2015 #28 Self Defense Weekly Law Report

Law of Self Defense: Weekly Law Report
2015 #28 (June 29-July 3, 2015)

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2015 www.lawofselfdefense.com
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2015 #28 (June 29-July 3, 2015)
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Frequently Asked Questions

Q:
What is the Law of Self Defense: Law Report Weekly?
A:
Each week Law of Self Defense staff review self-defense court decisions from around the country. Those
we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The
cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents
and then by individual case.
Q:
The Law of Self Defense is well-known for translating the legalese of self-defense law into plain
English easily understood by non-lawyers, as you do in your books, seminars, online training, and
blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain
English?
A:
Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for
weekly reports of this type. Therefore we consider these reports a graduate-level product, for people
who already have a solid understanding of the legal principles of self-defense law. To get up to speed we
encourage you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available
from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level.
You may also consider one of our state-specific live Law of Self Defense Seminars held all over the country
or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.
Q:
Do you recount each of the cases in their entirety?
A:
No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we
only summarize the portions of the cases that directly involve issues of self-defense law. What we do
include are the case citation, a list of the key self-defense law issues covered in that case, the date of the
decision, and the text of the decision that discusses the specific self-defense laws of interest.
The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.
Q:
What if I want to read the entire case?
A:
Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact,
strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best
way to understand the fullest context of the courts decisions.
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2015 #28 (June 29-July 3, 2015)
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Table of Contents
ILLINOIS
Page
People v. Scott, 2015 Ill. App. LEXIS 500 (IL Ct. App. 2015)
37
Key issues:
Victims violent character as admissible evidence
Burden of production, on the defendant, specific elements
Date:
June 30, 2015
INDIANA
Billeaud v. State, 2015 Ind. App. Unpub. LEXIS 739 (IN Ct. App. 2015)
Key issues:
42
Burden of production, on the defendant

Even weak production evidence is sufficient
Burden of production, specific elements
Innocence, initial aggressor
Regain innocence, withdrawal
Reasonableness, objective and subjective required
Date:
July 1, 2015
OHIO
State v. Daigle, 2105 Ohio App. LEXIS 2639 (OH Ct. App. 2015)
Key issues:
Burden of production on the defendant
Burden of production, elements
Right to argue self-defense if also denying the use of force, inconsistent defenses,
permitted
Not required to admit elements of crime to receive self-defense instruction
Date:
June 30, 2015
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2015 #28 (June 29-July 3, 2015)
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Illinois
People v. Scott, 2015 Ill. App. LEXIS 500 (IL Ct. App. 2015)
Key issues:
Victims violent character as admissible evidence
Burden of production, on the defendant, specific elements
Date:
June 30, 2015
Decision:
Following a jury trial, defendant Joseph Scott was
Scott also argues that in sentencing him to 18 years'
found guilty of second degree murder of Justin Grover
imprisonment, the trial court failed to consider
and sentenced to 18 years' incarceration. Scott
statutory mitigating factors and improperly relied on
contends that he was denied effective representation
his AUUW conviction as an aggravating factor. We
because: (i) defense counsel did not present
conclude that the trial court did not abuse its
Jermaine Cummings' robbery conviction as Lynch
discretion in sentencing Scott. The record reflects that
character evidence to support Scott's claim of self-
the trial court properly considered mitigation and
defense (People v. Lynch, 104 Ill. 2d 194, 470 N.E.2d
entered a sentence less than the maximum allowed
1018, 83 Ill. Dec. 598 (1984)); (ii) defense counsel
by statute. Furthermore, the trial court specifically
failed to object to the State's inaccurate statement
stated it considered Scott's record after he was
during rebuttal argument that Scott waited three years
released from parole.
to assert self-defense; and (iii) defense counsel failed

to object to Scott's impeachment by Scott's prior
BACKGROUND
aggravated unlawful use of a weapon (AUUW)

conviction under a statute later ruled unconstitutional
Scott was charged by indictment with 24 counts of
by the Illinois Supreme Court in People v. Aguilar,
first degree murder of Justin Grover (720 ILCS
2013 IL 112116, 377 Ill. Dec. 405, 2 N.E.3d 321.
5/9-1(a), (a)(2), (a)(3) (West 2008)); 3 counts of

attempted first degree murder of Jermaine Cummings
We reject each of these contentions. First, Scott's
(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), and 1
arguments are forfeited; forfeiture aside, we
count of aggravated discharge of a firearm (720 ILCS
determine that Scott was not prejudiced by counsel's
5/24-1.2(a)(2) (West 2008)). Scott moved to admit
inactions, and, therefore, his ineffective assistance of
evidence of various convictions and arrests of Grover
counsel argument fails the second prong of the
and Cummings. Immediately before jury selection, the
Strickland test.
State nol-prossed 17 of 23 counts of first degree

murder of Justin Grover and all charges related to
Cummings. Defense counsel then stated: "We will not

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call that witness then," apparently referring to the
Cummings and Grover and continued arguing with
police witness regarding Cummings' prior convictions.
them. Henry then "popped up," pulled out a gun, and

pointed it at Cummings. Cummings asked Henry if he
Over the defense's objection, the trial court granted
was going to shoot the gun, and then Grover told him
the State's motion in limine to impeach Scott with his
to shoot. Henry said nothing and did not shoot.
AUUW conviction on January 29, 2008, should he

testify at trial.
Scott "snatched" the gun from Henry and shot three

times. Thinking Grover was next to him, Cummings
On the afternoon of May 31, 2009, Scott, Justin
ran away, but when he turned around he noticed
Grover, Jermaine Cummings, and Scott's brother,
Grover lying on the ground where they had been
James Scott, were selling marijuana out of a second-
standing. Cummings returned to chase James, who
floor apartment in a building in Chicago's Englewood
had run. Cummings caught him and started fighting.
neighborhood. An argument among them escalated to
The police arrived and took them both to the station.
a fistfight. Henry Scott, another brother who was

watching the fight with other bystanders, pulled out a
Cummings denied making threats or threatening
gun. The fight ended after Scott grabbed the gun from
movements and testified that he did not see Grover
Henry and shot at Grover and Cummings, hitting
make threats or threatening movements.
Grover in the head and thigh. Cummings was not

shot. Grover died at the scene.
On cross-examination, Cummings stated he carried a

gun for protection. Grover was "mad" and threatening
Jermaine Cummings testified that, in May 2009, he
James because he thought James had stolen some
made his living selling "nickel bags" of marijuana. On
of his marijuana. Cummings did not remember telling
May 31, Cummings and Grover, along with Scott and
two detectives on the day of the shooting that Grover
James, were selling marijuana from the apartment
"whooped [Scott's] ass."
when Grover and James began to argue about

transactions. The argument quickly moved downstairs
Cummings also testified that he was sentenced to
and outside in front of the building. Cummings
prison in 2011 for the unlawful use of a weapon by a
followed them outside and tried to stop the argument.
felon and, at the time of trial, remained incarcerated;
Scott then came downstairs and also tried to
in 2007, he was sentenced to three years in prison for
intervene. Grover began to argue with Scott. When
possession of a stolen motor vehicle; and in 2003, he
Grover and Scott started to shove each other,
was sentenced to probation for robbery but in 2004,
Cummings and James attempted to break up the fight
after violating his probation, the court resentenced
by standing between them. Cummings and James
him to a prison term.
began fighting; Cummings pulled out a gun and

swung it at James, then gave the gun to a bystander
Simone Priest testified that in May 2009 she had
and began fist fighting with James. They stopped
been dating Grover for two or three years; they had a
fighting after several minutes. Cummings grabbed
one-year-old daughter. On May 31, while walking to
Grover and pulled him toward the door of the building.
pick up the daughter, she and Amber McCorkle saw
Thereafter, Scott and James stood right in front of
Grover and Cummings and spoke to them for a few
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minutes. Ten or fifteen minutes later, on their way
gun from his pocket. James and Cummings then
back, the women heard arguing and saw Cummings,
argued; Scott did not see Cummings with a gun at
Grover, Scott, James, and Henry standing together.
that point. Henry stood in the crowd of 70 to 80
Henry faced Grover, Cummings was next to Grover,
people watching. Grover and Scott stopped fighting
and James and Scott stood nearby. Priest said she
but continued to argue when Henry pulled out a gun.
was 10 to 12 feet away. Henry was pointing a gun at
Cummings was behind Grover. Scott grabbed the gun
Grover. She heard Grover say "bust it" twice, but
from Henry and shot "two to three times" because
Henry did not shoot. Scott snatched the gun from
Cummings looked like he was going for the gun he
Henry and started shooting at Grover. Priest heard
had brandished earlier.
four or five shots. She ran away, carrying her

daughter in her arms, but then gave her daughter to
Scott did not intend to kill Grover or Cummings. He
someone standing nearby and ran back to Grover,
shot at them because in his experience, once Henry
who died shortly after.
pulled out the gun, "they'll shoot their gun."
Amber McCorkle was walking with Priest after picking
After the defense rested, the State introduced a
up Priest's daughter when they heard male voices
certified statement of Scott's AUUW conviction on
arguing. McCorkle saw Grover arguing with Henry
January 29, 2008.
and Scott. McCorkle heard gunshots but did not see

the actual shooting. After the gunshots stopped,
During deliberations, the jury sent a note to the trial
McCorkle saw Priest tending to the mortally wounded
court requesting a transcript of Scott's testimony.
Grover.
Neither the State nor Scott objected, and the trial

court sent the transcript to the jury room.
The parties stipulated that Henry's hands tested

negative for gunshot residue, indicating that he did
The jury returned a verdict of guilty of second degree
not shoot a gun.
murder.
Scott testified that in May 2009 he was 21 years old,
At Scott's sentencing hearing, the State introduced
living with his mother, and unemployed. He supported
Scott's prior conviction in 2007 on a misdemeanor for
himself selling marijuana. On May 31, Scott sold
resisting arrest and a Class 4 felony possession of a
marijuana with his younger brother, James, Grover,
controlled substance for which he received probation
and Cummings. Grover left the apartment building for
for the felony conviction. Also, the State introduced
a short time. While he was gone, he expected James
Scott's 2008 probation violation for which he pleaded
to sell both Grover's and James' inventory. Grover
guilty to AUUW, a Class 4 felony, under the statute
returned to find that James had sold only his own.
later found unconstitutional by the Illinois Supreme
Grover became upset and started yelling at James.
Court in People v. Aguilar, 2013 IL 112116, 377 Ill.
The dispute went outdoors. Scott was protective of
Dec. 405, 2 N.E.3d 321. 720 ILCS 5/24-1.6(a)(1)
James and stepped between Grover and James.
(West 2008). Scott had spent one year imprisoned
Grover then punched Scott in the face and they
before his release weeks before this incident.
began to fistfight. Cummings appeared and pulled a

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The State read a victim impact statement from
2d 194, 219-20, 808 N.E.2d 939, 283 Ill. Dec. 651
Grover's brother and Simone Priest, both addressing
(2004). We may dispose of defendant's ineffective
the effect of Grover's death on his young daughter. In
assistance claim by proceeding to the prejudice prong
mitigation, Scott's fiance testified that she was
alone. People v. Hale, 2013 IL 113140, 17, 996 N.E.
pregnant at the time of his arrest, and that their
2d 607, 374 Ill. Dec. 912. Here, even if we assume
daughter had limited contact with Scott because of his
arguendo that counsel's inactions constitute deficient
incarceration.
performance, we find no prejudice.
The trial court sentenced Scott to 18 years'
Scott alleges three bases for his claim of ineffective
imprisonment, based on all the factors in aggravation
representation; the State responds that all three were
and mitigation. The trial court referenced Scott's
strategic decisions made by defense counsel and did
revocation of probation that resulted in a one-year
not cause prejudice.
prison sentence, remarking that Scott had "a very

significant and escalating criminal background in [a]
Lynch Evidence
very short amount of time."

Scott's first assertion of ineffective assistance turns
Scott's motion to reconsider sentence included an
on the failure of defense counsel to pursue evidence
assertion that the trial court improperly considered
of Cummings' violent character. The State charged
Scott's AUUW conviction in aggravation.
Smith with first degree murder of Justin Grover and

attempted murder of Cummings. Before trial, defense
ANALYSIS
counsel, in support of Smith's claim of self-defense,

moved that Cummings' prior robbery conviction be
Ineffective Assistance of Counsel
admitted to show his aggressive and violent

character, as allowed by People v. Lynch, 104 Ill. 2d
Under the "strict" test of Strickland v. Washington, 466
194, 470 N.E.2d 1018, 83 Ill. Dec. 598 (1984). The
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
trial court had yet to rule on this motion when the
(1984), a defendant arguing ineffective assistance of
State nol-prossed the charges involving Cummings as
counsel must show, in addition to a deficient
a victim. Defense counsel then abandoned the
performance below an objective standard of
motion.
reasonableness, that the defendant suffered prejudice

as a result. People v. Houston, 226 Ill. 2d 135, 143,
The Illinois Supreme Court's opinion in Lynch
874 N.E.2d 23, 314 Ill. Dec. 113 (2007). A failure to
commands that "when the theory of self defense is
satisfy both prongs precludes a finding of ineffective
raised, the victim's aggressive and violent character is
assistance. People v. Patterson, 192 Ill. 2d 93, 107,
relevant to show who was the aggressor, and the
735 N.E.2d 616, 249 Ill. Dec. 12 (2000). To satisfy the
defendant may show it by appropriate evidence." Id.
prejudice prong, defendant must show that but for
at 200. This evidence may include convictions for
counsel's deficient performance, a reasonable
crimes of violence. Id. A defendant affirmatively raises
probability exists that the result of the proceeding
the issue of self-defense by presenting some
would have been different. People v. Evans, 209 Ill.
evidence regarding: (1) the threat of unlawful force
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against defendant; (2) an imminent danger of harm;
testified that he gave the gun away after trying to hit
(3) an aggressor other than defendant; (4) the belief
James with it. Thus, the testimony of Scott and
by defendant that danger existed and to avert danger,
Cummings conflicted on an essential point and Scott's
the kind of force used was necessary; and (5) the
claim of self-defense was sufficiently raised.
belief was reasonable. People v. Rivera, 255 Ill. App.

3d 1015, 1023, 627 N.E.2d 294, 194 Ill. Dec. 178
We turn to the question of defense counsel's failure to
(1993). Once defendant presents the facts supporting
pursue the motion in limine to impeach Cummings
self-defense, the burden of disproving the existence
with his prior armed robbery conviction. Scott argues
of justification beyond a reasonable doubt passes to
that he was prejudiced by his counsel's failure to
the State. Id.
present evidence of Cummings' violent character.

Cummings testified to his being a convicted felon who
The State characterizes Cummings' testimony as
had been imprisoned three different times for different
"nearly identical" to Scott's and maintains their
offenses, including violation of probation. During
accounts agree. The events leading up to the
cross-examination, Cummings admitted to carrying a
shooting are not in dispute. An argument between two
gun for protection. He also stated that he pulled a gun
friends migrated outside and then escalated into a
during the fight and attempted to hit James with it, but
fistfight involving four individuals. In the course of the
missed. Given this evidence, we find that the jury
argument, Cummings pulled a gun with which he
heard extensive evidence about Cummings' character
attempted to hit James. A crowd of onlookers formed,
and his role in the fight. We fail to see how one more
including Henry, a Scott brother. After Henry produced
conviction, albeit for a forcible felony, would have
a gun, the mutual combat situation became deadly.
produced a change in the trial's outcome. In other

words, we do not find any "reasonable probability that
But conflicting testimony emerged regarding whether
the result of the proceeding would have been
Cummings had a gun when Scott grabbed Henry's
different." Evans, 209 Ill. 2d at 220.
gun. Scott testified that he shot "two to three times"

because Cummings, who was behind Grover, looked
[]
like he was going for the gun Scott saw him with
earlier, and that Cummings admitted having. Scott
CONCLUSION
stated that he did not intend to kill either Grover or

Cummings, but that he shot at them because in his
We affirm the circuit court.
experience, once Henry pulled out his gun, "they'll

shoot their gun." On the other hand, Cummings
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INDIANA
Billeaud v. State, 2015 Ind. App. Unpub. LEXIS 739 (IN Ct. App. 2015)
Key issues:
Burden of production, on the defendant
Even weak production evidence is sufficient
Burden of production, specific elements
Innocence, initial aggressor
Regain innocence, withdrawal
Reasonableness, objective and subjective required
Date:
July 1, 2015
Decision:
Jeffrey Billeaud was convicted of Battery Resulting in
of speed. Boatner testified that she had to jump out of
Serious Bodily Injury, a class C felony,1 and Resisting
the way to avoid being hit.
Law enforcement, a class D felony.2 Billeaud appeals

his convictions, presenting the following restated
After detaching the trailer, Boatner and Vanderveen
issues for review:
drove the semi-truck without its trailer to the guard

shack, where they encountered Billeaud.3
1. Did the trial court abuse its discretion when it
Vanderveen leaned out his window and said to
refused to instruct the jury on self-defense?
Billeaud, "Dude you need to slow your ass down
2. Did the State present sufficient evidence to
before you kill somebody." Id. at 111. Billeaud
sustain Billeaud's conviction for resisting law
responded, "[O]ld man, if you get out of the truck I'll
enforcement?
beat you down." Id.
We affirm.
Vanderveen then attempted to get out of his truck so

he could proceed to the guard shack. Vanderveen
The facts favorable to the convictions follow. Pieter
placed his foot on the battery box while his hands
Vanderveen and Geneva Boatner are both semi-truck
were on the steering wheel but before he reached the
drivers. On August 16, 2013, they traveled together to
step, Billeaud grabbed a wooden flag post from his
pick up a load in Logansport, Indiana. Upon arrival,
own truck, and struck Vanderveen in the back of the
Boatner exited the truck to "ground guide"
neck. Vanderveen fell to the ground unconscious, and
Vanderveen and help him detach the trailer into a
Billeaud quickly drove away.
parking space. Transcript at 109. A pickup truck

driven by Billeaud traveled past Boatner at a high rate
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Jerry Elder, another truck driver, witnessed Billeaud
is covered by other instructions." White v. State, 726
hit Vanderveen. "The driver was getting out of his
N.E.2d 831, 833 (Ind. Ct. App. 2000). The State
truck, and the next thing I know a two by four was
concedes the proposed jury instruction in this case
swung at the truck driver and [he] went down like a
properly stated the law and was not covered by any
sack of potatoes." Id. at 74. Cara Small, a security
other instructions. Accordingly, we are left to
guard who saw only part of the incident, called 9-1-1.
determine whether there was evidence to support a
Sergeant Britt Edwards and Officer Kyle Perkins
self-defense instruction.
responded to the scene. The officers, through

dispatch, explained the situation to other officers who
"A defendant in a criminal case is entitled to have the
began to search for Billeaud's truck. Officers located
jury instructed on any theory of defense which has
Billeaud's vehicle on First and Market Street and
some foundation in the evidence." Dayhuff v. State,
signaled Billeaud to stop by activating their sirens and
545 N.E.2d 1100, 1102 (Ind. Ct. App.1989). Even
overhead lights. Billeaud saw the four police vehicles
where evidence of self-defense is weak, the
behind him, but continued to drive four blocks before
defendant is entitled to a self-defense instruction if
pulling over at the jail parking lot.
there is "some probative value to support it." Id. A

person is justified in using "reasonable force" against
On September 19, 2013, the State charged Billeaud
another person to protect himself from what he
with battery by means of a deadly weapon (Count I),
reasonably believes to be the imminent use of
battery resulting in serious bodily injury (Count II), and
unlawful force. Tharpe v. State, 955 N.E.2d 836, 844
resisting law enforcement (Count III). On July 23,
(Ind. 2011).
2014, the jury found Billeaud guilty as charged.

Before sentencing, the judge merged the two battery
The accused is required to show the following
convictions and sentenced Billeaud to an aggregated
elements to obtain the self-defense instruction when
sentence of nine years incarceration. Billeaud now
deadly force is used: (1) The accused was in a place
appeals.
he had a right to be, (2) did not provoke, instigate, or

participate willingly in the violence, and (3) had a
1.
reasonable fear of death or great bodily harm. Wilson

v. State, 770 N.E.2d 799 (Ind. 2002). "A defendant's
Billeaud contends the trial court erred in refusing to
belief that he is being threatened with impending
give his tendered self-defense jury instruction. "The
danger must be reasonable and in good faith." White
manner of instructing the jury lies within the discretion
v. State, 726 N.E.2d 834.
of the trial court, and we will reverse only for abuse of

discretion." Henson v. State, 786 N.E.2d 274, 277
Billeaud argues he is without fault and justified in his
(Ind. 2003). In determining whether a trial court
actions because he was in "fear of his life", as he
abused its discretion and improperly refused a
believed many truck drivers carried weapons on them
tendered instruction, we consider "whether the
at all times. Transcript at 153. Further, he testified that
proposed instruction correctly states the law, whether
Vanderveen appeared to be angry when he yelled out
the evidence in the record supports the instruction,
of his window. In response, Billeaud claimed he
and whether the substance of the tendered instruction
turned to give Vanderveen the middle finger but
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Vanderveen hit him in the shoulder with the door of
Vanderveen in the back of the head as Vanderveen
the semi-truck, causing him to fall to the ground.
exited from his truck. Billeaud did not act without fault.
Billeaud then retaliated by grabbing a wooden flag
At best he acted in mutual combat.
post and striking Vanderveen in the back of the neck.

"An initial aggressor, must withdraw from the
In rejecting the proposed instruction, the trial court
encounter and communicate the intent to do so to the
explained as follows:
other person before he may claim self-defense."

Tharpe v. State, 955 N.E.2d 844. Even assuming
You made it very clear that you weren't going to give
Billeaud subjectively feared the imminent use of
him a chance based upon the evidence that I heard
unlawful force by Vanderveen, his fear was not
for him to do anything that he didn't have anything in
objectively reasonable nor was the force used. We
his hand... you settled the situation right there on the
therefore conclude the trial court did not err in
spot before you had a chance to be threatened and
denying the self-defense jury instruction.
you made it clear from your testimony, sir, that it

wasn't even going to escalate past that point.
2.
Appellant's Brief at 6. In addition to the trial court's
[]
holding, the testimonies of two additional witnesses

support the findings of the trial court. In this case, two
Judgment affirmed.
people witnessed Billeaud act as the initial aggressor

when he hit Vanderveen with the two-by-four wooden
mount. To contradict that evidence, Billeaud testified
to Vanderveen being the initial aggressor when
Vanderveen hit Billeaud with the door of his semitruck. Even taking Billeaud's facts as true, Billeaud
verbally instigated the altercation and struck
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OHIO
State v. Daigle, 2105 Ohio App. LEXIS 2639 (OH Ct. App. 2015)
Key issues:
Burden of production on the defendant
Burden of production, elements
Right to argue self-defense if also denying the use of force, inconsistent defenses, permitted
Not required to admit elements of crime to receive self-defense instruction
Date:
June 30, 2015
Decision:
This appeal is from the Lake County Court of
tone of Herbert's voice was irritated and uneasy.
Common Pleas. Appellant Herbert E. Imondi appeals

his domestic violence conviction. As the jury found
Herbert said that he was going to be setting some
Herbert had a prior domestic violence conviction, his
rules to "make things how they should be." Dominic
conviction is a fourth degree felony. On appeal,
responded with "OK" and "alright." Herbert sounded
Herbert challenges the trial court's refusal to give a
loud and irritated. He then said that Dominic will have
self-defense jury instruction, the trial court's decision
to come home from school and do chores around the
to give a consciousness of guilt for leaving the scene
house rather than spending time with his friends.
jury instruction, and argues that his conviction is
During Herbert's speech, he called Dominic names
against the manifest weight of the evidence. For the
and made Dominic feel as if Herbert was pushing him
following reasons, the conviction is reversed and the
away. At one point, Herbert told Dominic to shut his
matter is remanded.
mouth and if he opened it Herbert would send him to

the hospital. Dominic responded with "F You." Herbert
The following was presented by the state. On
then concluded the meeting stating that everyone is
February 5, 2013, Dominic Imondi lived with his
on their own.
mother Christine Imondi and father Herbert Imondi.

After school, Dominic submitted a job application and
During further conversation with Herbert, Dominic
went home. Upon arrival, Herbert was making dinner
suspected that Herbert might kick him out of the
and his mother Christine was performing chores in
house. In response, Dominic asked Herbert where he
the house. Dominic went into the living room to watch
was going to live. Thereafter, the conversation
TV. His mother eventually joined him. Herbert then
escalated, and at some point Dominic told Herbert "I'll
entered the room, turned off the TV and said the three
put you in jail right now." Herbert then threw the
of them were going to have a family meeting. The

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phone to Dominic and said "Go ahead." Dominic
As Dominic was running down his street, he saw his
started to call 911, and Christine tried to stop him.
father leave in a black Volvo travelling in the opposite
However, Dominic pushed either her body or just her
direction. Christine picked up Dominic in a separate
hand away and continued to dial. When Dominic got
car and took him home. Shortly thereafter the police
through to an operator, Herbert removed his vest and
arrived. Patrolmen Richard Smith and Brian
glasses and said "that's it." Herbert then charged
Yenkovich ordered Dominic onto the ground. After
Dominic and pushed him into the couch. Dominic
searching Dominic for weapons, he told the police
testified that Herbert was angry and hostile and had a
about the interaction, and the police and Dominic
look of "no remorse" with a violent demeanor. In
entered the house. Dominic appeared as if he had
response, Dominic attempted to choke his father with
been crying. When he was standing in the front entry
his left arm and bash Herbert's rib cage with his right
way, Smith noticed a steak knife in the family room
arm. Herbert then asked Christine, who had been
and a steak knife and blood spots on the wall next to
present during the entire confrontation, "do you see
a vacuum cleaner. When asked about his injuries,
what he is doing to me?"
Dominic said that he had rib pain and noted a scrape

on his arm which would leave a scar.
Dominic eventually broke free and tried to go to the

dining room to put a table between them. Herbert,
Eventually, Officer Raymond O'Brien arrived at the
went into the kitchen and grabbed knives causing
scene to assist Yenkovich and Smith. While O'Brien
Dominic to run toward the garage to get his shoes.
was taking Christine's statement, she received a
Dominic's progress toward the garage was impeded
telephone call from Herbert, and she passed the
by a gate in the entrance of a room in the house.
phone to O'Brien. O'Brien testified that Herbert
Herbert, who now had a fistful of knives, caught up to
sounded "pissed off." O'Brien informed Herbert that
Dominic, grabbed his shirts,1 cut Dominic's arm, and
he needed to return to the scene. Herbert replied that
grabbed Dominic near the neck ripping his shirts in
he was at the Mentor Police Station and hung up.
the process. Eventually, Herbert pulled Dominic to the
O'Brien then informed the station to arrest Herbert.
ground and placed him in a headlock and a leglock.

Because Dominic believed that he was going to get
Herbert's defense consisted of challenging Christine's
cut on the neck, Dominic bit Herbert's arm. While this
and Dominic's credibility, as well as providing his own
was happening, Christine started to call the police.
version of events. According to Herbert, at the family

meeting, he told Dominic that he would no longer
Eventually, Christine went to where they were fighting
tolerate Dominic hanging out with people connected
and smacked Herbert in the face causing Herbert to
to drugs, and that henceforth Dominic would go to
get off of Dominic. Dominic then grabbed a statue off
church. Moreover Herbert forbid Dominic from
of a shelf and held it over Herbert's head, who was
slamming the Bible and claiming that he is the
lying on the ground. Christine asked Dominic not to
antichrist. Dominic responded with "F you" and
hurt Herbert. Dominic consequently ran outside with
threatened to throw Herbert in jail. Herbert threw the
the statue in his hand to ask for help.
phone to Dominic and responded "Good Luck. Call

them. Try it." While Dominic was dialing the phone,
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2015 #28 (June 29-July 3, 2015)
__________________________________________________________________________________________
Christine attempted to stop him; however, Dominic
Nevertheless after Herbert testified, and outside the
pushed her away.
presence of the jury, the state argued that Herbert

was not entitled to a self-defense instruction because
Dominic then jumped on the loveseat in the living
he never admitted causing physical harm to Dominic.
room and said "this is my castle" and "I am going to
According to the state, self-defense requires a
throw you in jail." Herbert replied that Dominic better
defendant to acknowledge their actions satisfy the
find some other place to live. In response, Dominic
elements of the offense before a defendant is entitled
grabbed Herbert by the neck, pulled him down to the
to a jury instruction. The trial court agreed and
ground and started to choke him. Christine then broke
refused to give a self-defense instruction. The jury
the two of them up and Dominic said "I am going to
found Herbert guilty and he was sentenced Herbert to
kill you." Dominic ran into the kitchen and tried to grab
15 months in prison.
two knives; however Herbert got to the knives first. At

this point, Christine began dialing 911. Herbert
This appeal followed.
eventually caught up to Dominic, and Dominic

grabbed him and pulled him to the ground. Dominic
As his first assignment of error, Herbert asserts:
positioned himself on top of Herbert and began

punching him while Herbert begged Dominic to stop.
"The trial court erred when it refused to instruct
Christine then came over and hit Herbert in the face
the jury as to self-defense in violation of the
causing his glasses to break. Dominic then got up
defendant-appellant's rights to due process and
and grabbed a statue saying "I am going to kill you."
fair trial as guaranteed by the Fifth and
Christine asked Dominic not to harm him. Dominic ran
Fourteenth Amendments to the United States
out of the house, and Christine ran to the bedroom
Constitution and Sections 10 and 16, Article I of
causing Herbert to believe that she was going to get
the Ohio Constitution."
the gun. Consequently, Herbert left the scene.

Our standard of review for determining whether the
Herbert testified that on previous occasions he had
trial court properly refused to give a jury instruction is
witnessed Dominic acting aggressive and violent.
de novo. State v. Brown, 4th Dist. Athens No. 09CA3,
Herbert also testified that he was fearful for his life
2009-Ohio-5390, 34. "Requested jury instructions
when Dominic put his hands on him.
should be given if they are (1) correct statements of

the applicable law, (2) relevant to the facts of the
Although, Herbert denied that he caused any physical
case, and (3) not included in the general charge to
harm to Dominic, at other times he claimed that he
the jury." State v. Mitchell, 11th Dist. Lake No. 2001-
grabbed Dominic's left arm for "dear life" to prevent
L-042, 2003-Ohio-190, at 10, citing State v. DeRose,
Dominic from hitting him with a statue. Herbert also
11th Dist. Lake No. 2000-L-076, 2002-Ohio-4357, at
testified that he grabbed Dominic's shoulder to
33, quoting State v. Edwards, 11th Dist. Lake No.
prevent Dominic from hitting him The trial court
2001-L-005, 2002-Ohio-3359, at 20. In determining
properly instructed the jury that they were free to
whether a self-defense jury instruction is warranted,
accept or reject all or part of any witness's testimony.
we look to "whether the defendant has introduced

sufficient evidence, which, if believed, would raise a
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2015 #28 (June 29-July 3, 2015)
__________________________________________________________________________________________
question in the minds of reasonable men concerning
Later, in State v. Martin, 21 Ohio St.3d 91, 21 Ohio B.
the existence of such issue." State v. Melchior, 56
386, 488 N.E.2d 166 (1986), the Ohio Supreme Court
Ohio St.2d 15, 381 N.E.2d 195 (1978), paragraph one
considered whether "the state of Ohio may * * * place
of the syllabus. We evaluate the evidence in a light
the burden of proving self-defense on a defendant if
most favorable to the defense. State v. Belanger, 190
the truth of that defense would negate an essential
Ohio App.3d 377, 2010-Ohio-5407, 3, 941 N.E.2d
element of the crime charged." Id. at 92-93. In Martin,
1265 (3rd Dist. 2010) (Citation omitted.).
the defense argued that placing the burden on him to

demonstrate he acted in self-defense forced him to
Herbert maintains that the trial court was required to
negate the aggravated murder mens rea, the crime
give a self-defense jury instruction because he
for which he was convicted. Id. at 93. The Ohio
produced sufficient evidence indicating that (1) he
Supreme Court rejected Martin's argument holding
was not at fault for creating the situation, (2) he had a
that self-defense is an admission to "the facts claimed
bona fide belief he was in imminent danger, (3) he did
by the prosecution" that utilizes "independent facts or
not violate a duty to retreat, and (4) the force used
circumstances which the defendant claims exempt
was necessary. See State v. Hendrickson, 4th Dist.
him from liability." Id. at 94.
Athens No. 08CA12, 2009-Ohio-4416, 23 (listing the

requirements for a self-defense instruction). The state
However, in State v. Mundt, 115 Ohio St.3d 22, 2007-
does not dispute that these requirements were met;
Ohio-4836, 140, 873 N.E.2d 828, the Ohio Supreme
rather, they assert that Herbert is not entitled to the
Court noted that a lawyer's decision to present
instruction because he unequivocally denied using
"inconsistent alternative [defense] theories is not per
force against Dominic. Therefore, the issue is whether
se deficient performance" as "the decision to advance
Herbert was entitled to a self-defense instruction in
two different theories of non-culpability is a trial tactic
the face of presenting evidence supporting
or strategy" that is not so unreasonable as to
inconsistent defenses, i.e., that Herbert did not harm
constitute ineffective assistance of counsel.
Dominic, but if he did, then it was in self-defense.

In light of Mundt, we cannot read Champion and
The Ohio Supreme Court has conflicting precedents
Martin as requiring a defendant to admit the state's
on whether a trial court must give jury instructions
case in chief in order to argue self-defense. If arguing
when the defendant has requested jury instructions
inconsistent defenses is a trial tactic that a competent
that go to inconsistent defenses. In State v.
trial attorney would utilize, then the jury should be
Champion, 109 Ohio St. 281, 286-87, 2 Ohio Law
instructed on the inconsistent defenses. Our
Abs. 68, 2 Ohio Law Abs. 87, 142 N.E. 141 (1924),
conclusion is in agreement with the federal standard,
the Ohio Supreme Court found that the appellant was
which permits a defendant to argue inconsistent
not entitled a jury instruction for both accident and
theories before a jury. See Mathews v. United States,
self-defense, explaining: "If the evidence warrants,
485 U.S. 58, 62, 108 S. Ct. 883, 99 L. Ed. 2d 54
the defendant has a right to one request or the other.
(1988) (holding that "even if the defendant denies one
By no manner of logic, law, or legerdemain is he
or more elements of the crime, he is entitled to an
entitled to both."
entrapment instruction whenever there is sufficient

evidence from which a reasonable jury could find
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2015 #28 (June 29-July 3, 2015)
__________________________________________________________________________________________
entrapment."). Although Mathews concerned whether
a defendant was entitled to an entrapment instruction
The case law cited in the first assignment of error as
while also contesting the prosecution's case, other
to whether a jury instruction should be given is
courts have found Mathews applicable when a self-
applicable here. Furthermore, federal courts look to
defense instruction is requested. United States v.
the strength by which the evidence supports the
Goldson, 954 F.2d 51, 55 (2d Cir. 1991); United
following four inferences in determining whether a
States v. Browner, 889 F.2d 549, 555 (5th Cir. 1989).
flight instruction should be given: "(1) from the

defendant's behavior to flight; (2) from flight to
Finally, there is no reason to require the defense to
consciousness of guilt; (3) from consciousness of guilt
admit to the elements of the crime in order to receive
to consciousness of guilt concerning the crime
a self-defense instruction. Although we have been
charged; and (4) from consciousness of guilt
unable to find a rationale for prohibiting instructions
concerning the crime charged to actual guilt of the
on inconsistent defenses, supporters are concerned
crime charged." United States v. Myers, 550 F.2d
with condoning perjury. See Mathews 485 U.S. at
1036, 1049 (5th Cir. 1977).
65-66 (discussing this issue). However, it is possible

to argue inconsistent defenses without a defendant
We agree that leaving a volatile situation and going to
committing perjury. Herbert's testimony that (1)
a police station does not constitute consciousness of
Dominic was not harmed in the altercation, but that
guilt as that is simply not the destination of one with a
even if he were harmed, (2) Herbert acted in self-
guilty conscious. Accordingly, appellant's second
defense at all times are not inconsistent.
assignment has merit.
Consequently, the first assignment of error has merit.
As his third assignment of error, Herbert alleges:
As his second assignment of error, Herbert alleges:
"The trial court erred to the prejudice of the

defendant-appellant when it returned a verdict of
"The trial court erred when it instructed the jury on
guilty against the manifest weight of the evidence."
flight in violation of the defendant-appellant's

rights to due process and (a) fair trial as
Within this assignment, Herbert claims that his
guaranteed by the Fifth and Fourteenth
conviction is against the manifest weight of the
amendments to the United States Constitution
evidence. He does not provide a succinct explanation
and Section 10 and 16, Article I of the Ohio
of how the jury erred; rather, he merely recites his
Constitution."
version of events as evidence that Dominic and

Christine are incredible witnesses.
Within this assignment, Herbert alleges that the trial

court erred by giving a flight instruction because the
"[A] manifest weight challenge requires the reviewing
evidence indicates Herbert ran from the scene to the
court to play the role of a 'thirteenth juror.' State v.
police station. Therefore, Herbert claims that his flight
Thompkins, 78 Ohio St.3d 380, 387, 1997 Ohio 52,
from the scene is not evidence of consciousness of
678 N.E.2d 541 (1997). A reviewing court should be
guilt because he never tried to evade the police.
cognizant of the fact that the jury is in the best
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Page 16 of 17

2015 #28 (June 29-July 3, 2015)
__________________________________________________________________________________________
position to assess the credibility of the witnesses.
the sentence of a violation of R.C. 2919.25(A) to a
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212,
fourth degree felony.
paragraph one of the syllabus (1967). For an

appellate court to overturn a conviction as being
The jury was free to credit the state's witnesses over
against the manifest weight of the evidence, it must
Herbert's testimony, and his conviction therefore is
find that 'the jury clearly lost its way and created such
not against the manifest weight of the evidence.
a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. The
The third assignment of error is without merit.
discretionary power to grant a new trial should be

exercised only in the exceptional case in which the
The judgment of the trial court is reversed, and we
evidence weighs heavily against the conviction.'
remand for further proceedings.
Thompkins, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485
N.E.2d 717 (1983)." State v. Lynch, 11th Dist.
Ashtabula No. 2013-A-0039, 2014-Ohio-1775, 21.
R.C. 2919.25(A) states: "No person shall knowingly
cause or attempt to cause physical harm to a family
or household member." R.C. 2919.25(D)(3) elevates
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 17 of 17

2015 #28 Self Defense Weekly Law Report

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2015 #28 Self Defense Weekly Law Report

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Law of Self Defense: Weekly Law Report

2015 #28 (June 29-July 3, 2015)

Law of Self Defense: Weekly Law Report

Frequently Asked Questions

What is the Law of Self Defense: Law Report Weekly?

Do you recount each of the cases in their entirety?

What if I want to read the entire case?

Law of Self Defense: Weekly Law Report

June 30, 2015

Burden of production, on the defendant

June 30, 2015

Law of Self Defense: Weekly Law Report

June 30, 2015

Scott also argues that in sentencing him to 18 years'

found guilty of second degree murder of Justin Grover

imprisonment, the trial court failed to consider

and sentenced to 18 years' incarceration. Scott

statutory mitigating factors and improperly relied on

contends that he was denied effective representation

his AUUW conviction as an aggravating factor. We

because: (i) defense counsel did not present

conclude that the trial court did not abuse its

Jermaine Cummings' robbery conviction as Lynch

discretion in sentencing Scott. The record reflects that

character evidence to support Scott's claim of self-

the trial court properly considered mitigation and

defense (People v. Lynch, 104 Ill. 2d 194, 470 N.E.2d

entered a sentence less than the maximum allowed

1018, 83 Ill. Dec. 598 (1984)); (ii) defense counsel

by statute. Furthermore, the trial court specifically

failed to object to the State's inaccurate statement

stated it considered Scott's record after he was

during rebuttal argument that Scott waited three years

released from parole.

to assert self-defense; and (iii) defense counsel failed

aggravated unlawful use of a weapon (AUUW)

Scott was charged by indictment with 24 counts of

by the Illinois Supreme Court in People v. Aguilar,

first degree murder of Justin Grover (720 ILCS

2013 IL 112116, 377 Ill. Dec. 405, 2 N.E.3d 321.

5/9-1(a), (a)(2), (a)(3) (West 2008)); 3 counts of

We reject each of these contentions. First, Scott's

(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), and 1

arguments are forfeited; forfeiture aside, we

count of aggravated discharge of a firearm (720 ILCS

determine that Scott was not prejudiced by counsel's

5/24-1.2(a)(2) (West 2008)). Scott moved to admit

inactions, and, therefore, his ineffective assistance of

evidence of various convictions and arrests of Grover

counsel argument fails the second prong of the

and Cummings. Immediately before jury selection, the

State nol-prossed 17 of 23 counts of first degree

Cummings. Defense counsel then stated: "We will not

Law of Self Defense: Weekly Law Report

Cummings and Grover and continued arguing with

police witness regarding Cummings' prior convictions.

them. Henry then "popped up," pulled out a gun, and

Over the defense's objection, the trial court granted

the State's motion in limine to impeach Scott with his

to shoot. Henry said nothing and did not shoot.

AUUW conviction on January 29, 2008, should he

Scott "snatched" the gun from Henry and shot three

On the afternoon of May 31, 2009, Scott, Justin

ran away, but when he turned around he noticed