Appeal from Superior Court, Snohomish County. 93-1-01530-0. Honorable Thomas J. Wynne, Judge.
Authored by Charles W. Johnson. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Barbara A. Madsen, Gerry L. Alexander, Richard B. Sanders. Dissenting: Philip A. Talmadge
The opinion of the court was delivered by: Johnson
JOHNSON, J. -- John Walden was convicted of two counts of second degree assault arising out of a fight with three teenagers. At trial, Walden asserted self-defense. Walden argues the definition of grave bodily harm in the jury instruction addressing the reasonable use of force in self- defense improperly required the jury to use a purely objective standard. We agree, reverse his convictions, and remand for a new trial.
On October 23, 1993, Walden left a tavern in Arlington, Washington and got on his bicycle. He rode past The Castle video arcade, outside of which several teenagers were standing, including the three victims: Josh Adams, Grant Howell, and Casey Hill. As he rode past, Walden either fell or was pushed off his bicycle. According to the teens, Walden fell off the bicycle, got angry when they laughed at him, and came after them with a knife. On the other hand, Walden testified the teens pushed him off his bicycle and were then looking to beat him up.
At some point during the altercation, Walden produced and opened a folding knife with a 3 1/2 -inch locking blade. The teens and several witnesses testified Walden attempted to use the knife. Walden, however, testified he only produced the knife to scare the teens off, and did not actually try to use the knife. No evidence or testimony was offered by either side that the three teens were armed. However, there was testimony Walden and these same three teens had been involved in an altercation on at least one previous occasion.
Following the close of Walden's case, the Judge issued jury instructions, including seven instructions on self-defense. *fn1 Walden objected to the definition of "great bodily injury" in the second paragraph of instruction 18. In its entirety, instruction 18 reads:
One has the right to use force only to the extent of what appears to be the apparent imminent danger at the time. However, when there is no reasonable ground for the person attacked or apparently under attack to believe that his person is in imminent danger of death or great bodily harm, and it appears to him that only an ordinary battery is all that is intended, he has no right to repel a threatened assault by the use of a deadly weapon in a deadly manner.
Great bodily injury as used in this instruction means injury of a graver and more serious nature than an ordinary battery with a fist or pounding with the hand; it is an injury of such nature as to produce severe pain, suffering and injury. Clerk's Papers at 37. The Judge noted Walden's objection but allowed the instruction, stating that the case from which it was taken, State v. Foster, 91 Wash. 2d 466, 481, 589 P.2d 789 (1979), had not been overruled. Apparently the jury believed the State's version of the events, returning a verdict of guilty on both counts of second degree assault.
Walden appealed to the Court of Appeals, arguing the trial court erred in submitting jury instruction 18, specifically the second paragraph, because it injects an impermissible objective element into the definition of self-defense and constitutes a comment on the evidence by the court. The Court of Appeals affirmed the verdicts in an unpublished opinion. Walden then petitioned this court for review solely on the issue of the impermissible objective standard created by the second paragraph of instruction 18.
Under the facts of this case, we hold the definition of "great bodily injury" used in instruction 18 could have impermissibly restricted the jury from considering Walden's subjective beliefs about the possible consequence of an assault by the teens. Because the law of self-defense was not made manifestly apparent, i.e., because Walden was forced to argue to the jury regarding the correct legal standard, we reverse Walden's convictions and remand for a new trial.
Jury instructions on self-defense must more than adequately convey the law. State v. LeFaber, 128 Wash. 2d 896, 900, 913 P.2d 369 (1996). Read as a whole, the jury instructions must make the relevant legal standard manifestly apparent to the average juror. LeFaber, 128 Wash. 2d at 900; State v. Allery, 101 Wash. 2d 591, 595, 682 P.2d 312 (1984); State v. Painter, 27 Wash. App. 708, 713, 620 P.2d 1001 (1980), review denied, 95 Wash. 2d 1008 (1981). "A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial." LeFaber, 128 Wash. 2d at 900.
To be entitled to a jury instruction on self-defense, the defendant must produce some evidence demonstrating self-defense; however, once the defendant produces some evidence, the burden shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt. See State v. Janes, 121 Wash. 2d 220, 237, 850 P.2d 495, 22 A.L.R.5th 921 (1993) (defendant bears initial burden of producing evidence killing occurred in circumstances amounting to self-defense); State v. Acosta, 101 Wash. 2d 612, 619, 683 P.2d 1069 (1984) (State bears burden of disproving self-defense in second degree assault prosecution).
Evidence of self-defense is evaluated "from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees." Janes, 121 Wash. 2d at 238 (citing Allery, 101 Wash. 2d at 594). This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done. Janes, 121 Wash. 2d at 238.
Accordingly, the degree of force used in self-defense is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant. See State v. Bailey, 22 Wash. App. 646, 650, 591 P.2d 1212 (1979); 13A Royce A. Ferguson, Jr. & Seth Aaron Fine, Washington Practice, Criminal Law sec. 2604, at 351 (1990). Deadly force may only be used in self-defense if the defendant reasonably believes he or she is threatened with death or "great personal injury." 13A Ferguson, ...