Argued January 14, 2014.
Appeal from Pierce County Superior Court. 08-1-00527-7. Honorable John R. Hickman.
Stephanie C. Cunningham, for petitioner.
Mark E. Lindquist, Prosecuting Attorney, and Thomas C. Roberts, Deputy, for respondent.
AUTHOR: Justice Charles W. Johnson. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez, Justice Sheryl Gordon McCloud.
[180 Wn.2d 190] ¶ 1
C. Johnson, J.
The central issue in this case is whether Ronald Mendes was " compelled" to waive
his constitutional right not to testify as a witness in his own criminal case after the trial court refused to rule on whether the evidence presented during the State's case in chief entitled Mendes to a self-defense instruction. Mendes challenges his conviction for felony murder based on allegations that he shot and killed Danny Saylor after an altercation at Saylor's home. At trial, Mendes's theory of the case was that he acted in self-defense after Saylor came at him with a baseball bat. After the State rested, Mendes's counsel asked the court to make a preliminary ruling on whether enough evidence had been presented through the State's witnesses to warrant a self-defense instruction. Counsel explained that Mendes did not wish to testify unless the court found that more testimony was necessary on this issue. The State objected, and the trial court declined to rule on Mendes's request. Mendes then testified on his own behalf. Mendes was convicted of felony murder.  On appeal, Mendes argued that the trial court improperly compelled him to testify when it declined to rule on whether the State's evidence alone entitled him to a self-defense instruction. The Court of Appeals rejected this argument and held that Mendes was not entitled to an advisory ruling on jury instructions before the close of all the evidence and that Mendes's decision to testify was voluntary and tactical. We affirm.
Facts and Procedural History
¶ 2 Mendes met Lori Palomo in October 2007, when Palomo was temporarily estranged from her long-term and live-in boyfriend, Saylor. Palomo and Mendes engaged in a three-week intimate relationship that ended when Palomo returned to live with Saylor. Even though Saylor and [180 Wn.2d 191] Palomo were back together, Mendes occasionally came to Saylor's house to see Palomo. All three were methamphetamine users.
¶ 3 One night, while Palomo's car was parked at Saylor's house, someone vandalized it. Palomo and Saylor suspected Mendes was the vandal and thereafter, Saylor did not want Mendes to come over. Palomo asked Mendes not to come around anymore.
¶ 4 On January 27, 2008, Mendes returned to Saylor's house armed with a loaded .45 caliber gun. Charles Bollinger, one of three houseguests of Saylor's, met Mendes at the front door. Bollinger advised Mendes that he should not be at the home. Bollinger and Mendes went to a gas station and then returned to the home. During their trip to the gas station, Mendes showed Bollinger the gun. Upon returning to the house, Bollinger woke Saylor to inform him that Mendes was in the house. McKay Brown, another houseguest, advised Mendes to leave, but he did not leave.
¶ 5 Learning that Mendes was in the house, Saylor dressed and went to the front room. A brief " ruckus" occurred, in which Saylor pushed Mendes against the front door and the two swung at each other. 7 Verbatim Report of Proceedings (VRP) (Apr. 25, 2011) at 324. Mendes then aimed the gun at Saylor and sad, " I'll smoke you, mother fucker." 8 VRP (Apr. 26, 2011) at 456. Saylor left the front room ...