State v. Seipp, No. 25751-7-III (Wash. App. 12/27/2007)
| Decision Date | 27 December 2007 |
| Docket Number | No. 25751-7-III.,25751-7-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. KYLE MARTIN SEIPP, Appellant. |
Appeal from Whitman Superior Court. Docket No. 05-1-00282-9. Judgment or order under review. Date filed: 12/01/2006 Judge signing: Honorable John David Frazier.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119 Spokane, WA, 99206-6827.
Counsel for Respondent(s), Byron Bedirian Prosecutor's Office, Po Box 30, Colfax, WA, 99111-0030.
A jury convicted Kyle Seipp of second degree assault. Prior to closing arguments, the trial court read instructions to the jury. The trial court misstated jury instruction 12 to say "[i]f you find the State has not proved the absence of this defense beyond a reasonable doubt it will be your duty to return a verdict of guilty,"1 instead of "not guilty." On appeal, Mr. Seipp contends the trial court erred by issuing a jury instruction that improperly relieved the State of its burden to prove the absence of self-defense. We hold that while instruction 12 — as read to the jury — was defective, the written instruction submitted to the jury and the instructions as a whole clearly informed the jury of the proper burden on the State. Therefore, we affirm.
Mr. Seipp was charged by information with second degree assault. The information specifically alleged that on December 4, 2005, Mr. Seipp intentionally assaulted Thomas Schoenfelder, Jr., and thereby recklessly inflicted substantial bodily harm on Mr. Schoenfelder by hitting him on the head with a deadly weapon — a bottle.
During trial, the jury heard testimony from nine witnesses: Deanna Baltzell, the host of the party where the assault occurred; Tom Schoenfelder, the assault victim; Officer Scott Kirk of the Pullman Police Department; Dr. Peter Mikkelsen, the treating physician; and five witnesses who attended the party.
Events on December 4, 2005. In the early morning hours of December 4, 2005, officers from the Pullman Police Department were called to the scene of a fight at an apartment complex. Ms. Baltzell and her roommate, Katie Curtis, held a party at their apartment in Pullman the night of December 3, which carried over into the morning of December 4. Approximately 20 to 30 people attended. Guests at the party included Kyle Seipp, a coworker of the roommates, and Ms. Curtis's boyfriend, Tom Schoenfelder. Alcohol was served at the party, and many guests arrived after having consumed alcohol earlier in the evening.
Mr. Seipp appeared intoxicated when he arrived at the party, and he was seen drinking throughout the evening. During the party, Mr. Seipp called Ms. Baltzell a "broad," and her boyfriend, Jaron Herst, became angry. Report of Proceedings (RP) at 62. An argument ensued between the two men. The argument continued for an hour. At some point, Mr. Seipp and Mr. Herst pushed and slapped each other.
After the fight, Mr. Herst fell asleep, and Ms. Baltzell and Ms. Curtis spoke with Mr. Seipp in the bathroom. Ms. Baltzell testified that while she told Mr. Seipp that he would have to leave if he did not stop his behavior, her roommate Ms. Curtis told him he had to leave. Mr. Seipp did not leave, but instead went into Ms. Curtis's bedroom to apologize. When Ms. Curtis again told Mr. Seipp that he needed to leave, he began pushing her. As Mr. Seipp flailed his arms around, he hit Ms. Baltzell. Ms. Baltzell testified: RP at 77. She also stated that Mr. Seipp used a closed fist.
Testimony shows that Mr. Seipp's behavior was disruptive and became increasingly aggressive throughout the evening. The situation inside the apartment was described as tense. However, the testimony indicated that no one other than Mr. Herst was heard threatening Mr. Seipp or was seen hitting him during the party. Ultimately Ms. Curtis's boyfriend, Mr. Schoenfelder, made the decision to remove Mr. Seipp from the party. Mr. Schoenfelder testified that he "felt that if Kyle remained in the apartment someone was going to get hurt." RP at 132.
At that point, Mr. Schoenfelder advised Mr. Seipp that he needed to leave the party, and escorted Mr. Seipp out of the apartment by pushing him from behind. The testimony varied as to how much force Mr. Schoenfelder used when pushing Mr. Seipp out of the door; but the testimony consistently shows that Mr. Schoenfelder did not hit or threaten Mr. Seipp. Mr. Seipp, however, did not want to leave the party and attempted to get back inside the apartment.
Within one to one and one-half seconds of being pushed onto the front patio, and within a few steps of the doorway, Mr. Seipp hit Mr. Schoenfelder on the head with a beer bottle. Mr. Schoenfelder sustained a head injury, which was later diagnosed as a subarachnoid hemorrhage, and he was admitted to Pullman Regional Hospital.
Another guest at the party, Cameron Bendewald, testified that after Mr. Seipp hit Mr. Schoenfelder, he physically took Mr. Seipp to the ground and held him there to restrain him. Mr. Schoenfelder never hit or kicked Mr. Seipp while he was being held. The only injury Mr. Seipp sustained was a cut on his hand.
When Officer Kirk arrived, he observed a group of 5 to 10 males outside the apartment, who appeared upset. Officer Kirk testified that he contacted Mr. Seipp inside the apartment while Mr. Seipp was treating his hand. Officer Kirk questioned Mr. Seipp about the events of the evening. Mr. Seipp admitted to the officer that he had been asked to leave the party, but that he did not want to do so. The officer's testimony shows that Mr. Seipp also admitted that he hit Mr. Schoenfelder over the head with a bottle when Mr. Schoenfelder directed him to leave the apartment.
Mr. Seipp told Officer Kirk that he thought he was outnumbered at the party by Mr. Schoenfelder's friends, and he felt they ganged up on him inside the apartment. Mr. Seipp also told the officer that he was forced to defend himself and he claimed that he hit Mr. Schoenfelder in self-defense. Finally, Officer Kirk testified that when he asked Mr. Seipp who threw the first punch, Mr. Seipp stated that he did. Mr. Seipp was arrested and charged with assault in the second degree.
Self-Defense Instruction. The court provided 23 jury instructions. The trial court read the instructions to the jury, prior to closing arguments. The jury was also provided with written copies of the correct instructions for their deliberations. Instruction 12 concerned the defense of lawful force. As written, instruction 12 stated, in part:
The State has the burden of proving beyond a reasonable doubt that the force [used] by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty. Clerk's Papers (CP) at 25 (emphasis added). This instruction on the burden of proof is based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.02 (2d ed. 1994), and is identical to Mr. Seipp's proposed instruction.
When instruction 12 was read to the jury, however, the trial court misstated the last sentence of that instruction to say:
If you find the State has not proved the absence of this defense beyond a reasonable doubt it will be your duty to return a verdict of guilty.
RP at 218 (emphasis added).
During closing argument, defense counsel addressed the court's misstatement as follows:
Again, finally it says in the self-defense instruction the State has the burden of proving beyond a reasonable doubt that the force by the defendant was not lawful. The State has to prove it was not lawful. So if you have any reason to believe it was lawful, could have been lawful, may have been lawful, you have to acquit. That is self-defense. The next paragraph, last paragraph or last sentence next of the instruction if you find the State has not proved the absence of this defense beyond a reasonable doubt they must prove its lack beyond a reasonable doubt it will be your duty to return a verdict of not guilty. I'm not sure the Judge got that not in just to be sure it's not guilty and again you'll have a written copy. But if you find the State has not proved the absence of this defense beyond a reasonable doubt you have to return a not guilty verdict. They have to prove there cannot be any doubt in your mind that Mr. Seipp is entitled to self-defense in this situation. The State has to eliminate all doubt from your mind that he was entitled to defend himself.
RP at 254-55 (emphasis added).
In response to Mr. Seipp's comments on instruction 12, the prosecutor reiterated that the State had the burden of proving the absence of self-defense beyond a reasonable doubt. Finally, the prosecutor advised the jury to "[r]ead the jury instructions carefully."
Appeal. On October 17, 2006, a jury found Mr. Seipp guilty of assault in the second degree. This appeal followed.
Mr. Seipp contends the trial court relieved the State of its burden to prove lack of self-defense beyond a reasonable doubt by issuing an oral instruction to the jury on self-defense, which substituted the word "guilty" for "not guilty."
Standard of Review. On appeal, this court reviews instructional errors de novo. State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995). A jury instruction must state the applicable law correctly. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). "Jury instructions are sufficient if ...
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