STATE v. BAIRD, 654 N.W.2d 105 (Minn. 2002)

No. C1-01-894.Supreme Court of Minnesota.
Filed: December 5, 2002.

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Appeal from the Minnesota Court of Appeals.

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SYLLABUS
1. The rule in State v. Glowacki, 630 N.W.2d 392 (Minn. 2001), that when acting in self-defense there is no duty to retreat from one’s own home even if the aggressor is a co-resident, applies retroactively.

2. The district court’s instruction that respondent had a duty to retreat from his home constitutes plain error and requires a new trial.

Affirmed.

Mike Hatch, Minnesota Attorney General, Kelly O’Neill Moller, Assistant Attorney General, Charles C. Glasrud, Stevens County Attorney, Morris, for Appellant.

John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, Minneapolis, for Respondent.

Considered and decided by the court en banc without oral argument.

OPINION
We are asked in this case if our holding in State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001) — that when acting in self-defense there is no duty to retreat from one’s own home even if the aggressor is a co-resident — is to be given retroactive application. We hold that the Glowacki rule applies retroactively. Further, we hold that the district court’s erroneous instruction that respondent had a duty to retreat constitutes plain error and requires a new trial.

Respondent Jeffrey Warren Baird was charged with disorderly conduct, fifth-degree assault, and third-degree assault, in violation of Minn. Stat. § 609.72, subd. 1 (1998), § 609.224, subd. 1 (1998), and § 609.223, subd. 1 (1998), respectively, in connection with an altercation with a

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co-resident at Baird’s home. Baird asserted at trial that he was acting in self-defense, and the district court instructed the jury that Baird had a duty to retreat. Baird was found guilty on all charges. Baird appealed the third-degree assault conviction, contending that the district court committed plain error by instructing the jury that he had a duty to retreat when the assault occurred inside his home. The court of appeals reversed the conviction, concluding that the district court had erred by instructing the jury that Baird had a duty to retreat, and remanded to the district court for a new trial. We affirm the court of appeals.

Baird and James Nelson resided together in Baird’s motor home at a campground. At about 1:30 a.m. on June 16, 2000, Nelson, Baird, and Jolene Bedel, Baird’s ex-wife, returned to the campground from a local bar. All three had been drinking.[1] Nelson’s girlfriend Alicia Bergs was at the motor home at that time. Bedel wanted to leave the campground in her vehicle, but Baird thought she was too drunk to drive and confronted her, taking away her keys. Nelson offered to let Bedel use his vehicle, but Baird blocked the door to Nelson’s vehicle. Those who testified dispute what happened next.

Nelson testified that he tried to push Baird away from the vehicle’s door but did not threaten or punch Baird. Baird became hostile and egged Nelson on, saying “let’s go” and “come on” before tackling Nelson and pinning him face-down to the ground. Nelson did not strike back. Bergs added that when she tried to break up the fight, Baird stood up and elbowed her in the chin. Nelson told Baird to leave Bergs alone, and Baird resumed attacking Nelson, telling him to get his things from inside the motor home and leave. Finally Baird and Nelson stood up. Nelson and Bergs went inside the motor home to collect Nelson’s belongings. Baird followed them. He attacked Nelson again, this time pinning Nelson face down on the bed and punching him. Nelson admitted that he may have had a screwdriver in his hand while inside the motor home and that someone had taken it away from him. Bergs’ testimony was consistent with Nelson’s.

Baird testified that Nelson tried to push him away from the vehicle door. Eventually, Baird swung at Nelson, who fell to the ground. Baird admitted that he continued to punch Nelson in the back and that he went “a little overboard” in attacking Nelson. After Nelson and Bergs went into the motor home, Baird heard a loud “kaboom.” He went inside to investigate. Inside he saw his television set “all over the floor” and Nelson approaching him with a screwdriver in his hand. Afraid that Nelson was going to stab him with the screwdriver, Baird hit Nelson in the face and wrenched his arm so that someone could take the screwdriver away from him. Baird admitted that he was nearest the motor home door and could have left at any time.

After the altercation, Nelson reported the incident to police. Baird was charged with disorderly conduct, fifth-degree assault, and third-degree assault. He claimed self-defense. The district court instructed the jury that the excuse of self-defense imposes a duty to retreat or avoid the danger if reasonably possible:

The legal excuse of self defense [sic] is only available to those who act honestly

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and in good faith. This includes the duty to retreat or avoid the danger if reasonably possible.

Baird did not object to the instruction at trial.[2] The jury found Baird guilty on all counts.[3]

Baird appealed from the judgment of conviction of third-degree assault. State v. Baird, 640 N.W.2d 363, 364 (Minn.App. 2002). He argued that the district court committed plain error by instructing the jury that he had a duty to retreat when the assault took place inside his own home. Id. at 366. Because Baird did not make an objection at trial or make a motion for a new trial based on the instruction, the court of appeals applied the plain error test. Id. Under the first prong of the plain error test, the court of appeals considered whether the duty-to-retreat instruction was error. Id. at 367. The court noted tha State v. Hennum, 441 N.W.2d 793, 800 n. 5 (Minn. 1989), and State v. Morrison, 351 N.W.2d 359, 362 (Minn. 1984),[4] seemed to approve of jury instructions that imposed a duty to retreat within one’s home when the aggressor is a co-resident. Baird, 640 N.W.2d at 367. Looking t State v. Carothers, 594 N.W.2d 897, 902-04 (Minn. 1999), and our decision in Glowacki, however, the court of appeals concluded that the duty to retreat instructions had been summarily upheld in Hennum and Morrison and that self-defense in the home should not include a duty to retreat Baird, 640 N.W.2d at 367.

The court of appeals acknowledged the general rule under Hoff v. Kempton, 317 N.W.2d 361, 363 (Minn. 1982), that absent special circumstances or specific pronouncements of prospectivity, a decision is given retroactive effect. Baird, 640 N.W.2d at 367. Recognizing that this court did not specifically indicate that Glowacki should apply only prospectively, the court of appeals continued its analysis under the special circumstances test. Baird, 640 N.W.2d at 367-68. The court determined that Glowacki failed under the first factor of the special circumstances test because the Glowacki decision did not establish a new principle of law by overruling clear past precedent. Baird, 640 N.W.2d at 368. Because special circumstances did not exist, the court of appeals held that Glowacki would be given retroactive effect. Baird, 640 N.W.2d at 368.

The court of appeals then returned to the plain error test. Id. at 368. The court determined that the district court erred and that the error was plain because, under Glowacki, the district court should not have instructed the jury that Baird had a duty to retreat. Baird, 640 N.W.2d at 368.

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The court then examined the third prong of the plain error test — whether “`the error was prejudicial and affected the outcome of the case'” — and decided that the error was prejudicial. Id. at 369 (quoting State v. Griller, 583 N.W.2d 736, 741
(Minn. 1998)). The court concluded that all three prongs of the plain error test were satisfied and that the error was not harmless, warranting reversal and remand for a new trial. Id. at 369-70.

I.
Whether a decision applies retroactively or nonretroactively is a legal question we review de novo. State v. Costello, 646 N.W.2d 204, 207
(Minn. 2002).[5] Generally, our rulings are given retroactive effect Baker v. State, 590 N.W.2d 636, 640 (Minn. 1999). We have followed the lead of the United States Supreme Court, however, in making certain limited exceptions to the general rule. Thus, in State v. Hamm, we adopted a test developed by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 629 (1965), for determining whether a new constitutional rule of criminal procedure should be applied prospectively. State v. Hamm, 423 N.W.2d 379, 386 (Minn. 1988)

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(holding that the Minnesota Constitution guarantees a criminal defendant’s right to a 12-person jury in misdemeanor prosecutions and, adopting the Supreme Court’s clear break exception, applying rule prospectively), superseded on other grounds by
Minn. Const. art. I, § 4; see Griffith v. Kentucky, 479 U.S. 314, 320
(1987) (discussing Linkletter); see also State v. Olsen, 258 N.W.2d 898, 906-07 (Minn. 1977) (adopting procedural rule in dual-representation situation for defendants to be advised of their right to counsel and, citing Linkletter, 381 U.S. at 629, and Stovall v. Denno, 388 U.S. 293, 297 (1967), holding new rule is prospective).[6] Similarly, in Hoff v. Kempton, we adopted the special circumstances test for dealing with the retroactivity question as announced by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971). Hoff, 317 N.W.2d at 363-65
(applying Chevron Oil and holding that the rule of Rush v. Savchuk, 444 U.S. 320 (1980), that the attachment-of-insurance-policy method of establishing quasi-in-rem jurisdiction denies an out-of-state defendant’s due process rights, applies retroactively).

In this case, the parties have assumed the applicability of the Chevron Oil special circumstances test and have asked us to give Glowacki
retroactive or nonretroactive effect on the basis of whether a special circumstances exception exists. The special circumstances test requires that three factors be satisfied for a decision to apply nonretroactively:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed * * *. Second, it has been stressed that “we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” * * * Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the `injustice or hardship’ by a holding of nonretroactivity.”

Chevron Oil, 404 U.S. at 106-07 (citations omitted), quoted in Hoff, 317 N.W.2d at 363. We have had occasion to apply the special circumstances test in the past but “have made purely prospective rulings in only very limited situations.” Turner v. IDS Fin. Servs., Inc., 471 N.W.2d 105, 108-09 (Minn. 1991) (citing Olsen, 258 N.W.2d at 907 n. 15, and Nieting v. Blondell, 235 N.W.2d 597, 603 (Minn. 1975)).[7]

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We find the special circumstances test, which was formulated to deal with questions of retroactivity for civil cases, ill-suited to the present criminal case. See Griffith, 479 U.S. at 322 n. 8 (differentiating retroactivity analysis for newly declared rules of constitutional criminal procedure from retroactivity analysis for civil cases). The rationale behind the special circumstances test is that, in some cases, the disruptive effect retroactivity has on parties and their individual situations outweighs the countervailing interest in treating all similarly situated parties alike. See American Trucking Associations v. Smith, 496 U.S. 167, 181-86 (1990). This case does not present that concern. Here we are asked whether Glowacki, which was on appeal to our court at the time of Baird’s trial and which imposed no duty on Baird’s part to retreat from his home before using self-defense against a co-resident, applies to Baird. We conclude that it does. To hold otherwise would be to treat similarly situated criminal defendants differently. See Griffith, 479 U.S. at 327 (quoting Hankerson v. North Carolina, 432 U.S. 233, 247 (1977) (Powell, J., concurring in judgment), quoting Desist v. United States, 394 U.S. 244, 255 (1969) (Douglas, J., dissenting)) (internal quotation marks omitted) (“[I]t hardly comports with the ideal of administration of justice with an even hand, when one chance beneficiary — the lucky individual whose case was chosen as the occasion for announcing the new principle — enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.”); United States v. Johnson, 457 U.S. 537, 547-48
(1982) (quoting Desist, 394 U.S. at 258-59 (Harlan, J., dissenting)) (“`[W]hen another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a “new” rule of constitutional law.'”); see also James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 538-43 (1991) (addressing the retroactive application of Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), holding that Bacchus applies retroactively in an opinion joined by only Justices Souter and Stevens, and suggesting that Chevron Oil should be overruled); Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 90 (1993) (rejecting civil retroactivity and holding “[i]n accord with Griffith v. Kentucky * * * and James B. Beam Distilling Co. v. Georgia * * * that

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this Court’s application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision”). It seems patently unfair to us to apply different rules to Glowacki and Baird — two similarly situated defendants simply because Glowacki’s appeal reached us first. We therefore decline to apply the special circumstances test to the instant case. Furthermore, finding no rationale to except Glowacki from our general rule of retroactivity, we hold that Glowacki applies retroactively.

II.
Generally speaking, an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). In the absence of an objection, the appellate court may review jury instructions if the instructions contain plain error affecting substantial rights or an error of fundamental law. State v. Crowsbreast, 629 N.W.2d 433, 437
(Minn. 2001); State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983); see also Minn.R.Crim.P. 26.03, subd. 18(3), 31.02. Under this test, the challenging party must show: 1) error, 2) that is plain, and 3) that affects substantial rights. Griller, 583 N.W.2d at 740. If all three prongs are satisfied, the court determines whether the error must be addressed to ensure the fairness and integrity of the judicial proceedings. Id.

We apply the plain error test because Baird neither objected to the instruction at trial nor made a motion for a new trial based on the instruction. Baird, 640 N.W.2d at 366. We begin by addressing whether the district court erred in giving the duty-to-retreat instruction.

A trial court is given considerable latitude in selecting the language of jury instructions, but instructions may not materially misstate the law. State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). Because we decide today that Glowacki, which does not impose a duty to retreat from one’s home before using self-defense against a co-resident, applies retroactively, the duty-to-retreat instruction given at Baird’s trial in December 2000 misstated the law. Under Glowacki, the district court’s instruction was erroneous because Baird did not have a duty to retreat from his home against a co-resident. The first prong of the plain error test is thus satisfied.

Having determined that the district court erred in instructing the jury that Baird had a duty to retreat, we turn to the second and third prongs of the plain error test. Under the second prong of the plain error test, we consider whether the district court’s error is plain. “[T]o satisfy the second prong it is sufficient that the error is plain at the time of the appeal.” Griller, 583 N.W.2d at 741 (emphasis added). In this case, the district court gave a duty-to-retreat instruction; but by the time of appellate consideration, under Glowacki, a co-resident does not have a duty to retreat before using self-defense in the home. Because Glowacki’s holding now renders the duty-to-retreat instruction given in error at Baird’s trial clear and obvious, the error is plain. Baird has established the second prong of the plain error test.

The third prong of the plain error test requires us to determine if the error was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d at 741. Plain error is prejudicial if there is a “`a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.'” Id. at 741 (quotin State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)).

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The State argues that even if Glowacki is to be applied retroactively, Baird is not entitled to a new trial because the third prong fails. The State contends that any error was not prejudicial to Baird because Baird used an excessive amount of force in attacking Nelson and thus even a properly instructed jury could not have found that Baird acted in self-defense where Baird continued to hit Nelson after the screwdriver had been removed from Nelson’s hand. Baird argues that there is a reasonable likelihood that a properly instructed jury could have accepted his claim of self-defense.

We agree with Baird. Evidence in the record that Nelson was holding a screwdriver at the time of the attack establishes that the jury could have concluded that Baird acted in self-defense. Under the circumstances, we conclude that it is simply impossible to determine whether the jury rejected Baird’s version of the facts or whether it accepted his version but concluded that he was guilty nevertheless because he failed to retreat. If the jury had known that Baird did not have a duty to retreat, it is possible that it would have decided that Baird’s actions were reasonable and taken in self-defense. Because there is a reasonable likelihood that the error had a significant effect on the jury’s verdict, we conclude that the error was prejudicial and affected the outcome of the case and therefore that it cannot be considered harmless. Id.

Finally, we address whether a new trial is required “to ensure fairness and the integrity of judicial proceedings.” Griller, 583 N.W.2d at 742. In this case, the district court instructed the jury that self-defense “includes the duty to retreat or avoid the danger if reasonably possible.” No evidence was offered that Baird tried to retreat. Furthermore, the State emphasized a duty to retreat in closing argument:

There’s also an instruction in here about retreat. Remember we talked about could — could you leave that place, could you go get help. Did you have to hit him? The Judge will tell you that the legal excuse of self defense is available only to those who act honestly and in good faith. This includes the duty to retreat or avoid danger if reasonably possible. So let’s be real clear on this. Whatever he thinks, the defendant does not have the right to say well, he’s in here in this place that we live in and he’s got a screwdriver in his hand. Think I’ll hit him in the face. He can only do that if that’s reasonably necessary to protect himself, but he had a world of other options * * *.

Given the instruction and the State’s emphasis in closing argument, the jury may not have considered whether Baird’s conduct was reasonable under the circumstances. Fairness requires that Baird be given an opportunity to present his account of the facts to a jury under the proper instructions. We therefore affirm the court of appeals.

Affirmed.