Opinion
No. 53059-3-I
Filed: January 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-06656-5. Judgment or order under review. Date filed: 08/22/2003. Judge signing: Hon. Donald D Haley.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122
Dana M Lind, Nielsen 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
Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362,
Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Guy Boucher appeals his conviction for two counts of assaulting a police officer in violation of RCW 9A.36.031(1)(g). The trial court used WPIC 17.02.01, 11 Washington Pattern Jury Instructions Criminal, (2d ed. Supp. 1998) to instruct the jury on self-defense. Boucher challenges the trial court's decision not to give his proposed alternative self-defense instruction that told the jury Boucher was entitled to use force not only to resist `arrest' but to resist `seizure.' Boucher claims the self-defense instruction, WPIC 17.02.01, misstates the law and was prejudicial. We conclude that WPIC 17.02.01 is a correct statement of the law that did not mislead the jury and the instruction allowed Boucher to argue his theory of self-defense. We affirm.
`A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree . . . [a]ssaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault.' RCW 9A.36.031(1)(g).
FACTS
On July 6, 2002, someone at the Boucher residence called 911 and hung up. The dispatcher called back and a woman, who sounded out of breath, answered. The dispatcher asked the woman if she needed assistance and whether someone was preventing her from talking. The woman said she would call back.
A tape recording of the 911 call was played at trial. Tomoko Boucher admitted she called 911 and it was her voice on the tape recording.
In response to the 911 call, Officer Pitts went to the Boucher residence. He knocked at the door three times before Guy Boucher answered the door holding an ice pack. Officer Pitts explained he was investigating a 911 call placed from the residence. Boucher said his wife, Tomoko, had called 911 and she did not want to talk to him. Officer Pitts explained he had to talk to Tomoko to verify she was safe.
Officer Pitts testified that when he insisted on speaking with Tomoko, Boucher became agitated and tried to shut the door. Officer Pitts prevented Boucher from shutting the door by placing his foot in the doorway. Boucher began yelling profanities at Officer Pitts in an aggressive manner and insisted that Officer Pitts needed a warrant. Officer Pitts told Boucher to move away from the door and go into the living room so that he could check on Tomoko. Still yelling profanities, Boucher turned and walked toward the back bedroom. Officer Pitts followed closely behind Boucher. Two or three times, Officer Pitts tried unsuccessfully to get Boucher to go into the living room and wait. Finally, Officer Pitts told him `that if [Boucher] didn't go out into the livingroom [sic] and do what [he] was instructing, that [he] could arrest him for obstructing an officer and if need be, could take him to jail for that.' When Officer Pitts told Boucher he was going to call for assistance, Boucher calmed down and moved to the entrance of the living room.
According to Officer Pitts, Boucher yelled, `you are fucking out of control' and `[t]his is my fucking apartment and you are not coming in without a warrant.' Report of Proceedings (RP) (07/15/03) at 23.
Officer Pitts described Boucher's profanities as `get out of my fucking house you fucking bastard, you have no right to be here' and `I don't give a fuck, you are an out of control prick.' RP (07/15/03) at 28.
RP (07/15/03) at 28.
Officer Pitts knocked on the bedroom door and asked Tomoko to speak to him. After he knocked a second time, Tomoko opened the bedroom door. Officer Pitts could see she had been crying and the right side of her face was red. Tomoko was wearing only a bra and jeans. Officer Pitts asked her to put on a shirt and talk with him outside on the balcony.
When they were outside, Tomoko explained to Officer Pitts that she and Boucher had a heated argument about their pending divorce. She said that Boucher was very upset during the argument and he slammed his fist into a table. She then ran to `her bedroom, locked the door and called 911.'
RP (07/15/03) at 36. Tomoko later testified that she did not lock the door.
While Officer Pitts was talking with Tomoko, Officer Maccarrone arrived. Officer Maccarrone said Boucher was standing in the doorway holding an ice pack on his right hand and trembling a little. Officer Maccarrone asked Boucher not to go back inside the apartment. Boucher ignored Officer Maccarrone and went back inside the apartment. Officer Maccarrone followed him. When Boucher moved towards a chair, Officer Maccarrone told him not to sit down. As Boucher began to sit down in the chair, Officer Maccarrone grabbed Boucher's arm. Boucher pulled his arm away and began screaming and hitting Officer Maccarrone. When Officer Maccarrone attempted to get Boucher on the floor to handcuff him, Boucher punched Officer Maccarrone several times in the chest. Officer Maccarrone then kicked Boucher in the stomach in an attempt to get him to the floor. Officer Pitts was outside talking to Tomoko when he saw Boucher punch Officer Maccarrone in the chest. As Officer Pitts rushed into the apartment, Boucher kicked Officer Maccarrone in the groin and in the chest. Officer Pitts attempted to pull Boucher away from Officer Maccarrone. Boucher put Officer Pitts in a headlock and threw him into the wall, causing a six-inch hole in the wall. Officer Pitts told Boucher to stop resisting. While he and Boucher were struggling, Officer Maccarrone used his flashlight to strike Boucher in the knee. When the blow to Boucher's knee had no apparent effect, Officer Maccarrone struck Boucher in the head with the flashlight. The blow to the head slowed Boucher, and he released Officer Pitts from the headlock. The officers were then able to handcuff Boucher. As the officers escorted Boucher to the patrol car he was combative and continued to scream and yell. Officer Pitts and Officer Maccarrone both testified that Boucher was unusually skilled in fighting.
According to Officer Maccarrone, he attempted to prevent Boucher from sitting down in the chair because a weapon may have been concealed in the furniture.
Boucher testified at trial to a different version of events. Boucher said that when Officer Pitts arrived and said he needed to speak with Tomoko, Boucher told Officer Pitts he would get her. When Boucher tried to shut the door, Officer Pitts put his foot in the door and said he needed to speak directly with Tomoko. Boucher then let Officer Pitts in and followed him down the hallway to the bedroom door. According to Boucher, Officer Pitts attempted to force his way into the bedroom and Boucher told Officer Pitts to leave. Boucher admits that at this point he was angry and exchanged words with Officer Pitts. But, when Officer Pitts told him he had called for back up to arrest him, Boucher said he went into the living room because he felt he had no other choice.
Boucher testified that Officer Maccarrone did not tell him not to sit down. According to Boucher, after he sat down, Officer Maccarrone grabbed his arm two times, leaving fingernail marks and a bruise. Boucher asked Officer Maccarrone what was going on and held out his injured hand. Boucher said Officer Maccarrone then kicked him in the stomach and Officer Pitts came in and put him in a bear hug, pinning his arms to his sides. Boucher said Officer Pitts grabbed Boucher's hair while Officer Maccarrone pulled out his flashlight. Boucher struggled and extended his leg to keep Officer Maccarrone from getting close to him, but did not actually kick anyone. Officer Maccarrone then hit Boucher in the leg and the head with his flashlight, and Boucher blacked out. When Boucher came to, one of the officers was sitting on him and the other had his knee in Boucher's back, holding Boucher down on the floor. Boucher testified that he had no intent to hurt Officer Pitts or Officer Maccarrone and he acted in self-defense. Boucher also explained that he has a black belt in karate, but the only karate move he used was when he extended his leg to keep Officer Maccarrone from getting close to him.
The jury found Boucher guilty of two counts of assault of a law enforcement officer in the third degree in violation of RCW 9A.36.031(1)(g). Boucher appeals.
Boucher received a standard range sentence.
ANALYSIS
Boucher contends the trial court's self-defense jury instruction was erroneous because it impermissibly limited the jury's consideration of the evidence related to Boucher's claim of self-defense to when he was handcuffed, and the jury could not consider what happened before he was handcuffed.
The trial court used WPIC 17.02.01 to instruct the jury on self-defense: It is a defense to a charge of Assault in the third degree that force used was lawful as defined in this instruction.
WPIC 17.02.01 provides:
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. The person [using] [or] [offering to use] the force may employ such force and means as a reasonably prudent person would use under the same or similar circumstances.
A person may use force to resist an arrest by someone known by the person to be a police officer only if the person being arrested is in actual and imminent danger of serious injury. The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar circumstances.
The State 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 has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
Clerk's Papers (CP) at 59.
Boucher requested the court give a jury instruction that told the jury it was lawful to not only resist arrest but to resist `seizure.' The use of, attempt to use or offer to use force by a person to resist an arrest or seizure by a police officer is lawful if the person being arrested or seized is in actual and imminent danger of serious injury.
CP at 77.
Alleged errors of law in jury instructions are reviewed de novo. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law. Hue, 127 Wn.2d at 92; Svendgard v. State, 122 Wn. App. 670, 675, 95 P.3d 364 (2004).
Boucher argues the law allows lawful force not only to `resist arrest,' but also to `resist seizure,' and seizure should have been included in the self-defense instruction to the jury. A person is under arrest when his freedom of movement is restrained and can only use force to resist an arrest if the person being arrested is in actual danger of serious injury. State v. Holeman, 103 Wn.2d 426, 428, 430, 693 P.2d 89 (1985); State v. Westlund, 13 Wn. App. 460, 465, 536 P.2d 20 (1975); see also State v. Valentine, 132 Wn.2d 1, 21, 935 P.2d 1294 (1997). WPIC 17.02.01 is a correct statement of the law based on Holeman and Westlund and the jury was properly instructed on self-defense.
WPIC 17.02.01 instructs the jury that Boucher was entitled to use force to `resist an arrest' if while `being arrested' he was in actual and imminent danger of serious injury. As drafted, WPIC 17.02.01 allowed the jury to consider the events and circumstances before and during the arrest. Because WPIC 17.02.01 tells the jury that lawfully `resisting an arrest' when a person is `being arrested' includes conduct that occurs prior to arrest, there is no need to include `seizure.' See e.g., Valentine, 132 Wn.2d at 4-5, 21 (finding the defendant had no right to self-defense while being placed under arrest for failure to cooperate during a traffic stop); State v. Mierz, 127 Wn.2d 460, 476-77, 901 P.2d 286 (1995) (finding the defendant had no right to self-defense when he assaulted agents that entered upon his land because there was no actual threat of serious injury). Trial courts have considerable discretion in deciding how instructions are worded. State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988). We conclude the trial court did not abuse its discretion in rejecting Boucher's alternative instruction on self-defense and not including `seizure.'
CP at 59.
The jury instruction also did not mislead the jury and Boucher was able to argue his theory of self-defense and version of events. The self-defense jury instruction made it clear the jury had to determine the lawfulness of Boucher's use of force while he was `being arrested.' This instruction allowed the jury to examine Boucher's conduct during the period of time before Boucher was physically subdued and handcuffed. In addition Boucher relied on the instruction to present his version of what happened before Officer Maccarrone grabbed his arm until he was handcuffed in closing argument:
In fact when you['re] thinking about, was there a criminal assault or not? He never touches anybody until Officer Maccarrone grabs him.
. . . .
Officer Maccarrone grabs him and he testifies, not to an assault but to defensive measures with Officer Maccarrone and how long does that interchange take place? About ten seconds according to the testimony, before Officer Pitts comes in. Officer Pitts grabs my client, he's holding him, he claims that my client had him in a head lock. . . .
. . . .
He does the check kick maneuver to try and keep [O]fficer Maccarrone away and then he winds up getting hit with the flashlight. He goes down and he gets handcuffed. The actions that he was involved with, were defensive actions and they were done without criminal intent.
. . . .
If instructed by the Judge and Judge Haley has instructed you on lawful force and that is instruction 9 and 10.
RP (07/16/03) at 167-170.
Finally, we conclude that even if the self-defense jury instruction erroneously omitted `seizure,' the error was harmless because the omission did not affect the verdict. See State v. Thomas, 150 Wn.2d 821, 844-45, 83 P.3d 970 (2004); State v. Brown, 147 Wn.2d 330, 340-41, 58 P.3d 889 (2002) (citing Neder v. United States, 527 U.S. 1, 9, 15, 18-19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). See In re Smith, 117 Wn. App. 846, 859, 73 P.3d 386 (2003) (`In a direct appeal, such an error will be harmless only if, after thoroughly examining the record as to each defendant, the reviewing court is able to conclude beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'). Boucher was able to argue that he was in actual danger of serious injury and was entitled to use self-defense before he was arrested. And the self-defense instruction allowed the jury to consider testimony from the officers and from Boucher regarding the conduct that occurred before Boucher was handcuffed. However, the jury's decision turned on credibility and which version of events it believed, not on the omission of `seizure' from the jury instruction. We conclude based on our review of the record that even if the instruction was erroneous, it did not contribute to the jury's verdict and was harmless beyond a reasonable doubt.
CONCLUSION
We conclude the trial court's decision to reject Boucher's alternate instruction on self-defense was not an abuse of discretion. Using WPIC 17.02.01 the trial court correctly instructed the jury on self-defense. The instruction was not misleading and Boucher was able to present and argue his theory of the case. We affirm.
SCHINDLER, J., APPELWICK, J., COX, J., Concur.