State v. Safford

• Decision Date: 10 December 1979
• Docket Number: No. 6655-2-44871-I,6655-2-44871-I
• Citation: 24 Wn.App. 783,604 P.2d 980
• Parties: STATE of Washington, Respondent, v. Van Owen SAFFORD, Jr., Appellant.
• Court: Washington Court of Appeals

Page 783

24 Wn.App. 783

604 P.2d 980

STATE of Washington, Respondent, v. Van Owen SAFFORD, Jr., Appellant.

No. 6655-2-44871-I.

Court of Appeals of Washington, Division 1.

Dec. 10, 1979.

Reconsideration Denied March 4, 1980.

[604 P.2d 981] Richard A. Hansen, Public Defender, Appellate Div., John R. Muenster, Asst. Public Defender, Seattle (court appointed on appeal only), for appellant.

Norm K. Maleng, King County Pros. Atty., J. Robin Hunt, Deputy Pros. Atty., Seattle, for respondent.

ANDERSEN, Judge.

FACTS OF CASE

The defendant appeals from a judgment and sentence entered on a jury verdict of guilty of murder in the second degree arising out of a death by stabbing. The appeal was taken directly to the State Supreme Court which transferred it to this court for determination.

At trial, the State presented evidence from which the jury was entitled to find that the stabbing occurred as follows. ¹

On the afternoon of September 19, 1976, the defendant, Van Owen Safford, Jr., age 25, started out to "find something to get into." He stopped by the homes of various friends, ended up at the apartment of one Raymond Brantley and suggested that everyone present head over to Volunteer Park for an "occurrence."

At the apartment, the victim, Warren Milligan, age 17, asked the defendant for money which the defendant owed him. This money was owed to the victim as the result of his sale of a bicycle to the defendant. The defendant had paid the victim $15 when he received the bicycle but still owed him $20 on it. The defendant responded that he did not The defendant then told the victim that if he would follow the defendant to his father's house, he would give the victim his bicycle back. Unknown to the victim, the defendant had himself sold the bicycle several weeks earlier, and did not have it in his possession. The victim followed the defendant, accompanied by Clyde Fane, Anthony and Carel Burns.

have the money, then went into the apartment and got a knife. Coming down the stairs quickly, he jumped over the bannister and challenged, "Hey man, I'm not going to take no -whippings." He got within 2 1/2 feet of the victim when he was intercepted by Brantley and disarmed.

Upon arrival at the residence of the defendant's father, the defendant ran inside the house and and asked his father for his .357 Magnum pistol. When his father refused the request, the defendant got a butcher knife out of the kitchen. With knife in hand, he walked out of the house toward the victim shouting, "You're on my turf, now," or "I'm going to show you what you going to get now."

The victim was sitting on his bike on the far side of the street talking to Anthony Burns. He did not see the defendant approaching with the knife until one of the young people screamed, "He's got a knife." At this warning, the victim spun around, grabbed his bicycle and held it in front of him for protection. The defendant lunged and the knife went through the bicycle frame and pierced the victim's heart. The victim fell, still holding the bicycle. The knife never left the defendant's hand. As the victim fell to the ground, the knife was withdrawn at once. The defendant returned to his father's house and later reappeared on the porch, wiping his hands on a towel and said, "See, man, I don't take no off no ."

The defendant was charged with first-degree murder. RCW 9A.32.030(1)(a). The jury was instructed on the elements of that crime and on the included offenses of murder in the second degree, RCW 9A.32.050(1)(a) and (b), and manslaughter in the first degree, RCW 9A.32.060. The defendant was found guilty of murder in the second degree.

This appeal presents six issues.

ISSUES

ISSUE ONE. Did the trial court err in instructing the jury that it could convict the defendant of murder in the second degree if it found that he was committing the felony of assault in the second degree and caused the victim's death in the course of and in furtherance of such crime?

ISSUE TWO. Did the trial court err in not instructing the jury on self-defense?

ISSUE THREE. Did the trial court err in refusing to admit evidence that the victim and those around him at the time of his death were members of a gang which had a reputation for violence?

ISSUE FOUR. Did the trial court err in permitting a detective to testify that when the defendant described the stabbing, he did not deny intentionally doing it, and in also permitting the defendant to be cross-examined as to this?

ISSUE FIVE. Did the trial court err in refusing to permit a State's witness to be impeached by proof of a prior conviction which had been dismissed pursuant to the deferred sentence statute?

ISSUE SIX. Did the trial court commit reversible error when, after receiving a request from the jury for further instructions on the definition of assault, it sent a response to the jury without advising counsel?

DECISION

ISSUE ONE.

CONCLUSION. For purposes of the second-degree felony murder statute, an assault does not merge into a resulting homicide; therefore, the trial court's instructions were correct.

Error is assigned to those of the trial court's instructions which permitted the defendant to be convicted under the felony murder section of the second-degree murder statute where, as here, the sole felony providing the basis for implementation of the felony murder doctrine was the assault upon the victim which was the direct cause of his death. The excepted-to instructions are essentially in the language approved in WPIC 27.02, 27.03 and 35.10, ² 11 Wash.Prac. (1977). They are in accordance with the statute defining the offense, RCW 9A.32.050, and defining assault in the second degree, RCW 9A.36.020. ³ It is the defendant's argument that the merger doctrine which pertains in a majority of jurisdictions should apply in this state, and if so applied, would preclude use of the felony murder statute except where the underlying felony was in fact independent of the homicide. See Annot., 40 A.L.R.3d 1341 (1971). "While it may be that the felony murder statute is harsh, and while it does relieve the prosecution from the burden of proving intent to commit murder, it is the law of this state." State v. Thompson, 88 Wash.2d 13, 17, 558 P.2d 202 (1977). Accord, State v. Wanrow, 91 Wash.2d 301, 588 P.2d 1320 (1978); State v. Roberts, 88 Wash.2d 337, 344 n.4, 562 P.2d 1259 (1977); State v. Harris, 69 Wash.2d 928, 931-33, 421 P.2d 662 (1966). The defendant's principal contentions in this regard are disposed of by Thompson and Wanrow ; the remainder do not persuade us that this rule, which has recently been restated by the State Supreme Court, is improper. The trial court did not err in instructing the jury on felony murder in the second degree.

ISSUE TWO.

CONCLUSION. The evidence did not warrant instructing on self-defense; therefore, the trial court correctly refused to do so.

The trial court instructed the jury on the defendant's theory of excusable homicide, that is, that a homicide is excusable when caused by accident or misfortune. ⁴ It did not, however, instruct on the theory of justifiable homicide or self-defense and to this the defendant assigns error.

A defendant is entitled to have his theory of the case submitted to the jury under appropriate instructions when the evidence warrants it. Elmer v. Vanderford, 74 Wash.2d 546, 552, 445 P.2d 612 (1968); State v. Wright, 12 Wash.App. 585, 590, 530 P.2d 704 (1975). However, there must be substantial evidence in the record to sustain a theory on which instructions are given. State v. Elder, 70 Wash.2d 414, 419, 423 P.2d 533 (1967); Bean v. Stephens, 13 Wash.App. 364, 369, 534 P.2d 1047 (1975). Therefore, the primary question in connection with this issue is whether there is substantial evidence in the record to sustain the theory of self-defense. The trial court held there was not. We agree.

It is uncontroverted that upon reaching his father's house the defendant was angry. He went upstairs and asked his father for a gun but did not get one. The defendant then went into the kitchen, got a butcher knife and went back outside.

The victim was sitting on his bicycle or standing near it on the far side of the street talking with another young man. The others present were either riding their bicycles in the street or sitting on their bicycles. The defendant walked through the yard and across the street with the butcher knife in his hand and approached the victim. As he did so, one of the others screamed that the defendant had a knife. The victim turned and raised his bike in front of him. The knife went through the bike and into the victim's chest. The defendant then went back into his father's house.

None of the foregoing is controverted. So far as the defendant's own testimony is concerned, he repeatedly testified that the stabbing was an accident caused by the victim coming toward him, holding his bicycle in front of him and tripping. He also repeatedly testified that he did not intend to stab the victim. As one text explains the law of self-defense in the State of Washington, "(t)he only burden on the defendant is that there be enough evidence to take the issue of self-defense to the jury." 11 Wash.Prac. 102 (1977). There was no evidence upon which a claim of self-defense could be based; therefore, the trial court did not err by not instructing on it. State v. Biondic, 47 Wash.2d 593, 594-95, 288 P.2d 845 (1955); State v. Barnhart, 73 Wash.2d 936, 940-41, 442 P.2d 959 (1968); State v. Roberts, supra, 88 Wash.2d at 346, 562 P.2d 1259.

ISSUE THREE.

CONCLUSION. The trial court did not abuse its discretion in limiting the testimony as it did. State v. Adamo, 120 Wash. 268, 269-70, 207 P. 7 (1922).

The defendant argues that it was error for the trial court to refuse to admit evidence that the victim and those around him at the time of his death were members of a gang with a reputation for violence. As to that, the trial court's ruling is instructive:

THE COURT: As I...