WPIC17.02Lawful Force—Defense of Self, Others, Property
11 WAPRAC WPIC 17.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 17.02 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Part IV. Defenses
WPIC CHAPTER 17. Lawful Force—Charges Other than Homicide
WPIC 17.02 Lawful Force—Defense of Self, Others, Property
It is a defense to a charge of(fill in crime)that the force [used] [attempted] [offered to be used] was lawful as defined in this instruction.
[The [use of] [attempt to use] [offer to use] force upon or toward the person of another is lawful when [used] [attempted] [offered] [by a person who reasonably believes that [he] [she] is about to be injured] [by someone lawfully aiding a person who [he] [she] reasonably believes 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 [use of] [attempt to use] [offer to use] force upon or toward the person of another is lawful when [used] [attempted] [offered] in preventing or attempting to prevent a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession, and when the force is not more than is necessary.]
The person [using] [or] [offering to use] 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 [and prior to] the incident.
The [State] [City] [County] has the burden of proving beyond a reasonable doubt that the force [used] [attempted] [offered to be used] by the defendant was not lawful. If you find that the [State] [City] [County] has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use this instruction in any case in which this defense is an issue supported by the evidence.
Use bracketed material as applicable. Use this instruction for any charge other than homicide or attempted homicide. If homicide is involved, use WPIC 16.02 (Justifiable Homicide—Defense of Self and Others).
With this instruction, use WPIC 16.05 (Necessary—Definition). Also use, as applicable, WPIC 2.13 (Malice—Maliciously—Definition). If there is an issue whether the defendant was the aggressor, use WPIC 16.04 (Aggressor—Defense of Self) or WPIC 16.04.01 (Aggressor—Defense of Others).
Generally. The wording of this instruction in the second edition “correctly instructed the jury on the subjective standard of self-defense.” State v. Goodrich, 72 Wn.App. 71, 77, 863 P.2d 599 (1993), partially abrogated on other grounds as noted in State v. Ramos, 124 Wn.App. 334, 101 P.3d 872 (2004). Accord, State v. Prado, 144 Wn.App. 227, 248, 181 P.3d 901, 912 (2008).
All facts and circumstances. The third paragraph, referring to all facts and circumstances, is based upon State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). See Comment to WPIC 16.02 (Justifiable Homicide—Defense of Self and Others).
Burden of proof. The paragraph referring to the burden of proof is based upon State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984). In Acosta, the court held that the State has the burden of proving the absence of self-defense in prosecutions for assault. The court cited both a statutory and a constitutional basis for its holding. The court found that the Legislature intended that the State prove the absence of self-defense when it revised RCW 9A.16.020. The court also found that the burden of proving self-defense may not constitutionally be placed on the defendant if proof of self-defense tends to negate one or more elements of the crime charged. The court noted that placing the burden of proof on the defendant in such cases would relieve the State of its burden of proving every element of the crime beyond a reasonable doubt.
Failure to instruct the jury that the State has the burden of proving the absence of self-defense beyond a reasonable doubt was reversible error when there was sufficient evidence of self-defense to present the issue to the jury. State v. Redwine, 72 Wn.App. 625, 865 P.2d 552 (1994).
For a general discussion of the burden of proof on defenses, see WPIC 14.00 (Defenses—Introduction).
Relationship to battered woman syndrome. The battered woman syndrome is not a defense in itself. The function of evidence of the battered woman syndrome is to assist the trier of fact in evaluating the defense of self-defense; i.e., in evaluating the reasonableness of both the use of force and the degree of force used by the defendant. Evidence of the battered woman syndrome, alone, is insufficient to submit the defense of self-defense to the jury. In order to submit the defense to the jury, the defendant must show that she perceived imminent danger, based on some threatening behavior or communication by the victim at the time of the incident in question. State v. Walker, 40 Wn.App. 658, 700 P.2d 1168 (1985).
See the discussion of State v. Janes, 121 Wn.2d 220, 239, 850 P.2d 495 (1993), in the Comment to WPIC 16.02 (Justifiable Homicide—Defense of Self and Others).
Relationship with “no duty to retreat” rule. The pattern instruction tracks the statutory definition of when force is “not unlawful” as stated in RCW 9A.16.020(3), including its provision that the “force [used by the defendant] is not more than is necessary.”
The “necessary” force limitation included in both RCW 9A.16.020(3) and this instruction may seem in conflict with Washington's rule that there is no duty to retreat in certain cases. See discussion in State v. Williams, 81 Wn.App. 738, 916 P.2d 445 (1996). The statutory definition of “necessary” includes that “no reasonably effective alternative to the use of force appeared to exist.” RCW 9A.16.010(1). In a given case, a jury could interpret this language as precluding consideration of self-defense for a defendant who was resisting an attack in a place where he had a right to be, because he did not take an avenue of retreat. In such a case, the court may need to make clearer to the jury that the defendant was not obliged to retreat rather than defend. See State v. Williams, 81 Wn.App. at 744 (holding that “where a jury may conclude that flight is a reasonably effective alternative to the use of force in self-defense, the no duty to retreat instruction should be given.”). At the same time, the prosecutor should not be deprived of the argument that other alternatives to the use of force may have existed. In such a case, the court should use the “no duty to retreat” instruction of WPIC 17.05, using the second bracketed alternative, which explains in more detail the relationship of the “necessary force” limitation and the “no duty to retreat” rule.
Defense of property. Because the defendant was not in lawful possession of wildlife (coyotes), he could not invoke defense of property as a defense to assault. State v. Mierz, 127 Wn.2d 460, 470–71, 901 P.2d 286, 50 A.L.R.5th 921 (1995). A defendant may use necessary force against a malicious trespass or other malicious interference with real or personal property lawfully in that person's possession even though the defendant does not reasonably believe that he is about to be injured. See State v. Bland, 128 Wn.App. 511, 116 P.3d 428, 430 (2005).
Accidental injury. When there is evidence that the defendant had a reasonable fear of the victim, intentionally pointed a gun at a victim, used a reasonable amount of force, and was not the aggressor, it is error to refuse to give a self-defense instruction. In such circumstances, a claim of self-defense is not inconsistent with a claim that the gun was fired accidentally. State v. Callahan, 87 Wn.App. 925, 943 P.2d 676 (1997).
Attempted homicide. When the charged offense is attempted murder, the appropriate instruction is WPIC 16.02 (Justifiable Homicide—Defense of Self and Others), rather than WPIC 17.02 (Lawful Force—Defense of Self, Others, Property). State v. Cowen, 87 Wn.App. 45, 53, 939 P.2d 1249 (1997).
Felony murder. A claim of self-defense in felony murder prosecutions presents special problems for instructing the jury. In State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990), the Supreme Court held that because a defendant is strictly responsible for death caused while fleeing from first degree burglary, the trial court properly refused the defendant's proposed self-defense instruction because the burglary was still in progress at time that the defendant was fleeing from scene. In State v. Bolar, 118 Wn.App. 490, 78 P.3d 1012 (2003), the court, discussing Dennison, seemed to hold that self-defense is not available as a matter of law when the felony murder is based on burglary.
When second degree assault is the predicate offense for second degree felony murder, care must be taken in wording the instruction. Because deadly force may be used only in self-defense if the defendant reasonably believes he or she is threatened with “great personal injury,” a self-defense instruction when the State charges a defendant with second degree felony murder predicated upon second degree assault with a deadly weapon, RCW 9A.36.021(1)(c), must be patterned after WPIC 16.02. State v. Ferguson, 131 Wn.App. 855, 856–59, 129 P.3d 856 (a WPIC 17.02-patterned instruction is inappropriate when the defendant is charged with second degree felony murder predicated on second degree assault with a deadly weapon, a knife). If, however, the second degree felony murder charge is predicated upon an assault in violation of RCW 9A.36.021(1)(a) (without a deadly weapon), the self-defense instruction should be patterned after WPIC 17.02. State v. McCreven, 170 Wn.App. 444, 467–68, 284 P.3d 793, 804–05 (2012). Two self-defense instructions may be required when the defendant is charged with both intentional second degree murder and second degree felony murder predicated upon an assault without a deadly weapon.
Other statutes. RCW 9A.16.100 defines lawful force by a parent, guardian, or teacher. RCW 9A.16.020(5) defines lawful force by a passenger carrier in expelling a passenger. RCW 9A.16.020(6) defines lawful force in dealing with a mentally ill, mentally incompetent, or mentally disabled person.
[Current as of December 2015.]
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