Over Edwards' objection, the district court instructed the jury on an aggressor's right to a claim of self-defense. The court used CRIMJIG 7.07, which states:
If the defendant began or induced the incident that led to the necessity of using force in the defendant's own defense, the right to stand the defendant's ground and thus defend himself is not immediately available to him. Instead, the defendant must first have declined to carry on the affray and have honestly tried to escape from it, and must clearly and fairly have informed the adversary of a desire for peace and of abandonment of the contest. Only after the defendant has done that will the law justify the defendant in thereafter standing his ground and using force against the other person.
10 Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 7.07 (4th ed. 1999). Edwards argues that there was no basis in the evidence for submission of the instruction and that the instruction misstates the law.
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Legal Accuracy of CRIMJIG 7.07. In instructing the jury on Edwards' right to a claim of self-defense, the district court chose not to alter the language provided by CRIMJIG 7.07. We have stated that the district court has "considerable latitude in the selection of the language of a jury charge." State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997). But "jury instructions must not materially misstate the law." State v. Hare, 575 N.W.2d 828, 833 (Minn.1998). Edwards argues, and the dissent agrees, that the first sentence of CRIMJIG 7.07 materially misstates the law because the words "began or induced the incident" permitted the jury to find that he was the initial aggressor merely because he started a conversation with Oliver. Jury instructions are viewed in their entirety to determine whether they fairly and adequately explained the law of the case. State v. Jones, 347 N.W.2d 796, 801 (Minn.1984).
CRIMJIG 7.07 was drawn from instructions on self-defense that we described, more than 35 years ago, as "fair, complete, logically arranged, and legally sound." Love, 285 Minn. at 451, 173 N.W.2d at 427. In Love, a portion of the instructions read as follows:
Where a person seeks or induces a quarrel which leads to the necessity in his own defense of using force against his adversary, the right to stand his ground and thus defend himself is not immediately available to him, but, instead he first must decline to carry on the affray, must honestly endeavor to escape from it, and must fairly and clearly inform his adversary of his desire for peace and of his abandonment of the contest.
Id. at 451, 173 N.W.2d at 426. It is true that trial courts must use analytical precision in drafting instructions on self-defense 412*412 and should modify pattern jury instructions when necessary. State v. Marquardt, 496 N.W.2d 806, 806 (Minn.1993) (stating that jury instructions on self-defense should have been modified to fit the contentions of the parties). But Edwards did not request that CRIMJIG 7.07 be modified or supplemented.
Contrary to Edwards' suggestion, CRIMJIG 7.07 does not permit a jury to ground forfeiture of the defense simply on conversation. In the context of the instruction, the natural understanding of the word "incident" is that of a quarrel or conflict with potentially serious consequences. The instruction uses the words "affray" and "contest" interchangeably with "incident." The instruction requires that the defendant have a "desire for peace" before the right of self-defense is restored. When read as a whole, the instruction contemplates conduct that is a good deal greater than mere conversation.
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HANSON, J., dissents with opinion in which PAGE and MEYER, JJ., join.
ANDERSON, PAUL H., Justice (concurring).
I concur. In so doing, I agree with the dissent's concern that CRIMJIG 7.07 on self-defense may misstate the law and is in need of revision. Nevertheless, the facts of this case do not establish that appellant Brian Keith Edwards met his duty to retreat if at all possible to avoid any threatened harm presented by Timothy Oliver. For this reason, I agree with the majority's alternative conclusion that any error in the submission of the instruction was harmless. Therefore, I agree that Edwards' conviction should be affirmed.
HANSON, Justice (dissenting).
I respectfully dissent. I conclude that it was error to instruct the jury by use of CRIMJIG 7.07, and that such error was not harmless.[1] Accordingly, I would reverse Edwards' conviction and remand for a new trial.
The critical fact issue for the jury to resolve at trial was which person was the first to use or threaten to use deadly force. The state's evidence suggested that Edwards aimed and fired his gun first. Edwards testified that Oliver aimed and fired his gun first.
If we accept the state's evidence as true, Edwards' use of deadly force would not have been in response to anything that Oliver did and could not be considered an act of self-defense. The general self-defense instruction makes clear that self-defense is not available to the person who uses deadly force first, without justification. 10 Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 7.05 (4th ed. 1999). Thus if the jury found that Edwards shot first, there would be no need for either a self-defense or a self-defense forfeiture instruction because Edwards could not have been acting in self-defense.
Edwards' version of the facts does present a self-defense issue. If we accept Edwards' testimony as true, Edwards would be entitled to the general self-defense instruction because Edwards' use of deadly force would have been in response to Oliver's prior use of deadly force. Whether a self-defense forfeiture instruction would be appropriate under Edwards' version of the 415*415 facts depends on whether any of the preliminary actions taken by Edwards were sufficient to justify the use of deadly force by Oliver. But, even if a self-defense forfeiture instruction was appropriate, the use of CRIMJIG 7.07 was error because it misstates the law by allowing the jury to find forfeiture based on actions that were not sufficient to justify the use of deadly force by Oliver, such as merely inducing a conversation.
Because I cannot determine with any degree of certainty how the jury resolved the fact issue of who shot first, I cannot say that the error in instructing the jury by use of CRIMJIG 7.07 was harmless. In other words, I cannot eliminate the possibility that the jury believed Edwards' testimony that Oliver shot first and Edwards only shot in response, but rejected Edwards' claim of self-defense because the jury concluded, incorrectly from CRIMJIG 7.07, that Edwards had forfeited his right to self-defense by inducing the conversation.
