State v. Lewis, 2088--II

• Decision Date: 25 March 1976
• Docket Number: No. 2088--II,2088--II
• Citation: 15 Wn.App. 172,548 P.2d 587
• Parties: The STATE of Washington, Respondent, v. Terry L. LEWIS, Appellant.
• Court: Washington Court of Appeals

Page 172

15 Wn.App. 172

548 P.2d 587

The STATE of Washington, Respondent, v. Terry L. LEWIS, Appellant.

No. 2088--II.

Court of Appeals of Washington, Division 2.

March 25, 1976.

Ralph E. Olson, Centralia, for appellant.

Jeremy R. Randolph, Lewis County Pros. Atty., Chehalis, for respondent.

REED, Judge.

The defendant, Terry L. Lewis, was convicted of third-degree assault while armed with a firearm and appeals from the judgment and sentence imposed thereon.

Commencing in the early evening hours of November 21, 1974, and continuing into the early morning of November 22, 1974, defendant and his wife pursued a course of drinking and arguing. This all culminated in defendant's demanding that Mrs. Lewis leave the family home and threatening to 'blow her brains out' if she should return and enter his bedroom. Mrs. Lewis left through the back door which defendant latched behind her and he then retired to the bedroom where he placed a .22 caliber pistol under his pillow. After wandering around in the dark for a time, Mrs. Lewis returned and knocked on the back door. Receiving no reply, she then picked up a shovel and thrust it through the plastic covering on the door. The defendant, hearing noises outside, grabbed his pistol from under the pillow and stepped onto the enclosed back porch. As he did so the shovel came through the plastic, and defendant pointed the pistol in the direction of the shovel and fired through the door, wounding Mrs. Lewis in the arm. The defendant claimed he did not know it was his wife outside and that the gun accidentally discharged.

Defendant was charged with second-degree assault while armed with a firearm, RCW 9.41.025, and a deadly weapon, RCW 9.95.040. The defendant proposed and the trial court gave several instructions on third-degree assault as a lesser included offense, and the jury returned a verdict of guilty of third-degree assault with a special finding that defendant was armed with a firearm. There was no deadly weapon finding. Pursuant to RCW 9.41.025(1) and RCW 9.95.010, defendant was sentenced to a maximum term of 20 years, and it is from that sentence he appeals. ¹

Defendant's assignments of error raise the following issues: (1) Did the trial court err by instructing on third-degree assault? (2) Was defendant deprived of due process because there was no evidence to support a conviction of third-degree assault? (3) Is RCW 9.41.025 indefinite and vague so as to deny due process? (4) Does RCW 9.41.025 unconstitutionally elevate the gross misdemeanor of third-degree assault to felony status, thus giving a prosecutor unbridled discretion to charge either as a gross misdemeanor or as a felony? (5) Was a 20-year maximum sentence the appropriate penalty?

We resolve all issues in favor of the State and affirm the conviction and sentence.

The first two issues are so interrelated we will discuss them together. Defendant claims he was improperly convicted of third-degree assault, relying on the cases which hold that where the evidence supports a conviction of assault in the second degree there must be either a conviction or an acquittal of that crime and third-degree assault should not be submitted to the jury. State v. Stationak, 73 Wash.2d 647, 440 P.2d 457 (1968). Here the State charged Mr. Lewis with seconddegree assault in that he did 'unlawfully and feloniously assault another . . . with a weapon likely to produce bodily harm.' RCW 9.11.020(4). Defendant did not deny that he shot his wife with a .22 caliber pistol as the evidence undeniably established, but claimed his acts were not willful, I.e., that he did not know who was outside and did not intend to shoot whoever might be there, the pistol having gone off accidentally. If the jury chose to disbelieve the defendant's version the facts would support a verdict of second-degree assault as charged, but if the jury did believe his story, the facts would not support a conviction of Any assault. It was error, therefore, to instruct on third-degree assault as defined in RCW 9.11.030. ² We perceive that some misunderstanding and confusion over the rule has arisen because assault in a lesser degree will always seem to be a part of and included within a charge of assault in a greater degree. That such is not the case is perhaps best stated in State v. Kruger, 60 Wash. 542, 543, 111 P. 769, 770 (1910) as follows:

But it is contended that assault in the second degree includes assault in the third degree, and that the court was warranted is (sic) submitting that crime to the jury, and that the verdict was sustained. It is true that the greater includes the less, but the defendant is not guilty of either unless the testimony brings him Within the definition of a crime. It was never the intent of the law to submit a possible verdict upon a so-called included crime because Included in law. It must be included in fact, and by the facts of the particular case.

(Emphasis added.) And, as was said in State v. Stationak, supra, 73 Wash.2d at page 649, 440 P.2d at page 459:

Since third degree assault is defined as one 'not amounting to assault in either the first or second degrees,' if the facts of the case are such that defendant could have been found guilty of either first or second degree assault, then he could not have been found guilty of third degree assault.

(Footnote omitted.)

The giving of these erroneous instructions does not require reversal, however, as will be seen. The instant case is unusual in that it does not arise from the giving of the prosecution's instructions over a defense objection as in Kruger, nor from a refusal to give a requested defense instruction as in Stationak. Rather, we have the unique situation of the defendant himself requesting the instructions and, of course, not objecting to them at trial so they became the law of the case. State v. Sims, 14 Wash.App. 277, 539 P.2d 863 (1975); State v. Queen, 73 Wash.2d 706, 440 P.2d 461 (1968). Ordinarily, a self-invited error precludes appellate review. State v. Grant, 9 Wash.App. 260, 511 P.2d 1013 (1973); State v. Newman, 4 Wash.App. 588, 484 P.2d 473 (1971). Defendant contends, however, that since he is asserting a denial of constitutional due process--I.e., a complete lack of evidence to support conviction--appellate review is not precluded, citing: State v. Cuzick, 85 Wash.2d 146, 530 P.2d 288 (1975); State v. Galen, 5 Wash.App. 353, 487 P.2d 273 (1971); State v. Peterson, 73 Wash.2d 303, 438 P.2d 183 (1968).

We are reluctant to apply the rule of these cases, however, to a situation of self-invited error. It is obvious that defense counsel employed a tactical maneuver in what then appeared to be the best interest of his client. The evidence was substantial, if not overwhelming, that defendant willfully and intentionally shot his wife with a pistol and was therefore guilty of second-degree assault. Facing what appeared to be an almost certain felony conviction, it would clearly be to defendant's advantage to attempt to reduce the gravity of the offense to that of a gross misdemeanor. Having gambled and won in the face of unfriendly odds, the defendant should not now be heard to complain of his victory, however hollow it might now appear to be.

We find no cases squarely on point in Washington, but believe the proper rule to be that enunciated in Patterson v. State, 233 Ga. 724, 731, 213 S.E.2d 612, 617 (1975) which involved a constitutionally inferior alibi instruction proposed by the defendant:

Defendant's attorney argues now that even assuming he requested the charge, nonetheless he may not for this procedural reason be barred from complaining of it, Becaue its infirmity is of constitutional magnitude. Translated, this argument urges that one may not waive a constitutional right. This is not the law. A criminal defendant may in a procedural setting implement choices Which have the effect of waiving basic constitutional guarantees.

(Emphasis added.)

We hold, therefore, that when a defendant in the procedural setting of a criminal trial makes a tactical choice in pursuit of some real or hoped for advantage, he may not later urge his own action as a ground for reversing his conviction even though he may have acted to deprive himself of some constitutional right. A criminal defendant is entitled to a fair trial From the state, including due process. He is not denied due process By the state when such denial results from his own act, nor may the state be required to protect him from himself.

Defendant next contends that RCW 9.41.025(4) ³ is unconstitutionally vague in defining 'inherently dangerous' misdemeanors and gross misdemeanors and posits a number of exaggerated factual situations to which the act might apply to make otherwise fairly innocuous conduct a serious criminal offense if engaged in while armed with or in possession of a firearm. Suffice it to say, defendant was charged with second-degree assault and not with having committed one of the inherently dangerous misdemeanors listed and could not, therefore, have been prejudiced in his defense and, not being aggrieved, has no standing to urge this ground on appeal. State v. Sluder, 11 Wash.App. 8, 521 P.2d 971 (1974).

Defendant next asserts that the legislature has improperly elevated the crime of third-degree assault from a gross misdemeanor to a felony by authorizing penitentiary imprisonment when committed with a firearm. Defendant argues this vests unbridled discretion in the prosecuting attorney to charge the same act either as a gross misdemeanor or as a felony, thus denying equal protection of the laws. State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970); In re Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956). We see no merit to these contentions since the Offense of third-degree assault remains as before enactment of the statute; the legislature has said simply that, given the added element of commission of that offense while armed, an additional prison term shall be...