State v. Mayo

Josiah Mayo (defendant) and his cousin were at a bar in Portsmouth, New Hampshire. Zachary Green and his friends were also at the establishment. Green consumed a few alcoholic beverages early in the day but stopped so that he could be the designated driver. The rest of Green’s friends continued drinking. Mayo and his cousin departed the bar first. Soon after, Green and his friends were ushered outside. A physical altercation arose between Green’s group and Mayo and his cousin. Accounts varied on how the altercation began, but all witnesses attested that at some point, Mayo kicked Green in the head. Mayo was charged with two counts of assault. Mayo testified that he heard a racial slur and turned to see Green’s friends seemingly converging on his cousin. Mayo allegedly saw his cousin being physically assaulted and believed that his cousin was in danger. Mayo heard Green approaching quickly and assumed that Green intended to attack his cousin. Mayo responded by kicking Green. A jury instruction given by the court stated that Mayo did not have the right to use force to defend another if the person he was defending provoked the initial attack. Mayo was convicted on both charges and appealed his conviction to the New Hampshire Supreme Court. Mayo argued that the trial court failed to instruct the jury that his use of force was justifiable in defense of his cousin because he reasonably believed that his cousin was not the initial aggressor in the fight.