Homicide is justifiable when committed in the lawful defense of the slayer or any person in the slayer’s presence or company when:
(1) the slayer reasonably believed that the person slain intended to commit a felony or inflict death or great personal injury;
(2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him at the time of and prior to the incident.
The Burden of Proof On the Issue of Self-Defense
The accused bears the initial burden of producing some evidence tending to show that the killing occurred in circumstances amounting to self-defense. State v. Janes, 121 Wn.2d 220, 237 (1993); State v. McCullum, 98 Wn.2d 484, 488 (1983). This is a low burden. State v. Janes, supra at 237. Indeed, the evidence need not even create a reasonable doubt. McCullum, supra at 488. Once the accused has made this threshold showing, absence of self-defense becomes an element of the State’s case, and the burden shifts to the prosecution to disprove self-defense beyond a reasonable doubt. State v. Janes, supra at 237; State v. McCullum, supra, at 488.
The Standard for Self-Defense
In self-defense, a person can be found not guilty of homicide if they have a reasonable belief that they are about to suffer imminent harm or become a victim of a felony at the hands of the deceased. The threat of harm does not have to be actual or immediate, and evidence of an actual physical assault is not necessary to establish the imminence of danger. The resort to self-defense must be reasonably necessary as judged against the subjective impressions of the accused at the time of the incident. The accused is entitled to act on appearances and even if the accused was mistaken about the extent of danger, the use of force may still be considered a valid self-defense.
The Reasonableness of Self-Defense Must Be Judged In Light of Any Physical Handicaps or Limitations the Accused May Have
Our courts have recognized that the jury must take into consideration any physical disabilities or limitations that may impair the ability of the accused to defend herself without resorting to the use of a deadly weapon. In Wanrow, supra, for example, the court rubbished the idea that a 5-foot 4-inch woman with a cast on her leg and using a crutch could be expected to repel an assault by a 6-foot 2-inch intoxicated man without employing weapons in her defense. State v. Wanrow, supra, at 240.
The Accused May Anticipate Attack
The use of deadly force may be upheld as valid even in the absence of any evidence that the deceased was actually making an attempt to commit a felony or inflict great personal injury at the time of the killing. State v. Negrin, supra at 521; State v. Adams, 31 Wn.App. 393, 396 (1982). The accused is free to act in good faith on appearances even though the criteria for a criminal “attempt” is absent. State v. Negrin, supra at 521; State v. Adams, supra at 396-97.
There Is No Duty to Retreat Before Using Deadly Force In Self-Defense
It is well-settled that the accused has no duty to retreat before she may employ deadly force to repel a felony assault. State v. Allery, supra at 598; WPIC 16.08.
The Phrase “Great Personal Injury” Means An Injury That the Accused Reasonably Believed, In Light of All the Facts and Circumstances Known At the Time, Could Produce Severe Pain and Suffering
As opposed to the phrase “great bodily harm” utilized in first degree assault cases, the phrase “great personal injury” used in WPIC 2.04.01 permits the jury to acquit in homicide cases where there is some evidence that the accused could subjectively have reasonably anticipated that she was about to become the victim of an ordinary battery at the hands of the deceased. State v. Walden, 131 Wn.2d 469, 477 (1997).
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