State v. Riley

• Decision Date: 13 May 1999
• Docket Number: No. 65845-4,65845-4
• Citation: 976 P.2d 624,137 Wn.2d 904
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Johnny Lee RILEY, Jr., Petitioner.

Page 624

137 Wn.2d 904

976 P.2d 624

STATE of Washington, Respondent, v. Johnny Lee RILEY, Jr., Petitioner.

No. 65845-4.

Supreme Court of Washington En Banc.

Argued June 16, 1998.

Decided May 13, 1999.

John S. Abolofia, Tacoma, for Petitioner.

John Ladenburg, Pierce County Prosecutor, Kathleen Proctor, Deputy, Tacoma, for Respondent.

MADSEN, J.

Petitioner Johnny Lee Riley was convicted of first degree assault while armed with a deadly weapon. He maintains that the giving of an aggressor instruction violated his First Amendment rights. We affirm the conviction.

FACTS

On June 16, 1994, Johnny Lee Riley shot 15-year-old Gustavo Jaramillo. Riley claims he shot in self-defense. At the time of the shooting, Riley was 26 years old and was considerably larger than Jaramillo.

On the day of the shooting, Jaramillo was with his friend Aaron Calloway. Jaramillo and Calloway stole cars and sold drugs together, and on that day had used cocaine. Jaramillo also had a stolen car and a stolen 9 mm semiautomatic pistol in his possession.

Riley, who was visiting a friend, first saw Jaramillo in an alley, and asked about purchasing the car. Jaramillo and Calloway testified that Riley also wanted to buy the pistol. According to Riley, he left to tell his father about the car, but was unable to find him. He returned a short time later with another man. At the time, Jaramillo and Calloway were lying on a nearby lawn waiting for friends.

Conflicting testimony was given as to what occurred after Riley returned. Riley testified that he had asked Jaramillo about Jaramillo's gang, made some comments, and suggested that Jaramillo was only a "wanna-be." Verbatim Report of Proceedings (RP) at 28 (Nov. 10, 1994). He testified he did not intend any insult and instead said it jokingly. Jaramillo, though, was insulted, and said he was going to shoot Riley. Riley then pulled a gun on Jaramillo and demanded Jaramillo's gun so that Jaramillo would not shoot him in the back as he left. Jaramillo said he did not have a gun, that it was across the street in some bushes, which Riley did not believe. Riley also said that Jaramillo tried to distract him by claiming that the police were coming. Riley testified that Jaramillo was reaching for his gun when Riley shot him. Riley claimed he shot Jaramillo to keep him from shooting.

Other witnesses, including Calloway, testified that Riley approached, pulled out his gun and stood over Jaramillo while demanding to know where the 9 mm pistol was. Jaramillo's hands were by his head, as he had propped himself up on his right elbow, and the gun was in his right pants pocket, beneath him as he lay on his side on the ground. Riley ordered Jaramillo and Calloway not to move, and when Jaramillo looked up Riley shot him in the back of the neck, took Jaramillo's gun, and left.

Although conflicting evidence as to events was presented, there is no dispute that Riley pulled a gun on Jaramillo first.

Riley was charged with two counts of robbery, one count of assault in the first degree, and one count of unlawful possession of a firearm.

The issue at trial was whether Riley shot Jaramillo in self-defense, as he claimed. The trial court gave the jury several instructions on self-defense, and also gave an aggressor instruction. Clerk's Papers (CP) at 112 (Jury Instruction 15). Riley objected to the aggressor instruction, claiming that there was insufficient evidence to warrant giving it.

The jury found Riley guilty of assault in the first degree. Pursuant to the parties' agreement, the firearms charge was severed, and the trial judge found Riley guilty on that charge. The court sentenced Riley to a 300-month exceptional sentence.

Riley appealed, arguing that the giving of the aggressor instruction was error, that prosecutorial misconduct denied him a fair trial, and the trial court erred in imposing an exceptional sentence. Riley's convictions and sentence were affirmed in a Court of Appeals' Commissioner's ruling on the court's own motion on the merits. See RAP 18.14. Although Riley argued, among other things, that the giving of the aggressor instruction denied him First Amendment rights, the argument was not addressed because it was raised for the first time on appeal and the Commissioner ruled that Riley had not shown a manifest error affecting a constitutional right. The Court of Appeals denied Riley's motion to modify the ruling.

Riley then sought discretionary review by this court, arguing only that the giving of the aggressor instruction was error.

ANALYSIS

The jury was instructed:

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 that 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.

CP at 112 (Jury Instruction 15); see II Washington Pattern Jury Instructions; Criminal 16.04 (2d ed. 1994) (WPIC).

Riley maintains that the giving of the aggressor instruction in this case denied him the ability to argue his theory of self-defense and violated his First Amendment right to free speech. The argument in his petition for review, however, is confined to the First Amendment issue. ¹ Apparently, Riley believes the aggressor instruction was based upon his comments about gang affiliation and calling Gustavo Jaramillo a "wanna-be." RP at 28. His premise is flawed because, although there was testimony to the contrary, there was evidence that Riley drew his gun first and aimed it at Jaramillo. The aggressor instruction in this case was proper because it was not based on Riley's words alone, but on his aggressive conduct as well.

"Jury instructions are sufficient if they permit each party to argue his theory of the case and properly inform the jury of the applicable law." State v. Bowerman, 115 Wash.2d 794, 809, 802 P.2d 116 (1990) (quoting State v. Rice, 110 Wash.2d 577, 603, 757 P.2d 889 (1988)). To raise self-defense before a jury, a defendant bears the initial burden of producing some evidence that his or her actions occurred in circumstances amounting to self-defense, i.e., the statutory elements of reasonable apprehension of great bodily harm and imminent danger. State v. Janes, 121 Wash.2d 220, 237, 850 P.2d 495, 22 A.L.R.5th 921 (1993). In order to establish self-defense, a finding of actual danger is not necessary. The jury instead must find only that the defendant reasonably believed that he or she was in danger of imminent harm. State v. LeFaber, 128 Wash.2d 896, 899, 913 P.2d 369 (1996). The evidence of self-defense must be assessed from the standpoint of the reasonably prudent person standing in the shoes of the defendant, knowing all the defendant knows and seeing all the defendant sees. Janes, 121 Wash.2d at 238, 850 P.2d 495.

However, in general, the right of self-defense cannot be successfully invoked by an aggressor or one who provokes an altercation, unless he or she in good faith first withdraws from the combat at a time and in a manner to let the other person know that he or she is withdrawing or intends to withdraw from further aggressive action. State v. Craig, 82 Wash.2d 777, 783, 514 P.2d 151 (1973). Where there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense, an aggressor instruction is appropriate. State v. Hughes, 106 Wash.2d 176, 191-92, 721 P.2d 902 (1986); State v Kidd, 57 Wash.App. 95, 100, 786 P.2d 847 (1990). If there is credible evidence that the defendant made the first move by drawing a weapon, the evidence supports the giving of an aggressor instruction. State v. Thompson, 47 Wash.App. 1, 7, 733 P.2d 584 (1987). An aggressor instruction is appropriate if there is conflicting evidence as to whether the defendant's conduct precipitated a fight. State v. Davis, 119 Wash.2d 657, 666, 835 P.2d 1039 (1992). The evidence supported giving the aggressor instruction in this case. ²

Riley maintains, however, that the instruction violated his First Amendment rights. Before addressing this issue, we note that Riley's argument regarding his First Amendment claim fails to explain adequately his contention that he engaged in protected speech and fails to explain how the giving of the aggressor instruction ran afoul of the First Amendment. He fails to cite any authority which truly supports his argument that his First Amendment rights have been abridged. Instead, cases he relies upon involve defendants' claims of prosecution for speech. E.g., State v. Talley, 122 Wash.2d 192, 858 P.2d 217 (1993) (prosecution under "hate crimes" statute). As the Court of Appeals reasoned, Riley has failed to identify manifest error affecting a constitutional right which justifies his raising of the First Amendment claim for the first time on appeal. See RAP 2.5(a)(3). Nevertheless, we explain why Riley's argument otherwise fails under the facts in this case. See RAP 1.2(c).

Although language in some older cases suggest that words alone may justify the conclusion that the speaker is an aggressor, ³ we hold that words alone do not constitute sufficient provocation. Therefore, the giving of an aggressor instruction where words alone are the asserted provocation would be error completely aside from any First Amendment issue.

A "victim" faced with only words is not entitled to respond with force. As a leading treatise explains, the reason one generally cannot claim self-defense when one is an aggressor is because "the aggressor's victim, defending himself against the aggressor, is using lawful, not unlawful, force; and the force defended against must be unlawful force, for self-defense." 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 657-58 (1986) (footnotes omitted). If words alone,...