Opinion
No. 34483-1-II.
May 30, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-01367-6, Paula Casey, J., entered February 14, 2006.
Jonathan J. McKinlay appeals his jury conviction for second-degree assault while armed with a deadly weapon (a knife). He argues that (1) the trial court erred by refusing to instruct the jury that he had "no duty to retreat"; and (2) he received ineffective assistance when his trial counsel proposed an improper jury instruction and failed to object to another. We affirm.
FACTS I. Assault
In late July 2005, Jonathan J. McKinlay traveled to Washington from Reno, Nevada for his grandmother's funeral. He visited the Bar Code tavern in Olympia, with four others, including his mother and his girlfriend.
Around 1:00 a.m., Tyler Andrews, a frequent Bar Code patron, saw two people from McKinlay's group leaving with two barstools. Andrews informed bouncer Darryl Spahr, who weighed about 380 pounds, and the two followed the patrons outside to retrieve the bar stools. Spahr saw two people, McKinlay's mother and her friend, throwing the bar stools at the window of another tavern about three-quarters of a block away.
Unarmed, Spahr ran past McKinlay, who was some distance behind his mother and her friend. Spahr ran towards McKinlay's mother and her friend and demanded that they return the bar stools. McKinlay approached from behind Spahr and yelled at him; when Spahr turned around, McKinlay punched him in the face. Spahr stepped back, dodged another of McKinlay's swings from behind, and called to fellow bouncer, Armand Ruffin, for help.
McKinlay weighed about 170 to 185 pounds.
Ruffin ran toward McKinlay, knocked him to the ground on the sidewalk adjacent to a parking stall on the street, held McKinlay on the ground, and told him that police were on the way. When McKinlay got up, he and Ruffin became engaged in a physical altercation. Ruffin punched McKinlay in the face and threw him back to the ground; by this point, they had rolled off the sidewalk into the street.
While Ruffin was holding McKinlay on the ground, McKinlay's mother hit Spahr with a bar stool, and McKinlay's girlfriend repeatedly hit Ruffin in the face with her purse, causing Ruffin to lose his grip on McKinlay. McKinlay wriggled free, pulled out a knife, stabbed Ruffin's thigh and left shoulder, and got up quickly.
Ruffin pushed her aside.
According to Spahr and Ruffin, Spahr never swung at or hit McKinlay. McKinlay lunged at Spahr, stabbed him in the abdomen, and ran off.
Ruffin thought the altercation was over at this point, and he and Spahr began walking back to the Bar Code tavern, both bleeding from their stab wounds. McKinlay then "circled back down to the . . . on the sidewalk," coming toward them with a knife in his hand. Ruffin picked up a bar stool and stood in front of McKinlay to prevent him from attacking Spahr, who was walking toward them. McKinlay was yelling at Ruffin. Ruffin then noticed that McKinlay had a friend with him. Outnumbered and fearing that McKinlay was going to stab him again, Ruffin held back while McKinlay and the four other people ran away up the street.
II. Procedure
The State charged McKinlay with two counts of second-degree assault while armed with a deadly weapon and one count of felony harassment.
At trial, McKinlay proffered a theory of self-defense through other witnesses; he did not take the stand. The trial court dismissed the felony harassment charge at the end of the State's case. McKinlay requested, but the trial court refused to instruct the jury that he had "no duty to retreat."
The felony harassment charge pertained to McKinlay's alleged threats to a witness, but the trial court dismissed it because the witness testified that she did not feel any fear as a result of the threats. This charge has no bearing on this appeal.
The jury found McKinlay guilty of one count of second-degree assault against Spahr while armed with a deadly weapon. The jury could not reach a consensus on the second-degree assault against Ruffin.
Thus, this charge is not part of this appeal.
McKinlay appeals his conviction for second degree assault against Spahr.
ANALYSIS I. "No Duty to Retreat"
McKinlay argues that the trial court committed reversible error when it refused to give his proffered "no duty to retreat" jury instruction. We disagree.
If based on a factual dispute, we generally review a trial court's refusal to give a jury instruction only for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled in part by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700 (1997). Nonetheless, failure to provide a no-duty-to-retreat instruction is reversible error when the facts warrant such an instruction. State v. Redmond, 150 Wn.2d 489, 494, 78 P.3d 1001 (2003). But Redmond does not apply here because, as the trial court found, the facts did not warrant such an instruction.
The potential for a no-duty-to-retreat instruction arises only where the defendant presents a self-defense theory to the jury. A person has no duty to retreat when he is assaulted in a place where he has a right to be. State v. Studd, 137 Wn.2d 533, 549, 973 P.2d 1049 (1999). The trial court should instruct the jury on this legal principle when there is sufficient evidence to support giving it. State v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984). Thus, "where a jury may conclude that flight is a reasonably effective alternative to the use of force in self-defense, the no duty to retreat instruction should be given." State v. Williams, 81 Wn. App. 738, 744, 916 P.2d 445 (1996). Such is not the case here.
On the other hand, a no-duty-to-retreat instruction is not required if there is only a minimal potential that a jury might erroneously conclude that the defendant should have retreated. Studd, 137 Wn.2d at 549. In Studd, our Supreme Court concluded that the defendant was not entitled to a no-duty-to-retreat instruction because the force against which he was claiming self-defense was a gun the victim pointed at him. Id. Studd claimed he shot the victim in self-defense because the victim first threatened to shoot him. The Court reasoned that there was little chance a jury would conclude that Studd should have retreated when faced with a gun. Such was not the case here, however, because no gun was involved.
Our Supreme Court distinguished Redmond's incident from Studd's. Redmond claimed he had assaulted his victim in an effort to defend himself from his victim's blows during a fight. Redmond, 150 Wn.2d at 491-92. The trial court did not find the issue of possible retreat serious enough to warrant giving the jury instruction, and the Court of Appeals agreed. Id. at 492. In reversing the Court of Appeals, however, the Supreme Court held that the facts required the no-duty-to-retreat instruction because the jury could have reasonably concluded that Redmond should have retreated rather than staying and defending himself. Again, in contrast, such is not the case here.
The State argues that the facts did not support giving a no-duty-to-retreat instruction because (1) McKinlay's assault conviction was based on his later stabbing of Spahr, after his altercation with and escape from Ruffin, rather than on McKinlay's initial punching of Spahr before McKinlay struggled with stabbed Ruffin; (2) only McKinlay's initial punching of Spahr presented the possibility that a jury might consider whether McKinlay should have retreated at that point (potentially warranting the instruction if those facts had given rise to the assault charge for which the jury convicted McKinlay); (3) conversely, there was no possibility that the jury similarly speculated about whether McKinlay should have retreated, instead of stabbing Spahr, when Spahr, unarmed, approached McKinlay after McKinlay extricated himself from his altercation with Ruffin; (4) therefore, Redmond does not apply, and the trial court did not err in refusing to give the instruction.
The circumstances here are not analogous to those in Redmond. Redmond claimed that he assaulted his victim to defend himself from his victim's blows during a fight in a high school parking lot. The victim stood between his car and Redmond such that there was an opportunity to retreat. Neither had a gun. Redmond, 150 Wn.2d at 491-92. If the jury here had convicted McKinlay of assaulting Ruffin, the trial court's failure to give a no-duty-to-retreat instruction might have constituted reversible error under Redmond. Although McKinlay did not himself testify to these facts, he wanted the jury to infer from other evidence that he was defending himself against the two tavern bouncers who were chasing and punching him in the street outside the tavern. There was plenty of open space for McKinlay to run, and the bouncers did not point any guns. As in Redmond, a reasonable jury might have concluded that McKinlay should have retreated rather than stay and defend himself against Ruffin.
But these were not the facts with respect to McKinlay's stabbing of Spahr after McKinlay ended his altercation with Ruffin. There is nothing in the record suggesting that a reasonable jury might have concluded that McKinlay should have retreated rather than stabbing unarmed Spahr in the abdomen with a knife. Thus, at this point, the Redmond no-duty-to-retreat instruction was not triggered. We hold, therefore, that the trial court did not commit reversible error in declining to give such instruction under the facts here.
II. Ineffective Assistance of Counsel
McKinlay next argues that he received ineffective assistance of counsel when (1) his counsel proposed, and the trial court adopted, a misstated version of the "right to act on appearances" instruction number 17; and (2) his counsel failed to object to the "first aggressor" instruction, which prejudiced him. We disagree.
A. Standards of Review
To show ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs if the outcome would have differed but for the deficient performance. In re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). And we give considerable deference to counsel's choice of tactics and presume that she was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
We review the adequacy of jury instructions de novo. State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002). Each party is entitled to have the trial court instruct the jury on its theory of the case if evidence supports that theory. State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997).
Jury instructions on self-defense must more than adequately convey the law. State v. LaFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). They must make the relevant legal standard manifestly apparent to the average juror. LeFaber, 128 Wn.2d at 900; Allery, 101 Wn.2d at 595. "A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial." LeFaber, 128 Wn.2d at 900.
To entitle a defendant to a jury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense. Then, the burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt. See State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993). The finder of fact evaluates evidence of self-defense "from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees." Janes, 121 Wn.2d at 238. This is both a subjective and objective standard, requiring the jury to stand in the shoes of the defendant, but determine what a reasonably prudent person similarly situated would do. Id.
The degrees of force used in self-defense are limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant. See State v. Bailey, 22 Wn. App. 646, 650, 591, P.2d 1212 (1979). A defendant may use deadly force only when he reasonably believes he is threatened with death or great personal injury. State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997). The jury instructions may not define injury or great personal injury in a way that removes this subjective element from the jury. Walden, 131 Wn.2d at 477-78 (adopting 11 Washington Pattern Jury Instruction: Criminal 2.04.01 at 22 (1994) definition of great personal injury: "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").
We review a challenged jury instruction de novo when the decision depends on a ruling of law based upon sufficient evidence. State v. Walker, 136 Wn.2d 767, 771-73, 966 P.2d 883 (1998).
B. "Great Bodily Harm"/"Right To Act on Appearances" Instruction
The State charged McKinlay with assault in the second-degree while armed with a deadly weapon. There is no dispute that McKinlay used a knife to stab both Ruffin and Spahr. According to the rules of self-defense, a defendant may use deadly force against an assailant only if the defendant subjectively believes he is in danger of death or great personal injury. Walden, 131 Wn.2d at 474. A "right to act on appearances" instruction tells the jury that a defendant is entitled to defend himself only if it appears to him that he is in danger, regardless of whether he was in actual danger. See Janes, 121 Wn.2d at 237.
Here, general self defense jury instruction 15 stated:
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person and when the force is not more than is necessary.
Clerk's Papers (CP) at 84 (emphasis added). This instruction required the jury to find only that McKinlay "reasonably believes that he [was] about to be injured." Jury Instruction 15, CP at 84. Unlike instruction 17, infra, instruction 15 did not require the jury to find that McKinlay feared a severe degree of bodily injury, only that he reasonably feared some injury.
Working in tandem with instruction number 15, instruction 17 stated:
A person is entitled to act on appearances in defending himself, if that person believed in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
CP at 86 (emphasis added). We hold that instructions 15 and 17 together properly instructed the jury that, to justify McKinlay's use of deadly force, i.e., a knife, in self defense against Spahr, McKinlay had to have believed in good faith that he was in danger of great bodily harm from Spahr. Supplementing the general self-defense instruction, number 15, jury instruction number 17 thus accurately explained McKinlay's "right to act on appearances" in self defense. Because the trial court properly instructed the jury, the outcome of McKinlay's trial would not have been different if his counsel had not proposed the instruction. Therefore, we hold that McKinlay did not receive ineffective assistance of counsel when his counsel proposed the "right to act on appearances" instruction number 17.
Both McKinlay and the State rely heavily on Walden. In Walden, the challenged instruction was the definition of "great bodily harm." Our Supreme Court reversed Walden's conviction and remanded for a retrial because the second paragraph of the instruction defined "great bodily harm" in a way that removed the subjective determination from the jury. Walden, 131 Wn.2d at 475-78.
C. "First aggressor" instruction
Instruction 18 stated:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon 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 is not available as a defense.
CP at 87.
A first aggressor instruction is appropriate when "there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self defense." State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). The record must demonstrate the defendant's involvement in wrongful or unlawful conduct before he committed the charged crime. State v. Wingate, 123 Wn. App. 415, 422-23, 98 P.3d 111 (2004), rev'd on other grounds, 155 Wn.2d 817, 122 P.3d 908 (2005). Therefore, the relevant inquiry here is whether the record contains sufficient credible evidence that McKinlay provoked an attack. Such is the case here.
We note the distinction that a "first aggressor" instruction does not determine that the defendant was the first aggressor. Rather, the instruction allows the jury ultimately to decide, beyond a reasonable doubt, whether or not the defendant was the first aggressor.
Both Andrews and Spahr testified that McKinlay first swung at and hit Spahr when Spahr attempted to retrieve the bar stools. Ruffin also testified that he saw McKinlay hitting Spahr from behind, causing Spahr to call to Ruffin for help. Moreover, McKinlay admitted to detectives that "the white guy" came running up behind him, but he (McKinlay) threw the first punch. This evidence is sufficient to support the trial court's giving the "first aggressor" instruction to the jury.
The State played this tape for the jury. McKinlay did not testify at the trial.
We hold, therefore, that because the trial court properly gave this first aggressor instruction, McKinlay's counsel did not act unreasonably or provide ineffective assistance by failing to object to this instruction.
Affirmed.
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.
Penoyar, J. concurs.
Armstrong, P.J. concurs in the result only.