State v. Abbott

Facts

Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos hired a contractor to pave their portion. Abbott got some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, the Scaranos' son, was visiting and objected. After some words, a fist fight began. Abbott landed the first punch and sent Nicholas to the ground, but a jury could find Nicholas was the aggressor. Michael Scarano then came at Abbott with a hatchet. Michael said the contractor had just returned the tool and denied he meant to use it as a weapon. According to Abbott, Mary followed with a carving knife and a large fork. All three Scaranos were hit by the hatchet, and Nicholas suffered severe head injuries. Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it. He said the Scaranos were hurt in a common struggle for it. A jury could find he intentionally inflicted the blows. Abbott was separately indicted for atrocious assault and battery on each Scarano. The charges were tried together. The jury acquitted him as to Michael and Mary and convicted him as to Nicholas.

Issues

1. Did Abbott have to show plain error to challenge the retreat instruction, even though he did not object to the charge as given, after he had requested a different charge and objected to its refusal?
2. When a defendant claims self-defense, when must he retreat before using force, and what must the jury be told about retreat?
3. Does the retreat doctrine apply to a charge of atrocious assault and battery?
4. Did the trial court's retreat instruction correctly guide the jury on the facts of this case?

Holding

The retreat doctrine applies to atrocious assault and battery, but the charge must center on the defendant's use of deadly force and his knowledge that he could retreat with complete safety. The trial court's charge tied retreat to the nature of the attack on Abbott and omitted those points, so the conviction was reversed.