State v. Acosta

• Decision Date: 24 May 1984
• Docket Number: No. 49621-8,49621-8
• Parties: The STATE of Washington, Respondent, v. David Velasquez ACOSTA, a/k/a Richard Velasquez Evangelista, Petitioner.
• Court: Washington Supreme Court

Page 612

101 Wn.2d 612

683 P.2d 1069

The STATE of Washington, Respondent, v. David Velasquez ACOSTA, a/k/a Richard Velasquez Evangelista,

Petitioner.

No. 49621-8.

Supreme Court of Washington,

En Banc.

May 24, 1984.

Lee, Schauermann, Thayer & Day Steven W. Thayer, William K. Thayer, Vancouver, for petitioner.

Arthur Curtis, Clark County Prosecutor, Richard Melnick, Deputy Pros. Atty., Vancouver, for respondent.

WILLIAM H. WILLIAMS, Chief Justice.

The issue in this case is whether, in a prosecution for second degree assault under RCW 9A.36.020(1)(b), the State must disprove a defendant's claim of self-defense. The Court of Appeals held that the State need not do so, and affirmed petitioner's conviction. State v Acosta, 34 Wash.App. 387, 661 P.2d 602 (1983). We reverse the Court of Appeals and remand for a new trial.

Petitioner David Acosta met Kimberly Polmateer in a Portland bar on October 13, 1980. They later decided to drive to Vancouver in Polmateer's car. They parked in a dark alley and smoked some marijuana. Petitioner testified that while there he discovered that his wallet was missing, and accused Polmateer of taking it. He testified that when he threatened to go to the police she attacked him, scratching him and choking him with his tie. Polmateer's testimony contradicted petitioner's. She testified that petitioner attempted to rape and kill her and that she ran from the car to a nearby house. Although there were no other witnesses to the incident, several witnesses testified that when Polmateer arrived at the house she was in an hysterical state, beaten, bleeding, and unclothed from the waist down.

At his trial petitioner's attorney proposed a jury instruction which would have required the State to prove beyond a reasonable doubt that petitioner "was not acting in self-defense, or using lawful force as defined elsewhere in these instructions." ¹ Clerk's Papers, at 37. The trial court refused to give this instruction, and instead used WPIC 35.12, which lists the statutory elements of second degree assault. In addition, the court instructed the jury that

[i]t is a complete defense to the charge of second degree assault that the defendant acted in self-defense.

If you find from the evidence, and in accordance with these instructions that the defendant acted in self-defense, then it shall be your duty to return a verdict of not guilty.

Clerk's Papers, at 49. The trial court did not expressly inform the jury whether petitioner or the State bore the burden of proving or disproving self-defense. The jury found petitioner guilty.

I. THE BURDEN OF PROOF

The due process clause of the fourteenth amendment to the United States Constitution requires the State to prove beyond a reasonable doubt all facts necessary to constitute the crime charged. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). There are two ways to determine whether absence of self-defense is an element or ingredient of the crime which the State must prove: (1) the statute may reflect a legislative intent to treat absence of self-defense as an element of the crime; or (2) proof of self-defense may negate an element of the crime. State v. McCullum, 98 Wash.2d 484, 490, 656 P.2d 1064 (1983); State v. Hanton, 94 Wash.2d 129, 132, 614 P.2d 1280, cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980).

The Washington Criminal Code is silent on whether the State must prove that a defendant did not act in self-defense. However, as we noted in State v. McCullum, supra, 98 Wash.2d at 492, 656 P.2d 1064, the Legislature has clearly provided that a defendant must prove certain defenses by a preponderance of the evidence. See RCW 9A.12.010 (insanity); RCW 9A.32.030(1)(c)-. 050(1)(b) (felony murder); RCW 9A.40.030 (kidnapping); RCW 9A.44.030 (sexual offenses); RCW 9A.48.060 (reckless burning); and RCW 9A.76.100 (compounding a crime). The Legislature's silence on the burden of proof of self-defense, in contrast to its specificity on these other defenses, is a strong indication that the Legislature did not intend to require a defendant to prove self-defense.

Even if the Legislature did intend to require the defendant to prove self-defense, this requirement will withstand constitutional scrutiny only if we determine that self-defense does not negate an essential element of the crime. McCullum, at 494, 656 P.2d 1064; Hanton, 94 Wash.2d at 132, 614 P.2d 1280. To do so we must analyze each element of the crime charged. Hanton, at 132, 614 P.2d 1280. The defendant in this case was charged with and convicted of second degree assault, RCW 9A.36.020(1)(b). That statute provides that a person is guilty when he "[s]hall knowingly inflict grievous bodily harm". Because "knowingly" is expressly made an element of second degree assault, the prosecution must prove knowledge beyond a reasonable doubt. Knowledge is defined in RCW 9A.08.010, which provides in relevant part:

(b) Knowledge. A person knows or acts knowingly or with knowledge when:

(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; ...

(Italics ours.)

Self-defense is defined by statute as a lawful act. See RCW 9A.16.020(3). It is therefore impossible for one who acts in self-defense to be aware of facts or circumstances "described by a statute defining an offense". RCW 9A.08.010(1)(b)(i). This is just another way of stating that proof of self-defense negates the knowledge element of second degree assault. Since proof of self-defense negates knowledge, due process and our prior cases require us to hold that the State must disprove self-defense in order to prove that the defendant acted unlawfully. ²

We reached a similar result in McCullum. The issue in McCullum was whether the State in a first degree murder case must disprove self-defense when the issue is properly raised. There we noted that the statutory definition of intent requires that the defendant act "with the objective or purpose to accomplish a result which constitutes a crime", RCW 9A.08.010(1)(a), that is, that the defendant act "unlawfully". See McCullum, 98 Wash.2d at 495, 656 P.2d 1064. Since a person acting in self-defense acts lawfully, we held that self-defense negates intent, and that the State therefore must disprove self-defense when the issue is properly raised.

Similarly, in Hanton, we held that evidence of self-defense negated the element of "recklessness" in the first degree manslaughter statute, RCW 9A.32.060(1)(a). There we focused upon the requirement of wrongful action in the definition of recklessness. RCW 9A.08.010(1)(c) provides:

(c) Recklessness. A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur ...

We held in Hanton, 94 Wash.2d at page 133, 614 P.2d 1280 There can be no recklessness without disregard of risk of a wrongful act, and self-defense, as defined, is not "wrongful."

Given our decisions in McCullum and Hanton, consistency dictates that the State bear the burden of disproving self-defense where the applicable mental state is knowledge. RCW 9A.08.010 establishes a hierarchy of culpable mental states, ranging from intent to criminal negligence. Proof of a higher mental state is necessarily proof of a lower mental state. RCW 9A.08.010(2). We believe that we are required to treat the effect of self-defense on each mental state in a consistent manner. Consider a case in which the defendant is charged with a crime requiring proof of intent and in which the jury was instructed on one lesser offense requiring proof of knowledge and another requiring proof of recklessness. Were we to hold that the defendant bore the burden of proof in knowledge crimes, the jury instruction on the burden of proof would be unbearably complicated, with the burden shifting from the State, to the defendant, and back again.

Finally, our holding today is consistent with the long-standing rule in Washington that a criminal assault requires unlawful force. See Howell v. Winters, 58 Wash. 436, 108 P. 1077 (1910) (civil assault); Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 125 P.2d 681 (1942) (civil assault); State v. Rush, 14 Wash.2d 138, 127 P.2d 411 (1942); State v. Stewart, 73 Wash.2d 701, 440 P.2d 815 (1968). In Rush, the court noted that the statute on second degree assault prohibited willful "assault", but that the statute did not define "assault". In the absence of a statutory definition the court resorted to the common law rule reflected in Howell and Peasley and stated: "We are committed to the rule that an assault is an attempt, with unlawful force, to inflict bodily injury upon another ..." (Italics ours.) Rush, 14 Wash.2d at 139, 127 P.2d 411. If we were to hold that the defendant bore the burden of proving self-defense, we would be relieving the State of its obligation to prove that the defendant's use of force was unlawful. Therefore, consistent with our prior cases, we hold that in a second degree assault prosecution the State must disprove self-defense beyond a reasonable doubt. State v. LeBlanc, 34 Wash.App. 306, 660 P.2d 1142, rev. denied, 100 Wash.2d 1021 (1983).

II. JURY INSTRUCTIONS

The next issue is whether the trial court erred in failing to inform the jury that the State bears the burden of disproving self-defense. In State v. McCullum, supra, we stated that when some evidence of self-defense is presented, the jury "should be instructed that the State bears the burden of proving the absence of self-defense beyond a reasonable doubt." McCullum, 98 Wash.2d at 500, 656 P.2d 1064. Our discussion of jury instructions in McCullum has caused some disagreement and confusion in the Court of Appeals; the principal area of disagreement is whether the "rule" in McCullum is retroactive, that is, whether it applies to cases tried before McCullum was decided. See, e.g., State v....