First Aggressor Instruction in Washington Assault Cases

Physically attacking someone often constitutes a crime. Specifically, in Washington, it may be grounds for assault charges. While engaging in physically violent behavior is generally unlawful, a defendant that is acting in self-defense might be found not guilty. If the State can show that the defendant was the first aggressor, however, the jury may be advised that self-defense is not available as a defense.

A defendant that successfully establishes that he or she merely committed the alleged acts to protect his or her self may be able to avoid a conviction. Self-defense only excuses a response to an illegal use of force, however. Thus, in many cases, the State will argue that the defendant initially instigated an altercation, and created the need to act in self-defense.

If you are accused of committing assault, it is prudent to meet with a trusted Washington assault defense attorney to evaluate your possible defenses.

Example 1: When is First Aggressor Instruction Warranted?

In a recent Washington assault case, the court discussed the first aggressor exception to self-defense and when it applies.

It is reported that the defendant had a contentious relationship with the alleged victim, due to the fact that the defendant believed the victim had stolen one of his guns. At one point, the victim fired shots at the defendant’s house, and a bullet nearly struck the defendant in the head. There is conflicting evidence as to whether the victim threatened to kill the defendant. Approximately four years later, the defendant was at a gas station when he saw the victim sitting in a car in the parking lot.

It is alleged that the defendant fired multiple shots at the car and ultimately killed the victim. The defendant was charged with numerous counts of first-degree assault as well as first-degree murder. At trial, the jury was given the first-aggressor instruction. The defendant was found guilty as charged, after which he appealed. The appellate court reversed the conviction, stating that the first aggressor charge relieved the State of proving the defendant committed the alleged acts. The State then appealed.

The First Aggressor Instruction

The primary issue on appeal was whether the first aggressor instruction was warranted. The court explained that the use of force is justified and lawful, where the defendant has a reasonable and subjective belief that the victim intends to cause imminent harm. Evidence regarding self-defense must be evaluated from the standpoint of a reasonably prudent person, standing in the shoes of the defendant with the defendant’s knowledge. If the defendant meets this burden of proof that he or she acted in self-defense, the State must prove the absence of self-defense beyond a reasonable doubt.

Generally, an aggressor or a person who provokes a physical altercation cannot claim self-defense. This is because the victim of the aggressor uses lawful force. Thus, the force defended against must be unlawful for self-defense to be a valid alibi. As the first aggressor instruction impacts the defendant’s self-defense claim, it should be used with care. In the subject case, the court found that there was sufficient evidence to support a first aggressor instruction. As such, the defendant’s conviction was reinstated.

Example 2: Past Acts of Violence Against the Defendant

In a recent case, the Court of Appeals of Washington, Division 3, explained when a jury instruction that the defendant was the initial aggressor of an argument is appropriate in assault cases.

Allegedly, the defendant and his victim live in the same building and had prior confrontations. Then, in December 2017, the defendant approached the victim and began punching him. The defendant then strangled the victim, reportedly out of fear that the victim would use the knife he regularly carried to stab him. Several witnesses observed the incident. When the police arrived, the defendant admitted he started the altercation, and that he strangled the victim. He was charged with second-degree assault by strangulation. Following a trial, a jury convicted the defendant. He then appealed on several grounds, including the argument that the trial court committed an error in providing a first aggressor instruction to the jury.

First Aggressor Instruction

Under Washington law, a defendant charged with assault can argue that his or her acts were taken in self-defense. The self-defense argument is only available, however, in cases in which the defendant’s actions were taken in response to the unlawful use of force. In other words, a person who instigates a confrontation, thereby provoking the person to act in self-defense, is not responding to unlawful force and will not be found to be acting in self-defense. Thus, a first aggressor instruction is appropriate in cases in which there is credible evidence that would allow a jury to reasonably conclude the defendant provoked the need for the victim to act. The instruction is also appropriate in cases in which there is a dispute as to who began an altercation.

In the subject case, the court found that the first aggressor instruction was not necessary, as there was no evidence that the defendant created an alleged need to act in self-defense. Rather, the defendant indisputably attacked the victim. As such, the court found that it was necessary to advise the jury that the defendant could not properly assert he was acting in self-defense.

Example 3: The Act that Provokes Self-Defense Must Be Intentional

The appropriateness of a first aggressor instruction was the topic of a recent ruling issued by a Washington court, in a matter in which the defendant argued the instruction was improper.

It is reported that the defendant was waiting at a bus stop where another man was also waiting. The defendant walked back and forth very close to the other man, who asked the defendant to back up. The defendant then showed the man a knife and became verbally aggressive. The man then encountered the victim in the bathroom and advised him of the defendant’s behavior. When the victim left the bathroom, the defendant started yelling at him, then punched him in the head. The two men started fighting, and the defendant stabbed the victim numerous times. The defendant was charged with two counts of assault with deadly weapon enhancements. He was convicted of both charges, after which he appealed, arguing in part that the trial court erred in giving a first aggressor instruction to the jury.

The First Aggressor Instruction

A court reviews whether there was adequate evidence submitted to warrant a first aggressor instruction de novo. If the evidence produced at trial was sufficient to support the instruction, the evidence must be viewed in the light most favorable to the party that requested the instruction. The court explained that a first aggressor instruction would not be deemed improper where there is credible evidence that would allow a jury to reasonably find that the defendant provoked the need for the victim to act in self-defense.

The act that provokes self-defense must be intentional, but it cannot be the actual assault unless the defendant engaged in the course of aggressive behavior rather than a single act of aggression. In the subject case, the defendant argued that the first aggressor instruction was improper because the initial punches he exchanged with the victim were inextricably entwined with the final assault. The court found, though, that the jury could have reasonably determined that the defendant engaged in a course of conduct that instigated the need for him to use force against the victim. Thus, the verdict was sustained.

Speak with Our Criminal Defense Attorneys

In some instances, even if a defendant engaged in acts that may meet the elements of a crime, he or she will nonetheless be able to offer a compelling defense. If you are charged with assault, the skillful Washington assault defense attorneys of The Law Offices of Smith & White have the knowledge and experience needed to help you strive for just results, and we will fight tirelessly on your behalf. We can be contacted via our online form or at (253) 203-1645 to set up a meeting.