THE STATE OF WASHINGTON, Respondent, v. RANDALL JAY DENNISON, Petitioner.
No. 56333-1
En Banc.
November 21, 1990.
115 Wn.2d 609
(Footnotes omitted.) 2 E. McQuillin, Municipal Corporations § 10.38 (3d rev. ed. 1988).
IV
We conclude, after reviewing the relevant statutes and municipal ordinances, that the Superior Court did not err in denying Nollette the requested declaratory relief. Accordingly, the Superior Court‘s decision is affirmed.
CALLOW, C.J., and UTTER, BRACHTENBACH, DOLLIVER, DORE, ANDERSEN, and SMITH, JJ., concur.
Andrew K. Miller, Prosecuting Attorney, and Robert Ingvalson, Deputy, for respondent.
CALLOW, C.J. — Randall Dennison was convicted of first degree felony murder. The Court of Appeals affirmed. State v. Dennison, 54 Wn. App. 577, 774 P.2d 1237 (1989). Dennison seeks review of whether the trial court erroneously: denied his request for jury instructions regarding self-defense, proximate cause, and lesser included offenses; denied his affidavit of prejudice; did not find prosecutorial misconduct; denied the relevancy of the statute of limitations of the underlying felony of burglary; and wrongfully allowed the prosecutor in his opening statement to mention the police investigation of Dennison for possible prior crimes. We affirm.
I
FACTS
On January 23, 1982, while burglarizing the home of Robert Yates, Randall Dennison killed Daniel Stracner. Stracner lived in an apartment above the home of Yates, a known drug dealer. Dennison had been tipped off that Yates had a supply of marijuana in his bedroom.
After driving by Yates’ home and not seeing anyone there, Dennison parked his car at a nearby convenience store and telephoned Yates; no one answered the phone. Dennison walked to Yates’ house and knocked on the door. After no one answered, he kicked open the door and went to the bedroom looking for the marijuana. Dennison carried
Shortly after Dennison entered Yates’ home, Stracner, also armed with a gun, appeared in the bedroom doorway. According to Dennison, Dennison grabbed Stracner‘s hand which was on the gun and pushed it into the air. Dennison held his own gun in Stracner‘s stomach. Dennison asserted that he backed Stracner out of the house and onto the porch. Dennison testified that he told Stracner that he had not taken anything, that it was all over, that he did not intend to hurt Stracner, and that he just wanted to leave. According to Dennison, Stracner said “okay.” Dennison then pointed his gun down at the ground and released his grip on Stracner‘s hand which held the gun. After Dennison‘s hand was released, Dennison claims, Stracner shot at him. In response, Dennison claims he fired at Stracner, resulting in Stracner being knocked onto a couch. Stracner assertedly aimed at Dennison again and Dennison fired more shots. It was subsequently determined that Stracner‘s gun had in fact been fired and had jammed after the first shot. Dennison fled the scene leaving the pillowcase and burglary tools at Yates’ home. Stracner died of the gunshot wounds.
A few weeks later, the police noticed the resemblance between the pillowcase left at the crime scene and a pillowcase in a picture taken at Dennison‘s house during a police investigation of a different crime. When the police interviewed Dennison, he denied any involvement in Stracner‘s murder. Approximately 5 years later, Dennison‘s girl friend told the police that Dennison had admitted to her that he killed Stracner. Dennison was charged with first degree felony murder.
Prior to the trial, Dennison denied shooting Stracner and denied acting in self-defense. However, during the trial he admitted to killing Stracner and claimed self-defense. The trial judge denied Dennison‘s request for a jury instruction on self-defense, proximate cause, and lesser included offenses. After a 5-day trial, the jury found Dennison guilty
II
DID THE TRIAL COURT ERRONEOUSLY DENY DENNISON‘S REQUESTED INSTRUCTION ON SELF-DEFENSE?
Dennison contends the trial court erred in refusing to give his proposed instruction regarding self-defense.1 Citing State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973) and State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946), Dennison argues that at some point “withdrawal in the commission of a felony” is achievable, that he withdrew, and that a self-defense instruction was therefore appropriate. Dennison confuses two concepts of withdrawal: (1) withdrawal from a felony, and (2) withdrawal from aggressive action to revive one‘s right of self-defense.
A. Withdrawal from a felony.
A person is guilty of first degree felony murder when:
(c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnapping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants . . .
(Italics ours.) Former
Circumstances common to each of these enumerated felonies are the threatened use of force and the significant prospect of violence during the attempted felony. The felon‘s self-determined conduct inherently enhances the risk of death to others. The felon willingly or intentionally employs dangerous means to accomplish his or her criminal objective. Consonant with the felon‘s decision to use force and risk death to others is the harsh result of the felony murder statute. As stated, “[t]he purpose of the felony murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for the
Because Washington‘s felony murder statute clearly holds felons strictly responsible for any deaths occurring under the conditions specified by the statute, the issue is whether Dennison‘s actions fall within the statute. As the Court of Appeals noted, for the purpose of felony murder, “‘“the burglary is deemed to be in progress after the break and entry when defendant is still on the premises or when the defendant is fleeing from the scene.“‘” State v. Dennison, 54 Wn. App. at 580 (quoting State v. Dudrey, 30 Wn. App. 447, 453, 635 P.2d 750 (1981), review denied, 96 Wn.2d 1026 (1982) (quoting 2 C. Torcia, Wharton on Criminal Law § 148 (14th ed. 1979))). Hence, even while Dennison was fleeing the burglary scene, the burglary was still in progress.
According to the record, Dennison unlawfully entered a house, was armed with a weapon, and was attempting to flee when the gunfire ensued resulting in Stracner‘s death. Regardless of Dennison‘s claim that he pointed his gun to the ground or told Stracner that all he wanted to do was leave, Dennison was still armed, still engaged in the activity of the burglary and was fleeing therefrom. Fleeing from a burglary is not the same as withdrawing from the burglary. Because Dennison admits that he was in the process of fleeing the scene of the felony, meaning the burglary was still in progress, Dennison‘s factual scenario falls squarely within the first degree felony murder statute. Since the statutory exceptions to felony murder do not apply, Dennison must be held strictly responsible for the death caused while fleeing from the first degree burglary. The proposed self-defense instruction was properly refused.
Citing State v. Craig, 82 Wn.2d 777 and State v. Wilson, 26 Wn.2d 468, Dennison argues that he withdrew from being the aggressor; thus, when Stracner used “unlawful force,” Dennison‘s right to self-defense was revived. Dennison also characterizes his crime as a property crime and argues that during the commission of a property crime, one does not lose all rights to self-defense.
Dennison mischaracterizes his crime. He was armed with a lethal weapon while breaking into a house — not a simple property crime. As stated, although Dennison was attempting to flee the scene when the gunfire ensued, by definition, the burglary was still in progress. See Dudrey, 30 Wn. App. at 453. Essentially, Dennison asks us to decide whether a felon‘s right to self-defense can be revived during the commission of a felony.
Craig, 82 Wn.2d at 783, held:
It is the rule that one who was the aggressor or who provoked the altercation in which he killed the other person engaged in the conflict, cannot successfully invoke the right of self-defense to justify or excuse the homicide, unless he in good faith had first withdrawn from the combat at such a time and in such a manner as to have clearly apprised his adversary that he in good faith was desisting, or intended to desist, from further aggressive action.
As Craig notes, Washington has adopted the revival theory of self-defense. See Annot., Comment Note: Withdrawal, After Provocation of Conflict, as Reviving Right of Self-Defense, 55 A.L.R.3d 1000 (1974). Craig, however, specifically declined to decide whether self-defense could be revived during felony murder, nor do we need to decide that issue in this case. See Craig, 82 Wn.2d at 784. Even if we decided this issue, the result would be the same. In Bellcourt v. State, 390 N.W.2d 269 (Minn. 1986), the court reasoned that:
case law from other jurisdictions makes clear that an aggressor has the duty to employ all means in his power to avert the
necessity of killing, and before his right to self-defense may be revived, he must clearly manifest a good-faith intention to withdraw from the affray and must remove any just apprehension or fear the original victim may be experiencing.
Bellcourt, 390 N.W.2d at 272 (citing Melchior v. Jago, 723 F.2d 486, 493 (6th Cir. 1983), cert. denied, 466 U.S. 952 (1984)). Bellcourt found that a self-defense instruction would be justified only if a reasonable juror could find that defendant had withdrawn from the confrontation. Bellcourt reasoned that if the defendant had truly intended to withdraw from the robbery and communicate that withdrawal to his victim, “he would have either released the gun, said something to the effect of ‘I give up,’ or both.” Bellcourt, 390 N.W.2d at 272. Bellcourt held that the defendant had not withdrawn from the crime and an instruction on self-defense would have been improper. Bellcourt, 390 N.W.2d at 273.
Similarly, if Dennison had truly intended to withdraw from the burglary and communicated his withdrawal to the decedent, he would have dropped his gun or surrendered. Because Dennison still had his gun, although pointed to the ground, this action did not clearly manifest a good faith intention to withdraw from the burglary or remove the decedent‘s fear. The trial court properly refused Dennison‘s proposed self-defense instruction.
III
DID THE TRIAL COURT ERRONEOUSLY DENY DENNISON‘S AFFIDAVIT OF PREJUDICE?
Dennison argues that both his pro se affidavit of prejudice, filed on October 9, 1987, and his trial counsel‘s affidavit of prejudice, filed on December 2, 1987, were filed before the trial judge made discretionary rulings.5 Dennison
Affidavits of prejudice are governed by
Under these statutes and under our decisions a party litigant is entitled, as a matter of right, to a change of judges upon the timely filing of a motion and affidavit of prejudice against a judge about to hear his cause or any substantial portion thereof on the merits. Such a motion and affidavit seasonably filed presents no question of fact or discretion. Prejudice is deemed to be established by the affidavit and the judge to whom it is directed is divested of authority to proceed further into the merits of the action.
LaMon v. Butler, 112 Wn.2d 193, 201-02, 770 P.2d 1027 (1989) (quoting Dixon, 74 Wn.2d at 702), cert. denied, 110 S. Ct. 61 (1989). Examples of rulings that involve the exercise of the trial court‘s discretion are: (1) the granting or denying of a continuance;8 and (2) the valid waiver of counsel.9
According to the record, the trial judge made multiple discretionary rulings prior to the date when Dennison filed his affidavit of prejudice, October 9, 1987. On September 4, 1987, Dennison‘s counsel advised the court that Dennison wished to represent himself and waive his right to a trial by jury. On September 8, 1987, Dennison elected to represent himself and the judge allowed the retained counsel to withdraw. On September 11, 1987, the trial judge granted a motion to continue the trial date until October 26, 1987.10 Clearly, the trial court made several discretionary rulings prior to the filing of Dennison‘s affidavit of prejudice. Dennison‘s affidavit of prejudice was untimely filed.
The trial judge remarked during the September 4 hearing that he “undoubtedly” would not be the trial judge. The trial judge was trying to keep the proper matters at issue before the hearing and was refusing to hear Dennison‘s substantive motions. Moreover, the judge‘s comment came after Dennison already had called upon the trial judge to make a discretionary ruling regarding the waiver of counsel. Once accepting the trial judge to hear his waiver of counsel argument, Dennison cannot later claim that he was deceived by the same trial judge into believing he would not make a discretionary ruling. It was unreasonable for Dennison to take the judge‘s comments as a guarantee that he would not be the trial judge.
Finally, Dennison contends that his trial counsel, who was retained after the initial hearings when Dennison was pro se, had an independent right to file an affidavit of prejudice. Dennison argues that the right to one change of judge belongs to both a “party or attorney.”
IV
WAS THE PROSECUTOR‘S COMMENT DURING CLOSING ARGUMENT, APOLOGIZING TO THE DECEDENT‘S MOTHER FOR MISPRONOUNCING HER SON‘S NAME, MISCONDUCT AND GROUNDS FOR REVERSAL?
Dennison contends that the prosecutor‘s comment13 in closing argument was an improper appeal to the jury‘s compassion and grounds for reversal under State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988).14 Dennison argues that the prosecutor‘s comment narrowed “down the identification by gender and attendance throughout the 5-day trial as to who the decedent‘s mother might be.” Dennison further argues that an objection at trial would have only drawn further attention to the improper remark.
This court has held that if a defendant neither objects to a portion of the closing argument nor requests a
We do not find that the prosecutor‘s comment, although ill advised, constituted misconduct. It appears inadvertent and unintentional. In any case Dennison did not object to the prosecutor‘s comment during the trial, and the comment was not so flagrant or ill intentioned that a curative instruction would not have cured any prejudicial effect. There was no substantial likelihood the comment affected the verdict. In marked contrast to the Belgarde prosecutor‘s repetitive comments about “butchers” and “deadly madmen,” the prosecutor‘s comments in the instant case were brief and focused on apologizing for mispronouncing the victim‘s name.
V
SHOULD THE TRIAL COURT HAVE GIVEN DENNISON‘S PROPOSED JURY INSTRUCTION ON PROXIMATE CAUSE?
Dennison contends that the trial court erroneously failed to give his instruction on causation. The requested instruction stated:
To constitute Murder, there must be a causal connection between the death of a human being and the criminal conduct of a Defendant, so that the act was a proximate cause of the resulting death.
The term “proximate cause” means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened.
Defendant‘s instruction 12. Dennison argues that the decedent‘s felonious acts superseded Dennison‘s acts when the decedent overreacted under circumstances not reasonably foreseeable. Dennison confuses the two elements of proximate cause: cause in fact and legal causation.
Dennison‘s instruction 12 was taken verbatim from Washington Pattern Instructions Criminal (WPIC) 25.02. This definition of proximate cause is adapted from Washington Pattern Instruction (WPI) 15.01. WPIC 25.02 comment.15 Previously, we specifically pointed out that WPI 15.01 was an example of the imprecise use of the term “proximate cause” to encompass “cause in fact” and “legal causation” alone or in combination. Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985) (proximate cause consists of two elements: cause in fact and legal causation). We noted that WPI 15.01 refers to proximate cause in its factual context. We further noted that WPI 15.01 pertains to “cause in fact.” Hartley, 103 Wn.2d at 778 (citing King v. Seattle, 84 Wn.2d 239, 249, 525 P.2d 228 (1974)). Because WPIC 25.02 is patterned after WPI 15.01, WPIC 25.02 also pertains to cause in fact, and not to legal causation.16
“Cause in fact refers to the ‘but for’ consequences of an act—the physical connection between an act and an injury.” Hartley, 103 Wn.2d at 778 (citing King v. Seattle, 84 Wn.2d at 249). Cause in fact is generally left to the jury. Hartley, 103 Wn.2d at 778. When reasonable minds could reach but one conclusion, however, questions of fact may be determined as a matter of law. Hartley, 103 Wn.2d at 775 (citing LaPlante v. State, 85 Wn.2d 154, 531 P.2d 299 (1975); Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963)).
In the instant case, but for Dennison kicking open Yates’ door and committing armed burglary, the decedent would not have entered Yates’ house and been killed. Dennison does not argue that the burglary was completed when the decedent was killed; in any case, the death clearly occurred while the burglary was still in progress. See State v. Dudrey, 30 Wn. App. 447, 453, 635 P.2d 750 (1981), review denied, 96 Wn.2d 1026 (1982). Hence, there was no issue of fact for the jury to decide. The trial court correctly refused to give the instruction because reasonable minds could only have reached the same conclusion.
Further, Dennison‘s proposed instruction does not encompass the foreseeability element for which he argues, nor is foreseeability required under the facts of this case. See Leech, 114 Wn.2d at 705.
VI
WAS THE FELONY MURDER CHARGE BARRED BECAUSE THE STATUTE OF LIMITATIONS OF THE UNDERLYING CRIME OF BURGLARY HAD RUN?
Dennison argues that his pretrial motion to dismiss the felony murder charge should have been granted because one of the elements of the offense, specifically first degree burglary, was barred by the statute of limitations.17 Dennison cites no authority for this contention.
Neither
VII
DID THE TRIAL COURT ERRONEOUSLY DENY DENNISON‘S REQUEST FOR JURY INSTRUCTIONS ON SECOND DEGREE MURDER, FIRST AND SECOND DEGREE MANSLAUGHTER?
Dennison contends that the trial court should have instructed the jury on the “lesser included offenses” of second degree murder and first and second degree manslaughter. Dennison argues that the jury could have found him reckless or criminally negligent in creating the confrontation, a finding of the lesser offense.
Dennison misunderstands the law on instruction of lesser included offenses. As stated in Jackson, 112 Wn.2d 867, 774 P.2d 1211 (1989),
[A] defendant is entitled to an instruction on a lesser included offense if two conditions are met. First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.
Jackson, at 877 (quoting State v. Workman, 90 Wn.2d 443, 447-48, 548 P.2d 382 (1978)). See also 4 C. Torcia, Wharton‘s Criminal Procedure § 544, at 26-27 (1976 & Supp. 1989) (“[a]n offense qualifies as a lesser included offense only if the elements of the included offense are fewer in number than elements of the greater offense, and if the greater offense cannot be committed without also committing the lesser offense“).
VIII
WAS THE TRIAL COURT‘S ADMISSION OF A POLICEMAN‘S EXPLANATION THAT PHOTOGRAPHS WERE TAKEN AT DENNISON‘S HOME WHILE INVESTIGATING A DIFFERENT CRIME VIOLATIVE OF ER 404(b)?
Dennison contends that the State, in its opening statement, should not have mentioned that the police had investigated Dennison a month prior to the homicide regarding a different crime.18 To support this argument, Dennison relies on State v. Newton, 109 Wn.2d 69, 743 P.2d 254 (1987). He argues that evidence of collateral crimes violates ER 404 and ER 609. Both ER 609 and Newton are inapplicable because they pertain to impeaching a witness with evidence of prior crimes. Impeachment was not an issue in this case.
ER 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
To admit evidence of other crimes, wrongs, or acts, the trial judge is obligated to: (1) identify the purpose for which the evidence is sought to be introduced; and (2) determine whether evidence is relevant to prove an essential element of the crime charged. State v. Brown, 113 Wn.2d 520, 527, 782 P.2d 1013, 787 P.2d 906 (1989) (citing State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986); State v. Saltarelli, 98 Wn.2d 358, 655 P.2d 697 (1982); ER 402). To be relevant, the purpose for admitting the evidence must be of consequence to the outcome of the action and must make the existence of the identified fact more probable. Brown, at 527 (citing Smith, at 776; Saltarelli, at 362-63). The trial judge must weigh on the record the probative value of the relevant evidence against its prejudicial effect. Brown, at 527 (citing State v. Jackson, 102 Wn.2d 689, 694, 689 P.2d 76 (1984)). “Proper evidence will not be excluded because it may also tend to show that the accused has committed another crime, unrelated to the one with which he is charged. The test is whether the questioned evidence tends to establish motive, intent . . . identity or presence.” State v. Boggs, 80 Wn.2d 427, 433, 495 P.2d 321 (1972).
The State initially was not aware of the defense which would be presented. The trial judge properly found that identity was an essential ingredient of the crime that the State was trying to prove. The similarities between the pillowcases were relevant evidence to link Dennison to the alleged murder. The trial judge noted the potential probative value of allowing the evidence against the prejudicial effect.19 The trial court‘s decision was not manifestly unreasonable and it did not abuse its discretion.
DOES CUMULATIVE ERROR NECESSITATE RETRIAL?
Finally, Dennison claims, for the first time, cumulative error. He neither briefs the issue nor cites to authority. The issue will not be reviewed. See Smith v. King, 106 Wn.2d 443, 722 P.2d 796 (1986).
The first degree felony murder conviction is affirmed.
BRACHTENBACH, DOLLIVER, DORE, ANDERSEN, DURHAM, and GUY, JJ., concur.
UTTER, J. (dissenting) — I dissent to part II A of the majority opinion. The majority asserts that the self-defense instruction was properly refused because self-defense is not one of the statutory defenses listed in former
The Washington Legislature has specifically provided for a statutory claim of self-defense against any homicide charge.20 Homicide includes any murder.21 Felony murder is not a separate crime from murder; it is but one way of committing the crime of murder. State v. Powell, 34 Wn. App. 791, 794, 664 P.2d 1 (1983). Therefore felony murder is a homicide and self-defense is applicable.
The more difficult question is whether Dennison was entitled to a self-defense instruction on the facts of this
The record reveals that the defendant was the aggressor when he attempted armed burglary. However, the decedent, Mr. Stracner, did not live at the home the defendant was burglarizing. Stracner was not a homeowner defending his own property when he armed himself and confronted the defendant. Nonetheless, Stracner had a right to defend himself when the defendant drew his gun.
Stracner‘s use of deadly force in self-defense would not be justified, however, if Dennison withdrew within the meaning of Craig. Under those circumstances Stracner‘s use of his gun would be unjustified and Dennison‘s right to self-defense would be revived. The record reflects that Dennison arguably withdrew from his initial aggression when he pointed his gun toward the ground, told the decedent he meant no harm and that he did not take any drugs, and released his grip from the decedent‘s gun. Whether those acts amounted to a withdrawal such that Dennison‘s shooting of Stracner was justifiable is a question for the jury to decide. Rowe v. United States, 164 U.S. 546, 557, 41 L. Ed. 547, 17 S. Ct. 172, 175 (1896).
To properly raise the issue of self-defense, there need be only some evidence admitted which tends to prove a killing was done in self-defense. State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983). The State‘s argument that the defendant did not meet this burden because he did not withdraw from the felony is incorrect and confuses two distinctly different concepts of withdrawal. The first concept is whether the defendant withdrew from the felony sufficiently to terminate the felony murder. The second is whether the defendant withdrew from being the aggressor
The Court of Appeals opinion is incorrect in its claim that self-defense is not available to the defendant as a matter of law. State v. Dennison, 54 Wn. App. 577, 582, 774 P.2d 1237 (1989). The Court of Appeals takes the position that the defendant can only claim self-defense where the self-defense negates the intent element of the crime. This is not a correct statement of the law. The court‘s reliance on State v. Acosta, 101 Wn.2d 612, 616, 683 P.2d 1069 (1984) to support its position is mistaken. Acosta‘s discussion of self-defense as negating an element of the underlying crimes relates only to the allocation of the burden of proof. Acosta, at 616. The Acosta court was not concerned with whether the claim of self-defense was available, but only with who bore the burden of proving that claim. In this case, however, the allocation of the burden of proof in proving self-defense is not at issue. Instead, the issue here is whether the claim of self-defense is available.
To further support their intent analysis, the Court of Appeals quotes People v. Burns, 686 P.2d 1360, 1362 (Colo. Ct. App. 1983) for the proposition that
[t]he felony murder statute requires only that the death of a person result in furtherance of the commission of a felony. Thus, the affirmative defense of self-defense may properly be raised only as it pertains to the underlying felony, and not to the resulting death.
Dennison, 54 Wn. App. at 582. The Burns court relies on a case in which the felony murder rule was abolished, and the quoted statement was used by that court to denounce the felony murder rule‘s lack of individual culpability for criminal responsibility. See People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). Aaron cites no authority for the proposition that a person charged with felony murder is only allowed to raise self-defense as a defense to the mental element of the underlying crime. Burns cites no authority other than Aaron. 686 P.2d at 1362. The Burns court and the Court of Appeals, therefore, base their intent analysis on questionable authority.
The second foundation of the Court of Appeals analysis is that other jurisdictions uniformly deny the self-defense claim on the ground that self-defense is unavailable as a matter of law in felony murder prosecutions. They rely on the general rule that one who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself is guilty of unlawful homicide and cannot claim self-defense. After stating the general rule, however, the Court of Appeals fails to discuss the applicability of the revival exception to the general rule. The well-recognized exception to the rule is:
Although a defendant has become the aggressor by provoking an encounter, if in good faith he withdraws from the affray and so informs his adversary, but the latter continues the conflict, the right to kill in self-defense is revived in the defendant.
2 C. Torcia, Wharton on Criminal Law § 135, at 157 (14th ed. 1979).
We adopted the revival theory of self-defense in State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973). In Craig, we wrote:
It is the rule that one who was the aggressor or who provoked the altercation in which he killed the other person engaged in the conflict, cannot successfully invoke the right of self-defense to justify or excuse the homicide, unless he in good faith had first withdrawn from the combat at such a time and in such a manner as to have clearly apprised his adversary that he in good faith was desisting, or intended to desist, from further aggressive action. . . .
The United States Supreme Court has also recognized the revival theory of self-defense. In Rowe v. United States, supra, the accused kicked the deceased during an argument. The accused then backed away. The deceased pulled a knife and came at the accused, who then pulled a gun and shot the other man. The Court held that, if the jury believed the defendant intended to withdraw from the aggression, then he had a right to use self-defense to repel the knife attack. 164 U.S. at 557.23 The rationale for the revival theory is that a person acting in self-defense may only use as much force as is necessary to defend himself from the perceived threat. This premise has support in our case law. See State v. Hill, 76 Wn.2d 557, 566, 458 P.2d 171 (1969); State v. Brigham, 52 Wn. App. 208, 210, 758 P.2d 559 (1988).
In Brigham, the defendant and the deceased were involved in a fight in which the deceased was initially the principle aggressor. The defendant then pulled a knife and stabbed the deceased. The Court of Appeals held that the defendant may have been initially justified in using force in self-defense. His use of the knife, however, was excessive force negating his right to a self-defense instruction. 52 Wn. App. at 210. In other words, the defendant‘s use of the knife was unjustified.
In this case, if the jury believed defendant‘s testimony, it could conclude that the deceased was not justified in shooting at the defendant. The record reflects that the
The case should be reversed and remanded for a new trial.
SMITH, J., concurs with UTTER, J.
Notes
“It is a defense to a charge of Murder that the homicide was justifiable as defined in this Instruction.
“Homicide is justifiable when committed in the lawful defense of the slayer when the slayer reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.
“The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the slayer at the time of the incident.
“The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable.” Dennison‘s proposed instruction 10; Clerk‘s Papers, at 44.
“(i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and
“(ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and
“(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and
“(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.” Former
“With a premeditated intent to cause the death of another person, he causes the death of such person . . .“.
“Under circumstances manifesting an extreme indifference to human life, he engages in conduct which creates a grave risk of death to any person . . .“.
“(1) No judge of a superior court . . . shall sit to hear or try any action or proceeding when it shall be established . . . that said judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause.”
“Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge: Provided, That such motion and affidavit is filed and called to the attention of the judge before he shall have made any ruling whatsoever in the case . . . And provided further, That no party or attorney shall be permitted to make more than one such application in any action or proceeding under this section and
“(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or
“(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.”