Opinion
No. 39104-0-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Cowlitz County, No. 08-1-01085-3, James J. Stonier and Stephen M. Warning, JJ., entered March 25, 2009.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, C.J., and Bridgewater, J.
After rejecting his claim that he acted in self-defense, a jury found James Wenner guilty of second degree assault for breaking Phillip Bruechert's jaw by punching him twice in the face with a closed fist. On appeal, Wenner argues that his timely trial rights under CrR 3.3 were violated and that the trial court erred in failing to sua sponte instruct the jury that Wenner had no duty to retreat. Because the trial court did not abuse its discretion by continuing Wenner's trial date one day due to the limited availability of Bruechert's physician witnesses and because the trial court properly instructed the jury on the law of self-defense, we affirm.
Facts
On September 14, 2008, Bruechert and his former fiancé, Elizabeth Neves, went to Kesler's Bar and Grill in Longview, Washington. After some drinks, Neves called other people, including Wenner, to join them at Kesler's. Wenner arrived and flirted with Neves, which upset Bruechert. Shortly after Wenner's arrival, when Neves declined Bruechert's invitation to leave with him, Bruechert left Kesler's alone through the bar's back door. In the parking lot behind Kesler's, Bruechert met Cassandra Yuman and sat down on the curb to smoke and talk with her. A short while later, Wenner and Neves came into the parking lot. Wenner, who is 6 feet 3 inches tall and weighs 240 pounds, approached Bruechert, who is 5 feet 8 inches tall and weighs 180 pounds.
Wenner testified that Bruechert, who was still sitting on the curb smoking, spoke to him and behaved "[k]ind of angry. Hostile." 2 Report of Proceedings (RP) at 180. Wenner testified,
[Bruechert] stood up. Words were exchanged and I asked him, like — I'm like, what are you really going to do about it anyway? And, he took a swing and he missed. And, I swung and struck him[]
. . . .
[o]n the left side of his face, I believe by the jaw.
. . . .
. . . [H]e immediately went down and popped up like almost — almost immediately andcame at me in a forward motion and I — and I hit him again.
2 RP at 181.
The altercation ended when Kesler's security guard, Rudy Lopez, tackled and restrained Wenner before he could throw a third punch. Lopez had been watching the parking lot from outside Kesler's back door. He saw Wenner approach Bruechert but did not hear any argument, yelling, or threats exchanged. Lopez testified that he saw Bruechert sitting on the curb and Wenner standing near him before the fight.
[Prosecutor]: . . . [D]id you ever see [Wenner] throw a punch at Mr. Bruechert?
[Lopez]: Yes.
[Prosecutor]: Did Mr. Bruechert do anything before [Wenner] threw the punch? Did [Bruechert] move towards [Wenner]? Did [Bruechert] swing first?
[Lopez]: No.
[Prosecutor]: Are you sure?
[Lopez]: Quite sure.
[Prosecutor]: What did you see? Describe what you saw.
[Lopez]: The action that I seen (sic) [Bruechert] take was putting out his cigarette and using his hands to stand up off the curb.
[Prosecutor]: And, what happened at that point?
[Lopez]: Right after he pretty much came up full erect. Mr. Wenner hit him.
[Prosecutor]: Where?
[Lopez]: In the face.
[Prosecutor]: With a fist, with an open hand?
[Lopez]: I believe — it would be with the left. With a fist.
[Prosecutor]: And, what happened to Mr. Bruechert when he was hit?
[Lopez]: He hit his rear end. He basically fell back and caught himself on his ass and on his hands. Sorry.
[Prosecutor]: Did he get back up?
[Lopez]: Yes, he did.
[Prosecutor]: When he got back up, did he make it all the way up or what happened?
[Lopez]: I'd say maybe three-quarters of the way up.
[Prosecutor]: Then what happened?
[Lopez]: Mr. Wenner hit him a second time.
[Prosecutor]: Again in the head or — ?
[Lopez]: Yes.
[Prosecutor]: And, was this with a closed fist, an open fist?
[Lopez]: I'm pretty sure it was closed.
1 RP at 52-53.
The jury found Wenner guilty of second degree assault as charged. Wenner timely appeals.
Discussion
Wenner raises two issues in this appeal. First, he asserts that the trial court violated his timely trial rights under CrR 3.3 when it continued the start of his trial one day without good cause. Second, he asserts that the trial court's instructions failed to inform the jury that he had no duty to retreat before defending himself. Neither issue has merit, and we affirm.
Application of CrR 3.3
Wenner argues that the trial court denied his right to a "speedy trial under CrR 3.3" by granting the State's continuance request because the State presented no affidavit, testimony, or fact to support its claim that the trial had to again be continued. Br. of Appellant at 13. The State counters that Wenner requested several continuances and only objects to the final one day delay of his trial.
Our review of the record reveals that Wenner's trial was originally set to commence on Wednesday, March 11, 2009. But at a March 5 readiness hearing, the trial court, defense counsel, and the State discussed resetting the start date for Wenner's trial, in part, to accommodate Wenner's defense counsel who indicated that he had another trial set to begin on Friday, March 13. The trial court stated that "[t]he sixteenth looks good, I think, given that it is also to accommodate counsel, I think that we could go past that, if need be." 1 RP at 1. Wenner's counsel agreed stating, "The sixteenth works." 1 RP at 1.
As to the continuance from March 16 to 17, Wenner claims that the State "moved to continue the trial date to March 17, 2009, because of a 'conflict' with other trials." Br. of Appellant at 12. The record belies this claim. At the March 12 readiness hearing, the State clearly stated problems with several witnesses' availability and that
the State would be ready to go, if we begin on Tuesday[, the 17th,] and that would fit the witnesses' schedules. I have problems, if we could put it out to the 23rd. What I — I guess I will tell the Court what would work. The State's witnesses would work — we could either start on the 17th, or what would be required is that we would start actually on the 26th, which is the Thursday of the week following that. The reason, Your Honor, is two of the witnesses are medical doctors. Their availability is —
JUDGE WARNING: Problematic.
[PROSECUTOR]: Problematic. One of them is a surgeon and the other one works in the Emergency Department. The other complicating factor is one of the witnesses is a student at LCC and the 23rd through the 25th are her days of finals.
1 RP at 4.
Although Wenner contends in his brief that the State presented no facts supporting its request for a one-day continuance, the record shows that the trial court continued his hearing due to the unavailability of the State's witnesses, one of whom was a surgeon and the other an emergency room doctor. Wenner's defense counsel entered a formal objection but, although trial was just days away, did not propose an alternate date. Wenner's argument that the trial court violated his timely trial rights under CrR 3.3 by granting the State's request to continue the trial date for one day to accommodate the treating physician witnesses' availability fails. No Duty to Retreat Instruction Next, Wenner argues that the trial court denied his right to a fair trial by "[giving] Instruction No. 14, which misstated the law on self defense." Br. of Appellant at 14. Specifically, Wenner contends that the trial court's failure to spontaneously instruct the jury on the "no duty to retreat" doctrine was manifest error. The State argues that the trial court gave the self-defense instruction Wenner requested and that, therefore, he has not preserved this issue for review. We agree with the State.
We note that, at the March 12 readiness hearing, when making his objection to the one-day continuance, Wenner claimed to have also objected at the March 5 readiness hearing to the trial court's continuance to March 16. The record does not support this assertion because at the March 5 hearing, Wenner agreed with the trial court that "[t]he sixteenth works." 1 RP at 1.
The trial court instructed the jury on self-defense in jury instruction 14 as follows:
Self-defense is an act that must be necessary. Necessary means that, under the circumstances as they reasonably appeared to the actor at the time, (1) no reasonably effective alternative to the use of force appeared to exist and (2) the amount of force used was reasonable to effect the lawful purpose intended.
Clerk's Papers at 44. Wenner also requested, and the trial gave as jury instruction 12, 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.02, at 253 (3d ed. 2008) (WPIC), which defines the law on self-defense. In addition, Wenner requested instructions related to the payment of damages in the event the jury found that Wenner had acted in self-defense when he assaulted Bruechert. Wenner proposed no other jury instructions and did not take exception to the trial court's jury instructions.
Initially, we note that Wenner did not comply with CrR 6.15(c) and failed to timely object to the jury instruction he seeks to challenge for the first time on appeal. His objection is untimely. Moreover, in State v. O'Hara, 167 Wn.2d 91, 101, 104, 217 P.3d 756 (2009), our Supreme Court held that instructional error regarding self-defense is not automatically a manifest error that may be raised for the first time on appeal under RAP 2.5(a). In addition, we agree the State that, when read together, the trial court's instructions accurately informed the jury of the law of self-defense and the State's burden to prove beyond a reasonable doubt that Wenner did not act in self-defense when he punched Bruechert in the head twice with his closed fist.
Even if we did reach the merits of Wenner's argument, in State v. Lucero, 152 Wn. App. 287, 292, 217 P.3d 369 (2009), reversed on other grounds, 168 Wn.2d 785, 230 P.3d 165 (2010), Division One of this court addressed whether a trial court had a duty to spontaneously instruct the jury that the defendant had "no duty to retreat." Like Wenner, Lucero had not proposed a "no duty to retreat" jury instruction. Lucero, 152 Wn. App. at 292. The Lucero court held that no authority required the trial court to give such an instruction absent a defendant's request and noted that when a party fails to request an instruction it "'cannot predicate error on its omission.'" 152 Wn. App. at 292 (quoting McGarvey v. City of Seattle, 62 Wn.2d 524, 533, 384 P.2d 127 (1963)).
Moreover, where the jury instructions correctly state the law regarding self-defense, they include the concept that a defendant has no duty to retreat. In State v. Frazier, 55 Wn. App. 204, 208, 777 P.2d 27, review denied, 113 Wn.2d 1024 (1989), Division One of this court reviewed the sufficiency of a pattern jury instruction identical to WPIC 17.02, which is jury instruction 12 in Wenner's case. The Frazier court held that this jury instruction implies that a defendant had no duty to retreat and that a separate "no duty to retreat" instruction was not required. 55 Wn. App. at 208-09.
We note that here, the evidence does not suggest a "duty to retreat" issue arose and Wenner's argument is purely speculative. Simply stated, all the evidence established that Wenner approached Bruechert and there was no evidence or argument that Wenner should have fled rather than used force against Bruechert. The issue for the jury was whether Bruechert's angry words justified the force Wenner used or whether the force was unprovoked or excessive. Although the trial court must fully instruct the jury on the applicable law, there is no right to an instruction that is not supported by the evidence. State v. Prado, 144 Wn. App. 227, 241, 181 P.3d 901 (2008).
Wenner's timely trial rights under CrR 3.3 were not violated and the trial court's instructions accurately set out the law requiring the State to prove beyond a reasonable doubt that Wenner did not punch Bruechert in self-defense and ensured Wenner received a fair trial. Accordingly, 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. and PENOYAR, C.J., concur.