The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code § 3.04(2)(b)(iii). As defined in § 3.12(2) a deadly force means force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm.
Defendant shared a common driveway with his neighbors. A disagreement arose regarding the construction of a doorstop and a fistfight ensued between defendant and the neighbor's son. The neighbor then came at defendant with a hatchet and the neighbor's wife followed with a carving knife. During the struggle all the parties were hit by the hatchet and the son received severe head injuries. At trial, the trial court found defendant guilty on the charge of atrocious assault and battery as to the son. On appeal, the defendant raised the question of whether the trial court properly instructed the jury upon the issues of self-defense and retreat.
Did the trial court properly instruct the jury on the issues of self-defense and retreat?
The court reversed the conviction and held the charge to the jury was not clear and unambiguous. The jury should have been instructed that the question of retreat could arise only if defendant intended to use a deadly force.