Opinion
No. 30860-6-II
Filed: December 28, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 03-1-00686-8. Judgment or order under review. Date filed: 08/01/2003. Judge signing: Hon. Kathryn J Nelson.
Counsel for Appellant(s), Linda J. King, Attorney at Law, 9 St Helens Ave, Tacoma, WA 98402-2600.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Sarah Quinlan appeals her second degree assault conviction. She argues that (1) the trial court's first-aggressor instruction misstated the relevant legal standard for self-defense; and (2) her trial counsel was ineffective in failing to object to this instruction and in failing to propose a 'no duty to retreat' instruction. We affirm.
FACTS I. Assault
Amy Rodriguez and Dominick Carter were asleep in Carter's home when they awoke to the clanking sound of glass. Carter went downstairs to the front door, heard someone shouting profanities, and saw Sarah Quinlan walking up onto the porch, making a fist to pound on the door, and shouting, 'I want my stuff.' Report of Proceedings (RP) at 75. Before Quinlan knocked, Carter opened the door and said, 'Sarah, you need to leave. You don't need to be around. This is a bad situation.' RP at 166.
Carter and Quinlan had used each other's vehicle a few nights earlier, and Quinlan had forgotten her CDs in Carter's truck.
Carter closed the door as Rodriguez approached. Rodriguez noted that Carter had a guilty look on his face and demanded to know why Quinlan was there and why she was so upset. Rodriguez opened the door and asked Quinlan why she was there. Quinlan said, 'Oh, you must be Amy.' Rodriguez responded, 'Yeah. How do you know my name?' RP at 76. Carter pulled Rodriguez aside, shut the door, and said, 'Amy, she's crazy. She's crazy.' RP at 77.
The two women had never met, and Rodriguez was unaware that Quinlan and Carter were intimately involved.
Rodriguez opened the door a second time and said, 'So you're the one that put the note on my car.' Quinlan responded, 'Yeah, and I just put another note on your car.' RP at 78. Meanwhile, Carter's roommate told him that Quinlan had a bottle in her hand and he should get Rodriguez back in the house. Carter pulled Rodriguez back into the house, shut the door, and said to Quinlan, 'Sarah, you need to really leave or I'm going to have to call the police.' RP at 168-69.
Three months earlier, Quinlan had apparently left a note on Rodriguez's car containing sexual references to Carter. When Rodriguez confronted Carter about the note, he explained that he had dated someone named 'Sarah,' who may have been responsible for the note.
Looking through the front door peephole, Carter could see Quinlan had a bottle in her hand. Rodriguez did not see Quinlan holding the bottle, nor did Carter or his roommate warn Rodriguez.
Rodriguez collected her things, left by the back door, and found a note on her car, which read: 'I've been seeing Dominick for six months. He was just at my house on Wednesday.' RP at 79. According to Rodriguez, (1) she went to the front of the house and approached Quinlan on the stairs to the front porch to ask about the note; (2) as Rodriguez went up the front steps, Quinlan started down, at which point Rodriguez became aware for the first time that Quinlan was holding a bottle in her hand; (3) Rodriguez asked Quinlan, 'What's that for? Are you going to hit me?'; (4) Quinlan responded, 'Yeah, I'm going to hit you.' RP at 84; (5) the next thing Rodriguez knew, she was 'hit in the head with something very hard.' RP at 84; (6) Rodriguez grabbed Quinlan and the two women fell to the ground, with Quinlan landing on her back and Rodriguez partially on top of her; (7) Rodriguez was bleeding and asked, 'Sarah, why am I bleeding?'; (8) Quinlan responded, 'Because I hit you, bitch,' and got into her car, RP at 86; (9) Rodriguez returned inside the house and Carter offered to take her to the hospital; (10) Carter and Rodriguez left the house and got into Carter's truck; (11) Quinlan attempted to block Carter's truck from leaving, forcing Carter to drive across his lawn.
According to Quinlan, (1) she grabbed the bottle when Rodriguez came at her on the stairs to the front porch; (2) Rodriguez 'grabbed me by the neck, started pulling my hair, punching me,' RP at 334; (3) Rodriguez had dragged her (Quinlan) by her hair down the stairs and onto the grass when she (Quinlan) struck Rodriguez with the bottle in self-defense, RP at 334-35; (4) Rodriguez was on top of her (Quinlan) and stripped of her mobile phone when she attempted to call 911; (5) Carter arrived and pulled Rodriguez off her (Quinlan); and (6) Quinlan ran to her car and locked herself inside. Quinlan denied having blocked Carter's truck or responding when Rodriguez asked, 'Why am I bleeding?' RP at 336.
According to Carter, (1) he did not see the altercation; (2) he came out of the house to find Rodriguez on top of Quinlan and bleeding from her head; (3) he grabbed Rodriguez, and they went back into the house to retrieve his car keys to take Rodriguez to the hospital; (4) they left the house and got into his truck; and (5) Quinlan blocked the driveway with her car, forcing him to drive across his lawn.
Rodriguez required seven stitches to close a laceration above her left eye.
II. Trial Procedure
The State charged Quinlan with second degree assault by inflicting substantial bodily injury on Rodriguez, contrary to RCW 9A.36.021(1)(a). Quinlan asserted self defense.
At trial, Rodriguez and Quinlan gave conflicting versions of the fight. Quinlan's friend, Jean Calloway, testified: (1) she had been on a mobile phone talking with Quinlan; (2) heard Quinlan exclaim, 'Oh, she's attacking me. She's attacking me'; and (3) heard another woman say, 'I'm going to kick your [ass],' after which the phone went dead. RP at 269.
The State proposed a self-defense instruction based on 11 Washington Pattern Jury Instructions: Criminal sec. 17.02, at 196 (2d ed. 1994) (WPIC) and a first aggressor instruction taken verbatim from WPIC 16.04. Quinlan's trial counsel neither objected to the State's proposed instructions nor proposed alternative instructions, such as a 'no duty to retreat' instruction.
The trial court instructed the jury on self-defense based on the State's proposal as follows:
It is a defense to a charge of assault that the force used was lawful as defined in this instruction.
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that she is about to be injured and when the force is not more than is necessary.
The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time.
The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
Instruction No. 10, CP at 37.
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 force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
Instruction No. 11, CP at 38.
During closing, the State argued:
[I]f you find, as that instruction says, that somehow you believe that maybe it could have been self-defense, but on the other hand, you find that Sarah is the one who initiated the problem, she does not get self-defense. You cannot go and provoke somebody into a situation where, when they defend themselves, you can now say self-defense and hit them when you're the belligerent. You're the one who caused the situation wherein you later have to claim self-defense because they attacked you.
RP at 426-27.
The jury convicted Quinlan of second degree assault. Quinlan appeals.
ANALYSIS I. Jury Instructions
Quinlan argues that the trial court erred when it gave a first-aggressor instruction based on WPIC 16.04 because it misstated the law and precluded the jury's consideration of her self-defense claim. She contends that, combined with the State's closing argument, the first-aggressor instruction likely misled the jury to believe that she became a 'first aggressor' when she spoke aggressively to Carter, placed a note on Rodriguez's car, and/or actually assaulted Rodriguez. Quinlan further argues that, absent this instruction, the jury likely would have acquitted her of assault. We disagree.
A. Standard of Review
We review jury instructions to determine whether they (1) permit each party to argue her theory of the case, (2) properly state the applicable law, and (3) do not mislead jury. State v. Wingate, Wn. App., 98 P.3d 111, 114 (2004); State v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990); State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). Self-defense instructions, when 'read as a whole, must make the relevant legal standard manifestly apparent to the average juror.' State v. Harris, 122 Wn. App. 547, 554, 90 P.3d 1133 (2004), (quoting State v. Irons, 101 Wn. App. 544, 550, 4 P.3d 174 (2000)); see also State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995) (challenged jury instructions are reviewed de novo and evaluated in context of the instructions as a whole).
'A jury instruction that misstates the law of self-defense is constitutional error and presumed to be prejudicial.' Harris, 122 Wn. App. at 553, (citing State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996)). Thus, we may review this claimed error, even though Quinlan did not object to the instructions at trial. RAP 2.5(a).
Self-defense instructions misstating the law are manifest constitutional error in that they shift the burden of proof to a criminal defendant and implicate a defendant's rights of due process. See State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983); see also State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002) ('An instruction that relieves the State of its burden to prove every element of a crime requires automatic reversal.').
B. Self-Defense
To establish self-defense, defendant must produce some evidence of her subjective, reasonable apprehension of imminent harm from the victim. State v. Janes, 121 Wn.2d 220, 238-39, 850 P.2d 495 (1993). The defendant need not show actual danger; rather, it is sufficient that she reasonably believed that she, or another, was in danger of imminent harm. Le Faber, 128 Wn.2d at 899. To determine whether the defendant acted in self-defense, the jury should evaluate all the facts and circumstances from the perspective of a reasonably prudent person standing in the shoes of the defendant. Janes, 121 Wn.2d at 238-39.
C. 'First-Aggressor'
Nonetheless, if the defendant provokes an attack that necessitates her use of force in self defense, she is not entitled to the right of self-defense. Credible evidence of a defendant's provoking act is appropriate grounds for a first-aggressor instruction. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). Such is the case here.
A first-aggressor instruction may also be proper when the record shows the defendant was intentionally involved in wrongful or unlawful conduct before the charged assault occurred, which a 'jury could reasonably assume would provoke a belligerent response by the victim.' State v. Arthur, 42 Wn. App. 120, 124, 708 P.2d 1230 (1985). A court may properly give a first-aggressor instruction even when there is conflicting evidence as to whether the defendant's conduct precipitated a fight. State v. Davis, 119 Wn.2d 657, 665-66, 835 P.2d 1039 (1992). As the reviewing court, we give deference to 'the trier of fact who resolves conflicting testimony, evaluates the credibility of witnesses and generally weighs the persuasiveness of the evidence.' State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
In State v. Heath, 35 Wn. App. 269, 666 P.2d 922, review denied, 100 Wn.2d 1031 (1983,) a first-aggressor instruction was deemed proper when there was conflicting evidence about whether defendant's prior threatening act or victim's blows provoked the fight in question.
A first aggressor instruction is not appropriate, however, when (1) the defendant's provoking 'act' is merely belligerent language; (2) the defendant's only threatening act towards the victim is the assault itself; and (3) the defendant acts unlawfully and/or belligerently towards a third party, but does not reasonably provoke the victim.
'[W]ords alone do not constitute sufficient provocation.' Riley, 137 Wn.2d at 911.
In State v. Brower, 43 Wn. App. 893, 902, 721 P.2d 12 (1986), the court held a first-aggressor instruction inappropriate where the defendant's only 'act' toward the victim occurred when he brandished a previously concealed firearm after the victim approached him.
In State v. Wasson, 54 Wn. App. 156, 159-60, 772 P.2d 1039, review denied, 113 Wn.2d 1014 (1989), the court held a first-aggressor instruction improper because evidence of defendant's unlawful breach of the peace and/or belligerent acts towards a third party were insufficient provocation of the victim where defendant did not act directly to provoke an assault from the victim.
The evidence here supports the trial court's giving a first aggressor instruction. Although Rodriguez and Quinlan presented conflicting accounts, a reasonable trier of fact could determine that the succession of events occurred as follows: (1) Quinlan was a trespasser on Carter's front porch after refusing his multiple requests that she leave; (2) Rodriguez was unarmed as she approached Quinlan on the stairs to the porch; (3) Quinlan armed herself with a bottle and threatened to hit Rodriguez with it (4) Rodriguez responded by pulling Quinlan's hair; then (5) Quinlan hit Rodriguez with the bottle, severely lacerating her face.
A person 'enters or remains unlawfully' in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain. RCW 9A.52.010(3). The right to exclude others is an essential stick in the bundle of property rights. See Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L. Ed. 2d 332 (1979).
Under Davis, Quinlan's threat to hit Rodriguez with the bottle, coupled with the apparent ability and intent to carry out the threat, was sufficient provocation to warrant the giving of a first-aggressor instruction. And the trial court did not err in giving it.
II. Ineffective Assistance of Counsel
Quinlan argues in the alternative that her trial counsel was ineffective in failing to object to the first-aggressor instruction and failing to propose a 'no duty to retreat' instruction. We disagree.
A. Standard of Review
'There is a strong presumption that counsel's representation was effective.' State v. Oseguer Acevedo, 137 Wn.2d 179, 199, 970 P.2d 299 (1999); see also Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct 2052, 80 L. Ed. 2d 674 (1984). The defendant bears the burden of proving that counsel's performance had no strategic or tactical rationale. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
'Counsel is ineffective if his representation falls below an objective standard of reasonableness.' Harris, 122 Wn. App. at 552, citing State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). To establish that counsel was ineffective, Quinlan must show (1) counsel's performance was deficient, and (2) the deficient performance prejudiced him. Strickland, 466 U.S. at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Prejudice results if it is reasonably probable that but for the deficient performance, the jury could have found an alternative outcome. In re Pers. Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Quinlan fails to satisfy both prongs of her burden to prove ineffective assistance of counsel.
A. Deficient Performance 1. First-aggressor instruction
Quinlan's counsel was not deficient in failing to object to the first-aggressor instruction. This instruction accurately stated the law, mirrored WPIC 16.04, and was warranted by the facts.
Quinlan hotly approached Carter's home, where Rodriguez was spending the night. When Carter twice asked her to leave, she refused, remained on his front porch, picked up a glass bottle, and persisted in her demands. When Rodriguez approached on the front steps, Quinlan threatened to hit her with the bottle and then carried out her threat, lacerating Rodriguez's face. Even if the jury believed that Rodriguez pulled Quinlan's hair before Quinlan hit her with the bottle, if the also jury believed Rodriguez's and Carter's versions of the facts, at no time did Rodriguez similarly display or threaten Quinlan with a weapon or serious bodily harm.
The facts support a finding that Quinlan was the first aggressor. Therefore, if the jury believed Rodriguez's and Carter's versions of the facts, Quinlan was not entitled to act in self-defense to a fight that she provoked. Giving the instruction was not error and failing to object was not deficient representation.
2. Duty to retreat
Nor was counsel's performance deficient in failing to propose a 'no duty to retreat' instruction, to which Quinlan was not entitled under the facts here. Quinlan contends that without a 'no duty to retreat' instruction, the jury might have concluded that, although she was acting in self-defense, she should have fled rather than hit Rodriguez with a bottle.
There is no duty to retreat when a person is assaulted in a place where she 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 to this effect when sufficient evidence supports it. State v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984). Thus, if the facts could lead a reasonable jury to conclude that the defendant could reasonably have fled instead of using force, the trial court should give the jury a 'no duty to retreat' instruction. State v. Williams, 81 Wn. App. 738, 744, 916 P.2d 445 (1996), review denied, 140 Wn.2d 1001 (2000). The facts here, however, did not warrant such an instruction.
Quinlan was trespassing on Carter's premises before the fight began. Carter twice asked Quinlan to leave his home, and he threatened to call police. But Quinlan refused to leave and instead, remained on his front porch, knocking at his door, and demanding explanations.
From this evidence, a rational trier of fact could have found beyond a reasonable doubt that Quinlan knowingly entered and remained unlawfully upon Carter's property; thus, she was a trespasser, with no right to be on Carter's front porch. See City of Sunnyside v. Lopez, 50 Wn. App. 786, 795, n. 7, 751 P.2d 313, review denied, 110 Wn.2d 1034 (1988).
Furthermore, according to Rodriguez and Carter, even after the fight ended, Quinlan still did not leave Carter's property. Instead, Quinlan continued to aggress by blocking Carter's truck as he tried to drive Rodriguez to the hospital for medical attention to the bleeding facial wounds Quinlan had inflicted with the glass bottle.
Thus, even if defense counsel had proposed a 'no duty to retreat' instruction, the law would have required the trial court to reject it. Accordingly, counsel's failure to request a 'no duty to retreat' instruction was not ineffective assistance of counsel.
B. Prejudice
Nor has Quinlan established the prejudice prong of ineffective assistance of counsel. The first-aggressor instruction did not prevent her from arguing her claim of self defense if the jury believed her testimony that Rodriguez started the fight by pulling her (Quinlan's) hair. And, as we note above in our discussion of the performance prong, because the facts did not warrant giving a 'no duty to retreat' instruction, Quinlan cannot show prejudice from the absence of such 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.
MORGAN, A.C.J., and ARMSTRONG, J., Concur.