State v. Walden , 131 Wash. 2d 469 ( 1997 )

Talmadge, J.

(dissenting) — Washington’s case law describing self-defense in both objective and subjective terms is not a picture of clarity. With this decision, the majority compounds the confusion for it condones the use of deadly force by a person not in any imminent reasonable fear for his life or of great bodily harm and, indeed, was likely the aggressor in the incident. For these reasons, I respectfully dissent.

Washington case law has established a standard for self-defense that is both objective and subjective in. nature. The jury must stand in the shoes of the defendant and consider all of the circumstances known to that defendant. In using such information, however, the jury must determine what a reasonably prudent person in a similar situation would have done. State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495, 22 A.L.R.5th 921 (1993). See also State v. LeFaber, 128 Wn.2d 896, 899-900, 913 P.2d 369 (1996); State v. Painter, 27 Wn. App. 708, 711-12, 620 P.2d 1001 (1980), review denied, 95 Wn.2d 1008 (1981). Thus, a self-defense instruction is not always required if the defendant suffered from the delusion that he or she was in peril of life or limb. See State v. Bell, 60 Wn. App. 561, 566-67, 805 P.2d 815 (a good faith belief that deadly force is necessary is not in itself sufficient to support a self-defense instruction; such belief must be reasonable from an objective standpoint), review denied, 116 Wn.2d 1030, 813 P.2d 582 (1991).

The trial court here gave instructions 12 through 17 regarding self-defense, which all concede were correct. In particular, in instruction 12, the trial court advised the jury of the elements of self-defense as follows:

It is a defense to the charge of assault in the second degree that the force used or offered to be used was lawful as defined in this instruction.

The use of or the offer to use force upon or toward the person of another is lawful when used or offered by a person who reasonably believes that he is about to be injured, and when the force is not more than is necessary.

The person using or offering to use 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 of and prior to the incident.

The State has the burden of proving beyond a reasonable doubt that the force used or offered to be used by the defendant was not lawful.

Clerk’s Papers at 31. Instruction 18 advised the jury:

One .has the right to use force only to the extent of what appears to be the apparent imminent danger at the time. However, when there is no reasonable ground for the person attacked or apparently under attack to believe that his person is in imminent danger of death or great bodily harm, and it appears to him that only an ordinary battery is all that is intended, he has no right to repel a threatened assault by the use of a deadly weapon in a deadly manner.

Great bodily injury as used in this instruction means injury of a grave or more serious nature than an ordinary battery with a fist or pounding with the hand; it is an injury of such nature as to produce severe pain, suffering and injury.

Clerk’s Papers at 37. Defendant Walden complains that instruction 18 is too proscriptive as to when a defendant may perceive he or she is in imminent peril of death or great bodily injury.

The majority acknowledges that instruction 18 is based on a long series of cases, the most recent, State v. Foster, 91 Wn.2d 466, 481, 589 P.2d 789 (1979). See also State v. Bezemer, 169 Wash. 559, 576-77, 14 P.2d 460 (1932); State v. Churchill, 52 Wash. 210, 223-24, 100 P. 309 (1909). The majority, however, does not choose to overrule these cases. The majority does cite to State v. Painter, and State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977), for the view that the second paragraph of instruction 18 is erroneous. Majority op. at 477-79. Both Painter and Wan-row, however, are readily distinguishable. In Painter, the defendant, a frail, forty-six-year-old woman plagued by physical infirmities necessitating the use of a crutch, shot and killed a larger, stronger, but unarmed man who had abused and threatened her on earlier occasions. See Painter, 27 Wn. App. at 709-10. Similarly, in Wanrow, a slight woman handicapped by a broken leg and requiring the use of a crutch shot a larger man whom she believed had a history of assaults and whom she perceived as imminently threatening. Wanrow, 88 Wn.2d at 226. Painter and Wanrow represent appropriate exceptions to the general rule governing self-defense expressed in Foster and earlier cases. See Foster, 91 Wn.2d at 479-82 (upholding instructions quoted at 91 Wn.2d 479 n.4).

In the present case, John Walden was a 23-year-old hay bailer, admittedly strong from his arduous physical labor, who had a history of minor confrontations with the teenagers who were involved in this case. Fisticuffs had taken place between Walden and the teenagers previously, but no deadly force had been involved. Walden, after drinking several beers, became involved in this altercation with the teens. The teenagers were, in fact, unarmed. Unlike Wan-row or Painter, Walden was in no imminent danger of great bodily harm and he was not a frail or slight person or a victim of prior repeated abuse. Rather, he was a strong young man who was alcohol-affected and was reported to be the aggressor in the altercation. ⁵ Walden never explicitly testified that he feared imminent death or great personal injury which would produce severe pain and suffering for him.⁶ Therefore, Walden was not entitled to use of deadly force.⁷

We should again recite the unambiguous rule that deadly force may not be used to repel an unarmed assailant in the absence of a threat of death or great personal injury. See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 5.7(b) at 456 (1986); Royce A. Ferguson & Seth Aaron Fine, 13A Washington Practice, Criminal Law § 2604 at 351 (1990); State v. Griffith, 91 Wn.2d 572, 577, 589 P.2d 799 (1979) (simple assault or ordinary battery does not justify taking a human life).

The most troublesome aspect of this case, however, is the fact that it is undisputed Walden pulled the knife on his teenaged assailants before any blows had been struck and he was not in any peril of death or great bodily harm. Trial courts are not obliged to give self-defense instructions to aggressors in altercations. Indeed, self-defense is not available to an aggressor. See Brooks, 172 Wash. at 222 (wounding case); State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973) (homicide case); State v. Wilson, 26 Wn.2d 468, 480, 174 P.2d 553 (1946) (homicide case).

The trial court here gave instruction 14, an aggressor instruction. It was appropriate where Walden’s testimony conflicted with that of other witnesses regarding who initiated the altercation. Cf. Report of Proceedings at 84, 94, 106-10, 125-30, 153, 198, and 260-61. See WPIC 16.04; see also State v. Davis, 119 Wn.2d 657, 665-66, 835 P.2d 1039 (1992) (aggressor instruction is properly submitted where there is conflicting evidence regarding who provoked the assault); State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (aggressor instruction is not favored, but may be given when there is evidence that the defendant provoked the need to act in self-defense), review denied, 115 Wn.2d 1010, 797 P.2d 511 (1990). This may have influenced the jury’s verdict to convict.

Finally, the mere possibility that the second paragraph of instruction 18 "could” be misconstrued by some jurors (see Majority op. 477) does not amount to a misstatement of the law of self-defense. Since we have approved the same language in Foster, Bezemer, and Churchill (and the majority has not overruled these cases), it is difficult to discern how the giving of this instruction in light of the ample and correct instructions on self-defense contained in instructions 12 through 17 to the jury could constitute harmful error. See LeFaber, 128 Wn.2d at 900 (noting "[j]ury instructions must more than adequately convey the law of self-defense,” but also explaining, "[t]he instructions, read as a whole, must make the relevant legal standard 'manifestly apparent to the average juror’ ”) (emphasis added).

This Court can provide a great service to the bench, and public by carefully delineating the elements of self-defense in Washington. I fear the tone of the majority opinion here only contributes to the already existing confusion about the self-defense rule in Washington and may lead people to conclude that deadly force may be used in interpersonal altercations when any reasonable person would know there was no imminent peril of death or great bodily injury. The majority’s position effectively emphasizes a defendant’s subjective perception of the confrontation to the detriment of the objective inquiry — the perception of the reasonably prudent person, the other half of the self-defense analysis. Both are necessary for a valid appraisal of a self-defense assertion. See Janes, 121 Wn.2d at 239-40 (the objective portion of the self-defense inquiry provides a crucial external standard and keeps self-defense firmly rooted in the narrow concept of necessity). If the extent of the threat perceived by a reasonable person, standing in the shoes of the defendant, is no more than an ordinary battery, use of deadly force or weapons should not be condoned.

I would affirm the Court of Appeals and affirm the trial court conviction of John Walden for the two counts of assault in the second degree.

5 See also State v. Brooks, 172 Wash. 221, 222, 19 P.2d 924 (1933), in which the defendant, who wounded with a knife an unarmed man whom defendant alleged was the aggressor, claimed self-defense. The court held "[t]he doctrine of self-defense cannot ordinarily be successfully invoked when a deadly weapon is used to repel a simple assault. Unless there is great disparity in the physical strength or condition of the combatants, the one who uses such weapon himself becomes the aggressor.”

6 Walden testified he went to the arcade to play a few video games. Report of Proceedings at 259. He felt threatened and scared when, on a crowded sidewalk in front of the arcade, he perceived a gang (four teenagers) approaching him to beat him up. Report of Proceedings at 259, 262-63.

7 See Brooks, 172 Wash. at 222; see also State v. Pearson, 288 N.C. 34, 43-44, 215 S.E.2d 598 (1975) (defendant who was attacked in parking lot by three men who did not assault him with deadly force was not privileged to use deadly force to repel the attack unless, due to great disparity in strength, size and numbers between him and assailants, he believed, and had reasonable basis for such belief, that he would be subjected to death or great bodily harm if he did not defend himself with deadly force). Cf. Allen v. United States, 157 U.S. 675, 679, 15 S. Ct. 720, 39 L. Ed. 854 (1895), in which the Court indicated the use of deadly force in self-defense may be justified where defendant is attacked by multiple assailants brandishing sticks who had previously threatened to kill defendant. Walden’s case is distinguishable.