State v. Jasionowicz

• Decision Date: 10 September 2012
• Docket Number: No. 66914-1-I,66914-1-I
• Parties: STATE OF WASHINGTON, Respondent, v. JACEK JASIONOWICZ, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. JACEK JASIONOWICZ, Appellant.

No. 66914-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: September 10, 2012

UNPUBLISHED OPINION

SPEARMAN, A.C.J. — In this prosecution for assault and possession of a stolen vehicle, the defense did not request, and the trial court did not give, a self-defense instruction. Jacek Jasionowicz appeals his convictions on both counts, arguing that the omission of a self-defense instruction was either judicial error or ineffective assistance of counsel. Because the court was under no duty to give the instruction absent a defense request, and because Jasionowicz fails to establish either deficient performance or prejudice, we reject these claims of error. Jasionowicz's other arguments either lack merit or need not be addressed. We therefore affirm.

FACTS

On October 29, 2009, Melisa Tryon visited her boyfriend, JacekJasionowicz, at his apartment above his auto shop. According to Tryon, an argument about her parenting suddenly turned violent. Jasionowicz grabbed her hair, forced her head down, and then rammed her head into a wall. Tryon's head and shoulder broke through the sheetrock. Jasionowicz then placed his hands around her neck, put his knee into her stomach, and told her she was "a liability and he was going to kill [her]." He squeezed her neck three separate times. Each time Tyron was not able to breathe. The assault stopped when she pretended to be dead.

The next morning, Tryon left in her car but later returned to Jasionowicz's shop because her car door would not shut. Jasionowicz's business partner allegedly said "[l]et me see you slam the bitch around again." Tryon then left the shop and called her girlfriend and 911 to report the assault.

Officer Coleman Langdon met Tryon at her storage unit. He saw no visible signs of injury. He called for backup and then drove Tyron to Jasionowicz's shop. Police knocked on the shop door, but no one answered. Jasionowicz's coworkers, who were standing outside the shop, told police Jasionowicz was not in the shop. But when police knocked on the shop door again, Jasionowicz came out. The officers arrested and handcuffed him. When they told him why they were there, Jasionowicz said he had been sitting at his computer when Tryon "started to slap him and push him and then he pushed her back" and she fell against the wall. He did not mention being hit with a beltbuckle.

Jasionowicz agreed to sign a consent to search form. When the officers removed his handcuffs, Tryon said, "[w]ell, if his trying to kill me and strangle me isn't going to put him in jail, how about a stolen vehicle?" While one officer took Jasionowicz upstairs, another looked at a car under a tarp in the shop. The car's bumpers and license plates were missing. The officer relayed the VIN number to dispatch and confirmed that the car was stolen.

Meanwhile, officers inside the apartment asked Jasionowicz about a hole in the sheetrock. He said the hole was from Tryon falling into the wall. He also said that when she started screaming, "he got on top of her and put his hands over her mouth to try and get her to stop screaming so that there wasn't more of a ruckus or more loud noise created by her." He also admitted putting his hands around Tryon's neck. He said nothing about Tryon hitting him with a belt buckle.

After booking Jasionowicz, officers transported him back to his shop where he met an officer from the Snohomish County Auto Theft Task Force. The officer inspected the stolen car, noting that "[i]t was in various stages of dismantle which is common in an auto theft investigation." The engine, hood, license plates, bumpers, and some of the side paneling were missing.

Jasionowicz initially told the officer that he knew nothing about the stolen vehicle. During the next 20 minutes, his "story changed several times." RP 113. He eventually said that a friend was storing the vehicle there. Because it hadbeen there for more than a year and the friend was "known to dabble in criminal activities," Jasionowicz "believed that the car was either . . . used in a crime or stolen." He did not identify the friend, however.

The State initially charged Jasionowicz with third degree assault domestic violence and possession of a stolen vehicle, but later amended the assault count to second degree assault by strangulation domestic violence. At trial, Tryon and the officers testified to the facts set forth above.

Jasionowicz testified that the altercation began when Tryon "pulled out the belt buckle and hit me with the belt." He then pushed her away and into the wall. She started "screaming and yelling and cussing" and he asked her to stop. She continued screaming for thirty seconds. Jasionowicz then put his hand on her mouth and pushed her head against the wall in order to stop the screaming. He testified on direct examination that he did this because he did not want to lose his apartment. On cross-examination, he said that Tryon had a belt in her hand when she was screaming, that he grabbed it with his other hand, and that he was protecting himself. He denied choking or strangling her.

Jasionowicz testified that he acquired the stolen car from a person who owed him $1,800 for previous work. The person who gave him the car said he bought it at an auction. He also said he would come back for it and pay Jasionowicz what he owed him, but he never returned. After waiting about a year, Jasionowicz gave the car's engine to a friend who ran a car dealership.Jasionowicz denied knowing that the car was stolen.

Defense counsel submitted no proposed instructions and did not argue self-defense. The jury found Jasionowicz not guilty of second-degree assault, but convicted him of fourth degree assault and possessing a stolen vehicle.

At sentencing, the court found that the fourth degree assault was a crime of domestic violence. After imposing sentence, the court advised Jasionowicz "that it is now illegal for you to own, possess, or have in your control any firearm unless that right is later specially restored by both the superior court and the federal courts, if so required."

The judgment and sentence for the fourth degree assault recited that "If this is a crime enumerated in RCW 9.41.040 which makes you ineligible to possess a firearm, you must surrender any concealed pistol license at this time, if you have not already done so." Similarly, the judgment and sentence for possessing a stolen vehicle also contained the following notice: "You may not own, use or possess any firearm unless your right to do so is restored by a superior court in Washington State, and by a federal court if required. You must immediately surrender any concealed pistol license."

Jasionowicz appeals.

DECISION

Jasionowicz first contends the trial court erred in failing to give a self-defense instruction. He concedes the defense did not request a self-defenseinstruction at trial. He argues, however, that the court was required to give the instruction sua sponte and that its failure to do so can be raised for the first time on appeal under RAP 2.5(a)(3). We disagree.

So long as the instructions inform the jury of the elements of the offense and allow counsel to argue their theories of the case, a trial court is not required to instruct a jury in a more detailed fashion absent a request to do so. State v. Marohl, 151 Wn. App. 469, 477, 213 P.3d 49 (2009), rev'd on other grounds, 170 Wn.2d 691, 246 P.3d 177 (2010). In fact, it would arguably be error for the court to further instruct the jury in such circumstances. Courts have noted that a defendant's right to present a full defense and to jury instructions on the defense theory of the case run in tandem with the defendant's constitutional right to control that defense. State v. Jones, 99 Wn.2d 735, 740-41, 664 P.2d 1216 (1983) ("a defendant has a constitutional right to at least broadly control his own defense."); State v. McSorley, 128 Wn. App. 598, 604, 116 P.3d 431 (2005) (the court may not compel a defendant to raise an affirmative defense he has not advanced); Tremblay v. Overholser, 199 F.Supp. 569, 570 (D.D.C.1961) (forcing a defense on a defendant violates due process). Accordingly, courts may not force a defense on a criminal defendant where the defendant neither advances nor evidences a desire to raise such a defense. Jones, 99 Wn.2d at 743; McSorley, 128 Wn. App. at 604.

In this case, the defense did not advance a self-defense theory, thecourt's instructions set forth the elements of the crime, and the instructions allowed counsel to argue their theories of the case. The court did not err in failing to give a self defense instruction sua sponte.

Jasionowicz argues in the alternative that his trial counsel was ineffective for failing to request a self-defense instruction. To prevail on this claim, he must establish both deficient performance and resulting prejudice, i.e. a reasonable probability that the outcome would have been different but for counsel's omission. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We strongly presume that defense counsel was effective, McFarland, 127 Wn.2d at 335, and Jasionowicz must establish "the absence of any 'conceivable legitimate tactic explaining counsel's performance.'" State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)); McFarland, 127 Wn.2d at 335-36.

Jasionwicz fails to establish either deficient performance or prejudice. A person acts in self-defense when he reasonably believes that he is about to be injured. RCW 9A.16.020(3); State v. Werner, 170 Wn.2d 333, 337-38, 241 P.3d 410 (2010). "A defendant is entitled to a self-defense instruction only if he or she offers credible evidence tending to prove self-defense." State v. Dyson, 90 Wn. App. 433, 438, 952 P.2d 1097 (1997). Here, there was no credible evidence that Jasionowicz was acting in self defense when he covered Tryon's mouth and...