WPIC 16.04 Aggressor—Defense of Self

Use bracketed material as applicable.

Use this instruction in either a justifiable homicide or a justifiable assault case when there is evidence that the defendant was the initial aggressor. If there is evidence that the defendant came to the defense of someone who was the initial aggressor, use WPIC 16.04.01 (Aggressor—Defense of Others) rather than this instruction.

This instruction may be combined with WPIC 10.01 (Intent—Intentionally—Definition).

Approval of instruction. The instruction has been modified for this edition. A previous version of this instruction was approved in State v. Riley, 137 Wn.2d 904, 908–09, 976 P.2d 624 (1999) and State v. Cyrus, 66 Wn.App. 502, 509–10, 832 P.2d 142 (1992).

Sparing use. First aggressor instructions should be used sparingly because the other self-defense instructions will generally be sufficient to allow the theory of the case be argued. State v. Riley, 137 Wn.2d 904, 910 n.2, 976 P.2d 624 (1999); State v. Bea, 162 Wn.App. 570, 575–76, 254 P.3d 948 (2011); State v. Douglas, 128 Wn.App. 555, 116 P.3d 1012 (2005).

A first aggressor instruction may be appropriate in cases in which the defendant claims self-defense and there is evidence that the defendant's conduct or acts provoked or precipitated the incident for which self-defense is claimed. State v. Riley, 137 Wn.2d 904, 910, 976 P.2d 624 (1999); see also State v. Wingate, 155 Wn.2d 817, 122 P.3d 908 (2005) (re-affirming Riley and affirming the use of a first aggressor instruction when the evidence was disputed as to who precipitated the confrontation); State v. Kee, 6 Wn.App.2d 874, 879, 431 P.3d 1080 (2018) (words alone are not sufficient to make a person a first aggressor); State v. Heath, 35 Wn.App. 269, 666 P.2d 922 (1983); State v. Hughes, 106 Wn.2d 176, 721 P.2d 902 (1986); State v. Kidd, 57 Wn.App. 95, 786 P.2d 847 (1990); State v. Wasson, 54 Wn.App. 156, 772 P.2d 1039 (1989).

In a case where the provoking conduct includes the defendant's words, the court should inform the jury that words alone are not adequate provocation to negate self-defense. State v. Kee, 6 Wn.App.2d at 881.

Case law. Three opinions have held that giving WPIC 16.04 does not constitute an impermissible comment on the evidence. State v. Hughes, 106 Wn.2d 176, 721 P.2d 902 (1986); State v. Thompson, 47 Wn.App. 1, 733 P.2d 584 (1987); State v. Sampson, 40 Wn.App. 594, 699 P.2d 1253 (1985). In each case it was found that there was sufficient evidence in the record to support giving the instruction and that the instruction was an accurate statement of the law.

The unlawful act constituting the provocation need not be the actual striking of a first blow. State v. Hawkins, 89 Wash. 449, 154 P. 827 (1916); State v. Bea, 162 Wn.App. at 577. However, words alone will not constitute sufficient provocation for the giving of an aggressor instruction. State v. Riley, 137 Wn.2d at 911. A trespass may support the giving of an aggressor instruction as the owner of property may lawfully use reasonable force to expel a malicious trespasser. RCW 9A.16.020; State v. Bea, 162 Wn.App. at 578.

The court in State v. Dennison, 115 Wn.2d 609, 617, 801 P.2d 193 (1990), noted that the right of self-defense may be revived if the aggressor in good faith withdraws 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.” Accord, State v. Wilson, 26 Wn.2d 468, 174 P.2d 553 (1946); Annot., Withdrawal, After Provocation of Conflict, as Reviving Right of Self-defense, 55 A.L.R.3d 1000. See also the section on withdrawal in the Comment to WPIC 16.02 (Justifiable Homicide—Defense of Self and Others).