Opinion
No. 56509-5-I.
June 11, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 03-1-01542-6, Ira Uhrig, J., entered June 15, 2005.
Reversed and remanded by unpublished opinion per Becker, J., concurred in by Schindler, A.C.J., and Baker, J.
Appellant Jose Panet, a Parkinson's disease patient who was having difficulty managing his medications, brandished a shotgun at visitors and was convicted of assault. A neuropsychologist believed that Panet had diminished capacity to form the culpable intent, but was not allowed to testify to the full extent of his opinion because of late disclosure to the State. The State, however, was itself late in disclosing to the defense a critical piece of information bearing on Panet's mental state on the day of the incident. We conclude the State's discovery violation, though inadvertent, was a suppression of material evidence sufficient to undermine confidence in the verdict. The conviction is reversed.
FACTS
According to the evidence at trial, Jose Panet — 51 years old at the time of trial — is a sculptor who has suffered from Parkinson's disease since age 28. He and companion Terese Boettner moved to Bellingham in 2002 where he was befriended and housed by Terese's father, retired Dr. Donald Boettner. Panet stayed for a time with Boettner at his beach house, but he and Terese primarily made their home at Boettner's house in Bellingham. Boettner told them he planned to sell the Bellingham house eventually and they should make plans to find somewhere else to stay. Although the relationship between Panet and Boettner was generally good, it became a sore point with Boettner that Panet and Terese did not seem to regard their housing as temporary. In the fall of 2003, Boettner brought the subject up with Panet on several occasions but found him evasive.
The issue came to a head in mid-November 2003 when Boettner confronted Panet with a formal request to move out. Panet became angry and said Boettner "didn't believe in God" and would "feel the wrath of God." Boettner described this behavior as "erratic and unusual" and "out of control".
Report of Proceedings (May 17, 2005) at 185.
Report of Proceedings (May 17, 2005) at 177.
Boettner, accompanied by his two adult sons, went to the Bellingham house on November 21, 2003 with the intention of once again telling Panet the time had come for him to find a new residence. When the Boettners arrived, they found a flimsy rope strung across the driveway blocking entrance to cars. All the shades on the house were closed. An upturned ladder blocked the main entrance to the house, and the front door had been blocked with other furniture. The Boettners entered the house and saw that several statues and pieces of artwork had been arranged in the middle of the room where the furniture normally was. Boettner's sons described the living room scene as "completely bizarre" and "kind of spooky." They found a picture of Boettner with a note leaning against it: "I still love you. Signed, Joey, and so does God."
Report of Proceedings (May 17, 2005) at 198, 245.
Report of Proceedings (May 17, 2005) at 110.
Boettner went down the steps into the basement and saw Panet sitting in the shadows holding one of Dr. Boettner's shotguns across his chest. Panet said he was "Terese's protector" and he wanted Boettner to leave. When Boettner said he wanted to "talk this thing over", Panet lowered the gun and began waving it around in an alarming manner. During this time, Boettner's two sons had come downstairs. All three Boettners retreated and one of them called 911. Panet followed them up the stairs and out of the house, continuing to wave the gun around. As they got into their car, Panet pointed the gun straight at the car and said: "Get out of here or I'll shoot the engine." The Boettners drove away.
Report of Proceedings (May 17, 2005) at 151.
Report of Proceedings (May 17, 2005) at 150-151.
Report of Proceedings (May 17, 2005) at 154.
Panet was not at the house when police arrived. The police inspected the three shotguns at the house and found they were not loaded. The next day, Panet was arrested. After receiving Miranda warnings, he responded to questioning by Detective James and agreed to make a taped statement. Detective James recorded an interview lasting 38 minutes. According to Detective James' pretrial testimony, Panet acknowledged during the recorded interview that he was trying to keep Boettner from coming in by placing "symbols" throughout the house to "send a message." He admitted waving a gun around as a means of letting Boettner know he was "serious and wanted him to get out."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Report of Proceedings (May 16, 2005) at 50.
The State charged Panet with one count of second degree assault and one count of misdemeanor harassment. Some months before trial, Panet informed the State that he planned to pursue a mental defense. The defense was ordered to make discovery to the State regarding any mental evaluation that Panet had undergone. Trial was set to begin on May 16, 2005.
It was not until May 10, after two motions to compel, that the State received a five-page report of a clinical evaluation of Panet conducted on March 30 by Dr. Jeffrey Shaw, a neuropsychologist with the Booth Gardner Parkinson's Care Center in Kirkland. Panet had related to Dr. Shaw the circumstances of his arrest in November 2003 and some difficulties he was having with his medications at the time. Dr. Shaw reported that Panet had a diagnosis of stage 3 to stage 4 Parkinson's disease. "Apparently, when Mr. Panet was jailed, he had been deprived of medication to the point where his physical and psychological suffering was substantial." He explained that Parkinson's patients are prone to psychiatric disturbance including degrees of psychosis, and "illusions or hallucinations are often problematic. . . . regardless of medication factors, Parkinson's disease tends to cause brain dysfunction in the executive control areas of the brain which heightens disinhibited behaviors." When the trial began on Monday, May 16, 2005, the State took the position that Dr. Shaw's testimony did not establish diminished capacity and should be excluded altogether or at least limited to the content of the evaluation.
Clerk's Papers at 39 (Clinical Neuropsychological Evaluation).
Meanwhile, it was not until May 13 that defense counsel received a transcript of the police interview with Panet that had been recorded the day after the arrest. The State had not provided the defense with either the tape of the interview or the transcript despite defense counsel's early discovery request for all "sound tapes". Defense counsel was insisting on having a copy of the actual tape so that Dr. Shaw could hear it before he testified later in the week.
Report of Proceedings (May 16, 2005) at 72.
The State called Boettner and his two sons to testify on Tuesday. All three testified that they were thoroughly frightened and surprised by the incident. Panet was described as a gentle and mild-mannered person and his threatening behavior referred to as "highly out of character".
Report of Proceedings (May 17, 2005) at 217, 256.
On Wednesday, the State finished its case in chief by playing the 38-minute taped interview for the jury and allowing the jury to read the transcript. The playing of the tape was not transcribed, and neither the tape nor the transcript is part of the record on appeal.
In the defense case, Panet testified that in the days leading up to the incident he was sleep deprived, ill and felt suicidal. He checked himself into the hospital briefly but left to take care of Terese, who was also ill. He said when the Boettners came to the house he felt threatened and held the gun "to show that I didn't want to be bothered and I needed to rest". He denied having the intention to scare anyone. Terese testified that Panet was having trouble managing his Parkinson's medications at the time. She said he began having crying spells, and "then he thought that Jesus had been reborn in the Swiss Alps, and that he had to tell the world".
Report of Proceedings (May 18, 2005) at 373.
Report of Proceedings (May 18, 2005) at 415.
The last witness was Dr. Shaw. The prosecutor interviewed him early Thursday morning and learned that he had expanded his opinion beyond what was stated in the clinical report, based upon a very recent review of the transcript of Panet's post arrest recorded statement and some hospital records documenting Panet's condition around the time of the incident. The State renewed its motion to exclude Dr. Shaw's testimony on the basis that without the new information it was not enough to support a diminished capacity defense, and with the new information it was a significantly changed expert opinion with a new diagnosis. Defense counsel reminded the court of the State's delay in providing the transcript and the tape.
The court expressed frustration at the way discovery had been handled by both parties during the case: "This case is fraught with things that keep popping up at the last minute in terms of discovery." The court denied the State's motion to disallow Dr. Shaw's testimony. "You've known about the doctor for a couple of months. Yes, it took a long time to get the result, but I don't think that it would be appropriate to deny the defense the opportunity to present his expert." The court ruled that Dr. Shaw could take into consideration the hospital records he had recently reviewed, but he would not be allowed to testify about how the transcript from the November 2003 interview had affected his opinion.
Report of Proceedings (May 19, 2005) at 453.
Report of Proceedings (May 19, 2005) at 455.
Report of Proceedings (May 19, 2005) at 453.
When Dr. Shaw took the stand, he explained to the jury how Parkinson's disease is a condition of not having enough dopamine. Having too much dopamine leads to psychosis, or loss of the ability to know what is real. Parkinson's medications, which increase dopamine levels in the brain, "kind of push people over the edge" in 10 to 20 percent of patients. These psychotic changes can come on very suddenly. Having learned from the medical records that Panet had been subject to several changes in medication in November 2003, he could say to a reasonable degree of medical certainty that Panet was delusional and experiencing a psychotic episode on November 21. Dr. Shaw said a delusional person can "blow out of proportion" the actual risk inherent in a particular situation. He also described delusions involving "hyper religiosity", and said that Panet's religious beliefs fringed on being delusional.
Report of Proceedings (May 19, 2005) at 469.
Report of Proceedings (May 19, 2005) at 477.
Report of Proceedings (May 19, 2005) at 479.
Report of Proceedings (May 19, 2005) at 477.
Defense counsel then asked Dr. Shaw the critical question for purposes of this appeal: "Can you state with a reasonable degree of medical certainty whether the mental disorder, the psychosis that you're talking about caused the defendant, Mr. Panet, to have diminished capacity to form either intent to commit a crime intentionally or with knowledge?" The State raised a foundation objection. Further testimony by Dr. Shaw was presented as an offer of proof outside the presence of the jury. It became clear that most of what Dr. Shaw knew of Panet's condition on the day of the incident came from reviewing the transcript of the November 2003 interview, which he had seen for the first time the night before. Dr. Shaw said that the interview was sufficiently close in time to the incident to allow him to evaluate Panet's mental state during the incident. He said the interview provided significant details about the religious symbolism involved in Panet's act of barricading the house:
Report of Proceedings (May 19, 2005) at 479.
So there were quite a few things that Mr. Panet describes as being really symbolic, barricades, cherubs, guns as being a symbol of repelling people, as being kind of a warning, as you know, asking people to leave, believing that the father-in-law and any other parties with him would instantly know upon coming to the house that they shouldn't be there . . . there was significant reference to cherubs and other religious symbols throughout the transcripts that I reviewed.[ ]
Report of Proceedings (May 19, 2005) at 488-489.
While conceding that using guns to keep people away can be seen as rational and "goal-directed", Dr. Shaw believed that Panet's arrangement of the guns and other symbols had "this other aura" of "almost magical thinking that people will see this and go away and never bother me again". He said, "a lot of that is not really goal-directed. . . . It's really exactly what a delusion is, just not really connecting all the dots in the most sensible sequence, the most realistic sequence.
Report of Proceedings (May 19, 2005) at 490-491.
Defense counsel argued that Dr. Shaw should be allowed to state to the jury his opinion that Panet had diminished capacity on November 21, 2003. The court responded that the offer of proof may have established the necessary foundation. But the court concluded it would be unfair to the State to let Dr. Shaw state an opinion that had been disclosed to the State only that morning. The prosecutor "should be allowed to get his own expert if he wants it, and that can't be done at this point because of the lateness of the report and the information being provided." Defense counsel argued that it would be unfair to penalize Panet for failing to disclose this more specific opinion sooner when the defense received the transcript that spurred the formation of this opinion only a few days earlier. Adhering to the ruling, the court reasoned that Panet would still be able to argue his theory of the case. The jury had heard the tape, read the transcript, and learned enough about Parkinson's from Dr. Shaw to be able to decide for themselves whether or not Panet had diminished capacity:
Report of Proceedings (May 19, 2005) at 492.
I think the jury still has the ability to weigh what he has already testified to about delusions and psychotic behavior. They have heard the tape. They can compare those two, and they can draw their own conclusion. . . . The doctor has already testified Mr. Panet has a mental condition. I think to allow him to give the additional opinion that Mr. Panet was suffering from diminished capacity on that day would be inappropriate, and it would be too likely to sway the jury. I think you can use and the jury can rely upon the information they've already heard and the testimony they've already gotten from Dr. Shaw about how these things can occur, and they can hear Mr. Panet in his own words how he was behaving. I think they can draw the conclusion. I think you both have your chance to argue your theory of the case to the jury.[ ]
Report of Proceedings (May 19, 2005) at 502-503.
When the jury returned, Dr. Shaw testified it was likely Panet had a "psychotic episode" on the day of the incident in view of the medication problems and general distress he had been experiencing. But due to the court's ruling, Dr. Shaw did not mention his review of the contemporaneous interview transcript and did not state his opinion that Panet actually did suffer from diminished capacity on the day in question. In cross examination the prosecutor emphasized Dr. Shaw's lack of contemporaneous information about Panet and the fact that his clinical report of March 30, 2005 was not a diagnosis of Panet's condition in November of 2003.
Report of Proceedings (May 19, 2005) at 512-514, 524.
On redirect, defense counsel presented Dr. Shaw with several hypothetical situations closely tailored to the facts of the case. For example, Dr. Shaw testified that a person who believed Christ had been reborn in Switzerland could be delusional; a person who put religious statues around his house and believed they were signs that were going to accomplish a "greater purpose" could be delusional; and it was likely delusional for a person to fear an 84 year old man with whom he had previously enjoyed a good relationship. On re-cross, the prosecutor elicited Dr. Shaw's agreement that even some delusional behavior is done with the intent of accomplishing an objective.
Report of Proceedings (May 19, 2005) at 527-528.
The parties rested. The court instructed the jury on the diminished capacity defense: "Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to act intentionally or with knowledge." A person "acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime."
Clerk's Papers at 116 (Instruction 17).
Clerk's Papers at 109 (Instruction 10).
Defense counsel argued in closing that the transcript of the police interview was the best indicator that Panet lacked the capacity to act intentionally. Quoting liberally from the transcript, counsel argued that Panet believed the guns were symbols: "`They were not weapons. They were never meant to destroy anything. . . . If you go back, you see that each, there was always a Madonna with a nun or an angel and the face of Christ or something, because I wanted him [Boettner] to snap out of this.'" The State argued that Panet, even if delusional, had the capacity to point the gun with the intent of frightening Boettner:
Report of Proceedings (May 19, 2005) at 588.
You can have goal-oriented behaviors and actions even if you're delusional, and Mr. Panet had goal-oriented actions. He decided what he wanted to do was to scare Dr. Boettner, and he wanted him and his two sons out of the house, and he used a gun to do so, and the gun is a deadly weapon. That's why he's guilty of assault in the second degree with a deadly weapon, and with the special verdict finding of a deadly weapon.[]
Report of Proceedings (May 19, 2005) 600-601.
The jury rejected Panet's defense and convicted him as charged. Because they found Panet was armed with a firearm during the assault, the sentence could be no less than three years despite the fact that Panet had no criminal history and the standard range was three to nine months. The trial court was of the view that a shorter sentence would have been more appropriate in view of Panet's disability. The trial court found the presence of the mitigating factor listed in RCW 9.94A.535(1)(e): "The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired." The sentence imposed was a prison term of three years and one day, consisting of a suspended sentence of one year for the harassment charge, an exceptional sentence downward of one day for the assault charge, and the three-year mandatory enhancement.
Report of Proceedings (June 15, 2005) at 31.
This timely appeal followed.
BRADY VIOLATION
Panet contends that the State, by failing to disclose the recording of the police interview until the eve of trial, violated Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). He also contends the trial court's truncation of Dr. Shaw's opinion testimony was a violation of the fundamental right to establish a defense through witness testimony. See Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). We will assume, without deciding, that the late emergence of Dr. Shaw's full opinion was a tenable basis for the limitation imposed by the trial court. The underlying problem, however, was that Dr. Shaw did not have the opportunity to review the contemporaneous interview tape or transcript until just before his testimony. And this in turn was attributable to the fact that the defense did not receive even the transcript until the Friday before trial.
Brady holds that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. at 87.
Evidence is material if it could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Strickler v. Greene, 527 U.S. 263, 290, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Thus, there are three components of a true Brady violation: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler, 527 U.S. at 281-282. Here, it is undisputed that the tape and transcript were favorable to Panet. The State contends it did not suppress the tape and transcript and that all material evidence "was disclosed and where possible, turned over, prior to trial."
Brief of Respondent at 9.
There is no Brady violation if the defendant could have obtained the information by using reasonable diligence. In re Personal Restraint of Benn, 134 Wn.2d 868, 916, 952 P.2d 116 (1998), citing Williams v. Scott, 35 F.3d 159 (5th Cir. 1994). In Williams, a man pleaded guilty to capital murder for shooting another man to death while robbing a convenience store. During the penalty phase, a jury had to decide whether his conduct was an unreasonable response to provocation. The prosecution gave the defense a summary of an eyewitness statement, but defense counsel did not look at the full written statement. The full statement suggested that the victim may have provoked Williams. The eyewitness did not testify at the punishment hearing, and Williams was sentenced to death. The district court dismissed his petition for a writ of habeas corpus on summary judgment, and the Fifth Circuit affirmed: "Because Appellant could have obtained the exculpatory statement through reasonable diligence, his Brady claim fails." Williams, 35 F.3d at 163.
Well before trial, the State provided Panet with a police report mentioning the recorded interview. The State contends the police report triggered an obligation on the part of the defense to follow up by asking for the full interview and that failure to do so was a lack of reasonable diligence. But whereas counsel for Williams did not actually request the exculpatory evidence at the heart of his Brady claim, here defense counsel specifically asked for "sound tapes". Yet the tape was not provided until after the trial began.
Report of Proceedings (May 16, 2005) at 72.
The State asserts that the tape was not "suppressed" because it was simply mislaid and the failure to disclose was inadvertent. According to Detective James' testimony at the CrR 3.5 hearing on the morning before trial began, he believed the tape recording had been stored electronically on a computer database tape, but in fact it was hand-stored in a case file. As a result of this misunderstanding, the prosecutor did not become aware of the recording until just before trial, when it turned up in the case file during a search for the advice of rights form.
Report of Proceedings (May 16, 2005) at 51-56.
Under Brady the good faith of the prosecution is not the touchstone of whether exculpatory evidence has been suppressed. The individual prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police", and
any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.
Kyles v. Whitley, 514 U.S. 419, 437-438, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Here Panet explicitly requested discovery of sound tapes; yet the sound tape created by the police and kept in police evidence files was not disclosed. This was a suppression as that term is used in Brady.
As to prejudice, the question is whether, in the absence of the evidence, the defendant received a trial resulting in a verdict worthy of confidence. More specifically, the question is whether there is a "reasonable probability" that the result of the trial would have been different had the evidence been disclosed. Strickler, 527 U.S. at 289. It is the defendant's burden to demonstrate that he was prejudiced by the prosecutor's failure to disclose exculpatory evidence. State v. Luvene, 127 Wn.2d 690, 706, 903 P.2d 960 (1995).
The State primarily argues that the excluded testimony was merely cumulative. We disagree. While Dr. Shaw was allowed to express the opinion that Panet was delusional and psychotic on the day in question, he was not permitted to state his ultimate opinion that Panet's delusional state impaired his ability to form the intent necessary to commit an assault. The question was asked and left unanswered in front of the jury. Because what Dr. Shaw had learned from the transcript was off-limits, he could not tell them about how the cherubs and religious imagery showed that Panet was using "almost magical thinking" and he could not testify that the way Panet was acting was "not really goal-directed". Dr. Shaw was unable to testify about the connection between "delusional" and "diminished capacity", and the State was able to point out the absence of this connection on re-cross of Dr. Shaw and in closing argument.
Report of Proceedings (May 19, 2005) at 490.
It is true, as the trial court stated, that the jury could have found the defense of diminished capacity established by making their own forensic application of the information they had learned about Parkinson's disease to the facts as described by the witnesses at the scene. See State v. Atsbeha, 142 Wn.2d 904, 918, 16 P.3d 626 (2001) (diagnosis must be capable of forensic application to help the trier of fact assess the defendant's mental state at the time of the crime). But the task of convincing a jury to make such a finding without an authoritative expert opinion is daunting. When an expert witness is available and prepared to testify that a defendant actually is experiencing diminished capacity, doing without the opinion is like fighting with only one hand.
The State asserts there was nothing new in the tape or transcript beyond the details of the interview contained in Detective James' report that was given to the defense long before trial. The police report is not in our record. However, Detective James testified that his police report concerning the interview was two pages long with a page and a half devoted to summarizing his conversation with Panet during the hour before he began to record the interview. It is not plausible that the remaining half page could have been so detailed as to take the place of a 38-minute taped recording.
Report of Proceedings (May 18, 2005) at 304.
The State further contends that even if the tape and transcript had been timely disclosed and provided to Dr. Shaw, the trial court would have excluded Dr. Shaw's ultimate opinion as unhelpful under ER 702. The record shows, however, that the impetus for the decision to exclude was the court's concern that the State would be prejudiced by a new opinion offered on the last day of trial. The record does not suggest the court thought Dr. Shaw's opinion was unhelpful.
Dr. Shaw could have fully developed his diminished capacity opinion within the time constraints the court deemed acceptable if the State had timely disclosed the tape and transcript. The delay prevented Panet from discovering and introducing an expert opinion that, within reasonable probabilities, would have changed the outcome. We conclude Panet has established all three components of a Brady violation. The conviction must be reversed and the case remanded for a new trial.
We address some of Panet's remaining contentions because they may arise again on retrial.
DEFENSE OF ANOTHER
Panet contends that he could have provided evidence to the jury showing that he acted in lawful defense of Terese when he committed his crimes. He contends the trial court erred by excluding this evidence and declining to instruct the jury on defense of another. The court reasoned that the defense was not available to Panet because he admitted Terese was not present at the house during the incident. Rather, as Panet knew, she was at work. This ruling was correct. The apprehension of danger as perceived by the actor must be reasonable under the circumstances. State v. Penn, 89 Wn.2d 63, 66, 568 P.2d 797 (1977). No force is necessary to protect someone who is in no immediate danger. The trial court did not err in barring evidence and instruction on defense of another.
Report of Proceedings (May 18, 2005) at 311.
SELF DEFENSE
In a self-defense case, evidence of a victim's conduct is admissible to show that an accused reasonably feared the victim. But only those violent acts known to the defendant are relevant to this defense. State v. Birnel, 89 Wn. App. 459, 469, 949 P.2d 433 (1998), overruled on other grounds by In re Pers. Restraint of Reed, 137 Wn. App. 401, 408, 153 P.3d 890 (2007).
To show why he believed Boettner to be dangerous, Panet wanted to present evidence that Boettner had been physically abusive to members of his family. In this vein, he wanted to question Boettner about whether he had ever abused Terese. The court limited such evidence to incidents that Panet was personally aware of or that Terese had told him about while they were living together in Washington. The court concluded that Panet's awareness of earlier incidents reflecting a propensity to violence on the part of Boettner would not be probative enough to overcome the "extremely prejudicial" nature of that evidence. Panet contends this restriction impinged upon his right to present relevant evidence.
Report of Proceedings (May 18, 2005) at 339.
The trial court reasoned that since Panet had lived with Boettner on and off for a year and a half, he had an extended opportunity to form a firsthand opinion about the risk of violence with Boettner. It is unlikely that incidents dredged up from the past could have significantly impacted Panet's beliefs as to Boettner's dangerousness on the day in question. We find no abuse of discretion and no constitutional violation.
LESSER OFFENSE INSTRUCTIONS
Panet contends the court should have instructed the jury on aiming a firearm as a lesser included offense of second degree assault.
A lesser offense is not included within a charged offense unless each of the elements of the lesser offense is a necessary element of the offense charged. This is the legal prong of the analysis set forth in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Analysis of the legal prong "is applied to the offenses as charged and prosecuted, rather than to the offenses as they broadly appear in statute". State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997).
A person is guilty of assault in the second degree if he or she "Assaults another with a deadly weapon" under circumstances not amounting to assault in the first degree. RCW 9A.36.021(1)(c). A person is guilty of aiming a firearm if his or her conduct does not amount to a violation of chapter 9A.36 RCW, and the person "Aims any firearm, whether loaded or not, at or towards any human being". RCW 9.41.230(1)(a).
The crime charged was second degree assault, i.e., assault with a "deadly weapon." A deadly weapon need not be a firearm. Therefore, proof of a firearm was not a necessary element of second degree assault, as charged. In other words, it is possible to commit second degree assault without also having committed aiming a firearm. State v. Southerland, 45 Wn. App. 885, 890-891, 728 P.2d 1079 (1986), rev'd on other grounds, 109 Wn.2d 389, 745 P.2d 33 (1987). The trial court properly refused Panet's proposed instruction on aiming a firearm.
Panet also unsuccessfully proposed an instruction on fourth degree assault as an inferior degree offense of second degree assault. A defendant is entitled to an instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense, (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense, and (3) there is evidence that the defendant committed only the inferior offense. State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998). At issue here is the third, or factual prong.
To meet the factual prong, the evidence must affirmatively establish the defendant's theory that only the inferior offense was committed — "it is not enough that the jury might disbelieve the evidence pointing to guilt." The appellate court must view the evidence in the light most favorable to the party who requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000).
A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another. RCW 9A.36.040(1). The State contends that Panet, if guilty of assault at all, had to be guilty of second degree assault because it is undisputed that he had a "deadly weapon," the distinguishing feature of second degree assault as charged. The court defined "Deadly weapon" for the jury:
Deadly weapon means any firearm, whether loaded or unloaded, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily injury.[]
Clerk's Papers at 111 (Instruction 12).
Panet contends a rational jury could have found the evidence insufficient to show that the firearm was "readily capable" of causing death or injury because there was no evidence it was operable.
The officer who impounded the three shotguns from the house testified that each of them appeared to be "readily usable as a firearm." Boettner testified that his shotguns were "in operable condition" at the time of the incident. He said that he had used the guns while bird hunting in 2002 or 2001. There was no affirmative evidence of non-operability either in the State's case or in the defense case.
Report of Proceedings (May 17, 2005) at 117.
Report of Proceedings (May 17, 2005) at 144.
The trial court properly concluded that no lesser included or inferior degree instruction was appropriate.
HARASSMENT INSTRUCTION
Panet contends the instruction on harassment relieved the State of its burden to prove the harassment charge. The harassment charge was based on Panet's statement to Boettner that he would shoot the engine of the car if he did not leave. Because this issue is raised for the first time on appeal, we decline to address it.
FIREARM ENHANCEMENT
Panet finally contends that the three-year firearm sentencing enhancement must be vacated for instructional error. Because this argument also is raised for the first time on appeal, we decline to address it as well. Reversed. Remanded for a new trial.