On Review- No Duty to Retreat

A little while ago the Court of Appeals handed down a rather lengthy opinion in a misdemeanor Battery case called State v. Iverson.   Lengthy opinions from the Court of Appeals happen from time to time, but published opinions for misdemeanor cases are few and far between.

The facts tell the story of a guy confronting a group of gentlemen in front of his home and eventually punching one in the face so hard that it reminds of an old move about a bouncer I once saw called skullcrusher.  Or maybe that was his nickname.  Anyway, one must keep in mind that the fact section is how an appellate court creates a winner.  Here, it was pretty clear from the facts that Iverson was out of luck.

This despite the fact that the state waited till about a week or so before doing a "discovery dump" of information, new witnesses, including a doctor and hospital reports.  The trial judge excluded the doctor and a witness but let another testify.  The District Court on review thought his rulings "deft" and the Court of Appeals seems to agree, but decides that even assuming everything should have been thrown out, it was harmless error.  Good old harmless error.

The meatier part of the opinion for a legal geek is about the history of the no duty to retreat rule in Idaho.  Idaho has a stock instruction that declares that one may stand their ground.  However, the court teases the law apart, going back to the start and following the doctrine from the first opinion back in the 1909 (Idaho has been around since 1890 remember).  The Court concludes that while one does not have to retreat, the option of retreat is something for the finder of fact (aka the jury) to consider when deciding whether a person was reasonable in using self defense.

I'm a defense attorney, and I can't say I disagree with the analysis.  The problem is that in practice it allows the state to argue the defendant should have retreated, and we argue well they didn't have to, and it's kind of like a stalemate.  Whereas prior to this opinion we likely would have argued we have stand your ground in Idaho, now we apparently don't.  However, considering that the no duty to retreat rule is entirely common law, we may be lucky that they didn't find that it doesn't exist.

Still, this is Idaho.  The Idaho legislature may surprise us yet.  Now that it is clear that we don't have stand your ground, nothing is standing in the way of the legislature adopting such a statute.  They just might.  We'll have to wait and see.