O.W.M. v. State , 946 P.2d 257 ( 1997 )

LANE, Judge,

concurs in part/dissents in part:

I agree with the majority in every aspect of the opinion except I would not remand for a new trial. It is my position that the trial court has already decided the issue of whether the defendant was justified in using deadly force in the defense of his brother. In its findings and conclusions, the trial court stated that deadly force was justified in this case when it found that “Shelby (the brother being attacked by the victim) had the right of self-defense and could have used deadly force.” (Emphasis supplied.) I would give deference to the finding of the trial court and even though the finding applied to the situation of Shelby, I fail to see how it would not apply to the appellant. The victim was on top of Shelby and choking him. Appellant tried to stop the fight and get the victim off of his brother but was thrown aside by the much larger victim. It was then that he fired the shots.