A. INTRODUCTION
RCW 9A.16.020(3) contains the defenses which will most often arise in misdemeanor prosecutions. It provides that:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.
RCW 9A.16.020 defines "necessary" as "no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended." It is wise to review the WPIC instructions (1) and comments on self-defense, as well as Fine and Ende's discussion of this topic in Criminal Law, Washington Practice and Procedure with Forms (2nd ed. 1998), early in your case preparation.
B. AVAILABILITY OF DEFENSE
The right to use deadly force in self-defense is founded upon the existence of necessity. The evidence must establish confrontation or conflict, not instigated or provoked by the defendant, which would induce a reasonable person, considering all the facts and circumstances known to the defendant, to believe that there was imminent danger of great bodily harm about to be inflicted.
State v. Walker, 40 Wn. App. 658, 662, 700 P.2d 1168 (1985).
A defendant cannot present a self-defense instruction to the jury without first "producing some evidence which tends to prove that the killing occurred in circumstances amounting to self-defense." State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495, 22 A.L.R.5th 921 (1993) (citing State v. Acosta, 101 Wn.2d 612, 619, 683 P.2d 1069 (1984); State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983) (plurality by Williams, J.)). One of the elements of self-defense is the person relying on the self-defense claim must have had a reasonable apprehension of great bodily harm. Janes, 121 Wn.2d at 237 (citing RCW 9A.16.050).[ (2)]
In determining whether a defendant has produced sufficient evidence to show reasonable apprehension of harm, the trial court must apply a mixed subjective and objective analysis. The subjective aspect of the inquiry requires the trial court to place itself in the defendant's shoes and view the defendant's acts in light of all the facts and circumstances known to the defendant. Janes, 121 Wn.2d at 238. The objective aspect requires the court to determine what a reasonable person in the defendant's situation would have done. Id. The imminent threat of great bodily harm does not actually have to be present, so long as a reasonable person in the defendant's situation could have believed that such threat was present. See State v. LeFaber, 128 Wn.2d 896, 900-01, 913 P.2d 369 (1996).
The importance of the objective portion of the inquiry cannot be underestimated. Absent the reference point of a reasonably prudent person, a defendant's subjective beliefs would always justify the homicide. Janes, 121 Wn.2d at. "Applying a purely subjective standard in all cases would give free rein to the short-tempered, the pugnacious, and the foolhardy who see threats of harm where the rest of us would not...." Janes, 121 Wn.2d at 240 (quoting Susan Estrich, Defending Women, 88 Mich. L.Rev. 1430, 1435 (1990)); see also State v. Hill, 76 Wn.2d 557, 566, 458 P.2d 171 (1969) (If defendant were the sole judge as to the existence of the peril of great bodily harm confronting him and the amount of force necessary to protect himself against it, then "there would be no limit to the amount of force which a person could use in defending himself against such alleged peril."). The objective part of the standard "keeps self-defense firmly rooted in the narrow concept of necessity." Janes, 121 Wn.2d at 240.
With both subjective and objective aspects taken into account, the trial judge must determine whether the defendant produced any evidence to support his claimed good faith belief that deadly force was necessary and that this belief, viewed objectively, was reasonable. State v. Bell, 60 Wn. App. 561, 567, 805 P.2d 815 (1991). If the trial court finds no reasonable person in the defendant's shoes could have perceived a threat of great bodily harm, then the court does not have to instruct the jury on self-defense. Bell, 60 Wn. App. at 567-68, 805 P.2d 815; see also State v. Griffith, 91 Wn.2d 572, 575, 589 P.2d 799 (1979) (If any one of the elements of self-defense is not supported by the evidence, the self-defense theory is not available to a defendant, and the defendant cannot present the theory to a jury); State v. Walker, 40 Wn. App. 658, 665, 700 P.2d 1168 (1985) ("That the defendant is a victim of a battering relationship is not alone sufficient evidence to submit the issue of self-defense to a jury. It is the perceived imminence of danger, based on the appearance of some threatening behavior or communication, which supplies the justification to use deadly force under a claim of self-defense.").
State v. Walker, 136 Wn.2d 767, 772-73, 966 P.2d 883 (1998).
C. BURDEN OF PROOF
The prosecutor bears the burden of disproving, beyond a reasonable doubt, that the defendant acted in self-defense. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). The absence of self-defense, however, is not an element that must be included in the charging document or in the "to convict" jury instruction. See generally, State v. Hoffman, 116 Wn.2d 51, 109, 804 P.2d 577 (1991); State v. Meggyesy, 90 Wn. App. 693, 705, 958 P.2d 319, review denied, 136 Wn.2d 1028 (1998).
D. KEEPING THE DEFENSE AWAY FROM THE JURY
On occasion, the defendant may claim self-defense when the case law indicates that the defense is not available and the jury should not receive a self-defense instruction. While filing a motion in limine to exclude the defense may be risky, the following issues may serve as a basis to prevent the defendant from raising self-defense.
1. Fear alone not sufficient
An actual assault by the victim is not required to establish self-defense, however, a defendant's testimony as to fear is insufficient. "Some evidence of aggressive or threatening behavior, gestures, or communication by the victim" is required. State v. Walker, 40 Wn. App. 658, 663, 700 P.2d 1168 (1985). The court in Walker notes that a victim's threats to kill or a victim's movements to produce a gun will be sufficient to obtain a self-defense instruction.
Similarly, in State v. LeFaber, 128 Wn.2d 896, 899 913 P.2d 369 (1996), the court stated that:
actual imminent harm is unnecessary...Rather the jury should put itself in the shoes of the defendant to determine reasonableness for all the surrounding facts and circumstances as they appeared to the defendant.
See also, State v. Wanrow, 88 Wn.2d 221, 235, 559 P.2d 548 (1977); State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495, 22 A.L.R.5th 921 (1993). This means that the defendant's knowledge of the victim's reputation for aggressive acts should be taken into consideration by the court and jury when determining whether a reasonable person in defendant's situation would have perceived a threat justifying self-defense. Wanrow, 88 Wn.2d at 238 (plurality opinion).
A court's factual finding that no evidence supports a defendant's claimed belief of imminent danger of great bodily injury is reviewable only for abuse of discretion. State v. Walker, 128 Wn.2d 767, 777, 966 P.2d 883 (1998). In Walker, the Supreme Court sustained the denial of a self-defense instruction was properly refused where the defendant stabbed the victim five times in the course of a fight where the victim was unarmed, the defendant received no injury other than a possible, unsubstantiated cut by the side of his mouth, and the only prior altercations between the victim and the defendant were verbal. Walker, 128 Wn.2d at 778.
2. Excessive Force
Trying to remove a claim of self-defense from the jury on this ground is extremely risky. Although the Court of Appeals, in State v. Brigham, 52 Wn. App. 208, 210, 758 P.2d 559, review denied, 111 Wn.2d 1026 (1988), found that the defendant, who used a knife to repeatedly stab his victim in the back, was not entitled to a self-defense instruction, a number of cases stand for the proposition that even deadly force may be appropriate against an unarmed victim. See State v. Walker, 128 Wn.2d 767, 776, 966 P.2d 883 (1998).
3. Defendant Provokes Assault
[I]n 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 action. State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973). Where there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense, an aggressor instruction is appropriate. State v. Hughes,106 Wn.2d 176, 191-92, 721 P.2d 902 (1986); State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990). If there is credible evidence that the defendant made the first move by drawing a weapon, the evidence supports the giving of an aggressor instruction. State v. Thompson, 47 Wn. App. 1, 7, 733 P.2d 584 (1987). An aggressor instruction is appropriate if there is conflicting evidence as to whether the defendant's conduct precipitated a fight. State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 1039 (1992).
State v. Riley,___ Wn.2d ___, 976 P.2d 624, 627-28 (1999). An aggressor instruction is not appropriate, however, where the defendant used words alone. Riley, 976 P.2d at 628-29.
A handful of cases have upheld a trial court's decision to remove the issue of self-defense from the jury on the grounds that the defendant was the first aggressor. In State v. Currie, 74 Wn.2d 197, 443 P.2d 808 (1968), the Supreme Court held that a self-defense instruction was properly refused where the defendant shot the unarmed victim while the victim sat in his car with the windows rolled up. The Court held that the defendant, who approached the victim's car for the alleged purpose of speaking with his ex-wife, was the first aggressor. See also State v. Davis, 64 Wn. App. 511, 519 (1992), rev'd on other grounds, 121 Wn.2d 1, 846 P.2d 527 (1993) (3) (defendant who provoked altercation by going to wife's location with a gun and breaking windows could not claim self-defense).
4. A Claim of Accident May Preclude Self-Defense
Many opinions contain language suggesting that self-defense and accident are inconsistent and mutually exclusive. See, e.g., State v. Gogolin, 45 Wn. App. 640, 727 P.2d 683 (1986) (defendant who claimed that victim's injuries were accidental not entitled to self-defense instruction); State v. Alferez, 37 Wn. App. 508, 681 P.2d 859 (1984) (self-defense instruction not appropriate, in part, because defendant claimed shooting was accidental); State v. Safford, 24 Wn. App. 783, 791, 604 P.2d 980 (1979) (defendant who claimed stabbing was accidental not entitled to self-defense instruction). A number of cases, however, suggest that a defendant may assert both defenses under certain circumstances. See, e.g., State v. Callahan, 87 Wn. App. 925, 933-34, 943 P.2d 676 (defendant who intentionally displayed a gun, but claimed that it fired accidentally, was entitled to a self-defense instruction); State v. Fondren, 41 Wn. App. 17, 21, 701 P.2d 810 (1985) (self-defense instruction appropriate, although defendant denied intentionally pulling trigger); State v. Adams, 31 Wn. App. 393, 395, 641 P.2d 1207 (1982) (self-defense instruction appropriate, although defendant denied intentionally firing gun at victim). Care must be taken to reconcile the facts of your case with the cases in which the court held that both self-defense and accident could be presented to the jury.
E. DEFENDING AGAINST A CLAIM OF SELF DEFENSE
All of the issues discussed in the prior section as potential grounds for excluding a claim of self-defense, will provide fertile grounds for arguing why a jury should reject a claim of self-defense.
In addition to the technical defenses, certain factual issues will provide you with rebuttal to the defendant's claim. Frequently, a comparison of the physical heights and weights of the defendant and victim will provide you with the argument that based upon defendant's size alone, it was unnecessary for him to hit her with the amount of force used. For this reason, you should always ask the victim and the defendant about their height and weight.
The credibility of a defendant's claim can also be attacked by pointing out inconsistencies in other parts of his story. For example, a defendant states that the victim attacked him like a mad woman. However, (1) the police do not observe any broken furniture; (2) defendant fled the residence leaving his children with this alleged mad woman; and (3) the victim, not the defendant, called 911.
In formulating your defense, however, you must be aware of the following special evidentiary and instructional issues:
1. No Duty to Retreat
A defendant is entitled to "no duty to retreat" instruction when evidence shows that defendant was assaulted in place where he or she had a right to be and the jury could conclude that flight was a reasonable alternative to force. State v. Williams, 81 Wn. App. 738, 742-44, 916 P.2d 445 (1996). See also, WPIC 16.08. The trial court's failure to submit a "no duty to retreat" instruction may be grounds for reversing a conviction. See, e.g., State v. Wooten, 87 Wn. App. 821, 945 P.2d 1144 (1997), review denied, 134 Wn.2d 1021 (1998).
2. Parent/Child Situation
A parent's subjective belief as to the necessity of punishment does not justify the use of unreasonable force. See State v. Singleton, 41 Wn. App. 721, 705 P.2d 825 (1985). A trial court properly rejects a jury instruction which provides that the jury should consider reasonableness of his administration of discipline in light of defendant's own experience with punishment as a child. Id.
3. Battered Woman/Battered Child Syndrome
A defendant, who claims that he or she was battered by the victim, is entitled to have expert testimony regarding battered woman or battered child syndrome. See, e.g. State v. Janes, 121 Wn.2d 220, 850 P.2d 495, 22 A.L.R.5th 921 (1993); State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (984). If the defendant, however, is not making a claim of self-defense, then the syndrome is not relevant or admissible. See, e.g., State v. Hanson, 58 Wn. App. 504, 793 P.2d 1001, review denied, 115 Wn.2d 1033, 803 P.2d 325 (1990); see also State v. Kelly, 102 Wn.2d 188, 685 P.2d 564 (1984).
4. Retaliation or Revenge
The right of self-defense does not permit action done in retaliation or revenge. State v. Janes, 121 Wn.2d 220, 240, 850 P.2d 495, 22 A.L.R.5th 921 (1993). The Washington Supreme Court has approved of the following non-WPIC jury instruction:
Justifiable homicide committed in the defense of the slayer, or "self-defense," is an act of necessity. The right of self-defense does not permit action done in retaliation or revenge.
State v. Studd, 137 Wn.2d 533, 550, 1049 P.2d 1049 (1999).
5. Victim's Reputation or Victim's Prior Bad Acts
Generally, evidence of a person's character is inadmissible to prove conformity therewith on a particular occasion. ER 404(a). An exception to this rule, however, provides that "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused is admissible. ER 404(a)(2). The admissibility of the victim's character pursuant to ER 404(a)(2) is confined almost entirely to cases in which the defense is self-defense. See, e.g., State v. Stafford, 24 Wn. App. 783, 604 P.2d 980 (1979), review denied, 93 Wn.2d 1026 (1980).
When the defendant presents evidence of self-defense, two issues are introduced into the case. First, the question of whether the victim was the first aggressor comes into play. Second, the question of the reasonableness of the defendant's apprehension of danger. The admissibility of the victim's reputation and/or the victim's prior specific bad acts depends upon which issue the evidence is being offered to establish.
Acceptable methods of proof are defined by ER 405 and, in general, are limited to evidence of reputation. See ER 405(a). Specific instances of conduct is only admissible "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim or defense." ER 405(b). In self-defense cases, a victim's character trait for violence is not an essential element of a defendant's claim of self-defense. Alexander, 52 Wn. App. at 901.
Evidence of a victim's specific acts such as fights, quarrels, and insulting words may be admissible despite ER 405(b) on the issue of reasonable apprehension of danger on the part of the defendant. This exception only applies if the defendant knew of the specific acts. See generally, Bell, 60 Wn. App. 561, 564 n.1, 805 P.2d 815, review denied, 116 Wn.2d 1030 (1991), quoting 5 K. Tegland, Wash. Prac., Evidence Law and Practice § 111, at 380 (3d. ed. 1989); State v. Negrin, 37 Wn. App. 516, 681 P.2d 1287, review denied, 102 Wn.2d 1002 (1984); State v. Cloud, 7 Wn. App. 211, 217-19, 498 P.2d 907, review denied, 81 Wn.2d 1005 (1972).
Despite the limitations contained in ER 405(b), courts will occasionally admit evidence of specific acts committed by the victim to prove who was the first aggressor if the specific acts satisfy the test established in ER 404(b). See, e.g., United States v. Talamante, 981 F.2d 1153, 1156-57, 37 Fed. R. Evid. Serv. 840 (10th Cir. 1992), cert. denied, 113 S. Ct. 1876 (1993); Negrin, 37 Wn. App. at 525; 5 K. Tegland, supra, §114, at 394-95.
Courts use this theory of admission sparingly because the probative value of the evidence is generally outweighed by its prejudicial effect. Courts are concerned that the admission of prior misconduct committed by a victim might cause a jury to "'find a homicide justifiable for the wrong reason--i.e., that the deceased was unworthy of life'". Williams v. Lord, 996 F.2d 1481, 1483 (2nd Cir. 1993), cert. denied, 114 S. Ct. 1073 (1994), quoting People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741, 349 N.E.2d 841 (1976). Accord, Bell, 60 Wn. App. at 565 (affirming the trial court's suppression of the victim's homosexuality on the grounds that the jury might misuse this evidence and reach its verdict on an improper basis). Courts also use the ER 404(b) exception to ER 405 sparingly in order to avoid collateral mini-trials in which the defense would characterize a prior incident of misconduct one way and the government would have found witnesses who would have disputed the claims of defense witnesses. Talamante, 981 F.2d at 1156 n.5; United States v. Waloke, 962 F.2d 824, 830 (8th Cir. 1992).
Washington courts have rejected defendants' attempts to admit evidence of a victim's prior bad acts, of which the defendant did not have knowledge, to show who was the first aggressor if the bad acts were remote in time and speculative in nature. See, e.g., State v. Upton, 16 Wn. App. 195, 556 P.2d 239 (1976), review denied, 88 Wn.2d 1007 (1977); State v. Walker, 13 Wn. App. 545, 549-50, 536 P.2d 657, review denied, 86 Wn.2d 1005 (1975). An additional impediment to the admissibility of "bad act" evidence under the ER 404(b) exception to ER 405 is that the bad act must be proven by a preponderance of the evidence through non-hearsay, first person testimony. Cloud, 7 Wn. App. at 219; State v. Tharp, 96 Wn.2d 591, 637 P.2d 961 (1981); 5 K. Tegland, supra, § 121 at 439-41.
F. PAYMENT OF DEFENSE COSTS
Losing an assault trial is never pleasant, but when the defendant obtains a jury finding that he acted in self-defense the case is far from over. Fortunately, the Attorney General's Office actually handles the minutiae of RCW 9A.16.110 compensation requests. If a self-defense verdict is a possibility or an actuality you need to notify Scott Blonien at (360) 586-1445.
The following information may assist you in identifying what information to provide to the AG's Office:
6. A case that is dismissed prior to a jury or judge verdict of acquittal will not trigger a judicial reimbursement remedy. See Rismon v. State, 75 Wn. App. 289, 877 P.2d 697 (1994) (mistrial followed by dismissal); State v. Joswick, 71 Wn. App. 311, 858 P.2d 280 (1993) (dismissal of charge prior to trial).
7. If the jury is discharged prior to considering the self-defense issue, the jury cannot be recalled and the reimbursement claim cannot be handled judicially. See State v. Park, 88 Wn. App. 910, 946 P.2d 1231 (1997); State v. Sims, 92 Wn. App. 125, 960 P.2d 483 (1998).
8. A judicial judgment awarding reimbursement pursuant to RCW 9A.16.110 cannot include statutory interest. See State v. Thiessen, 88 Wn. App. 827, 946 P.2d 1207 (1997).
9. Municipal courts cannot enter awards against the state in self-defense cases because the State of Washington is not a party to the municipal court action. See City of Seattle v. Fontanilla, 128 Wn.2d 492, 909 P.2d 1294 (1996).
10. Jury's self-defense decision must be preceded by new jury instructions placing burden on defendant to prove that he acted in self-defense by a preponderance of the evidence under an objective, rather than a subjective, standard. See State v. Watson, 55 Wn. App. 320, 777 P.2d 46 (1989).
11. The scope of reimbursement, by statute, depends upon whether the defendant was engaged in criminal conduct at the time of the assault. Reimbursement is also limited to costs actually incurred by the defendant so the defendant may not receive attorney's fees if represented by a public defender and may not receive money for loss of opportunity to look for employment unless evidence of that loss is accompanied by evidence showing that the defendant would have received earnings but for being prosecuted. See State v. Anderson, 72 Wn. App. 253, 863 P.2d 1370 (1993), review denied 124 Wn.2d 1010 (1994)..
12. A defendant is entitled under statute to reasonable fees and costs for first trial, that ended in a hung jury, after second jury acquitted him and found, by a preponderance of the evidence, that he acted in self-defense. State v. Jones, 92 Wn. App. 555, 964 P.2d 398 (1998)
1. The WPIC instructions are not always accurate. See, e.g., State v. Studd, 137 Wn.2d 533, 546-48, 1049 P.2d 1049 (1999). Please remember to check case law prior to instructing the jury. A defendant in an assault case need only establish that he or she had a reasonable apprehension of imminent bodily injury. See WPIC 35.50. The Supreme Court reversed the Court of Appeals on the lesser included instruction issue. The Supreme Court's decision was subsequently overruled in State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).