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State v. Slert8/9/2005
rial court must determine what a reasonable person would have done if placed in the defendant's situation.' Read, 147 Wn.2d at 243 (emphasis added).
A trial court evaluates the defendant's evidence in support of the proposed justifiable homicide instruction 'by reviewing the entire record in the light most favorable to the defendant with particular attention to those events immediately preceding and including the alleged criminal act.' State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997); see also Read, 147 Wn.2d at 242 (stating that 'a defendant must produce some evidence to establish the killing occurred in circumstances amounting to defense of life and produce some evidence he or she had a reasonable apprehension of great bodily harm and imminent danger.') (emphasis added).
Here, the trial court provided a justifiable homicide instruction, but not on the basis that Slert was resisting Benson's alleged attempt to commit residential burglary. The trial court did not give a reason for denying Slert's proposed instruction based on resistance to a felony, rather, Slert's trial counsel objected on the record.
Slert's justifiable homicide theory was based on his statements that he was continuously resisting Benson's life threatening behavior both outside and at the threshold of his tent. Slert was covered with blood the next morning, the front of Benson's body had significant ground debris, and blood was on the canvas of Slert's tent. Benson was lying in front of Slert's tent when the ranger and Slert returned to the campsite.
Reviewing the evidence in the light most favorable to Slert and considering the elements of residential burglary, Slert should have had the ability to completely assert his justifiable homicide theory to the jury. Although the State proffered some physical evidence and certain statements from Slert that appeared to contradict his assertion that he was resisting the felony of residential burglary, witness credibility and factual determinations are for the jury to decide. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Williams, 93 Wn. App. 340, 348, 968 P.2d 26 (1998). Further, a defendant's proposed justifiable homicide instruction 'may be based upon facts inconsistent with {the defendant's} own testimony.' Callahan, 87 Wn. App. at 933.
Thus, the trial court committed reversible error in rejecting Slert's proposed instruction on justifiable homicide in resistance of a felony (residential burglary).
II. Ineffective Counsel and Revival Instruction
Slert next argues that he was denied a fair trial because his counsel failed to propose a jury instruction regarding the revival of an aggressor's right to self-defense when the defendant communicates a withdrawal from the conflict. Slert does not challenge the validity of the first aggressor instruction. Instead, he argues that when he walked away from Benson's truck after punching him, he withdrew in a manner that revived his right to self-defense.
It is well established that, one who was the aggressor or who provoked the altercation in which he killed the other person engaged in the conflict, cannot successfully invoke the right of self-defense to justify or excuse the homicide, unless he in good faith had first withdrawn from the combat at such a time and in such a manner as to have clearly apprised his adversary that he in good faith was desisting, or intended to desist, from further aggressive action.
State v. Craig, 82 Wn.2d 777, 783-84, 514 P.2d 151 (1973) (emphasis added); see also Riley, 137 Wn.2d at 909 (citing Craig when declaring that the aggressor must 'let the other person know that he or she is
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