STATE v. SLAUGHTER (2008)

PUBLISHED IN PART

 ¶ 1 Ossie Slaughter appeals his convictions for second degree felony murder and misdemeanor violation of a no-contact order. He argues that the trial court's jury instruction on the use of lawful force erroneously omitted the State's burden to disprove self-defense, and that his motion for a mistrial should have been granted when the State elicited testimony suggesting he may have spent time in jail.   But the instruction Slaughter complains about was not a self-defense instruction to the felony murder charge.   Rather, it correctly explained the meaning of “use of lawful force” referenced in the excusable homicide instruction.   And the prejudicial effect, if any, of the reference to time Slaughter may have spent in jail did not justify a mistrial.   We therefore affirm.

FACTS

¶ 2 The State charged Slaughter with the murder of Vernando Rosborough, second degree assault of Mecca Weatherby, and a violation of a no-contact order that Weatherby  had against him.   The charges arose out of a series of events occurring on October 30 and 31, 2003.   On the evening of October 30, Slaughter went to Weatherby's apartment in Des Moines.   Weatherby had a no-contact order against Slaughter at the time.   According to Weatherby, Slaughter called her and told her he wanted to find her.   She then called her mother, Royce House, who lived in the same apartment complex and told her to come over.   But before House arrived, Slaughter came to Weatherby's apartment.

¶ 3 According to Weatherby, Slaughter pushed his way into the apartment, threatened to kill her, and held a large knife to her throat.   According to House, Slaughter was waiving around a large knife and banging his head against the wall when she arrived.   He said he wanted to take Weatherby and her young daughter in House's car to go somewhere.   House then offered to drive Slaughter to where he wanted to go, and he agreed.   According to Weatherby, before he left with House, Slaughter took a knife from the kitchen.   House did not see any knives on Slaughter when he got into her car.

¶ 4 Over the next six hours, House drove Slaughter to several places from South Seattle to Auburn, and during one of those stops, House believed he bought drugs.   Their final stop was at an apartment complex in Seatac where Patrick Spitzer, an acquaintance of Slaughter lived.   When House and Slaughter entered the apartment, two men, John Evans and Vernando Rosborough, were in the living room watching a movie.   Slaughter asked Evans and Rosborough if they wanted to smoke crack with him, and Rosborough agreed.   Slaughter and Rosborough then went to the bedroom while Evans and House stayed in the living room and watched the movie.   House later left the apartment to go to her car.¹

 ¶ 5 While she was gone, Evans heard “socking” sounds coming from the bedroom and walked toward the bedroom to find out what was happening.   According to Evans, Slaughter and Rosborough were trying to punch each other, he pulled Slaughter off Rosborough and out of the room, and Slaughter left with House.   After Slaughter left, Rosborough collapsed and Evans called 911.   King County Sheriff's deputies and medics arrived, but Rosborough could not be resuscitated.   Rosborough died from a single stab wound to the chest, but he had no injuries consistent with a fistfight.   Police did not recover the murder weapon.

¶ 6 According to House, she got lost trying to find her car, and on her way back to Spitzer's apartment, she heard a “thud,” as if someone had been hit or hurt, then fell.   She then ran back to her car, and Slaughter came out to her car.   Slaughter was holding a knife with blood dripping from it, and his clothes were bloodied.   Slaughter then told House to leave quickly, that “it had to be done,” and that “it was self defense.”   While she drove away with Slaughter, she told him to throw the evidence out the window.   He threw out the knife and possibly some clothing.

¶ 7 Meanwhile, Weatherby had called 911, claiming that Slaughter kidnapped her mother, assaulted her with knife, and violated a protective order.   According to Weatherby, she called 911 after she called Slaughter's cell phone and he told her she would not be seeing her mom anymore.   A police officer then came to Weatherby's apartment and arrested Slaughter when he and House arrived back at Weatherby's apartment complex.   Slaughter gave a statement to the police in which he admitted having contact with Weatherby, but denied assaulting her.   He also admitted to driving around with House, but did not mention being at Spitzer's apartment.

¶ 8 Suspecting that Slaughter had been involved in the stabbing, the Des Moines police contacted the King County Sheriff's Office and detectives came to interview Slaughter.   Slaughter agreed to give a taped statement.   He told police that he and Rosborough were “tussling” over a crack pipe,  and at some point, Rosborough came at him with a knife.   Slaughter claimed Rosborough was stabbed somehow during the struggle and that he was not even aware that Rosborough had been stabbed at the time.   But he did admit telling House that he thought he might have “stuck” him while they were fighting.   He also admitted that he threw the knife out the window of House's car.   He explained the bloodstains on his pants as the result of a cut on his thumb, but deoxyribonucleic acid (DNA) testing later revealed that the stains matched Rosborough's DNA profile.

¶ 9 The State proceeded to trial on charges of second degree intentional murder or, in the alternative, second degree felony murder, second degree assault against Weatherby, and violation of a no-contact order.   Slaughter did not testify, but he argued that the stabbing was an accident caused while he was defending himself against Rosborough.   At Slaughter's request, the trial court instructed the jury on the defense of excusable homicide. The jury acquitted him on the second degree assault charge involving Weatherby but found him guilty of second degree felony murder and violation of a no-contact order.   The trial court gave him a standard range sentence of 278 months.

I. Jury Instructions

 ¶ 10 Slaughter first challenges the trial court's instruction on the use of lawful force, arguing that it erroneously omitted the State's burden of proving the absence of self-defense.   We review challenges to jury instructions de novo, within the context of the jury instructions as a whole.²  “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.” ³  Instructional errors that tend to shift the burden of proof to a criminal defendant are of constitutional magnitude because  they may implicate a defendant's due process rights.⁴  Thus, despite his failure to raise it below, Slaughter's argument that the trial court's jury instruction relieved the State of its burden of disproving self-defense in a murder prosecution raises a constitutional issue that may be heard for the first time on appeal.⁵

 ¶ 11 In a case where a defendant does something in self-defense that leads to an accidental homicide, the applicable defense is excusable, not justifiable, homicide.⁶  Excusable homicide is available only when the defendant is “doing any lawful act by lawful means.” ⁷  The use of force is lawful when the defendant is about to be injured, so long as the force used is not more than necessary.⁸  Thus, a defendant could argue that his action precipitating an accidental killing amounted to lawful self-defense, even if he could not argue that an accidental killing was a justifiable homicide.⁹

 ¶ 12 Here, the defense Slaughter asserted was “accidental homicide in the course of self-defense to an assault.”   Accordingly, at his request, the trial court gave WPIC 15.01 on excusable homicide which instructed the jury that “[h]omicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent.”   The instruction further stated that the State had the burden of proving the absence of this defense.

¶ 13 The court also gave the following instruction on lawful force, as defined in WPIC 17.02 and RCW 9A.16.020(3):

 The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person and when the force is not more than is necessary.

The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of the incident.

In doing so, the trial court explained that this instruction was included to help the defense explain “the excusable homicide defense at issue here” and that it was modified from WPIC 17.02 “because it is not being given as a defense to a particular charge,” but rather to explain the phrase in the excusable homicide instruction “doing any lawful act by any lawful means.” ¹⁰

¶ 14 Slaughter asserts that the modified WPIC 17.02 instruction was a self-defense instruction that the trial court gave to address his self-defense theory on the underlying assault.   He contends that this instruction erroneously omitted the State's burden to disprove the defense.   But as the trial court explicitly stated, this instruction was not being given to provide a separate defense, such as a self-defense claim on the homicide or assault charge, as Slaughter suggests.   Rather, as the court explained, this instruction defined “lawful act” as used in the excusable homicide instruction and allowed Slaughter to argue his theory of self-defense to explain that he was acting lawfully when the accidental homicide was committed.   The court therefore properly excluded language on the State's burden of proof to prevent any implication that this was a separate defense.   The defense of excusable homicide and the State's corresponding burden of proof were correctly stated in the excusable homicide instruction.   It was that instruction which set forth the applicable defense to the murder charge.    The explanatory instruction defining lawful force was a correct statement of the applicable law, and the trial court did not err by giving it.¹¹

 ¶ 15 Slaughter argues that State v. Brightman¹² and State v. Callahan¹³ required the trial court to give another, separate instruction on self-defense as a defense to the underlying assault on which the felony murder charge was predicated.   This second self-defense instruction must, he argues, include the State's burden to disprove self-defense.   We disagree.   Nothing in these cases suggests that he is entitled to a separate self-defense instruction on the underlying assault.   The charge was felony murder predicated on assault, not assault alone.   The instructions the court gave already permitted Slaughter to argue his theory of the case:  accidental homicide precipitated by an act of self-defense.   They properly imposed the burden of proof on the State.   Indeed, the instructions the trial court gave here were precisely what the court suggested in Brightman.  Callahan does not require more.

¶ 16 In Brightman, the court suggests in a footnote that a self-defense instruction may be appropriate when the defense is excusable homicide if the defendant could argue that his action that precipitated the accidental killing amounted to nonhomicide self-defense.   Specifically the court notes:

Excusable homicide is available as a defense only where the slayer is ‘doing any lawful act by lawful means.’  RCW 9A.16.030. In turn, RCW 9A.16.020(3) establishes that the use of force is lawful when the person is about to be injured, so long as the force used is not more than necessary.   Thus, a defendant could argue that his action that precipitated the accidental killing amounted to lawful self-defense under RCW 9A.16.020(3),  even if he could not argue that an accidental killing was a justifiable homicide under RCW 9A.16.050.[ 14]

In accordance with this reasoning, the trial court here instructed the jury on the use of lawful force by giving modified WPIC 17.02, which contains the self-defense language set forth in RCW 9A.16.020(3).¹⁵

¶ 17 Callahan was a second degree assault case where the trial court refused to give a self-defense instruction because it was inconsistent with the defense of accident.   There, the defendant displayed a gun to the victim and shot the victim's hand.   But he claimed that the gun accidentally discharged when the victim tried to grab it.¹⁶  On appeal, the court reversed and held that the defenses of accident and self-defense are not invariably inconsistent and mutually exclusive, and the defendant could assert both defenses if there was sufficient evidence to support the self-defense claim.¹⁷  Unlike our case, Callahan involved neither a felony murder charge nor an excusable homicide defense;  it involved only an assault charge where no self-defense instruction was given.¹⁸  But here, the assault was the predicate to a homicide charge, and the issue raised by the defense was whether the homicide was an accident.   The trial court gave the correct excusable homicide instruction and used the modified WPIC 17.02 to explain one of its terms.   Unlike in Callahan, these instructions allowed Slaughter to argue his self-defense theory:  that he was lawfully defending himself when he accidentally stabbed the victim.   The self-defense instruction properly stated the State's burden to disprove the defense.   That the jury did not  agree with Slaughter's theory does not render the instructions erroneous.

¶ 18 The State relies on State v. Ferguson, which holds that “WPIC 17.02 can never be given in a felony murder case where assault is the predicate felony because it can never be reasonable to use a deadly weapon in a deadly manner unless the person attacked had reasonable grounds to fear death or great bodily harm.” ¹⁹  Ferguson is not controlling because it was not an excusable homicide case and does not address the specific issues raised here.   There, the defendant was charged with felony murder for stabbing the victim during a fistfight initiated by the victim, and the trial court refused to give a self-defense instruction for the assault which was the predicate offense for the felony murder.²⁰  The court affirmed on appeal, holding that the trial court properly gave a justifiable homicide instruction rather than a general self-defense instruction.²¹

¶ 19 The Ferguson court's statement that a WPIC 17.02 instruction can never be given when a felony murder charge is predicated on an assault contemplated a factual scenario not at issue here;  i.e., one in which the defendant uses a deadly weapon in a deadly manner to repel an attack that did not reasonably create a fear of death or great bodily harm.   Because he used excessive force, Ferguson could not claim that his use of force was reasonable to prevent injury.   But under the facts here, Slaughter could argue that he reasonably used force to prevent injury:  his theory was that Rosborough came at him with a knife and he reasonably responded with an assault (struggling over the knife), which resulted in an accidental stabbing death.   Thus, the Ferguson holding does not address the issues raised by the self-defense claim asserted here.   Rather, it underscores the self-defense principle that the use of deadly force is only reasonable if the defendant believed that death or great  bodily harm was imminent.²²  The remainder of this opinion has no precedential value.   Therefore, it will not be published but has been filed for public record.   See RCW 2.06.040;  CAR 14.

II. Ineffective Assistance of Counsel

¶ 20 Slaughter next argues that he was denied effective assistance by trial counsel's failure to object to the modified WPIC 17.02 instruction.   But because the trial court committed no error by giving that instruction, counsel had no basis for objection.   Slaughter's ineffective assistance claim therefore fails.

III. Motion for Mistrial

¶ 21 Slaughter also contends that the trial court erroneously denied his motion for a mistrial based on testimony elicited by the prosecutor that he spent time in jail before the trial.   We review a trial court's ruling on a motion for a mistrial for an abuse of discretion.23  A mistrial should be granted “only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be tried fairly.” 24  When reviewing a trial court's denial of a motion for a mistrial based on a witness's objectionable remarks, we consider the following factors:  (1) the seriousness of the irregularity, (2) whether the error involved cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard these remarks.25  The testimony in question must also be examined “against the backdrop of all the evidence.” 26

¶ 22 Here the objectionable testimony was elicited during the prosecutor's examination of the detective who obtained DNA samples from Slaughter.   The detective testified that jail personnel took two samples from him in August and September of 2004.   Slaughter did not object, but moved for a mistrial during a sidebar. He argued that the jurors should not have learned Slaughter was in jail in August and September 2004, especially because the State already elicited evidence that he was booked into jail in November 2003.   Slaughter argued the jury would infer that he had been incarcerated for almost a year before trial.   The trial court denied the motion, concluding that any prejudice was speculative, and offered to give an instruction telling jurors not to draw any inferences from the fact that the jail staff collected the samples.   As the court explained:

I think that's quite a leap for the jurors to assume that that means booking, that the defendant was in there.   Those are things we might know about, but I don't think an average person would assume that.   This is a protocol of-a criminal justice protocol.   I think the average person wouldn't at all be surprised to know it takes place at the jail.   So the inference is not as directly established as you contend.   I think it can be cured with a cautionary instruction indicating you should draw no inferences from the fact that the swabs were administered by King County jail staff.   We can certainly tell Detective Garske, instruct him to not make any more references to protocols at the jail, but it is not-No. 1, I don't think that-any prejudice is speculative, and even if there were prejudice, it is not the type that calls for a new jury to be empanel[l]ed.   This jury has already heard that Mr. Slaughter was booked into the jail.

Slaughter refused the curative instruction, asserting that it would call undue attention to the prejudicial remark.

¶ 23 Slaughter argues that this testimony was highly prejudicial and could not be remedied by a curative instruction because it allowed the jury to infer he was in jail almost a full year before trial and impermissibly suggested that he was involved in other criminal conduct.   But considering the relevant factors in reviewing a ruling denying a mistrial, we conclude that the trial court did not abuse its discretion.   First, while a reference to Slaughter's spending time in jail may have negative connotations, it was not so serious an error to create irreparable harm to Slaughter's defense and warrant a mistrial.   As the trial court noted, the jury had already heard he had been booked into the jail, and it was purely speculative to assume that they understood booking procedures and knew that if jail personnel took his DNA samples he had to have been incarcerated.   And even if they knew he was incarcerated, Slaughter fails to show how this information prejudiced the outcome of the trial.   As the State points out, because he was facing serious charges of murder and assault with a deadly weapon, the jury may have reasonably assumed he would be detained until trial.

¶ 24 Nor was the objectionable testimony cumulative, as Slaughter contends.   While the detective testified that two samples were obtained in August and September, this testimony was isolated and confined to the prosecutor's brief examination about the collection of the DNA samples.   Finally, as already noted, the trial court did propose to give a curative instruction that would have remedied any prejudice resulting from the remarks, but Slaughter chose to refuse it.   While he claims it would only have re-emphasized the prejudicial remarks, it was actually his failure to object until well after the remark was made that prevented the court from curing any prejudice immediately.27  The trial court's denial of the motion for a mistrial was a proper exercise of discretion.

IV. Statement of Additional Grounds

¶ 25 Finally, Slaughter raises several issues in a separate pro se statement of additional grounds.   This “statement of additional grounds” is actually contained in a letter to appellate counsel, who considered the additional claims but ultimately rejected them.   The bulk of his claims allege ineffective assistance of counsel involving tactical decisions and defense strategy. 28  “To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice.” 29  Legitimate trial strategy or tactics cannot serve as a basis for the claim.30  The record indicates that Slaughter's counsel had valid legal or tactical reasons for these alleged errors or that they were minor errors.   He has not shown that any of them likely affected the outcome of his trial.31

¶ 26 Slaughter also claims that there were conflicts of interest with the trial attorneys who were originally assigned to his case and they were replaced by attorneys from the same agency.   But he fails to show how he was prejudiced by the replacement attorneys other than the unsubstantiated claims that they were part of a conspiracy to have him convicted and that they denied him effective assistance.

¶ 27 He further claims that the trial court erroneously permitted the State to amend the information to charge felony murder in the alternative.   Trial counsel opposed the delayed amendment based on prosecutorial mismanagement.   But the trial court denied the motion, finding no prejudice from the delay in the filing of the amended charges because the defense had been aware of the amendment at least five months before trial.   Thus, the court concluded that there was no surprise or inability to prepare on the part of defense counsel and they were not presented with having to choose between speedy trial and a continuance.32  This ruling was not an abuse of discretion.33

¶ 28 Slaughter also contends that the trial erroneously admitted his taped statement even though it was coerced by interrogating detectives.   Trial counsel moved to suppress evidence of his statement but the trial court ruled it was admissible, finding that he voluntarily made the statement after being advised of his Miranda rights and that neither detective threatened him during the interrogation.   Because Slaughter offers no factual or legal support for his claim that he was coerced, his argument is without basis.

¶ 29 The remaining claims are also without merit.   Slaughter contends that there was no predicate assault for the felony murder because he was acquitted of the second degree assault.   But acquittal was on the assault charge involving Weatherby and was unrelated to the assault underlying the felony murder which involved Rosborough.   Finally, he contends that there was no proof of intent on the murder charge.   But the jury returned a verdict on the felony murder charge, not the intentional murder charge.   Proof of intent was therefore not required.

¶ 30 We affirm the conviction.

FOOTNOTES

1.   There was conflicting testimony as to why she went to her car.   Evans testified that she said she needed to get something from her car;  House testified that Slaughter came out of the room and told her to go start the car and he would be out shortly.

2.   State v. Jackman, 156 Wash.2d 736, 743, 132 P.3d 136 (2006).

3.   State v. Clausing, 147 Wash.2d 620, 626, 56 P.3d 550 (2002).

4.   State v. McCullum, 98 Wash.2d 484, 488, 656 P.2d 1064 (1983).

5.   Id. at 487-88, 656 P.2d 1064.

6.   State v. Brightman, 155 Wash.2d 506, 525, 122 P.3d 150 (2005).

7.   RCW 9A.16.030.

8.   RCW 9A.16.020(3).

9.   Brightman, 155 Wash.2d at 525 n. 13, 122 P.3d 150.

10.   Slaughter did not request this instruction.

11.   See RCW 9A.16.020(3).

12.   155 Wash.2d 506, 122 P.3d 150 (2005).

13.   87 Wash.App. 925, 943 P.2d 676 (1997).

14.   155 Wash.2d at 525 n. 13, 122 P.3d 150.

15.   That statute provides that the use of force is not unlawful “[w]henever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person ․ in case the force is not more than is necessary.”  RCW 9A.16.020(3).

16.   Id.

17.   87 Wash.App. at 932-33, 943 P.2d 676.

18.   Id. at 928, 943 P.2d 676.

19.   131 Wash.App. 855, 862, 129 P.3d 856, review denied, 158 Wash.2d 1016, 149 P.3d 377 (2006).

20.   Id. at 857-59, 129 P.3d 856.

21.   131 Wash.App. at 862, 129 P.3d 856.

22.   Id. at 861-62, 129 P.3d 856 (citing State v. Walden, 131 Wash.2d 469, 477-78, 932 P.2d 1237 (1997)).

23.   State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996)

24.   State v. Mak, 105 Wash.2d 692, 701, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).

25.   State v. Hopson, 113 Wash.2d 273, 284, 778 P.2d 1014 (1989).

26.   State v. Escalona, 49 Wash.App. 251, 254, 742 P.2d 190 (1987).

27.   See State v. Kirkman, 159 Wash.2d 918, 926, 155 P.3d 125 (2007) (noting that a contemporaneous objection “gives a trial court the opportunity to prevent or cure error” when improper testimony is elicited).

28.   Specifically, he claims that counsel erred by:  not blaming the medics for failing to respond quickly and negligently causing Rosborough's death;  not following up on his claims that the detectives contaminated, destroyed and hid (unidentified) exculpatory evidence;  not requesting an intoxication instruction;  not succeeding in getting a bail reduction;  not providing copies of discovery;  and unprofessionally and negligently interviewing witnesses.

29.   State v. McNeal, 145 Wash.2d 352, 362, 37 P.3d 280 (2002).

30.   Id.

31.   State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996) (To prevail on a claim of ineffective assistance of counsel, a defendant must show deficient performance and prejudice to the outcome of the trial.).

32.   See State v. Michielli, 132 Wash.2d 229, 244, 937 P.2d 587 (1997).

33.   See State v. Haner, 95 Wash.2d 858, 864, 631 P.2d 381 (1981) (trial court's decision to allow the State to amend the charge reviewed for abuse of discretion).

AGID, J.