Appeal from Superior Court of Island County. Docket No: 87-1-00080-1. Date filed: 07/17/89. Judge signing: Hon. Howard A. Patrick.
Reconsideration Denied July 14, 1997.
Authored by Walter E. Webster. Concurring: Ronald E. Cox. Dissenting: C. Kenneth Grosse
The opinion of the court was delivered by: Webster
WEBSTER, J. -- By his own admission, Darrin Hutchinson killed two Island County Deputy Sheriffs in the county jail. He contended at trial that he shot the deputies in self-defense. Nevertheless, the jury convicted him of aggravated first degree murder. Washington's Supreme Court, in State v. LeFaber, recently determined that the self-defense jury instruction given to Hutchinson's jury was erroneous. *fn1 That instruction did not require the jury to consider whether Hutchinson reasonably believed himself to be in imminent danger of great personal injury; it instead allowed the jury to reject self-defense upon finding that he was not in actual imminent harm. Because the erroneous instruction has constitutional ramifications, the law presumes that the error prejudiced Hutchinson. We must determine whether the jury could have decided that he reasonably believed himself to be in imminent harm of death or great personal injury, yet convicted him due to the court's legal misstatement. Because Hutchinson introduced factual and expert testimony supporting his reasonable belief, the prosecution has not rebutted the presumed prejudice. Hence, the error was not harmless and we reverse Hutchinson's convictions.
Hutchinson's six-week trial included many witnesses whose testimony we will not discuss. Instead, we relate only the facts needed to understand the assigned errors that we address in this opinion.
Robert Whalen, a retired Seattle police officer, was driving towards the Clinton ferry terminal on November 14, 1987, between 4:00 and 5:00 a.m., when he was passed by an erratically driven, speeding blue Pinto. When arriving at the terminal, Whalen saw the Pinto nearly hit the ferry toll booth. Whalen told the toll booth operator he suspected that the Pinto's driver was under the influence of alcohol. The toll booth operator's co-worker called the police.
Island County Deputy Sheriffs William Heffernan and John Saxerud responded, arresting Darrin Hutchinson for driving while intoxicated. Deputy Saxerud patted Hutchinson down and put him in the patrol car's back seat. Saxerud did not detect a thin, .32 caliber Bersa handgun that Hutchinson had inside the waistband of his pants. Deputies Heffernan and Saxerud took Hutchinson to the Island County jail complex to administer a breathalyzer. On the way, Hutchinson mused over the officer's failure to detect his weapon.
At the jail, the officers escorted Hutchinson to the breathalyzer room, removing their service weapons and placing them in a lock box prior to entering. Dispatcher Iverson monitored the procedure on a remote television with sound capacity; he heard no one talking. Five minutes later, around 6:10 a.m., Deputy Saxerud called him on the phone, requesting a driver's license check on Hutchinson. Deputy Saxerud's tone was casual, matter-of-fact. Iverson heard Deputy Heffernan in a loud (but not raised) voice tell Hutchinson not to speak unless spoken to. Noticing that the breathalyzer procedure was proceeding smoothly, Iverson attended to routine duties.
Soon thereafter, Hutchinson pulled out his gun, shot Deputy Saxerud once in the head at close range, and Deputy Heffernan twice from a distance of at least 24 inches. He fished through Deputy Saxerud's pockets for car keys, stole a patrol car, smashed it through the garage door, and raced to his brother's house. Hutchinson later ditched the car down a steep ravine. Island County Sheriff's deputies arrested Hutchinson at his parents' home.
Chief Panzero and Deputy Ridley interrogated Hutchinson for two and a quarter hours soon after his arrest. While Hutchinson admitted killing the deputies, he said that they verbally and physically abused him, including slamming his head into a plexiglas window. But at another point, he acknowledged catching them "totally off guard." When a doctor examined Hutchinson on the morning of the murders, he found only one minor injury, an abrasion and bruising in the thumb area. And Hutchinson attributed that injury to getting his hand stuck while ditching the patrol car.
The State charged Hutchinson with two counts of aggravated first degree murder. The prosecution's theory was that the deputies were routinely filling out paperwork when Hutchinson, seated on a bench in the room's corner, pulled his gun and shot them. By contrast, the defense contended that Hutchinson shot the deputies while standing, after they slammed him up against the plexiglas window in the door. Because the deputies' and Hutchinson's positioning was highly probative, each side presented expert forensic testimony. One bullet had ricocheted off the breathalyzer room ceiling, and both experts relied upon its trajectory in forming their opinions. Yet they disagreed as to the bullet's angle before it struck the ceiling. And from their respective computations, each expert testified that Hutchinson's location was consistent with their side's case theory.
The jury, after deliberating for two days, convicted Hutchinson on both counts of aggravated first degree murder.
SELF-DEFENSE JURY INSTRUCTION
Hutchinson contends that the trial court improperly instructed the jury regarding self-defense. The court's instruction allowed the jury to require evidence of imminent danger, rather than a reasonable belief in imminent danger:
Homicide is justifiable when committed in the lawful defense of the slayer when the slayer reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished. [Instr. No.
Our Supreme Court recently ruled that this instruction is erroneous. *fn2 It misstates the law because the jury will not necessarily apply the words "reasonably believes" to ...