State v. Arthur
| Decision Date | 12 November 1985 |
| Docket Number | No. 14302-6-I,14302-6-I |
| Citation | 42 Wn.App. 120,708 P.2d 1230 |
| Parties | STATE of Washington, Respondent, v. William Dean ARTHUR, Appellant. |
| Court | Washington Court of Appeals |
Julie A. Kesler, Washington Appellate Defenders Association, (court appointed) Seattle, for appellant.
Norman K. Maleng, King County Pros. Atty., Ruth Robinson, Deputy Pros. Atty., Seattle, for respondent.
The defendant, William Dean Arthur, appeals the judgment and sentence imposed upon a jury verdict finding him guilty of second degree assault. The sole issue here is whether the court erred in giving the aggressor instruction to the jury. We hold that the instruction is vague and reverse.
Arthur was convicted of second degree assault with a deadly weapon for stabbing Terry Waterhouse. Waterhouse testified at trial that he was in the parking lot at a convenience store with several friends. He said Arthur approached him, was drunk and abusive, and was "in his face." He pushed Arthur to get him out of his way, and Arthur fell down. Waterhouse and his friends then left the parking lot and went to a tavern.
Later that evening Waterhouse returned with friends to the store parking lot and parked next to Stephanie Thompson's car. Waterhouse said that Arthur pulled into the space next to her car. Arthur then pulled out of the parking lot at a high speed, hit Thompson's car slightly, and ended up in a ditch. Waterhouse said he went over to Arthur's car to prevent him from leaving the scene of the accident. When he reached into the car, Arthur stabbed him. Waterhouse's friends testified that Waterhouse had a stab wound when he returned to the parking lot. The wound was shallow, requiring only 2-5 stitches.
Arthur testified that he was not drunk that evening, and that he initially approached Waterhouse because he thought he recognized him. He said Waterhouse was abusive and shoved him into the ground. Arthur further testified that he acted in self-defense in the second confrontation because he feared Waterhouse would attack him.
The court gave the following instruction (the aggressor instruction) over defense objections:
No person may by any unlawful act create a necessity for acting in self-defense and thereupon use, offer or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt 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.
Arthur argues there was no evidence of any unlawful act by the defendant. His counsel noted in the course of argument that all of the State's witnesses characterized the hitting of Thompson's car as an accident. The State responds that all of the facts indicate that the defendant intended to resort to physical violence and therefore the instruction was sufficient to permit each party to argue the theory of the case. It was the State's theory that the defendant deliberately drove up to and threatened Waterhouse, then attempted to leave rapidly and in so doing, hit Thompson's car.
Aggressor instructions in various forms have long been used in Washington courts. See e.g., State v. McConaghy, 84 Wash. 168, 170-71, 146 P. 396 (1915); State v. Turpin, 158 Wash. 103, 113, 290 P. 824 (1930); State v. Currie, 74 Wash.2d 197, 199, 443 P.2d 808 (1968); State v. Bailey, 22 Wash.App. 646, 650-51, 591 P.2d 1212 (1979). The precise language of the instruction in this case has been before the court on two occasions. State v. Sampson, 40 Wash.App. 594, 599-600, 699 P.2d 1253 (1985); State v. Heath, 35 Wn.App. 269, 271, 666 P.2d 922 (1983). In neither case was the challenge based on vagueness.
The problem with the instruction is that determination of whether there was an "unlawful act" requires us to speculate and conjecture as to which act of the defendant might have been characterized by the jury as "unlawful." While no court has considered this question with regard to the aggressor instruction, a number of cases have dealt with the issue in a different context.
In State v. Upton, 16 Wash.App. 195, 556 P.2d 239 (1976), the instruction challenged stated that "No man can by his own lawless act, create a necessity for acting in self-defense ..." The court stated:
An instruction on an issue or theory which is unsupported by the evidence is improper. State v. Piche, 71 Wn.2d 583, 430 P.2d 522 (1967); State v. Jackson, 70 Wn.2d 498, 424 P.2d 313 (1967); State v. Woods, 163 Wash. 224, 1 P.2d 219 (1931). Unlike State v. Thomas, 63 Wn.2d 59, 385 P.2d 532 (1963), where the propriety of the "lawless acts" language in the first sentence of this instruction was also raised, no evidence was introduced in the present case indicating the defendant had committed illegal or unlawful acts which might have occasioned the assault. Reference to "lawless acts" therefore should be omitted if, upon retrial, no evidence is introduced upon which a jury could premise a finding that the defendant created the necessity to act in self-defense through some illegal or unlawful act. Cf. State v. Thomas, supra.
The Supreme Court in State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982), considered the vagueness argument with respect to the statute regarding failure "without lawful excuse" to provide true information, "lawfully required of an individual by a public servant." RCW 9A.76.020(1). The court stated:
The problems with the statute before us are obvious. For example, when must a citizen answer inquiries, and when does he have "lawful excuse" not to answer? What is "lawfully required" in the way of reports or information? May any "public servant", as defined in RCW 9A.04.110(22), demand information or only those charged with investigating or enforcing laws or regulations? May any citizen be stopped at any time--or only when there is suspicious conduct, or in high crime areas, or only in the course of investigating a suspected or known crime? The possible applications and interpretations are nearly endless.
The determination of what information is "lawfully required" under this statute is a subjective one, left to the unfettered discretion of not only police officers, but virtually any public servant. Likewise, the term "lawful...
To continue reading
Request your trial
-
State v. Hatt
...court is not required to give an aggressor instruction. Stark, 158 Wash. App. at 960, 244 P.3d 433 (quoting State v. Arthur, 42 Wash. App. 120, 125 n.1, 708 P.2d 1230 (1985) ). But, although the court was under no obligation to give the aggressor instruction, it was not error to give the in......
-
State v. Hughes
...not harmful. This is also not a case where the defendant's acts could be deemed accidental, as was the situation in State v. Arthur, 42 Wash.App. 120, 708 P.2d 1230 (1985). In the present case, the jury's attention was directed to the defendant's intentional acts (shooting at two policemen)......
- State v. Grott
- State v. Sullivan