Oregon Supreme Court redefines self-defense

Deadly force - An Oregon ruling says a person doesn't have to try to escape or avoid a fight before striking back

Friday, March 30, 2007

ANNE SAKER

The law does not require a person to avoid or escape a fight with someone else before using deadly force in self-defense, the state Supreme Court ruled Thursday in reversing an Oregon murder conviction.

"The Legislature did not intend to require a person to retreat before using deadly force to defend against the imminent use of deadly physical force by another," the unanimous decision said.

The court also took the unusual step of flatly saying that a 1982 state Supreme Court ruling was wrong to create the escape-or-retreat requirement since that language is not in the law itself.

Thursday's decision came in a murder case from the Josephine County town of Merlin. Leonard Contreras Sandoval, now 56, was convicted of killing Jack A. Whitcraft, 47. The two men had been scrapping for years because Whitcraft was living with Sandoval's ex-wife.

With its ruling, the Supreme Court threw out Sandoval's conviction and sent the case back to Josephine County. Lisa Turner, a deputy district attorney, said Thursday that "at this point," the office plans to retry Sandoval.

On Sept. 27, 2001, Sandoval and Whitcraft fought at a Li'l Pantry, and Whitcraft beat up Sandoval. Later, Sandoval was driving on Pickett Creek Road and crossed paths again with Whitcraft. Sandoval turned to follow Whitcraft, and the vehicles stopped. Seconds later, Sandoval picked up a scoped hunting rifle and fired.

The bullet crashed through the rear window of Whitcraft's pickup and hit him just behind the left ear. Whitcraft fell out of the truck and onto the road.

At Sandoval's November 2002 trial, his defense lawyer argued that during that final confrontation, Whitcraft had rolled his truck back into Sandoval's vehicle then got out of the truck, a .44 Magnum in hand. The loaded and cocked weapon was found under Whitcraft's body.

The Josephine County prosecutor said, however, that Sandoval intended to kill Whitcraft.

Near the end of the trial, the prosecutor asked Circuit Judge Gerald C. Neufeld to give a special instruction to the jury:

"The danger justifying the use of deadly force must be absolute, imminent and unavoidable, and a necessity of taking human life must be actual, present, urgent and absolutely or apparently absolutely necessary. There must be no reasonable opportunity to escape to avoid the affray and there must be no other means of avoiding or declining the combat."

The defense objected to the instruction, but Neufeld read it to the jury, which needed just 90 minutes to convict Sandoval. He was sentenced to life in prison with the possibility of release in 25 years.

Sandoval appealed the jury instruction. The attorney general's office, representing the Josephine County district attorney, argued that the 1982 ruling in State v. George allows the instruction. In that case, the accused person had asked a judge to tell the jury that there was no escape-or-retreat clause in the self-defense law. The judge refused, and the Supreme Court ruling upheld the judge.

In Sandoval's case, the state Court of Appeals agreed with the reliance on the George case. But in Thursday's decision, the Supreme Court did not.

The author of Thursday's opinion, Justice W. Michael Gillette, wrote that the law on self-defense "contains no specific reference to 'retreat,' 'escape' or 'other means of avoiding a confrontation.' Neither, in our view, does it contain any other wording that would suggest a duty of that kind."

Nothing in the law "suggests that persons who reasonably believe that another person is about to use deadly physical force against them must calculate whether it is possible to retreat from that threat before they use deadly physical force in self-defense," the court ruled.

Gillette wrote that in the George case, the justices "did not focus on or even consider the words of the statutes that we now recognize to be pivotal."

Thursday's ruling also threw out the attorney general's argument that even if the jury instruction was wrong, Sandoval was not harmed. The court said the instruction had required the jury to first determine whether Sandoval could have retreated, so, "there is every likelihood that the erroneous instruction affected the verdict."

John Conner, head of the felony unit at Metropolitan Public Defender, estimated that Thursday's decision might touch "a fair number" of cases "because for a long time, the courts believed (the George case) was the law."

Anne Saker: 503-294-7656; annesaker@news.oregonian.com