Opinion
No. 37407-2-II.
September 15, 2009.
Appeal from the Superior Court, Lewis County, No. 07-1-00368-6, Nelson E. Hunt, J., entered February 25, 2008.
Reversed and remanded by unpublished opinion per Houghton, J., concurred in by Hunt, J.; Quinn-Brintnall, J., dissenting in part.
Kenneth Riley appeals his conviction of one count of second degree assault while armed with a deadly weapon, arguing that the trial court erred by failing to instruct the jury on self-defense and by admitting evidence about his behavior when arrested. He also raises constitutional arguments regarding the Persistent Offender Accountability Act (POAA), chapter 9.94A RCW. Because the trial court should have instructed the jury on self-defense, we reverse and remand for a new trial.
FACTS
We derive the facts from the trial evidence. Eyewitnesses provided widely varying accounts of the incidents at issue. The trial court, when evaluating whether evidence supported Riley's requested instruction, was to interpret the evidence strongly in his favor. State v. Williams, 93 Wn. App. 340, 348, 969 P.2d 106 (1998). On review for abuse of discretion, therefore, we review the testimony in the light most favorable to Riley.
On May 25, 2007, Riley camped with his girl friend and children in a park near Riffe Lake in Lewis County. Riley and Daniel McCorkendale, who camped with several guests at the neighboring campsite, greeted each other cordially sometime during the day. The park had no electric lighting. At night, fires at several campsites, including a dying fire at Riley's campsite, provided the only light in the area.
McCorkendale recalled that around midnight, two men approached Riley near his tent and demanded that he give them $20. They threatened to beat him if he did not. Riley refused and told the two men he was ready to fight back. The men continued to demand money from him. Riley, who is black, became more heated when one of the two men, both white, attempted to strike him and called him "nigger." I Report of Proceedings (RP) at 31. Riley picked up a hammer that lay near his tent and held it before two men. Riley's girl friend and children remained behind him. Riley and the two men continued to shout at each other.
McCorkendale saw one of the men take a swing at Riley and saw the other hit Riley on the back of the head, knocking him to the ground. Another camper, Andrew Spears, then saw several other men, also white, approach Riley. Spears stated that the group of men standing opposite Riley may have numbered about 20; McCorkendale estimated the group numbered more than 25 men. McCorkendale recalled that Riley's children remained in the tent and Riley repeatedly shouted for his girl friend to get a gun.
Christina Sledg, a member of Daniel McCorkendale's party at a nearby campsite, did not see the other men gather but from the sound of their yelling estimated there were about 10 other men.
McCorkendale and Sledg both recalled that at some point during the altercation Riley pulled out a fish fillet knife from his sleeve and stood with the hammer in one hand, the knife in the other. Spears recalled seeing Riley with a knife but not a hammer. Sledg stated that at some point one of the men facing Riley took the hammer from him but later said she was not sure of this.
Riley and the group of men continued to threaten each other. The altercation drifted from Riley's campsite to McCorkendale's adjoining campsite. There, McCorkendale's campfire was the only source of light. Riley neared a member of McCorkendale's party, who demanded that Riley stay away. McCorkendale attempted to pull his guest away. Riley stood before McCorkendale with the knife and hammer.
McCorkendale testified that Riley brandished the knife and hammer at him, but Riley backed away once he realized he had turned the knife and hammer on McCorkendale. Nile Adamson, another nearby camper, also testified that Riley did not at first appear to recognize McCorkendale's party. Riley backed off from McCorkendale's camp when asked to. Before trial, Adamson told the police that Riley was in McCorkendale's camp looking for the men that attacked him but left when McCorkendale told Riley they were not there.
McCorkendale, when asked whether Riley was the aggressor or reacting to the men that approached him, testified that Riley appeared to be reacting to the attack.
Spears testified that his cousin Jesse was a friend of the two men who initially approached Riley and that Jesse had been one of the group of about 20 squaring off with Riley. Spears stated that he did not see Riley swing at anyone, but he did see several men in front of Riley aggressively lunging at Riley without actually hitting him. McCorkendale testified that Riley appeared to be defending himself. Sledg testified that the 20 to 25 men appeared to be afraid of Riley but that Riley appeared to be defending his children. At one point, Spears saw some of the men back off while some continued to attack Riley. Spears testified that he pulled Jesse out of the fight but that Jesse got away from him and returned to the fight.
Adamson camped at the lake with five friends and relatives, all of whom sat around a campfire when Adamson saw the two men approach Riley. Adamson, who places the incident at around 10:30 p.m. rather than midnight, gave testimony that varies significantly from the accounts of McCorkendale, Sledg, and Spears.
Sledg testified that several individuals from a campsite "the other side" of her camp joined the fight but that she did not know these campers' names. I RP at 61. Adamson states that his camp was 15 to 20 yards from Riley's. An illustration used at trial by the State shows Riley's camp between Sledg's camp and Spears's camp. These sources do not contain sufficient information from which we can determine whether Sledg identified members of Adamson's party, Spears's party, a combination of individuals from both camps, or campers from an unidentified campsite not in the immediate vicinity.
At trial, Adamson testified that the two men who initially approached Riley argued with Riley and that one threw punches but did not make contact. He then testified that one of the two men was drunk and aggressive, while the other urged his friend to walk away. In contrast to McCorkendale, Adamson testified the two men walked away, crossing through Adamson's camp. Riley then ran after them with the knife and hammer. Adamson stated these were the only two involved in any conflict with Riley that night.
According to Adamson, Riley, apparently drunk and "out of his wits," ran into Adamson's camp wildly swinging a knife and hammer, threatening Adamson and each of his five guests, saying that he would kill them all. II RP at 6. Adamson then told Riley that he did not want to fight him, after which Riley walked away. Adamson's testimony also varies from the police report he filed that night. There, Adamson stated only that Riley came to his camp looking for certain persons but left when Adamson told him that no one he sought was there.
Chelsea Norton, the last eyewitness to testify at trial, gave a unique account of the events that occurred before the deputies' arrival. According to Norton, Riley charged into her camp swinging a hammer and saying he would kill them all. Riley ran up to Norton and placed the knife to her side. Norton also claims she took Riley's hammer while shielding a pregnant woman from Riley's attempt to strike that woman with the hammer. This testimony, however, also conflicts with the police report Norton filed shortly after the incident. In that report, she did not include any information of Riley's unprovoked attack on her or a pregnant woman.
Accounts of how long this incident lasted vary. Spears recalled it was about half an hour. About 20 to 30 minutes after the interaction, Lewis County deputy sheriffs arrived. Sledg stated that "[t]he fight was still kind of in progress" when the deputies arrived and that the crowd scattered upon hearing their sirens and seeing their lights. I RP at 68.
Defense counsel requested that the trial court exclude any testimony from the deputies detailing Riley's arrest. This evidence, defense counsel explained, was not "relevant to the charges before the bench." I RP at 22. The trial court denied this request on the ground that Riley's "state of mind [at the time of arrest] is going to be at issue here." I RP at 24. The trial court also said that details of the arrest would be pertinent to any possible self-defense claim.
The two deputies then testified that they approached Riley as he sat in a foldout chair and demanded that he show his hands. The first deputy shined a flashlight directly at Riley's face and asked him to show his hands. The deputy's repeated demand caught his partner's attention. The other deputy also shined his flashlight at Riley and demanded he show his hands. Riley "yanked his hands out of his pockets and said, `Here's my fucking hands.'" I RP at 16.
The deputies instructed Riley to remain seated. He did not and continued to curse at the officers. A deputy placed Riley in handcuffs and arrested him. Riley, who had been barbequing, repeatedly told the officers that he needed to return to the camp to feed his kids.
By second amended information, the State charged Riley with three counts of assault and one count of harassment while armed with a deadly weapon. A jury heard the matter.
The second amended information accused Riley of assaulting and harassing "another," while the jury instructions named Norton (Count I) and Adamson (Count II) as his victims.
Riley's defense counsel also asked the trial court to instruct the jury on self-defense. The trial court, citing lack of evidence supporting self-defense, denied this request. The trial court noted that "all the evidence shows that . . . the [two men] had withdrawn. Mr. Riley then went back to his tent area, maybe into his tent, armed himself, and then went to the bonfire a ways away." II RP at 102.
The jury convicted Riley of one count of assault. Based on his criminal history, the trial court sentenced him to life in prison as a persistent offender. He appeals.
The jury found Riley not guilty of assaulting Norton and deadlocked on whether Riley harassed her. The trial court declared a mistrial on the harassment charge. The jury found Riley guilty of second degree assault as to Adamson.
ANALYSIS
Riley contends that the trial court erred by failing to instruct the jury on self-defense. He claims he met his burden of showing that he may have been defending himself.
Sufficient jury instructions allow the parties to argue their theory of the case and properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). Each party may instruct the jury on its theory of the case as long as evidence exists to support that theory. State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997). Failure to instruct on a defense theory supported by the evidence constitutes reversible error. Williams, 132 Wn.2d at 260.
Our standard of review for analyzing whether the trial court erred by refusing to instruct the jury on self-defense depends on whether the trial court based its decision on a matter of law or of fact. State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883 (1998). We review factual decisions for abuse of discretion, but we review rulings of law de novo. Walker, 136 Wn.2d at 771-72. Here, because the trial court based its ruling on the conclusion that Riley was the aggressor after the others retreated, the trial court made a factual decision based on the evidence. A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Partee, 141 Wn. App. 335, 361, 170 P.3d 60 (2007).
A trial court may instruct a jury on self-defense only after the defendant produces some evidence tending to prove that the circumstances amounted to self-defense. Walker, 136 Wn.2d at 772. That evidence can come from any source as long as it tends to prove the defendant acted in self-defense. State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983).
When evaluating whether evidence supports a defendant's requested instruction, the trial court must interpret the evidence strongly in the defendant's favor. State v. Williams, 93 Wn. App. 340, 348, 969 P.2d 106 (1998). Stated another way, a trial court may refuse to give a self-defense instruction only where no credible evidence supports defendant's self-defense claim. McCullum, 98 Wn.2d at 488.
Here, at least three witnesses, McCorkendale, Sledg, and Spears, testified that Riley faced several men who continually attacked him. McCorkendale testified that Riley was knocked to the ground near his tent, picked up the hammer, and appeared to be defending himself. Spears testified that as Riley stood holding the knife, he told "everybody to get back," and that Riley held the blade in a downward position. I RP at 93. The trial court heard testimony that conflicted in many instances. But the testimony fails to support the trial court's conclusion that "all the evidence" showed that Riley was the aggressor after the first two men initially retreated. II RP at 102.
McCorkendale testified that the two men had knocked Riley to the ground before Riley picked up the knife and hammer. Sledg testified that about 10 men were following Riley when he turned to pick up the hammer. Spears, whose cousin Jesse was a friend of the two men, testified that Riley pulled the fish fillet knife from his sleeve after the group of men gathered around him. Testimony from at least three witnesses, interpreted most favorably to the defendant, supported Riley's self-defense claim. The trial court, therefore, based its decision on an untenable ground.
Because we reverse, we do not consider Riley's argument that the trial court erred by permitting the State to present testimony detailing his arrest. We do note, however, that the trial court must "once again balance the probative value of the proffered testimony against its prejudicial effect." Williams, 132 Wn.2d at 260 n. 4. Reversed and remanded for a new trial.
Unlike the dissent, we do not believe it is appropriate for us to comment on the trial court's reasoning about Riley's behavior at the time of his arrest. Where we remand for retrial, the court must weigh the probative versus prejudicial value of this evidence anew based upon the evidence adduced at the second trial. See Williams, 132 Wn.2d at 260 n. 4.
Riley also appeals his life sentence on constitutional grounds. Because we reverse for a new trial, we do not address this issue other than to note that we have previously held that sentencing under the POAA is not constitutionally prohibited. State v. Rudolph, 141 Wn. App. 59, 168 P.3d 430 (2007), review denied, 163 Wn.2d 1045 (2008). CO Quinn-Brintnall, J. (concurring in part and dissenting in part) CX Kenneth Riley presented eyewitness testimony supporting his claim that he acted in self-defense. The credibility of these eyewitnesses' testimony was an issue for the jury not the trial court. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The trial court was required to interpret their testimony strongly in Riley's favor. State v. Williams, 93 Wn. App. 340, 348, 968 P.2d 26 (1998), review denied, 138 Wn.2d 1002 (1999). Accordingly, the court's refusal to give a self-defense instruction was error. State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983).
I write separately to note that I agree with the trial court's reasoning that evidence of Riley's behavior at the time of his arrest, which occurred a short while after the assault, is relevant to Riley's state of mind and that the jury may consider this type of evidence when evaluating whether Riley acted in self-defense. See State v. Wanrow, 88 Wn.2d 221, 235-36, 559 P.2d 548 (1977) (for self-defense claims all facts and circumstances should be placed before the jury because in no other way can a jury say what a reasonably prudent person similarly situated would have done); State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426, review denied, 133 Wn.2d 1019 (1997) (a defendant's demeanor on arrest is inadmissible unless relevant to any element of the charged offense).
Additionally, I acknowledge that this court has previously held that a defendant is not entitled to a jury determination of whether he may be sentenced as a persistent offender under the Persistent Offender Accountability Act, RCW 9.94A.570. State v. Rudolph, 141 Wn. App. 59, 168 P.3d 430 (2007), review denied, 163 Wn.2d 1045 (2008). But, as in Rudolph, I continue to believe that any defendant facing a sentence of life without possibility of parole has a state and federal constitutional right to have a jury decide whether he has been previously convicted of two "most serious offenses" before such punishment may be imposed and I cannot join in the majority analysis on this issue. 141 Wn. App. at 72-85 (Quinn-Brintnall, J., dissenting).
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 s so ordered.
HUNT, J., concur.