 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Kamps5/13/2003
ended. 'The evidence supported giving the aggressor instruction in this case.' Riley, 137 Wn.2d at 910; see also State v. Heath, 35 Wn. App. 269, 271-72, 666 P.2d 922 (1983).
Jury Instruction No. 18. Mr. Kamps contends the evidence does not support Instruction 18. Mr. Kamps proposed the instruction. Invited error precludes him from challenging it on appeal. Patu, 147 Wn.2d at 721; Studd, 137 Wn.2d at 547.
First Degree Burglary Instructions. Finally, Mr. Kamps asserts he was entitled to a number of first degree burglary instructions in support of his self-defense theory. Such instructions were unnecessary and would have resulted in a confusing mini-trial of Mr. Pourier and Ms. Blankenship. See generally State v. Adame, 56 Wn. App. 803, 809, 785 P.2d 1144 (1990) (holding trial court did not err in rejecting confusing defense instruction). The self-defense instructions given by the trial court allowed Mr. Kamps to argue he shot Mr. Pourier in self-defense.
D. Motion for New Trial
The issue is whether the trial court abused its discretion in denying Mr. Kamps' motion for a new trial.
The opening brief lacks citation or meaningful argument. RAP 10.3(a)(5); see Holland v. City of Tacoma, 90 Wn. App. 533, 537-38, 954 P.2d 290 (1998). However, Mr. Kamps, pro se, argues two specific sub-issues. The standard of review is abuse of discretion. State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d 1304 (1996).
First, Mr. Kamps alleges the bailiff rushed the jury. A trial court can grant a new trial for an irregularity 'in the proceedings of the court, jury or prosecution . . . by which the defendant was prevented from having a fair trial.' CrR 7.5(a)(5).
The affidavits of three jurors state the bailiff entered the jury room once or twice and conveyed to the jury through the foreperson that they should render a decision soon so they would not have to come back the following week. Two of the jurors stated they felt rushed and '{i}t was apparent that other jurors felt that way also.' CP at 729. Nevertheless, the affidavits do not indicate the jurors would have arrived at a different verdict had they spent more time deliberating. The affidavits alone do not establish Mr. Kamps was denied a fair trial.
Mr. Kamps next contends defense counsel was deficient in not having a firearms expert testify. The trial court may grant a new trial when 'substantial justice has not been done.' CrR 7.5(a)(8). Defense counsel contacted a private forensic crime scene investigator regarding the number of wounds inflicted on the victim. But counsel did not ask the investigator to testify or provide other assistance. In support of the new trial motion, the expert examined the evidence and wrote a declaration stating had he testified, his testimony would have conflicted with the State's theory.
The difficulty with the investigator's declaration is that it does not establish a probability of acquittal. Assuming the investigator would have qualified as an expert witness, his testimony would have been subject to cross-examination. By contrast, the State's evidence, which was subjected to cross-examination, was compelling.
Given the foregoing, the trial court did not abuse its discretion in denying the motion for a new trial. In passing we note the briefing does not address the alternative new trial argument urged below regarding a juror having been a prior rape victim. We consider the matter abandoned and do not discuss it. State v. Jeannotte, 133 Wn.2d 847, 858 n.4, 947 P.2d 1192 (1997).
E. Assistance of Counsel
The issue is whether Mr. Kamps received ineffective assistance of counsel.
Page 1 2 3 4 5 6 7 8 9 10 11 Washington DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|