State v. Alexander
| Decision Date | 18 July 1972 |
| Docket Number | No. 252--II,252--II |
| Citation | 7 Wn.App. 329,499 P.2d 263 |
| Parties | The STATE of Washington, Respondent, v. Alexander ALEXANDER, Appellant. |
| Court | Washington Court of Appeals |
Mark G. Honeywell (appointed), of Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, Tacoma, for appellant.
Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma , for respondent.
Alexander Alexander was convicted of second degree assault on Ronnie Barker during a shootout in front of a Tacoma tavern. Initially he had also been charged with manslaughter in connection with the death of one Mayes on the theory that Alexander had fired upon Barker and in returning his fire Barker had accidentally shot and killed Mayes. Prior to trial it was determined that the bullet that killed Mayes did not come from the guns of either Alexander or Barker. The jury was unaware of both the manslaughter charge and its subsequent dismissal.
Alexander based his not guilty plea upon self defense. In his appeal from the sentence upon his jury conviction Alexander raises three issues: (1) whether he was entitled to a mistrial because reference to the death of Mayes was injected into the trial; (2) whether the court failed to submit defendant's theory of the case to the jury when it deleted a sentence from the defendant's proposed self defense instruction, which concluded 'to act in self defense one is not bound to wait till the other person has drawn his revolver', and (3) whether the court was in error in rejecting an instruction on the burden of proof of self defense.
On the night in question Alexander went to South 23rd and K Streets in Tacoma in the hope of resolving a dispute arising out of a prior altercation. A few nights before Alexander had been engaged in a fight in a tavern. Barker, who was serving as a bouncer, hit Alexander with a chair. Alexander cut Barker with a knife or razor. Several individuals had threatened Alexander because of this incident. Alexander stated that he stayed home a few days to avoid trouble and then decided he had to obtain a peaceful settlement.
Arming himself with borrowed .38 and .22 caliber revolvers, which he carried because he feared Barker and knew Barker a Magnum, he set forth on his mission to make peace. At the location of the shootout he met Mayes and Jennings, two of the individuals who were involved in the prior argument. All differences were amicably settled with these two men.
When Barker approached the scene defendant's attempts to make peace with him proved unsuccessful. Alexander knew Barker carried a Magnum pistol in a shoulder holster. Mayes was seated in his car and Alexander followed Barker around the car several times trying to talk to him. Barker cursed Alexander and talked about the 'cutting' incident. Alexander took his pistol out and waved it about to demonstrate that he too had a gun. This was intended to create a more receptive mood for reaching an agreement on resolving their differences. Barker started across the street. Alexander states that Barker turned around and appeared to reach for his gun in a manner that suggested that he was going to draw it to shoot at Alexander. Alexander responded by firing his gun at the ground near Barker. Subsequently, Barker ran behind his truck and Alexander took cover behind the Mayes car. A number of shots were exchanged between Barker and Alexander. Unidentified third persons joined the fray. Barker was wounded by a .38 caliber revolver. The source of the bullet that killed Mayes was not identified.
Prior to trial the court ruled upon the admissibility of certain statements made by defendant. At that time the trial court ruled that Statements made to police officers concerning the death of Mayes would be highly prejudicial since the manslaughter charge regarding Mayes had been dismissed.
The direct examination of one of the state's witnesses, Alonzo Jennings, produced what defendant claims was the first violation of the court's order. Preliminary questioning placed Jennings at the scene of the shootout. The following then occurred:
Q Did anything unusual or out of the ordinary happen?
A Yes. My brother-in-law was killed.
In the absence of the jury, defendant's counsel moved for a mistrial. The court reminded defense counsel that the prior admonition referred to the statement of Alexander to the police. The court then admonished the deputy prosecuting attorney that it was up to him to see that His witness did not mention the death of Mayes or the trial court would grant a mistrial.
The difficulty of avoiding reference to the death of Mayes is then shown by the fact that on the state's cross-examination of defendant's first witness, in the course of the witness's description of the general occurrence, he stated, '(I)f Ronnie Barker . . . did the same thing that the other guys did, made friends there, everything would have cooled, you know, somebody would have been living today.' This was an obvious reference to the death of Mayes. An analysis of the entire statement demonstrates that it was a casual reference in the course of describing the entire event.
The final incident arose when Tacoma Police Department Detective Harold White was asked about his duties on the night in question and he stated, 'I was assigned to the death investigation of Harold Mayes.'
At the conclusion of the testimony defendant's counsel again moved for a mistrial. The motion was denied. On appeal he contends that the three references to the death of Mayes constitute prejudicial error and denied him a fair trial. We do not agree.
Prior to the testimony before the jury the trial court made a laudable attempt to limit the testimony of witnesses to avoid reference to the death of Mayes because the court felt that such reference would be prejudicial to the rights of the accused. The problem created by limiting the testimony was that the death of Mayes was an integral part of the shootout between Alexander and Barker--and persons unknown. Witnesses endeavoring to tell the whole truth find it difficult to remember to avoid reference to such an important event in describing a heated and confusing occurence. Desirable as it may be to delete prejudicial statements, it may be impossible to so sterilize the testimony of witnesses where such testimony is an important and integral part of a tragic and fast moving sequence of events.
Although the trial court could well consider that evidence regarding the death of Mayes was prejudicial at the beginning of the case, with the benefit of 20-20 hindsight the trial court, and this court, could later determine it was not in fact prejudicial to the defendant's case. At the time of the shootout Mayes was in the car which defendant was using as a shield to avoid Barker's bullets. Mayes was within the range of Barker's fire but not within the range of Alexander's fire. The implication from the testimony could well be that Barker shot and killed Mayes. The jury could also have considered, as did the witness Jennings, that if Barker had made friends as the other men did Mayes would still be living. In some respects the testimony about Mayes' death was favorable to the defendant. Considering all of that evidence, we do not find prejudicial error in this respect.
Defendant next contends the trial court denied him the opportunity of arguing his theory of the case by the deletion of the last sentence of defendant's proposed instruction on self defense. After deleting the italicized last sentence the defendant's proposed instruction was given as the court's instruction No. 12. 1 The disputed proposed instruction in question provides as follows:
A person who has been attacked and who is exercising his right of lawful self-defense is not required to retreat, and he not only may stand his ground and defend himself against the attack but may also pursue his assailant until he has secured himself from danger if that course appears to him, and would appear to a reasonable person in the same situation, to be reasonably and apparently necessary; and this is his right even though he might more easily have gained safety by withdrawing from the scene. In this same regard you are instructed that to act in self-defense one is not bound to...
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