State v. Alpert
| Decision Date | 21 December 2020 |
| Docket Number | No. 79147-8-I,79147-8-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ALPERT, WAYNE HYMAN, DOB: 07/03/1957, Appellant. |
UNPUBLISHED OPINION
BOWMAN, J. — A jury convicted Wayne Hyman Alpert of second degree assault with a deadly weapon and second degree murder while armed with a firearm, stemming from two separate incidents. Alpert claimed self-defense to both counts. Alpert argues that the trial court erred by refusing to instruct the jury that he had no duty to retreat and admitting statements that violated his CrR 3.1 right to counsel. He also assigns error to certain evidentiary rulings and claims ineffective assistance of counsel. We affirm Alpert's second degree assault conviction. But we conclude that the trial court erred in refusing to instruct the jury that Alpert had no duty to retreat from the confrontation leading to his conviction for murder in the second degree and admitting statements tainted by violation of his CrR 3.1 right to counsel. We reverse and remand for retrial on the second degree murder charge subject to suppression of the evidence obtained in violation of Alpert's right to counsel.
FACTS
On June 11, 2017, Alpert planned to ride the bus to visit his three-year-old grandson, who lived in an apartment in Marysville with his mother, Ashley Moffett. He was supposed to meet them at 3:00 p.m. After missing two buses, Alpert felt tired and frustrated that he would be very late for the visit, and he did not have a cell phone with him to call Moffett. It was close to 3:00 p.m. when Alpert finally got on a bus. Alpert asked the driver for help finding his destination. The driver refused to answer while he was driving. Alpert swore as he walked to his seat at the very back of the bus. Another passenger, Jeremy Gredvig, asked Alpert to "calm down" as Alpert passed him. A few minutes later, Alpert walked back to where Gredvig was sitting and apologized to him for his outburst. Gredvig "thought everything was . . . cool."
Alpert and Gredvig got off the bus at the same stop. Gredvig planned to walk to a nearby park to visit with his daughters, but Alpert approached him and provoked an argument. The two men started yelling and swearing at each other. They were about eight feet apart when Alpert pulled out a gun and pointed it at Gredvig's face. Alpert cocked the gun and a bullet ejected from the chamber. Gredvig then walked directly at Alpert, who kept the gun pointed at Gredvig's face but backed away until he "ran backwards into" a nearby light pole. Gredvig warned Alpert that he was going to call the police. As Gredvig reached into his pocket to get his cell phone, Alpert put away his gun and walked away. Gredvig called 911.
Alpert walked to Moffett's apartment building but was over two hours late for the visit with his grandson. Moffett's first-floor apartment was one of seven units in the building. Alpert knocked on the door of Moffett's apartment but nobody answered. He walked around to the back of the apartment to see if anyone was sitting outside on the patio. The patio was empty and no one answered when he knocked on the sliding glass door. Alpert decided to leave his belongings at the back patio and cool off near the side of the building in the shade. Worried his family would not notice him when they returned, he went to leave his hat on the front stoop.
Seaton Jeffry Baker lived in an upper floor apartment near Moffett. Baker was drinking and grilling on his second-floor balcony with his friend and neighbor Forrest Dalton. They saw Alpert walking around Moffett's apartment and pacing "back and forth" in the parking lot. Baker did not recognize Alpert and thought he was a "transient." Baker yelled at Alpert to " 'get the fuck out of here.' " Dalton told Baker to calm down and Alpert explained to Baker that he knew Moffett and was there to visit his grandson. Alpert did not immediately leave. Baker told Dalton, " " Baker went downstairs to confront Alpert.
Alpert saw Baker was "upset" and "not happy" so he decided to leave. Alpert walked back around Moffett's apartment to the patio and picked up his belongings. He then returned to the front of the building and saw Baker coming toward him "pretty quickly." Alpert began backing away. Baker was "livid," yelling and cursing at Alpert. Walking backward, Alpert went back around thecorner of the apartment building toward the patio. According to Alpert, Baker said, " 'I'm going to snap your neck like a twig.' " Alpert told Baker to " '[s]top' " and call 911 while he continued to back away. Baker did not stop.
After turning the corner of the building, Alpert stopped, faced Baker, and repeated, " 'Stop, call 911.' " Again, Baker did not stop. Alpert then took out his gun, pointed it at Baker, and pulled the slide to eject a cartridge as a "warning." Baker continued to advance, "like he was going to tackle" Alpert. Alpert shot Baker at least eight times from about an arm's length away in the abdomen, chest, and head. He "just kept shooting until [he] couldn't shoot" anymore. After Baker fell to the ground, Alpert went over to see if he could give medical help, but Baker appeared to be "fatally wounded." Alpert then retrieved his belongings, walked out of the apartment complex, and sat on a curb to wait for the police. Baker died at the scene.
The State charged Alpert with one count of second degree murder of Baker and one count of second degree assault of Gredvig with firearm enhancements. Alpert claimed that he acted in self-defense in both instances. The court held a CrR 3.5 hearing to determine whether it should suppress Alpert's statements he made to officers after his arrest. Alpert argued that his statements were inadmissible under CrR 3.1 and the Fifth Amendment to the United States Constitution. The court denied Alpert's motion and entered findings of fact and conclusions of law.
At trial, Alpert asked the court to instruct the jury that he had no duty to retreat from his encounters with Gredvig and Baker. The State objected to theinstruction and requested a first aggressor instruction, arguing Alpert "is not entitled to a no duty to retreat instruction where there is no evidence that anyone other than the defendant was the original aggressor." Alpert opposed giving a first aggressor instruction. The court denied both Alpert's request for a no duty to retreat instruction and the State's request for a first aggressor instruction.
A jury found Alpert guilty as charged. By special verdict, the jury found Alpert was armed with a firearm at the time of the commission of the crimes. The trial court imposed concurrent sentences at the low end of the standard sentencing range with consecutive firearm enhancements. Alpert appeals.
ANALYSIS
Alpert contends the trial court's refusal to give a "no duty to retreat" instruction prevented him from meaningfully presenting his self-defense claim. We review the adequacy of jury instructions de novo as a question of law. State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002).
Jury instructions are sufficient when they allow each party to argue its theory of the case, are not misleading, and properly instruct the jury on the applicable law. State v. Sibert, 168 Wn.2d 306, 315, 230 P.3d 142 (2010). A defendant is entitled to an instruction on self-defense if there is "some evidence" demonstrating self-defense. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997); State v. Fisher, 185 Wn.2d 836, 848-49, 374 P.3d 1185 (2016). In considering whether sufficient evidence supports a jury instruction, we view the evidence in the light most favorable to the proponent of the instruction. Fisher,185 Wn.2d at 849. Walden, 131 Wn.2d at 473.1 A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude that we presume is prejudicial. Walden, 131 Wn.2d at 473.
"[P]ersons acting in self-defense have no duty to retreat when assaulted in a place they have a right to be." State v. Redmond, 150 Wn.2d 489, 490, 78 P.3d 1001 (2003). A no duty to retreat instruction is necessary where a jury may objectively conclude that flight was a reasonable alternative to the use of force. Redmond, 150 Wn.2d at 495. The court should give the instruction "when sufficient evidence is presented to support it." Redmond, 150 Wn.2d at 493. Failure to provide a no duty to retreat instruction, where supported by some evidence, is reversible error. Redmond, 150 Wn.2d at 495.
Alpert argues that he was entitled to a no duty to retreat instruction in support of his claim of self-defense to the second degree murder charge. We agree.
Whether retreat was a reasonable alternative to Alpert shooting Baker was a central issue at trial. Testimony established that Baker confronted Alpert in front of Moffett's apartment. Alpert walked away from Baker and around the corner of the apartment to the back of the building. Witnesses described theback of the building as a large grassy area bordered by a fence and hedges, with an opening to the west and access to a long pathway that winds around the apartment complex.
Dalton testified that Baker followed Alpert "about 20 paces behind him." Alpert testified that he felt "cornered" in the back of the apartment complex. The State questioned Alpert extensively about his ability to retreat from Baker. The prosecutor repeatedly asked Alpert whether he could have gone in a different direction to get away from Baker.
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