Appeal from Superior Court of Snohomish County. Docket No: 95-1-00313-8. Date filed: 06/22/95. Judge signing: Hon. Linda Krese.
Authored by Ann L. Ellington. Concurring: Faye C. Kennedy, Mary K. Becker.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- During his trial for first degree assault and attempted second degree murder, Nathan Walker testified that he had never been angry at the victim, James Smith, and that he did not carry a gun and did not need a gun to fight Smith or anyone else. The trial court permitted the State to rebut Walker's testimony with evidence that Walker had threatened Smith two years earlier and that police officers had caught Walker with guns on two occasions in the past. The trial court did not err by admitting the evidence because Walker's statements were material assertions of fact that opened the door to the evidence. The court also did not err when it refused to instruct the jury on self defense, because Walker claimed that Smith shot himself as Walker attempted to wrestle the gun away from him, not that he shot Smith in self defense. The decision of the trial court is affirmed.
One night in February 1995, Nathan Walker met his wife, Cynthia Whiteside, at a tavern near her home to discuss their relationship. Whiteside was living with another man, James Smith, at the time. Later, Smith came to take Whiteside home. As Smith stood by his car waiting for Whiteside to join him, Walker assaulted Whiteside, so Smith punched Walker. Walker returned the punch, and they continued to fight. Eventually, Smith realized he was bleeding significantly, so he ran to a restroom for tissue. He learned later that he had been shot.
Walker was charged by information with first degree assault. The information was amended to include an additional charge of attempted second degree murder. Before trial, the court agreed that unless the defense opened the door, it would exclude evidence that Walker had threatened to shoot Smith in the past, and that Walker had a history of carrying firearms.
During direct examination, when asked whether he was upset with Smith when he first saw Smith at the bar that night, Walker responded, "No, I ain't never been upset with him." He claimed he was fighting with Whiteside when Smith drew the gun and that Smith shot himself as Walker tried to wrestle the gun away from him.
On cross examination, the prosecutor confirmed Walker's testimony that Smith was the aggressor: "James attacked you, right?" Walker answered, "No. I was fighting with Cynthia. James pulled the gun, if that's what you want to know. I did not come with the gun and, if you want to be honest, I don't need a gun to fight James. I don't need a gun to fight anybody." The prosecutor then followed up with questions about Walker carrying a gun:
Q. You heard Cynthia testify yesterday you're known to carry a gun all the time, correct?
A. She said she heard of me carrying guns, correct. That's just hearsay.
Q. My question is, do you carry guns a lot, Mr. Walker?
A. I don't carry guns a lot, as you asked, no, I do not.
Q. Did you ever carry guns, Mr. Walker?
A. I was caught with a gun back in '91, yes. I was caught ...