Citation. 622 A.2d 723 (Me. 1993)
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Brief Fact Summary.
The Defendant, Abbot (Defendant), was convicted of atrocious assault and battery upon his next-door neighbor, arising out of a dispute over a shared driveway. The neighbor initiated the dispute, although the Defendant landed first punch.
Synopsis of Rule of Law.
Defendant only has duty to retreat before the use of deadly force and only when he knows he can do so with complete safety.
A Neighbor initiated a fight with the Defendant over the Defendant’s addition of a doorstop on a commonly shared driveway. Other neighbors joined the fight against the Defendant with a hatchet and a carving knife. The Defendant wrested hatchet from neighbor’s grip and used it against him causing the neighbor severe head injuries.
Did court properly instruct jury on whether the Defendant had a duty to retreat?
No. Reversed. The Defendant would only have had a duty to retreat from the confrontation if he intended to use deadly force. Even then, a jury could only find the presence of duty to retreat if it also found that the Defendant knew that he could do so with complete safety. In examining whether the defendant might have possessed such knowledge, it is appropriate for the jury to consider the level of excitement the Defendant was put through as a result of the ordeal. Insomuch as he was not the aggressor in the confrontation, he need not have risked injury by retreating.
This case nicely glosses the instances in which it is incumbent on a defendant to retreat from a confrontation. Notice that the duty of retreat is very limited as to the non-aggressor.