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.
Considered and decided by the court en banc without oral argument.
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), §á609.224, subd. 1 (1998), and § 609.223, subd. 1 (1998), respectively, in connection with an altercation with a 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.*fn1 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 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.*fn2 The jury found Baird guilty on all counts.*fn3
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 that 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),*fn4 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 to State v. Carothers, 594 N.W.2d 897, 902-04 (Minn. 1999), and our ...