No. 62992-1-I.The Court of Appeals of Washington, Division One.
January 25, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05435-3, Charles W. Mertel, J., entered January 20, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Lau, JJ.
GROSSE, J.
An aggressor instruction is appropriate where evidence is presented that one of the parties provoked the need to act in self-defense. Here, the giving of such an instruction was justified where an argument occurred immediately preceding the assault. And although it was not appropriate for defense counsel to proffer the aggressor instruction, the prosecution proposed a similar aggressor instruction and, under the circumstances here, the court would have given the instruction in any event. The trial court is affirmed.
FACTS
On July 1, 2008, police responded to a 911 call about two men having an altercation. On arrival, Officer Thomas Janes observed Thanh Ngoc Ly threatening Jorge Fortun-Cebada with a knife. Fortun-Cebada was using his backpack to thwart Ly’s thrusts. Officer Corey Simmons likewise testified that he observed two men in the middle of south Dearborn Street. He also observed Ly slashing at Fortun-Cebada who was trying to defend himself with a backpack. A third police officer arrived on the scene and his assessment concurred with that of the other two officers — that Ly was advancing on Fortun-Cebada.
Both men were ordered to drop to the ground. Fortun-Cebada eventually complied. Police testified that Fortun-Cebada complied when he got closer to the police and felt it was safe to lie down. Ly, however, complied only after an officer used a taser to subdue him. Ly was arrested at the scene. Police recovered $414.99 from Ly, which he had earned that day from landscaping jobs.
The store clerk testified that Ly had purchased a soda, cigarettes and a lighter from him that evening. Ly was unhappy with the lighter and cursed the clerk for refusing to let him return it. He threw the items on the ground and did not return for about 30 minutes. Fortun-Cebada came up and picked up the abandoned cigarettes and soda. Shortly thereafter, Ly returned. According to the clerk, Ly punched Fortun-Cebada in the face and Fortun-Cebada hit him back. The clerk called 911. As Fortun-Cebada walked toward the street, Ly reached into his backpack and started swinging at Fortun-Cebada.
Fortun-Cebada testified that he went to the convenience store at the gas station to buy a soda. He testified that after he received his soda from the clerk, Ly approached him claiming the soda belonged to him. Fortun-Cebada tried to back away. Fortun-Cebada raised his forearm as he fell, and Ly stuck him with the knife. He did not understand why Ly was attacking him. He used his backpack to defend himself.
Ly testified on his own behalf. He said that he worked mowing lawns that day and was too late to sign up for the shelter where he usually stays. Ly testified that he saw two men standing near the window area of the store where he paid for his items. He saw one of them grab his soda bottle. Ly claimed the men had seen him holding his money and was afraid he was going to be robbed. He testified that Fortun-Cebada struck him in the face and gave him a bloody nose. Ly also testified that Fortun-Cebada reached for him and Ly thought Fortun-Cebada was trying to take his money. Ly took the knife out to protect himself from being robbed. He claimed Fortun-Cebada used the backpack to hit him. Ly swung the knife to scare him. Ly testified that he was afraid. He claimed Fortun-Cebada was chasing him.
A jury convicted Ly of assault in the second degree with a deadly weapon enhancement. He appeals.
ANALYSIS
Ly argues that his counsel was ineffective for proposing an aggressor instruction. The same instruction was also proposed by the State. “Effective assistance of counsel is guaranteed by both the federal and state constitutions.”[1] To sustain a claim of ineffective assistance of counsel, a defendant must show both that the performance was deficient and that the deficient performance was prejudicial.[2] Deficient performance is performance which falls “below an objective standard of reasonableness based on consideration of all the circumstances.”[3] Prejudice results only when there is a reasonable probability that, but for counsel’s performance, the outcome would have differed.[4]
Instruction 16, the aggressor instruction, provided:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer, or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant’s act and conduct provoked or commenced the fight, then self-defense is not available as a defense.
Here, the first prong of Strickland is met and it was error for counsel to proffer the aggressor instruction. But the second prong — that the deficient performance was prejudicial — is not met here. Ly contends that the aggressor instruction was unwarranted because there was no evidence of aggression prior to the assault. Because both parties proposed the instruction, Ly contends there was no argument regarding whether the evidence supported the instruction. But where there is credible evidence from which a jury could reasonably determine that the defendant provoked the need to act in self-defense, an aggressor instruction is appropriate.[5] Ly’s argument that there was no provoking act which preceded the assault fails. Testimony from the clerk at the gas station indicated an exchange of blows initiated by Ly occurred prior to Ly’s slashing at the victim with his knife. Sufficient evidence supports the giving of the aggressor instruction here.
Ly’s theory of the case was that the victim was the aggressor and that Ly thought he was going to be robbed. He testified on his own behalf and his counsel argued that point to the jury in closing. An aggressor instruction does not prevent a defendant from arguing self-defense.[6] And the aggressor instruction did not prevent it in the present case. As noted in State v. Riley, a first aggressor instruction is appropriate if there is conflicting evidence as to whether the defendant’s conduct precipitated a fight.[7] Here, Ly’s testimony conflicted with that of the victim and the store clerk. Further, the police officers’ testimonies corroborated the victim’s testimony that he was trying to escape from Ly. The credibility of witnesses lies within the purview of the fact finder and will not be revisited on appeal.[8]
In order to establish prejudice under the second prong of th Strickland test, the defendant must show that counsel’s deficient performance was so inadequate that there exists a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[9] Because the evidence of aggression was sufficient, it was likely that the prosecutor’s proposed aggressor instruction would have been given in any instance. Ly cannot demonstrate prejudice. These facts do not come within the ambit of a “probability sufficient to undermine confidence in the outcome.”[10] Accordingly, Ly’s claim of ineffective assistance of counsel fails.
The trial court is affirmed.
(2005); see U.S. Const. amend VI; Wash. Const. art. I, § 22.
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