Opinion
No. 55227-9-I.
June 26, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-00201-8, Ronald Kessler, J., entered October 15, 2004.
Counsel for Appellant(s), George a Antonio — Info. only (Appearing Pro Se), 1733 S Ainsworth Ave, Tacoma, WA 98405.
Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St Seattle, WA 98122.
David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
David M Seaver, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Coleman and Dwyer, JJ.
A jury rejected self-defense and convicted George Antonio of attempted murder in the first degree of Michael Dorsey, (Count I), and assault in the first degree of Security Officer Miguel Flores-Gonzalez, (Count II). Antonio contends (1) his attorney provided ineffective assistance of counsel by proposing an incorrect `act on appearances' self-defense jury instruction that included `great bodily harm' instead of `great bodily injury' and (2) the trial court erred in giving a first aggressor jury instruction for Count II because Officer Flores-Garcia was not involved in the altercation between Antonio and Dorsey.
The act on appearances jury instruction is an incorrect statement of the law. Contrary to State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997) and State v. Freeburg, 105 Wn. App. 492, 20 P.3d 984 (2001) the instruction uses the term `great bodily harm' instead of `great bodily injury.' Nonetheless, we conclude there was no prejudice. Antonio's testimony that he believed Dorsey was reaching for a gun to shoot him meets both definitions. We also conclude the evidence supports the trial court's decision to give the first aggressor instruction for Count II because Antonio's act of pointing a gun at Dorsey and shooting at him was likely to evoke a belligerent response from the security officers. We affirm.
FACTS
Around midnight on January 19, 2003, George Antonio arrived at a nightclub in the Federal Way area. While at the club, Antonio drank about ten `Beautifuls', a mixture of Grand Marnier and Courvoisier. Michael Dorsey and Issac Jacobs were also at the club that night. Dorsey was drinking beer and tequila. When Dorsey was dancing with his friend Shirley, Antonio bumped into her. Shirley and Antonio argued. After Dorsey intervened, he and Antonio exchanged punches. Security guards grabbed Dorsey and Antonio and separated them. Shortly thereafter, Antonio said Dorsey hit him again. Security officers escorted Dorsey and Antonio out of the club separately. Outside the club, Antonio talked to the security officers and Myung Seo, a club manager. Security Officer Miguel Flores-Garcia recognized Antonio as a regular customer and tried to talk to him about what happened. Antonio told Officer Flores-Garcia he was `ok, it's fine' and started walking towards the parking lot.
The parties stipulated that Antonio's blood alcohol level was .198 within two hours of the shooting.
As Antonio was walking to the parking lot, he saw Dorsey leaving the club. According to the testimony of Officer Flores-Garcia and Dorsey, Antonio said `fuck that' and started walking in Dorsey's direction. Antonio then reached into his pants, pulled out a handgun, and pointed the gun at Dorsey. Dorsey tried to run back into the club but tripped and fell. When Officer Flores-Garcia saw Antonio point his gun at Dorsey, he yelled S?[S]ecurity officer . . . Drop the gun, drop the gun." Antonio ignored Officer Flores-Garcia, and fired two shots at Dorsey as he tried to get up. After Antonio shot at Dorsey, Officer Flores-Garcia fired a shot at Antonio. Security Officer Ernest McMains also fired a shot at Antonio. Antonio continued firing at Dorsey and then started walking away quickly towards the parking lot. Officer Flores-Garcia yelled at Antonio, `?Drop the gun, drop the gun." Antonio turned and pointed his gun at Officer Flores-Garcia. Officer Flores-Garcia fired at Antonio and Antonio returned fire. After Antonio was shot in the shoulder, he dropped his gun, but then started to reach for it. Officer Flores-Garcia yelled, `?Don't, don't reach for the gun." When Antonio continued to reach for his gun, Officer Flores-Garcia shot him again.
A forensics expert concluded Antonio fired eight shots, Officer Flores-Garcia fired five shots, and Officer McMains fired one shot. Dorsey was shot in the arm, buttocks, pelvis, and intestine. Antonio was shot in his upper arm, thigh, and shin. Officer Flores-Garcia did not sustain any injuries.
The State charged Antonio with attempted murder in the first degree of Michael Dorsey, Count I; assault in the first degree of Security Officer Flores-Garcia, Count II; assault in the second degree of Myung Seo, Count III; and unlawful possession of a firearm, Count IV. At trial, Antonio claimed he acted in self-defense and used justifiable force. The jury convicted Antonio of attempted murder in first degree of Dorsey, assault in the first degree of Officer Flores-Garcia, and unlawful possession of firearm in second degree, but acquitted Antonio of assault in the second degree of Myung Seo. The court imposed a standard range sentence but concluded Counts I and II should be served concurrently. Antonio appeals his conviction for attempted murder in the first degree and assault in the first degree.
ANALYSIS
Ineffective Assistance of Counsel
Antonio contends his attorney provided ineffective assistance of counsel by proposing an incorrect self-defense `act on appearances' jury instruction that used `great bodily harm' rather than `great personal injury.' State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997); 11 Washington Pattern Jury Instructions: Criminal 2.04.01, cmt. at 28 (2d. ed. 1994) (WPIC).
A criminal defendant has a constitutional right to effective assistance of counsel. U.S. Const. amend. VI and Wash. Const. art. $b/b$, § 22. A defendant alleging ineffective assistance of counsel must show both that (1) counsel's representation was deficient, and (2) the deficiency caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984). Even if counsel's representation was deficient, the claim will fail absent a showing of prejudice. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Prejudice is established where there is a `reasonable probability that, but for counsel's errors, the result of the proceedings would have been different.' State v. West, 139 Wn.2d 37, 42, 983 P.2d 617 (1999). If the defendant makes an insufficient showing of ineffective assistance of counsel for either prong, the inquiry goes no further. Hendrickson, 129 Wn.2d at 78.
The court gave the self-defense jury instructions proposed by Antonio's attorney for attempted murder and assault in the first degree. The self-defense instruction for attempted murder correctly states the law and uses the term `great personal injury.' Instruction No. 31 provides:
The self-defense instruction for assault in the first degree provides:
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person and when the force is not more than is necessary.
It is a defense to a charge of attempted murder that the attempted murder was justifiable as defined in this instruction.
Attempted murder is justifiable when committed in the lawful defense of the defendant when:
(1) the defendant reasonably believed that the person attempted to be slain or those whom the defendant reasonably believed were acting in concert with the person attempted to be slain intended to commit a felony or to inflict death or great personal injury;
(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 and prior to the incident.
The State has the burden of proving beyond a reasonable doubt that the attempted murder 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.
(Emphasis added.)
Unlike Instruction No. 31, the act on appearances self-defense jury instruction uses `great bodily harm' instead of `great bodily injury.' Instruction No. 34 provides:
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 the use of force to be lawful.
Instruction 34 is based on WPIC 16.07. (Emphasis added.)
Jury instruction No. 32 defines `great personal injury.'
In determining whether an attempted murder or other use of deadly force in self defense was justifiable, the phrase `great personal injury' means an injury that the defendant reasonably believed, in light of all the facts and circumstances known to him at the time, would produce severe pain and suffering if it were inflicted upon either the defendant or another person.
Because `great bodily harm' is an element of the crime of assault in the first degree, Instruction No. 23 also defines `great bodily harm.' Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
The act on appearances self-defense jury instruction used in this case was incorrect. Attempted murder is justifiable when the assailant reasonably believes the person who is shot intended to inflict great personal injury. RCW 9A.16.050. Walden and State v. Freeburg, 105 Wn. App. 492, 20 P.3d 984 (2001) make clear that in justifiable homicide cases, `great personal injury' must be used in the act on appearances jury instruction instead of `great bodily harm.'
In Walden, the Washington Supreme Court addressed whether self-defense instructions that excluded all ordinary batteries from the definition of `great personal injury' were erroneous where the defendant used deadly force against an unarmed assailant. The Court held the instructions were erroneous because they prohibited the jury from considering the defendant's subjective perspective of the facts and circumstances. Walden, 131 Wn.2d at 477.
This court applied the Walden court's holding in Freeburg. In Freeburg, the trial court gave the same four standard WPIC self-defense jury instructions used in this case: justifiable homicide, act on appearances, the definition of `great bodily harm,' and the definition of `great personal injury.' And as in this case, the justifiable homicide instruction included a `great personal injury' standard while the act on appearances instruction used a `great bodily harm' standard. Citing Walden, we held the act on appearances instruction for a justifiable homicide case must use the language `great personal injury' instead of `great bodily harm.' Freeburg, 105 Wn. App. at 505. Because the Jury Instructions Committee had not yet corrected the instructions as directed by the Court in Walden, we emphasized that it is `imperative that trial courts make the correction to the standard instructions . . .' and reiterated that the `court, should follow the advice set forth in the comment to WPIC 2.04.01 and replace the phrase `great bodily harm' with the phrase `great personal injury' in the act on appearances instruction.' Id. at 507. Although the act on appearances instruction in Freeburg erroneously included `great bodily harm,' we concluded the error in that case was harmless.
Here, the State concedes the act on appearances instruction was erroneous but asserts Antonio cannot establish prejudice. Relying on Freeburg and State v. Corn, 95 Wn. App. 41, 975 P.2d 520 (1990), Antonio argues that the distinction between `great personal injury' and `great bodily harm' was especially prejudicial because he used deadly force against someone who turned out to be unarmed. Antonio contends the jury was less likely to conclude there was `great bodily harm,' and more likely to find Dorsey only posed a threat of `great personal injury.' The court in Freeburg addressed similar argument.
In Freeburg, the defendant testified the man he killed pointed a gun at him at close range. The defendant argued using `great personal harm' instead of `great bodily injury' in the act on appearances self-defense jury instruction was prejudicial because the jury could have decided he did not objectively face `great bodily harm.' Because Freeburg's theory at trial was he faced the threat of a gunshot at close range, we concluded that `there is no likelihood whatsoever that use of the `great bodily harm' language affected the outcome here, which easily and obviously satisfies both definitions.' Id. at 505. But citing Corn, we also stated that different facts could result in a different conclusion.
In Corn, the defendant testified he did not believe the victim had a gun. The court in Corn held that using `great bodily harm' where justifiable homicide is claimed against an unarmed assailant could cause a juror to reject self-defense without considering the defendant's right to act on appearances.
We conclude the facts of this case are more like Freeburg than Corn. Antonio testified that he believed Dorsey was reaching for a gun and he would be shot at close range. Antonio said Dorsey yelled `some stuff', which he could not understand, and started coming towards him. Antonio responded, `?Man, I'm cool. I'm not even tripping with you." As Dorsey continued to come towards him, Antonio testified that he saw Dorsey move his right hand toward his midsection and at the same time Dorsey said, `?You son of a bitch, I'm going to fuck you up." Antonio said he was scared because he thought Dorsey was going for a gun so he pulled out his gun and told Dorsey, `?Back up, man, don't do nothing." Antonio testified that at this point somebody shot him and he didn't remember anything else until he was in the ambulance. As in Freeburg, if the jury believed Antonio, his testimony satisfies both definitions and there is no reasonable probability that because of the erroneous jury instruction, the outcome of the trial would have been different.
First Aggressor Instruction
Antonio also contends the trial court erred in giving the `first aggressor' jury instruction for assault in the first degree of Security Officer Flores-Garcia, Count II.
The first aggressor instruction provides: No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense use, offer, or attempt to use force upon or toward another person. Therefore, 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. This instruction applies to Count II [first degree assault of Flores-Garcia] only.
The first aggressor instruction was based on WPIC 16.04. The Court approved WPIC 16.04 in State v. Riley, 137 Wn.2d 904, 908-09, 976 P.2d 624 (1999). To give a first aggressor instruction, the evidence must support the theory that the defendant provoked the need to act in self-defense. State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990). The provoking act must be intentional but cannot be the actual assault. Id. at 100. A first aggressor jury instruction is appropriate even if `there was conflicting evidence regarding whether the defendant's conduct precipitated the fight.' State v. Davis, 119 Wn.2d 657, 665-66, 835 P.2d 1039 (1992). The reason to give a first aggressor instruction is to prevent a defendant from claiming self-defense when the defendant provokes the reaction against which it was necessary to use force.
Antonio relies on State v. Wasson, 54 Wn. App. 156, 772 P.2d 1039 (1989) to argue that because his conduct was directed at Dorsey and he did not intend to provoke a belligerent response from Security Officer Flores-Garcia, it was error to give the first aggressor instruction. Antonio contends that the court in Wasson held that the provoking act cannot be directed toward someone other than the intended victim. We disagree that the holding in Wasson is as narrow as Antonio contends.
The court in Wasson held that the provoking act must be an intentional act which a `?jury could reasonably assume would provoke a belligerent response by the victim" and the `provoking act must also be related to the eventual assault as to which self-defense is claimed.' Wasson, 54 Wn. App. at 159 (quoting State v. Arthur, 42 Wn. App. 120, 124, 708 P.2d 1230 (1985)). In Wasson, the court concluded the first aggressor instruction was not appropriate where a stranger, Reed, intervened in a fight between Wasson and his cousin. Reed struck Wasson's cousin several times then walked toward Wasson who shot Reed. The court held Wasson could not be the aggressor because the fight between Wasson and his cousin was not related to Reed's assault. Id. at 160.
The facts in this case are more like Kidd than Wasson. In Kidd, the defendant shot two people on a bus and later shot at the police officers who pursued him. Kidd was charged with two counts of attempted murder and assault for firing at a police officer. Kidd claimed self-defense and objected to giving the first aggressor instruction. On appeal, the court addressed whether it was error to give the aggressor instruction and held a reasonable juror could properly find Kidd's armed assault on the bus and flight was likely to provoke a belligerent response from the police. As stated in Kidd, `[c]itizens can scarcely be surprised that police come after them, prepared to use weapons, in such circumstances.' Kidd, 57 Wn. App. at 100.
We disagree with Antonio's argument that the discussion in Kidd about the first aggressor instruction was dicta. The court reached the issue and ruled on it. We also disagree with Antonio's attempt to factually distinguish Kidd by only focusing on the defendant's fleeing from the police officers.
Here, after the fight between Antonio and Dorsey in the club, security officers separated the two and escorted them outside. Officer Flores-Garcia tried to talk to Antonio about what happened. Antonio said he was fine and started walking towards the parking lot. Officer Flores-Garcia watched Antonio and saw him pull out a gun and point it at Dorsey. Officer Flores-Garcia then repeatedly yelled at Antonio to drop the gun. Antonio ignored Officer Flores-Garcia and shot at Dorsey. When Officer Flores-Garcia again demanded Antonio drop the gun, Antonio turned, pointed the gun at Officer Flores-Garcia and fired a shot at him. As in Kidd, a juror could reasonably assume that Antonio's act of shooting at Dorsey in the parking lot outside the club would provoke a belligerent response by the security officers who were responsible for maintaining safety and order.
We affirm.
DWYER and COLEMAN, JJ., concur.