State v. Sivo, No. 50565-3-I (Wash. App. 4/19/2004)
| Decision Date | 19 April 2004 |
| Docket Number | No. 50565-3-I,50565-3-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. STEPHEN EARL SIVO, Appellant. |
Appeal from Superior Court of Whatcom County. Docket No: 00-1-00808-5. Judgment or order under review. Date filed: 05/29/2002. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Stephen Earl Sivo (Appearing Pro Se), Washington State Pennitentiary, 1313 N. 13th Avenue, Doc# 804715, Walla Walla, WA 99362.
Counsel for Respondent(s), David Stuart Mc Eachran, Whatcom Co Courthouse, 311 Grand Ave, Bellingham, WA 98225-4048.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Stephen Sivo appeals his conviction of one count of first degree felony murder predicated on robbery. Because Sivo did not receive effective assistance of counsel, we reverse and remand for a new trial. We also conclude the trial court erred by not giving an excusable homicide instruction and by excluding testimony from Sivo's former attorney as irrelevant.
On August 1, 2000, appellant Stephen Sivo threw a party at his home in Kendall, Washington. The victim, Melvin Bass, whom Sivo had known for several years, attended the party. There is conflicting testimony about whether Sivo invited Bass to the party or told him before the party he was not welcome. During the party, Nate Williams and Dennis Smith began to argue on the front porch. Bass intervened and encouraged the two men to fight. Dennis said something to Bass, and Bass punched him, causing him to fall off the porch. Dennis left, saying that he would be returning with his older brother, Juston. After the incident, Sivo allegedly asked Bass again to leave his house. Bass left the party with a friend, Rachel Gordon, to buy more beer, but he planned to return.
At the store, Rachel saw Bass pay for the beer with money out of his pocket, which she said totaled $20-$30. Earlier that evening, another guest at the party, Shawna Thunstrom, saw Bass with a one-inch thick wad of bills that he put in his front pocket. Meanwhile, Dennis' brother, Juston Smith (Smith), arrived at the party looking for the person who punched his brother. Smith asked one of the guests to call him when Bass returned from the store, and she did. Smith returned to the party, called Bass out onto the porch, and they proceeded to get into a heated argument. Smith was much smaller in stature than Bass, and neither man had a weapon.1 Bass yelled at Smith about fighting with him.2 From this point forward, there are conflicting accounts about what exactly occurred.
The State's witnesses testified that Bass was not making any aggressive movements toward Smith when Sivo came forward and hit Bass in the head with a baseball bat. One witness testified that Sivo `patt{ed} {Bass} down' after he struck him with the bat. The witnesses for the defense claimed that Smith was trying to calm Bass down, and only when Bass was about to strike Smith, did Sivo hit him with the bat. Smith testified that Bass was inches from his face, he was extremely frightened, and he tried to get around Bass, but the porch was too crowded to do so. Smith stated that Bass put up his fists, he believed his life was at risk, and just as Bass was about to punch him, Sivo struck him with the bat. Sivo testified that he saw Bass reach toward his pocket with his right hand, and he believed Bass was either reaching for a weapon or pulling back to strike Smith. Sivo stated he did not think he could successfully grab Bass because he had a cast on one hand and was limited by injuries he sustained in 1999.3 He saw the baseball bat, grabbed it, and struck Bass twice once after he had fallen because he believed that degree of force was necessary to protect Smith from Bass. He stated he only intended to knock Bass unconscious. After the incident, Sivo and his friends put Bass in the back of Bass' pick-up truck and drove to a pay phone. Sivo called 911, stated there was a man needing medical assistance at that location, left the receiver off the hook, and had a friend drive him back to his house. The police responded to the scene where they found Bass without a pulse and not breathing. Bass was wearing his watch and a necklace and the wallet in his pocket contained a $100 bill. He also had a small amount of money in his pants' pockets and in the glove box of his truck. The police found the truck keys in the ignition, as well as other valuables in the truck. The paramedics pronounced Bass dead on the way to the hospital. The police arrested Sivo for killing Bass after a person who knew him identified his voice on the 911 tape.
The State charged Sivo with first-degree felony murder on the theory that Sivo killed Bass in the course of first-degree robbery or alternatively, second-degree murder predicated on second-degree assault. At trial, the State offered testimony from jailhouse informant William DeLong.4 According to DeLong, Sivo talked openly about what occurred the night he killed Bass both on the telephone to his family and to other inmates. DeLong said that Sivo indicated he had planned to kill Bass even before the incident occurred on the porch, he had wanted him dead for a long time, and he was glad he killed him. He also testified that Sivo said he convinced witnesses to testify consistently with his self-defense claim and arranged for a prosecution witness to be out of town for trial. DeLong also stated that Sivo admitted to taking everything out of Bass' pockets.
Sivo contended at trial that he acted in defense of Smith and used justifiable force in light of his reasonable fear that Smith faced great personal injury from Bass. He offered evidence that Bass was a fairly strong person compared to others at the party and had a reputation for violence. He testified that he had heard that Bass killed a man, stabbed another man in the throat, had recently beaten someone up in a bar, had raped a woman, and was physically abusive to his ex-wife. He also said he believed that Bass carried a gun in his truck and a knife on his hip that he could quickly remove. He claims he only patted Bass' pants to feel for his truck keys. He offered testimony of two other witnesses who corroborated his story.
A jury found Sivo guilty of first-degree felony murder predicated on first-degree robbery. He appeals the conviction.
A defendant is denied his right to effective assistance of counsel when his attorney's conduct `(1) falls below a minimum objective standard of reasonable attorney conduct, and (2) there is a probability that the outcome would be different but for the attorney's conduct.'5 Reasonable attorney conduct includes a duty to investigate the facts and the relevant law.6
Sivo first claims his counsel was ineffective because he proposed an incorrect `act on appearances instruction'7 and failed to object to the State's erroneous instruction number 18.8 Both instructions used the term `great bodily harm' rather than the correct standard for self-defense instructions, which is `great personal injury' under both the Washington Pattern Jury Instructions-Criminal (WPIC) and State v. Walden.9 In this case, Sivo argues, the distinction between the two terms is particularly significant because Sivo used deadly force against Bass who ultimately turned out to be unarmed. We agree.
First, the jury instructions in this case were clearly incorrect, and a reasonable attorney would have objected to them. In Walden, the Washington Supreme Court addressed whether self-defense instructions that excluded as a matter of law all ordinary batteries from the definition of `great personal injury' were instructional error in a case where the defendant used deadly force in self-defense against an unarmed assailant. The court held that it was reversible error because the instruction prohibited the jury from considering the defendant's subjective impressions of all the facts and circumstances, such as whether the defendant reasonably believed the battery at issue would result in great personal injury based on the size disparity between that batterer and the person being assaulted.10 This court applied the Walden holding in State v. Freeburg,11 a case that is similar to this one because it involved self-defense instructions that were inconsistent and misstated the law. There, the court gave four standard instructions: justifiable homicide, act on appearances, the definition of great bodily harm, and the definition of great personal injury. As in this case, the justifiable homicide instruction included the `great personal injury' standard while the act on appearances instruction included the `great bodily harm' standard. Citing Walden, we held that the act on appearances instruction should also use the `great personal injury' language.12 We said that using the correct language is particularly important in cases where a person uses deadly force against an unarmed assailant because the `great bodily harm' language `could cause a jury to reject self-defense without considering the defendant's right to act on appearances.'13 We noted that the Jury Instructions Committee had not yet corrected the standard instructions as dictated by Walden, so `it is imperative that trial courts make the correction to the standard instructions that the Committee has not yet made.'14 We held that `in future justifiable homicide cases, courts should follow the advice set forth in the comment to WPIC 2.04.0115 and replace the phrase `great bodily harm' with the phrase `great personal injury' in the act on appearances instruction.'16 We concluded in that case that failing to use the correct term was harmless because the threat of injury...
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