State v. Fischer
Decision Date | 19 July 1979 |
Docket Number | No. 3469-II,3469-II |
Citation | 598 P.2d 742,23 Wn.App. 756 |
Parties | The STATE of Washington, Respondent, v. Eugene Victor FISCHER, Appellant. |
Court | Washington Court of Appeals |
Malcolm L. Edwards, Seattle, for appellant.
Carmon Danny Clem, Pros. Atty., Richard L. Peterson, Deputy Pros. Atty., Port Orchard, for respondent.
Defendant, Eugene Victor Fischer, appeals from his conviction of second-degree assault. RCW 9A.36.020. At trial, he readily acknowledged striking the alleged victim with a flashlight, but asserted his actions were justified because he was lawfully defending himself and his employees. We hold that the trial court's instruction regarding the circumstances under which defendant was entitled to use force to defend himself and others did not provide the jury with an adequate standard upon which to measure the defendant's action. Accordingly, we reverse his conviction and remand the cause for new trial.
Shortly after midnight on December 11, 1977, Nick Lester and two friends entered the Bull & Bash Tavern in Bremerton. Defendant, who is part-owner of the Bull & Bash, was on duty at the entrance. He first noticed the three men when they walked past him without paying the cover charge and without letting him check their identification. Before he had an opportunity to confront them, he received a complaint from a female patron concerning Lester's behavior. Defendant decided to ask him to leave the tavern. Defendant and one of the bouncers, Bob Haney, approached Lester for this purpose. At this point two different versions of the incident emerge.
According to defendant, Lester started fighting with Haney; Haney was thrown to the floor; and Ray Jaworski, another bouncer, joined in the fray. Lester became more and more aggressive, and Jaworski had a difficult time controlling him. He deliberately threw a pull-tab machine at the bartender, Patricia Watson, who then sprayed him with mace. By this time, Lester was enraged. He was attempting to climb over the bar to "get" Watson when Jaworski called for help. Two policemen entered the bar on a routine "walk through" just as defendant hit Lester on the head with his large metal flashlight.
Lester's version of the encounter is, of course, quite different. It indicates the defendant and his employees were the aggressors. Nevertheless, as long as the record contains substantial evidence which, if believed by a jury, would justify defendant's actions, the jury must be properly advised of the law of self-defense and defense of others.
Defendant asserts that the trial court erred in refusing to instruct the jury as follows:
If at the time of the alleged assault defendant as a Reasonably and ordinarily prudent man believed he and/or another were in danger of great bodily harm, he would have the right to resort to self-defense and His conduct is to be judged by the conditions appearing to him at that time, not by the conditions as they might appear when the threat of harm no longer exists.
(Emphasis added.)
In place of defendant's proposed instruction, the court gave the following charge:
It is a defense to a charge of Second Degree Assault that the force used was lawful as defined in this instruction.
The use of force upon or toward the person of another is lawful when used by someone lawfully aiding a person about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary.
Necessary means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.
(Emphasis added.)
The italicized portion of the court's instruction is a direct quote from RCW 9A.16.010 and WPIC § 16.05; and the remainder is consistent with WPIC § 17.02. Another division of this court has recently held, and we agree, that the provisions of the new criminal code were not intended to abrogate common law self-defense requirements. State v. Bailey, 22 Wash.App. 646, 591 P.2d 1212 (1979); State v. Fesser, 23 Wash.App. 422, 595 P.2d 955 (1979). Therefore, the court's instruction can stand only if it included the essential element that the person using the force need only reasonably believe, in light of all the facts and circumstances known to him, that he or another person is in danger. State v. Lidiges, 66 Wash.2d 273, 401 P.2d 977 (1965); State v. Miller, 141 Wash. 104, 250 P. 645 (1926); State v. Dunning, 8 Wash.App. 340, 506 P.2d 321 (1973). As the court noted in State v. Bailey, supra, 22 Wash.App. at 650, 591 P.2d at 1214:
Necessity must . . . 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.
The trial judge refused the proposed instruction not because he believed it was an improper statement of the law, but because he was satisfied that the "subjective" common law standard was "inherent" in the instruction given. We appreciate that this argument is appealing to the trained legal mind. However, the instruction can be said to be sufficient only if it makes the subjective standard manifestly apparent to the average juror. In our view, it does not meet that test. The prejudice to the defendant is apparent. Accordingly, we reverse the conviction and remand for new trial.
Although our resolution of this issue is determinative of this appeal, it seems prudent to briefly address defendant's other two assignments...
To continue reading
Request your trial-
In re Urlacher
...786 (2006) (self-defense case); State v. Harris , 122 Wash. App. 547, 554, 90 P.3d 1133 (2004) (self-defense case); State v. Fischer , 23 Wash. App. 756, 759, 598 P.2d 742, review denied , 92 Wash.2d 1038, 1979 WL 71765 (1979) (self-defense case). Our Supreme Court has made it clear that SV......
-
State v. Imokawa
... ... Id. at 621, 683 P.2d 1069. However, we also said that if the instructions as a whole do not adequately address that which a specific instruction would, then due process is violated. See id. at 621-22, 683 P.2d 1069. 37 For example, in State v. Fischer , the Court of Appeals considered whether a "necessity" instruction should have been presented to the jury for a second degree assault 450 P.3d 169 charge. 23 Wash. App. 756, 598 P.2d 742 (1979). That instruction read, "If at the time of the alleged assault defendant as a reasonably and ... ...
- State v. Leidholm, Cr. N
-
State v. LeFaber
...was absent from the jury instructions. This is precisely the situation that existed in Painter, as well as in State v. Fischer, 23 Wash.App. 756, 598 P.2d 742, review denied, 92 Wash.2d 1038 (1979), the decision upon which the Painter court relied for the proposition that an "instruction ca......