IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 82987-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION MERLE CHARLES BUCHANAN,
Appellant.
COBURN, J. — Merle Charles Buchanan challenges his conviction for two
counts of murder in the second degree for the killings of Paul Tapia and Jose
Garcia. Buchanan asserted self-defense at trial. Buchanan now appeals,
arguing the trial court erred in refusing to instruct the jury on justifiable homicide
in resistance to a felony in addition to justifiable homicide in self-defense and
argues the trial court erred in giving a “first aggressor instruction.” And finally, he
argues that the prosecutor committed misconduct by misstating the law regarding
“first aggressor” in closing argument at trial. Finding no error, we affirm.
FACTS
Early in the morning on January 6, 2018, Paul Tapia and Jose Garcia
were shot at close range by Merle Charles Buchanan in the parking lot of the
Taradise Café bar in White Center. Garcia died at the scene, while Tapia died at
Citations and pin cites are based on the Westlaw online version of the cited material No. 82987-4-I/2
a hospital a short time later. The bar had security cameras that captured video of
the interior, the bar, the front door, and the parking lot that night. The shooting
occurred next to Buchanan’s car that was parked in between other vehicles and
was captured on security video. The video did not include any audio and the
only testimony as to what was said during the interaction came from Buchanan,
who testified at trial. Police had no contact with Buchanan until he turned himself
in to police about two months later.
Events began on January 5, 2018. Prior to arriving at Taradise, Tapia and
Garcia, already intoxicated, stopped at a convenience store and met a third man,
Poe Time. The men invited Time to join them. Tapia drove the group from the
convenience store to a country bar in Burien. They were kicked out of the
country bar after Tapia was “aggressive” and “energetic” toward other patrons
and with security. The three then continued on to Taradise.
Tapia, Garcia, and Time arrived at 12:27 a.m. Minutes after entering,
Tapia bumped into a bar employee, causing him to break a glass. Tapia was
then escorted out of the bar. Tapia gestured with his arms while talking to the
employee and security near the door.
Two security guards followed Tapia out the door and talked to him for
several minutes. Tapia continued to gesture with his arms while they conversed.
Tapia stayed outside for the remainder of the evening.
Buchanan entered the bar at 11:22 p.m. Buchanan and Tapia never
interacted inside the bar. Buchanan left the bar while talking on his cell phone at
12:37 a.m., at the same time Tapia spoke with the security guard outside the
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door. Buchanan observed Tapia’s interaction with the security guard. Buchanan
stood near Tapia and the security guard while smoking a cigarette. Buchanan
reached over and shook Tapia’s hand. Tapia smoked a cigarette and the two
conversed. The interaction was calm and Tapia often gestured by raising his
arms while he spoke. Buchanan testified that they chatted about various topics
such as sports and how their days were going. Garcia exited the bar and joined
Tapia and Buchanan in conversation. At 12:46 a.m., Buchanan, Tapia, and
Garcia all headed toward the parking lot. All three appeared to walk in an
unsteady fashion. Tests performed during autopsy showed that Tapia had a
blood-alcohol content of .18 and Garcia had a blood-alcohol content of .25.
Buchanan testified that he had a “small buzz” but was not intoxicated.
Buchanan walked through the Taradise parking lot with Tapia and
Garcia. Buchanan walked toward Buchanan’s car and Tapia and Garcia
followed. Buchanan said that he was planning to go out to his car in the parking
lot to “relax for awhile.” They talked while walking without any hostility.
Buchanan sat in the driver’s seat of his car leaving the door open with Tapia at
his open door. For approximately nine minutes, while Buchanan was inside his
car, Tapia remained by the open door. Tapia did not remain standing up but his
exact body position cannot be seen on the security video. Buchanan, at trial,
described Tapia as “[k]ind of leaning inside my door.” Buchanan could not
remember if Tapia was squatting or “just kind of leaned over.”
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Buchanan testified that he had a plastic bag with “nuggets” of cannabis 1
worth about $100 sitting in an area to his right near the center console. At trial,
Buchanan explained that a nugget is a clump of cannabis. Buchanan said he
smoked a cigarette and began to “roll a blunt” of cannabis. Tapia said it smelled
good and wanted to smoke with Buchanan. Tapia wanted to smell it so
Buchanan handed him a “nugget to smell” and Buchanan continued rolling his
blunt. After about a minute or so, Buchanan realized Tapia had not handed the
nugget back so Buchanan asked where it was. Buchanan testified that Tapia
“told me, he said, what weed? That’s my weed. And he said matter of fact you
have the rest of my weed right there. Give it here.” Buchanan said, “[h]e
basically informed me that it wasn’t my weed. It was his weed, and he was going
to take the rest of my weed too,” and that Buchanan told him “no, you are not.”
Buchanan testified that Tapia started to “act like he was going to – like he was
going to forcefully take it from me.” Buchanan’s description of Tapia’s actions at
this stage was limited to Tapia leaning over or squatting while at the open door
and stepping back when Buchanan later got out of the car.
When Buchanan and Tapia were first at the driver’s side door, Garcia
meandered around the parking lot, but eventually returned to Buchanan’s car.
Garcia walked around the passenger side of Buchanan’s car and eventually
stood near the front of the driver’s side of Buchanan’s car.
1 Though trial testimony referred to the substance as “marijuana,” we decline to use the term here outside of a direct quote. The Washington State Legislature, in adopting legislation to replace the term “marijuana” in the Revised Code of Washington, recently found that the term has “discriminatory origins.” LAWS OF 2022, ch. 16, § 1. The Legislature will instead replace it with the “more scientifically accurate term ‘cannabis.’” Id. We adopt this terminology.
4 No. 82987-4-I/5
Buchanan testified that after the disagreement about the cannabis, “I
believe – I tried to – I tried to talk the situation down. Tried not to make it more
hostile when I realize what was going on over there. At that point I decided to get
out of my car because I feel like I’m trapped. He is standing in my door, and I
can’t close my car door. So I decided to get out of my car.” As he got out of the
car, Buchanan grabbed the gun he stored between the driver’s seat and center
console and put it in his right jacket pocket. Buchanan testified that Tapia
backed up so that Buchanan could get out of his car.
At 12:56, Tapia stood up, still positioned next to Buchanan’s open driver’s
side door. A few seconds later, Buchanan got out of the vehicle and faced Tapia.
Buchanan testified, “I step out of my car. I kind of got in an argument, but I’m
trying to calm it down, and trying to convince him to give me my stuff back and
leave me alone. Basically walk away from me, and leave the situation alone, and
it started to get more heated.” At trial Buchanan could not remember what each
of them said, but recalled that he said something to the effect of being armed,
that he would defend himself, and not to come closer.
Garcia remained standing near the front of Buchanan’s car, leaning on the
vehicle parked next to it. Both Buchanan and Tapia gestured with their arms as
they spoke. At 12:58, Tapia handed something to Garcia over the open car door.
The video does not clearly show the object, but Garcia took it in his right hand
then moved it toward his left hand, holding the object with both hands. Garcia
then placed both hands in the front pockets of his pants. Buchanan testified that
he observed Tapia hand the bud of cannabis to Garcia.
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While arguing, Buchanan said Tapia “balled his fists, and started to [sic]
moving his farm [sic] like he was going to swing at me.” Buchanan conceded
that he “didn’t give [Tapia] a chance” to strike him because he got so close to
Tapia he could not put any momentum behind a swing. Buchanan “kind of
lunge[d] forward and push[ed] him back.” Before Buchanan pushed Tapia back,
Tapia raised his arms gesturing while talking as he had earlier in the evening,
including with Buchanan by the door to the bar. Tapia gestured with his arms in
this manner multiple times before Buchanan pushed Tapia, temporarily pinning
him against the adjacent car before Buchanan moved past him and stood closer
toward the back end of his car.
Buchanan said Tapia then told Buchanan he would “beat the shit out of”
and “kill” him. Buchanan then noticed that Garcia, who had been standing
nearby, stepped forward and closed the driver’s door to Buchanan’s car.
Buchanan removed his gun from his jacket pocket and held it in his right hand at
his side, pointed at the ground.
At 12:59 a.m. three women exited the bar and walked past the passenger
side of Buchanan’s vehicle and within feet of Buchanan, Tapia, and Garcia. Two
of the women, Virginia Arredondo and Krista Javalera, observed the three men
together but did not see or hear any fighting. Javalera testified that, while she did
not pay much attention to the three men as they walked past, she did not hear
any arguing or threats and did not see any physical fighting. Javalera stated that
had she observed any fighting or heard an argument, she would not have walked
past the group of men. Arredondo testified that while passing Buchanan’s
6 No. 82987-4-I/7
vehicle, she heard arguing but was not alarmed. Arredondo did not see Tapia or
Garcia touch Buchanan. The women reached Arredondo’s car, which was
parked in the next row of parked cars behind Buchanan’s car.
Arredondo stood near the trunk of her car, then looked up and saw
Buchanan holding a gun. Arredondo described Buchanan as appearing very
calm and standing in one spot. Arrendondo then looked over to Javalera in “a
point of panic” when she heard gunshots and dropped to the ground. At 1:00
a.m. Buchanan raised his arm, fired, and Tapia fell to the ground. Garcia fell to
the ground immediately after.
Buchanan said before he fired his gun he saw Tapia reach toward Tapia’s
right side and “didn’t know if he was reaching for a weapon or what” and
Buchanan just “reacted.” Buchanan fired his gun two or three times, then
stepped over the two men on the ground and got into his car where he sat for
about 30 seconds before driving away.
After Buchanan drove away, a number of people began to immediately
assemble around Tapia and Garcia, including Time. Time can be seen on video
hovering near, standing over, and touching both Tapia and Garcia. Before
performing an autopsy, the medical examiner cataloged the property and clothing
found on Garcia. No cannabis was found on Garcia’s person or in his
property. Police later discovered that Time had Tapia’s cell phone. Time
testified that he did not remember how he obtained Tapia’s phone but said it was
“possible” that he took it from the scene.
7 No. 82987-4-I/8
Tapia was transported to Haborview Medical Center and later died of a
gunshot wound to his head. Garcia died at the scene of a gunshot wound to his
head. Detectives identified Buchanan as the shooter during their investigation
but were unable to locate him until he turned himself into police about two
months after the shooting.
Buchanan was charged with two counts of murder in the second degree
and one count of unlawful possession of a firearm in the second degree. The
case first proceeded to a jury trial in May 2021 on the murder charges. 2
Jury Instructions
At trial, Buchanan objected to the trial court not instructing the jury that a
“[h]omicide is justifiable when committed in the actual resistance of an attempt to
commit a felony upon the slayer” 3 and the court giving a first aggressor
instruction. In support of his proposed instruction, Buchanan argued that the
evidence supported a defense theory that Buchanan had killed the two men while
resisting felony robbery, theft in the second degree, or attempted assault in the
second degree. The state objected, arguing that the evidence did not show
Buchanan shot Tapia and Garcia to resist the commission of a felony. At most,
the State argued, Buchanan’s testimony showed he used his gun because he
believed Tapia was reaching for a weapon and Garcia was backing him up.
2 The count of unlawful possession of a firearm in the second degree was bifurcated and Buchanan was later found guilty by the trial court after a stipulated facts trial following jury trial. That conviction is not at issue in this appeal. 3 Though Buchanan proposed actual numbered jury instructions, those instructions are not in the record.
8 No. 82987-4-I/9
After questioning Buchanan as to what evidence supported the felonies he
claimed to resist, the court denied his request and instructed the jury on
justifiable homicide. Instruction 32 provided:
It is a defense to a charge of murder and manslaughter that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of the slayer when:
(1) the slayer reasonably believed that the person slain, or others whom the defendant reasonably believed were acting in concert with the person slain, intended to inflict death or great personal injury;
(2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him at the time of and prior to the incident.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
Buchanan also objected to the trial court granting the State’s request for a
first aggressor instruction. Instruction 36 provided:
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 provoked or commenced the fight, then self-defense is not available as a defense.
In closing argument, the State began by telling the jury that
[Tapia and Garcia] never appeared to be afraid of the defendant the whole time they were at his car. And that’s because
9 No. 82987-4-I/10
the defendant’s decision to initiate a physical confrontation, to arm himself and to shoot each of them in the head wasn’t foreseeable because it wasn’t reasonable. It wasn’t necessary. It wasn’t justifiable under these circumstances. Mr. Tapia and Mr. Garcia couldn’t see it coming because it wasn’t a logical outcome to what was going on. It wasn’t the necessary outcome. It wasn’t justifiable homicide.
The evidence in this case proves beyond a reasonable doubt that the defendant shot and killed Paul Tapia and Jose Garcia for no good reason. That is why he is guilty of murder. The evidence proves that he started it, and if he started it he can’t claim self- defense.
The prosecutor went on to clarify where the jury should find the law.
If I say something this morning about the law, and it doesn’t seem to be what is in here, the Court’s jury instructions, you go with the law that Judge Roberts gives you, and the same goes for whatever [defense counsel] says because you decide the facts, and you apply the law that Judge Roberts has given you to decide this case.
The prosecutor then explained its theory of the case and how the jury should
apply the law to the facts stating,
Okay. Here’s the questions you have to answer. Did the State through the evidence prove the elements of intentional murder which is 1A and 2A beyond a reasonable doubt? Did the State through the evidence prove the elements of felony murder 1B, 2B beyond a reasonable doubt? Did the state through the evidence prove that the defendant was the first aggressor in this altercation that resulted in the death of Garcia and Tapia? And if the defendant is not the first aggressor, if the State fails to prove that beyond a reasonable doubt, then you decided whether his killing of Mr. Garcia was justified, and whether his killing of Mr. Tapia was justified. Those are all separate questions.
The defense objected to this as a misstatement of the law and the trial court
overruled the objection. The State went on to say,
Next question. Was the defendant the aggressor? Jury instruction 36. No person by any intentional act, done on purpose, reasonably, likely foreseeably, makes sense that what I’m doing might cause this situation, provoked, reasonably likely to provoke a
10 No. 82987-4-I/11
threat upon create a necessity for acting in self defense and the kill. So you can’t start a fight, require somebody that you are fighting with to defend themselves, and then say oh gosh, no I got to defend myself against the guy that was defending himself against me. You can’t do that. Law says you can’t do that. Logical. It makes sense. If you find the defendant started the fight, and he created the situation that caused Mr. Tapia to react, and then he can’t sit here and say – he can’t claim that his shooting of them was justifiable because he started it. He created the situation that then he had to defend himself.
So if the evidence, and we will go through that in a second, proves beyond a reasonable doubt that he started it, then you don’t have to look at justifiable homicide because he doesn’t get that.
Now, if you find that it hasn’t been proved beyond a reasonable doubt, that the State hasn’t proven that he is the first aggressor, then you go to the justifiable homicide instruction, which is again full of reasonableness. The State has to prove the absence of this beyond a reasonable doubt. I know that’s weird, but that is the law. So the State has to prove through the evidence that Mr. Buchanan believed that Tapia and Garcia were going to hurt him. Were going to kill him or inflict great personal injury. Not just hurt him. State has to prove that that’s not reasonable. State has to prove that the harm wasn’t imminent or the State has to prove that the force was too much.
If any of these are not present, then the state has proven that it’s not justifiable. I know. Not the best way to write anything, but it is justifiable if all three things are there. So if the State proves one of them isn’t there, then it’s not justifiable. We will go through that. Okay.
In support of the argument that Buchanan was the aggressor and the shooting
was unjustified, the prosecution argued that Buchanan initiated the altercation:
The defendant is the aggressor. He goes hands on. And anything Mr. Tapia did after that was Mr. Tapia defending himself. And the defendant can’t then claim I caused Mr. Tapia to have to defend himself and now I got to kill him. So if you find beyond a reasonable doubt that the defendant’s the first aggressor then that’s it. If you don’t, then you go through the jury instruction bit by bit for justifiable homicide.
11 No. 82987-4-I/12
The prosecutor continued to argue that Buchanan was the aggressor.
So the defendant who started this fight by getting out of that car, going hands on, arming himself now claims that he had to kill these two men, and that he had no other choice.
....
Tapia’s waving his arms. Talking to the defendant. Garcia’s not concerned. Just standing there. Tapia never strikes. Garcia never strikes. No one attacks the defendant. And the defendant gets what? Mad? Mad. And attacks them. And pushes him. And creates a situation where he is starting a fight.
The jury convicted Buchanan of both counts of murder in the second
degree. Following his convictions, Buchanan moved for a new trial. The court
denied the motion. Buchanan was subsequently sentenced to a total of 377
months’ imprisonment for all three charges. Buchanan appeals.
DISCUSSION
A. Justifiable Homicide
Buchanan asserts that the trial court erred in refusing to instruct the jury
on justifiable homicide in resistance to a felony or attempt to commit a felony. 4
4 Because the record does not include the actual proposed jury instruction
at issue, it is unclear if Buchanan’s proposed instruction mirrored Washington pattern criminal jury instruction WPIC 1603:
It is a defense to a charge of [murder] [manslaughter] that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the actual resistance of an attempt to commit a felony [upon the slayer] [in the presence of the slayer] [or] [upon or in a dwelling or other place of abode in which the slayer is present].
The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they
12 No. 82987-4-I/13
Buchanan argues that Tapia was attempting to rob him of his cannabis and shot
him to resist that robbery. 5
Not all robberies justify the use of deadly force. State v. Brightman, 155
Wn.2d 506, 519, 122 P.3d 150 (2005). A killing in self-defense is not justified
unless the attack on the defendant’s person threatens life or great bodily harm.
State v. Nyland, 47 Wn.2d 240, 243, 287 P.2d 345 (1955).
An instruction is proper if it correctly states the law, is not misleading, and
permits counsel to argue his or her theory of the case. State v. Mark, 94 Wn.2d
520, 526, 618 P.2d 73 (1980). “Where a trial court has refused to give a
justifiable homicide or self-defense instruction, the standard of review depends
upon why the trial court did so.” Brightman, 155 Wn.2d at 519 (citing State v.
Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998)). Where the trial court’s
refusal is based on a factual dispute, then it is reviewable only for abuse of
discretion. Id. It is not error to refuse to give a cumulative instruction or one
collateral to or repetitious of instructions already given. State v. Benn, 120
reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] [her] at the time [and prior to] the incident.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 16.02 (5th ed. 2021) (WPIC).
5 Buchanan does not re-raise on appeal his argument that the felonies also were attempted assault in the second degree and theft in the first degree.
13 No. 82987-4-I/14
Wn.2d 631, 655, 845 P.2d 289 (1993) (citing State v. Hawkins, 70 Wn.2d 697,
708-09, 425 P.2d 390 (1967)).
Though the trial court did not explicitly state why it denied Buchanan’s
proposed jury instruction, the record shows that the court inquired extensively
about whether the evidence factually supported such an instruction. The State
argued that “the sequence of events is that the threat to kill was not related to the
taking of marijuana or the assertion of that.” The court responded, “I appreciate
that because that was in my mind” and “that currently is what is giving me pause
with regard to the current state of the instructions.” The court then stated it would
review the transcript of Buchanan’s testimony. The next day, the court heard
extensive arguments about the evidence. Because the record shows the court’s
refusal to give Buchanan’s proposed instruction was based on a factual dispute,
we apply an abuse of discretion standard of review.
We find that the trial court did not abuse its discretion in refusing to
instruct the jury on justifiable homicide in resistance to a felony as the evidence
did not support a finding that Buchanan was in fact resisting a robbery when he
shot Tapia and Garcia.
A person commits robbery when he
unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person . . . . Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking[.]
RCW 9A.56.190. The force used does not have to be contemporaneous with the
taking and may occur later in retention of the property taken. State v. Johnson,
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155 Wn.2d 609, 611, 121 P.3d 91 (2005); State v. Handburgh, 119 Wn.2d 284,
830 P.2d 641 (1992) (affirming robbery conviction when victim saw the defendant
riding her bicycle, demanded its return and a fistfight ensued).
The evidence did not support that Tapia used force or threatened to use
force to take or retain Buchanan’s cannabis. Tapia said he was going to take the
rest of Buchanan’s cannabis and that he was acting like he was “going to
forcefully take it.” (Emphasis added.) Other than making this statement, Tapia
did not exhibit any force or threatened the use of force to try and take the plastic
bag of cannabis. Buchanan testified that he gave Tapia a nugget of cannabis to
smell and that Tapia gave the nugget to Garcia. Buchanan stepped out of his car
and got in an argument while trying to get the cannabis “back.” Buchanan
testified that he lunged at Tapia after Tapia “balled his fists, and started to [sic]
moving his farm [sic] like he was going to swing at me.” Buchanan could not
remember what either he or Tapia said at this time. However, the video showed
Tapia moving his arms gesturing not unlike he did when previously conversing
with Buchanan. And Tapia did this repeatedly before Buchanan reacted.
Buchanan admitted that Tapia never had a chance to strike him or even get
momentum to swing because Buchanan got close to Tapia. The video evidence
shows that Buchanan is the one who initiated force against Tapia. Though
Buchanan testified that Tapia told him he would “beat the shit out of” him and
“kill” him, that happened only after Buchanan shoved Tapia and without any
reference to the cannabis. The record did not establish that Buchanan’s use of
lethal force was in resistance to the felony of robbery.
15 No. 82987-4-I/16
Buchanan also contends that where a person defends themselves in
resistance of a felony being committed against them, “once the felony has begun,
the law does not require the person fear death or great bodily injury” in order for
a homicide to be justifiable. Buchanan largely relies on the language in RCW
9A.16.050, Washington’s justifiable homicide statute, which reads:
Homicide is also justifiable when committed either:
(1) In the lawful defense of the slayer, ... when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer ... and there is imminent danger of that design being accomplished; or
(2) In the actual resistance of an attempt to commit a felony upon the slayer . . . .
Buchanan repeats the same argument that the Washington Supreme Court
addressed in Brightman. In Brightman, the defendant similarly argued, “that
whenever the defendant can present evidence that a robbery was being
attempted or was already in progress when the defendant acted in self-defense,
then the defendant need not show that he or she feared death or great bodily
injury to justify deadly force.” 155 Wn.2d at 521. However, our Supreme Court
observed “the Nyland, Griffith, Brenner, and Castro cases support a conclusion
that a justifiable homicide instruction based on either .050(1) or .050(2) depends
upon a showing that the use of deadly force was necessary under the
circumstances.” Brightman, 155 Wn.2d at 523 (citing Nyland, 47 Wn.2d at 242;
State v. Griffith, 81 Wn.2d 572, 576-77, 589 P.2d 799 (1979); State v. Brenner,
53 Wn. App. 367, 377, 768 P.2d 509 (1989), overruled on other grounds by State
16 No. 82987-4-I/17
v. Wentz, 149 Wn.2d 342, 68 P.3d 282 (2003); and State v. Castro, 30 Wn. App.
586, 588-89, 636 P.2d 1099 (1981)).
“The trial court must view the evidence from the standpoint of a
‘reasonably prudent person who knows all the defendant knows and sees all the
defendant sees.’” Brightman, 155 Wn.2d at 520 (quoting State v. Read, 147
Wn.2d 238, 242, 53 P.3d 26 (2002)).
Buchanan testified he shot Tapia after Tapia said he would “beat the shit
out of” Buchanan and “kill” him and reached toward his right side, causing
Buchanan to believe he was reaching for a weapon. Instruction 32 allowed
Buchanan to argue that the homicide was justified because he reasonably
believed Tapia and his friend Garcia intended to inflict death or great personal
injury to Buchanan, that Buchanan reasonably believed that there was imminent
danger of such harm being accomplished, and that Buchanan employed such
force and means as a reasonably prudent person would use under the same or
similar conditions as they reasonably appeared to Buchanan, taking into
consideration all the facts and circumstances as they appeared to Buchanan at
the time of and prior to the incident.
Given this record, the trial court did not abuse its discretion in denying
Buchanan’s proposed instruction on self-defense in resistance of a felony.
B. First Aggressor Instruction
Buchanan next asserts that the trial court erred in giving the jury a “first
aggressor” instruction. Buchanan contends this instruction was not supported by
17 No. 82987-4-I/18
the evidence. We disagree and find the evidence supported giving the
instruction.
Whether the State produced sufficient evidence to justify a first aggressor
instruction is a question of law reviewed de novo. State v. Bea, 162 Wn. App.
570, 577, 254 P.3d 948 (2011). “Words alone do not constitute sufficient
provocation” for a first aggressor instruction. State v. Riley, 137 Wn.2d 904, 911,
976 P.2d 624 (1999). Additionally, the provoking act cannot be the actual assault
charged. Bea, 162 Wn. App. at 577; State v. Kidd, 57 Wn. App. 95, 100, 786
P.2d 847 (1990).
Buchanan asserts that “words alone can constitute a threat of bodily harm
even without any mention of a threat” relying on State v. Farnsworth to support
the proposition. 185 Wn.2d 768, 777, 374 P.3d 1152 (2014). However, the
Farnsworth court held only that where a person attempting to commit a bank
robbery passed a note to the teller demanding money but containing no explicit
threats of bodily harm, that, objectively, “a reasonable person in the teller’s
position could reasonably infer a threat of bodily harm.” Farnsworth, 185 Wn.2d
at 777. Farnsworth is inapposite.
An aggressor forfeits the right of self-defense. State v. Craig, 82 Wn.2d
777, 783, 514 P.2d 151 (1973). A “first aggressor” instruction explains to the jury
that the State may disprove self-defense “by proving beyond a reasonable doubt
that the defendant provoked the need to act in self-defense.” State v. Grott, 195
Wn.2d 256, 268, 458 P.3d 750 (2020). The aggressor cannot claim self-defense
“because ‘the aggressor’s victim, defending himself against the aggressor, is
18 No. 82987-4-I/19
using lawful, not unlawful, force; and the force defended against must be
unlawful force, for self-defense.’” Riley, 137 Wn.2d at 911 (quoting 1 W AYNE R.
LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 5.7(e) at 657-58
(1986)). A “first aggressor” instruction is appropriate, “[w]here there is credible
evidence from which a jury can reasonably determine that the defendant
provoked the need to act in self-defense.” Riley, 137 Wn.2d at 909-10. Such an
instruction is also appropriate where there is conflicting evidence as to whether
the defendant’s conduct precipitated a fight. State v. Wingate, 155 Wn.2d 817,
823, 122 P.3d 908 (2005).
The trial court did not err in concluding that the first aggressor instruction
was justified by the evidence. Buchanan testified that Tapia “balled his fists” and
moved his arm in a way that made Buchanan believe Tapia was going to hit him.
But the security video showed Tapia gesturing with his arms similarly to how he
gestured while talking earlier with others, including Buchanan. It also showed
Tapia move his arms multiple times before Buchanan pushed him back into the
adjacent parked car. It was after this incident that Tapia said he would “beat the
shit out of” Buchanan and would “kill” him.
The State also presented witness testimony that while the men appeared
to be in an argument, they did not hear any threats and did not observe any
physical escalation of the argument. The women testified that they were not
alarmed by the men’s argument and did not fear for their safety, or they would
not have walked so close to them. Arredondo testified that Buchanan appeared
19 No. 82987-4-I/20
very calm and was standing in one spot before she saw him shoot Tapia and
Garcia.
The only action Garcia took before being shot was to close the driver’s
side door after the shoving incident and stand behind Tapia.
The evidence supported a first aggressor instruction and the trial court did
not err in so instructing the jury.
Prosecutorial Misconduct
Buchanan contends that the prosecution committed misconduct in closing
argument by telling the jury to first consider whether Buchanan was the first
aggressor in the altercation, and if they found he was not, then to consider
whether the killings were justifiable. We disagree with Buchanan’s interpretation
of the argument and find that the closing argument did not misstate the law.
A prosecutor “commits misconduct by misstating the law.” State v. Allen,
182 Wn.2d 364, 373, 341 P.3d 286 (2015). Prosecutors, however, have “‘wide
latitude in making arguments to the jury and prosecutors are allowed to draw
reasonable inferences from the evidence.’” State v. Fisher, 165 Wn.2d 727, 747,
202 P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201
(2006), overruled in part on other grounds by State v. W.R., 181 Wn.2d 757, 336
P.3d 1134 (2014)). “Prosecutorial misconduct may deprive a defendant of his
constitutional right to a fair trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d
696, 703-04, 286 P.3d 673 (2012). To prevail on a claim of prosecutorial
misconduct, a defendant must show that “in the context of the record and all of
the circumstances of the trial, the prosecutor’s conduct was both improper and
20 No. 82987-4-I/21
prejudicial.” In re Pers. Restraint of Glasmann, 175 Wn.2d at 704.
Once a defendant establishes that a prosecutor’s statements are
improper, we determine whether the defendant was prejudiced. If the defendant
objected at trial, the defendant must show that the prosecutor’s misconduct
resulted in prejudice that had a substantial likelihood of affecting the jury’s
verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
We review the prosecutor’s conduct and whether prejudice resulted from it
“by examining that conduct in the full trial context, including the evidence
presented, ‘the context of the total argument, the issues in the case, the evidence
addressed in the argument, and the instructions given to the jury.’” State v.
Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks
omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)). In
the full trial context, the argument was not a misstatement of the law, but an
argument based on the evidence.
Rather than arguing that Buchanan was the first aggressor and created
the need to act in self-defense against a secondary aggressor, the record reflects
that the State’s argument was that Buchanan was the only aggressor in this
situation. The State’s argument is that this is simply not a case of self-defense.
At the beginning of closing argument, the State argued that Buchanan’s decision
to “shoot each of them in the head wasn’t foreseeable because it wasn’t
reasonable. It wasn’t necessary . . . It wasn’t justifiable homicide.” The
prosecutor also pointed out that “Tapia never strikes. Garcia never strikes. No
21 No. 82987-4-I/22
one attacks the defendant,” but the defendant “attacks them. And pushes him.
And creates a situation where he is starting a fight.”
Additionally, the State never told the jury not to follow the judge’s
instructions and never implied that the State did not have the burden to prove
that the murders were unjustified. Instead, the prosecutor told the jury to defer to
the Court’s instructions on the law and that “you apply the law that Judge Roberts
has given you to decide this case.” The State’s closing also correctly told the jury
the burden was on the State to show that the killings were not justified and that
they would have to prove so beyond a reasonable doubt.
The prosecution’s theory of the case was that the jury need not look to
whether it was justifiable under self-defense because this case was not a case of
self-defense. The prosecutions closing argument, though perhaps inartful,
simply articulated that theory and was not a misstatement of the law. Also, even
if the prosecutor’s statement was improper, Buchanan failed to demonstrate the
requisite prejudice. He is therefore not entitled to a new trial. Emery, 174 Wn.2d
766 (holding that where there was one error, defendant failed to demonstrate the
requisite prejudice and is not entitled to a new trial).
CONCLUSION
We affirm.
WE CONCUR: