Appeal from Superior Court of King County. Docket No: 94-1-07551-5. Date filed: 06/02/95. Judge signing: Hon. Patricia H. Aitken.
PER CURIAM. Harold Lyle appeals his conviction of assault in the fourth degree. Lyle was convicted of pointing a toy gun through his car window at Richard Johnsen. Lyle contends that: (1) the trial court erred in refusing to instruct the jury on self-defense; (2) his counsel was ineffective in failing to object to evidence that he had swastika pins on his holster, had hollow point bullets in two guns, and pointed a gun at another car; and (3) the prosecutor committed misconduct in arguing during closing that Lyle was prepared for war. We affirm, holding that a self-defense instruction was not warranted by the evidence, counsel's decision not to object to the identified evidence was tactical, and the prosecutor's argument was not misconduct because it was based on Lyle's own testimony.
Lyle was charged with assault in the second degree based on an incident that occurred in November 1994. Richard Johnsen testified that he was driving on Carnation-Duvall Road in a 55 m.p.h. zone. A white car several cars ahead of him was driving very slowly, causing a back-up. When the cars in front of Johnsen turned off the road, Johnsen passed the white car. Johnsen paid no attention to the driver, who was Lyle. Johnsen drove a short distance further, then decided to pull over and see if Lyle needed assistance. Johnsen got out of his car and gestured to Lyle. As Lyle passed Johnsen, he pointed a gun at him through the passenger window. Johnsen immediately dropped to the ground in fear. Lyle continued driving slowly.
Johnsen got back into his car. As Johnsen was driving, he saw Lyle point a gun through his window at a small blue car that passed Lyle. Johnsen decided to warn the police, so he passed Lyle again, ducking down as he went by. As Johnsen passed, Lyle again pointed a gun through his car window at Johnsen. Johnsen drove quickly to the police station, reported what had occurred, and described Lyle's vehicle. Johnsen testified that it looked like Lyle had his finger on the trigger and that the gun was partially cocked. He described the gun as a revolver, silver in color with a two- to three-inch barrel, wood grips and a big hole in the end of the barrel.
Duvall police officers found Lyle driving 15-20 m.p.h. in a 55 m.p.h. zone. The officers approached Lyle's car on foot when it was stopped at a construction site. On the front passenger seat they saw a black BB pellet gun that resembled a .357 magnum or .38 special. The officers arrested Lyle and then found on the back seat a black/brown BB pellet gun that looked like a semi-automatic weapon, two silver plastic cap guns, and a toy lever action rifle. While he was being arrested, Lyle spontaneously told the officers that he had two guns in the shoulder holster he was wearing. He also told the officers that he had pointed a gun at someone who he thought was going to fight or beat him up, but the gun was not real. The officers searched Lyle, finding two nickel-plated .357 magnums under each arm in shoulder holsters. The officers testified that Lyle wore the holsters over a T-shirt and buttoned shirt and under a coat. The guns were snapped into the holsters.
At trial Lyle admitted that he pointed a gun at Johnsen, but claimed that he acted in self-defense and pointed only a toy gun. Lyle testified that he is 56.84 years old and lives in Snohomish with his mother. He is not employed. On the day in question, he was at a restaurant in Woodinville. He had three tickets to a concert and hoped that two women he knew would go with him. When the women turned him down, he was depressed. He went home and tried to sleep, but then decided to go for a drive. He was driving about 35 m.p.h. and cars were passing him. Lyle testified that Johnsen passed him, swerved in front of him, and then came to a screeching halt alongside the road. When Lyle saw Johnsen signal him, he was terrified because Johnsen drove "a grubby old car like criminals have, and he was grubby like criminals are, [had] long hair like criminals have." Lyle feared it was a drive-by shooting or a carjacking. Lyle pointed the toy gun at Johnsen to prevent Johnsen from shooting him. He thought he pointed the black pellet gun found in the front seat that looked like a .357 magnum, but since Johnsen thought the gun was silver, it was possible he pointed one of the sliver plastic cap guns and then in fear tossed it into the back seat. He was certain, however, that it was not one of the real guns, which were in the holsters over his T-shirt, but under the buttoned shirt and coat. Lyle testified that while it is easy to remove the guns from the holsters, it is impossible to put the guns back into the holsters while wearing them. But he testified that it was foolish of him to wear the holsters under his buttoned shirt because he could not have unbuttoned his shirt quickly enough if threatened by a criminal.
The trial court refused to instruct the jury on self-defense because in the court's view there was no evidence that a reasonably cautious and prudent person in Lyle's circumstances would believe he was in danger of great bodily harm.
The jury acquitted Lyle of assault in the second degree and found him guilty of the lesser included offense of assault in the fourth degree.
Lyle contends that the trial court erred in refusing to instruct the jury on self-defense because he presented evidence that he reasonably believed he was in imminent danger of assault by Johnsen.
For the jury to be instructed on self-defense, a defendant bears the initial burden of producing some evidence which tends to prove that the assault occurred in circumstances amounting to self-defense. State v. Janes, 121 Wash. 2d 220, 237, 850 P.2d 495 (1993). "Evidence of self-defense must be assessed from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees." State v. Janes, 121 Wash. 2d at 238. This test incorporates both subjective and objective characteristics. It is subjective in that the jury considers the defendant's actions from the point of view of the defendant and in light of all the facts and circumstances known to the defendant. It is objective in that the jury uses this information to determine what a reasonably prudent person similarly situated would have done. State v. Janes, 121 Wash. 2d at 238. The question of whether the defendant has produced sufficient evidence to raise a claim of self-defense is a matter of law for the trial court. State v. Janes, 121 Wash. 2d at 238 n.7.
A defendant who assaults another based on an honest but unreasonable belief that he is in imminent danger of great bodily injury is not entitled to a self-defense instruction. State v. Hughes, 106 Wash. 2d 176, 188, 721 P.2d 902 (1986); State v. Bell, 60 Wash. App. 561, 567, 805 P.2d 815, review denied, 116 Wash. 2d 1030, 813 P.2d 582 (1991). Fear alone does not entitle a defendant to a self-defense instruction. "There must also be 'some evidence of aggressive or threatening behavior, gestures, or communication by the victim before defendant's use of force . . . to show that the defendant had reasonable grounds to believe there was imminent danger of great bodily harm.'" State v. Kidd, 57 Wash. App. 95, 102, 786 P.2d 847, review denied, 115 Wash. 2d 1010, 797 P.2d 511 (1990) (quoting State v. Walker, 40 Wash. App. 658, 663, 700 P.2d 1168 (1985).
It is undisputed that Lyle feared an imminent assault, but there is no evidence that his fear was reasonable. Johnsen did nothing aggressive or threatening; he merely passed Lyle, then pulled off the road and in a nonthreatening motion, gestured to Lyle. Lyle was in his car able to leave quickly. When Johnsen passed Lyle the second time, he again made no threatening gesture. Indeed, Johnsen ducked down to avoid Lyle. Lyle's belief that Johnsen was a criminal because he had an old car, appeared grubby and had long hair was unreasonable. Similarly, Lyle's belief that Johnsen was going to shoot him because Johnsen passed him was unreasonable.
While the threshold burden of production for a self-defense instruction is low, it is not nonexistent. State v. Janes, 121 Wash. 2d at 237. There is no evidence that Johnsen acted in an aggressive or threatening manner before Lyle pointed a gun at him. Lyle's fear was unwarranted by the evidence and unreasonable. ...