved the same instruction in State v. Fisher (Mar. 12, 1996), Franklin App. No. 95APA04-437. However, the state's argument fails to acknowledge that jury instructions must be tailored to adequately and correctly convey the law applicable to the particular issues raised by the evidence in a particular case. State v. Guster (1981), 66 Ohio St.2d 266, 271.
{ } In Fisher, the victim, John "Beau" Hinkle, lived with his long-time girlfriend, Sherry Thomas. Sherry's mother, Sharon Fischer, and her boyfriend, Darrell Fisher ("defendant"), moved in with Beau and Sherry, occupying the upstairs bedroom of the residence. After friction developed between Beau and Sharon, Beau made it clear he wanted Sharon and defendant to move out of the residence.
{ } When Beau returned home after a night of drinking, he and Sherry argued over Sharon's and defendant's continued presence in the home. Defendant and Sharon were in the upstairs apartment and overheard the argument. After hearing a loud crash and the sound of Sherry screaming as if she had been injured, Sharon picked up the telephone to call the police. Almost immediately thereafter, Beau headed up the stairs and kicked open the locked door to Sharon's and defendant's bedroom. The angle of Beau's attack blocked the couple's only reasonable means of escape. Defendant shot Beau in the chest with a shotgun. Beau survived the gunshot blast and eventually recovered.
{ } Fisher is distinguishable because the evidence in that case did not raise the issue raised by the evidence in the instant case, i.e., whether a defendant is privileged, after an initial confrontation with an assailant in one area of the defendant's residence, to leave that area, retrieve a weapon from another area of the residence, return to the location of the initial confrontation and use the weapon to expel the assailant from the residence. In Fisher, the defendant shot the victim after the victim barged into a room already occupied by the defendant. The defendant apparently had a weapon at his disposal in the bedroom and thus had no need to leave that room to retrieve a weapon. Thus, no instruction regarding the issue raised by the evidence in the instant case was warranted in Fisher.
{ } Here, the prosecution repeatedly argued that defendant's right of self-defense terminated once he retreated to the bedroom and that he had a legal duty to remain there. However, defendant's right of self-defense was much broader than that set forth by the prosecution. Pursuant to Peacock and Cuttiford, defendant had no legal duty to remain in the bedroom and wait for Williams to confront him there. Rather, the privilege to use necessary force to repel Williams from his home included the right to retrieve a weapon from the bedroom, return to the living room, and use the weapon to repel Williams from his home. The trial court could have cured the prosecution's misstatement by providing the jury with a proper instruction. Unfortunately, the court instructed the jury that " Def
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