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14. Should the defendant be convicted?
A defendant was charged with assault and battery in a jurisdiction that follows the «retreat» doctrine, and he pleaded self-defense. At his trial, the evidence established the following: A man and his wife were enjoying a drink at a tavern when the defendant entered and stood near the door. The wife whispered to her husband that the defendant was the man who had insulted her on the street the day before. The husband approached the defendant and said, «Get out of here, or I'll break your nose.» The defendant said, «Don't come any closer, or I'll hurt you.» When the husband raised his fists menacingly, the defendant pulled a can of pepper spray from his pocket, aimed it at the husband's face, and sprayed. The husband fell to the floor, writhing in pain.
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In a jurisdiction that follows the «retreat» rule, a non-aggressor may use deadly force only after making a proper retreat. No retreat is necessary if it cannot be made in complete safety. Additionally, there is no obligation to retreat unless the defender intends to use deadly force.
A is correct. The defendant, the non-aggressor, had no duty to retreat because he did not intend to use deadly force. The facts state that the defendant used pepper spray on the victim — a non-deadly force — and therefore, there was no need to retreat. The defendant had no obligation to retreat before resorting to the use of pepper spray.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. Under the «retreat» doctrine, the defendant had no obligation to retreat because he did not have to resort to deadly force. The defendant was merely resorting to non-deadly violence, the use of pepper spray. The reason the defendant was not required to retreat was not because he was in an occupied structure.
C is incorrect. As discussed above, even where safe retreat is possible, it is not required before using non-deadly force in self-defense. Here, non-deadly force was required and therefore, even though there may have been an opportunity to retreat, it was not necessary to do so because there was no intention to use deadly force.
D is incorrect. A response of non-deadly force is justified where the defender reasonably believes the other is about to inflict unlawful bodily harm, which need not be deadly harm. The fact the husband threatened the defendant with non-deadly force would not lead to the defendant's conviction. The defendant was justified in responding to the husband's threat of force, with force.