State v. Bea, 28540–5–III.

• Decision Date: 12 July 2011
• Docket Number: No. 28540–5–III.,28540–5–III.
• Citation: 254 P.3d 948,162 Wash.App. 570
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Daniel D. BEA, Appellant.

162 Wash.App. 570

254 P.3d 948

STATE of Washington, Respondent,

v.Daniel D. BEA, Appellant.

No. 28540–5–III.

Court of Appeals of Washington, Division 3.

July 12, 2011.

Janet G. Gemberling, Gemberling & Dooris PS, Spokane, WA, for Appellant.Andrew Kelvin Miller, Benton County Prosecutor's Office, Julia Lindsay Eisentrout, Attorney at Law, Terry Jay Bloor, Benton County Prosecutors Office, Kennewick, WA, for Respondent.

OPINION PUBLISHED IN PART

SIDDOWAY, J.

[162 Wash.App. 573] ¶ 1 Daniel Bea was convicted of first degree assault after he seized a kitchen knife and stabbed Carlos Cruz at Mr. Cruz's home, seconds after guests had broken up a fistfight between the two. Mr. Bea claimed to have acted in self-defense and argues on appeal that the evidence did not support the trial court's decision to give a first aggressor instruction, which would negate his self-defense theory if the jury determined that he provoked the actions of Mr. Cruz. He also takes issue with how the jury was instructed on a deadly weapon special verdict form based on State v. Bashaw ¹ and claims that he is entitled to a new trial because the prosecutor misstated the law during closing argument. Mr. Bea raises three other arguments in his statement of additional grounds pertaining to ineffective assistance of counsel, sufficiency of the evidence, and the rule-based speedy trial right.

¶ 2 We reject Mr. Bea's challenges and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Daniel Bea and his girl friend, Shakira Pointer, attended a party at the home of Carlos Cruz on the evening of April 11, 2009 that ran into the early hours of the following day. At approximately 3 a.m., Mr. Bea and his girl friend began arguing in the bathroom. Mr. Cruz asked the two to leave but Mr. Bea refused and held the bathroom door shut. Mr. Cruz and a few of his friends then forced the door open to gain entrance to the bathroom, after which Mr. Bea and Mr. Cruz started fighting. According to Mr. Bea, Mr. Cruz started the encounter by punching him in the face.

¶ 4 The fight was broken up by other guests and the two men were briefly separated. Mr. Bea headed toward the front door, from which other guests initially inferred he was leaving, but instead he veered into the kitchen and grabbed at least one knife. Mr. Cruz was then being detained by a female guest but he pushed her away when Mr. Bea approached him. The two grappled again, during which Mr. Bea stabbed Mr. Cruz in the midsection repeatedly. After guests separated the two a second time, Mr. Bea ran from the home. Mr. Cruz was taken to the hospital, where he was treated for five stab wounds and a displaced rib. One of the stab wounds, to the left chest, penetrated to the lateral chest wall; at the emergency room, a chest tube was placed into the wound to evacuate air and blood, the wound was irrigated, and it was closed with staples. The remaining wounds were one to two centimeters deep and were irrigated, treated with antibiotics, and left to heal naturally. Mr. Cruz was administered pain killers and admitted to intensive care for observation given the risk of a delayed bleed associated with the chest wound. He spent four days in the hospital. Mr. Bea was charged with first degree assault.

¶ 5 The court instructed the jury on self-defense, including, over defense counsel's objection, the pattern “first aggressor” instruction. This instruction provides that a defendant may not claim self-defense if he or she provoked or commenced the altercation. The jury was also instructed regarding a deadly weapon special verdict form. It was instructed that when answering the form, “If you unanimously have a reasonable doubt as to this question, you must answer ‘no.’ ” Clerk's Papers (CP) at 111 (Instruction 26). No objection was made to this instruction.

¶ 6 The jury was instructed on the charged offense of first degree assault and lesser charges of second and third degree assault. During closing argument, the prosecutor argued that the evidence supported the intent element of first degree assault, stressing several times that “[w]e intend the results that are reasonable from our actions. That's the legal standard. We intend the results, the natural results of our acts.” Report of Proceedings (RP) (July 22, 2009) at 125–26. Defense counsel made no objection to any of the prosecutor's closing remarks.

¶ 7 Mr. Bea was found guilty of first degree assault and sentenced to 117 months, which includes 24 months for the deadly weapon sentencing enhancement. This appeal followed.

ANALYSIS

I

¶ 8 The court instructed the jury on self-defense in light of evidence (principally Mr. Bea's testimony) that Mr. Cruz and his friends started the fight between the two. However, because there was conflicting evidence over who provoked the fight, and one who provokes an affray cannot invoke the right of self-defense, State v. Wingate, 155 Wash.2d 817, 822, 122 P.3d 908 (2005) (citing State v. Craig, 82 Wash.2d 777, 783, 514 P.2d 151 (1973)), the court also gave the first aggressor instruction requested by the State, over Mr. Bea's objection. The instruction stated:

No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use[ ] force upon another person. Therefore, if you find beyond a reasonable doubt that 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.

CP at 106 (Instruction 23).

¶ 9 A first aggressor instruction potentially removes self-defense from the jury's consideration, relieving the State of its burden of proving that a defendant did not act in self-defense. State v. Douglas, 128 Wash.App. 555, 563, 116 P.3d 1012 (2005). For that reason, it is only to be given sparingly and carefully, in cases where the theories of the case cannot be sufficiently argued and understood by the jury without such an instruction. State v. Riley, 137 Wash.2d 904, 910 n. 2, 976 P.2d 624 (1999).

¶ 10 Mr. Bea argues that it was error to give the first aggressor instruction because the evidence was clear that it was Mr. Cruz and his friends who broke down the bathroom door and that he and Mr. Cruz both testified that once the bathroom door was breached it was Mr. Cruz, not he, who threw the first punch. He relies on the statement, “I hit him. He hits me” from the following testimony from Mr. Cruz:

A ... I went to the bathroom and asked them to leave the house and they refused to and I told them that I was the owner of the house and everybody was leaving. They kept arguing. I kept insisting you got to go and my friend, you got to go. Then later on I heard the girlfriend, woman crying. That's when Reynaldo and Bernal and I opened the door.

Q Who? Eric Bernal?

A Yes. We kept insisting. He refused. He started beating on the door and trashing the bathroom. A few minutes later he comes out and he and I go at it. We wrestle. I hit him. He hits me. Then we stopped and he had a choice to leave the house. There was a hallway to leave but he didn't. He grabbed two knives and he stabbed me—it was actually six times. Two times here. Two times here and one on the side and here.

RP (July 21, 2009) at 3–4 (emphasis added). It is not clear that Mr. Cruz's testimony, “I hit him. He hits me” was a concession by Mr. Cruz that he threw the first blow. If defense counsel thought it might be, he inexplicably avoided revisiting the issue and clarifying the matter during cross-examination. In any event, other witnesses testified that Mr. Bea came at Mr. Cruz first; Ricardo DeJesus testified that on coming out of the bathroom, Mr. Bea “jumped into my friend,” Id. at 65, and Zolia Rodriguez Cruz, Mr. Cruz's sister, testified that Mr. Bea broke the bathroom door, “And then finally he got out of the bathroom pushing my brother.” Id. at 78. A number of witnesses also testified that prior to any blows, Mr. Bea had ignored Mr. Cruz's repeated requests that he leave, had held the bathroom door shut against Mr. Cruz's efforts to enter, and could be heard slamming or breaking items in the bathroom.

¶ 11 Whether the State produced sufficient evidence to justify a first aggressor instruction is a question of law and our review is therefore de novo. State v. Stark, 158 Wash.App. 952, 959, 244 P.3d 433 (2010) (citing State v. Anderson, 144 Wash.App. 85, 89, 180 P.3d 885 (2008)), review denied, 171 Wash.2d 1017, 253 P.3d 392 (2011). When determining if evidence at trial was sufficient to support the giving of an instruction, we view the supporting evidence in the light most favorable to the party that requested the instruction. Wingate, 155 Wash.2d at 823 n. 1, 122 P.3d 908 (citing State v. Fernandez–Medina, 141 Wash.2d 448, 455–56, 6 P.3d 1150 (2000)). The State need only produce some evidence that Mr. Bea was the aggressor to meet its burden of production. Id. at 823, 122 P.3d 908 (citing Riley, 137 Wash.2d at 909–10, 976 P.2d 624).

¶ 12 The provoking act must be intentional and one that a “ ‘jury could reasonably assume would provoke a belligerent response by the victim.’ ” State v. Wasson, 54 Wash.App. 156, 159, 772 P.2d 1039 (quoting State v. Arthur, 42 Wash.App. 120, 124, 708 P.2d 1230 (1985)), review denied, 113 Wash.2d 1014, 779 P.2d 731 (1989). The unlawful act constituting the provocation need not be the actual striking of a first blow. State v. Hawkins, 89 Wash. 449, 154 P. 827 (1916). It must be related to the eventual assault as to which self-defense is claimed. Wasson, 54 Wash.App. at 159, 772 P.2d 1039. The provoking act cannot be the actual assault. State v. Kidd, 57 Wash.App. 95, 100, 786 P.2d 847, review denied, 115 Wash.2d 1010, 797 P.2d 511 (1990).

¶ 13 Here, viewing the supporting evidence in the light most favorable to Mr. Bea, the aggressor instruction was properly given. Mr. Bea was not entitled to invoke the defense of self-defense if he provoked Mr. Cruz by...