Proposed Jury Instruction for Self-Defense

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

SELF-DEFENSE

__________ INSTRUCTION NO. _____

    One of the questions to be determined by you in this case is whether or not the Defendant acted in self-defense so as to justify his acts. Under the laws of this state, if the Defendant was not the aggressor, and had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, then he had the right to employ deadly force in order to defend himself. By deadly force is meant force which is likely to cause death or serious bodily harm.
    In order for the Defendant to have been justified in the use of deadly force in self- defense, he must not have provoked the assault on him or have been the aggressor. Mere words, without more, do not constitute provocation or aggression.
    The circumstances under which he acted must have been such as to produce in the mind of a reasonable prudent person, similarly situated, the reasonable belief that the other person was then about to kill him or to do him serious bodily harm. In addition, the Defendant must have actually believed that he was in imminent danger of death or serious bodily harm and that deadly force must be used to repel it.
    If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the Defendant did not act in self-defense. If you find that the State has failed to prove beyond a reasonable doubt that the Defendant did not act in self-defense, you must find the defendant not guilty. In other words, if you have a reasonable doubt as to whether or not the Defendant acted in self-defense, your verdict must be not guilty.
COMMENT

SELF-DEFENSE

1.     State v. Kirtley, 162 W.Va. 249, 262, 252 S.E. 2d 374, 381 (1978) Footnote No. 8 cites this self defense instruction used in federal practice and tacitly approved its use. See also State v. McKinney, 178 W.Va. 200, 358 S.E. 2d 596 (1987).
2.     State v. Knotts, 187 W.Va. 795, 421 S.E. 2d 917 (1992). The defendant may not rely on self defense where he was the aggressor. The defendant may only use non-deadly force when threatened with non-deadly force.
3.     State v. Knotts, Supra. The Court is justified in refusing to give a self defense instruction where the defendant fails to produce evidence that he acted in self defense.
4.     State v. Asbury, 187 W.Va. 87, 415 S.E. 2d 891 (1992). This case includes a discussion of self-defense in the context of a battery/assault situation.