FILED APRIL 4, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34943-8-III Respondent, ) ) v. ) ) DEACON JAMES WALLETTE, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, J. — A witness to the charged crimes inconsistently testified to whether
the victim of an assault was armed. In turn, the trial court precluded defendant Deacon
Wallette from examining the witness as to his belief that the victim carried a weapon.
We hold that Wallette was not afforded a meaningful right to a defense and reverse his
convictions.
FACTS
This prosecution of Deacon Wallette arises from a physical altercation between
Wallette and his friend, Michael Cowan, during the early morning hours of November 6,
2015. On November 4, Cowan drove Wallette to the hospital because Wallette’s eye
required medical attention. After leaving Wallette at the hospital, Cowan departed the No. 34943-8-III State v. Wallette
hospital environs. Following Wallette’s discharge from the hospital, he discovered
Cowan’s absence. Wallette had no cell phone and little money to use for a ride home.
Wallette sold his watch to obtain fare for a taxi.
During the succeeding night of November 5, 2015, Deacon Wallette traveled to
Michael Cowan’s home to confront Cowan about the abandonment at the hospital. On
arriving at Cowan’s abode, Wallette told Cowan that Cowan owed him money in order to
repay Wallette for taxi fare. Wallette first demanded $40, which Cowan found
reasonable. Wallette then increased his entreaty to $100 since Cowan’s unneighborly act
resulted in Wallette selling his watch. Cowan refused to pay Wallette $100. Wallette left
Cowan’s residence and returned to Wallette’s home.
Deacon Wallette, Michael Cowan, and witness Chris Curran disagree as to the
details of the events transpiring after Cowan’s refusal to pay. We relate the varying
narratives.
Deacon Wallette did not testify at trial, but the State played for the jury a recorded
interview of Wallette by police detectives. According to Wallette, on the evening of
November 5, 2015, and after Wallette returned home from his first excursion to Michael
Cowan’s residence, Wallette’s friend Chris Curran arrived at Wallette’s house. In the
early morning hours of November 6, Curran informed Wallette that Cowan told Curran
that Cowan planned on rendering Wallette a “hot shot.” Ex. P5, at 10 min., 59 sec.
through 11 min., 28 sec. A “hot shot” is a lethal dose of drugs. A flabbergasted Wallette
2 No. 34943-8-III State v. Wallette
wished to return to Michael Cowan’s home to again talk to Cowan. Wallette asked
Curran to venture to Cowan’s house with him. According to Wallette, he and Curran did
not know what would transpire that night. Wallette did not seek to harm Cowan, but to
question Cowan about killing him over money.
Deacon Wallette informed law enforcement during the interview that, when he and
Chris Curran reached Michael Cowan’s home, Cowan stood on his residence’s deck.
Wallette asked Cowan if the latter had Wallette’s money, to which question Cowan
replied: “yeah, I want to talk to you about it.” Cowan invited Curran and Wallette into
Cowan’s residence, and all three men entered the home. Ex. P5, at 13 min., 43 sec,
through 13 min., 45 sec. Wallette and Cowan spoke around the dining room table, during
which time Wallette observed Cowan’s hand in his pocket.
According to Deacon Wallette, he told Michael Cowan “what the f*** man, dude
you owe me $100, you’re going to try to kill me over $100 man? You’re going to try to
give me a hot shot?” Ex. P5, at 14 min., 25 sec. through 14 min., 33 sec. Cowan feigned
to lack knowledge of any projected hot shot. Wallette responded that Chris Curran, who
knew nothing about Wallette’s demand for money, warned Wallette that Cowan intended
to administer a hot shot to Wallette. Cowan then behaved bizarrely. Cowan removed his
hand from his pocket and displayed a knife. Wallette grabbed a metal baton he saw on
the table and struck Cowan on the forehead with the instrument. Cowan lunged at
3 No. 34943-8-III State v. Wallette
Wallette with the knife so Wallette struck Cowan’s arm with the baton to knock the knife
from Cowan’s hand.
According to Deacon Wallette’s narrative, Michael Cowan grabbed Wallette and
the two wrestled throughout the kitchen. Cowan accidently cut his own hand with the
knife during the fight when Cowan smacked the kitchen counter. Wallette walloped
Cowan again with the metal baton, and Cowan collapsed to the floor.
During the interview with law enforcement, Deacon Wallette twice denied
bringing a machete to Michael Cowan’s home. Wallette later conceded the presence of a
machete, and he added to his story. According to Wallette, he brandished the machete
once Cowan lay on the floor, but he never touched Cowan with the machete. Wallette
stood near Cowan waving the machete and enlightened Cowan that, if Cowan tried to
slay Wallette, Wallette would kill Cowan first. Wallette hoped the machete would scare
Cowan from trying to kill Wallette. Cowan threw two dollars at Wallette and told him to
take the money. Cowan offered his car keys to Wallette, but Wallette declined the offer.
Wallette grabbed the money. According to Wallette, the confrontation lasted five
minutes before Chris Curran stated “let’s go.” Ex. P5, at 16 min., 40 sec. through 16
min., 47 sec.
According to Deacon Wallette, he appropriated the baton as he left Michael
Cowan’s home, and he discarded the metal instrument in an alleyway. Wallette took the
machete to Chris Curran’s house because he did not want the weapon in his possession
4 No. 34943-8-III State v. Wallette
when police located him.
Deacon Wallette later posted on Facebook that he broke Michael Cowan’s arm
and leg and cracked his skull. Wallette assumed that he broke bones from the impact of
the metal baton. Nevertheless, Wallette guessed inaccurately as to Cowan’s injuries. The
emergency room physician, who treated Cowan, diagnosed only a laceration on the hand
and swelling of clotted blood to Cowan’s forehead. The laceration severed a tendon and
necessitated surgical repair.
Michael Cowan testified during trial. Cowan averred that he stood outside his
home when he saw Deacon Wallette arrive on his bicycle. Cowan did not want to
interact with Wallette so he entered his home and shut the front door. Cowan denied that
he invited Wallette or Chris Curran into his home. After shutting the front door, Cowan
walked toward the bathroom. Suddenly, in the corner of his eye, Cowan saw Wallette
walking behind him inside the home and displaying a baton. Cowan testified that Curran
brought the baton. From behind, Wallette hit Cowan in the head with the baton for no
apparent reason, Cowan crumpled to the floor, and he lost consciousness.
Once Michael Cowan regained consciousness, he overheard Deacon Wallette
telling someone “‘get me the machete.’” Report of Proceedings (RP) at 154. Cowan
first answered that he could not remember whether Wallette or Curran possessed a
machete, but later testified that Wallette drew a machete toward Cowan’s face. The
machete sliced his hand as he blocked the weapon to protect his face.
5 No. 34943-8-III State v. Wallette
Michael Cowan testified that Deacon Wallette put the tip of the machete into
Cowan’s knee and twisted the weapon, while declaring he would kill Cowan. Wallette
also struck his leg twice with the baton. Wallette asked Cowan if he had Wallette’s
money, so Cowan removed his wallet from his pants to show he possessed no money.
Wallette grabbed the wallet. Before Wallette left, Wallette warned that, if Cowan told
anyone of the confrontation, Wallette would kill Cowan. Cowan believed that Wallette
would execute the threat.
During trial testimony, Michael Cowan denied possessing a knife during the
confrontation. Cowan also denied knowing the nature of a hot shot and formulating a
plan to kill Deacon Wallette. Cowan later admitted to asking someone to describe a hot
shot and to explain the purpose of the hot shot. Cowan admitted to the possibility of him
joking about delivering a hot shot, but denied any intent to administer the potion.
Chris Curran’s testimony looms critical to this appeal. During trial, Curran
recounted walking to Michael Cowan’s home with Deacon Wallette in the early morning
hours of November 6. Wallette desired to discuss money owed and the threatened hot
shot. Curran observed Wallette with a handle, protruding from a backpack. The handle
looked like a machete handle.
According to Chris Curran, he and Deacon Wallette knocked on Cowan’s front
door, and Cowan invited the two men inside his home. Curran stood in the lit living
room while Wallette and Cowan spoke for fifteen minutes in the darkened kitchen.
6 No. 34943-8-III State v. Wallette
Curran heard angry voices for two minutes. Curran saw Wallette retrieve a metal baton
from his back pocket and repeatedly strike Cowan on the arm with the weapon while
Cowan laid on the floor and Wallette stood over Cowan.
The following exchange occurred between the State’s attorney and Chris Curran:
Q. Okay. Do you recall if Mike had any weapons on him? A. I believe Mike did. Q. Do you recall talking to the police in this particular case? A. Yes. Q. Okay. Do you recall indicating to Detective Cestnik that you were sure that Cowan was not armed when Wallette began hitting him with a club; do you remember that? A. Yes.
RP at 231-32. Later Curran responded to the State’s questioning:
Q. And you never saw Mike with a knife, correct? A. Correct.
RP at 234. We later quote portions of Chris Curran’s cross-examination by defense
counsel.
Chris Curran witnessed Deacon Wallette hit Cowan only on the arm with the
baton. Curran never saw Wallette remove the machete from the backpack. As soon as
Wallette hit Cowan with the baton, Curran could hear screaming and he immediately left
the premises.
PROCEDURE
The State of Washington charged Deacon Wallette with, among other charges,
assault in the first degree, burglary in the first degree, robbery in the first degree, and
7 No. 34943-8-III State v. Wallette
felony harassment. For all four counts, the State charged deadly weapon enhancements
for use of the baton or the machete. Deacon Wallette asserted that he acted in self-
defense to the knife Michael Cowan pulled.
We previously wrote that during the State’s direct examination of Chris Curran,
the State asked if Curran recalled whether Michael Cowan had any weapons on him.
Curran responded “I believe Mike did.” RP at 231. On cross-examination, defense
counsel wished to question Chris Curran further regarding his belief of Curran being
armed. This appeal focuses on this portion of the cross-examination. Counsel inquired:
Q. Okay. And you said you believed that Mr. Cowan had a weapon? [State]: Mischaracterization of his testimony. THE COURT: It is. Sustained. Q. . . . Do you believe that Mr. Cowan had a weapon at that time? A. I believe he did. [State]: Objection, your Honor. He indicated that Mr. Cowan did not have a weapon. THE COURT: That’s true. Sustained. THE WITNESS: I believe he did. [State]: Objection. There is no question posed to this witness. THE COURT: Next question, Counsel. Let’s move on.
RP at 244.
Deacon Wallette requested the jury be instructed on self-defense, be given a no
duty to retreat instruction, and be instructed on the lesser included offense of fourth
degree assault. The State opposed the fourth-degree assault and no duty to retreat
instructions. The State asked that a first aggressor instruction be given, if the court
delivered a self-defense instruction. Wallette opposed the first aggressor instruction. The
8 No. 34943-8-III State v. Wallette
trial court denied a fourth-degree assault jury instruction and a no duty to retreat
instruction. The trial court delivered a self-defense and first aggressor instruction.
During closing argument, the State told the jury at least five times that Chris Curran
testified that Michael Cowan was not armed or that the only person who testified to
Cowan being armed was Deacon Wallette.
The jury convicted Deacon Wallette on all counts except the first degree robbery
charge. The jury also returned special verdicts finding that Wallette was armed with a
deadly weapon at the time of the commission of the three crimes of conviction.
The trial court followed the State’s recommendation to sentence Deacon Wallette
to 150 months’ confinement on the assault charge concurrent to the lesser sentences on
the remaining charges. The court imposed four-year deadly weapon enhancements for
the assault and burglary and a one-year enhancement for the harassment. The sentencing
court ran the enhancements consecutively to each other and the standard range sentence
for a total of 258 months’ confinement.
LAW AND ANALYSIS
Constitutional Right to a Defense
On appeal, Deacon Wallette challenges his three convictions and his sentencing.
Since we reverse his convictions, we do not address any assigned error in the sentencing.
Wallette complains that the trial court precluded his trial counsel from questioning Chris
Curran about Curran’s belief that Michael Cowan possessed a weapon. He argues that
9 No. 34943-8-III State v. Wallette
the trial court commented on the evidence when the court agreed with the State, in the
presence of the jury, that Cowan previously testified that Cowan had no weapon. He also
argues that the trial court violated his right to present a defense when the court prevented
his defense counsel from exploring Curran’s belief that Cowan possessed a weapon. We
agree that the court should have permitted defense counsel to question Curran about his
belief when the State’s earlier questioning led Curran to state his conviction that Cowan
possessed a weapon. Therefore, we do not address the contention that the court
commented on the evidence.
The Sixth Amendment of the United States Constitution and article I, section 22 of
the Washington Constitution guarantee an accused the meaningful opportunity to present
a complete defense. U.S. CONST. amends. VI, XIV; Const. art. I, § 22; Holmes v. South
Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). The
constitutional right to present a complete defense limits the authority to exclude evidence
relevant to the defense from criminal trials. Holmes v. South Carolina, 547 U.S. at 324.
At a minimum, criminal defendants have the right to put before the jury evidence that
might influence the determination of guilt. Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107
S. Ct. 989, 94 L. Ed. 2d 40 (1987).
Deacon Wallette’s trial counsel sought to explore, during cross-examination, Chris
Curran’s belief that Michael Cowan possessed a weapon. A criminal defendant possesses
constitutional rights both to present testimony in his or her defense and to confront and
10 No. 34943-8-III State v. Wallette
cross-examine witnesses. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983).
Courts should zealously guard the basic right to cross-examine in a criminal case. State
v. Swenson, 62 Wn.2d 259, 278, 382 P.2d 614 (1963), overruled on other grounds by sub
nom. State v. Land, 121 Wn.2d 494, 851 P.2d 678 (1993). The opportunity to cross-
examine must be real and meaningful and not a mere matter of form. In re Application
for a Writ of Habeas Corpus of Pettit, 62 Wn.2d 515, 521, 383 P.2d 889 (1963). Cross-
examination functions as the principal means to test the believability of a witness and the
truth of his testimony. Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d
347 (1974).
Michael Cowan and Deacon Wallette differed as to whether Cowan armed himself
and whether Wallette acted in self-defense. Chris Curran thus became an important
witness. Although he later admitted that he told law enforcement that Cowan was not
armed, Curran twice testified to, during the State’s questioning, his belief that Cowan
armed himself. A witness’s inconsistency does not result in one inconsistent version of
the facts being excluded from consideration by a jury. Instead, further examination about
the inconsistency could help the jury to arrive at the truth. The trial court stopped
defense counsel from cross-examining Curran on the basis of why Curran concluded that
Cowan was armed. Wallette could not fully exercise his constitutional right to cross-
examine Curran on this crucial factual dispute.
11 No. 34943-8-III State v. Wallette
The State contends that Chris Curran could not testify to his “belief” that Michael
Cowan possessed a weapon on him. We agree with the State that the right to present a
defense is not absolute, such that a defendant has only the right to present relevant
evidence, with no constitutional right to present irrelevant evidence. State v. Gregory,
158 Wn.2d 759, 786 n.6, 147 P.3d 1201 (2006), overruled on other grounds by sub nom.
State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014). We also agree that a witness
cannot often testify to his or her beliefs. Nevertheless, Chris Curran first testified to his
belief during the State’s direct examination, and the State never sought to strike Curran’s
conclusion on the basis of improper opinion evidence. We do not review evidentiary
objections never asserted before the trial court. State v. Guloy, 104 Wn.2d 412, 422, 705
P.2d 1182 (1985). The State only objected to defense counsel’s questioning Curran as to
his belief on the inaccurate basis that defense counsel mischaracterized Curran’s
testimony.
We further note that a lay witness may testify as to his or her opinion under
circumstances of personal knowledge based on rational perceptions when it would help
the jury understand a fact in issue. Pagnotta v. Beall Trailers of Oregon, Inc., 99 Wn.
App. 28, 34, 991 P.2d 728 (2000). A witness may testify to a “belief” rationally based on
perceptions. State v. Washington, 725 N.W.2d 125, 137 (Minn. Ct. App. 2006). Deacon
Wallette was not allowed to explore whether Chris Curran’s belief was based on rational
observations.
12 No. 34943-8-III State v. Wallette
The State argues that Deacon Wallette’s counsel should have asked for a hearing,
outside the hearing of the jury, to determine if Chris Curran’s belief was based in part on
personal knowledge. We repeat that the State never objected to the testimony based on
Curran’s lack of rational perceptions. Anyway, the trial court precluded further
questioning on the basis that the question had already been answered, and the court
directed defense counsel to move to another area of inquiry.
The State’s argument overlooks Deacon Wallette’s testimony of Michael Cowan
changing his demeanor and pulling a knife from his pocket. The trial court’s direction to
defense counsel to move to another area of questioning precluded counsel from inquiring
as to whether Chris Curran observed the movements of Cowan immediately before the
assault by Wallette and whether Curran saw Cowan reach into a pocket. Often a police
officer does not visibly spy a weapon on a civilian, yet the officer grows concerned for
his or her safety when the civilian moves furtively and the officer cannot see the person’s
hands. Curran may have observed similar movements of Michael Cowan.
The State claims on appeal that the trial court sustained the prosecution’s objection
at trial to the form of the question. But that was not the State’s objection. To repeat, the
State claimed that Chris Curran had already answered the question.
The State also claims that Deacon Wallette was not prejudiced by the trial court’s
ruling. Since the preclusion of further questioning implicated Wallette’s constitutional
right to a fair trial, we employ constitutional error analysis. A constitutional error is
13 No. 34943-8-III State v. Wallette
harmless if the appellate court is assured beyond a reasonable doubt that the jury verdict
is unattributable to the error. State v. Anderson, 171 Wn.2d 764, 770, 254 P.3d 815
(2011). This court employs the “‘overwhelming untainted evidence’” test and looks to
the untainted evidence to determine if it is so overwhelming that it necessarily leads to a
finding of guilt. State v. Anderson, 171 Wn.2d at 770 (quoting State v. Guloy, 104 Wn.2d
at 426).
We consider Chris Curran’s testimony as to a lack of a weapon to be tainted since
Deacon Wallette could not inquire as to the basis of Curran’s belief to the contrary. We
are left with the contradictory testimony of Michael Cowan during trial and Deacon
Wallette’s story given to law enforcement. We never observed Cowan testify and thus
lack any understanding as to his credibility. We conclude the evidence does not
necessarily lead to a finding of guilt for any of the three crimes of Wallette’s convictions.
The State claims that Deacon Wallette was not prejudiced by the trial court’s
ruling in part because trial defense counsel could have still argued that Chris Curran had
a belief that Michael Cowan was armed. We already wrote that the trial court twice
commented that Curran had not so testified and the State argued that counsel had
mischaracterized Curran as having stating a belief of Cowan being armed. A defense
counsel wishes not to countermand the comments and direction of the trial court for fear
of endangering counsel’s credibility before the jury.
14 No. 34943-8-III State v. Wallette
First Aggressor Jury Instruction
Deacon Wallette also assigns error to the trial court’s giving of a first aggressor
jury instruction. Wallette argues that the evidence did not support the instruction. Since
this question may reappear on remand, we address the issue even though we have already
directed a new trial on other grounds. We hold that, under the facts as presented in the
first trial, the trial court should not have presented the jury a first aggressor instruction.
Our ruling does not preclude the trial court from delivering the first aggressor jury
instruction if the facts significantly change during a second trial.
Deacon Wallette asserted the defense of self-defense. The accused cannot claim
self-defense for an altercation when he initiated the fight, and thereby, the need to act in
self-defense. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). The trial
court may instruct the jury on first aggressor law when (1) the jury can reasonably
determine from the evidence that the defendant provoked the fight, (2) the evidence
conflicts as to whether the defendant’s conduct provoked the fight, or (3) the evidence
shows that the defendant made the first move by drawing a weapon. State v. Stark, 158
Wn. App. 952, 959, 244 P.3d 433 (2010).
First aggressor instructions negate a defendant’s self-defense claim “effectively
and improperly removing it from the jury’s consideration.” State v. Douglas, 128 Wn.
App. 555, 563, 116 P.3d 1012 (2005). Negating the defense runs counter to the
constitutional requirement that the State bears the burden of disproving self-defense
15 No. 34943-8-III State v. Wallette
beyond a reasonable doubt. State v. Riley, 137 Wn.2d at 910 n.2. Thus, the law disfavors
first aggressor jury instructions. State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847
(1990). “First aggressor instructions should be used sparingly because the other self-
defense instructions will generally be sufficient to allow the theory of the case be
argued.” 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 16.04 cmt. at 256 (4th ed. 2016); State v. Stark, 158 Wn. App. at 960. In fact,
few situations warrant an aggressor instruction. State v. Wasson, 54 Wn. App. 156, 161,
772 P.2d 1039 (1989).
To obtain a first aggressor jury instruction, the State must show a provoking act by
the defendant other than the assault itself. The provoking act that justifies a first
aggressor instruction must be one that a jury could reasonably assume would provoke a
belligerent response by the victim. State v. Bea, 162 Wn. App. 570, 577, 254 P.3d 948
(2011); State v. Wasson, 54 Wn. App. at 159. The trial court errs when it submits an
aggressor instruction and the evidence shows that the defendant used words alone to
provoke the fight. State v. Riley, 137 Wn.2d at 910-11 (1999); State v. Anderson, 144
Wn. App. 85, 89, 180 P.3d 885 (2008).
This court reviews de novo whether the State produced sufficient evidence to
justify a first aggressor instruction. State v. Sullivan, 196 Wn. App. 277, 289, 383 P.3d
574 (2016). When determining whether sufficient evidence supported the instruction, the
court views the evidence in the light most favorable to the party that requested the
16 No. 34943-8-III State v. Wallette
instruction—here, the State. State v. Wingate, 155 Wn.2d 817, 823 n.1, 122 P.3d 908
(2005). When the record includes credible evidence from which a reasonable juror could
find that the defendant provoked the need to act in self-defense, an aggressor instruction
is appropriate. State v. Riley, 137 Wn.2d at 909-10 (1999). Nevertheless, when an
inference is part of the prosecution’s proof supporting an element of the crime, due
process requires the presumed fact to flow more likely than not from proof of the basic
fact. State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135 (1994). Whether an inference
meets the appropriate standard must be determined on a case-by-case basis in light of the
particular evidence presented to the jury in each case. State v. Hanna, 123 Wn.2d at 712.
A mere scintilla of evidence does not rise to the level of sufficiency in order to support a
conviction. State v. Kirkpatrick, 14 Wn. App. 212, 216, 540 P.2d 450 (1975). Instead,
the State must present substantial evidence. State v. Randecker, 79 Wn.2d 512, 517, 487
P.2d 1295 (1971).
The rule controlling our appeal is that the provoking act cannot be the actual
assault in order to warrant the giving of the first aggressor instruction. State v. Kidd, 57
Wn. App. at 100 (1990); State v. Wasson, 54 Wn. App. at 158-59 (1989); State v. Brower,
43 Wn. App. 893, 902, 721 P.2d 12 (1986). Under Deacon Wallette’s version of events,
as related to law enforcement, he only attacked Michael Cowan after Cowan first
assaulted him. Under Michael Cowan’s description of the altercation, Wallette struck
him without his provoking any assault. The assault constituted the first aggression.
17 No. 34943-8-III State v. Wallette
Therefore, under the alternative facts heard by the jury either Deacon Wallette acted in
self-defense or Wallette assaulted Cowan without provocation. Neither account warrants
a first aggressor instruction.
The dissent writes that Michael Cowan displayed a knife because Deacon Wallette
intruded into the home without permission. No testimony supports this factual scenario.
Christopher Curran only witnessed the actual assault. Curran did not testify to
seeing any precipitating act. He only heard a precedent angry argument.
One might argue that Deacon Wallette acted as the first aggressor, under his story,
when he entered Michael Cowan’s residence with a machete and confronted Cowan with
threatening him with a hot shot. Nevertheless, under this story, Cowan invited Wallette
inside. Wallette held the right to question and complain to Cowan about seeking to kill
him. Entering another’s house with a weapon does not necessarily lead to violence.
Wallette and Cowan could have spoken and resolved their differences. The law does not
welcome a first aggressor jury instruction under these circumstances.
Law enforcement officers arm themselves with a baton, gun, and Taser. Officers
frequently confront citizens even inside residences. This confrontation does not preclude
an officer from asserting self-defense if a citizen attacked him or her.
No Duty to Retreat Jury Instruction
On appeal, Deacon Wallette also assigns error to the trial court’s refusal to deliver
his proposed no duty to retreat jury instruction. Because this question may arise during a
18 No. 34943-8-III State v. Wallette
second trial, we address the assignment of error. We hold that the trial court committed
no error.
When determining whether sufficient evidence supports an instruction, the court
views the evidence in the light most favorable to the party that requested the
instruction—on this issue, Deacon Wallette. State v. Wingate, 155 Wn.2d at 823 n.1
(2005). An individual has no duty to flee a place where he or she has a right to be,
however reasonable an alternative flight may be. State v. Williams, 81 Wn. App. 738,
743-44, 916 P.2d 445 (1996). Thus, if a reasonable jury could conclude that the
defendant could have fled instead of using force, the trial court should give the jury a “no
duty to retreat” instruction. State v. Williams, 81 Wn. App. at 744. The jury instruction
need not be given when it is unnecessary to the defendant’s case theory and when it
would be superfluous because the issue of retreat was not raised. State v. Wooten, 87
Wn. App. 821, 825, 945 P.2d 1144 (1997).
The parties’ dispute whether Deacon Wallette possessed the right to remain in
Michael Cowan’s residence and whether Cowan impliedly revoked any permission to be
in the home. Nevertheless, we need not resolve this dispute. The State never argued that
Wallette possessed a duty to retreat in order to rebut Wallette’s self-defense theory.
Wallette argues that the jury instruction was needed to counterbalance the first aggressor
instruction. We have ruled that, under the facts as presented at the first trial, the trial
court should not have rendered the first aggressor jury instruction. If the State argues in a
19 No. 34943-8-III State v. Wallette
second trial that Wallette should have retreated, the trial court should revisit our ruling on
the delivery of the no duty to retreat instruction.
CONCLUSION
We reverse Deacon Wallette's convictions for first degree assault, first degree
burglary and felony harassment and remand for a new trial consistent with our opinion.
We do not address Deacon Wallette' s assigned error of the refusal to render a fourth-
degree assault jury instruction.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
I CONCUR:
Q Pennell, A.CJ. j)_ I ltc.I
20 No. 34943-8-III
KORSMO, J. (dissenting in part) — I agree that Deacon Wallette is entitled to a
new trial because he was not allowed to question a witness to the altercation about
whether or not the victim was armed. I dissent, however, from the majority’s
unnecessary and erroneous aggressor instruction discussion. The trial court correctly
gave the aggressor instruction and, if the salient facts are the same at the retrial, should do
so again.
There are two significant errors in the majority’s analysis of this case. The first
error is an incorrect focus on the wrong facts in assessing whether there was a basis for
the instruction. The second error is to equate an old aphorism as a governing rule of law
in place of actual Washington Supreme Court precedent.
We agree on the basic governing law. Self-defense is only available to respond to
the unlawful use of force. State v. Riley, 137 Wn.2d 904, 911, 976 P.2d 624 (1999). Thus,
one who provokes another to lawfully act in self-defense is not responding to unlawful force
and has no right of self-defense. Id. at 909. Juries must often sort out which party, if any,
was justified in using force and which was not. “Where there is credible evidence from
which a jury can reasonably determine that the defendant provoked the need to act in self- No. 34943-8-III State v. Wallette
defense, an aggressor instruction is appropriate.” Id. at 909-910. If the evidence is in
conflict about who precipitated an encounter, the instruction is appropriate. State v. Davis,
119 Wn.2d 657, 665-666, 835 P.2d 1039 (1992).
As to the first problem, in order to determine if there was a basis for giving an
instruction, an appellate court must view the evidence in the light most favorable to the
party who received the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-456, 6
P.3d 1150 (2000). The majority fails to do that here. In addition, the court considers the
entire record, not simply one party’s theory of the case, in determining whether there is a
factual basis to give an instruction. Id. at 461 (lesser included justified when supported by
substantial evidence in the record); State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700
(1997) (lesser included offense available based on “evidence in the case”); State v. Griffith,
91 Wn.2d 572, 574-575, 589 P.2d 799 (1979) (defendant entitled to instruction if supported
by substantial evidence in the record); State v. Adams, 31 Wn. App. 393, 396, 641 P.2d
1207 (1982) (self-defense is based on plausible evidence in the record).
Applying these standards and viewing the evidence relating to self-defense in the
light most favorable to the State, the record shows that the defendant1 armed himself with a
1 The victim seemed to believe that Curran brought the baton to the house while Curran testified Wallette did so. There is no question that the weapon was subsequently wielded by Wallette.
collapsible baton and a machete prior to going to the victim’s house to confront him about
an alleged threat and about money allegedly owed. The two men entered the victim’s
residence without permission. Then, because the victim allegedly reached into a pocket to
pull out a knife in response to the intrusion, the defendant attacked the victim with first the
baton and then the machete. In other words, the defendant engineered the need for the
victim to protect himself against the onset of an attack and then asserted that his planned
attack was actually self-defense because the victim pulled out his own weapon. These facts
absolutely justified the aggressor instruction—if Wallette’s actions compelled Cowan to
pull out a knife to defend himself, then Wallette’s actions negated his own claim of self-
defense, and the jury rightly needed to be told how to apply self-defense in those
circumstances.
Thus, properly viewed, the evidence related to self-defense absolutely supported the
trial judge’s decision to give the aggressor instruction. However, the majority treats the
aggressor instruction as “disfavored” and wrongly looks at reasons why it should not have
been given, while disregarding inconvenient disputed facts such as whether Wallette had
permission to enter Cowan’s residence. This is not the proper evidentiary basis on which to
assess the aggressor instruction. As noted earlier, we review whether there is an evidentiary
basis for the instruction, not whether there was evidence why it should not have been
given.2
The majority’s concern about these irrelevant matters seems to stem from its
recognition that the case law disfavors aggressor instructions in instances where they are
not justified. The Riley court addressed this same problem, while reaching the opposite
conclusion to that of the majority here. There the court noted older authority from this
court suggesting that aggressor instructions are seldom necessary. Riley, 137 Wn.2d at
910 n.2. Nonetheless, the court noted that “an aggressor instruction should be given
where called for by the evidence,” although care should be taken in giving the instruction.
Id. (emphasis added). In other words, the test for an aggressor instruction is found in
Riley and Davis—is there a disputed question of fact about who created the need for the
2 This error in focus also finds its way into a discussion of the parties’ respective theories of the case at page 17-18 of the majority opinion. There the majority notes that Cowan alleged he was the victim of an unprovoked attack, while Wallette claims he had to defend himself when Cowan responded aggressively to his efforts at discussing his concerns. From these two viewpoints of the evidence, the majority concludes that no aggressor instruction was warranted. However, a third theory of the case arose from the defendant’s successful insertion of a self-defense theory—the State’s obligation to disprove self-defense beyond a reasonable doubt. To that end, the analysis needed to also look to whether self-defense was disproven, so the majority’s focus on the State’s initial theory of the case is insufficient to resolve the problem of whether the aggressor instruction was warranted. If the State bore no burden on self-defense, then the majority’s analysis would be correct. But since the State’s theory of the case had to expand to account for self-defense, the majority’s focus on the initial theory of assault to the exclusion of evidence of lack of self-defense does not account for the actual issue presented.
defendant’s assertion of self-defense? If so, an aggressor instruction is justified. If not,
then the instruction is “disfavored” because it is unnecessary and creates a significant risk
of erroneously depriving the defendant of a valid claim of self-defense.
Our case law requires nothing more than this. We should not, as the majority
does, go digging through the record to find reasons why the aggressor instruction should
not have been given. Our analysis should focus on whether the evidence supported the
giving of the instruction. Here, it did. That should be the end of the story. The trial
court did not abuse its discretion in permitting the instruction.
But, instead, the majority focuses on an old aphorism instead of the governing
case law. This is error in at least two ways. First, as noted in Riley, the aggressor
instruction should be given when justified. It was justified in this case. The fact that
there are also circumstances when the aggressor instruction should not be given does not
mean that we ignore the instruction in those cases where it is justified.
Second, in promoting the “disfavored” aphorism over the actual test for
determining whether the instruction is justified, the majority uses it out of context. The
aggressor instruction is disfavored in those instances where it is not appropriate. An
example is a case relied on by the majority, State v. Wasson, 54 Wn. App. 156, 772 P.2d
1039 (1989). There the defendant had revved his car engine loudly with the apparent
purpose of annoying (among others) the “victim.” Id. at 157. The victim intervened in a
fight between Mr. Wasson and another man, but then engaged in a fight with the other
man. Id. When the victim then turned his attention back to Mr. Wasson and ran at him,
Wasson shot him. Id. This court correctly concluded that there was no evidentiary basis
for giving the aggressor instruction because Wasson’s only provocative action—noisily
revving his engine—did not justify the victim’s use of force against Wasson. Id. at 158-
159. He was not an “aggressor” as that phrase is used in our self-defense laws. 3 There is
no basis for instructing on the first aggressor when the defendant’s provocative actions do
not justify the victim’s own use of force.
Self-defense cases are factually distinct from each other and do not readily fall
into a “one size fits all” categorization such as the majority’s characterization of the
aggressor instruction as “disfavored.” In some cases the instruction will be justified, and
in others it will not be. Our focus should be whether the evidence supported the
instruction rather than on whether reviewing courts favor or disfavor the instruction at
issue. We should be disfavoring error, not an accurate and lawful instruction.
One of the ironies of this case is that the self-defense claim was exceedingly weak,
a fact that the trial court repeatedly noted while debating whether or not to give the
3 A humorous example of error in giving an aggressor instruction, although the facts of the cases are tragic, is State v. Kidd, 57 Wn. App. 95, 786 P.2d 847 (1990). There it was error to give the aggressor instruction on two counts due to the fact that the jury should not have been given a self-defense instruction. Id. at 101 (finding error harmless because defendant could not have been acting in self-defense).
instruction. 4 In my experience, those are often the cases where the aggressor instruction
is most often warranted simply because the relevant facts of the encounter are disputed.
In cases where the facts relating to who did what to whom are not contested, there
typically is no need for an aggressor instruction simply because the question of who
started the fight is not in issue. When the evidence and argument simply focus on
whether the use of force was justified under the circumstances, the aggressor instruction
is "disfavored" because there is no need for it. It is primarily in cases like this where the
claim of self-defense is tenuous that the aggressor instruction is most useful to the jury.
While I agree that the defendant is entitled to a new trial due to the error in
limiting his cross-examination of the witness, I dissent from the discussion concerning
the propriety of the first aggressor instruction.
4 The court called the defense "tenuous" on multiple occasions before deciding to instruct on the theory, apparently because the defense had nothing else to argue. If the prosecutor had not offered the defendant's statement to the police into evidence, there would have been no reason to even consider the self-defense theory, but I am not certain that even admission of that statement satisfied the defendant's burden of self-defense.