Opinion
No. 23853-9-III.
Filed: April 13, 2006.
Appeal from Superior Court of Spokane County. Docket No: 04-1-01977-1. Judgment or order under review. Date filed: 02/18/2005. Judge signing: Hon. Jerome J. Leveque.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
UNPUBLISHED OPINION
The State charged Brad Plumb with third degree assault after he grappled with a police officer trying to arrest him. A person cannot use physical force to resist an arrest, even an unlawful arrest, that threatens only the loss of liberty. Mr. Plumb wanted the trial court to instruct the jury that he could properly use force to resist an unlawful arrest. But that is not the law and the trial court properly rejected the offer. We also find no abuse of discretion in the trial judge's decision to allow rebuttal testimony. Finally, we cannot say that the performance of Mr. Plumb's lawyer here was ineffective. We therefore affirm Mr. Plumb's conviction for third degree assault.
FACTS
A U.S. Bank branch is located in a supermarket in Liberty Lake, Washington. The manager dialed 911 and reported a disturbance. Liberty Lake Police Sergeant Raymond Bourgeois responded and followed the sounds of raised voices to where a crowd had gathered around a teller station. There, Sergeant Bourgeois found Brad Alan Plumb. Mr. Plumb was agitated. He told Sergeant Bourgeois that the bank was stealing his money and he wished to file a report. Mr. Plumb had a tape recorder and was recording. Sergeant Bourgeois asked him to turn it off. Mr. Plumb refused. Sergeant Bourgeois left the area to talk to the bank manager.
Mr. Plumb had come to the bank with his wife to complain about a $29 overdraft charge. The manager refused to refund the charge. And Mr. Plumb accused the bank of stealing his money. The manager then closed Mr. Plumb's account and tendered a check for the balance minus $29. The manager asked Mr. Plumb to leave. Mr. Plumb refused. And he began disrupting bank business. He told other customers not to do business with the bank.
Sergeant Bourgeois returned to Mr. Plumb and told him repeatedly to leave and offered to talk with him outside. Mr. Plumb refused and insisted that the bank was stealing his money. Sergeant Bourgeois warned Mr. Plumb he would arrest him if he did not leave. Still Mr. Plumb refused. Sergeant Bourgeois then told Mr. Plumb he was under arrest. He took Mr. Plumb by the wrist and arm in an 'escort position' and began walking him out of the store. Mr. Plumb threw his free elbow behind him, trying to hit the officer. Sergeant Bourgeois shoved Mr. Plumb. Mr. Plumb fell over a copy machine and went down face forward. Sergeant Bourgeois came down with him. He put a knee on the back of Mr. Plumb's neck and tried to handcuff him. Mr. Plumb was yelling and the officer eased up a little. Mr. Plumb then rolled onto his back and struck Sergeant Bourgeois twice in the face with his fist, damaging the officer's glasses. Eventually, Sergeant Bourgeois got Mr. Plumb outside, in handcuffs, and into the patrol car. Mr. Plumb's wife testified that Sergeant Bourgeois picked her husband up off the copier and threw him to the ground, then kicked him in the head, and slapped him in the face. She said Sergeant Bourgeois then hauled back and kicked Mr. Plumb 'like you kick a football.' Report of Proceedings at 194. She said Mr. Plumb never swung at Sergeant Bourgeois. This testimony surprised the prosecutor. After the defense rested its case, the judge allowed the State to recall Sergeant Bourgeois to the stand to rebut the surprise allegation that Sergeant Bourgeois kicked the defendant in the head and slapped him.
The court instructed the jury that third degree assault means assaulting an officer who is performing his official duties. The court also gave the 'lawful force defense' instruction that a person may resist an arrest if he is in 'actual and imminent' danger of serious injury and to the extent a reasonably prudent person would use. Clerk's Papers (CP) at 18. The court also instructed the jury on lawful force in general — that 'a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked' can stand his ground and defend with reasonable force. CP at 19.
The court rejected Mr. Plumb's proposed instruction that a citizen may use reasonable force to resist an unlawful arrest or physical force used by a police officer in the absence of arrest. An accompanying instruction defining lawful arrest was also rejected.
The jury returned a verdict of guilty.
DISCUSSION Physical Force to Resist Arrest
Mr. Plumb assigns error to the court's refusal to instruct the jury that it is lawful for a citizen to use physical force to resist an unlawful arrest. He acknowledges the settled Washington law that citizens may not use physical force to resist an arrest unless threatened with imminent serious injury or death. But, he contends, this rule applies only to lawful arrests.
We review a challenge to the jury instructions de novo. State v. Winings, 126 Wn. App. 75, 86, 107 P.3d 141 (2005). Instructions are sufficient if they are based on substantial evidence, correctly state the law, and allow each side to present its theory of the case. State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988); State v. Hansen, 46 Wn. App. 292, 299, 730 P.2d 706, 737 P.2d 670 (1986). When read as a whole, the instructions must properly inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). There is no right to an instruction that misstates the law. State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994). The instructions here were correct and sufficient. Mr. Plumb's argument was settled in State v. Valentine. Even when a citizen believes his arrest is unlawful, he or she may not resist with physical force. The law requires the person to submit and to seek recourse through the courts if an arrest is wrongful. Orderly law enforcement requires citizens to comply with officers doing their duty. The sole exception is if the citizen faces danger of serious injury that is 'actual and imminent,' not merely hypothetical. State v. Valentine, 132 Wn.2d 1, 21, 935 P.2d 1294 (1997); State v. Bradley, 141 Wn.2d 731, 737, 10 P.3d 358 (2000). When the only harm threatened is the loss of freedom, the person must 'go quietly' and sort it out with the court later. Valentine, 132 Wn.2d at 21. The instructions the court gave here were a correct statement of the law.
State v. Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997).
The State argued that Mr. Plumb was not entitled to the instruction because Mr. Plumb consistently denied striking the officer. We reject the State's contention — unsupported by citation to authority — that an instruction in a criminal case cannot be based solely on the State's evidence. If no authority is cited, we may presume that counsel, 'after diligent search, has found none.' Roberts v. Atl. Richfield Co., 88 Wn.2d 887, 895, 568 P.2d 764 (1977). We also found no support for the view that a defendant must admit to disputed incriminating facts in order to have the jury instructed on the applicable law. A party is entitled to an instruction based on all the evidence, not just that party's own evidence. See State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). Because there is no right to resist an unlawful arrest, the court properly declined to instruct the jury as to the definition of lawful arrest. Mr. Plumb offered no evidence that he faced any real threat of imminent serious injury or death. The fracas here followed his refusal to follow the officer's reasonable nonviolent commands, not attempts by the officer to injure Mr. Plumb in the course of arresting him.
Rebuttal Testimony
Mr. Plumb next assigns error to the court's allowing Sergeant Bourgeois back on the stand to rebut Ms. Plumb's testimony.
A series of witnesses testified to more or less the same account of the incident. Ms. Plumb then testified that Sergeant Bourgeois had brutally kicked her husband in the head and slapped him in the face. In response, the prosecutor recalled Sergeant Bourgeois and asked three questions: whether he kicked, slapped, or punched the defendant. The court correctly allowed this rebuttal.
Mr. Plumb contends his wife's evidence was neither new nor unexpected. He argues that the State is not entitled to rebuttal every time the defense contradicts the State's case. And Sergeant Bourgeois had the opportunity during the State's case in chief to testify that he did not kick or punch Mr. Plumb in the head.
We review the trial judge's rulings on the admission of evidence for abuse of discretion. State v. Cochran, 102 Wn. App. 480, 486, 8 P.3d 313 (2000); State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). The court abuses its discretion if its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. Cochran, 102 Wn. App. at 486; State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The court may permit rebuttal evidence to enable the plaintiff to answer new material presented by the defense. State v. Swan, 114 Wn.2d 613, 652, 790 P.2d 610 (1990). Rebuttal may not simply repeat evidence from the case in chief or be used for dramatic effect by withholding evidence that could have been presented earlier. Id.
Here, Ms. Plumb's testimony blindsided the prosecution. This is precisely the situation in which rebuttal is allowed.
ADDITIONAL GROUNDS FOR REVIEW
Mr. Plumb found his lawyer's performance defective in several respects. Counsel did not know how to operate the video player. He played a video and an audio tape for the jury but failed to mark them as exhibits. He lost the 911 tape. The store lost one of the clips because counsel delayed subpoenaing store videos. Counsel vacationed in Europe during the three weeks before trial.
Effective assistance of counsel is guaranteed by both the federal and state constitutions. U.S. Const. amend. VI; Wash Const. art. I, sec. 22. The defendant must demonstrate both deficient performance and prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Questionable trial strategy and tactics do not count. Id. Counsel's errors must be serious enough to cast doubt on the reliability of the verdict. Id. at 78 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). If either part of this test is not met, the claim fails. In re Pers. Restraint of Woods, 154 Wn.2d 400, 421, 114 P.3d 607 (2005).
Mr. Plumb does not meet the threshold here.
The video did not show the assault. It was illustrative evidence, showing the location from various angles. And the trial court accordingly has wide latitude to decide whether illustrative evidence is admitted and sent back with the jury. Woods, 154 Wn.2d at 426; State v. Lord, 117 Wn.2d 829, 855, 822 P.2d 177 (1991). Exhibits used solely for illustrative purposes generally do not go to the jury room. Lord, 117 Wn.2d at 856. The record shows the audio tape was admitted. Mr. Plumb does not suggest how a repeat viewing of the video would have affected the outcome.
Several related effectiveness challenges are outside the record and not subject to review on direct appeal. RAP 16.4(c)(3); State v. Warnick, 121 Wn. App. 737, 746, 90 P.3d 1105 (2004).
Mr. Plumb also contends his counsel was ineffective for not requesting a 'missing witness' instruction. The court may give this instruction if a party fails to produce a witness who is solely within its control and if 'as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness.' WPIC 5.20; State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). Absent an explanation, the jury may infer that the testimony would be unfavorable. The inference only arises, however, when production of the witness is exclusively within the party's power, and the testimony concerns a matter of importance and would not be merely cumulative. Cheatam, 150 Wn.2d at 652-53.
11 Washington Pattern Jury Instructions: Criminal (2d ed. 1994).
Here, Mr. Plumb contends the State did not call two witnesses who would have testified that he did not assault the officer. It would not appear naturally in the interest of the State to produce these people, however. Nor were they peculiarly available to the State.
We presume defense counsel had sound reasons for not calling these witnesses. Generally, a decision to call or not to call a witness is a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. Warnick, 121 Wn. App. at 746 (citing State v. Thomas, 109 Wn.2d 222, 230, 743 P.2d 816 (1987)).
We affirm the judgment of the court.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and THOMPSON, J. PRO TEM., Concur.