Opinion
No. 37304-1-II.
March 24, 2009.
Appeal from a judgment of the Superior Court for Clallam County, No. 07-1-00288-9, S. Brooke Taylor, J., entered January 25, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Armstrong, J.
UNPUBLISHED OPINION
Ryan Benjamin Blodgett appeals his jury convictions for resisting arrest and third degree assault of law enforcement Officer Michael Hill. Blodgett argues that the trial court erred in refusing to give a "lawful force" jury instruction based on Washington Pattern Jury Instruction: Criminal (WPIC) 17.02.01, after determining that the evidence was insufficient to establish that he (Blodgett) was in actual and imminent danger of serious injury. We affirm.
11 Washington Pattern Jury Instruction: Criminal 17.02.01, at 257 (3d ed. 2008).
FACTS I. Assault
At about 6:30 pm, on June 29, 2007, Sequim Police Officer Michael Hill responded to a call to assist Sequim Police Officer Nelson with a traffic stop outside the Town Tavern. Officer Hill, who was wearing his uniform, arrived in a marked patrol car. The driver of the stopped vehicle, Corey Murray, was resisting arrest by Nelson.
Officer Nelson's first name is not in the record.
As Hill and Nelson attempted to remove Murray from his vehicle and to arrest him, a crowd of people from the tavern assembled nearby. Blodgett, whom Hill knew from earlier encounters, was one of the people who emerged from the tavern. Blodgett, who was the most vocal person in the crowd, shouted obscenities at the officers and insisted that they leave Murray alone.
Blodgett's version was that (1) he stepped outside the tavern for 10 to 15 seconds when the officers were dealing with Murray; (2) he observed the officers being unnecessarily rough with Murray; (3) he (Blodgett) was not the only person yelling at the officers; and (4) at most, he made a few short comments to the officers, maybe including some swear words, before he went back inside.
After the officers secured Murray, Hill confirmed that there were two valid outstanding arrest warrants for Blodgett. Sequim Police Officer Christopher Wright, who was also wearing his uniform, arrived at the tavern soon after Hill had verified Blodgett's arrest warrants. Hill and Wright went into the tavern to arrest Blodgett on the warrants.
Hill and Wright located Blodgett at a pool table. The tavern was not dark or crowded, and there was music playing. Hill approached Blodgett from behind as Wright, who is six feet three inches tall, walked directly towards Blodgett. As Wright approached, Blodgett moved towards him, but it appeared to Wright that Blodgett was "looking beyond" him (Wright) at a woman. Wright stepped directly in front of Blodgett, held up his hand, and told Blodgett to stop, but Blodgett still did not make eye contact with Wright.
The officers approached Blodgett this way for safety reasons because: (1) Blodgett had been verbally aggressive towards them when they were dealing with Murray outside earlier; and (2) inside the tavern, Blodgett was standing near items, such as pool cues, that he could easily use as weapons.
Hill reached Blodgett, took Blodgett's arm, identified himself, and told Blodgett that he was under arrest on outstanding warrants. Wright, who was seven to eight feet from Hill, heard Hill tell Blodgett that he had warrants. And at least one other tavern patron also heard Hill tell Blodgett that there was a warrant for his (Blodgett's) arrest, that he was under arrest, and that he needed to put his hands behind his back.
Hill later testified it was possible that Blodgett did not hear him when he (Hill) identified himself and told Blodgett that he was under arrest.
Instead of complying, Blodgett immediately lowered his head and charged into Wright, who was then about five feet away. As Blodgett's shoulder hit Wright's abdomen, Wright grabbed Blodgett around the neck, head, and shoulder area. Blodgett then punched Wright twice in the lower chest or abdomen. In an attempt to stop Blodgett from hitting Wright again, Hill grabbed Blodgett by the arm and kneed him in the torso. Hill and Wright continued to struggle with Blodgett, who was pushing his way towards the tavern's front doors. The struggle ended when the three men fell over some bar stools.
After tripping over the bar stools, Hill fell onto one knee, and Blodgett caught himself on a pool table. Blodgett then stood over Hill and, looking directly at Hill, pushed both of his (Blodgett's) hands into Hill's shoulders. Hill tackled Blodgett around his torso and brought him to the ground. After hitting the floor, Blodgett turned over onto his stomach and started to crawl toward the tavern's back exit. Wright forced Blodgett to the ground. Hill grabbed one of Blodgett's arms and put a handcuff on it. Both officers ordered Blodgett to put his other hand behind his back.
At this point Blodgett told the officers that he would stop struggling and agreed to give them his free arm. But instead, Blodgett tucked his free arm between his body and the floor so that the officers could not grab it. Hill eventually extracted Blodgett's free arm and handcuffed both of Blodgett's arms behind his back. As the officers led Blodgett out of the tavern, he became more compliant, apologized for struggling with them, and told them that he had been drinking.
Both Wright and Hill noticed that Blodgett smelled of "intoxicants." The officers asked Blodgett whether he wanted a medical evaluation, but Blodgett refused the offer and told them that he was not injured. At the police station, Blodgett claimed that he had not been aware that Wright and Hill were police officers until the three of them fell to the tavern floor during the struggle.
At trial, Blodgett testified that he had not been drinking alcohol that night.
II. Procedure
The State charged Blodgett with (1) third degree assault of a law enforcement officer for assaulting Hill (count I); (2) third degree assault of a law enforcement officer for assaulting Wright (count II); and (3) resisting arrest (count IV). The case went to a jury trial.
The State also charged Blodgett with possession of 40 grams or less of marijuana (count III). Before the trial began, the trial court dismissed this count for lack of evidence.
A. Jury Trial Testimony
The officers testified to the facts set forth in the preceding section of this opinion, explaining their attempt to arrest Blodgett on an outstanding warrant, Blodgett's resistance and attempt to escape, and his assaulting them in the process. Blodgett's defense was that he had been initially unaware of with whom he was struggling, that he was acting in self defense against unknown attackers, and that he was not attempting to resist arrest or to assault the officers.
Blodgett testified that (1) he had been talking with his friend Stephanie Segle, and was not paying attention to anyone else when the officers approached him; (2) he did not hear Hill or Wright identify themselves or state that they were arresting him (Blodgett) on outstanding warrants before Hill grabbed him from behind; (3) Wright approached Blodgett from the side, not head-on; (4) when Hill grabbed him (Blodgett), he (Blodgett) struggled because he did not know who had grabbed him, was afraid of being hurt or "beat-up" by this unknown assailant, and heard Segle yelling, "What are you doing to him"; (5) when he (Blodgett) freed his arm, he turned around to see who had grabbed him and a second person "grabbed [him] around the waist and lifted [him] off the ground"; (6) he (Blodgett) did not realize who had grabbed him and punched the person a couple of times so the person would drop him; (7) he did not realize that Hill or Wright were police officers until after the person who had grabbed him and lifted him off of the ground had dropped him; (8) once he (Blodgett) realized that he was dealing with the police, he jumped up and announced, "I give, I'm done"; (9) after he jumped up, another officer, apparently Hill, grabbed him around his neck and put him in a "chokehold" or a "sleeper hold"; (10) he (Blodgett) did not remember anything after the person put him in the "sleeper hold" until he woke up to find himself on his belly with his hands handcuffed behind his back; (11) he would not have struggled with Hill or Wright if he had known that they were police officers; and (12) he had struggled with them because he did not want to be injured and unable to work the next day.
Segle testified for the State that she did not hear the officers say anything to Blodgett before the struggle started.
In rebuttal, Hill testified that at no time during the struggle did Blodgett lose consciousness or raise his hands and announce that he gave up.
B. Lawful Force Instructions
Before voir dire and during trial, Blodgett requested a "lawful force" jury instruction based on WPIC 17.02 (lawful force-defense of self, others, property). The State objected, arguing that because Blodgett was resisting arrest by police officers, (1) he was not entitled to the requested instruction; (2) at best, Blodgett was entitled only to a "lawful force" instruction modeled on WPIC 17.02.01 (lawful force-resisting detention); and (3) Blodgett was not even entitled to this latter instruction because there was no evidence that he had been in actual and imminent danger of serious injury. Blodgett objected that this latter instruction, WPIC 17.02.01, did not apply because he had not been aware that he was struggling with the police.
WPIC 17.02 at 253.
WPIC 17.02 states that the defendant may act in lawful defense of self when the defendant reasonably believes that he is about to be injured. WPIC 17.02 is often used with WPIC 17.04 at 262, which states that the defendant can act on appearances if he believes in good faith and on reasonable grounds that he is in actual danger of injury; but actual danger is not required.
WPIC 17.02.01 states:
It is a defense to a charge of that force was [used] [attempted] [offered to be used] was lawful as defined in this instruction.
A person may [use] [attempt to use] [offer to use] force [to resist] [to aid another in resisting] an arrest [by someone known by the person to be a [police] [correctional] officer] only if the person being arrested is in actual and imminent danger of serious injury from an officer's use of excessive force. The person may employ such force and means as a reasonably prudent person would use under the same or similar circumstances.
The [State] [City] [County] has the burden of proving beyond a reasonable doubt that the force [used] by the defendant was not lawful. If you find that the [State] [City] [County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty [as to this charge].
(Emphasis added). Unlike WPIC 17.02, WPIC 17.02.01 requires that (1) the defendant be in actual and imminent danger of serious injury from an officer's use of excessive force, and (2) WPIC 17.04 does not apply. WPIC 17.02.01, note on use at 257.
We note that the proposed instructions are not included in the record on appeal; therefore, we cannot tell what bracketed material the trial court would have included in the instruction had it found that the evidence supported the instruction. We further note, however, that (1) based on the report of proceedings, it appears the trial court would not have included the language requiring the defendant to have known the victims were police officers; and (2) Blodgett does not argue on appeal that the trial court erred in concluding that he need not have been aware that he was struggling with police officers for WPIC 17.02.01 to apply.
The trial court refused to give either WPIC 17.02 or WPIC 17.02.01, stating:
Just preliminarily, you will both note that after further reflection I declined to give a self-defense instruction. And the reason for that was (sic) is that the only one that I felt was even marginally appropriate was 17.02.01, which both parties would object to and in reflecting upon the evidence I think there's insufficient evidence of the Defendant being in "actual and eminent (sic) danger of serious injury" to submit that issue to the jury. The force applied by the arresting officers was reasonable, there were no weapons used or threatened, the Defendant was not injured. In fact, the only injury that arose out of this altercation was to one of the officers. So I don't think the evidence justifies submitted (sic) that instruction and I have omitted it.
Report of Proceedings (RP) (Jan. 16, 2008) at 34 (emphasis added).
In spite of having originally objected to WPIC 17.02.01, after the trial court's ruling, Blodgett argued that if the trial court refused to give WPIC 17.02, he preferred that the court give WPIC 17.02.01 rather than no "lawful force" instruction at all:
On appeal, Blodgett does not challenge the trial court's refusal to give a jury instruction based on WPIC 17.02.
The Court's previously heard my point of view on the self-defense instructions. We take exception to the Court's not giving WPIC 17.02 as the Defense proposed. I'm also going to take exception to the Court's not giving 17.02.01 even though I believe that 17.02 is the appropriate instruction in this case, 17.02.01 would be better than nothing.
RP (Jan. 16, 2008) at 35. Blodgett did not, however, state any specific grounds for his objection to the trial court's refusal to give WPIC 17.02.01.
C. Closing Arguments
In addressing the assault against Hill in closing argument, the State focused on evidence that Blodgett had stood over Hill and pushed Hill's shoulders after they had fallen over the bar stools. Blodgett's closing argument focused on the intent elements, emphasizing that he (1) had not been aware of who grabbed him, (2) had feared for his safety, and (3) had stopped struggling once he realized he was struggling with police officers.
D. Verdict
The jury found Blodgett guilty of assaulting Hill and resisting arrest; it acquitted Blodgett of assaulting Wright. Blodgett appeals his convictions.
ANALYSIS
Blodgett contends that he was entitled to a "lawful force" jury instruction based on WPIC 17.02.01. He argues that the trial court erred when it refused to give this instruction after finding that there was insufficient evidence that he was in actual and imminent danger of serious injury because there was uncontested evidence that one of the officers put him in a headlock. We disagree. Even under his version of the facts, Blodgett was not entitled to the requested instruction because Blodgett continued to assault the officers after his release from the so-called "headlock."
Each party "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, 259-60, 937 P.2d 1052 (1997) (citing State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986)). We review a trial court's refusal to give a requested instruction, based on lack of factual support, for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700 (1997). "A trial court abuses its discretion only when its decision is manifestly unreasonable or is based on untenable reasons or grounds." State v. C. J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003) (citing State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998)). We find no abuse of discretion here.
To be entitled to a jury instruction based on WPIC 17.02.01, Blodgett had to show that there was substantial evidence that he was "in actual and imminent danger of serious injury from an officer's use of excessive force." WPIC 17.02.01. The trial court concluded that (1) there was insufficient evidence that Blodgett was in actual and imminent danger of serious injury, and (2) "[t]he force applied by the arresting officers was reasonable." RP (Jan. 16, 2007) at 34. The record supports these conclusions.
Blodgett also argues that the trial court erred when it concluded that, because the officers were not using weapons, there was no evidence of an actual and imminent danger of serious injury to him. Blodgett misconstrues the trial court's statement: Although the trial court mentioned that the officers had not used weapons, the trial court's oral ruling did not suggest that the absence of weapons was the only factor it considered in concluding that the officers' use of force was reasonable under the circumstances.
Even under Blodgett's version of the facts, the record shows that Blodgett continued to struggle with the officers after one officer released him from the alleged headlock: The officers and the other State witnesses testified that, after Wright released his hold on Blodgett, Blodgett had (1) continued to struggle with the officers until all three of them fell near the pool table; (2) stood over Officer Hill while Hill remained on the ground and deliberately pushed both of his (Blodgett's) hands into Hill's shoulders; (3) continued to struggle towards an exit after Hill tackled him and brought him to the ground; and (4) refused to give the officers his hands so they could handcuff him. Blodgett did not controvert this evidence. Thus, Blodgett was not entitled to the requested instruction even under his version of the facts.
Blodgett testified only that he did not remember anything that happened after the officer placed him in the headlock.
But even if the officer's headlock had arguably created an actual and imminent risk of serious injury at the outset if the struggle, Blodgett continued to fight with the officers even after that risk no longer existed. Furthermore, none of the officers' later actions suggested that they were using excessive force or that Blodgett was in actual or imminent danger of serious injury.
We hold, therefore, the trial court did not abuse its discretion when it found that the evidence did not support a "lawful force" jury instruction based on WPIC 17.02.01. And we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and VAN DEREN, C.J., concur.