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State v. Riley5/13/1999
Oral Argument Date: 06/16/1998
EN BANC
Petitioner Johnny Lee Riley was convicted of first degree assault while armed with a deadly weapon. He maintains that the giving of an aggressor instruction violated his First Amendment rights. We affirm the conviction.
FACTS
On June 16, 1994, Johnny Lee Riley shot 15-year-old Gustavo Jaramillo. Riley claims he shot in self-defense. At the time of the shooting, Riley was 26 years old and was considerably larger than Jaramillo. On the day of the shooting, Jaramillo was with his friend Aaron Calloway. Jaramillo and Calloway stole cars and sold drugs together, and on that day had used cocaine. Jaramillo also had a stolen car and a stolen 9 mm semiautomatic pistol in his possession.
Riley, who was visiting a friend, first saw Jaramillo in an alley, and asked about purchasing the car. Jaramillo and Calloway testified that Riley also wanted to buy the pistol. According to Riley, he left to tell his father about the car, but was unable to find him. He returned a short time later with another man. At the time, Jaramillo and Calloway were lying on a nearby lawn waiting for friends.
Conflicting testimony was given as to what occurred after Riley returned. Riley testified that he had asked Jaramillo about Jaramillo's gang, made some comments, and suggested that Jaramillo was only a "wanna-be." Verbatim Report of Proceedings (RP) at 28 (Nov. 10, 1994). He testified he did not intend any insult and instead said it jokingly. Jaramillo, though, was insulted, and said he was going to shoot Riley. Riley then pulled a gun on Jaramillo and demanded Jaramillo's gun so that Jaramillo would not shoot him in the back as he left. Jaramillo said he did not have a gun, that it was across the street in some bushes, which Riley did not believe. Riley also said that Jaramillo tried to distract him by claiming that the police were coming. Riley testified that Jaramillo was reaching for his gun when Riley shot him. Riley claimed he shot Jaramillo to keep him from shooting.
Other witnesses, including Calloway, testified that Riley approached, pulled out his gun and stood over Jaramillo while demanding to know where the 9 mm pistol was. Jaramillo's hands were by his head, as he had propped himself up on his right elbow, and the gun was in his right pants pocket, beneath him as he lay on his side on the ground. Riley ordered Jaramillo and Calloway not to move, and when Jaramillo looked up Riley shot him in the back of the neck, took Jaramillo's gun, and left.
Although conflicting evidence as to events was presented, there is no dispute that Riley pulled a gun on Jaramillo first.
Riley was charged with two counts of robbery, one count of assault in the first degree, and one count of unlawful possession of a firearm.
The issue at trial was whether Riley shot Jaramillo in self-defense, as he claimed. The trial court gave the jury several instructions on self-defense, and also gave an aggressor instruction. Clerk's Papers (CP) at 112 (Jury Instruction 15). Riley objected to the aggressor instruction, claiming that there was insufficient evidence to warrant giving it.
The jury found Riley guilty of assault in the first degree. Pursuant to the parties' agreement, the firearms charge was severed, and the trial Judge found Riley guilty on that charge. The court sentenced Riley to a 300-month exceptional sentence.
Riley appealed, arguing that the giving of the aggressor instruction was error, that prosecutorial misconduct denied him a fair trial, and the trial court erred in imposing an exceptional sentence. Riley's convictions and sentence were affirmed
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