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State v. Kamps5/13/2003
t Instruction 14 corrected the deficiency by defining 'lawful' use of force, and by further informing the jury of the State's burden of proving the defendant's use of force 'was not lawful.' CP at 566. Any reasonable juror satisfied that the State had proven Mr. Kamps' use of force 'was not lawful' necessarily would have found the use of force 'unlawful' as well. Given the corrective effect of the other instructions, the error 'is superfluous, and harmless beyond a reasonable doubt.' Linehan, 147 Wn.2d at 654.
Jury Instruction No. 14. Instruction 14, the 'lawful force' instruction, states:
It is a defense to a charge of Assault in the First Degree or Second Degree that the force used or offered to be used was lawful as defined in this instruction.
The use or offer to use force upon or toward the person of another is lawful when used or offered 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 then 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 has the burden of proving beyond a reasonable doubt that the force used or offered to be used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty. CP at 566.
Mr. Kamps contends Instruction 14 improperly omitted fourth degree assault. But that contention conflicts with Mr. Kamps' general denial of that offense. In other words, adoption of a self-defense theory would have required Mr. Kamps to admit conduct consistent with an offense, but justified by the self-defense. Given Mr. Kamps' theory of defense to fourth degree assault, it cannot be said the trial court abused its discretion in omitting that offense from Instruction 14.
In his pro se brief, Mr. Kamps argues the first sentence of Instruction 14 erroneously used the disjunctive 'or' instead of 'and.' The instruction partly states, '{i}t is a defense to a charge of Assault in the First Degree or Second Degree . . . .' CP at 566. Because the jury found Mr. Kamps not guilty of second degree assault, Mr. Kamps speculates the jury may have chosen to apply Instruction 14 to that offense alone. The State did not respond to that argument.
Assuming without deciding 'and' would have been more precise, Mr. Kamps' argument is unpersuasive when the instructions are read in their entirety. The jury was clearly informed the allegation of first degree assault pertained to Mr. Pourier and that the charge of second degree assault concerned Ms. Blankenship. Apart from the use of 'or' in the first sentence of Instruction 14, the self-defense instructions were applicable generally. Mr. Kamps' defense relied on the theory that he employed the lawful use of force in shooting Mr. Pourier. A reasonable juror, reading the instructions as a whole would not have been deterred by the use of 'or' in Instruction 14 from considering the applicability of lawful force for both first and second degree assault. Instruction 14 is not ambiguous when read in light of the other instructions. See State v. Brown, 132 Wn.2d 529, 605-06, 940 P.2d 546 (1997); State v. McLoyd, 87 Wn. App. 66, 71, 939 P.2d 1255 (1997).
Moreover, the record shows Instruction 14 allowed Mr. Kamps to argue his theory of the case. Although Instruction 14 was
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