Lead Opinion
Petitioner Johnny Lee Riley was convicted of first degree assault while armed with a deadly weapon. He maintains that the giving of an aggressor instruction violated his First Amendment rights. We affirm the conviction.
FACTS
On June 16, 1994, Johnny Lee Riley shot 15-year-old Gustavo Jaramillo. Riley claims he shot in self-defense. At the time of the shooting, Riley was 26 years old and was considerably larger than Jaramillo.
On the day of the shooting, Jaramillo was with his friend Aaron Calloway. Jaramillo and Calloway stole cars and sold drugs together, and on that day hаd used cocaine. Jara-millo also had a stolen car and a stolen 9 mm semiautomatic pistol in his possession.
Riley, who was visiting a friend, first saw Jaramillo in an alley, and asked about purchasing the car. Jaramillo and Calloway testified that Riley also wanted to buy the pistol. According to Riley, he left to tell his father about the car, but was unable to find him. He returned a short time later with another man. At the time, Jaramillo and Calloway were lying on a nearby lawn waiting for friends.
Conflicting testimony was given as to what occurred after Riley returned. Riley testified that he had asked Jara-millo about Jaramillo’s gang, made some comments, and suggested that Jaramillo was only a “wanna-be.” Verbatim Report of Proceedings (RP) at 28 (Nov. 10, 1994). He testified he did not intend any insult and instead said it jokingly. Jaramillo, though, was insulted, and said he was going to shoot Riley. Riley then pulled a gun on Jaramillo and demanded Jaramillo’s gun so that Jaramillo would not shoot him in the back as he left. Jaramillo said he did not have a gun, that it was across the street in some bushes,
Other witnesses, including Calloway, testified that Riley approached, pulled out his gun and stood over Jaramillo while demanding to know where the 9 mm pistol was. Jara-millo’s hands were by his head, as he had propped himself up on his right elbow, and the gun was in his right pants pocket, beneath him as he lay on his side on the ground. Riley ordered Jaramillo and Calloway not to move, and when Jaramillo looked up Riley shot him in the back of the neck, took Jaramillo’s gun, and left.
Although conflicting evidence as to events was presented, there is no dispute that Riley pulled a gun on Jaramillo first.
Riley was charged with two counts of robbery, one count of assault in the first degree, and one count of unlawful possession of a firearm.
The issue at trial was whether Riley shot Jaramillo in self-defense, as he claimed. The trial court gave the jury several instructions on self-defense, and also gave an aggressor instruction. Clerk’s Papers (CP) at 112 (Jury Instruction 15). Riley objected to the aggressor instruction, claiming that there was insufficient evidence to warrant giving it.
The jury found Riley guilty of assault in the first degree. Pursuant to the parties’ agreement, the firearms charge was severed, and the trial judge found Riley guilty on that charge. The court sentenced Riley to a 300-month exceptional sentence.
Riley appealed, arguing that the giving of the aggressor instruction was error, that prosecutorial misconduct denied him a fair trial, and the trial court erred in imposing an exceptional sentence. Riley’s convictions and sentence were affirmed in a Court of Appeals’ Commissioner’s ruling on the court’s own motion on the merits. See RAP 18.14. Al
Riley then sought discretionary review by this court, arguing only that the giving of the aggressor instruction was error.
ANALYSIS
The jury was instructed:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self defense and thereupon use, offer or attempt to use force upon or toward another person. Therefоre, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
CP at 112 (Jury Instruction 15); see 11 Washington Pattern Jury Instructions: Criminal 16.04 (2d ed. 1994) (WPIC).
Riley maintains that the giving of the aggressor instruction in this case denied him the ability to argue his theory of self-defense and violated his First Amendment right to free speech. The argument in his petition for review, however, is confined to the First Amendment issue.
“Jury instructions are sufficient if they permit each party to argue his theory of the case and properly inform the jury of the applicablе law.” State v. Bowerman,
However, in general, the right of self-defense cannot be successfully invoked by an aggressor or one who provokes an altercation, unless he or she in good faith first withdraws from the combat at a time and in a manner to let the other person know that he or she is withdrawing or intends to withdraw from further aggressive aсtion. State v. Craig,
Riley maintains, however, that the instruction violated his First Amendment rights. Before addressing this issue, we note that Riley’s argument regarding his First Amendment claim fails to explain adequately his contention that he engaged in protected speech and fails to explain how the giving of the aggressor instruction ran afoul of the First Amendment. He fails to cite any authority which truly supports his argument that his First Amendment rights have been abridged. Instead, cases he relies upon involve defendants’ claims of prosеcution for speech. E.g., State v. Talley,
Although language in some older cases suggests that words alone may justify the conclusion that the speaker is
A “victim” faced with only words is not entitled to respond with force. As a leading treatise explains, the reason one generally cannot claim self-defense when one is an aggressor is because “the aggressor’s victim, defending himself against the aggressor, is using lawful, not unlawful, force; and the force defended against must be unlawful force, for self-defense.” 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 657-58 (1986) (footnotes omitted). If words alone, and in particular insulting words alone, could justify the “victim” in using force in response and preclude the speaker from self-defense, principles of self-defense would be distorted. The right of self-defense would be rendered essentially meaningless because even if the “victim” responded with deadly force, the speaker could not lawfully defend with force and would
In addition, such a rule would effectively permit violence by a “victim” of mere words, contrary to the underpinnings of the initial aggressor doctrine. As noted, the initial aggressor doctrine is based upon the principle that the aggressor cannot claim self-defense because the victim of the aggressive act is entitled to respond with lawful force. For the victim’s use of force to be lawful, the victim must reasonably believe he or she was in danger оf imminent harm. However, mere words alone do not give rise to reasonable apprehension of great bodily harm.
If applied in a case like this one, a rule that words alone preclude the speaker from claiming self-defense could lead to the conclusion that insults about gang affiliation justify a violent response.
Numerous courts have held either that one may not use force in self-defense from verbal assaults, or that an aggressor instruction is not justified where the alleged provocation is merely verbal. McDonald v. State,
Riley’s argument also fails because the pattern instruction given in this case does not provide that words alone would be sufficient provocation to preclude a claim of self-defense. WPIC 16.04 states that “[n]o person may, by any intentional act reasonably likely to provoke . . . .” (Emphasis added.) The instruction does not refer to verbal provocation. Thus, the issue whether the victim is sufficiently provoked to use force, thereby denying the defendant the right to self-defense, does not turn on the protected or unprotected nature of defendant’s speech, nor does the
The Court of Appeals is affirmed.
Guy, C.J., and Smith, Johnson, Alexander, and Sanders, JJ, concur.
Notes
Although Riley has devoted no argument in his petition for review to the issue, it is clear that he was able to argue his theory of the сase. (Riley did not argue on appeal that insufficient evidence supported the aggressor instruction, as he had claimed at trial.) Each side is entitled to have the jury instructed on its theory of the case if there is evidence to support the theory. State v. Williams,
The Court of Appeals has commented that “[flew situations come to mind where the necessity for an aggressor instruction is warranted. The theories of the case can be sufficiently argued and understood by the jury without such instruction.” State v. Arthur,
In State v. McConaghy,
The court has held that reasonable apprehension of great bodily injury may be found based upon current circumstances in light of a pattern of abuse, State v. Janes,
We are aware that some courts have said that mere words are sufficient provocation to justify an aggressor instruction. E.g., People v. Barnard,
Concurrence Opinion
(concurring) — The trial court properly instructed the jury by giving the “aggressor instruction,” WPIC 16.04, along with instructions on self-defense, because the jury had to decide between competing stories of who instigated the conflict, and because there is evidence supporting the view the defendant started the conflict. 11 Washington Pattern Jury Instructions: Criminal (2d ed. 1994). I write separately to take issue with the majority’s assertion that words alone can never support the giving of an aggressor instruction.
Riley belatedly raises a First Amendment argument in this сase suggesting an aggressor instruction may not be given where words alone are the provocation or, alternatively, may be given only in conjunction with an instruction on “fighting words” under the First Amendment. We have approved an aggressor instruction where the provocation
I agree with the majority we do not need to reach Riley’s First Amendment argument under the facts here. It is undisputed Rilеy pulled his gun first and aimed it at Jara-millo. There was evidence for the jury to rely on that Riley was not provoked into pulling his gun. Thus, this is not a case where words alone made Riley the possible aggressor. His act of drawing his weapon first, in addition to whatever alleged conversation he had with Jaramillo, constituted ample grounds for an aggressor instruction.
Nevertheless, the majority reaches beyond the necessities of this case to decide a point neither disputed nor argued by the parties: “Although language in some older cases suggests that words alone may justify the conclusion that the speaker is an aggressor, we hold that words alone do not constitute sufficient provocation.” Majority op. at 910-11 (footnote omitted). I cannot agree. The majority’s concern, and cases the majority cites for support, involve the legality of an assault against the speaker of offensive or infuriating language. Although we have never had the opportunity to hold as much, it is likely we would agree with those courts that have held the recipient of invective or insult, in the absence of a palpable physical threat, is never privileged to respond with violence. We would most likely agree with Atticus Finch’s advice to his precocious, six-year-old daughter, Scout: “[Y]ou just hold your head high and keep those fists down. No matter what anybody says to you, don’t you let 'em get your goat. Try fighting with your head for a change.” Harper Lee, To Kill a Mockingbird 84 (J.E Lippincott Co. 1960). Modern society does not condone violent responses to mere language. As we said in State v. Mierz,
But this case is not about condoning a violent response
Nevertheless, the majority betrays its fundamental misunderstanding of the role of aggressor instructions by saying, “If words alone, and in particular insulting words alone, could justify the ‘victim’ in using force in response and preclude the speaker from self-defense, principles of self-defense would be distorted.” Majority op. at 911.
The idea of a first aggressor may well be embedded in human nature as a manifestation of rudimentary justice. All can remember as children either using or hearing the excuse—“But he started it”—when being admonished by an adult for fighting. What “he started” may have been aggressive or provocative language as well as actual physical violence.
No one seriously disputes that “fighting words” exist, that there are “ ‘words . . . which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” City of Seattle v. Camby,
The majority, in fact, creates a privilege in a speaker to utter “fighting words” by asserting words alone can never result in an aggressor instruction for the speaker’s provocative words. Thus, according to the majority, no matter what one says, no matter how provocative, no matter what the circumstance of the provocation, a speaker may always assert self-defense if attacked by the person the speaker provokes into attacking, and the State is never entitled to an aggressor instruction. The majority’s rule defies human nature.
Imagine a funeral ceremony with hundreds of mourners for a widely respected African-American civil rights leader. A white supremacist appears at the church and begins shouting nonthreatening, racial epithets. Enraged mourners rush the person, who pulls out a concealed gun and kills several of them. At his trial for murder, he argues self-defense. Under the majority’s reasoning, because he used only words to provoke the attack, the white supremacist was not an aggressor and the State is not entitled to an aggressor instruction. Imagine Friday night Sabbath services at Temple DeHirsch Sinai in Seattle. A man wearing full Nazi regalia appears and begins to deface the sanctuary walls with spray painted swastikas and anti-Semitic slogans in view of the congregated worshippers. His actions do not involve any threats of physical harm. Nevertheless, several of the congregants approach him and attempt to push him out the door. He responds by pushing back, and one of the congregants falls and is injured. At his trial for assault, the neo-Nazi argues he was only defending himself. Under the majority’s reasoning, because he used only words or demonstrative speech to provoke the attack, he was not the aggressor and the State cannot obtain an aggressor instruction. Similar scenarios may be posited. In each such case,
The majority’s reasoning is contrary to human nature and contrary to law. “Fighting words” by definition may provoke violence, and while all may agree such violence is never justified, very few besides the majority believe the aggressor ought always to be allowed to escape responsibility for the consequences of his or her provocative behavior by arguing self-defense. When one provokes another to violence by words alone, by a combination of words and threatening behavior, or by threatening behavior alone, Anglo-American law has always held the provacateur may lose the benefit of arguing self-defense
Dolliver, J. Pro Tern., concurs with Talmadge, J.
The majority’s use of quotes around the wоrd victim indicates its evident skepticism that Jaramillo was the victim here. Jaramillo was the object of Riley’s oral taunts and then the recipient of the shot Riley fired that rendered Jaramillo a quadriplegic. •
Contrary to the majority’s implication, many cases from other jurisdictions support the proposition that an aggressor may lose the ability to argue self-defense by speaking provocative words. See, e.g., Vaughn v. State,
Concurrence Opinion
(concurring) — I agree that the “aggressor instruction,” WPIC 16.04, was properly given in this case. 11 Washingtоn Pattern Jury Instructions: Criminal (2d ed. 1994). Evidence in the record suggests that the instruction was appropriate based upon Riley’s aggressive conduct. Accordingly, Riley’s conviction should be affirmed. However, I write separately to note that the question of whether words alone are ever sufficient to justify the “aggressor instruction” is not before the court at this time. As Justice Tal-madge points out, the majority in this case decides a point that is neither argued nor disputed by the parties. I think that it is unwise and unnecessary to decide this issue when it is not presented by the case before us.