State v. Davis

• Decision Date: 10 September 1992
• Docket Number: No. 58214-9,58214-9
• Citation: 835 P.2d 1039,119 Wn.2d 657
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Darvil DAVIS, Petitioner.

Page 657

119 Wn.2d 657

835 P.2d 1039

STATE of Washington, Respondent, v. Darvil DAVIS, Petitioner.

No. 58214-9.

Supreme Court of Washington En Banc.

Sept. 10, 1992.

Reconsideration Denied Jan. 19, 1993.

Washington Appellate Defender Ass'n, Andrew P. Zinner, Seattle, for petitioner.

King County Prosecutor Theresa Fricke, Sr. Pros. Atty., Seattle, for respondent.

UTTER, Justice.

Petitioner Darvil ¹ Davis seeks review of his conviction for second and fourth degree assault. Two issues are presented on review. First, whether the information charging Davis with fourth degree assault conveyed the constitutionally required notification of the charge. Second, whether Davis received ineffective assistance of counsel when counsel failed to object to giving the jury an aggressor instruction. We affirm Davis's conviction.

I

On the evening of August 1, 1988, ² Davil Davis and his girl friend, Darlynn Ferguson, were entertaining four guests at their apartment--Wayne Ruziska, Donald Buckley, Sonya Gadberry, and Jennifer Thomas. Ferguson became intoxicated and argued with Davis. She left the apartment to go on a walk with her friend Gadberry. When they returned Gadberry went on a walk with Ruziska. While they were gone, Ferguson and Davis resumed their argument and Davis struck Ferguson at least once on the face. Subsequently, Davis asked the two remaining guests to leave and they complied.

When Gadberry returned from her walk, the other guests told her that Davis had hit Ferguson. Gadberry was concerned about Ferguson's safety so she returned to the apartment. Ferguson would not leave the apartment, so Gadberry left alone. Gadberry ran across the complex to find a phone to call the police.

Gadberry went to Joe Locke and Gary Rowell's apartment, but they did not have a phone. Locke and Rowell decided to go to Davis's apartment while Gadberry went across the street to use a phone. They crossed the apartment complex to Davis's apartment and pounded or knocked on the door. Ferguson testified that the apartment door was open and that one of the men put a foot in the door and could have come in if he had wanted to. Ferguson also testified that there were several people outside the apartment yelling racial epithets.

Davis opened the door and fought with one or both of the men. Ruziska testified they exchanged words and then Davis punched Rowell, starting the fight. Davis stated a tall man raised his arms with open hands, but did not come toward Davis. He claims to have believed this was an attack motion so he responded by pushing the man and wrestling with him.

Davis went back inside his apartment and testified he tried to call 911, but his phone did not work. He reemerged on the landing to his apartment with a knife in the back of his pants. At this point, testimony about what happened differs markedly. Davis testified that a "tall guy" came through the crowd and made a punching motion toward him, so Davis stabbed him. Locke testified that Davis came out of the apartment and exchanged words with Daniela Gudmundson, a friend of Locke and Rowell and then pushed her. Locke stated he threw Davis off Gudmundson and then Davis stabbed him. After stabbing Locke, Davis also stabbed Martyn Richards and then went back inside his apartment. Davis testified he called 911. The police arrived to find Davis and Darlynn in their apartment and several people in the courtyard of the complex.

Davis was charged with one count of fourth degree assault for slapping Ferguson and two counts of second degree assault for stabbing Locke and Richards. His attorney did not make a motion to dismiss the fourth degree assault charge or request a bill of particulars. Davis denied assaulting Ferguson, stating that he only hit her to calm her down and claimed self-defense on the two counts of second degree assault.

The trial court gave the jury a self-defense instruction, and an aggressor instruction. 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, 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.

Clerk's Papers, at 61. Essentially, the aggressor instruction provided that if the jury found Davis provoked the fight, then self-defense would not apply. Davis's attorney failed to take exception to this instruction. The jury found him guilty on one count of second degree assault for stabbing Locke and on the one count of fourth degree assault. A verdict was not agreed upon on the second count of second degree assault.

Davis appealed, and the Court of Appeals, Division One, affirmed his conviction. State v. Davis, 60 Wash.App. 813, 808 P.2d 167 (1991). Davis petitioned for review by this court and we now affirm.

II

Davis contends that the information charging fourth degree assault did not convey the constitutionally required notification of the charge. We conclude that the information contained all of the essential elements of fourth degree assault and is therefore, constitutionally sufficient.

This court has held that "[a]ll essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him." State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991). ³ We noted that "[t]he primary goal of the 'essential elements' rule is to give notice to an accused of the nature of the crime that he or she must be prepared to defend against." 117 Wash.2d at 101, 812 P.2d 86 (citing 2 W. LaFave & J. Israel, Criminal Procedure § 19.2, at 446 (1984); 1 C. Wright, Federal Practice § 125, at 365 (2d ed. 1982)).

Nonetheless, an information which is "not challenged until after the verdict will be more liberally construed in favor of validity than those challenged before or during trial." 117 Wash.2d at 102. Because Davis did not challenge the sufficiency of that part of the information charging fourth degree assault until he appealed his conviction, the information will be construed liberally.

In this case, count three of the information charged:

That the defendant Darvil [sic ] Davis, in King County, Washington, on or about August 1, 1988, did assault Darlynn Ferguson;

Contrary to RCW 9A.36.041, and against the peace and dignity of the state of Washington.

Supplemental Clerk's Papers, at 2. The information includes all of the statutory elements of fourth degree assault, ⁴ but fourth degree assault also includes the court implied element of intent. State v. Robinson, 58 Wash.App. 599, 606, 794 P.2d 1293 (1990), review denied, 116 Wash.2d 1003, 803 P.2d 1311 (1991). Davis argues the information fails to meet constitutional standards because it does not include the nonstatutory element of intent.

We faced an analogous issue in State v. Hopper, 118 Wash.2d 151, 822 P.2d 775 (1992). In Hopper we held when construed liberally "assault" in a charging document conveyed the statutory element of "knowingly" for second degree assault. 118 Wash.2d at 159, 822 P.2d 775. The information in Hopper stated:

That the defendant ... did assault Officer D. Shelton ... with a [sic ] weapon, and other instrument or thing likely to produce bodily harm, to-wit: a flashlight ... ⁵

(Italics ours.) 118 Wash.2d at 154, 822 P.2d 775. In Hopper all the essential elements of second degree assault were present in the information. 118 Wash.2d at 159, 822 P.2d 775.

Hopper is not distinguishable simply because the essential element there was statutory, whereas the element at issue here, intent, is a court-implied element. In determining the sufficiency of an information the distinction between statutory and court implied elements of a crime is not determinative provided they are essential elements of the crime charged. See Kjorsvik, 117 Wash.2d at 97, 812 P.2d 86 (holding that "[a]ll essential elements of a crime, statutory or otherwise, must be included in a charging document").

Our analysis in Hopper indicates assault adequately conveys the notion of intent. In Hopper this court determined that assault is a willful act. Hopper, 118 Wash.2d at 158, 822 P.2d 775 (citing Webster's Third New International Dictionary 130 (1971)). Additionally, "language alleging assault contemplates knowing, purposeful conduct." (Italics ours.) 118 Wash.2d at 158, 822 P.2d 775 (citing State v. Osborne, 102 Wash.2d 87, 94, 684 P.2d 683 (1984)). Also, " ' "assault" is not commonly understood as referring to an unknowing or accidental act.' " (Italics ours.) 118 Wash.2d at 158, 822 P.2d 775 (quoting Osborne, 102 Wash.2d at 94, 684 P.2d 683). Furthermore, " 'assault' includes the element of intent. " (Italics ours.) 118 Wash.2d at 159, 822 P.2d 775 (citing 2 W. LaFave & J. Israel, Criminal Procedure § 19.2, at 453 (1984)).

Therefore, assault conveys the intent element for fourth degree assault, just as it conveys the "knowingly" element of second degree assault. All of the essential elements of fourth degree assault are, therefore, present in the charging document.

Even if the charging document includes all of the essential elements of the crime, if the defendant was actually prejudiced by vague or inartful language the document will be held insufficient. Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86. In this present case, there is no claim of prejudice on appeal and Davis does not challenge the Court of Appeals holding that he was not prejudiced in his ability to prepare a defense.

Davis also challenges the Court of Appeals holding that the various common law methods of committing assault ⁶ are not essential elements of fourth degree assault. Davis, 60 Wash.App. at 821, 808 P.2d 167. Essentially, Davis's argument is that after the application of...