State v. Daley

627 P.2d 554, 29 Wash. App. 55, 1981 Wash. App. LEXIS 2253

• Court: Court of Appeals of Washington
• Decided: April 21, 1981
• Docket: No. 3507-7-III
• Status: Published

Opinions

Munson, J.

Sixteen-year-old James Foy Daley appeals his jury conviction of first degree manslaughter and taking a motor vehicle without permission.

On the morning of January 5, 1979, the body of LaVon Wesley Palmer was found in his room at the Holiday Inn West Motel in Spokane. Three bullets, fired at close range, caused his death.

It was apparent from the motel room that a struggle had occurred and individuals in an adjacent room said they overheard people arguing in loud voices the evening of January 4, 1979. When the noise subsided, they looked out a window and saw someone run from the motel room, get into the victim's car, and leave the area at a high speed.

Daley said his brother drove him downtown on the evening of January 4, 1979, to visit a young lady. He changed his mind and decided to walk home. He was approached by Palmer, who asked directions to the Holiday Inn and offered him $5 to personally direct him to the motel. Upon arrival, Palmer allegedly requested that Daley come into the room to meet a friend. Upon reaching the door, Daley testified he was pushed into the room. Fearful of a homosexual attack, he ran into the bathroom and held the door closed. Daley said he then removed a .22 caliber revolver¹ from behind his belt, opened the door, and when Palmer reached for the gun, Daley fired. During the subsequent struggle, two more shots were fired. When Palmer fell to the floor, Daley saw his car keys, took them, and ran.

Daley was charged with first degree murder and taking a motor vehicle without permission. At trial, the State attempted to show Daley deliberately allowed himself to be "picked up" by someone he believed to be a homosexual, so Daley could rob him. The State further argued that when Daley attempted to rob Palmer, Palmer resisted and was killed in the resulting struggle. Daley contended his actions were based upon self-defense.

Daley initially contends the court erred in not instructing the jury that the State has the burden to prove the absence of self-defense. We disagree. In State v. Hanton, 94 Wn.2d 129, 134, 614 P.2d 1280, cert. denied, 449 U.S. 1035, 66 L. Ed. 2d 497, 101 S. Ct. 611 (1980), the court held:

If a defendant presents sufficient evidence to raise an issue of self-defense, the court need only instruct on it without allocating the burden of proof. Such an instruction permits a defendant to fully argue his theory of the case. State v. King, 92 Wn.2d 541, 546, 599 P.2d 522 (1979). The jury may then consider the evidence of self-defense in determining whether a defendant was acting recklessly.

Here, the court: (a) instructed the jury that recklessness was an element of first degree manslaughter, and as such the State had to prove its presence beyond a reasonable doubt; (b) accurately defined recklessness; and (c) instructed the jury as to justifiable homicide or self-defense. Nothing more was required.

Daley also claims the court erred in instructing the jury that justifiable homicide and self-defense are synonymous terms, thereby placing a burden on the defense to prove not only the fact of self-defense, but also its qualification as justifiable homicide. This contention, in light of the preceding, is without merit. Additionally, the terms "justifiable homicide" and "self-defense" have been used interchangeably by both the Washington and United States Supreme Courts.²

Lastly, Daley contends the court erred in instructing the jury that it is lawful for consenting adult males to enter into a homosexual relationship. He argues the instruction implies the meeting: of the parties was based on mutual consent to sexual activity.

The State's theory urged the jury to believe Daley accompanied Palmer only because Daley thought Palmer was a homosexual, and Daley planned to rob him. The State argues the instruction merely advised the jury of the present state of Washington law {i.e., sexual activity between consenting adults is not in itself unlawful), to prevent the jury from trying the victim. Even if we assume that it is error to instruct on a matter unrelated to the elements of self-defense or the crimes charged, Daley fails to state how he was prejudiced or the jury misled by the instruction. Hence, the error, if any, was harmless.

The judgment of the Superior Court is affirmed.

Roe, J., concurs.

1 Mr. Daley testified he believed some protection was necessary when he visited his brother because of sporadic violence in that neighborhood.

2 See Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); State v. Hanton, supra at 133; State v. Griffith, 91 Wn.2d 572, 574, 589 P.2d 799 (1979); State v. Wanrow, 88 Wn.2d 221, 233-34, 559 P.2d 548 (1977).