Criminal Law Blog

Lack of retreat before imminent danger of death or serious bodily injury arose deemed irrelevant to defendant's self-defense claim.

Dawkins v. United States
(decided July 26, 2018)

Associate Judges Glickman, Easterly, and McLeese. Opinion by Judge Easterly. PDS for Mr. Dawkins. Trial Judge: Russell Canaan.


Mr. Dawkins was convicted of voluntary manslaughter after a jury trial. Evidence showed that he encountered a stranger, Mr. Cheek, early one morning, after both men had been out drinking. The two struck up a conversation. They had decided to go to a gas station to buy cigarettes, when the decedent, also unknown to Mr. Dawkins, drove up and asked whether Mr. Cheek was okay. Mr. Cheek said he was fine and to “go ahead,” but the decedent did not. After Mr. Dawkins asked the decedent to leave, the two got into an argument. The decedent got out of his car and went to the back of it. Mr. Dawkins followed. After more yelling, the decedent punched Mr. Dawkins. Mr. Dawkins punched back and, in the ensuing fistfight, stabbed the decedent in the neck. Mr. Cheek tried to separate the two at some point before this happened. Afterwards, Mr. Dawkins fled. The decedent got into his car, drove into a building, and bled out before the paramedics arrived.

At trial, Mr. Dawkins claimed self-defense based on his mistaken belief that Mr. Cheek and the decedent were ganging up on him. The government argued that while not technically the “first aggressor,” Mr. Dawkins had “aggressively approached” the decedent’s car and charged to the back of it when the decedent got out. The government ended its opening statement by encouraging the jury, over defense objection, to think about what Mr. Dawkins could have done instead, such as walking away.

Afterward, the defense sought an instruction clarifying that Mr. Dawkins did not lose the right to claim self-defense simply by failing to retreat before the fight started. The defense proposed to instruct that the jury could consider whether it was possible for Mr. Dawkins retreat, only after he used nondeadly force to defend himself. The government objected and submitted its own proposal, which did not distinguish between the relevance of retreat at any point in the encounter. The government’s proposal further stated, consistent with Pattern Jury Instruction 9.503, that “a person should take reasonable steps such as stepping back or walking away to avoid the necessity of taking a human life, so long as those steps are consistent with the person’s own safety” and that the jury “should therefore consider whether [Mr. Dawkins] could have taken those steps consistent with his own safety.” The trial court adopted the government’s proposal over defense objection. In its rebuttal closing, the government again argued, over defense objection, that Mr. Dawkins could have avoided using deadly force by retreating when the decedent got out of his car.

Issue: Did the trial court reversibly err by failing to provide adequate instruction on the potential relevance of Mr. Dawkins’s failure to retreat from the decedent?

Holding: Yes. “[I]n assessing the reasonableness of a defendant’s actions in the context of a self-defense claim, and specifically the defendant’s ability to retreat, the jury’s proper temporal focus is the time at which a defendant employs deadly force or has possible justification (based on a reasonable belief that he is in imminent danger of death or serious bodily injury) to do so.” The trial court’s instruction, which allowed the jury to think that it “should” consider the ability to retreat at any point in the encounter, failed to adequately convey this principle. The instruction was not harmless given the government’s repeated suggestion that the jury could consider Mr. Dawkins’s failure to walk away before he had any possible justification to use deadly force.

Of Note: 

  • The Court acknowledged that the defendant’s behavior before any possible justification for deadly force arises may be relevant to issues like credibility and provocation that were not present in Mr. Dawkins’s case.
  • The Court took no position on the correctness of the version of D.C. Pattern Instruction 9.503 that was in effect at the time of Mr. Dawkins’s trial. WC.

Read the full opinion here.