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State v. Kamps5/13/2003
somewhat imprecise, it was not so badly flawed as to require reversal.
Mr. Kamps, pro se, further argues Instruction 14 should have stated he was entitled to use a firearm to prevent a first degree burglary. Two flaws exist in Mr. Kamps' argument. First, his first degree burglary theory lacks substantial support in the evidence. The evidence shows Mr. Pourier and Ms. Blankenship entered the residence in response to Ms. Peterson's call for aid and were waved into the house at arrival. Moreover, a self-defense/lawful force theory is very fact specific. We have not found support for the proposition that a homeowner is presumptively entitled to wield a firearm in the face of a burglary. Accordingly, Mr. Kamps' contention is unpersuasive.
Jury Instruction No. 15. Mr. Kamps contends Instruction 15 states an improper 'great bodily harm' standard. He contends Instruction 6 is misleading because it does not inform the jury to apply the 'great bodily harm' standard solely to first degree assault.
But, Mr. Kamps proposed Instruction 15. Under the doctrine of invited error, he cannot request an instruction and then argue on appeal the trial court erred in giving that instruction. City of Seattle v. Patu, 147 Wn.2d 717, 721, 58 P.3d 273 (2002); State v. Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999). A party's invited error waives an erroneous jury instruction even if the alleged error is of constitutional magnitude. See Studd, 137 Wn.2d at 546-47 (holding invited error waived erroneous 'to convict' instruction). Logic dictates Mr. Kamps' challenge to Instruction 6 must necessarily fail, also as it is predicated on his invited error in connection with Instruction 15.
Jury Instruction No. 17. Mr. Kamps challenges Instruction 17, the 'aggressor' instruction, which states:
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 the defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense. CP at 569.
Mr. Kamps contends the instruction was inappropriate because Mr. Pourier assaulted him first. He further contends the jury may have improperly relied on the assault against Ms. Peterson to find him the primary aggressor. The State responds the instruction was proper because Mr. Kamps alone fired the shots and fired first, as well as hitting Mr. Pourier in the back. The State further contends the disputed facts as to who precipitated the fight justified the instruction.
'Where there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense, an aggressor instruction is appropriate.' State v. Riley, 137 Wn.2d 909-10, 976 P.2d 624 (1999) (citing State v. Hughes, 106 Wn.2d 176, 191-92, 721 P.2d 902 (1986); State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990)). 'If there is credible evidence that the defendant made the first move by drawing a weapon, the evidence supports the giving of an aggressor instruction.' Riley, 137 Wn.2d at 910 (citing State v. Thompson, 47 Wn. App. 1, 7, 733 P.2d 584 (1987)).
Here, credible evidence shows Mr. Kamps walked back to his bedroom and retrieved the firearm after the initial fight between he and Mr. Pourier had ended. Mr. Kamps then pointed the gun at the unarmed Mr. Pourier. The brandishing of a firearm under these circumstances raises a fact issue as to whether Mr. Kamps provoked the need for self-defense after the initial fight had
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