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Runion v. State12/4/2000
he purpose of avoiding death or great bodily injury to himself.
A bare fear of death or great bodily injury is not sufficient to justify a killing. To justify taking the life of another in self-defense, the circumstances must be sufficient to excite the fears of a reasonable person placed in a similar situation. The person killing must act under the influence of those fears alone and not in revenge.
An honest but unreasonable belief in the necessity for self-defense does not negate malice and does not reduce the offense from murder to manslaughter.
The right of self-defense is not available to an original aggressor, that is a person who has sought a quarrel with the design to force a deadly issue and thus through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault.
However, where a person, without voluntarily seeking, provoking, inviting, or willingly engaging in a difficulty of his own free will, is attacked by an assailant, he has the right to stand his ground and need not retreat when faced with the threat of deadly force.
Actual danger is not necessary to justify a killing in self-defense. A person has a right to defend from apparent danger to the same extent as he would from actual danger. The person killing is justified if:
1. He is confronted by the appearance of imminent danger which arouses in his mind an honest belief and fear that he is about to be killed or suffer great bodily injury ; and
2. He acts solely upon these appearances and his fear and actual beliefs; and
3. A reasonable person in a similar situation would believe himself to be in like danger.
The killing is justified even if it develops afterward that the person killing was mistaken about the extent of the danger.
If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the State has failed to prove beyond a reasonable doubt that the defendant did not act in self-defense, you must find the defendant not guilty.
Helton's testimony concerning Runion's statement that he acted in self-defense
Runion also contends that Helton should have been permitted to testify that he told her a few days after the shooting that he fired in self-defense. Runion argues that the statement was admissible as a prior consistent statement. We disagree. However, we conclude that the prosecutor's comments on the subject to the jury during closing arguments were improper and amounted to prejudicial misconduct.
Prior consistent statements of a witness are generally considered to be inadmissible hearsay. See NRS 51.035. However, they are admissible to rehabilitate a witness charged with recent fabrication or having been subjected to improper influence. See NRS 51.035(2)(b). A prior consistent statement is not hearsay if: (1) the declarant testifies at trial; (2) the declarant is subject to cross-examination concerning the statement; (3) the statement is consistent with the declarant's testimony at trial; and (4) the statement is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. See Patterson v. State, 111 Nev. 1525, 1531-32, 907 P.2d 984, 988-89 (1995). Additionally, the prior consistent statement, to be admissible, must have been made at a time when the declarant had no motive to fabricate. See Id.; see also Cheatham v. State, 104 Nev. 500, 502, 761 P.2d 419, 421 (1988).
At trial, Runion was questioned on cross-examination concerning what he told Helton about the incident on the evening o
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