Appeal from Superior Court of Snohomish County. Docket No: 95-1-00854-7. Date filed: 10/12/95. Judge signing: Hon. Kathryn E. Trumbull.
Authored by Faye C. Kennedy. Concurring: Mary K. Becker, Ann L. Ellington.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Anthony Burchfield appeals his convictions of one count of first degree manslaughter and one count of first degree assault, contending that the trial court abused its discretion in excluding certain evidence of the victim's reputation for violence and certain evidence of specific instances of conduct establishing the victim's violent nature. Although we agree that the trial court erred in excluding the evidence, given the wealth of information before the jury regarding the victim's violent acts and reputation, it is highly unlikely that the jury would have reached a different result had the trial court admitted the character evidence. The error was thus harmless and we affirm Burchfield's convictions. *fn1
On the morning of June 24, 1995, the appellant Anthony Burchfield, together with his friends Christine Buck and Robert Robinson, arrived at Shane Jacobs' house to help set up the Jacobs' yard sale. About ten to fifteen minutes after Burchfield and his friends arrived, a fight broke out between Burchfield and Jacobs. Buck testified that Jacobs attacked and began beating Burchfield because Burchfield was not moving quickly enough while helping to prepare for the yard sale. Robinson and Buck yelled for Jacobs to stop the fight; he eventually complied after his father entered the room.
Immediately after the fight, Burchfield left Jacobs' house with Buck and Robinson. According to witnesses, he was very upset over the fight. Buck testified that once they were inside the car, Burchfield stated that if he had had a gun, he would have shot and killed Shane Jacobs. Robinson testified to similar statements. As they were driving away, Robinson suggested that they call the police. Burchfield agreed, and they dropped him off at a truck stop to make the call. Buck and Robinson proceeded without him to their friend Philip Vaughn's house.
While he was at the truck stop, Burchfield called the police to report the assault by Jacobs and to inform them that Jacobs had outstanding warrants for his arrest. Although two detectives went to Jacobs' house in response to Burchfield's report, Jacobs' father informed them that his son was temporarily gone. The detectives left shortly thereafter. When Jacobs returned and discovered that Burchfield had called the police, he became angry and told his father that he was going to "fuck Tony up." 2 Report of Proceedings at 23. Approximately fifteen minutes later, Jacobs left the house in his father's truck.
In the meantime, Buck returned to the truck stop and brought Burchfield back to Vaughn's house. Burchfield went inside the house with Vaughn, while Buck joined Robinson in the trailer located behind the house. Shortly thereafter, Jacobs arrived at the house. He stepped out of the truck and demanded to know who had called the police. Robinson, standing outside the trailer, indicated that he had not. Upon Jacobs' repeated demands, Robinson stated that Burchfield had called the police. Jacobs then entered the trailer, grabbed a buck knife, and asked Buck who had called the police. When she responded that she had not, Jacobs moved toward her with the knife. In an attempt to defend herself, Buck grabbed a nearby rifle and pointed it at Jacobs. Jacobs then left the trailer, jamming the knife in the wall on his way outside.
Once outside the trailer, Jacobs made threats to kill Burchfield. Inside the house, Vaughn handed Burchfield a shotgun, telling him not to shoot Jacobs, but rather to induce him to leave. Burchfield walked out of the house carrying the shotgun ready to shoot and admitted calling the police. When Jacobs approached Burchfield, Burchfield stated that he would shoot if forced to. Jacobs responded: "Do it; take me out of my misery."
3 Report of Proceedings at 52. When Jacobs continued walking toward Burchfield, Burchfield shot him once, stating, "Peace, bro." 3 Report of Proceedings at 56. Jacobs suffered a penetrating distant-range shotgun wound to his neck, causing his death.
Burchfield was arrested at the scene and charged with one count of second degree murder and one count of first degree assault. Prior to trial, with knowledge that Burchfield intended to assert a theory of self-defense, the State moved to exclude evidence of specific instances of violence by Jacobs *fn2 as well as evidence of Jacobs' reputation for violence that was unknown to Burchfield. Burchfield opposed the motion, arguing that the evidence went to the core of his theory of self-defense, and that he should have wide latitude to prove that he reasonably believed he was going to suffer death or great bodily harm at the hands of Jacobs. The trial court granted the State's motion, holding: "The mention of specific prior acts of violence except for the one immediately preceding this incident will be excluded. Reputation evidence will be allowed to the extent of the defendant's knowledge of that reputation." 1 Report of Proceedings at 7. Upon the State's request for clarification, the court explained: "My ruling excluding specific acts of violence excluded anything that the defendant himself had knowledge of or believed to be true, but I prohibited that from coming in through other witnesses." 1 Report of Proceedings at 20-21.
Burchfield's jury trial began on September 11, 1995. During trial, the defense made an offer of proof as to testimony it wished to elicit from Robinson regarding Jacobs' reputation for violence as well as various fights in which Jacobs had been involved and other acts of violence committed by him. Of particular relevance to this appeal, Robinson testified to an incident during which Jacobs had assaulted three police officers at a high school graduation. Robinson did not explicitly testify that Burchfield knew of the assaults, or any of the other specific acts of violence committed by Jacobs, but named "Tony" as one of the people who had told him that Jacobs was violent. Following its offer of proof, the defense moved the court to reconsider its pretrial ruling excluding such testimony from witnesses other than Burchfield. The court adhered to its earlier ruling, however, and denied the motion.
Following the denial of its motion, the defense presented Burchfield's testimony. When asked if he had talked to others about Jacobs' reputation, Burchfield responded that he had heard Jacobs was "pretty violent." 4 Report of Proceedings at 145. He ...