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State v. Siddiq6/27/2005
en over stolen car parts. Brenner testified that the victim approached him with a gun. The victim continued to approach Brenner, even after he warned him to stay back as he had a gun. Brenner then shot the man. Brenner was convicted of manslaughter, and on appeal argued that the court erred in failing to instruct that homicide 'is justifiable when committed in the actual resistance of an attempt to commit a felony upon the defendant or in the presence of the defendant.' Brenner, 53 Wn. App. at 376. We held this prong of the justifiable homicide defense applies only if the felony the defendant sought to prevent threatened life or great bodily harm. The proposed instruction was redundant because the instruction given already made homicide justifiable when the defendant reasonably believes the victim intends to inflict death or great personal injury. Brenner, 53 Wn. App. at 377. The same is true here.
As in Brenner, the additional instruction that Siddiq now argues should have been proposed would have been repetitious. His counsel was not ineffective by failing to propose it.
AGGRESSOR INSTRUCTION
The prosecution proposed and the trial court gave the pattern aggressor instruction:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense or defense of another and thereupon kill another person. Therefore, if you find beyond a reasonable doubt the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
The defense took exception to the giving of this instruction, arguing the State had presented no evidence showing that Siddiq was an aggressor. The trial court, however, said the testimony 'in terms of who was or was not the aggressor in this altercation is all over the board, and that includes during the fight itself.'
The aggressor instruction has been problematic and at least one case says there are few situations where it is warranted. State v. Arthur, 42 Wn. App. 120, 125 n. 1, 708 P.2d 1230 (1985). Citing Arthur, another case says that aggressor instructions are not favored. State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990). Nevertheless, it has long been the law that the right of self-defense cannot be successfully invoked by an aggressor or one who provokes an altercation, '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, 514 P.2d 151 (1973), cited in State v. Riley, 137 Wn.2d 904, 909, 976 P. 2d 624 (1999).
Riley, the Supreme Court's most recent case on the subject, grapples with the instruction in a context where the alleged provocation by the defendant was at least partly verbal in that it included gang-related insults. Riley holds that words alone cannot justify a conclusion that the speaker is an aggressor, 137 Wn.2d at 910-11, and refers approvingly to Arthur as an indication that courts should 'use care' in giving an aggressor instruction, 137 Wn.2d at 910 n.2. Nevertheless, the court found it was not error to give the instruction because it was based not on Riley's words alone, but also on his conduct. There was evidence that he drew his gun first and aimed it at the victim. The court reaffirmed its earlier holding that an aggressor instruction 'is appropriate if there is conflicting evidence as to whether the defendant's conduct precipitated a fight.' Riley, 137 Wn.2d at 910, citing State v. Davis, 119 Wn.2d 657, 666, 835 P.2d 103
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