THE STATE OF WASHINGTON, Appellant, v. YVONNE L. WANROW, Respondent.
No. 43949
En Banc.
January 7, 1977.
Petition for rehearing denied September 8, 1977.
221
I would reverse the decision of the Court of Appeals and reinstate the verdict.
HUNTER, HAMILTON, and WRIGHT, JJ., concur with ROSELLINI, J.
Petition for rehearing denied September 8, 1977.
Alix Foster and David Allen, on behalf of American Civil Liberties Union, National Lawyers Guild, and Seattle-King County Public Defender, amici curiae.
UTTER, J.—Yvonne Wanrow was convicted by a jury of second-degree murder and first-degree assault. She appealed her conviction to the Court of Appeals. The Court of Appeals reversed and remanded the case with instructions to omit a tape recording made by the Spokane Police Department of an emergency telephone call, on the basis that
We order a reversal of the conviction on two grounds. The first is the ground stated by the Court of Appeals regarding the erroneous admission of the tape recording. The second ground is error committed by the trial court in improperly instructing the jury on the law of self-defense as it related to the defendant.
On the afternoon of August 11, 1972, defendant‘s (respondent‘s) two children were staying at the home of Ms. Hooper, a friend of defendant. Defendant‘s son was playing in the neighborhood and came back to Ms. Hooper‘s house and told her that a man tried to pull him off his bicycle and drag him into a house. Some months earlier, Ms. Hooper‘s 7-year-old daughter had developed a rash on her body which was diagnosed as venereal disease. Ms. Hooper had been unable to persuade her daughter to tell her who had molested her. It was not until the night of the shooting that Ms. Hоoper discovered it was William Wesler (decedent) who allegedly had violated her daughter. A few minutes after the defendant‘s son related his story to
That evening, Ms. Hooper called the defendant and asked her to spend the night with hеr in the Hooper house. At that time she related to Ms. Wanrow the facts we have previously set forth. The defendant arrived sometime after 6 p.m. with a pistol in her handbag. The two women ultimately determined that they were too afraid to stay alone and decided to ask some friends to come over for added protection. The two women then called the defendant‘s sister and brother-in-law, Angie and Chuck Michel. The four
The testimony as to what next took place is considerably less precise. It appears that Wesler, a large man who was visibly intoxicated, entered the home and when told to leave declined to do so. A good deal of shouting and confusion then arose, and a young child, asleep on the couch, awoke crying. The testimony indicates that Wesler then approached this child, stating, “My what a cute little boy,” or words to that effect, and that the child‘s mother, Ms. Michel, stepped between Wesler and the child. By this time Hooper was screaming for Wesler to get out. Ms. Wanrow, a 5-foot 4-inch woman who at the time had a broken leg and was using a crutch, testified that she then went to the front door to enlist the aid of Chuck Michel. She stated that she shouted for him and, upon turning arоund to reenter the living room, found Wesler standing directly behind her. She testified to being gravely startled by this situation and to having then shot Wesler in what amounted to a reflex action.
After Wesler was shot, Ms. Hooper called the police via a Spokane crime check emergency phone number, stating, “There‘s a guy broke in, and my girlfriend shot him.” The defendant later took the phone and engaged in a conversation with the police operator. The entire conversation was tape recorded.
At trial, over defense counsel‘s objection, the tape was admitted into evidence. After presentation of the evidence,
It is clear that, whatever its meaning in other contexts, the term “private communication” in
In
This analysis is identical to that employed by this court on previous occasions. In Monroe Calculating Mach. Co. v. Department of Labor & Indus., 11 Wn.2d 636, 643-44, 120 P.2d 466 (1941), the scope of the statutory phrase “power-driven machinery” was at issue. A proviso excluded specified machines from the meaning of the term. The court concluded “[t]he legislature must have assumed that the items listed in the proviso were otherwise included within the scope of the enumerated extrahazardous employments, making these exceptions necessary in order to prevent these particular activities from coming within the act.” Similarly, in Roza Irrigation Dist. v. State, 80 Wn.2d 633, 641, 497 P.2d 166 (1972), we stated, “[l]ogically . . . a term which is restricted by an exception must have been used with the understanding that it was broad enough to include the exception, else engrafting the exception would have been an
“Most frequently perhaps a proviso is intended to restrain the preceding provisions and to except something that would otherwise have been within the act. Where this is the purpose of a proviso, the general language of the main provisions is to be construed as covering the matters contained in the proviso had those provisions stood alone.” 25 R. C. L. 987, § 233.
“It has not been an unfrequent mode of legislation to frame an act with general language in the enacting clause, and to restrict its operation by a proviso. . . . Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be within it, or in some manner to modify it. . . . The exception of a particular thing from the operation of the general words of a statute shows that in the opinion of the law-maker the thing excepted would be within the general words had not the exception been made.” 2 Lewis’ Sutherland Statutory Construction (2d ed.), 670, § 351.
See, also, Black on Interpretation of Laws (2d ed.), 430, § 129.
Employing the same logic here, the term “private communication” in
The exceptions provided by the legislature relevant to the issue under consideration are set forth in
The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:
(1) Recording incoming telephone calls to police and fire stations for the purpose and only for the purpose of verifying the accuracy of reception of emergency calls. (2) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:
(a) the arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording,
(b) the recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof,
(c) at the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording,
(d) the recordings shall only be used for valid police or court activities.
The State contends
The cases previously discussed, which delineate the role of an exception or proviso are equally applicable here. To conclude that a statutory exception is not to be given effect because to do so renders superfluous a portion of the general language which the exception is designed to restrict, would result in a conclusion that nearly all exceptions or provisos engrafted upon general statutes are of no force and
The language “for the purpose and only for the purpose of verifying the accuracy of reception of emergency calls” contained within
Subsection (2), however, pertains to video and/or sound recordings of arrested persons and expressly authorizes their use in court, but only when the person has been informed that a recording is being made and other requirements set forth in that subsection have been met. Just as in the case of subsection (1), subsection (2) provides limitations upon the broad statement of exemption set forth in the first portion of section .090. The distinction between the two subsections strongly indicates the legislature did not intend recordings made under subsection (1) to be available for use in court. Such a use is inconsistent with the careful wording of subsection (1). This view is also bolstered by
In
The first portion of
Exceptions are, as a general rule, to be strictly construed and allowed to extend only so far as their language warrants. State v. Wright, 84 Wn.2d 645, 529 P.2d 453 (1974); State v. Christensen, 18 Wn.2d 7, 137 P.2d 512, 146 A.L.R. 1302 (1943). The exception means just what it says—it was granted only to insure accuracy.
Any argument that the sole purpose of
I do not think that they should have these things recorded when the people do not know they are being recorded. The point is that they are trying to make sure
Senate Journal, 41st Legislature (1970), at 205. Both the language and the history of
We hold that respondent‘s telephone conversation with the police operator was a “private communication” within
There can be little question but that admission of the tape recording was prejudicial to respondent. This is evident not only from a review of the record but also from the fact that the jury was deadlocked until the tape recording was replayed in the jury room. Forty-five minutes after hearing the tape again, the jury returned its verdict of guilty.
Reversal of respondent‘s conviction is also required by a second serious error committed by the trial court. Instruction No. 10, setting forth the law of self-defense, incorrectly limited the jury‘s consideration of acts and circumstances pertinent to respondent‘s perception of the alleged threat to her person. An examination of the record of the testimony and of the colloquys which took place with regard to the instructions on self-defense indicate the critical importance of these instructions to the respondent‘s theory of the case. Based upon the evidence we have already sеt out, it is
In the opening paragraph of instruction No. 10, the jury, in evaluating the gravity of the danger to the respondent, was directed to consider only those acts and circumstances occurring “at or immediately before the killing . . .”7 This is not now, and never has been, the law of self-defense in Washington. On the contrary, the justification of self-defense is to be evaluated in light of all the facts and circumstances known to the defendant, including those known substantially before the killing.
In State v. Ellis, 30 Wash. 369, 70 P. 963 (1902), this court reversed a first-degree murder conviction obtained under self-defense instructions quite similar to that in the present case. The defendant sought to show that the deceased had a reputation and habit of carrying and using deadly weapons when engaged in quarrels. The trial court instructed that threats were insufficient justification unless “‘at the time of the alleged killing the deceased was making or immediately preceding the killing had committed some overt act . . .‘” State v. Ellis, supra at 371. This court found the instruction “defective and misleading“, stating “the apparent facts should all be taken together to illustrate the motives and good faith of the defendant . . .” State v. Ellis, supra at 374.
State v. Ellis, supra at 373. Thus, circumstances predating the killing by weeks and months were deemed entirely proper, and in fact essential, to a proper disposition of the claim of self-defense.
Similarly, in State v. Churchill, 52 Wash. 210, 100 P. 309 (1909), the court upheld self-defense instructions directing the jury to consider all relevant facts and circumstances, including those preceding the homicide. The trial court‘s instructions referred to an overt act of the person killed “‘at or immediately before the killing . . . which, either by itself, or coupled with words, facts or circumstances, then or theretofore occurring,” may establish a reasonable belief of imminent danger. (Italics ours.) State v. Churchill, supra at 219. The instruction further requested the jury to “‘take into consideration all the facts and circumstances bearing on the question and surrounding defendant and existing at or prior to the time of the alleged shooting . . .‘” (Italics ours.) State v. Churchill, supra at 220. This court found these instructions “clear, apt, and comprehensive” and free from error. State v. Churchill, supra at 225.
State v. Tribett, 74 Wash. 125, 132 P. 875 (1913), is in accord. There this court approved an instruction which twice directed the jury to evaluate the reasonableness of the defendant‘s actions in defense of himself “‘in the light of all the circumstances‘.” State v. Tribett, supra at 130. Such circumstances included those existing and known long before the killing, such as the reputation of the place of the killing for lawlessness. This court stated with reference to the self-defense instruction:
All of these fаcts and circumstances should have been placed before the jury, to the end that they could put
themselves in the place of the appellant, get the point of view which he had at the time of the tragedy, and view the conduct of the [deceased] with all its pertinent sidelights as the appellant was warranted in viewing it. In no other way could the jury safely say what a reasonably prudent man similarly situated would have done.
State v. Tribett, supra at 130. The rule firmly established by these cases has never been disapproved and is still followed today. “It is clear the jury is entitled to consider all of the circumstances surrounding the incident in determining whether [the] defendant had reasonable grounds to believe grievous bodily harm was about to be inflicted.” State v. Lewis, 6 Wn. App. 38, 41, 491 P.2d 1062 (1971). By limiting the jury‘s consideration of the surrounding acts and circumstances to those occurring “at or immediately before the killing,” instruction No. 10 in the present case was an erroneous statement of the appliсable law on the critical focal point of the defendant‘s case.
The State attempts to minimize this deficiency in instruction No. 10 by invoking the rule that an instruction is “sufficient” if counsel may satisfactorily argue his or her theory of the case. This is a mistaken application of the rule and will cause widespread mischief in civil as well as criminal cases if adopted here. The test of “sufficiency” is just that, and is not a rule to be applied where the instruction is an erroneous statement of the law. This distinction is apparent from Smith v. McDaniel, 53 Wn.2d 604, 335 P.2d 582 (1959), a negligence case in which the test was first enunciated. In Smith the appellant objected to the trial court‘s refusal to give a proposed instruction on the duty of care. The trial court had given other instructions which accurately expressed the duty of care, but which did not include the specific words desired by appellant. This court rejected appellant‘s argument since he could argue his theory of negligence from instructions which were an accurate statement of the applicable law. The test of sufficiency was next applied in a very similar case, Short v. Hoge, 58 Wn.2d 50, 55, 360 P.2d 565 (1961), in which this court first
More importantly, there is a test for reviewing instructions that is clearly designed for and consistently applied to cases in which the instruction given is an erroneous statement of the law.
When the record discloses an error in an instruction given on behalf of the party in whose favor the verdict was returned, the error is presumed to have been prejudicial, and to furnish ground for reversal, unless it affirmatively appears that it was harmless. . . .
A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.
(Italics ours.) State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970) quoting State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947); accord, State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968); State v. Odom, 8 Wn. App. 180, 188, 504 P.2d 1186 (1973); State v. Rogers, 5 Wn. App. 347, 352, 486 P.2d 1125 (1971); State v. Johnson, 1 Wn. App. 553, 463 P.2d 205 (1969).
As shown by the discussion above, instruction No. 10 erred in limiting the acts and circumstances which the jury could consider in evaluating the nature of the threat of harm as perceived by respondent. Under the well-established rule, this error is presumed to have been prejudicial. Moreover, far from affirmatively showing that the error was harmless, the record demonstrates the limitation to circumstances “at or immediately before the killing” was of
Instruction No. 10 also may not be salvaged by asserting any deficiency in it to have been cured by instruction No. 12, through reliance upon the general rule that, if the instructions, when considered as a whole, properly state the law, they are sufficient. The only language in instruction No. 12 which could conceivably be viewed as curing the defect in instruction No. 10 informs the jury that they may “consider the words and actions of the deceased prior to the homicide . . . together with any and all factors which in your judgment may bear upon [self-defense].” This language does not cure the statements in instruction No. 10 which are here challenged. At best, the two instructions are inconsistent, instruction No. 10 containing a patent misstatement of the law applicable to the defendant‘s theory of the case.
Our decisions in State v. Stafford, 44 Wn.2d 353, 267 P.2d 699 (1954), State v. Refsnes, 14 Wn.2d 569, 128 P.2d 773 (1942), and State v. Smith, 196 Wash. 534, 83 P.2d 749 (1938), do not support use of the rule requiring consideration of the instructions as a whole in this case. In Stafford, the rule was invoked in a situation where one instruction was found to properly state the law, while another, under a “strained construction” might have misled the jury. In Refsnes, the court expressly held the instruction there challenged to be a correct statement of the law and that, in
When instructions are inconsistent, it is the duty of the reviewing court to determine whether “the jury was misled as to its function and responsibilities under the law” by that inconsistency. State v. Hayes, 73 Wn.2d 568, 572, 439 P.2d 978 (1968); State v. La Porte, 58 Wn.2d 816, 365 P.2d 24 (1961). See State v. Lewis, 6 Wn. App. 38, 491 P.2d 1062 (1971). It follows from the cases previously cited, that where such an inconsistency is the result of a clear misstatement of the law, the misstatement must be presumed to have misled the jury in a manner prejudicial to the defendant.
The second paragraph of instruction No. 10 contains an equally erroneous and prejudicial statement of the law. That portion of the instruction reads:
However, when there is no reasonable ground for the person attacked to believe that his person is in imminent danger of death or great bodily harm, and it appears to him that only an ordinary battery is all that is intended, and all that he has reasonable grounds to fear from his assailant, he has a right to stand his ground and repel such threatened assault, yet he has no right to repel a threatened assault with naked hands, by the use of a deadly weapon in a deadly manner, unless he believes, and has reasonable grounds to believe, that he is in imminent danger of death or great bodily harm.
(Italics ours.) In our society women suffer from a conspicuous lack of access to training in and the means of developing those skills necessary to effectively repel a male assailant without resorting to the use of deadly weapons.8 Instruction No. 12 does indicate that the “relative size and
If the appellants, at the time of the alleged assault upon them, as reasonably and ordinarily cautious and prudent men, honestly believed that they were in danger of great bodily harm, they would have the right to resort to self defense, and their conduct is to be judged by the condition appearing to them at the time, not by the condition as it might appear to the jury in the light of testimony before it.
The second paragraph of instruction No. 10 not only establishes an objective standard, but through the persistent use of the masculine gender leaves the jury with the impression the objective standard to be applied is that applicable to an altercation between two men. The impression created—that a 5-foot 4-inch woman with a cast on her leg and using a crutch must, under the law, somehow repel an assault by a 6-foot 2-inch intoxicated man without employing weapons in her defense, unless the jury finds her determination of the degree of danger to be objectively reasonable—constitutes a separate and distinct misstatement of the law and, in the context of this case, violates the respondent‘s right to equal protection of the law. The respondent was entitled to have the jury consider her actions in the light of her own perceptions of the situation, including those perceptions which were the product of оur nation‘s “long and unfortunate history of sex discrimination.” Frontiero v. Richardson, 411 U.S. 677, 684, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973). Until such time as the effects of that history are eradicated, care must be taken to assure that our self-defense instructions afford women the right to have their conduct judged in light of the individual physical handicaps which are the product of sex discrimination. To fail to do so is to deny the right of the individual woman
We conclude that the instruction here in question contains an improper statement of the law on a vital issue in the case, is inconsistent, misleading, and prejudicial when read in conjunction with other instructions pertaining to the same issue, and therefore is a proper basis for a finding of reversible error.
Finally, we agree with the conclusion of the Court of Appeals that the trial court cannot be said to have abused its discretion in this case in declining to allow defendant‘s counsel to call an expert witness to present opinion evidence on the effects of defendant‘s Indian culture upon her perception and actions. We also find the remaining contentions advanced by the respondent in support of the reversal of her conviction to be without merit.
In light of the errors in admission of evidence and instruction of the jury, the decision of the Court of Appeals is affirmed, the conviction reversed, and the case remanded for a new trial.
HUNTER, BRACHTENBACH, and HOROWITZ, JJ., concur.
WRIGHT, J. (concurring)—I concur with the result reached by the majority for only one of the reasons stated therein.
Were it not for the language of the statute,
Based upon the clear legislative intent and upon the reasoning fully set out in the opinion as to that one issue, I concur in the result.
HAMILTON, J. (dissenting)—I dissent, for I believe the tape recording was properly admitted under
The majority states that the words in
The majority states that the distinction between subsections (1) and (2) of
The majority reads the words “for the purpose and only for the purpose of verifying the accuracy of reception of emergency calls” as strictly limiting the use which may be made of the recording of the emergency phone call, i.e., it can only be used to verify information and cannot be used in a court proceeding.
My interpretation of
With the above requirements in mind, I turn to the facts in this case. After the defendant shot Mr. Wesler, she also fired a few more shots, one of which struck David Kelly in the arm. He immediately fled from the house. Immediately after the shootings, Ms. Hooper called the police, using the police crime check emergency number. After she reported the facts, Ms. Hooper was told by the police operator to stay on the line. At this point, the defendant took the phone from Ms. Hooper. The police operator did not ask to talk to the person who did the shooting. Rather, the defendant‘s taking of the telephone was a purely voluntary act done at the instigation of Ms. Hooper. This kept the status of this communication as an incoming emergency call.
Later in the conversation the defendant became anxious about remaining on the line and communicated to the police operator her desire to terminate the conversation. The operator told her to stay on the line. At this point in the conversation, the police operator had dispatched a police prowl car and ambulance to the scene. He knew that the defendant had a gun and that two people had been shot, one inside the house and one outside who possibly was coming back armed with a weapon. It was very important for the police operator to stabilize the situation at Ms. Hooper‘s house. If the police operator had allowed the defendant to leave the phone, the police officers coming to the scene would have approached the house with one armed person inside the house, obviously frightened and nervous. The approaching officers would also have had no knowledge as to whether the wounded person outside had made any attempts to reenter the house. I believe it was imperative
I also do not believe that the defendant is entitled to a new trial because of the jury instructions. Although instruction No. 10 did not direct the jury to consider all of the surrounding circumstances, see State v. Miller, 141 Wash. 104, 250 P. 645 (1926), and State v. Lewis, 6 Wn. App. 38, 491 P.2d 1062 (1971), this deficiency was corrected by the giving of instruction No. 12.11 Instructions must be considered as a whole and if, when so considered, they properly state the law, they are sufficient. See State v. Stafford, 44 Wn.2d 353, 355, 267 P.2d 699 (1954); State v. Refsnes, 14 Wn.2d 569, 572, 128 P.2d 773 (1942); State v. Smith, 196 Wash. 534, 83 P.2d 749 (1938). The trial court instructed the jury to “consider the instructions as a whole and . . . not place undue emphasis on any particular instruction or part thereof.” In my view, the instructions were not so prejudicial so as to require a new trial for the defendant.
STAFFORD, C.J., and ROSELLINI, J., concur with HAMILTON, J.
Petition for rehearing denied April 5, 1977.
force than he or she honestly believes is necessary, or has reasonable grounds to believe is necessary for self-defense. “There is no legal justification or excuse for a private person to deliberately assault another as a result of anger or to inflict vengeance.”