State v. King, 46061
| Decision Date | 30 August 1979 |
| Docket Number | No. 46061,46061 |
| Parties | The STATE of Washington, Respondent, v. Edward Lopez KING, Petitioner. |
| Court | Washington Supreme Court |
Sinnitt, Teitge & Sinnitt, Carl D. Teitge, Tacoma, for petitioner.
Donald F. Herron, Pierce County Pros. Atty., Joseph D. Mladinov, Sr., Deputy Pros. Atty., Tacoma, for respondent.
Petitioner King seeks review of the Court of Appeals' decision affirming his conviction for second- degree murder. 1 State v. King, 22 Wash.App. 330, 589 P.2d 306 (1979). We affirm.
In March of 1977, King was living at the Majestic Hotel in Tacoma, Washington. Larry VanRite, the victim, and VanRite's girlfriend, Cordelia Thomas, were also residents of the hotel. Prior to the events leading to VanRite's death, King had been acquainted with him and Thomas, but had not spent much time socializing with them. On one previous occasion, King had permitted Thomas to hide in his room after she had been beaten by VanRite.
The record indicates that VanRite was an alcoholic who became angry and violent when intoxicated. On the morning of March 19th, he began to drink and in the early evening he became belligerent and attempted to choke Thomas. During the altercation he also inflicted a slight stab wound to her neck. She fled the room and walked to her car where she planned to spend the night. King and another man happened to see her and at their invitation she accompanied them to a tavern for beer. The three discussed her situation after which King gave her the key to his room and told her she could stay there. She went back to the hotel and entered King's room. King joined her shortly thereafter.
After King arrived at his room, VanRite pounded on the door and demanded to speak with King. King said he needed to sleep and asked him to leave. VanRite returned 45 minutes later and said he was looking for Thomas. VanRite left again when King said that he needed to sleep. He returned shortly, however, pounded on the door, and insisted on entering the room. VanRite indicated that he knew Thomas was in the room. King told VanRite he would open the door in a minute.
King told Thomas to hide in the closet, which she did. He armed himself with a loaded replica flintlock pistol and placed a knife in his back pocket. He positioned himself behind the door and then opened it. VanRite entered and the altercation immediately ensued.
King maintains that VanRite entered the room swinging a claw hammer. King hit VanRite on the side of the head with the gun and stabbed him five times. He then pushed VanRite into the hallway and closed the door. King did not come out again until the police arrived to investigate.
VanRite's body was found lying in the hall near King's room. The hammer with the claw down and the handle protruding was found in his left pocket. Between the fingers of his left hand, a cigarette had burned down to a long ash. VanRite had been left-handed.
At trial, King admitted knifing VanRite, but argued he was acting in self-defense. He requested that the trial court give his proposed instruction No. 22 relating to self-defense, which provided:
When a defendant claims that he killed another in self-defense of his own person or person in his presence the burden is upon the State to prove beyond a reasonable doubt that there is an absence of self-defense.
The trial court refused to give King's proposed instruction No. 22, although it did generally instruct the jury that the burden of proof regarding the crime charged lay with the state. Instead, the court gave instruction No. 20, which provided:
To constitute the crime of murder in the second degree in the case before you, It will be necessary for the State to satisfy you beyond a reasonable doubt of the truth of each and all of the following elements:
1. That Larry VanRite was killed on or about the 20th day of March, 1977;
2. That the killing was accomplished by the defendant, Edward Lopez King;
3. That the killing took place in Pierce County, Washington 4. That the killing, Not being either excusable or justifiable, was done with the intent to cause the death of Larry VanRite but without premeditation.
(Italics ours.)
The court's instruction No. 29 to the jury provided:
The killing of a human being is justifiable when committed in the lawful defense of the slayer or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slaying to commit a felony or to do some great personal injury to the slayer, or to any person in his presence or company, and there is imminent danger of such design being accomplished; or in the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or in his dwelling, or other place of abode in which he is.
The jury found King guilty of second-degree murder. He appealed to Division Two of the Court of Appeals on a number of grounds, including the failure of the trial court to charge the jury with his proposed instruction No. 22. He argued that pursuant to State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (1977), the state has the burden of proving that the homicide was not committed in self-defense and that he was entitled to an instruction to that effect. The Court of Appeals held that the trial court did not err in refusing to give this instruction. The court reasoned that the rule articulated in Roberts is inapplicable under the new criminal code. The Court of Appeals stated that:
Roberts was decided under the "old" criminal code, which did make the absence of excuse or justification an element of the crimes of first- and second-degree murder. RCW 9.48.030, 9.48.040 (repealed). The current code does not define either degree of murder in this manner, and it is therefore not improper to place the burden of proving self-defense on the accused. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); State v. Bradley, 20 Wash.App. 340, 581 P.2d 1053 (1978). See also RCW 9A.32.030, 9A.32.050.
State v. King, supra, 22 Wash.App. at 333, 589 P.2d at 308. 2
Implicit in the Court of Appeals' ruling are two determinations. One is that the state has placed the burden of proof on the defendant by removing the words "unless it is excusable or justifiable" from the definition of second-degree murder under the new criminal code. The second determination implied in the Court of Appeals' ruling is that the state may constitutionally shift to the defendant the burden of proving self-defense pursuant to Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).
King petitioned for review of that decision. Review was granted.
King urges that even under the new criminal code, the state still has the burden of proving the defendant did not act in self-defense. Assuming arguendo that his analysis of the criminal code is correct, we believe the record indicates that he was not prejudiced by the court's failure to give his proposed instruction No. 22.
Instruction No. 20, which was proposed to the court by both parties, instructed the jury that the state had the burden of proving "all of the following elements". One of the elements set forth by the instruction was:
4. That the killing, Not being either excusable or justifiable, was done with the intent to cause the death of Larry VanRite but without premeditation.
(Italics ours.)
The court's instruction thus made "not being either excusable or justifiable" an element of the crime on which the state had the burden of proof. Additionally, the court instructed in instruction No. 29 that a homicide is justifiable when committed in self-defense.
It is axiomatic that instructions must be read as a whole. State v. Foster, 91 Wash.2d 466, 589 P.2d 789 (1979); State v. Dana, 73 Wash.2d 533, 439 P.2d 403 (1968). Instructions are sufficient if they permit counsel to satisfactorily argue his or her theory of the case to the jury. State v. Foster, supra. State v. Dana, supra. When viewed together, as instructions must be, we believe that instructions Nos. 20 and 29 allocated to the state the burden of proof on the issue of self-defense and sufficiently permitted King to argue his theory of the case, I. e., that the state had not sustained the burden of proving beyond a reasonable doubt that the homicide was not committed in self-defense.
Because we find that the court's instruction sufficiently permitted King to argue his theory of the case, we do not review the Court of Appeals' determinations that the state has placed the burden of proving self-defense on the defendant by removing the words "unless it is excusable or justifiable" from the definition of second-degree murder under the new criminal code and that the state may properly do so under Patterson. 3
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