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Annotations and Case Law for SELF DEFENSE STATUTE:
The law of self-defense supposes that the attack was unexpected by the slayer; for if, in case of combat, the slayer went into it voluntarily, expected to meet an opponent, and prepared beforehand with the means to contend with the opponent, the conflict cannot be distinguished from that of a duel, where, if one party is killed, the other is guilty of murder. State v. Talley, 14 Del. 417, 33 A. 181 (1886).
Duress and self-defense are not cumulative defenses but, indeed, involve mutually exclusive theories. Feliciano v. State, 332 A.2d 148 (Del. 1975).
Duress and self-defense are different species of justification defense and are designed to apply to different factual situations. Feliciano v. State, 332 A.2d 148 (Del. 1975).
But duress and self-defense are kindred defenses in that each involves compulsion in a "choice of evils" setting. Feliciano v. State, 332 A.2d 148 (Del. 1975).
Self-protection justifies use of force when duress or coercion is act of victim. Feliciano v. State, 332 A.2d 148 (Del. 1975).
The "expected or intended" exclusion of an insurance policy was not triggered by insured's act of self-defense since acts of self-defense are not intentionally tortious. Deakyne v. Selective Ins. Co. of Am., 728 A.2d 569 (Del. Super. Ct. 1997).
Person attacked is under duty to retreat. - If the deceased first attacked the accused, even though the attack was of such character as to create in the mind of the accused a reasonable belief of danger of death or great bodily harm, it was the accused's duty to retreat, if the accused could safely do so, or to use such other reasonable means as were within the accused's power to avoid killing the assailant. State v. Reese, 25 Del. 434, 79 A. 217 (1911); State v. Lee, 36 Del. 11, 171 A. 195 (1933).
No one may take the life of another, even in the exercise of the right of self-defense, unless there is no other available means of escape from death or great bodily harm. State v. Creste, 27 Del. 118, 86 A. 214 (1913).
If one is assaulted and can safely withdraw and thereby avoid danger, it is the person's duty to do so. A person has no right in self-defense to strike back unless there is no other way of avoiding danger to one's person. State v. Roe, 30 Del. 95, 103 A. 16 (1918).
The defendant must retreat only if it is safe to do so. Quillen v. State, 49 Del. 114, 110 A.2d 445.
The concept of a duty to retreat, if it is safe to do so, is firmly entrenched in the law of this State. Lane v. State, 222 A.2d 263 (Del. 1966).
This section may not be used where the defendant can avoid the necessity of using deadly force. Tice v. State, 382 A.2d 231 (Del. 1977).
But retreat is unnecessary when one is in one's own dwelling. - When one is in one's own habitation or dwelling place, and is there violently attacked by one who intends to kill the person or do the person some grievous bodily harm, the person need not take any steps to get out of the attacker's way. State v. Talley, 14 Del. 417, 33 A. 181 (1886).
When a person is assailed within one's own dwelling house, a person need not retreat, but may make a stand there, even though retreat with safety is possible. State v. Mills, 22 Del. 497, 69 A. 841 (1908).
Law does not recognize right to revenge. - The law recognizes the right of self-defense for the purpose of preventing, but not of revenging, an injury to the person. State v. Short, 25 Del. 491, 82 A. 239 (1911); Lane v. State, 222 A.2d 263 (Del. 1966).
Self-defense is not available to one who deliberately provokes the difficulty that makes the killing necessary. Quillen v. State, 49 Del. 114, 110 A.2d 445.
One who kills another, to be justified or excused on the ground of self-defense, must have been without fault in provoking the difficulty and must not have been the aggressor and must not have provoked, brought on, or encouraged the difficulty or produced the occasion which made it necessary to kill. State v. Stevenson, 38 Del. 105, 188 A. 750 (1936).
This section may not be used where the defendant provoked the incident. Tice v. State, 382 A.2d 231 (Del. 1977).
There is a congruence of roles in a self-defense pattern; thus, the original assailant is both coercer and victim. By the use of unlawful force against a defendant, the assailant coerces the latter to reciprocate in kind, and then the defendant responds. Feliciano v. State, 332 A.2d 148 (Del. 1975).
Subsection (a) must be read in the light of § 307(a) of this title. Coleman v. State, 320 A.2d 740 (Del. 1974).
The new Criminal Code has changed the standard to be applied in determining the issue of justification. Coleman v. State, 320 A.2d 740 (Del. 1974).
Essential element is subjective belief of defendant. - In a claim for self-defense, the essential element is whether the defendant subjectively believed the use of force was necessary for protection, and not whether the victim acted in conformity with a character trait of aggressiveness. Tice v. State, 624 A.2d 399 (Del. 1993).
The character of the victim is not an essential element of a self-defense claim pursuant to this section, and, accordingly, specific instances of past conduct cannot be used as circumstantial evidence of a victim's character for violence or aggression under D.R.E. 405(b). Tice v. State, 624 A.2d 399 (Del. 1993).
Subjective test for justification has supplanted "reasonable person" test. - The former objective test of what a reasonable person would have believed under the circumstances, as to the necessity of using force in self-defense, has been supplanted by the subjective test of what the defendant actually believed as to such necessity. Coleman v. State, 320 A.2d 740 (Del. 1974).
This section in substance provides for a subjective standard. Tice v. State, 382 A.2d 231 (Del. 1977).
Subjective test as defined in section must be applied to any claim of self-defense, whether in criminal or civil litigation. Moor v. Licciardello, 463 A.2d 268 (Del. 1983).
Reasonable belief is not required; all that is relevant to the actor's guilt is whether the actor honestly believed it necessary to use force in self-defense. Moor v. Licciardello, 463 A.2d 268 (Del. 1983).
The "reasonable person" test is retained as a factor to be considered with all others in the determination of the issue of justification; but it is not necessarily the controlling factor. Coleman v. State, 320 A.2d 740 (Del. 1974).
An appraisal from the reasonable person standpoint is retained only as a factor in evaluating the credibility of the defendant's belief. Moor v. Licciardello, 463 A.2d 268 (Del. 1983).
Mere words or threats, however offensive, will never justify even a slight assault. State v. Roe, 30 Del. 95, 103 A. 16 (1918).
No looks or gestures, however insulting, and no words, however offensive they may be, can amount in law to a provocation sufficient to justify an assault. State v. Stevenson, 38 Del. 105, 188 A. 750 (1936).
Person in danger may strike first blow. - The law accords to everyone the right to protect one's person from assault and injury by opposing force to force, and one is not obliged to wait until struck by an impending blow; for if a weapon be raised in order to shoot or strike, or the danger of other personal violence be imminent, one in such danger may protect oneself by striking the first blow for the purpose of repelling and preventing the attempted injury. State v. McKinney, 28 Del. 128, 90 A. 1067 (1914).
If a weapon be raised to shoot or strike, or the danger of other personal violence be imminent, the person in such danger may protect their person by striking the first blow, but only for the purpose of repelling and preventing the attempted injury. State v. Stevenson, 38 Del. 105, 188 A. 750 (1936).
Degree of force. - In repelling or resisting an assault no more force may be used than is necessary for the purpose, and if the person assailed uses in self-defense greater force than is necessary, the person becomes the aggressor. State v. Honey, 22 Del. 148, 65 A. 764 (1906); State v. Reese, 25 Del. 434, 79 A. 217 (1911); State v. Short, 25 Del. 491, 82 A. 239 (1911); State v. Creste, 27 Del. 118, 86 A. 214 (1913); State v. McKinney, 28 Del. 128, 90 A. 1067 (1914); State v. Stevenson, 38 Del. 105, 188 A. 750 (1936).
A slight assault will not excuse or justify the killing of the assailant with a deadly weapon. State v. Reese, 25 Del. 434, 79 A. 217 (1911).
A slight assault will not justify a person in using more force or violence than is necessary to protect the person from bodily harm. State v. Roe, 30 Del. 95, 103 A. 16 (1918).
Delaware's self-protection within a dwelling defense required that an occupant be placed in immediate peril, at the time of the use of deadly force, and did not apply where the intruder was totally subdued, and was pleading with defendants to stop attacking; although having no duty to retreat, under subdivision (e)(2) of this section, 11 Del.C. § 469 did not grant the occupant of a dwelling a license to kill. Warrington v. State, 818 A.2d 151 (Del. 2003).
Killing arresting officer. - If a defendant was placed in a position in which the defendant's life was imperiled by the arresting officer and if the defendant shot the officer without knowing or having reason to know that the officer was a peace officer and the defendant had no time or opportunity for retreat, and if the shooting was apparently necessary to save the defendant's own life, then the killing of the officer was justifiable homicide in self-defense; it does not matter that the officer was legally seeking to arrest the defendant, if the defendant had no notice of such fact or no reason to know that fact. State v. Winsett, 58 Del. 111, 205 A.2d 510 (1964).
There is no Fourth Amendment right to resist an unlawful arrest. Ellison v. State, 410 A.2d 519 (Del. Super. Ct. 1979).
Common-law right to resist an illegal arrest is abolished by subsection (d) of this section. Ellison v. State, 410 A.2d 519 (Del. Super. Ct. 1979).
Killing of third person. - Where the proof shows a state of affairs which would excuse the killing of an assailant under the law of self-defense, that emergency will be held to excuse the person attacked from culpability if in attempting self-defense, the person unintentionally and without negligence kills a third person. State v. Stevenson, 38 Del. 105, 188 A. 750 (1936).
Burden of proof. - The burden of establishing self-defense to the satisfaction of the jury rests with the accused. State v. Cephus, 22 Del. 160, 67 A. 150 (1906); State v. McKinney, 28 Del. 128, 90 A. 1067 (1914); State v. Stevenson, 38 Del. 105, 188 A. 750 (1936).
Self-defense is a valid defense to a charge of felonious homicide, but, when relied on, the defendant must bear the burden of proof. Brown v. State, 48 Del. 427, 105 A.2d 646 (1954).
The burden of establishing self-defense is upon the defendants, but they do not have to prove it beyond a reasonable doubt. Rather, it is sufficient if they prove it by a preponderance of the evidence. Preponderance of the evidence is not as great or as certain proof as proof beyond a reasonable doubt. To establish by a preponderance of the evidence means to prove that something is more likely so than not so. Thus, the burden of the defendants to prove self-defense is merely to prove that it is more likely so than not so. State v. Winsett, 58 Del. 111, 205 A.2d 510 (1964).
This section requires the State to negate any reasonable doubt on the issue of justification. Tice v. State, 382 A.2d 231 (Del. 1977).
Failure to establish elements under subsection (c). - Where a defendant offers no evidence to show that the victim was the initial aggressor, fails to introduce any evidence to establish the quantum of force, if any, used by the victim and presents no evidence on the question of whether the defendant believed that deadly force was necessary for protection from the victim, the defendant fails to establish by credible evidence each element of self-defense by deadly force set forth in subsection (c) of this section. Fetters v. State, 436 A.2d 796 (Del. 1981).
Admissibility of reputation and prior acts of deceased. - The reputation of the deceased for violence, known to the accused, is admissible; there seems to be no substantial reason why the belief of the prisoner should not be evidenced by knowledge of specific acts of violence, as well as by knowledge of general reputation for violence, subject, of course, to exclusion in a proper case for remoteness. State v. Gordon, 37 Del. 219, 181 A. 361 (1935).
In ordinary cases of criminal assault and battery, where the accused pleads self-defense or the defense of another, the general community reputation of the victim for having a violent and dangerous character is admissible in evidence, particularly when there is a factual issue as to who was the aggressor in the circumstances. State v. Rigler, 266 A.2d 887 (Del. Super. Ct. 1970).
Evidence of specific prior violent or dangerous acts, or character evidence arising from facts which follow the crime charged, is inadmissible and irrelevant, on the issue of self-defense or defense of another. State v. Rigler, 266 A.2d 887 (Del. Super. Ct. 1970).
Admissibility of prior bad acts of assault victim. - A defendant, charged with assault, may introduce character evidence of the victim's prior bad acts, not as an essential element of a self-defense claim under D.R.E. 405(b), but for noncharacter purposes, under D.R.E. 404(b), to establish a defendant's subjective state of mind at the time the defendant purported to act in self-defense. Tice v. State, 624 A.2d 399 (Del. 1993).
Jury instruction. - A defendant is entitled to a jury instruction on self-defense only if there is evidence sufficient to establish each element of that defense. Fetters v. State, 436 A.2d 796 (Del. 1981).
Where court charged jury on the elements of self-defense and defined "unlawful force" according to § 471 of this title and instructed jury to consider § 469 of this title in determining whether victim used unlawful force against defendant who was a burglar, harmless error was found. Baynard v. State, 518 A.2d 682 (Del. 1986).
Where defendant presented a plausible version of events, wherein defendant alleged that a corrections officer stabbed defendant with a pen which led to defendant having punched the officer, the trial court erred in denying defendant's request for a jury instruction on self-defense pursuant to 11 Del.C. § 464(a); defendant had met the credible evidence standard for showing that the officer threatened to use "unlawful force" and accordingly, the instruction should have been provided pursuant to 11 Del.C. § 303(a), leaving the issue of credibility for the jury. Gutierrez v. State, 842 A.2d 650 (Del. 2003).
The trial court did not err by refusing to instruct the jury on justification as defendant had requested and, instead, instructing the jury on accomplice liability and giving the negative self defense instruction, based on defendant's conduct in allegedly hitting the victim's hand as protection from the victim's gun; defendant was a knowing and willing participant in the robbery, who pointed the gun at the victim's head in a threatening manner, and, as the State did not premise defendant's accomplice liability on defendant grabbing the victim's arm, the defendant was not entitled to a justification instruction. Smith v. State, - A.2d - (Del. Apr. 27, 2006).
Defendant was not entitled to a justification instruction as under defendant's theory of the case, in which defendant hit the victim's arm as the victim turned, as protection, fearing for life and safety, the defense of justification had no place at all; under this version of the facts, defendant had committed no crime, nor intended to promote or facilitate the robbery or murder. Smith v. State, - A.2d - (Del. Apr. 27, 2006).
