Request an escalation instruction when the government argues that the defendant forfeited his right to self-defense by provoking a conflict

Brandon Andrews v. United States (decided October 22, 2015).

Players:  Associate judges Glickman and Fisher, Senior judge Steadman.  Opinion by Judge Glickman.  PDS for Mr. Andrews.  Trial judge:  Robert E. Morin.  

Facts:  Brandon Andrews was convicted of second-degree murder, ADW, and related weapons offenses for the shooting death of his ex-girlfriend’s brother, Leonard Bigelow.  He contended that he shot Mr. Bigelow in self-defense when he went to the Bigelow home to talk to his ex-girlfriend, and Mr. Bigelow charged towards him with a knife while he stood on the street.  The government introduced evidence that, three days before the shooting, the decedent had pulled a knife on Mr. Andrews and threatened to kill him if he did not leave his sister alone, and that on the night of the shooting, the decedent warned Mr. Andrews over the phone that he would be waiting for him if Mr. Andrews tried to visit her.  At the government’s request, the trial court instructed the jury, in accordance with Redbook Instruction 9.504(A), that “[o]ne who deliberately puts himself in a position where he reasonably believes that his presence will provoke trouble cannot claim self-defense.”  Mr. Andrews argued that there was no factual basis for this instruction. 

Issue:  Was there a factual basis for the jury to find beyond a reasonable doubt that, by going to the Bigelow home, Mr. Andrews deliberately provoked the fatal conflict and thus forfeited his right to self-defense?        

Holding:  Yes.  “[T]he jury readily could have found that appellant deliberately chose to risk a deadly confrontation with [the decedent] by placing himself in a position where his presence would be likely to provoke exactly that,” based on the decedent’s threat three days earlier and the decedent’s warning on the night of the shooting that he would be waiting for Mr. Andrews.        

    

Of Note: 

• The Court rejected the argument that Mr. Andrews had regained his right to self-defense by disengaging with the decedent after the decedent pulled a knife and threatened him three days before the shooting.  It noted that Mr. Andrews “continued to pester” his ex-girlfriend, that that the decedent’s warning that he would be waiting for Mr. Andrews could be construed as “a renewed threat . . . of physical violence.”

• In Footnote 22, the Court left open the possibility that Mr. Andrews might have been entitled to an “escalation instruction” that would have told the jury that even if Mr. Andrews provoked a confrontation, he regained the right to self-defense if the decedent’s “reaction was disproportionate to the provocation; that it was unforeseeable, in other words, that [the decedent] would employ (as appellant allegedly perceived) more than non-deadly force against him.”  Because Mr. Andrews did not request such an instruction, the Court did not reach the question.

How to Use:

Request an escalation instruction if you have a case where the government argues forfeiture by provocation.  An escalation instruction will help to limit the extremely broad language of the provocation instruction and allow you to argue that your client had the right to defend himself against deadly force even if he provoked a non-deadly conflict.  MW

Read full opinion here.