first aggressor instruction in Washington

2024The jury may be provided a first aggressor instruction in circumstances where “(1) the jury can reasonably determine from the evidence that the defendant provoked the fight, (2) the evidence conflicts as to whether the defendant’s conduct provoked the flight, or (3) the evidence shows that the defendant made the first move by drawing a weapon.” State v. Anderson, 144 Wn.

2024A first aggressor instruction is also appropriate if “the evidence shows that the defendant made the first move by drawing a weapon.” State v. Anderson, 144 Wn.

2024App. 85, 89 , 180 P.3d 885 (2008).

2022App. 85, 89 , 180 P.3d 885 (2008) (holding that whether there was sufficient evidence to justify the first aggressor instruction is reviewed de novo).

2021App. 156, 159 , 772 P.2d 1039 (1989), Young contends that, as the provoking act was directed at someone other than the victim of the assault (Boyles), a first aggressor instruction was improper.

2019It is improper to give a first aggressor instruction where there is no evidence that the defendant “initiated any act toward [the victim] until the final assault.” Wasson, 54 Wn.

2024See Riley, 137 Wn.2d at 910 ; Grott, 195 Wn.2d at 267 .3 Providing a first aggressor instruction along with Felton’s proposed self-defense instruction would have properly allowed both parties to argue their theories of the 3 The State relies heavily on State v. Craig, 82 Wn.2d 777, 784 , 514 P.2d 151 (1973), in which our Supreme Court held that the defendant was not entitled to a jury instruction on self-defense because the defendant “admittedly engaged in conduct which gave the victim good cause to believe that he was threatened with bodily harm.” Craig is distinguishable because, there, the

2024See Riley, 137 Wn.2d at 910 ; Grott, 195 Wn.2d at 267 .3 Providing a first aggressor instruction along with Felton’s proposed self-defense instruction would have properly allowed both parties to argue their theories of the 3 The State relies heavily on State v. Craig, 82 Wn.2d 777, 784 , 514 P.2d 151 (1973), in which our Supreme Court held that the defendant was not entitled to a jury instruction on self-defense because the defendant “admittedly engaged in conduct which gave the victim good cause to believe that he was threatened with bodily harm.” Craig is distinguishable because, there, the

2024State v. Sullivan, 196 Wn.

2020Riley, 137 Wn.2d at 909-10 . “[W]here there is evidence that the defendant engaged in a course of aggressive conduct, rather than a single aggressive act, ‘the provoking act can be part of a “single course of 2 The testimony describes Alpert as a “thin,” 60-year-old man with spinal stenosis and severe arthritis, about five feet six inches tall, and Baker as “a pretty big guy” over six feet tall. 11 No. 79147-8-I/12 conduct.” ’ ” State v. Grott, 195 Wn.2d 256, 273 , 458 P.3d 750 (2020) (quoting State v. Sullivan, 196 Wn.

2020App. 570, 577 , 254 P.3d 948 (2011). “[W]ords alone do not constitute sufficient provocation” for a first aggressor instruction.

2020App. 570, 577 , 254 P.3d 948 (2011). 9 State v. Riley, 137 Wn.2d 904, 912 , 976 P.2d 624 (1999). 10 Riley, 137 Wn.2d at 909-10. 11 State v. Richmond, 3 Wn.

2019Riley, 137 Wn.2d at 910-11 ; State v. Brower, 43 Wn.

2004State v. Brower, 43 Wn.

2020The present case is similar to State v. Hawkins, 89 Wash. 449, 450 , 154 P. 827 (1916), where the defendant dashed through a barn door, ran up to a group of men, and demanded to know what was wrong with them.

2020The present case is similar to State v. Hawkins, 89 Wash. 449, 450 , 154 P. 827 (1916), where the defendant dashed through a barn door, ran up to a group of men, and demanded to know what was wrong with them.

2011State v. Douglas, 128 Wn.

2011State v. Douglas, 128 Wash. App. 555, 563 , 116 P.3d 1012 (2005).

2025State v. Hendrickson, 129 Wn.2d 61, 78 , 917 P.2d 563 (1996). -8- No. 87670-8-I/9 B Milam argues that defense counsel was ineffective for failing to object to the first aggressor instruction.

2025State v. Hendrickson, 129 Wn.2d 61, 78 , 917 P.2d 563 (1996). -8- No. 87670-8-I/9 B Milam argues that defense counsel was ineffective for failing to object to the first aggressor instruction.

2022“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.” Clausing, 147 Wn.2d at 626 .

2021App. at 402 (quoting State v. Reichenbach, 153 Wn.2d 126, 130 , 101 P.3d 80 (2004)). 3 In re Humphrey, No. S247278, slip. op. at 2 (Cal. Mar. 25, 2021) https://www.courts.ca.gov/opinions/documents/S247278.pdf (unconstitutional to detain individuals pretrial because they cannot pay bail). 8 No. 80907-5-I/9 A Young asserts that his counsel provided ineffective assistance by failing to object to the trial court’s issuance of a first aggressor instruction.

2021State v. Gerdts, 136 Wn.

2021App. at 402 (quoting State v. Reichenbach, 153 Wn.2d 126, 130 , 101 P.3d 80 (2004)). 3 In re Humphrey, No. S247278, slip. op. at 2 (Cal. Mar. 25, 2021) https://www.courts.ca.gov/opinions/documents/S247278.pdf (unconstitutional to detain individuals pretrial because they cannot pay bail). 8 No. 80907-5-I/9 A Young asserts that his counsel provided ineffective assistance by failing to object to the trial court’s issuance of a first aggressor instruction.

2020The first aggressor instruction in this case was properly given Although Grott is not entitled to challenge the first aggressor instruction for the first time on appeal,"RAP 2.5(a) grants appellate courts discretion to accept review of claimed error not appealed as a matter of right." State v. Blazina, 182 Wn.2d 827, 834-35 , 344 P.3d 680 (2015).

2020The first aggressor instruction in this case was properly given Although Grott is not entitled to challenge the first aggressor instruction for the first time on appeal,"RAP 2.5(a) grants appellate courts discretion to accept review of claimed error not appealed as a matter of right." State v. Blazina, 182 Wn.2d 827, 834-35 , 344 P.3d 680 (2015).

2020Rather, just like with unpreserved objections to self-defense instructions, “We look to the asserted claim and assess whether, if correct, it implicates a constitutional interest as compared to another form of trial error.” State v. O’Hara, 167 Wn.2d 91, 98 , 217 P.3d 756 (2009).

2020Not all constitutional errors are manifest Turning to the second RAP 2.5(a)(3) question, the Court of Appeals indicated that the error was manifest because "[w]e presume that an error of constitutional magnitude is prejudicial, and the State bears the burden of proving that the error was harmless." Grott, No. 50415-4-II, slip op. at 6 (citing State v. Guloy, 104 Wn.2d 412, 425 , 705 P.2d 1182 (1985)).

2020Not all constitutional errors are manifest Turning to the second RAP 2.5(a)(3) question, the Court of Appeals indicated that the error was manifest because "[w]e presume that an error of constitutional magnitude is prejudicial, and the State bears the burden of proving that the error was harmless." Grott, No. 50415-4-II, slip op. at 6 (citing State v. Guloy, 104 Wn.2d 412, 425 , 705 P.2d 1182 (1985)).