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Runion v. State12/4/2000
en there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is danger of such design being accomplished;
2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode in which he is; or
3. By any person, when committed upon the person of another who is engaged in the commission of a felony or an attempted felony, or who after the commission or attempted commission of any such felony is fleeing from the premises or resisting lawful pursuit and arrest within 20 miles of the premises where such felony was committed or attempted to be committed.
Instruction 27 quotes NRS 200.200, stating:
If a person kills another in self-defense, it must appear that:
1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and
2. The person killed was the assailant.
Generally, the defense has the right to have the jury instructed on a theory of the case as disclosed by the evidence, no matter how weak or incredible that evidence may be. See Margetts v. State, 107 Nev. 616, 619, 818 P.2d 392, 394 (1991). However, the district court may refuse a jury instruction on the defendant's theory of the case which is substantially covered by other instructions. See Earl v. State, 111 Nev. 1304, 1308, 904 P.2d 1029, 1031 (1995). The instructions on self-defense submitted to the jury in this case are quotations of NRS 200.120, 200.130, 200.160, and 200.200. Thus, they are largely a correct statement of the law. However, while the statutory language covers apparent danger, by refusing Runion's proffered instruction on the grounds that his theory of defense was limited to actual danger, the district court precluded defense counsel from arguing apparent danger to the jury. In the absence of a specific instruction or any argument by defense counsel on apparent danger, the instructions given may have misled the jury into concluding that Runion's actions were not justified even if they found that Runion thought Pendergraft had brandished a weapon but Runion was mistaken in that belief. Additionally, the superfluous language in the instructions addressing factual scenarios of self-defense irrelevant to this case may also have confused the jury. Accordingly, we conclude that the district court erred by limiting Runion's defense to actual danger.
Because not all aspects of the self-defense statutes will be applicable in each case, we direct the district courts to cease merely quoting the applicable statutes when instructing a jury on self-defense, and we take this opportunity to set forth sample instructions for consideration by the district courts in future cases where a criminal defendant asserts self-defense. Whether these or other similar instructions are appropriate in any given case depends upon the testimony and evidence of that case. The district courts should tailor instructions to the facts and circumstances of a case, rather than simply relying on "stock" instructions.
The killing of another person in self-defense is justified and not unlawful when the person who does the killing actually and reasonably believes:
1. That there is imminent danger that the assailant will either kill him or cause him great bodily injury ; and
2. That it is absolutely necessary under the circumstances for him to use in self-defense force or means that might cause the death of the other person, for t
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