No. 31876-8-II




2005 Wash. App. LEXIS 1972



August 9, 2005, Filed


COUNSEL: For Appellant(s): Jodi R. Backlund, Backlund & Mistry, Olympia, WA; Manek R. Mistry, Backlund & Mistry, Olympia, WA.


For Respondent(s): J. Andrew Toynbee, Attorney at Law, Chehalis, WA.


JUDGES: Authored by Marywave Van Deren. Concurring: C. C. Bridgewater, Elaine Houghton.


OPINION BY: Marywave Van Deren



VAN DEREN, A.C.J. – A jury convicted Kenneth L. Slert of second degree murder with a firearm. Slert argues that he should receive a new trial because (1) the trial court erred when it did not give a jury instruction for justifiable homicide in resistance of a felony; (2) his counsel deprived him of a fair trial by failing to propose a self-defense revival instruction; (3) the trial court failed to suppress Slert’s statements made after he invoked his right to remain silent; and (4) the trial court erred in refusing to admit certain testimony under the rule of completeness doctrine. We reverse and remand for a new trial.


A.  Factual Background

On an evening in October 2000, John Benson drove his truck up to Slert’s hunting campsite. Benson invited Slert into the passenger side of his truck and the two men talked and drank whiskey for a short time.

According to Slert, he and Benson began to argue when Benson made numerous anti-government statements. Slert punched Benson a few times and Benson then reached for Slert’s throat. Slert got out of Benson’s truck and walked about 50 yards toward his tent in the dark in order to find and light his lantern.

Benson followed Slert, grabbed him as he reached the front of his tent, and again attempted to choke him. According to Slert, he broke free, crawled inside his tent, and grabbed his pistol because he feared for his life. As Benson started to enter the tent, Slert shot him, knocking Benson backwards out of the tent. When Slert stepped over Benson, Benson grabbed him and Slert shot him a second time.

Slert claimed that he did not touch Benson but went to Benson’s truck, where he tried to use Benson’s telephone and CB radio, but he could not reach anyone. Slert walked around “buzzed” and “dazed and confused” and eventually he fell asleep in his tent.  Supp. Clerk’s Papers (CP) at 25-26.

In the morning, as he drove toward town, he contacted a park ranger. The ranger handcuffed Slert, who was covered with blood, took three firearms from him, and returned with Slert to the campsite.

Detective Wetzold interviewed Slert at the campsite, and Slert told him that he punched a man in the face two times because they got into an argument about politics. He stated that he left the truck and that the man followed him to his campsite and began to “mall [sic] him in front of his tent.” Report of Proceedings (RP) (May 17, 2004) at 140. Slert stated that he thought the man would kill him and that he shot the man twice from six to seven feet away in an upward direction.

Wetzold later found prescription eye glasses in Benson’s truck. He observed various items in the truck’s passenger seat, including an open bag of chips, which did not indicate to him that a person had been sitting in the passenger seat. Wetzold noticed significant ground debris on the front of Benson’s body. He did not see blood or bullet holes inside Slert’s tent, but did observe blood on the canvas lining.

Wetzold asked Slert to make a tape recorded statement and read him his Miranda1 rights. Slert chose not to make a recorded statement. Approximately two hours later, Wetzold approached Slert again for “clarification” of his earlier statement. RP (May 12, 2004) at 45. Slert refused further conversation with Wetzold.


1   Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (holding that custodial statements are inadmissible unless the officers warn the individual that (1) he has the right to remain silent, (2) any statement may be used against him, (3) he has the right to an attorney, and (4) he may waive those rights).

Sheriff McCrosky drove Slert to jail in his patrol car. En route to the jail, Slert spontaneously made statements about what had happened the night before. At the jail, the officers again gave Slert Miranda warnings before he agreed to give a tape recorded statement. This occurred approximately six hours after he arrived at the jail. The police then released Slert from jail without charges.

In the following months, Slert frequently telephoned Wetzold to discuss the facts surrounding Benson’s death. Slert’s recollection of the incident continued to change. For example, Slert stated that he shot toward Benson from two to three feet away and that he shot Benson in the head at “arm’s length.” RP (May 17, 2004) at 161. Eventually, the State charged Slert with Benson’s murder.

At trial, the State’s experts opined that, without glasses, Benson could only see approximately seven to eleven inches and that darkness would severely hinder his vision. A forensic pathologist testified that the gun’s barrel was only a few inches away from Benson’s neck and that the bullet traveled downward.


B. Procedural History

Following a CrR 3.5 hearing, the trial court concluded that Slert’s statements to McCrosky in the patrol car and the taped statement at the jail were voluntary and that he had clearly waived his Miranda rights before he made the tape recorded statement. Thus, the court admitted Slert’s statements to McCrosky in the car enroute from the crime scene to the jail and the taped statement.

Slert argued the rule of completeness under common law and ER 106 in an effort to elicit his  statements to the park ranger that he feared for his life because of Benson’s actions and that he did not immediately report the incident because he was drunk. The trial court rejected this argument and did not allow the ranger to testify about Slert’s statements to him.

The trial court rejected Slert’s proposed justifiable homicide jury instruction based on resistance to a felony (residential burglary); however, the trial court did give a general justifiable homicide instruction based on Slert’s belief that Benson intended to immediately “inflict death or great personal injury” on him. CP at 26. The trial court also gave a first aggressor instruction. Slert did not propose an instruction informing the jury that an aggressor’s right to self defense is revived if the aggressor has withdrawn from the conflict.

The jury convicted Slert of second degree murder with a firearm enhancement. He was sentenced within the standard range.



I. Justifiable Homicide Instruction in Resistance to a Felony

Slert argues that the trial court erred when it refused to instruct the jury on justifiable homicide in resisting a residential burglary. Slert’s challenge is specific to the felony issue because the court generally instructed the jury on justifiable homicide. 2 And Slert does not challenge additional elements of the court’s justifiable homicide instruction.


2   The trial court’s justifiable homicide instruction was based on when “(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury; (2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and (3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions . . . . ” CP at 26.

Generally, a defendant’s jury instructions are sufficient if they provide the ability to assert the theory of the case and properly provide the jury the applicable law. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999). If the trial court rejects a proposed instruction on an issue of law, review is de novo. State v. Read, 147 Wn.2d 238, 243, 53 P.3d 26 (2002).Under RCW 9A.16.050, 3 homicide is justified when the defendant had a reasonable ground to stop or resist the commission of a felony or great personal injury and imminent danger. Read, 147 Wn.2d at 242.


3   RCW 9A.16.050 provides:


Homicide is also justifiable when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.



In determining the validity of the defendant’s proposed instruction under RCW 9A.16.050, the court conducts a subjective and objective inquiry. Read, 147 Wn.2d at 242-43. Regarding the subjective test, “the trial court must place itself in the defendant’s shoes and view the defendant’s acts in light of all the facts and circumstances the defendant knew when the act occurred.” Read, 147 Wn.2d at 243 (emphasis added). Regarding the objective test, “the trial court must determine what a reasonable person would have done if placed in the defendant’s situation.” Read, 147 Wn.2d at 243 (emphasis added).

A trial court evaluates the defendant’s evidence in support of the proposed justifiable homicide instruction “by reviewing the entire record in the light most favorable to the defendant with particular attention to those events immediately preceding and including the alleged criminal act.” State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997); see also Read, 147 Wn.2d at 242 (stating that “a defendant must produce some evidence to establish the killing occurred in circumstances amounting to defense of life and produce some evidence he or she had a reasonable apprehension of great bodily harm and imminent danger.”) (emphasis added).

Here, the trial court provided a justifiable homicide instruction, but not on the basis that Slert was resisting Benson’s alleged attempt to commit residential burglary. The trial court did not give a reason for denying Slert’s proposed instruction based on resistance to a felony, rather, Slert’s trial counsel objected on the record.

Slert’s justifiable homicide theory was based on his statements that he was continuously resisting Benson’s life threatening behavior both outside and at the threshold of his tent. Slert was covered with blood the next morning, the front of Benson’s body had significant ground debris, and blood was on the canvas of Slert’s tent. Benson was lying in front of Slert’s tent when the ranger and Slert returned to the campsite.

Reviewing the evidence in the light most favorable to Slert and considering the elements of residential burglary, Slert should have had the ability to completely assert his justifiable homicide theory to the jury. Although the State proffered some physical evidence and certain statements from Slert that appeared to contradict his assertion that he was resisting the felony of residential burglary, witness credibility and factual determinations are for the jury to decide. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Williams, 93 Wn. App. 340, 348, 968 P.2d 26 (1998). Further, a defendant’s proposed justifiable homicide instruction “may be based upon facts inconsistent with [the defendant’s] own testimony.” Callahan, 87 Wn. App. at 933.

Thus, the trial court committed reversible error in rejecting Slert’s proposed instruction on justifiable homicide in resistance of a felony (residential burglary). 4


4   We note that we recently reached the same result in State v. Douglas, 116 P.3d 1012, 128 Wn. App. 555, 2005 WL 1594343 *6 (2005).


II. Ineffective Counsel and Revival Instruction

Slert next argues that he was denied a fair trial because his counsel failed to propose a jury instruction regarding the revival of an aggressor’s right to self-defense when the defendant communicates a withdrawal from the conflict. Slert does not challenge the validity of the first aggressor instruction. Instead, he argues that when he walked away from Benson’s truck after punching him, he withdrew in a manner that revived his right to self-defense.

It is well established that,


one who was the aggressor or who provoked the altercation in which he killed the other person engaged in the conflict, cannot successfully invoke the right of self-defense to justify or excuse the homicide,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, 783-84, 514 P.2d 151 (1973) (emphasis added); see also Riley, 137 Wn.2d at 909 (citing Craig when declaring that the aggressor must “let the other person know that he or she is withdrawing or intends to withdraw from further aggressive action.”) (emphasis added).

A defendant demonstrates ineffective assistance of counsel by proving (1) that counsel’s representation fell below an objective and reasonable standard; and (2) that counsel’s errors were serious enough to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986). A defendant’s counsel is ineffective if there is a reasonable probability that, absent counsel’s errors, the outcome of the trial would have been different. Strickland, 466 U.S. at 687-88. Further, an attorney’s failure to propose a legally adequate jury instruction can constitute ineffective assistance. State v. Cienfuegos, 144 Wn.2d 222, 228-29, 25 P.3d 1011 (2001).

Here, after punching Benson, Slert left the truck, turned his back to Benson, walked 50 yards in the dark to his tent and over at least one log to fetch and light a lantern. Slert’s actions clearly communicated to Benson his intention to withdraw from further conflict. Further, Slert’s theory of the case was self-defense, thus his counsel’s failure to propose a revival instruction supported by the evidence deprived Slert the ability to argue his central theory of the case and could have affected the trial outcome. Thus, under the circumstances here, Slert’s counsel’s performance fell below an objective and reasonable standard of representation and prejudiced his trial.

We reverse and remand for a new trial based on (1) the trial court’s rejection of Slert’s proposed instruction on justifiable homicide in resistance of a felony (residential burglary); and (2) ineffective assistance of counsel regarding the failure to propose a revival instruction.

III. CrR 3.5

Slert argues that the trial court should have suppressed the statements he made after he received Miranda warnings and invoked his right to remain silent at the campsite. Slert focuses on: (1) his statements to McCrosky in the patrol car enroute from the crime scene to jail; and (2) his tape recorded statement made later at the jail. Slert argues that these statements should be suppressed because police failed to scrupulously honor Slert’s invocation of his Miranda rights at the crime scene.

We review factual findings following a motion to suppress for substantial evidence; we review de novo the suppression order’s conclusions of law. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002); State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Substantial evidence in the criminal context here means evidence sufficient to persuade “an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.” State v. Summers, 107 Wn. App. 373, 388, 28 P.3d 780, 43 P.3d 526 (2001) (citation omitted). We review de novo whether the trial court derived the proper conclusions of law from its findings of fact. 5 State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002), review denied, 149 Wn.2d 1025, 72 P.3d 763 (2003).


5   Although the trial court did not enter written findings of fact, this omission is harmless because “the trial court’s oral opinion is clear and comprehensive and written findings would be just a formality.” State v. Trout, 125 Wn. App. 403, 415, 105 P.3d 69 (2005).

A trial court determines the voluntariness of a defendant’s statement by reviewing the totality of the circumstances. State v. Aten, 130 Wn.2d 640, 663-64, 927 P.2d 210 (1996). Further, “[w]hen a trial court determines a confession is voluntary, that determination is not disturbed on appeal if there is substantial evidence in the record from which the trial court could have found the confession was voluntary by a preponderance of the evidence.” Aten, 130 Wn.2d at 664.

“A suspect or an accused who invokes the right to counsel but then initiates further communication or conversation with law enforcement officers without a lawyer is subject to further interrogation.” Aten, 130 Wn.2d at 666 (citing Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)) (emphasis added).

Here, Slert’s suppression arguments are unpersuasive. Regarding his statement to law enforcement in the patrol car, the trial court found that Slert voluntarily initiated his statements. Indeed, McCrosky did not actively engage Slert in conversation or encourage his statements. Nothing in the record contradicts the court’s finding that his statements were voluntary.

Slert’s taped statement while at the jail was clearly made after he waived his Miranda rights. Slert made his taped statement following additional Miranda warnings given approximately six hours after police questioned him at the crime scene. Slert’s taped statement waived his right to an attorney and the right to remain silent.

In response to this evidence, Slert asserts that his two statements were due to Detective Wetzold’s request for clarification of Slert’s statements after Slert invoked his Miranda rights and following Detective Wetzold’s inspection of the crime scene. 6 Slert contends that police did not scrupulously honor his invocation of Miranda. But Slert initiated his statements in the patrol car with a different officer and the officer testified that he did not initiate a conversation with Slert, nor did he question him. Furthermore, Slert does not assert that the officer questioned him or initiated any conversation in the car. And the taped statement was approximately six hours after he left the crime scene where he had refused to talk further with Detective Wetzold and followed his waiver of Miranda warnings given at the jail.


6   The trial court suppressed Slert’s statement made in response to this question.

Thus, the trial court did not err in admitting the two challenged statements.


IV. Rule of Completeness

Slert argues that the trial court abused its discretion when it did not allow the park ranger to testify about Slert’s statements to him. Slert argues that his hearsay statements to the park ranger provided necessary context and clarify that (1) Slert felt afraid for his life because of Benson’s conduct; and (2) he did not immediately report the incident because he was too drunk at the time.

We review the trial court’s evidentiary rulings for an abuse of discretion; abuse occurs only if the ruling was “manifestly unreasonable” or based on “untenable grounds.” State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). Slert bears the burden of proving abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).

ER 106 provides that when a “recorded statement . . . is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it.” The court should allow testimony under the rule of completeness when it would provide context to the admitted evidence and avoid misleading the jury. State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001).

Here, Slert fails to demonstrate that the trial court abused its broad discretion. The jury heard extensive testimony regarding Slert’s justifiable homicide theory and that he felt Benson’s conduct was life-threatening. Similarly, the jury heard Slert’s admissible tape recorded statement that he did not immediately contact law enforcement because Benson’s CB radio did not work, he was “buzzed” and dazed and confused, and eventually fell asleep. CP at 26. The ranger’s testimony recounting Slert’s statements to him would not provide further guidance or context on these issues.

Thus, the trial court did not abuse its discretion when it rejected Slert’s rule of completeness arguments regarding the park ranger’s testimony.

We reverse and remand for a new trial.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Van Deren, A.C.J.

We concur:

Houghton, J.

Bridgewater, J.


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