Opinion
No. 36683-5-II.
March 10, 2009.
Appeal from a judgment of the Superior Court for Clallam County, No. 07-1-00238-2, Kenneth D. Williams, J., entered August 24, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.
A jury found Niccole M. Charles guilty of second degree assault. Charles appeals her conviction, arguing that (1) the State violated her constitutional right to compulsory process by refusing to produce a witness in State custody; (2) the trial court erred by allowing extrinsic evidence to impeach a witness in violation of ER 613(b), improperly giving an aggressor jury instruction, and by providing an incomplete instruction on the law of self-defense because it failed to give the jury a "no duty to retreat" instruction; and (3) her defense attorney was ineffective for failing to request a "no duty to retreat" instruction. We affirm.
FACTS
Background Facts
On May 5, 2007, inmates housed in the M-tank of the Clallam County jail lined up to pick up their lunch trays. Debbra Tvrdik picked up her lunch tray and sat at a table when either Charles or another inmate, Sheryl Kreaman, told Tvrdik that she was sitting in Charles's seat. Tvrdik responded that she did not know seats were assigned and then either called Charles a bitch or all the women at the table bitches. One inmate, Sabrina Madrigal, testified that she heard Charles tell Tvrdik, "just wait I'm going to kick your ass." Report of Proceedings (RP) (Aug. 14, 2007) at 41. Tvrdik then told the group that she was going to her cell to eat. Charles and Tvrdik continued to exchange words and Tvrdik called Charles a "cunt." RP (Aug. 14, 2007) at 42. Tvrdik left for her cell and Charles followed her.
The parties dispute what happened next. According to Tvrdik, Charles entered her cell and was standing about a foot in front of her when Tvrdik told Charles, "[I]f you touch me I'm going to press charges, if you hit me I'm going to press charges." RP (Aug. 14, 2007) at 196. Charles then hit Tvrdik in the face and she flew back against a wall, hit her head on the cement, and she slid down on her bed. Tvrdik repeatedly tried to get up while Charles continued to hit her in the head. Charles eventually relented and Tvrdik was able to leave her cell. Madrigal gave a similar account of what transpired in the cell, stating that Charles hit Tvrdik in the nose with the palm of her hand and continued to hit Tvrdik while she was on the ground.
Charles disputes the testimony. She claims that she stood at the door to Tvrdik's cell in an attempt to resolve their conflict when Tvrdik began swinging at her with her fists. While attempting to defend against Tvrdik's blows, Charles closed her eyes and put her hands up, apparently making contact in a manner that caused Tvrdik to fall back against the wall and onto her bed. While on her bed, Tvrdik continued to kick at Charles until Charles left the cell. Kreaman testified that she witnessed Charles standing at the doorway to Tvrdik's cell when Tvrdik began swinging and kicking at Charles. Kreaman claimed that she did not see what happened next because of all the commotion in the M-tank. Inmate Sophia Trujillo Akuna gave a similar account of what transpired in Tvrdik's cell, stating that Tvrdik was swinging and kicking at Charles while Charles was defending herself.
Tvrdik's nose was bloody and she had bruises and lacerations on her head. Charles testified that she suffered from a headache, ringing in her ears, and an injury on one of her hands. The State charged Charles with second degree assault. Procedural Facts
At a July 11, 2007 pretrial hearing, Charles's attorney sought to compel the attendance of two witnesses to the fight. He informed the trial court that the State would need to transport one witness, Kreaman, because she was in a Drug Offender Sentencing Alternative (DOSA) treatment facility in Des Moines, Washington. The trial court discussed the logistics of transporting Kreaman, stating that it would be "problematic" because the Department of Corrections (DOC) "takes the position that they are not in DOC care when they are in the residential phase of treatment." RP (July 11, 2007) at 16.
The other witness, Natasha Dinglasan, was transported to trial but invoked her right to remain silent as she had charges against her arising out of the melee.
On July 20, 2007, the trial court granted defense counsel's motion to transport Kreaman for the trial. The trial court scheduled the trial to begin on July 30, 2007. As of July 30, 2007, the State had not transported Kreaman and another defense witness. Defense counsel informed the trial court that he called Pioneer DOSA West and they told him that they do not transport anybody. The trial court then rescheduled the trial date and requested that the State look into the matter of transporting Kreaman and the other defense witness.
At an August 10, 2007 status hearing, defense counsel informed the trial court that the State had not yet transported Kreaman. The trial court determined that neither the DOC nor the Clallam County Sheriff's Department would transport Kreaman. The trial court then told defense counsel that he was responsible for transporting Kreaman and granted defense counsel's request for State funds to pay for Kreaman's bus fare.
A jury trial began on August 13, 2007. On the second day of the trial, defense counsel informed the court that DOSA staff would not allow Kreaman to travel unescorted. Defense counsel stated,
I called [DOSA] West again this morning and [they] indicated they don't have anybody to bring her over. They suggested telephonic testimony and they have a situation where they can do it telephonically.
So at this point I think that's really my only recourse, to allow her to testify telephonically and to me at this point it makes the most sense, because the State isn't willing to go transport her and I can't and [DOSA] won't let her take the bus round trip that I have made arrangements for Friday afternoon, and I think telephonic testimony is really my only way to go.
RP (Aug. 14, 2007) at 7-8.
The State's attorney responded,
Your Honor, I take exception to the assertion or allegation that the State won't transport. We have no responsibility and we don't have the means of doing it either and that was made clear to [defense counsel] by the Court last Friday.
With respect to the need for telephonic testimony, if there is no alternative then that is what has to happen and I have no objection to that.
RP (Aug. 14, 2007) at 8.
The trial court authorized the use of telephonic testimony and defense counsel renewed his objection over the State's assertion that it had no way to transport Kreaman when she was in a State-run facility. On the third day of the trial, Kreaman testified by telephone. On cross-examination, the State asked Kreaman about statements she made to officers regarding the incident in the M-tank:
Q. Didn't you say that Ms. Charles always sat in the same place at the table because it had the best view of the television?
A. No.
Q. Are you sure about that?
A. I may have, but that — I don't remember — I don't think it would be because she had a better view of the television.
Q. So your response is that you may had [sic] said that to the officer?
A. I don't know.
Q. Is that correct, you may have said it to the officer, you just don't recall now?
A. Yeah. It's been two and a half, three months.
RP (Aug. 15, 2007) at 40-41.
Q. So, your testimony is you saw [Tvrdik] swing at Ms. Charles and miss; isn't that what you told Sergeant Lightfoot?
A. Yeah.
Q. And then you told Sergeant Lightfoot that Ms. Charles started hitting Ms. Tvrdik; isn't that correct?
A. I don't believe I said that.
Q. You don't believe you said that?
A. I may have.
. . . .
Q. If you said it wouldn't it be because you saw that at the time?
A. Yes.
Q. Did you see Ms. Charles hitting Ms. Tvrdik inside the cell?
A. I think I saw her swing but like I said, there was a lot going on.
RP (Aug. 15, 2007) at 48-49.
Q. Didn't you tell Sergeant Lightfoot that because Charles and Tvrdik were in that room you couldn't see what was happening?
A. [Pause] —
I saw — I told you what I saw.
Q. But you told me you were watching television, you were not interested in fights.
A. Yes, I saw the very first part and then I looked away because I don't like fights.
RP (Aug. 15, 2007) at 53-54. At the end of her redirect examination, Kreaman testified that an earlier statement she gave to police was consistent with her testimony at trial.
The State told the trial court that it would call Deputy Jeffery Boyd to rebut Kreaman's testimony. Defense counsel objected that Kreaman had not been confronted with any prior statements and that extrinsic evidence of any prior statements was, therefore, inadmissible. The State responded, "I specifically asked Ms. Kreaman about her statements to Deputy Boyd and she denied a number of times that she made those statements to him." RP (Aug. 15, 2007) at 161.
It appears from the record that the prosecuting counsel was confused about whether Kreaman gave her statement to Sergeant Lightfoot or Deputy Boyd.
The trial court overruled the objection. The State then questioned Boyd about his interview with Kreaman:
Q. Did you come to learn that the initial interaction or problem was something to do with a seat?
A. Yes.
Q. Did Ms. Kreaman make any statements to you as to why that seat was important?
[Defense Counsel]: Your Honor, objection, hearsay.
[Prosecuting Counsel]: It's rebuttal, Your Honor, and Ms. Kreaman — I asked Ms. Kreaman specifically a question about the seat and she said there was nothing special about it, whereas the Deputy has something to say —
[Defense Counsel]: Your Honor, it's collateral —
The Court: Overruled. I will allow it.
[Boyd]. Yeah, Ms. Kreaman said that the seat — particular seat at the table in question was Ms. Charles's seat.
. . . .
Q. Did she tell you why?
A. Um, because it had the best view of the TV.
Q. Did Ms. Kreaman say anything to you about whether it was a one-sided discussion or disagreement or whether it was back and forth —
[Defense counsel]: Objection, Your Honor, this is cumulative. It's not relevant at this point. It's heresay . . . I don't see how it's inconsistent.
[Prosecuting counsel]: It's rather different from what Ms. Kreaman stated when she testified on the telephone, Your Honor.
The Court: Again I will allow this for impeachment purposes. You may continue.
. . . .
Q. Did [Kreaman] indicate to you it was a two way disagreement, argument?
A. No, they had been going back and forth.
RP (Aug. 15, 2007) at 165-67. Deputy Boyd continued to testify about his interview with Kreaman and her statements regarding Charles and Tvrdik's initial disagreement. The State questioned Boyd about Kreaman's statements regarding the actual fight:
Q. Did Ms. Kreaman make any reference to a statement about don't hit me or I'll press charges?
A. Yes.
Q. Who made such a statement?
A. Tvrdik . . .
. . . .
Q. Did Ms. Kreaman make any statements about [Charles] hitting Ms. Tvrdik?
A. Yes.
Q. What did she say?
A. She said they went into the cell off of M-tank, M-5 I believe, and was hitting — Ms. Charles was hitting Ms. Tvrdik . . .
. . . .
Q. In all fairness though, didn't she also say that Ms. Tvrdik had swung at Ms. Charles initially?
A. Yes.
. . . .
Q. Did Ms. Kreaman tell you she could see the blows or the strikes, the hitting going on in the cell?
A. Well, the way she explained it she couldn't exactly see Tvrdik in the cell, she could only see [Charles] and she could see [Charles] swinging but she couldn't see the actual hitting.
RP (Aug. 15, 2007) 168-69.
In closing argument, the prosecutor made the following statements to the jury:
The testimony you heard from Ms. Kreaman by telephone. I suggest to you, ladies and gentlemen, that her testimony just to put it lightly was a little unsure. She denied certain things that were in her statement that Deputy Boyd came and testified to you about, but she admitted closer in time would more likely to be closer in truth. So I suggest to you, ladies and gentlemen, that what you heard from Deputy Boyd would be more likely to be the truth.
RP (Aug. 15, 2007) at 213.
Every one of those witnesses testified [Charles] could have left, could have backed away, didn't have to go in there in the first place.
RP (Aug. 15, 2007) at 215.
In rebuttal, the State emphasized Charles's ability to leave the cell, stating:
Self defense is not available under the circumstances.
All of our witnesses testified she could have left there at any time. She didn't have to be in there, she had no right to be there. But she was losing face.
RP (Aug. 15, 2007) at 244-45.
The trial court gave the jury instructions on self-defense. At the prosecutor's request, the trial court also gave an initial aggressor instruction that stated:
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 [Charles] was the aggressor, and that [Charles's] acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
Suppl. Clerk's Papers (CP) at 40.
The jury found Charles guilty of second degree assault and the trial court imposed a standard range sentence. Charles timely appeals her conviction and sentence.
ANALYSIS
Right to Compulsory Process
Charles argues that the State violated her constitutional right to compulsory process under the state and federal constitutions because it failed to transport a defense witness to trial resulting in the need for defense counsel to rely on telephonic testimony. The State argues that it was neither responsible for nor empowered to transport the defense witness to trial because she was at a DOSA treatment facility and residents at a DOSA facility are not in State custody. The State further argues that Charles has waived her right to compulsory process by electing to have her witness testify by telephone.
The Sixth Amendment of the United States Constitution and article I, section 22 of the Washington State Constitution "guarantee an accused the right to compulsory process to compel the attendance of witnesses." State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). In holding that the Sixth Amendment right to compulsory process is applicable to the states through the due process clause of the Fourteenth Amendment, the United States Supreme Court stated:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).
"The guaranty of compulsory process is `a fundamental right and one "which the courts should safeguard with meticulous care".'" State v. Burri, 87 Wn.2d 175, 181, 550 P.2d 507 (1976) (quoting Feguer v. United States, 302 F.2d 214, 241 (8th Cir.), cert. denied, 371 U.S. 872 (1962)). In order for the right to compulsory process to be violated, the "`sovereign's conduct'" must "`impermissibly interfere[] with the right to mount a defense.'" United States v. Theresius Filippi, 918 F.2d 244, 247 (1st Cir. 1990) (quoting United States v. Hoffman, 832 F.2d 1299, 1303 n. 3 (1st Cir. 1987)). "The contested act or omission must be attributable to the sovereign, and it must cause the loss or erosion of material testimony which is favorable to the accused." Filippi, 918 F.2d at 247 (citing Hoffman, 832 F.2d at 1303).
Here, although Kreaman testified by telephone in support of Charles's self-defense claim, Charles argues that Kreaman's testimony was eroded because the jury could not witness her demeanor on the stand, thus making a credibility determination more difficult. Charles further argues that this erosion of testimony is attributable to the State because the State should have secured Kreaman's physical presence at trial as she was in State custody at the time. But residents of a DOSA treatment facility, like Kreaman, are not in State custody. And even if we assume it was the State's duty to transport Kreaman to trial, Charles agreed, albeit reluctantly, to have her witness proceed with telephonic testimony.
A defendant may waive his or her rights to compulsory process. In Filippi, the United States Court of Appeals, First Circuit, held that the defendant "knowing[ly] and intelligent[ly]" waived his constitutional right to compulsory process by proceeding to trial instead of moving for a continuance in order to secure the presence of a witness. 918 F.2d at 248. The Filippi court held that the decision to proceed to trial constituted a waiver of compulsory process despite the hard choice that was presented to the defendant, in that he may have been "physically unable to endure the time it would take to accomplish the necessary procedures." 918 F.2d at 248. In so holding, the First Circuit stated that the defendant "weighed the benefit of securing his witness . . . against the possible six-week delay in the trial, and decided to proceed." Filippi, 918 F.2d at 248.
Here, as in Filippi, Charles elected to proceed with telephonic testimony and, thus, knowingly and intelligently waived her right to compel Kreaman to testify in person. Charles argues that she did not "elect" to proceed with telephonic testimony because she was forced to choose between having her witness testify telephonically and requesting a mistrial (thus waiving her right under the double jeopardy clause to have the trial completed by the jury she had helped select). This argument lacks merit. First, Charles's defense counsel could have arranged for a chaperone to accompany Kreaman from the treatment facility to trial but instead elected to proceed via telephone. Charles also fails to mention her option of moving for a recess in order to secure her witness for trial. See State v. Edwards, 68 Wn.2d 246, 258-59, 412 P.2d 747 (1966) (reversible error for trial court to deny request for a recess to enable defendant to compel attendance).
Moreover, even if the State should have transported Kreaman to trial, any error resulting from her inability to testify in person is harmless. Violation of a defendant's right to compulsory process is subject to the constitutional harmless error test. Maupin, 128 Wn.2d at 928-29; Burri, 87 Wn.2d at 181-82; State v. Folkerts, 43 Wn. App. 67, 73 n. 5, 715 P.2d 157, review denied, 105 Wn.2d 1020 (1986). "A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Here, Charles argues that she was prejudiced because the jury was not able to witness Kreaman's demeanor during her testimony. But any error was insignificant because Kreaman's testimony was cumulative of that presented by another witness, Akuma. See Guloy, 104 Wn.2d at 425 ("constitutional errors . . . may be so insignificant as to be harmless"). From the record, it is clear that the jury not only found Kreaman's testimony incredible but also the consistent testimony of Charles and Akuma. We are convinced beyond a reasonable doubt that any reasonable jury would have reached the same verdict even if the State had transported Kreaman to testify in person at Charles's trial. ER 613(b)
Charles argues that the trial court erred by allowing the State to impeach Kreaman with extrinsic evidence in violation of ER 613(b). We agree in part but find the error harmless.
We review a trial court's evidentiary rulings for an abuse of discretion. State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998). A trial court abuses its discretion by making a decision based on untenable grounds or for untenable reasons. Johnson, 90 Wn. App. at 69. ER 613(b) states:
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.
Under ER 613, the proper procedure to impeach a witness with a prior inconsistent statement is to ask the witness whether she made the prior statement. State v. Babich, 68 Wn. App. 438, 443, 842 P.2d 1053, review denied, 121 Wn.2d 1015 (1993). If the witness admits the prior statement, extrinsic evidence of the statement is not allowed because such evidence "`would waste time and would be of little additional value.'" Babich, 68 Wn. App. at 443 (quoting 5A K. Tegland, Washington Practice: Evidence § 258(2), at 315 (1989)). If the witness denies the prior statement, extrinsic evidence of the statement is admissible unless it concerns a collateral matter. Babich, 68 Wn. App. at 443.
It is also sufficient under ER 613 for the examiner to give the declarant an opportunity to explain or deny the statement after the introduction of extrinsic evidence. State v. Horton, 116 Wn. App. 909, 916, 68 P.3d 1145 (2003) (citing Johnson, 90 Wn. App. at 70). But in order for counsel to admit extrinsic evidence of a prior inconsistent statement without first affording the witness a chance to explain or deny, counsel must arrange for the witness to remain in attendance after testifying. See Horton, 116 Wn. App. at 916.
Here, the State asked Kreaman about a statement she made regarding Charles's practice of sitting in the same chair and her motives for doing so. At first, Kreaman denied making the statement; then, upon further inquiry, she indicated that she might have made the statement but could not accurately remember. "[T]he rule is that the mere failure of the witness to recollect, when asked the preliminary question, does not preclude the impeacher from offering it." State v. Miles, 73 Wn.2d 67, 71, 436 P.2d 198 (1968). Kreaman's testimony was nonetheless sufficiently "inconsistent" for purposes of ER 613(b).
"Inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done. On a comparison of the two utterances are they in effect inconsistent? Do the two expressions appear to have been produced by inconsistent beliefs?"
State v. Dickenson, 48 Wn. App. 457, 467, 740 P.2d 312 (quoting 5 K. Tegland, § 256 (1982)), review denied, 109 Wn.2d 1001 (1987).
Over defense counsel's objection, the State later called Deputy Boyd to testify about Kreaman's prior statement regarding Charles's seat. The State allowed Kreaman to explain or deny the statement prior to Boyd's rebuttal testimony. Thus, the trial court did not abuse its discretion by admitting rebuttal evidence of Kreaman's prior statements regarding Charles's preferred chair.
But other portions of the State's rebuttal evidence are more troubling. For instance, the State questioned Deputy Boyd about Kreaman's statements regarding the initial disagreement and eventual fight between Charles and Tvrdik.
Q. Did Ms. Kreaman make any statements about [Charles] hitting Ms. Tvrdik?
A. Yes.
Q. What did she say?
A. She said they went into the cell off of M-tank, M-5 I believe, and was hitting — Ms. Charles was hitting Ms. Tvrdik . . .
Q. In all fairness though, didn't she also say that Ms. Tvrdik had swung at Ms. Charles initially?
A. Yes.
. . . .
Q. Did Ms. Kreaman tell you she could see the blows or the strikes, the hitting going on in the cell?
A. Well, the way she explained it she couldn't exactly see Tvrdik in the cell, she could only see [Charles] and she could see [Charles] swinging but she couldn't see the actual hitting.
RP (Aug. 15, 2007) at 168-69.
The State had not provided Kreaman with an opportunity to explain or deny these statements and it is unclear how these prior statements were inconsistent with her testimony. Therefore, the trial court erred by admitting this hearsay evidence as a prior inconsistent statement. But this error too was harmless.
Kreaman testified that she told officers that (1) she saw Tvrdik swing at Charles but miss, (2) she may have seen Charles swing at Tvrdik but did not see her make contact, and (3) she did not witness all of the fight in the cell because of various distractions around the tank.
Where the error rests on a violation of an evidentiary rule, not a constitutional mandate, we do not apply the more stringent "harmless error beyond a reasonable doubt" standard. See State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). Instead, we apply "the rule that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." Tharp, 96 Wn.2d at 599; accord State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
Here, the trial court admitted Deputy Boyd's testimony regarding Kreaman's prior inconsistent statements, not as substantive evidence, but for the limited purpose of impeaching Kreaman's credibility under ER 613. The portions of Boyd's testimony that the trial court improperly admitted under ER 613 were consistent with Kreaman's testimony and arguably admissible as prior consistent statements refuting recent fabrication. ER 801(d)(1)(ii). Thus, any damage to Kreaman's credibility arising from the improper admission of Boyd's consistent testimony was negligible. And it is unlikely that the improper admission of Boyd's testimony materially affected the outcome of the trial. The error was harmless. "Aggressor" Instruction
For the first time on appeal, Charles argues that the trial court erred by giving an "aggressor" jury instruction because there was no credible evidence that Charles provoked the need to act in self-defense. Specifically, Charles argues that giving an "aggressor" instruction is improper unless a defendant's "unlawful" act precipitates the need to act in self-defense. The State argues that the instruction was proper because there was sufficient evidence to find that Charles was the first aggressor.
As a general rule, appellate courts will not consider issues raised for the first time on appeal. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). There is an exception when a party raises a manifest error affecting a constitutional right. RAP 2.5(a)(3); Kirkman, 159 Wn.2d at 926. But we review manifest errors of constitutional magnitude only when the defendant identifies a constitutional error and demonstrates how the alleged error affected her rights. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Here, Charles's trial counsel did not object to the "aggressor" instruction. CrR 6.15(c); see State v. Colwash, 88 Wn.2d 468, 470, 564 P.2d 781 (1977) (purpose of CrR 6.15(c) is to afford the trial court an opportunity to correct any error). And Charles does not argue an exception to the rule that we do not consider issues raised for the first time on appeal. At most, Charles asserts the improper use of an "aggressor" instruction in passing, stating: "The aggressor instruction prohibited the jury from reaching the merits of her self-defense claim; this denied Ms. Charles her right to a fair trial." Br. of Appellant at 30. But we "will not review issues for which inadequate argument has been briefed or only passing treatment has been made." State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)). Therefore, Charles's argument that the trial court gave an improper "aggressor" instruction is not preserved for our review. Even if Charles's trial counsel should have objected to the giving of the instruction below, her claim fails on the merits.
In general, we review a trial court's choice of jury instructions for abuse of discretion. State v. Douglas, 128 Wn. App. 555, 561, 116 P.3d 1012 (2005). But we review an alleged error of law in jury instructions de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). A trial court may give a jury instruction only when substantial evidence supports it. Douglas, 128 Wn. App. at 561 (citing Tennant v. Roys, 44 Wn. App. 305, 309, 722 P.2d 848 (1986)).
In order to argue self-defense, a defendant bears the initial burden of producing some evidence that his or her actions occurred due to a reasonable apprehension of great bodily harm and imminent danger. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). But in general, a defendant cannot invoke the right of self-defense if her actions provoked an altercation. Riley, 137 Wn.2d at 909.
Aggressor instructions are not favored and trial courts should employ caution in giving them. See Riley, 137 Wn.2d at 910 n. 2 ("courts should use care in giving an aggressor instruction"); State v. Arthur, 42 Wn. App. 120, 125 n. 1, 708 P.2d 1230 (1985) ("Few situations come to mind where the necessity for an aggressor instruction is warranted."); State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 ("Aggressor instructions are not favored.") (citing State v. Wasson, 54 Wn. App. 156, 161, 772 P.2d 1039, review denied, 113 Wn.2d 1014 (1989)), review denied, 115 Wn.2d 1010 (1990).
But a trial court should give an aggressor instruction when "there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense." Riley, 137 Wn.2d at 909-10. It is also appropriate for the trial court to give an aggressor instruction "if there is conflicting evidence as to whether the defendant's conduct precipitated a fight." Riley, 137 Wn.2d at 910 (citing State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 1039 (1992)).
Here, the trial court gave the following aggressor jury instruction:
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 [Charles] was the aggressor, and that [Charles's] acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
CP at 40.
This instruction was modeled after 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 16.04, at 182 (2d ed. 1994) (WPIC), and has been examined in a number of appellate cases. In State v. Cyrus, 66 Wn. App. 502, 509, 832 P.2d 142 (1992), review denied, 120 Wn.2d 1031 (1993), Division One of this court found that it was not error to give an aggressor instruction nearly identical to the instruction being challenged here. In Cyrus, there were conflicting accounts of whether the defendant or arresting officers provoked an altercation that resulted in the defendant's assault and attempted murder charges as well as his claim of self-defense. 66 Wn. App. at 509-10. In holding that the aggressor instruction was proper, the Cyrus court noted that an "aggressor instruction is particularly appropriate where there is conflicting testimony as to whether the defendant or victim provoked the altercation." 66 Wn. App. at 508-09. Our Supreme Court reiterated this point in State v. Wingate, 155 Wn.2d 817, 822-23, 122 P.3d 908 (2005) ( Wingate II). In overturning our decision in State v. Wingate ( Wingate I), 123 Wn. App. 415, 98 P.3d 111 (2004), our Supreme Court stated, "the Court of Appeals' approach is contrary to the directive of Riley that `[a]n aggressor instruction is appropriate if there is conflicting evidence as to whether the defendant's conduct precipitated a fight.'" Wingate II, 155 Wn.2d at 822-23 (quoting Riley, 137 Wn.2d at 910).
Here, there is conflicting evidence as to whether Charles or Tvrdik threw the first punch. By Charles's account, she merely stood at the doorway to Tvrdik's cell when Tvrdik began swinging her fists and kicking at Charles, thus causing the need for Charles to act in self-defense. On the other hand, the prosecution presented evidence that Charles threatened Tvrdik, Tvrdik retreated to her cell, and Charles pursued Tvrdik into her cell and then assaulted her. This constitutes credible evidence from which the jury could reasonably determine that Tvrdik was withdrawing to avoid confrontation and that Charles provoked any need to act in self-defense and, therefore, the aggressor instruction was proper. Riley, 137 Wn.2d at 909-10. Moreover, the trial court's decision to give an aggressor instruction is particularly appropriate here because of conflicting testimony as to who threw the first punch. Cyrus, 66 Wn. App. at 508-10.
Charles further argues that an aggressor instruction must be supported by evidence that the defendant performed an unlawful aggressive act that caused the need to act in self-defense.
Charles argues that the requirement of an unlawful act remains despite an amendment to the model jury instructions that replaced the language "by any unlawful act" with "by any intentional act reasonably likely to provoke a belligerent response." See Wasson, 54 Wn. App. at 159 (discussing the amendments to the aggressor model jury instructions). We disagree.
The aggressor model jury instruction was amended in response to Arthur, 42 Wn. App. 120, which held that the "unlawful" language in the aggressor instruction was unconstitutionally vague. To support her argument, Charles cites a number of cases approving the use of revised WPIC 16.04, which still analyze whether the defendant's "unlawful" conduct caused the need to act in self-defense. Charles's reliance on these cases to support her proposition is misplaced because she fails to address our Supreme Court's holding in Wingate II. 155 Wn.2d 817. In Wingate II, our Supreme Court overturned our decision in Wingate I because we analyzed the giving of an aggressor instruction under the "unlawful" standard used before the amendment to the model jury instruction. In so holding, our Supreme Court stated:
The Court of Appeals' reliance on [ State v. Brower, 43 Wn. App. 893, 721 P.2d 12 (1986),] and [ State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973),] is misplaced. Brower dealt with an aggressor instruction that addressed an "unlawful act" that created a necessity to respond in self-defense, rather than an intentional act that is reasonably likely to provoke a belligerent response, as does the present instruction. . . . Brower's analysis is not appropriate here.
Wingate II, 155 Wn.2d at 822. Our Supreme Court's holding in Wingate II controls the analysis. The trial court here properly instructed the jury on the law regarding an aggressor's right to act in self-defense.
No Duty To Retreat Instruction
Also, for the first time on appeal, Charles argues that the trial court erred by not including a "no duty to retreat" jury instruction. Because Charles's trial counsel did not request a "no duty to retreat" instruction, Charles must first demonstrate that failing to give such an instruction violated her constitutional rights. "In the absence of either a violation of a constitutional right or a request to instruct there can be no error assigned on appeal for failure to give an instruction." State v. Scott, 93 Wn.2d 7, 14, 604 P.2d 943, cert. denied, 446 U.S. 920 (1980). See State v. Tamalini, 134 Wn.2d 725, 730-31, 953 P.2d 450 (1998) (stating that a defendant's claim that the trial court erred in refusing an instruction that the defendant did not offer is barred unless the failure of said instruction is violative of a constitutional right).
Charles contends that the failure to give a "no duty to retreat" instruction violated her right to due process because, without such an instruction, the trial court provided the jury an incomplete instruction on the law of self-defense, thus relieving the State of its burden to prove each element of the crime beyond a reasonable doubt. We disagree.
Although the trial court must fully instruct the jury on the applicable law, there is no right to an instruction that is not supported by the evidence. State v. Prado, 144 Wn. App. 227, 241, 181 P.3d 901 (2008). A defendant is only entitled to a "no duty to retreat" instruction when evidence supports a finding that the defendant was assaulted in a place where she was lawfully entitled to be. State v. Williams, 81 Wn. App. 738, 742, 916 P.2d 445 (1996).
Here, there is no evidence in the record to suggest Charles was lawfully in Tvrdik's cell at the time of the assault. Instead, the evidence shows that Charles advanced on Tvrdik after she retreated into her cell. Thus, Charles is not entitled to a "no duty to retreat" instruction. Citing State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000), Charles contends that the State had the burden to demonstrate that she was unlawfully in Tvrdik's cell. In Fernandez-Medina, our Supreme Court stated that "[w]hen determining if the evidence at trial was sufficient to support the giving of an instruction, the appellate court is to view the supporting evidence in the light most favorable to the party that requested the instruction." 141 Wn.2d at 455-56.
This case is thus distinguishable from State v. Redmond, 150 Wn.2d 489, 78 P.3d 1001 (2003), because in Redmond it was undisputed that the defendant was in a place where he was lawfully entitled to be.
Charles's reliance on Fernandez-Medina is thus misplaced as she confuses our standard of review on appeal with who has the burden of production at trial. Moreover, there was no evidence that Charles had a right to be in Tvrdik's cell. The trial court did not err by failing to instruct the jury on the "no duty to retreat" doctrine in this case. Effective Assistance of Counsel
Charles also argues that her trial counsel was ineffective for failing to request a "no duty to retreat" instruction. We disagree.
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance was deficient and (2) that deficient performance prejudiced him. State v. Woods, 138 Wn. App. 191, 197, 156 P.3d 309 (2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Woods, 138 Wn. App. at 197 (citing State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999)).
Here, Charles fails to overcome the strong presumption that counsel was effective. It is reasonable for defense counsel to not request a "no duty to retreat" instruction when no evidence supports it. Here, by all accounts, Charles was the one advancing on Tvrdik who had retreated into her cell.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and PENOYAR, A.C.J., concur.