Appeal from Superior Court of King County. Docket No: 94-1-08126-4. Date filed: 06/07/95. Judge signing: Hon. Dale Ramerman.
Petition for Review Granted May 6, 1997, Petition for Review Denied May 7, 1997,
Authored by H. Joseph Coleman. Concurring: William W. Baker, Visiting Judge.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- Ronald Lichliter appeals his conviction for second degree assault arising from a dispute with two tow truck drivers attempting to impound his vehicle. He argues that he was denied a fair trial because the State commented on his post-Miranda *fn1 silence. We hold that the State properly used Lichliter's partial silence against him because his self-defense theory asserted at trial was inconsistent with his previous repeated apologies and his "alleged gun" statement. Lichliter also argues that the court erred by providing the jury an aggressor instruction. We disagree because by approaching the drivers aggressively, shouting obscenities, and entering his truck, Lichliter intentionally acted in a way reasonably likely to provoke a belligerent response from the drivers. Finally, we reject Lichliter's claim that the court abused its discretion by forcing his wife to assert her privilege against self-incrimination in front of the jury. We affirm.
Before trial, the court concluded that because Lichliter was not completely advised of his constitutional rights, his statements to police could be used only for impeachment purposes. The court did not, however, limit the use of an apology Lichliter made to one of the drivers because it was voluntary and spontaneous.
On December 6, 1994, store manager Kenneth Farris called Pete's Towing to remove a parked semi-truck and trailer from his lot. Two tow truck drivers, Michael Narverud and Terry Longland, were dispatched. While Longland and Narverud were hooking up the truck, Lichliter and his wife, Shari Lichliter, pulled up in another vehicle. At this point, the jury was presented with two versions of events.
Farris, Longland, and Narverud testified to the following events.
Lichliter came "charging up" to them, angrily shouted obscenities, told the drivers that they were not taking his truck, and demanded that the drivers release the truck. Narverud told Lichliter that since the truck was already hooked up, it would cost $115 to release it. Enraged, Lichliter entered his truck and said that he was "going to drive the damn thing off." Narverud lifted the truck off the ground.
While Lichliter was in the truck, Longland and Narverud started to collect their tools. Lichliter emerged from the truck holding a gun, raised it, and pressed it into Narverud's chest cavity. Narverud dropped some tools that he was holding and told Lichliter that what he was doing was "really stupid." Lichliter moved the gun away but then shoved it into Narverud's chest again. The three men had not threatened Lichliter before this time.
Longland got into his truck and told dispatch to call the police. Farris went into his car and called 911. Meanwhile, Lichliter went into his truck and emerged with a gun case, which he gave to Shari. The 911 transcript was read at trial. Farris said, "I have an individual out here that's pulled a gun on a couple of tow truck drivers." Farris later stated, "Then he put the gun back in a pouch and they're putting it inside a truck." Farris further reported, "And [the wife] drove and took the gun away. . . . So he doesn't have the gun anymore. . . . He's standing out here and trying to give these people a hard time."
When Officer Jon Holland then arrived at the scene, the tow truck drivers told him that Lichliter had pressed a handgun in Narverud's chest in retaliation to his attempt to impound the vehicle. While Lichliter was in the patrol car, he asked to speak with Narverud. Lichliter apologized to Narverud and said, "There's no way I would have used it."
The Lichliters' account differed sharply. On direct, Shari testified that when she and Lichliter drove up to the parking lot, her husband got out of the car and began arguing with Narverud. Narverud then pushed Lichliter against the truck, raised the truck, and told Lichliter that the cost was now $115. After arguing, Lichliter climbed into his truck. The tow truck drivers both went to their trucks and grabbed tools. Shari screamed to her husband to look up because one of the drivers had a hammer.
Lichliter climbed out of the truck, and Narverud walked towards him with the hammer over his shoulder, as if he was "winding up to swing." Shari saw Lichliter holding something straight out but did not realize then that it was a gun. When the situation diffused, Lichliter handed her a pouch and told her to leave. On cross examination, when asked, "And he told you to take the pouch to Travis's house, right?," Shari replied, "I--on advice of Counsel, I take the Fifth." The court then instructed the jury that they could not ...