Opinion
No. 35132-3-II.
November 20, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03148-6, Frederick W. Fleming, J., entered July 21, 2006.
Reversed and remanded by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Armstrong, J.
Olivia Leanora Lauifi appeals her conviction and sentence for first degree assault. She argues: (1) the trial court erred when it gave an aggressor jury instruction that the evidence did not support; (2) her trial counsel was ineffective; and (3) the evidence was insufficient to show that she committed first degree assault. We hold that the trial court erred in giving the aggressor instruction. Thus, we reverse and remand for further proceedings and we do not consider the other issues Lauifi raised on appeal.
FACTS
I. Factual Background
Two groups consisting primarily of teen-agers verbally confronted each other at the 2005 Taste of Tacoma. The argument was precipitated by prior animosities, possible gang involvement, "mad-dogging," Report of Proceedings (RP) at 511, and name-calling. Arthur Sims, age 15, told 14-year-old Darius Waller-Savage that 14 year-old Quinton Cox was "weak" in an effort to diffuse a possible fight between the two boys. RP at 167. Lauifi, age 23, who was friends with Cox, overheard Sims's comment. She questioned his comment and directed him to repeat it to Cox. Sims and Cox then acted as if they were about to fight but settled down after a few minutes. Very shortly thereafter, Lauifi stabbed Sims with a two and one-half inch pocket knife blade. The group quickly dispersed and some of Sims's group chased Lauifi and her friends. The police also took chase and subsequently arrested Lauifi.
Mad-dogging is a street term for an intimidating hard stare that may cause a fight.
Emergency medical personnel took Sims to the Mary Bridge Children's Hospital and Trauma Center where Dr. Edward Walkley removed approximately a cup of blood from the pericardial sac around Sims's heart. According to Walkley, Sims "was probably within 10 or 15 minutes of death," and, if he had not been taken to the trauma center, he likely would not have survived the injury.
The State charged Lauifi with first degree assault.
II. Trial Testimony
At trial, the witnesses gave conflicting testimony concerning the assault and the events leading up to the assault. Lauifi testified that Sims threatened her before squaring off against Cox, but Sims denied this.
In general, Lauifi's testimony corroborated a taped statement she gave police after the incident and after waiving her Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Lauifi also testified that as Cox and Sims were squaring off to fight, a group of Sims's teen-aged girl friends began antagonizing her so she pulled out the knife to try and ward them off. Joseph Hanson, one of Lauifi's acquaintances, testified that, even though it was clear Cox and Sims were not going to physically fight, the group remained antagonistic and Lauifi argued with a group of girls. But another of Lauifi's acquaintances, Todd Walker, testified that four girls were yelling at Lauifi but walked away when the argument between Sims and Cox began to subside and before Lauifi stabbed Sims.
Only one of the girls who allegedly argued with Lauifi, Arrogance Wood, testified. She denied that she or any of her friends exchanged words with Lauifi before Lauifi stabbed Sims; rather, she testified that she and her friends were physically holding Sims back, trying to convince him not to fight with Cox. Waller-Savage testified that the girls and Lauifi argued only after Lauifi stabbed Sims. He also testified that Lauifi was playing with her knife before she stabbed Sims, but Wood testified that she was not waving it around at all. In addition, Sims and Wood testified that the argument between Sims and Cox was over when Lauifi stabbed Sims.
Sims testified that he did not do anything to threaten Lauifi before she stabbed him and both he and Waller-Savage testified that Sims did not move toward Lauifi before she stabbed him. But Lauifi testified that Sims walked toward her and walked into the knife's blade. But she also testified that she took a few steps toward him before stabbing him.
III. Jury Instructions
The central issue at trial was whether Lauifi intentionally stabbed Sims or whether she acted in self-defense or by accident, as she claimed. Despite the State's argument that the evidence did not warrant a self-defense instruction, the trial court gave the jury instructions on self-defense and accident, but it also gave the jury an aggressor instruction. Lauifi objected to the aggressor instruction, instruction 15, which provided:
Instruction 15 is essentially the equivalent of Washington Pattern Jury Instruction Criminal (WPIC) 16.04 that was approved in State v. Riley, 137 Wn.2d 904, 908-10, 976 P.2d 624 (1999), which provides:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense [or] [defense of another] and thereupon [kill] [use, offer, or attempt to use force upon or toward] another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that the defendant's acts and conduct provoked or commenced the fight, then self-defense [or] [defense of another] is not available as a defense.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 16.04, at 182 (2d ed. 1994) (alteration in original).
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self defense or defense of another and thereupon use force upon another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense or defense of another is not available as a defense.
Clerk's Papers (CP) at 115.
The jury found Lauifi guilty of first degree assault with a deadly weapon and the trial court sentenced her to a low-end sentence of 102 months of incarceration and 24 months of community custody.
Lauifi appeals.
ANALYSIS
Lauifi contends that the trial court committed manifest error affecting her constitutional right to due process when it gave the aggressor instruction because then she could not argue her theory of self-defense to the jury. She also argues that the trial court committed reversible error because the evidence did not support an aggressor instruction.
It is difficult to determine who Lauifi perceived threatened her such that she needed to use deadly physical force in self-defense. But because the State does not challenge the propriety of the self-defense instruction, we will not consider it.
Lauifi contends that her trial counsel did not object to the aggressor instruction, and that she may raise the issue on appeal because the instructional error is of constitutional magnitude. But Lauifi's trial counsel timely objected to the aggressor instruction and, therefore, the error is preserved for appeal. See State v. Dent, 123 Wn.2d 467, 477-78, 869 P.2d 392 (1994).
I. Standard of Review
"Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law." State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). "It is prejudicial error to submit an issue to the jury that is not warranted by the evidence." Clausing, 147 Wn.2d at 627. We will reverse the trial court's judgment if we find it committed prejudicial instructional error. See State v. Townsend, 142 Wn.2d 838, 848, 15 P.3d 145 (2001). The trial court errs if it gives an aggressor instruction when there is no evidence to support that the defendant's conduct precipitated the need to use self-defense. State v. Wasson, 54 Wn. App. 156, 158-59, 772 P.2d 1039 113 Wn.2d 1014 (1989).
[I]n general, the right of self-defense cannot be successfully invoked by an aggressor or one who provokes an altercation, unless he or she in good faith first withdraws from the combat at a time and in a manner to let the other person know that he or she is withdrawing or intends to withdraw from further aggressive action.
State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999).
Because the State has the burden of disproving the defendant's self-defense claim beyond a reasonable doubt, "courts should use care in giving an aggressor instruction." Riley, 137 Wn.2d at 910 n. 2. "`[F]ew situations come to mind where the necessity for an aggressor instruction is warranted. The theories of the case can be sufficiently argued and understood by the jury without such instruction.'" Riley, 137 Wn.2d at 910 n. 2 (quoting State v. Arthur, 42 Wn. App. 120, 125 n. 1, 708 P.2d 1230 (1985)).
Even though aggressor instructions are not favored, the trial court does not err in giving one "when there was credible evidence from which the jury could reasonably have concluded that it was the defendant who provoked the need to act in self-defense," State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990), or "if there is conflicting evidence as to whether the defendant's conduct precipitated a fight." Riley, 137 Wn.2d at 910; State v. Wingate, 155 Wn.2d 817, 822, 122 P.3d 908 (2005). "[W]ords alone do not constitute sufficient provocation" to warrant an aggressor instruction because a victim faced with only words is not entitled to respond with force. Riley, 137 Wn.2d at 911. But sufficient evidence exists to support an aggressor instruction if "there is credible evidence that the defendant made the first move by drawing a weapon." Riley, 137 Wn.2d at 910.
But see Riley, 137 Wn.2d at 914-15 (Talmage, J., concurring) (agreeing that the aggressor instruction was proper, but contending that the majority did not need to decide the issue of whether words constituted sufficient provocation and that a 1916 Washington Supreme Court case held words alone supported an aggressor instruction).
"[T]he provoking act must [] be related to the eventual assault as to which self-defense is claimed," Wasson, 54 Wn. App. at 159, and it must be "intentional." Kidd, 57 Wn. App. at 100. And the provoking act cannot "be the actual assault. Nor can it be an act directed toward one other than the actual victim, unless the act was likely to provoke a belligerent response from the actual victim." Kidd, 57 Wn. App. at 100 (citations omitted).
II. Aggressor Jury Instruction
Lauifi argues that there was no evidence proving that her conduct precipitated the need to use self-defense. She likens the facts of her case to State v. Birnel, 89 Wn. App. 459, 949 P.2d 433 (1998), abrogated on other grounds by In re Pers. Restraint of Reed, 137 Wn. App. 401, 408, 153 P.3d 890 (2007), Wasson, and State v. Brower, 43 Wn. App. 893, 721 P.2d 12 (1986).
In both Wasson and Brower, the defendants did not interact with the victims until the defendants assaulted them. Wasson, 54 Wn. App. at 157-58 (Wasson and his cousin were fighting; a neighbor's friend, Reed, first told them to quiet down and he then beat up Wasson's cousin while Wasson hid; Reed then took rapid steps toward Wasson and Wasson shot him); Brower, 43 Wn. App. at 896 (Richard Murphy and Frederick Martin were arguing about the cocaine in another party's possession; Brower and Murphy began to leave the apartment; Martin followed them down the stairs; Brower turned around, put his gun in Martin's stomach and told him to return to the apartment). The aggressor instruction was improper in both cases because, if the defendants were "to be perceived as the aggressor[s], it was only in terms of the assault itself." Brower, 43 Wn. App. at 902; Wasson, 54 Wn. App. at 159.
Similarly, in Birnel, Division Three of this court found that the evidence did not support an aggressor instruction. 89 Wn. App. at 473. Rick and Mary Birnel were separated, but Rick continued to support the family financially. Birnel, 89 Wn. App. at 462. One evening while Rick was staying with the children at the family home, Mary came home in the middle of the night and Rick suspected that she was high on methamphetamine. He searched her purse and found methamphetamine. Thereafter, he sat and waited at the top of the stairs to confront her. He asked her if she was using all her money on drugs and told her to make a list of all the bills she owed. Mary responded that he had pushed her too far, went downstairs, came back with a large knife, and began attacking Rick. Birnel, 89 Wn. App. at 463. The struggle ended with Mary's death. Birnel, 89 Wn. App. at 464. Division Three concluded that "a juror could not reasonably assume this act and these questions would provoke even a methamphetamine abuser to attack with a knife." Birnel, 89 Wn. App. at 473.
The State relies on Riley to support the aggressor instruction in this case. In Riley, 26-year-old Riley shot 15-year-old Gustavo Jaramillo and claimed self-defense. 137 Wn.2d at 906-07. Jaramillo and his friend Aaron Calloway stole cars and sold drugs together. On the day of the shooting Jaramillo possessed a stolen car and stolen pistol and had used cocaine. Riley wanted to purchase the car and, according to Jaramillo and Calloway, the pistol. Riley left to discuss the purchase with his father. Riley, 137 Wn.2d at 906.
Witnesses gave conflicting testimony about what happened when Riley returned. Riley testified that he asked Jaramillo about his gang affiliation and jokingly suggested that he was a "wanna-be"; Jaramillo took offense and told Riley he would shoot him. Riley, 137 Wn.2d at 906. Riley pointed a gun at Jaramillo and demanded the stolen gun, but Jaramillo said he did not have it; Jaramillo tried to distract Riley by threatening that the police were coming; and then Riley shot Jaramillo because he thought he was reaching for a weapon. Riley, 137 Wn.2d at 906-07.
Calloway testified that Jaramillo was lying on the ground when Riley returned and Riley pulled out his gun as he approached, held it over Jaramillo's head, and demanded to know where Jaramillo had concealed the stolen gun. The gun was in the pocket of Jaramillo's pants and was beneath him as he lay on his side on the ground. Riley told the boys not to move, but when Jaramillo looked up, Riley shot him and took the gun. Riley, 137 Wn.2d at 907.
The Washington Supreme Court upheld the trial court's aggressor instruction:
Apparently, Riley believes the aggressor instruction was based upon his comments about gang affiliation and calling Gustavo Jaramillo a "wanna-be." His premise is flawed because, although there was testimony to the contrary, there was evidence that Riley drew his gun first and aimed it at Jaramillo. The aggressor instruction in this case was proper because it was not based on Riley's words alone, but on his aggressive conduct as well.
Riley, 137 Wn.2d at 908-09 (citations omitted).
The court held that an aggressor instruction is appropriate "[w]here there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense." Riley, 137 Wn.2d at 909. It referred to State v. Thompson, 47 Wn. App.1, 7, 733 P.2d 584 (1987), for the proposition that "[i]f there is credible evidence that the defendant made the first move by drawing a weapon, the evidence supports the giving of an aggressor instruction," Riley, 137 Wn. App. at 910, without reciting Kidd's holding that the provoking act cannot "be the actual assault." Kidd, 57 Wn. App. at 100.
In Thompson, friends, including Jeffrey Thompson and Bob Russell, were together at a bar. 47 Wn. App. at 2. Roger Dapping, Calvin Knoth, and two women friends entered the bar and Russell made a comment about the women. Thompson, 47 Wn. App. at 3. Thompson's group later encountered Dapping's group in the parking lot and a confrontation ended with Thompson wounding Dapping and killing Knoth. Thompson, 47 Wn. App. at 3-4.
At trial, Thompson testified that someone or something hit him on the head and he thought it was Dapping or Knoth. Thompson, 47 Wn. App. at 3. When Dapping threatened to break his leg and then began digging in his pocket, Thompson pulled out his gun and backed toward his car. Thompson, 47 Wn. App. at 3. Thompson turned around to get in the vehicle, then saw Knoth advancing toward him, and, thinking that Knoth had a knife, he shot him. Dapping then wrestled with Thompson, Thompson shot Dapping several times, and then Thompson ran away. Thompson, 47 Wn. App. at 3-4.
Dapping testified that Russell approached the group, asked for marijuana, and, without speaking, Thompson pulled out the gun. Next, Thompson shot Knoth, and Dapping lunged toward him to stop him from continuing to fire his weapon. Dapping admitted that he might have said something to Russell about his earlier comments about the women. Thompson, 47 Wn. App. at 4.
A person waiting for the bus observed Thompson leave the bar yelling that he was "`going to kill the bastard.'" Thompson, 47 Wn. App. at 4. Two witnesses driving by observed a fight with three people beating up a fourth person and they rolled down their window and suggested making the fight fair. In response, one of the three people pointed a gun at them and they drove away. Thompson, 47 Wn. App. at 4.
Division One of this court held:
The State's evidence tended to show that, although neither Knoth nor Dapping said anything to Thompson, Thompson made the first move by drawing his gun on them. Although this evidence was disputed by Thompson's and Russell's testimony, the evidence presented by the State was sufficient to allow the [aggressor] instruction to be given.
Thompson, 47 Wn. App. at 7.
The State argues that the facts of this case are more akin to Riley because there was conflicting evidence about whether Lauifi was the aggressor. In particular, the State contends that:
The evidence conflicted on many points: whether [Lauifi] tried to encourage [Sims] and [Cox] to fight, whether [Lauifi] showed the knife to anyone before walking up to [Sims], whether [Sims] was standing still or moving toward [Lauifi] when [Sims] was stabbed, and whether [Lauifi's] hand was outstretched when she stabbed [Sims].
Br. of Resp't at 19.
We conclude that the facts here fall between Riley, Thompson, and Birnel. In both Riley and Thompson, the State's evidence showed that the defendant brandished a weapon at the victims before assaulting them. In Birnel, Rick only searched Mary's purse in her absence and then verbally engaged her before she assaulted him.
Here, there is conflicting evidence about whether Lauifi pulled a knife and waved it around, but the evidence is undisputed that she did not wave it toward Sims. In fact, Sims testified that he did not know she had a knife or even that she stabbed him, until he saw Lauifi folding up the knife. Lauifi verbally taunted Sims about calling Cox weak, but this taunt was not paired with non-verbal aggressive action toward Sims. Even the conflicting testimony about whether Lauifi walked toward Sims or whether Sims walked toward Lauifi, can be interpreted as part of her assault. Thus, Lauifi's only aggressive act toward Sims was the assault itself and that sole aggressive act cannot support an aggressor instruction. See Wasson, 54 Wn. App. at 159; Brower, 43 Wn. App. at 902. Thus, the instruction constituted reversible error. See Wasson, 54 Wn. App. at 161; Brower, 43 Wn. App. at 902.
Because we hold the trial court committed reversible error when it gave the aggressor instruction, we need not consider the other issues Lauifi raises on appeal.
We reverse and remand for a new trial.
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.
We concur:
Houghton, C.J.
Armstrong, J.