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State v. Espinosa

Court of Appeals of Washington, Division 1

April 8, 2019

THE STATE OF WASHINGON, Respondent,
v.
MICHAEL ESPINOSA, Appellant.

          HAZELRIGG-HERNANDEZ, J.

         Michael Espinosa shot and killed Martin Douglas on May 23, 2015. Espinosa claimed he acted in self-defense and defense of another. The court instructed the jury regarding justifiable homicide and informed the jury that the homicide was not justified if the defendant was the aggressor in the confrontation. A jury found Espinosa guilty of murder. Espinosa seeks reversal on multiple grounds. Because we find that the given instructions did not make the law of self-defense manifest to the jury, we reverse.

         FACTS

         On the night of May 22, 2015, Martin Douglas and Justina Houston returned from a casino to Houston's home in Federal Way. Houston convinced Douglas to lend her his car for an hour or two while he stayed at her house. She and her roommate, Yesenia Cuellar, took Cuellar's infant daughter and went to meet Michael Espinosa. They picked up Espinosa and a friend of his, Alex Delker, and went to get methamphetamine. They obtained methamphetamine and smoked it at the home of Cuellar's friend.

         Around 1:00 a.m. on March 23, 2015, Douglas began calling Houston and sending her angry text messages demanding that she return his car so that he could go home. When Houston, Cuellar, Espinosa, and Delker returned to the house, Douglas was outside. He approached the car yelling curses and threats. Cuellar and Houston were yelling back at him. Espinosa fired one shot either at the ground or in the air and a second shot at Douglas. The second shot hit Douglas in the head and he died from the wound.

         Espinosa was charged with murder in the second degree and unlawful possession of a firearm in the second degree. The State also alleged that both charges involved the aggravating factor of rapid recidivism. Espinosa pled guilty to the unlawful possession of a firearm charge and admitted the rapid recidivism aggravating factor.

         At trial, the key witnesses presented different versions of the events leading up to the homicide. Houston testified that she felt that Douglas had moved threateningly toward Cuellar but he never made a motion like he was going to injure her and the baby. She testified that she never feared for her safety. Cuellar testified that Douglas tried to hit her before she went inside to put down her child but did not touch her. She testified that she was coming back down the stairs when she heard the two gunshots.

         Espinosa testified that he saw Douglas make a motion and thought he was going to punch Cuellar while she was holding her child. He said that he saw Douglas pull his arm back to hit Cuellar, then drew the gun from his waistband, cocked it, and fired a round into the air before Douglas landed the blow. Espinosa said that he drew his weapon and fired this "warning shot" to distract Douglas and keep him from striking Cuellar and her child. Espinosa testified that Douglas then turned and began advancing toward him and Espinosa shot at him because he feared for his life.

         Espinosa's proposed jury instructions included both a general self-defense instruction based on WPIC 17.02 and a justifiable homicide instruction based on WPIC 16.02. The State moved to preclude the general self-defense instruction offered by Espinosa. The State argued that the justifiable homicide instruction stated the applicable legal standard because it contained the heightened requirement that the defendant reasonably believe the victim intended to inflict death or great bodily injury. Espinosa responded that he had proposed both instructions because, although he conceded that the justifiable homicide instruction was appropriate for the shot that led to Douglas' death, there could be a question in the minds of the jury regarding whether the warning shot was a lawful use of force. Espinosa argued that the general self-defense instruction was appropriate to let the jury know that Espinosa was using lawful force in defense of Cuellar and her child. The State argued in response that Espinosa was not charged with any crime stemming from the warning shot and an instruction regarding the lawfulness of that shot would constitute an impermissible comment on the evidence.

         The court found that Espinosa had presented some evidence of his fear of death or great bodily harm before shooting Douglas and allowed the instruction on justifiable homicide. The court declined to instruct the jury regarding general self-defense because the State had not charged Espinosa with any crime in firing the warning shot and the jury was not being asked to determine the legality of that shot. The court noted that counsel was free to argue the context of the first shot in closing arguments.

         The State also moved to allow an instruction commonly referred to as a "first aggressor" instruction, which would instruct the jury that self-defense was not available as a defense to the charge if the defendant provoked or commenced the altercation. Espinosa opposed this motion, arguing that the instruction was not warranted by the facts because he intervened in the situation to defend Cuellar. In the alternative, he renewed his request for a general self-defense instruction in addition to the aggressor instruction so that the jury could "understand whether or not [Espinosa] really was a first aggressor in light of his legal right to defend other people."

         The court found that there was conflicting evidence regarding the circumstances surrounding the shooting and discussed the cases it relied upon for its interpretation of the law. The court cited State v. Heath, for the proposition that an aggressor instruction is appropriate if there is any evidence that the defendant provoked a fight and even if the victim threw the first blow. 35 Wn.App. 269, 666 P.2d 922 (1983). The court noted that in State v. Wingate, the Supreme Court said the instruction is proper if there is conflicting evidence as to whether the defendant's conduct precipitated the confrontation. 155 Wn.2d 817, 122 P.3d 908 (2005). Finally, in State v. Hardy, the court noted that the instruction was appropriate where evidence established that the defendant was an aggressor and "the cause of affray [was] sufficient to raise a jury question on the issue." 44 Wn.App. 477, 722 P.2d 872 (1986). Therefore, the court concluded that the aggressor instruction was appropriate because it properly directed the jury to determine whether Espinosa's acts precipitated a confrontation with Douglas.

         The court did not agree with defense counsel that allowing an aggressor instruction necessitated a general self-defense instruction, reiterating that Espinosa was not charged with assault from the first shot. The court noted that the language of the aggressor instruction should reflect the case law requiring an intentional action by the defendant rather than an unlawful action. Espinosa objected to the inclusion of this instruction. The trial court subsequently instructed the jury as follows:

No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon kill another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct ...

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