Opinion
No. 57344-6-I.
March 19, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00755-3, Ronald L. Castleberry, J., entered November 17, 2005.
Counsel for Appellant/Cross-Respondent, Peter Mazzone, Phillips Mazzone, Everett, WA.
Counsel for Respondent/Cross-Appellant, Charles Franklin Blackman, c/o Snohomish County Pros, Everett, WA.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Grosse and Agid, JJ.
Following a jury trial, Stanley Nyberg was convicted of second-degree murder for the shooting death of Ms. Dina Camp. The shooting followed a confrontation between Camp and Nyberg concerning a disputed property boundary. Nyberg appeals from the judgment entered on the verdict, assigning error to the trial court's decisions to give a "first-aggressor" jury instruction and not to give a proposed jury instruction regarding justifiable homicide in actual resistance of a felony. Finding no error, we affirm.
FACTS
Nyberg and Camp owned cabins on adjoining lots along the Skykomish River in Index, Washington. Nyberg's cabin was his primary residence. Camp visited her cabin several times a year. Beginning in 2004, Camp's friend Jim Johnson started coming to the cabin, either by himself, with his son, or with Camp.
For several years, Camp and Nyberg had been arguing over the location of the boundary between their properties, primarily disputing a small area where their yards met at the riverbank. The dispute escalated to include verbal threats and shoving episodes and, on several occasions, the police were called upon to intervene.
On March 19, 2005, Camp and Johnson arrived at Camp's cabin. Nyberg saw them arrive. Nyberg asserts that, at that time, he was resting in his cabin, recovering from the back surgery he had undergone seven weeks earlier.
The next day, Camp enlisted Johnson's assistance in dismantling a ring of large rocks that Nyberg had arranged in the disputed area near the riverbank. From his cabin, Nyberg heard the sounds of the rocks being moved. Through his window, he saw Camp and Johnson working in the contested area. Nyberg then picked up his camera and a loaded pistol and approached Camp and Johnson. A confrontation ensued.
At Nyberg's trial, Johnson described the confrontation as follows. Nyberg ran across the lawn, and "went right down to [Camp], stepped up to her and kind of grabbed her by the jacket, arm of the jacket." Johnson told Nyberg, "Don't touch her. . . . I'll call the police," but Nyberg "kept stepping in front of [Camp] and pushing and pulling her by the jacket." Nyberg and Camp argued as Camp continued to move the rocks. Nyberg and Camp "were loud" and Camp "was frustrated and excited." Nyberg "kept stepping in front of [Camp]." Camp moved rocks, with Nyberg pulling on her jacket and standing in her way, for fifteen to thirty minutes.
Ultimately, Camp and Nyberg "slipped and stumbled. They . . . started to fall like they had slipped, and then pulled back." After Camp and Nyberg slipped, Camp ended up standing on the grass above the riverbank, and Nyberg ended up standing below on the riverbank. Camp was "standing there with her arms to her side facing [Nyberg]."
Johnson then saw Nyberg face Camp with a gun in his hand, pause, raise the gun, and shoot Camp in the midsection.
After shooting Camp, Nyberg pointed the gun at Johnson and asked, "Do you want some, too?" Johnson raised his hands and said, "I can't hurt you." Nyberg lowered his gun and told Johnson to call 911. Johnson did so.
At trial, Nyberg gave a conflicting account of the mà lée. Nyberg testified that he approached Camp and Johnson, photographed them, and asked them to stop moving the rocks. Johnson stopped moving rocks and backed up, but Camp continued to move the rocks. Nyberg approached Camp, but he denied ever touching her. He asked Camp to stop moving the rocks and attempted "to stand in front of her . . . trying to impede her movement, trying to keep her from picking up rocks and throwing them. . . ." Camp, meanwhile, was "trying to get around [Nyberg] and grab rocks," and was "still managing to get ahold of rocks and lift them and move them to the bank." For fifteen to twenty minutes, Nyberg attempted to impede Camp and she continued to move the rocks.
According to Nyberg, at some point, "Dina was reaching down to pick up a rock and [he] went down and put [his] hand on it trying to hold it down as she was trying to lift it, and . . . it frustrated her." Nyberg asserted that Camp "was screaming" and that he "was trying to argue please stop." Camp stepped forward quickly and "thrust her body" into Nyberg. Camp "came up with her arms and hit [him] in the chest with her palms, her arms, her body, and exerted force forward." Nyberg fell backward and downward, landing on rocks. He was in extreme pain from the fall. Nyberg climbed up from the rocks, and moved to within four or five feet of Camp.
Camp continued to shout at Nyberg, waving her arms, shaking, and moving her feet "back and forth a little bit." Camp then made "an extremely abrupt step forward and lowered her body and stepped toward" Nyberg. Nyberg described Camp as looking "like a linebacker coming at [him]."
Nyberg then pulled out his gun and shot Camp.
Aaron Williams, who was rafting down the river and witnessed portions of the confrontation, testified that Nyberg did not advance towards Camp, Camp advanced toward Nyberg. Camp "pushed [Nyberg] in the chest with the flats of both hands," and "[h]e flew backwards and landed in the rocks." Williams testified that "it did appear that she pushed him very hard," and that he saw Nyberg "go airborne." Williams never saw Nyberg touch Camp, and, throughout the 20 or 30 seconds that he was watching, Nyberg did nothing to provoke Camp.
Mike Horner and Todd Turnbull, friends of Williams who were rafting in separate boats, were alerted to the confrontation by Williams after he saw Camp shove Nyberg off the embankment. Both Williams and Horner stated that they saw Nyberg trying to make his way up the embankment as Camp kept screaming at him.
The rafters testified that: (1) after pushing Nyberg, Camp did not stoop to pick up a rock, (2) immediately before Nyberg pulled the trigger, he and Camp were five to ten feet apart, and (3) Nyberg raised the gun and fired. All three rafters agreed that Johnson did not advance on Nyberg, and had done nothing that appeared threatening.
Paramedics and sheriff's deputies arrived shortly after the shooting. Camp was pronounced dead at the scene. The deputies arrested Nyberg. Nyberg spoke to the deputies following the shooting, admitting that he shot Camp but claiming that he did so in self-defense.
The State charged Nyberg with one count of second degree murder while armed with a firearm and one count of second-degree assault while armed with a firearm, the second charge for allegedly pointing the gun at Johnson.
At trial, both the State and Nyberg urged the court to instruct the jury on the law concerning justifiable homicide in response to a perceived imminent danger of death or great personal injury. The trial court did so, instructing the jury that:
It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of the slayer when:
(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury;
(2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all of 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 homicide 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.
See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 16.02 (2d ed. 1994) (WPIC).
Both the State and Nyberg also urged the court to instruct the jury that a person has "no duty to retreat" from an unlawful use of force that would justify the use of force in self-defense. The trial court did so. In addition, Nyberg requested the court to instruct the jury that "[a]ctual danger is not necessary for a homicide to be justifiable," if the slayer reasonably believes that he is in actual danger of great bodily harm. The trial court gave Nyberg's proposed instruction.
Instruction No. 15. See WPlC 16.08.
Instruction No. 13. See WPlC 16.07.
With respect to the assault charge, the trial court instructed the jury on the law concerning lawful use of force in self-defense, as proposed by Nyberg.
Instruction No. 23. See WPlC 17.02.
Over Nyberg's objection, the trial court also instructed the jury on the law concerning the use of force in self-defense by one who was a "first aggressor," stating:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon kill, use, offer or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt 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.
Instruction No. 16. See WPlC 16.04.
The trial court denied Nyberg's request that the court instruct the jury on the law concerning justifiable homicide in actual resistance of a felony. Nyberg's proposed instruction stated:
It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the actual resistance of an attempt to commit a felony upon the slayer or upon or in a dwelling or other place of abode in which the slayer is present.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find 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.
This proposed instruction was, essentially, a modified version of the pattern instruction for justifiable homicide in actual resistance of a felony. Nyberg's proposed instruction omitted the following portion of the pattern instruction:
WPlC 16.03.
The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] at the time [and prior to] the incident.
WPlC 16.03 (2005 Supplement).
The trial court ruled that there was no evidence of any attempted felony upon Nyberg to support instructing the jury on this principle of law.
The jury found Nyberg guilty of second degree murder. Following his conviction, Nyberg moved for a new trial, contending that the trial court did not properly instruct the jury. The trial court denied the motion.
Nyberg was acquitted of the crime of second degree assault against Johnson.
DISCUSSION
Nyberg first asserts that the trial court erred by instructing the jury on the law concerning the unavailability of the defense of self-defense to a "first aggressor." We disagree.
Whether to give a particular jury instruction is within the trial court's discretion, and that discretion is not abused when the instructions, read as a whole, properly inform the trier of fact of the applicable law. State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968). A first-aggressor instruction is appropriate when there is credible evidence that the defendant provoked the use of force, including provoking an attack that necessitated the defendant's use of force in self-defense. State v. Riley, 137 Wn.2d 904, 909-910, 976 P.2d 624 (1999). A first-aggressor instruction is appropriately given where there is conflicting evidence as to whether the defendant's conduct precipitated the confrontation that gave rise to the need to act in self-defense. State v. Wingate, 155 Wn.2d 817, 822-23, 122 P.3d 908 (2005). The wording of the instruction given by the trial court has been approved by our Supreme Court. State v. Wingate, 155 Wn.2d at 821; State v. Riley, 137 Wn.2d at 908-09. In determining whether the evidence at trial was sufficient to support the giving of an instruction, we must view the supporting evidence in the light most favorable to the party that requested the instruction. State v. Wingate, 155 Wn.2d at 823 n. 1, citing State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
At trial, there was conflicting evidence as to whether Nyberg was the first aggressor. Johnson testified that Nyberg repeatedly pulled on Camp's jacket sleeve and repeatedly tried to physically prevent her from moving the rocks that she was trying to move, causing both to slip and stumble. On the other hand, Nyberg testified that he approached Camp, pleaded with her to stop throwing the rocks for fifteen to twenty minutes, and pressed down on a rock that Camp was trying to lift before Camp suddenly threw herself into him.
The trial court acted within its discretion, under the evidence adduced at trial, in determining that the trial record contained evidence, albeit conflicting, that Nyberg had committed an intentional act reasonably likely to provoke a belligerent response from Camp. The decision as to whether Nyberg's acts were in fact reasonably likely to provoke a belligerent response from Camp was properly entrusted to the jury.
There was no error.
Nyberg next asserts that the trial court erred by refusing to instruct the jury on the law pertaining to justifiable homicide committed in actual resistance of an attempt to commit a felony. We disagree.
A trial court's refusal to give a requested instruction, when based on the facts of the case, is a matter of discretion and will not be disturbed on review except upon a clear showing of 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, 543, 947 P.2d 700 (1997). Accord State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). If any element of such an instruction is not supported by the evidence, the defendant cannot present the theory to the jury. State v. Griffith, 91 Wn.2d 572, 575, 589 P.2d 799 (1979). A defendant is entitled to an instruction on justifiable homicide only when he has introduced evidence that the killing occurred in circumstances amounting to a justifiable homicide. State v. Brightman, 155 Wn.2d 506, 520, 122 P.3d 150 (2005).
Washington's statute concerning justifiable homicide in resistance to an attempted felony, RCW 9A.16.050, reads, in pertinent part:
Homicide is . . . justifiable when committed . . .:
(2) In the actual resistance of an attempt to commit a felony upon the slayer. . . .
As the Supreme Court noted in Brightman at 521: RCW 9A.16.050 (2) considers a homicide justifiable where the defendant acted in actual resistance against an attempt to commit a felony on the slayer. . . . Thus, RCW 9A.16.050(2) addresses situations in which a felony or attempted felony is already in progress.
The trial court refused to give Nyberg's proposed instruction. We ascertain no abuse of the trial court's discretion in its ruling on this issue.
For the trial court to properly give an instruction on justifiable homicide, based on RCW 9A.16.050(2), there must be evidence that the use of deadly force was necessary under the circumstances. Such necessity arises when the felony at issue is a crime of violence:
The class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson. . . .
State v. Brightman, 155 Wn.2d at 522 (quoting State v. Nyland, 47 Wn.2d 240, 242, 287 P.2d 345 (1955)). The evidence concerning Camp's demeanor and actions immediately before she was shot, even when viewed in the light most favorable to Nyberg, at most suggests that an assault upon Nyberg may have been imminent. Nyberg testified that Camp shouted at him, and was waving her arms, shaking, and moving her feet "back and forth a little bit." Williams and Horner, two of the rafters, stated that they saw Camp screaming at Nyberg as he climbed up the embankment. Nyberg also testified that Camp made "an extremely abrupt step forward and lowered her body and stepped toward [him]," and "looked like a linebacker coming at [him]" immediately before he pulled the trigger.
An imminent assault by Camp upon Nyberg is a scenario directly addressed by the jury instruction given concerning the use of deadly force in defense of person. Nyberg was free to argue and, in fact, did argue that he shot Camp in self-defense, based on his fear of an imminent assault.
"Homicide is justifiable when committed in the lawful defense of [the slayer] . . . when: (1) the slayer reasonably believed that the person slain intended [to commit a felony] [to inflict death or great personal injury]; [and] (2) the slayer reasonably believed that there was imminent danger of such harm being accomplished." WPlC 16.02.
On the other hand, the trial court did not abuse its discretion in determining that there was no evidence that Nyberg acted in actual resistance of the commission of a felony upon him.
Nyberg's pro se response brief and Statement of Additional Grounds for Review largely reiterate issues and analyses advanced by his appellate counsel. The arguments raised therein do not warrant appellate relief.
Affirmed.
WE CONCUR: