State v. Bailey, 2468-III

• Decision Date: 14 February 1979
• Docket Number: No. 2468-III,2468-III
• Citation: 591 P.2d 1212,22 Wn.App. 646
• Parties: STATE of Washington, Respondent, v. LaVonne B. BAILEY, Appellant.
• Court: Washington Court of Appeals

Page 646

22 Wn.App. 646

591 P.2d 1212

STATE of Washington, Respondent, v. LaVonne B. BAILEY, Appellant.

No. 2468-III.

Court of Appeals of Washington, Division 3, Panel Two.

Feb. 14, 1979.

William Keylor Smith, Walla Walla, for appellant.

Arthur R. Eggers, Pros. Atty., Carl L. Johnson, Deputy Pros. Atty., Walla Walla, for respondent.

MUNSON, Judge.

Appellant, LaVonne B. Bailey, appeals from a jury conviction for the second-degree assault of her husband, Robert. The issues raised on appeal are (1) whether the trial court gave proper instructions on self-defense and (2) whether two other instructions were prejudicial given the facts of this case. We find error and reverse.

LaVonne and Robert Bailey had been married about 2 months when the assault occurred. Robert had been drinking prior to this incident and during that time had struck Mrs. Bailey's 13-year-old son and had threatened her. ¹

After 4 days of drinking, Mr. Bailey became increasingly abusive. While the Baileys were driving to town and discussing a divorce, he struck her in the face, splitting her lip, causing swelling in her face and pains in her neck. She immediately drove to the Walla Walla police station where she asked for protection. The officer on duty told her that if she still felt the same way the next day, she could come in and file a complaint. He did, however, make arrangements to have a College Place police officer meet her at her home. While the officer was there, Mr. Bailey packed his belongings and left the house, saying he was leaving town on the next bus.

Mrs. Bailey testified that she then arranged to take a friend of hers into town and she also wanted to see if her husband had actually left town. If he had not, she planned to take her children with her to a motel for the night since the lock on her house was broken and she was afraid her husband might return. As Mrs. Bailey got into her car, she found a knife her daughter used to trim her horses' hooves; she placed it in her purse.

Mrs. Bailey drove downtown and went into the Main Tavern; Mr. Bailey was there. He began taunting her about her mother who had died about 4 months before. He testified:

I started in on her mother, and she asked me if I wouldn't stop, and I knew I was getting close to home, . . . I intensified my efforts and kept at it . . .

. . . I had slapped her pretty good that afternoon and threatened her quite a bit.

She left the tavern hysterical and incoherent. Police Officer Stroe observed her heading toward Manuel's Tavern "shouting that she needed help," but she refused his offer of assistance. Mrs. Bailey testified she went to Manuel's because Mr. Bailey would not be there given "the way he felt about Mexicans and such, . . ." Mrs. Bailey is part Mexican; Mr. Bailey had taunted her earlier that day by calling her a "wetback." Mr. Bailey also said that she could not have known he would be at Manuel's because he never went there.

The evidence as to the time interval between the above-described occurrence and the one at Manuel's Tavern, as well as what happened when Mrs. Bailey entered Manuel's, is conflicting and confusing. Mr. Bailey was apparently sitting just inside the front door when she entered; he said when she walked in he "started in on her again," and she was afraid he was going to beat her up. When asked whether she tried to walk out, he testified:

I don't think she very well could have. . . . I was right there by the door. I know that she knew that if she tried, until she could either get me calmed down or something, there was no way she could get past me if I didn't want her to. . . . I took a swing at her, I know. I wasn't in a very good mood by then.

She testified that all she remembered seeing was his shirt and his saying something about her mother again.

The only eyewitness who saw what happened at the time Mrs. Bailey walked in the front door was the bartender. He testified that Mr. Bailey swung his arm to one side, close to her face, and pushed her. They started struggling and fell to the floor. Officer Stroe walked in at that moment. He testified the Baileys were exchanging blows, that she was "over the top of him and stabbing or jabbing away with her hand." Mr. Bailey was taken to the hospital with two stab wounds from the trimming knife, one of which caused the collapse of his left lung.

The trial court denied Mrs. Bailey's proposed instruction ² and gave two instructions on self-defense to which Mrs. Bailey excepted:

Court's instruction No. 9

The use of force upon or toward the person of another shall not be unlawful whenever used by a party about to be injured in preventing or attempting to prevent an offense against his person in case the force is not more than shall be necessary. (Drawn from RCW 9A.16.020(3).)

Court's instruction No. 10

"Necessary" means that no reasonably effective alternative to the use of force appear(s) to exist and that the amount of force used was reasonable to effect the lawful purpose intended. (RCW 9A.16.010.)

Mrs. Bailey contends these instructions are insufficient and do not comply with the law of this state because neither provided that the assault was to be considered in light of all the facts and circumstances known to the defendant, including those known substantially before the incident. Neither of the statutes from which these instructions are drawn provides that the jury view the circumstances as they reasonable might have appeared to the defendant at that time. Historically, this frame of reference has been included in instructing a jury on self-defense. See State v. Wanrow, 88 Wash.2d 221, 233-36, 559 P.2d 548 (1977) which contains citation of past cases. Cf. State v. Penn, 89 Wash.2d 63, 66-67, 568 P.2d 797 (1977); People v. Moore, 43 Cal.2d 517, 275 P.2d 485 (1954). Such an instruction is proper if it has been proposed. The procedural posture here is unlike State v. Strand, 20 Wash.App. 768, 775-79, 582 P.2d 874 (1978), where the defendant neither proposed a proper instruction nor took exception to the instruction given.

When the legislature adopted the new Criminal Code, effective July 1, 1976, it provided that "provisions of the common law relating to the commission of crime . . . insofar as not inconsistent with the Constitution and statutes of this state, shall supplement all penal statutes of this state . . ." RCW 9A.04.060. By adopting this new code the legislature did not change the common-law requirement that in considering self-defense a jury should consider all the facts and circumstances known to the defendant, including those known substantially before the incident. See State v. Bradley, 20 Wash.App. 152, 154-55, 578 P.2d 1316 (1978).

Necessity must also be considered by the jury standing in the shoes of the defendant. The applicable standard is that persons may use that degree of force necessary to protect themselves as a reasonably prudent man or woman would use under the conditions appearing to them at the time. State v. Dunning, 8 Wash.App. 340, 342, 506 P.2d 321 (1973). Neither instructions Nos. 9 nor 10 convey that standard; we find the instruction inadequate and prejudicial to the defendant, which finding requires a new trial. Cf. State v. Humphries, 21 Wash.App. 405, 412, 586 P.2d 130 (1978).

Inasmuch as there will be a new trial, we comment upon the giving of instruction No. 11:

You are instructed that no person can by her Lawless acts create a necessity for acting in self-defense and thereupon assault and injure the person with whom she seeks the...