101 Wash. App. 544 | Wash. Ct. App. | 2000
A self-defense instruction that requires the jury to find that the defendant reasonably believed that the victim (rather than the victim and those whom the defendant reasonably believed were acting in concert with the victim) intended to inflict death or great personal injury precludes the jury from considering the defendant’s right to act upon reasonable appearances in a multiple assailant attack, thereby failing to make the relevant legal standard manifestly apparent to the average juror. The trial court in this case erred by giving such an instruction and the error was not harmless. Accordingly, we reverse Armón LePage Irons’s first degree manslaughter conviction and remand for a new trial.
FACTS
On November 15, 1997, around 9 p.m., Mike Jenkins, Daniel Clay, Raul Medina, Teddy Morris, and Ed Olson purchased 22-ounce bottles of malt liquor for each of them and then pulled their car into a QFC parking lot. Morris got out of the car to use a pay telephone to arrange a marijuana purchase. The others waited in the car, drinking their beers. Morris, Medina, and Olson were former members of the Northwest Crips Posse gang. Jenkins was a former member of the Black Gangster Disciples gang. Armón LePage Irons and his friend, Chris Townsend, walked through the same QFC parking lot. Irons and Townsend were both members of the Native Son Bloods gang. The Native Son Bloods and the Northwest Crips Posse were rival gangs. A week earlier, Olson had been attacked and robbed of his beer by members of the Native Son Bloods
A woman who worked at the QFC was outside the store when the confrontation occurred. She testified that she saw Irons walking toward the store when a group of people tried to surround him, saw one of the men get in Irons’s face, and saw Irons push him away and then run off. She did not see the knife and did not see any beer bottles. After Jenkins fell down, she called the police.
Jenkins bled to death in the parking lot. The police found a broken beer bottle in the parking lot. Armed with a search warrant, they later found the knife, wrapped in a towel, under a sofa in Irons’s living room.
While awaiting the arrival of the police and trying to stop Jenkins’s bleeding, Medina, Clay, Morris, and Olson decided to tell the police that Jenkins had been on his way into the store when Irons attacked him out of the blue. When the police arrived, each of them told that story. But within a few days, each gave taped statements to the police, admitting that Medina had started the altercation and that Jenkins had hit Irons before Irons stabbed him. Each also testified at trial, contradicting various of his earlier state
The State charged Irons with second degree murder. At the end of trial, the trial court instructed the jury that homicide is justifiable when committed in the lawful defense of the defendant when he “reasonably believed that the victim intended to commit a felony and inflict death or great personal injury!.]” Clerk’s Papers at 64. Irons objected to this instruction, arguing that it misstated the law under the facts of this case:
The concern that the defense has with that instruction, although it appears to be a very literal recitation of the WPIC, is [ ] [“]the victim!” language]. In this case there is undisputed testimony that there were four individuals outside of a car, at least one of which was armed with a bottle, a beer bottle.
. .. And if any one of those four individuals acting as a group of one, so to speak, were to attempt to inflict great bodily injury or commit a felony against the defendant, he is entitled to defend himself.
So I think this instruction leads to the mistake of the law . . . this instruction, in my opinion, leads the jury to believe that they are only to consider the actions of Michael Jenkins, and that is not true.
And I would insert [“]the defendant reasonably believed that the group or a member of the group intended to commit a felony and inflict great bodily injury.!”] That is the evidence in this case.
The jury convicted Irons of the lesser-included offense of first degree manslaughter. Irons appeals.
DISCUSSION
Irons contends that the trial court erred by giving the jury a justifiable homicide instruction that required the jury to find that the defendant reasonably believed that the victim intended to commit a felony and inflict death or great personal injury, and refusing to instruct the jury that a homicide is also justifiable if the defendant reasonably believed that a group or a member of the group intended to commit a felony and inflict death or great personal injury.
Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law. State v. McLoyd, 87 Wn. App. 66, 71, 939 P.2d 1255 (1997), aff'd sub nom. State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999). “Each side is entitled to have the jury instructed on its theory of the case if there is evidence to support that theory.” State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997). “Failure to give such instructions is prejudicial error.” State v. Riley, 137 Wn.2d 904, 908 n.1, 976 P.2d 624 (1999). “To be entitled to a jury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense; however, once the defendant produces some evidence, the burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt.” State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). “Evidence of self-defense is evaluated ‘from the standpoint of the reasonably prudent person, knowing all the defendant
Our Supreme Court has set forth a high threshold for clarity of jury instructions: “The standard for clarity in a jury instruction is higher than for a statute; while we have been able to resolve the ambiguous wording of [a statute] via statutory construction, a jury lacks such interpretive tools and thus requires a manifestly clear instruction.” State v. LeFaber, 128 Wn.2d 896, 902, 913 P.2d 369 (1996). And where, as here, self-defense jury instructions are at issue, the court has stated that the “instructions, read as a whole, must make the relevant legal standard ‘manifestly apparent to the average juror.’ ” Id. at 900 (citations and internal quotation marks omitted). Indeed, a “ ‘jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial.’ ” Walden, 131 Wn.2d at 473 (quoting LeFaber, 128 Wn.2d at 900).
In this case, Irons was entitled to jury instructions on self-defense because he produced some evidence demonstrating self-defense. The trial court, therefore, gave the jury the following instruction:
It is a defense to a charge of Murder in the Second Degree, Manslaughter in the First Degree, or Manslaughter in the Second Degree that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of the defendant when:
(1) the defendant reasonably believed that the victim intended to inflict death or great personal injury; and
(2) the defendant reasonably believed that there was imminent danger of such harm being accomplished; and
(3) the defendant employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the defendant, taking into consideration all the facts and circumstances as they appeared to him, at the time of the incident.
*551 The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
Clerk’s Papers (CP) at 64. This instruction is substantially the same as Washington Pattern Jury Instruction: Criminal (WPIC) 16.02. The trial court also gave the jury an instruction that is identical to WPIC 16.07, clarifying that “actual danger” is not required:
A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger.
Actual danger is not necessary for a homicide to be justifiable.
CP at 67.
Irons challenges only the WPIC 16.02 instruction. He does not dispute that this instruction was supported by substantial evidence or that it allowed the parties to argue their theories of the case. He nonetheless contends that this instruction, on its face, is ambiguous. Indeed, our Supreme Court has held that “WPIC 16.02 is not the ‘manifestly clear instruction’ that jurors require” because “the imminent danger requirement is set off by a separate number and thus lack[s] connection to the reasonable belief qualifier.” Studd, 137 Wn.2d at 546 (citation omitted). Nonetheless, our Supreme Court held that the “presumptively prejudicial” ambiguity in WPIC 16.02 was clarified by the addition of a WPIC 16.07 instruction, where the defendant — who was charged with two counts of aggravated first degree murder for killing two police officers — maintained that he killed his two victims because they were both assaulting him. State v. Hutchinson, 135 Wn.2d 863, 868-69, 885, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999). Thus, the court concluded that WPIC 16.02 and WPIC 16.07,
In this case, the trial court also gave the jury a WPIC 16.02 instruction and a WPIC 16.07 instruction. Moreover, the theory Irons presented at his trial was the same as the theory presented by the defendant in Hutchinson: his actions were reasonably necessary to defend himself, considering his belief that he was in imminent danger. But in contrast to the facts involved in Hutchinson, i.e., one defendant maintaining he was assaulted by both of his victims, the record in the present case indicates that Irons was surrounded by four men, three of whom intended to assist the fourth in confronting Irons, and that one of these men — not the victim — threatened Irons with a beer bottle. Although these instructions make the legal standard for self-defense manifestly clear where a defendant has been threatened by his or her victim or victims, Irons contends that the trial court’s instructions inadequately conveyed the law of self-defense to the jury under the facts of his case because they “did not make it manifestly clear to the jury that it could consider the fact that Irons was faced with multiple assailants.” Appellant’s Br. at 25. We agree.
We recognize that the self-defense instructions in this case properly instructed the jury to take “into consideration all the facts and circumstances as they appeared to [the defendant], at the time of and prior to the incident.” CP at 64. They also correctly informed the jury that Irons was entitled to defend himself if he believed “in good faith and on reasonable grounds that he [was] in actual danger of great bodily harm[.]” Id. at 67. But the problem arises after considering the additional language requiring that “the defendant reasonably believed that the victim intended to . . . inflict death or great personal injury; and . . . the defendant reasonably believed that there was imminent danger of such harm being accomplished [.]” Id. at 64 (emphasis added). This additional language requires the jury to consider only the actions and intentions of the victim in assessing Irons’s reasonable belief. In a case involving multiple assailants, this language can easily be read to
Although this is an issue of first impression in Washington, other states have dealt with it and reached the same conclusion that we now reach. For example, in People v. Cuevas, 740 P.2d 25, 25-26 (Colo. Ct. App. 1987), the defendant was associated with a gang called the Califas. The victims belonged to a rival gang called Los Meadows. Id. On the night of the offenses, a group of Los Meadows members went looking for Califas to fight. Id. They discovered a number of them in a cul-de-sac drinking. Id. The Los Meadows jumped out of their cars and the Califas hid behind their cars. Id. The Los Meadows armed themselves with rocks, a pool cue and a tire iron and began to advance toward the Califas. Id. The defendant then opened fire with a handgun, wounding three of the Los Meadows. Id. One of the Los Meadows fired back. The Califas fled in their car when that person stopped to reload. Id. The defendant was convicted of three counts of attempted second degree murder, three counts of crime of violence, and engaging in a riot. Id. at 25. The trial court gave a pattern jury instruction on self-defense stating that the defendant had the right to use force to defend himself from the use of unlawful physical force “by the victim.” Id. at 26 (citation omitted). The defendant appealed, arguing, inter alia, that the court should have instructed the jury to consider the degree of threat posed by multiple assailants. Id. at 27. The Colorado Court of Appeals agreed:
The totality of the circumstances, including the number of persons who reasonably appeared to have been a threat to the*554 defendant, should be considered by the jury in determining whether the defendant’s use of force was necessary and reasonable.
Id. (citing People v. Jones, 675 P.2d 9 (Colo. Ct. App. 1984)); accord People v. Auldridge, 724 P.2d 87, 88 (Colo. Ct. App. 1986) (concluding that the trial court committed reversible error by failing to instruct the jury that the defendant had the right to use force to defend himself from the use of unlawful physical force by “the victim or those whom the defendant reasonably believed were acting in concert with the victim in the use or imminent use of unlawful physical force against the defendant,” thereby precluding the jury from considering the defendant’s right to act upon reasonable appearances in a multiple-assailant attack) (citation omitted)).
In Lucas v. Commonwealth, 141 Ky. 281, 132 S.W. 416, 416-18 (1910), the defendant was convicted of manslaughter for killing William Sagaser by shooting him three times. The defendant allegedly believed that Sagaser, in concert with three other men, intended to rob him and his friend; a belief the defendant formed when Sagaser hit the defendant in the head with a slung-shot. Id. at 417-18. The defendant asked the trial court to instruct the jury that he had the right to shoot and kill Sagaser in self-defense if the defendant had reasonable grounds for believing, at the time, that he or his friend were in danger of loss of life or great bodily harm at the hands of Sagaser, or of his companions, or any or all of them acting in concert with Sagaser. Id. at 418. Instead, the trial court instructed the jury to consider only the defendant’s reasonable belief that he or his friend were in danger of loss of life or great bodily harm at the hands of Sagaser. Id. Because there was evidence from which a rational juror could conclude that Sagaser and his companions were acting in concert, the appellate court reversed and remanded for a new trial. Id. at 418-19. See also Small v. Commonwealth, 257 S.W.2d 906, 907-08 (Ky. 1953) (facts fully justified instructions defining the right of the accused to defend himself against
Similarly, in McCuin v. State, 505 S.W.2d 831 (Tex. Crim. App. 1974), the defendant’s murder conviction was reversed and he was granted a new trial because the trial court’s self-defense instruction confined the defense to an attack by the deceased, not by multiple assailants. The defendant testified that he and his brothers, the McCuins, went to a park where they were surrounded by four Lacey brothers. Id. at 831. Both sides were armed. Id. A melee ensued, at the end of which one Lacey and one McCuin lay dead. Id. The court ruled that where there is evidence, from the accused’s standpoint, that the accused was in danger of an unlawful attack by more than one assailant, the charge of the court is too restrictive if it confines the right of self-defense to the acts of the deceased. Id. at 832; see also Lerma v. State, 807 S.W.2d 599, 601 (Tex. App. 1991) (concluding that a defendant is entitled to a charge of the right of self-defense against multiple assailants if there is evidence, viewed from the defendant’s standpoint, that he was in danger of an unlawful attack at the hands of more than one assailant).
The State argues in the instant matter that none of the above out-of-state authority is persuasive because (1) in each of those cases the appellate courts found evidence that the defendant had been assaulted both by the decedent and
We disagree that the out-of-state cases are significantly distinguishable from the present case, either on the basis of the kind of evidence of multiple assailants or on the basis of the relevant statutory schemes. The point of these cases is not that more than one of multiple assailants physically assaulted the defendant — in some cases that was so; in others, not. Rather, the question is whether the jury, in assessing the objective reasonableness of the defendant’s conduct, ought to be allowed to consider whether the defendant used reasonable force in all the circumstances— including the fact that he or she was faced with multiple assailants or potential assailants who reasonably appeared to him to have been acting in concert with the victim, or whether, as Irons’s jury was instructed, the jury must assess the objective reasonableness of the defendant’s conduct based only on the harm the slayer reasonably believed the victim intended — as if the victim had been acting alone. Moreover, RCW 9A. 16.020(3) provides that the use of force
Although dealing with a different charge to the jury relating to self-defense, our Supreme Court’s opinion in State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997), is instructive. There, the defendant became involved in an altercation with three teenaged boys. During the altercation, the defendant produced a knife. None of the teenagers was armed. The defendant, who claimed self-defense, was convicted of two counts of second degree assault. The trial court properly instructed the jury that one has the right to
The Walden court found this definition to be a misstatement of the law in that it conflicted with the definition of self-defense contained in other instructions by injecting an impermissible objective standard into the requirement that the jury consider the defendant’s subjective impressions of all the facts and circumstances, i.e., whether the defendant reasonably believed the battery at issue would result in great personal injury. “ Tt is well within the realm of common experience that “an ordinary striking with the hands or fists” might inflict [great personal injury], depending upon the size, strength, age, and numerous other factors of the individuals involved.’ ” Id. at 477 (quoting with approval State v. Painter, 27 Wn. App. 708, 713, 620 P.2d 1001 (1980)). Given the facts in Walden — one person standing against three — we observe that it is equally within the realm of common experience that three people striking with their fists are more likely to inflict great personal injury than only one such person, so that the amount of force that is necessary to prevent the infliction of great personal injury may vary with the number of persons the defendant reasonably believes are about to commence striking him with their fists.
In the instant matter, Irons was confronted first by Medina who was brandishing a 22-ounce beer bottle and using gestures and speech that, among local gangs, amounted to a challenge to fight. Within moments, he was surrounded by four individuals who joined in the fray for the purpose of helping Medina. One of the four, Clay, chased
Although the instruction allowed Irons to argue his theory of the case, it left him with the burden of overcoming the inconsistency between the instruction as written and his theory that he reasonably believed he was in imminent danger of death or great personal injury from multiple assailants — not just Jenkins. “ ‘The defense attorney is only required to argue to the jury that the facts fit the law; the attorney should not have to convince the jury what the law is.’ ” LeFaber, 128 Wn.2d at 903 (quoting State v. Acosta, 101 Wn.2d 612, 622, 683 P.2d 1069 (1984)).
Where jury instructions are inconsistent, the reviewing court must determine whether the jury was misled as to its function and responsibilities under the law. Where the inconsistency is the result of a misstatement of the law, the misstatement must be presumed to have misled the jury in a manner prejudicial to the defendant unless the error can be declared harmless beyond a reasonable doubt. Walden, 131 Wn.2d at 478 (citing State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977), and State v. Caldwell, 94 Wn.2d 614, 618, 618 P.2d 508 (1980)).
Here, we cannot find the error harmless beyond a reasonable doubt. That Irons was in fact confronted by multiple assailants who were affiliated with each other and with at least one rival gang is undisputed. That he was challenged
Reversed and remanded for a new trial.
Webster and Appelwick, JJ., concur.
Reconsideration denied August 30, 2000.
This ruling makes it unnecessary that we address the remaining contentions raised on appeal by appellant’s appointed counsel and by the appellant in his pro se supplemental brief.
By contrast, in Dickey v. State, 22 S.W.3d 490 (Tex. Crim. App. 1999), the Texas Court of Criminal Appeals concluded that although it was error for the triad court to fail to instruct the jury on the defendant’s right of self-defense against multiple assailants, the error was harmless because the evidence that the deceased and another were acting in concert was ambiguous at best. Moreover, according to the defendant’s testimony, the deceased committed an act that by itself justified the use of deadly force under the instruction given when he pulled a gun. Id. at 492. The act of pulling a gun was essential in proving that the deceased was acting in concert with another. By rejecting self-defense, the jury must have disbelieved that the deceased pulled a gun. Id. at 493. (Keller, J., concurring). Therefore, the jury would not have believed that the deceased was acting in concert with another by pulling the gun, even if a multiple assailant instruction had been given. Id.
The Colorado statute provides: “Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or receiving great bodily injury!.]” Colo. Rev. Stat. § 18-1-704(2). The Kentucky statute provides: “The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.” Ky. Rev. Stat. Ann. § 503.050. Texas Penal Code Ann. §§ 9.31 and 9.32 govern general self-defense and the use of deadly force.