I think you're wrong in that. The prosecution will try to prove that the defendant is guilty of second degree murder. The defense will be the ones claiming that their man is innocent because be acted out of fear of great bodily harm or death. They have to show why his fears were justified. Good luck with that.
The problem for the prosecution is that the victim DID physically assault the defendant.
Read the law. According to the statute, a person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. That could conceivably be the case here. The statute continues: "However, a person is justified in the use of deadly force and does not have a duty to retreat if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony." That is what the defense is going to have to show, and there is absolutely no evidence that Reeves was facing imminent death or great bodily harm.
From:
http://www.ohioverticals.com/blogs/akron_law_cafe/2012/04/zimmermans-low-burden-of-proof-on-the-issue-of-self-defense/
The Fourth District Court of Appeal stated:
"But, with these additional facts, did he also incur a "burden of proof" identical to the State's? That is, did he have to prove the additional facts for self-defense beyond a reasonable doubt? Or was he instead bound by some lesser standard-say, the greater weight of the evidence? Indeed, how about something even less onerous than that? Was he merely obligated to lay the additional facts before the jury, without any burden as to the strength of their probative value – other than they might be true?
The answer is this. No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense.
The ex-cop has the burden of providing some evidence that would engender reasonable doubt in one juror. The prosecution will have the burden to prove BEYOND ANY REASONABLE DOUBT that self-defense was not justified.
As far as I am concerned, the fact that no physical contact took place until the victim physically assaulted the defendant suffices as evidence that self-defense MIGHT have been reasonable, depending upon all the other factors that would have influenced the defendant's state of mind.
This would clearly burden the prosecution to prove, BEYOND A REASONABLE DOUBT, that the defendant was not justified by self-defense.
Questions that need answering:
Was the theater darkened at the time of the attack? Was the attacker silhouetted by the lit movie screen such that the defendant could not see what object was thrown, whether the attacker was about to throw another object, or whether the attacker was armed?
Since the attackers wife was also standing, was it possible for the defendant to determine whether the wife was also participating in the attack?
Was the defendant concerned about the welfare of his wife given that he was under attack by perhaps two people?
What would a reasonable person believe would follow the attack? Is there any reason to believe that the attack would stop?
Were there people seated in the defendant's row of seats such that an attempt to flee, possibly in the dark, would have injured other innocent people?
To all those who would claim that it is not reasonable for the defendant to expect to be killed over an argument about "texting", I would point out that that is exactly what happened to the victim in this case. The criminal actions of the victim proved, beyond a reasonable doubt, that the attacker had no qualms about breaking the law to harm the defendant.