Opinion
No. 36175-2-II.
August 12, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00561-9, Barbara D. Johnson, J., entered March 21, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Bridgewater, J.
A jury found Floyd Rocky Jennings guilty of one count of attempted second degree murder. Jennings appeals, asserting that (1) there was insufficient evidence to support his conviction and (2) his counsel was ineffective when he failed to propose a self-defense jury instruction and failed to object to improper opinion testimony regarding his guilt when witnesses referred to the man he stabbed as a "victim." Because the evidence was sufficient to support the jury's verdict and Jennings's trial counsel's performance was not deficient, we affirm.
FACTS
On the afternoon of March 17, 2006, Gretchen Alfrey asked Jennings to accompany her while she looked for Charles Grigsby so she could return Grigsby's cell phone. Alfrey had met Grigsby, an out-of-state carpenter, a few days earlier and, after using his cell phone to make a phone call, she inadvertently put Grigsby's phone in her purse. The two met and Grigsby paid Alfrey $50 for returning his phone. The group decided to have some drinks to celebrate Saint Patrick's Day. Grigsby drove them to The Heights Tavern in Vancouver, Washington.
According to the bartender and manager, Tamara Strutz, the group consumed at least two pitchers of beer and at first appeared to be friendly towards each other. When the bartender refused Alfrey's request to turn up the music volume, Alfrey began to get "foul-mouthed" with her. 1 Report of Proceedings (RP) at 40. Alfrey argued with Jennings and, when the argument escalated, Strutz asked them to leave. Alfrey testified that Jennings became very upset and angry with her for "creat[ing] a scene"; Jennings told her not to leave with Grigsby and demanded that Alfrey give him the money Grigsby had given her for returning the phone. 1 RP at 66. Alfrey left the tavern and Jennings followed her. At trial, Alfrey testified that she was not "technically" Jennings's girl friend but that she had known him for three years and had lived with him and his mother. 1 RP at 50. According to Detective Jon Thompson, Jennings considered Alfrey his girl friend.
Alfrey testified that she got into the passenger side of Grigsby's unlocked truck and that Jennings had punched her in the head and slapped her while trying to force her out of the truck. Alfrey managed to close and lock the truck door, which angered Jennings. He beat on the window and pulled off the truck's side mirror while yelling at Alfrey to get out.
Grigsby left the tavern and saw Jennings grabbing at Alfrey's purse while "slapping her around and roughing her up." 1 RP at 97-98. Grigsby also saw Alfrey fighting off Jennings. Grigsby walked towards the truck and asked, "What's going on here?" 1 RP at 99. In response, Grigsby testified that Jennings became very angry, cursed at Grigsby, and "flipped a knife on me." 1 RP at 100. Fearing that Jennings was about to stab him, Grigsby hit Jennings on the forehead while backing up. Grigsby testified that he cannot remember the entire fight and does not remember Jennings stabbing him.
Strutz testified that she left the bar to find out what was going on and saw Jennings "calmly" walking away from the tavern. 1 RP at 44. She also saw Grigsby walk towards the tavern with "blood pouring out" of him. 1 RP at 44. Paramedics took Grigsby to the hospital for treatment. Grigsby's treating physician, Dr. Louis Moreau, testified at trial that two of the six stab wounds Grigsby suffered, "if not treated, could have caused death" because they were abdominal wounds (near his rib cage) and had perforated his colon. 3 RP at 234.
Several Vancouver police officers and detectives were dispatched to the scene. Officer Kendrick Suvada saw a woman and a man fitting the description of the potential suspects, later identified as Alfrey and Jennings, running away from the tavern. When Alfrey saw Suvada, she turned around and ran back behind some buildings. Suvada stopped Jennings and ordered him to lie on the ground. Jennings immediately began yelling that the "[g]irl didn't do anything" and that he was the one "that did it." 2 RP at 151.
Police searched Jennings incident to his arrest and found a three and a quarter inch knife in his jacket pocket. The officers read Jennings his Miranda warnings. Investigating officers noticed that Jennings had blood on his hands and repeatedly asked him whether he wanted medical attention. In response, Jennings told the officers that the blood was "probably from the other guy." 2 RP at 160. Jennings told the officers that he may look like a tough guy but that he really is not and that is why he carries a knife. Following a second Miranda warning at the police station, Jennings told Detective Thompson that he had gotten into a fight with another man over Jennings's girl friend and stated that "I stabbed the guy after he punched me in the mouth." 3 RP at 252.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Jennings with one count of attempted second degree murder with a deadly weapon enhancement (count 1) and first degree assault (count 2). Mid-trial, and outside the presence of the jury, Jennings's trial counsel informed the trial court that he was not planning on proceeding with the initial self-defense claim and withdrew the proposed self-defense jury instructions he had submitted. Jennings did not testify and the defense rested without calling any witnesses. Neither party objected to the trial court's jury instructions. During closing arguments, Jennings argued that the State had failed to provide sufficient evidence to prove intent and that the evidence suggested that the stabbing "happened after Mr. Jennings left the scene. . . . Someone else did this. It wasn't Mr. Jennings." 3 RP at 313-14.
The jury found Jennings guilty of attempted second degree murder and returned a special verdict finding that Jennings was armed with a deadly weapon. The trial court dismissed the first degree assault charge (count 2) and sentenced Jennings to 228 months in confinement. Jennings timely appeals.
ANALYSIS
Sufficiency of the Evidence
Jennings contends that his attempted second degree murder conviction is not supported by sufficient evidence of an intent to kill. We disagree.
A person commits second degree murder when, with intent to cause the death of another person but without premeditation, he causes the death of such person or of a third person. RCW 9A.32.050(1)(a). A person is guilty of attempted second degree murder if, with intent to commit a specific crime (second degree murder), he takes a substantial step toward the commission of that crime. RCW 9A.28.020.
Evidence is sufficient if, after reviewing it in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of evidence insufficiency admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. Salinas, 119 Wn.2d at 201. We defer to the trier of fact, the jury, to resolve conflicting testimony, make credibility determinations, and evaluate the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The crime of attempted murder requires proof that the defendant had a specific intent to cause the death of another person (and that the killing was done without lawful excuse or justification). State v. Dunbar, 117 Wn.2d 587, 590, 817 P.2d 1360 (1991). An actor's intent may be inferred from conduct. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). Here, Jennings argues that the evidence does not lead to a reasonable inference that he "ever formed the intent to kill" because there was no evidence that there had been any prior contact between Jennings and Grigsby, "much less any type of acrimonious exchange"; there was no animosity between the two men; and that, at the time of the stabbing, Jennings "had his attention and ire focused towards . . . Alfrey, not towards [Grigsby]." Br. of Appellant at 15.
But it is not necessary for the State to show that Jennings verbalized or acted out his intent beforehand. State v. Elmi, 138 Wn. App. 306, 313, 156 P.3d 281 (2007) (citing State v. Gallo, 20 Wn. App. 717, 729, 582 P.2d 558, review denied, 91 Wn.2d 1008 (1978)), review granted in part, ___ Wn.2d ___, 180 P.3d 784 (2008). Intent may be inferred from all the circumstances surrounding the event. Elmi, 138 Wn. App. at 313 (citing Gallo, 20 Wn. App. at 729). See State v. Hoffman, 116 Wn.2d 51, 84-85, 804 P.2d 577 (1991) ("Proof that a defendant fired a weapon at a victim is, of course, sufficient to justify a finding of intent to kill.").
Here, the arresting officers testified that, when they arrested Jennings, he had blood on his hands. The officers asked Jennings if he wanted any medical attention; Jennings responded that he did not need medical attention because the blood on his hands was probably from the other guy. When Officer Suvada searched Jennings incident to his arrest, he found an open knife in his jacket pocket. Officer Thompson testified that, after he read Jennings his Miranda warnings, Jennings told him, "I stabbed the guy after he punched me in the mouth." 3 RP at 252.
Alfrey testified that Grigsby was trying to calm Jennings down but it did not work because Jennings was angry and agitated. Jennings had also shouted at Grigsby to stay out of it. Alfrey testified that she could not see the entire fight and did not see a knife. But she testified that at one point, she saw Jennings on top of Grigsby and repeatedly punching Grigsby at least 10 times. Alfrey left the scene while the fight was ongoing when she heard police sirens.
Grigsby testified that he saw Jennings slapping Alfrey and pulling her purse while she was trying to fight him off. Grigsby approached with his hands in the air in a "surrender" gesture and asked "what's going on here?" 1 RP at 100. Jennings was already angry when Grigsby approached. In response to Grigsby's question, Jennings turned around and said, "This is going on, [motherfucker]," and pulled a knife. 1 RP at 100. Grigsby further testified that "all of the sudden, I just seen the knife come right toward my belly." RP at 101. Grigsby feared that Jennings would stab him, so he hit Jennings on the forehead "trying to get away" from the knife. 1 RP at 102. Grigsby suffered at least six stab wounds and required extensive surgery.
Viewed in the light most favorable to the State, the heated words Jennings directed at Grigsby, Jennings's actions of pulling a knife in response to Grigsby's "what's going on here?" question, and the number of times Jennings stabbed Grigsby strongly support an inference that Jennings intended to kill Grigsby. Varga, 151 Wn.2d at 201; Salinas, 119 Wn.2d at 201. Ineffective Assistance of Counsel Jennings argues that his trial counsel was ineffective for (1) failing to propose a self-defense jury instruction and (2) failing to object when witnesses referred to Grigsby as the "victim."
The state and federal constitutions guarantee a defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To prevail on his ineffective assistance of counsel claim, Jennings must show (1) that his trial counsel's performance was deficient and (2) that this deficiency prejudiced him. Strickland, 466 U.S. at 687. Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). To demonstrate prejudice, Jennings must show that his trial counsel's performance was so inadequate that, but for counsel's mistakes, there is a reasonable probability that the trial result would have been different, thereby undermining our confidence in the outcome. Strickland, 466 U.S. at 694; In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). If Jennings fails to establish either the deficient performance or prejudice, we need not address the other element because an ineffective assistance of counsel claim requires proof of both elements. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). We initially presume that defense counsel's decisions regarding the manner in which to conduct a trial fall within the wide range of reasonable professional assistance. Pirtle, 136 Wn.2d at 487 (citing Strickland, 466 U.S. at 689). Because a presumption runs in favor of effective representation, Jennings must show that his trial counsel lacked legitimate strategic or tactical reasons for the challenged conduct. McFarland, 127 Wn.2d at 336.
A. Self-Defense Jury Instruction
A defendant bears the initial burden of producing some evidence that his actions occurred in circumstances amounting to self-defense. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (citing State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993)). A finding of actual danger is not necessary to establish self-defense, but the defendant needs to demonstrate that he reasonably believed that he was in danger of imminent harm. State v. LeFaber, 128 Wn.2d 896, 899, 913 P.2d 369 (1996). A defendant whose aggression provokes the contact may not assert that he acted in self-defense. When there is credible evidence that the defendant provoked the use of force, a first aggressor instruction is appropriate. Riley, 137 Wn.2d at 909-10. An aggressor instruction is appropriate even if there is conflicting evidence as to whether the defendant's conduct provoked the attack and thereby necessitated the use of force in self-defense. Riley, 137 Wn.2d at 910 (citing State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 1039 (1992)).
The jury must assess the self-defense evidence from the perspective of a reasonably prudent person standing in the defendant's shoes, knowing all the defendant knows and seeing all the defendant sees. Janes, 121 Wn.2d at 238 (quoting State v. Wanrow, 88 Wn.2d 221, 235-36, 559 P.2d 548 (1977)). But a defendant who initially provokes the victim to act with force cannot claim self-defense unless he first withdraws from the confrontation. Riley, 137 Wn.2d at 909 (citing State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973)); State v. Theroff, 25 Wn. App. 590, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). But see State v. Bernardy, 25 Wn. App. 146, 605 P.2d 791 (1980) (a person may act in defense of another if he reasonably believes that that party is innocent and in danger and is justified in using force necessary to protect that person).
At trial, Jennings did not argue that he had acted in self-defense; rather, he argued that someone else had stabbed Grigsby that night. The only evidence that Jennings was acting in self-defense when he stabbed Grigsby was his statements to police that he stabbed Grigsby after Grigsby punched him in the mouth. Jennings never expressed to police, or anyone else, that he felt threatened or that he feared significant bodily harm or death during the fight with Grigsby. Jennings's trial counsel initially proposed the self-defense instruction but later withdrew it when Jennings exercised his right to not testify at trial. Thus, there was no basis on which to argue that Jennings stabbing Grigsby was based on any belief, reasonable or otherwise, that he was in imminent danger of great personal injury. RCW 9A.16.050(1); see State v. Negrin, 37 Wn. App. 516, 521, 681 P.2d 1287, review denied, 102 Wn.2d 1002 (1984).
During closing arguments, Jennings's trial counsel argued, "Someone else did this. . . . It wasn't Mr. Jennings." 3 RP at 314.
Moreover, because the record clearly showed that Jennings was the initial aggressor, a claim of self-defense would have failed. There was no evidence that Jennings had reasonably Page 10 believed that he was in danger of imminent harm before he pulled out the knife and threatened Grigsby. There was no evidence that Grigsby acted in an aggressive or threatening manner when he approached Jennings in an attempt to defend Alfrey and end Jennings's assault on her. Jennings cannot create the need to act in self-defense by angrily displaying a knife in response to Grigsby asking "what's going on?", and protest Grigsby's use of reasonable force (hitting Jennings twice on the forehead) in an attempt to prevent Jennings from stabbing Grigsby. Jennings also had several opportunities to back away from the fight (Grigsby testified that "I know I was backing up the whole time, . . . backing up right around the car . . . getting away from [Jennings]." 1 RP at 103. The evidence must support giving a self-defense jury instruction. Tennant v. Roys, 44 Wn. App. 305, 309, 722 P.2d 848 (1986); State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998) (quoting Janes, 121 Wn.2d 237). See State v. Brigham, 52 Wn. App. 208, 209, 758 P.2d 559 (Although displaying a knife may have been a reasonable response to the physical altercation initiated by the victim, the character of their encounter changed when the defendant stabbed the victim to death and, at that point, his use of force became excessive as a matter of law. Thus, defendant was not entitled to a self defense instruction), review denied, 111 Wn.2d 1026 (1988).
In this case, Jennings's trial counsel withdrew the self-defense instruction because there was no evidence to support it. This conduct did not fall below an objective standard of reasonableness because, given all the evidence, Jennings was not entitled to a self-defense instruction. Jennings has not demonstrated that his counsel was ineffective for withdrawing the self-defense instruction when Jennings chose not to testify and there was no evidence to support it .
B. Opinion Testimony
Jennings next asserts that his counsel was ineffective for failing to object when four witnesses referred to Grigsby as "victim" in their testimony. Jennings argues that this constituted impermissible comment on his guilt and the opinion testimony invaded the province of the jury. Generally, admission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a "manifest" constitutional error. "`Manifest error' requires a nearly explicit statement by the witness that the witness believed the accusing victim." State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007). Moreover, the use of the term "victim," while not ideal, does not necessarily imply that a defendant is the victimizer and, thus, does not constitute an opinion that he was guilty of the charged crime. Using the term "victim" is not the same as expressing an opinion that the defendant was guilty of a crime; the term "victim applies to anyone who suffers either as a result of ruthless design or incidentally or accidentally." Webster's Third New International Dictionary 2550 (2002).
As discussed above, the evidence here did not support a self-defense claim and Jennings did not contend at trial that he had acted in self-defense. To the contrary, Jennings's counsel argued that someone else stabbed Grigsby. And the evidence clearly shows that someone stabbed Grigsby at least six times and that he was a victim of repeated assaults. Jennings cannot prove with reasonable probability that his counsel's performance was deficient or that the outcome would have differed had his attorney objected to the limited use of the word "victim." Therefore, his claim that counsel was ineffective for failing to object fails.
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.
BRIDGEWATER, J., VAN DEREN, C.J., Concur.