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State v. Freeburg3/26/2001
PUBLISHED OPINION (IN PART)
The chief issue in this case is whether evidence of possession of a weapon at the time of arrest was properly admitted as evidence of flight. Because we hold that in this case it was not, and constituted prejudicial error, we reverse and remand for a new trial. We also address the instructions on self-defense because use of the standard instructions may result in error.
FACTS
At approximately 1:00 in the morning on November 17, 1994, Jose Rodriguez was shot and killed in the Seattle apartment where he lived with his girlfriend, Darlene Martinez. According to Martinez, Scott Freeburg pounded on the apartment door until Rodriquez got out of bed and opened it.
She testified that Freeburg said he had come to collect money owed him by Martine Gomez, who had lived in the apartment for a time. After heated discussion, Freeburg barged into the apartment brandishing a gun. Martinez tried to call police, but Freeburg grabbed her, threw her on the couch, held the gun to her head, and told her to shut up or he would kill her. At this point, Rodriquez struck Freeburg on the head with some kind of object. Freeburg began to wrestle with Rodriquez, and Martinez headed toward the door. She heard a gunshot, then a second shot, and saw Rodriquez's body go limp. Freeburg then opened the door and Martinez saw Lawrence Kuhn in the hall holding a gun. Freeburg pushed Martinez against the wall and Kuhn entered the apartment. Freeburg told Kuhn, 'if she moves, shoot her.'
Freeburg then went into the bedroom looking for money. Martinez ran. Kuhn fired a shot at her, but missed. Freeburg and Kuhn then fled. Freeburg's account of the shooting differed markedly. He testified that he and Kuhn went to see Rodriquez about an automobile trade. Rodriquez invited him and Kuhn into the apartment. Kuhn and Rodriquez began to argue about money and drugs. The altercation escalated into a fight, and Freeburg separated them. As Freeburg turned to admonish Kuhn for his aggression, Rodriquez smashed Freeburg in the back of the head with an unknown object. The impact knocked Freeburg to his knees. He was struck again in the ear. Dazed, he looked up to see Rodriquez pointing a gun at him at close range. Freeburg rushed at Rodriquez. As they wrestled, the gun fired once, but Freeburg got control of the gun. Rodriquez then kneed Freeburg and grabbed his crotch, 'squeezing as hard as he could.' Freeburg fired the gun without looking or thinking. Rodriquez fell to the couch. Kuhn grabbed the gun, and he and Freeburg left in Freeburg's truck.
Freeburg spent the next four days traveling between Granite Falls, Sedro Wooley, and Ballard. The day after the shooting, he went to his workplace for an hour, arranged to have a co-worker deposit his paycheck, and never returned. He never again accessed his bank account. He concluded his affairs at home, visiting his girlfriend in Granite Falls, arranging for the maintenance of several animals left in his care, alerting the cosigner of the loan on his truck to pick it up in the Park-and-Ride in Stanwood. On the fifth day after the shooting, he signed on as crew on a boat sailing to Mexico the next day. Six months later, he sailed to Canada. He assumed a false identity, changing his appearance and carrying false identification. He evaded Canadian law enforcement officers until February 1997, when he was arrested. At the time of his arrest, he carried false identity papers and a loaded .45 caliber handgun.
Freeburg's theory at trial was that he acted in self-defense. The State sought to introduce the circumstances of Freeburg's arrest in Canada, including the fact that Freeburg was armed. Over strenuous obje
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