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State v. Sims9/23/2002
Where there is credible evidence of actual conduct from which a jury can reasonably determine that a defendant provoked the need to act in self-defense, an instruction to the jury that the defendant cannot claim self-defense if the jury finds the defendant was the first aggressor is appropriate. But because the record here contains insufficient evidence of either the defendant's or the victim's actual conduct prior to the murder, the trial court erred in giving such an instruction. Further, it is not clear beyond a reasonable doubt that the erroneous instruction had no effect on the final outcome of the case.
Thus, a new trial is required on both counts.
FACTS
Jasiri Sims went to the home of Barry Funderburk for the purpose of selling cocaine to Sims' cousin, Alvin Sims. Jasiri Sims (Sims) made his living by selling crack cocaine and carried a pistol. After an argument with Alvin, Sims fatally shot Alvin and seriously wounded Funderburk. After his arrest by the FBI in Phoenix, Arizona, Sims was charged with one count of attempted murder in the first degree for his actions toward Funderburk (count I) and one count of murder in the first degree for Alvin's death (count II).
Sims contends the shootings were in self-defense. Sims testified that on the night in question, Alvin called him from Funderburk's house to buy some cocaine. Sims stated Denise Nirschl drove him to Funderburk's house, and that Alvin, Nirschl, and he drove to a nearby store. After returning from the store, Sims testified he gave Alvin some cocaine and Funderburk went outside the house.
Sims testified that Alvin appeared to be "tripping," produced a gun, and told Sims that he was not going to pay for the cocaine. Sims testified Alvin pointed the gun at Sims and ranted about family problems. Sims testified that he was scared and that Alvin put the gun to Sims' head and said, "I should just kill you." Alvin then said, "I'm going to kill you." Sims stated that he then retrieved his gun and shot Alvin at least three times. Sims testified that Alvin spun around and fell on the floor when he shot him.
Sims testified that as he left the house, he glimpsed Funderburk behind him against the wall of the house. Sims stated that Funderburk moved toward him and he thought Funderburk was reaching for a gun. Sims shot Funderburk twice. Sims stated he fled to Portland, Oregon, then Arizona, because he feared reprisal from Alvin's side of the family. Sims testified that he buried the gun.
Funderburk survived the incident and called 911 after being shot. Deputy Deer of the King County sheriff's office responded to the 911 call. Deputy Deer saw Alvin lying face up, with a revolver a few feet from his hand. The revolver was a "breach break" type of revolver and it was found in the open position. No fingerprints were found on the revolver, although the State's ballistics expert testified that revolver fingerprints were fragile and an absence of them did not mean the revolver had not been touched.
Trial testimony established that if the revolver was latched, it would not have opened into the breach position merely by landing on the floor. All seven of the recovered bullets were from Sims' gun; none were from the revolver. Detective Gulla testified that Sims' gun was a semiautomatic; the type of gun where a user would have to pull the trigger each time for a shot.
On direct examination, the State's witness on bullet wounds, Dr. Richard Harruff, testified that Alvin was shot in the left wrist, the buttocks, the back of his head, twice in the left chest, and once through his right hand. Dr. Harruff testified that although Alvin suffered six woun
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