 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Slert8/9/2005
l without charges.
In the following months, Slert frequently telephoned Wetzold to discuss the facts surrounding Benson's death. Slert's recollection of the incident continued to change. For example, Slert stated that he shot toward Benson from two to three feet away and that he shot Benson in the head at 'arm's length.' RP (May 17, 2004) at 161. Eventually, the State charged Slert with Benson's murder.
At trial, the State's experts opined that, without glasses, Benson could only see approximately seven to eleven inches and that darkness would severely hinder his vision. A forensic pathologist testified that the gun's barrel was only a few inches away from Benson's neck and that the bullet traveled downward.
B. Procedural History
Following a CrR 3.5 hearing, the trial court concluded that Slert's statements to McCrosky in the patrol car and the taped statement at the jail were voluntary and that he had clearly waived his Miranda rights before he made the tape recorded statement. Thus, the court admitted Slert's statements to McCrosky in the car enroute from the crime scene to the jail and the taped statement.
Slert argued the rule of completeness under common law and ER 106 in an effort to elicit his statements to the park ranger that he feared for his life because of Benson's actions and that he did not immediately report the incident because he was drunk. The trial court rejected this argument and did not allow the ranger to testify about Slert's statements to him.
The trial court rejected Slert's proposed justifiable homicide jury instruction based on resistance to a felony (residential burglary); however, the trial court did give a general justifiable homicide instruction based on Slert's belief that Benson intended to immediately 'inflict death or great personal injury ' on him. CP at 26. The trial court also gave a first aggressor instruction. Slert did not propose an instruction informing the jury that an aggressor's right to self defense is revived if the aggressor has withdrawn from the conflict.
The jury convicted Slert of second degree murder with a firearm enhancement. He was sentenced within the standard range.
ANALYSIS
I. Justifiable Homicide Instruction in Resistance to a Felony
Slert argues that the trial court erred when it refused to instruct the jury on justifiable homicide in resisting a residential burglary. Slert's challenge is specific to the felony issue because the court generally instructed the jury on justifiable homicide. And Slert does not challenge additional elements of the court's justifiable homicide instruction.
Generally, a defendant's jury instructions are sufficient if they provide the ability to assert the theory of the case and properly provide the jury the applicable law. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). If the trial court rejects a proposed instruction on an issue of law, review is de novo. State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002). Under RCW 9A.16.050, homicide is justified when the defendant had a reasonable ground to stop or resist the commission of a felony or great personal injury and imminent danger. Read, 147 Wn.2d at 242.
In determining the validity of the defendant's proposed instruction under RCW 9A.16.050, the court conducts a subjective and objective inquiry. Read, 147 Wn.2d at 242-43. Regarding the subjective test, 'the trial court must place itself in the defendant's shoes and view the defendant's acts in light of all the facts and circumstances the defendant knew when the act occurred.' Read, 147 Wn.2d at 243 (emphasis added). Regarding the objective test, 'the t
Page 1 2 3 4 5 6 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|