Opinion
No. 50663-3-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-1-01730-1. Judgment or order under review. Date filed: 05/20/2002. Judge signing: Hon. George Bowden.
Counsel for Appellant(s), Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Kenneth Jensen appeals his conviction of second degree felony murder, arguing that the Supreme Court's holding in In re PRP of Andress requires us to reverse his conviction. We recognize that we must do so. But because the State may file new charges against Jensen if the trial court determines that the ends of justice so require, we will not remand the case for dismissal. Instead, we vacate Jensen's conviction and remand for further proceedings consistent with this opinion. We also deny Jensen's motion to take judicial notice of the State's pleading filed in Andress.
FACTS
Fifty-eight-year-old Kenneth Jensen and forty-year-old Martin Frank lived within several houses of each other. Although they met each other in 1994, their relationship grew contentious in 1999 when the post office required Jensen to put his mailbox near Frank's home. After that time, when Jensen approached Frank's house to retrieve his mail, Frank would swear at Jensen, call him names, or make obscene gestures. Many of Frank's insults and taunts were based on his disapproval of Jensen's homosexuality. Eventually, Frank began threatening Jensen and challenging him to fight. In one instance, Jensen was inside his car retrieving his mail when Frank appeared at the car window. Frank yelled and swore at Jensen, then suggested that they fight to settle their dispute. Jensen then displayed his gun and pointed it over Frank's head. Frank continued to yell at Jensen, but ultimately retreated. Jensen reported the incident to police. Later, Jensen moved his mailbox closer to his home. But, according to Jensen, Frank continued to harass him whenever he rode his bicycle past Frank's house.
Jensen had a concealed weapons permit.
This harassment went on for approximately two years. Then, on August 8, 2001, Jensen was riding his bike past Frank's house when Frank came outside and stood in Jensen's path. Jensen testified that he attempted to go around Frank, but that Frank was able to grab Jensen's handlebars with both hands. Frank allegedly told Jensen that he was 'going to end this here and now.' Jensen unsuccessfully attempted to get loose but Frank had control of the bike. At that point, Jensen reached into his bag for his firearm. While keeping his hand and gun in the bag, Jensen shot Frank once, killing him. Jensen immediately reported the incident to police.
The State charged Jensen with second degree felony murder predicated on second degree assault, and Jensen argued self-defense. At Jensen's first trial in December 2001, the jury was unable to reach a verdict and the court declared a mistrial. After a second jury trial in April 2002, a jury convicted Jensen as charged. The court sentenced Jensen to 195 months' imprisonment, which included a 60 month firearm enhancement. Jensen appeals.
Jensen filed his appeal in June 2002, but we twice stayed the case pending Supreme Court and Court of Appeals decisions.
DISCUSSION I. In re PRP of Andress and Mandatory Joinder of Charges
First, Jensen argues that the Washington Supreme Court's decision in In re Personal Restraint Petition of Andress requires that we vacate his conviction and dismiss the charges against him. In Andress, the court held that assault cannot serve as the predicate felony for a second degree felony murder conviction. And in State v. Hanson, the court held that Andress applies to cases that were not yet final at the time Andress was decided. Jensen's case was on appeal when Andress was decided, and thus the Andress rule applies. Because Jensen's second degree felony murder conviction was based on assault, we must vacate the conviction and sentence.
147 Wn.2d 602, 56 P.3d 981 (2002).
Id. at 616.
151 Wn.2d 783, 791, 91 P.3d 888 (2004).
See id. (a case on appeal as a matter of right is not final under RAP 12.7).
But the question remains whether we must remand the case for dismissal or whether the State may file different charges. On remand, the State seeks to charge Jensen with intentional second degree murder or first degree manslaughter. Under Superior Court Criminal Rule (CrR) 4.3.1(b), related offenses must be joined for trial. That is, a defendant who has already been tried for an offense may move to dismiss a later charge for a related offense, and the court must grant that motion unless: (1) the State lacked information or evidence at the time of the first trial, or (2) granting the motion would defeat 'the ends of justice.'
CrR 4.3.1(b)(2). Offenses are related if they are based on the same conduct and fall within the same jurisdiction and venue. CrR 4.3.1(b)(1).
CrR 4.3.1(b)(3).
In State v. Ramos, we examined whether the 'ends of justice' exception in CrR 4.3.1(b) permits the State to file new charges in cases where Andress requires the court to vacate the defendant's conviction. We stated that the exception will apply only where there are extraordinary circumstances that are extraneous to the action or that go to the regularity of the proceedings. 'This suggests that wherever else the exception may operate, it may apply when truly unusual circumstances arise that are outside the State's control.' We went on to find extraordinary circumstances outside the State's control in cases such as this, where Andress mandates the vacation of a conviction obtained before Andress was issued. Therefore, Jensen's case may fall within the mandatory joinder rule's 'ends of justice' exception. But it is ultimately for the trial court to decide, in the context of a motion to dismiss, whether the ends of justice would be served by allowing the State to file intentional second degree murder or first degree manslaughter charges against Jensen.
124 Wn. App. 334, 101 P.3d 872 (2004).
Id. at 340-41 (citing State v. Dallas, 126 Wn.2d 324, 892 P.2d 1082 (1995); State v. Carter, 56 Wn. App. 217, 783 P.2d 589 (1989)).
Id. at 341.
Id. at 341-43.
Id. at 343 (whether to allow additional charges under the 'ends of justice' exception is a determination for the trial court).
Because we vacate Jensen's conviction on the grounds of Andress and Hanson, Jensen's motion to take judicial notice of the State's pleading in Andress is not relevant and thus we deny that motion.
II. Self-Defense Jury Instructions
Jensen next challenges one of the trial court's self-defense jury instructions. We reach this issue to provide guidance to the trial court, in the event it allows the State to file new charges and Jensen again argues self-defense. Self-defense jury instructions must make the legal standard manifestly apparent to the average juror. Courts must inform the jury that the self-defense standard incorporates both objective and subjective elements: the subjective portion requires the jury to stand in the defendant's shoes and consider all the facts and circumstances known to the defendant, while the objective portion requires the jury to determine what a reasonably prudent person similarly situated would do. A jury instruction that misstates self-defense law is an error of constitutional magnitude and is presumed prejudicial. We review a challenged jury instruction de novo.
State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997) (citing State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996); State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984); State v. Painter, 27 Wn. App. 708, 713, 620 P.2d 1001 (1980), review denied, 95 Wn.2d 1008 (1981)).
Id. at 474 (citing State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993)).
Id. (citing LeFaber, 128 Wn.2d at 900).
State v. Deryke, 110 Wn. App. 815, 819, 41 P.3d 1225 (2002) (citing State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)), aff'd, 149 Wn.2d 906, 73 P.3d 1000 (2003).
Jensen challenges Instruction 16, which limits when a person is justified in using deadly force:
One has the right to use force only to the extent of what appears to be the apparent imminent danger at the time. However, when there is no reasonable ground for the person attacked or apparently under attack to believe that his person is in imminent danger of death or great personal injury, and it appears to him that only an ordinary battery is all that is intended, he has no right to repel a threatened assault by the use of a deadly weapon in a deadly manner.
(Emphasis added.)
Jensen argues that this instruction was inappropriate because it placed a greater burden on him by requiring him to prove that he feared more than an ordinary battery. We disagree.
The Washington Supreme Court has expressly approved the use of the jury instruction that Jensen now challenges. The instruction 'affirms the long stated proposition that a simple assault or an ordinary battery cannot justify the taking of human life.' But Jensen argues that the instruction is faulty for the reasons discussed by the Supreme Court in State v. Walden. In Walden, the trial court gave an instruction identical to the instruction given in this case. An instruction defining 'great bodily injury' then followed:
State v. Walker, 136 Wn.2d 767, 774, 966 P.2d 883 (1998) (citing State v. Churchill, 52 Wash. 210, 224, 100 P. 309 (1909); State v. Bezemer, 169 Wash. 559, 577, 14 P.2d 460 (1932)).
131 Wn.2d 469, 932 P.2d 1237 (1997).
Courts use the terms 'great bodily harm,' 'great bodily injury,' and 'great personal injury' interchangeably. The Supreme Court advocates the use of 'great personal injury.' Id. at 475 n. 3.
'Great bodily injury as used in this instruction means injury of a graver and more serious nature than an ordinary battery with a fist or pounding with the hand; it is an injury of such nature as to produce severe pain, suffering and injury.'
Id. at 472.
The Walden court held that this latter portion of the instruction inappropriately required the jury to assess the defendant's use of force from a purely objective standard. By defining 'great bodily injury' to exclude ordinary batteries, 'a reasonable juror could read [the instruction] to prohibit consideration of the defendant's subjective impressions of all the facts and circumstances, i.e., whether the defendant reasonably believed the battery at issue would result in great personal injury.' Instead, a trial court should define 'great personal injury' as "an injury that the [defendant] reasonably believed, in light of all the facts and circumstances known at the time, would produce severe pain and suffering if it were inflicted upon either the [defendant] or another person."
Id. at 477-79.
Id. at 477.
Id. at 477-78 (alterations in original) (quoting WPIC 2.04.01).
In other words, the problem identified in Walden was that the exclusion of ordinary batteries from the definition of 'great personal injury' relieves the jury of its duty to evaluate self-defense from a subjective perspective. This problem is not present in Instruction 16. In fact, Instruction 16 clearly refers to ordinary batteries subjectively, stating that deadly force may not be used when 'it appears to [the defendant] that only an ordinary battery is all that is intended[.]' And the trial court's Instruction 17, which defines 'great personal injury,' does not contain the 'ordinary battery' language but is instead identical to that approved in Walden. There was no error in these instructions.
(Emphasis added.)
We do agree with Jensen, however, that the trial court's response to a jury inquiry could have confused the matter. While deliberating, the jury requested the definition of 'ordinary battery' and asked how it differs from assault. The trial court responded, 'An ordinary battery is any intentional and unpermitted touching, striking or hitting of another person that is harmful or offensive, regardless of whether any actual physcial [sic] injury is done to the person.' Based on this response, the jury could have concluded that any harmful or offensive contact constitutes an ordinary battery, and thus Jensen was not justified in using force at all, even if he feared great personal injury. We need not determine whether this error was harmless because we vacate the conviction on another ground.
III. Duty to Warn
Finally, Jensen argues that the trial court inappropriately permitted the State to argue during closing arguments that he had a duty to warn Frank before using force against him. Again, we address this issue only to provide guidance to the trial court in the event it allows new charges against Jensen and Jensen invokes self-defense.
Before trial, defense counsel moved in limine to prohibit the State from arguing that Jensen failed to warn the victim before firing his weapon. The court stated that while it was not inclined to instruct the jury that Jensen had a duty to warn Frank, it would not prohibit the State from mentioning the absence of a warning. During closing arguments, the State argued that Jensen's failure to warn Frank before shooting rendered Jensen's use of force unnecessary:
In self-defense cases, juries are instructed that the degree of force used in self-defense is limited to what a reasonably prudent person would find necessary under the circumstances perceived by the defendant. Walden, 131 Wn.2d at 474 (citing State v. Bailey, 22 Wn. App. 646, 650, 591 P.2d 1212 (1979); 13A Royce A. Ferguson, Jr. Seth A. Fine, Washington Practice: Criminal Law sec. 2604, at 351 (1990)).
What alternatives did he have? The instructions talk about necessary. There is [sic] all kinds of things he could have done. He could have started out by saying something like, 'I am armed, get away.' He could have warned him. He never warned him. . . .
Jensen argues that the trial court erred by permitting this argument because the law does not impose a duty to warn. We disagree, as the law clearly does impose a duty to warn in certain circumstances.
In State v. Phillips, the Washington Supreme Court held that a person has a duty to warn his or her assailant before using deadly force in self-defense unless the assailant is attempting to use a deadly weapon against that person. Although Phillips dates back to 1910, no court has questioned its holding. Jensen cites State v. Williams and State v. Wooten to support his argument, but neither case discusses Phillips or the duty to warn. Instead those cases discuss the duty to retreat, which is not at issue in this case. Jensen cites no accurate support for his argument that the law does not impose a duty to warn, and the trial court did not err by permitting the State to discuss, during closing argument, Jensen's failure to warn Frank before shooting him.
59 Wash. 252, 255, 109 P. 1047 (1910).
81 Wn. App. 738, 916 P.2d 445 (1996).
87 Wn. App. 821, 945 P.2d 1144 (1997), review denied, 134 Wn.2d 1021 (1998).
Id. at 824-26; 81 Wn. App. at 742-44.
We vacate Jensen's conviction and remand for further proceedings consistent with this opinion. We also deny Jensen's motion to take judicial notice of the State's pleading in In re PRP of Andress.
AGID, ELLINGTON and BAKER, JJ.