729107MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 72910-7
Title of Case: State of Washington V Reynaldo Redmond
File Date: 11/06/2003
Oral Argument Date: 05/13/2003


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County


JUSTICES
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Authored by Mary Fairhurst
Concurring: Faith Ireland
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Susan Owens
Tom Chambers


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
David L. Donnan
WA Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101-2402

Susan F Wilk
Washington Appellate Project
1305 4th Ave Ste 802
Seattle, WA 98101

Counsel for Respondent(s)
Prosecuting Atty King County
King County Prosecutor/appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104

Andrea Ruth Vitalich
King Co Pros Ofc/Appellate Unit
1850 Key Tower
700 5th Ave
Seattle, WA 98104

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 72910-7
)
v. ) EN BANC
)
REYNALDO REDMOND ) ) Filed
November 6, 2003
Petitioner. )
)

FAIRHURST, J. - This case involves a student fight in the parking lot of a
local high school. Petitioner, Reynaldo Redmond, appeals a Court of
Appeals decision affirming his jury conviction for second degree assault.
Because the trial court committed a prejudicial error when it did not
instruct the jury that persons acting in self-defense have no duty to
retreat when assaulted in a place they have a right to be, we reverse and
remand for a new trial. We also agree with petitioner that certain hearsay
statements were improperly handled by the trial court. However, because
the jury instruction error constitutes a sufficient basis to require
retrial, we do not address whether the evidentiary errors independently
warrant a new trial.
I. CASE HISTORY
In June 2000, Reynaldo Redmond, a former student at Lindbergh High
School, and Bryan Johnson, a current Lindbergh student, were involved in an
altercation in the Lindbergh High School parking lot. During the
altercation, Redmond punched Johnson in the face, fracturing Johnson's jaw.
The parties continued fighting until the school principal intervened.
Redmond was charged with second degree assault.
The State, at trial, argued that Redmond specifically looked for Johnson
intending to start a fight and, after finding him, demanded that Johnson
get out of the car and explain statements he believed Johnson had made
regarding Redmond's ex-girl friend. The parties exchanged heated words
and when Johnson began to return to his car, Redmond threw the punch
fracturing Johnson's jaw.
In his defense, Redmond testified that he met Johnson in the school parking
lot by chance while he was at the school picking up his friend's brother.
He testified that he did not intend to start a fight with Johnson and
punched Johnson in self-defense only after Johnson stepped toward him with
clenched fists.
Both parties produced witnesses to support their factual assertions.
However, there was no dispute that, during the parties' initial argument
and at the time Redmond delivered the punch that fractured Johnson's jaw,
Johnson was standing between his car and Redmond. Redmond requested a no
duty to retreat jury instruction as part of his theory of self-defense.
The trial court refused to give the instruction, stating the case 'barely'
warranted a self-defense instruction and did not legitimately raise the
issue of retreat. Verbatim Report of Proceedings (VRP) (Jan. 23, 2001) at
48, 49.
The trial court also overruled two of defense counsel's hearsay objections.
The first hearsay objection concerned Johnson's testimony that he knew from
his conversations with other unnamed students that Redmond was upset with
him and planned to confront him about a conversation he had with Redmond's
ex-girl friend. When the judge inquired whether this statement was offered
for the truth of the matter, the State indicated that it was not, but no
other basis was given for the testimony. Redmond then requested a limiting
instruction, which the trial court did not provide.
The second hearsay objection concerned three statements included in
Johnson's medical records. Redmond requested redaction, claiming that the
statements included faulty information, hearsay within hearsay, and overly
prejudicial information. In response, the State argued that the statements
were admissible under the medical diagnosis and treatment exception to the
hearsay rule. The trial court overruled Redmond's objections holding that
the statements documented the physician's understanding of what caused
Johnson's injuries.
A jury convicted Redmond of second degree assault, and the Court of Appeals
affirmed the conviction. State v. Redmond, noted at 112 Wn. App. 1030
(2002). The Court of Appeals agreed that retreat was not a serious issue
for the jury to consider, and found no error in the trial judge's refusal
to provide a no duty to retreat jury instruction. The Court of Appeals
also found the trial judge did not err by admitting Johnson's testimony
that he knew Redmond was upset based upon his conversation with unnamed
sources because it was offered to show the victim's state of mind or
motivation, a nonhearsay purpose. The Court of Appeals did not address
whether a limiting instruction was necessary. Finally, the Court of
Appeals did not answer the question of whether the trial court abused its
discretion in refusing to redact the medical records, finding instead that
any error committed in admitting the medical record statements was
harmless.
We granted Redmond's petition for review. State v. Redmond, 148 Wn.2d
1014, 64 P.3d 649 (2003).

II. ANALYSIS
A. No Duty to Retreat Jury Instruction
The law is well settled that there is no duty to retreat when a person is
assaulted in a place where he or she has a right to be.1 State v. Studd,
137 Wn.2d 533, 549, 973 P.2d 1049 (1999). An instruction should be given
to this effect when sufficient evidence is presented to support it. State
v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984). Parties are entitled
to instructions that, when taken as a whole, properly instruct the jury on
the applicable law, are not misleading, and allow each party the
opportunity to argue their theory of the case. State v. Mark, 94 Wn.2d
520, 526, 618 P.2d 73 (1980).
In affirming the trial court's refusal to give a no duty to retreat jury
instruction, the Court of Appeals cites State v. Williams, which held that
'where a jury may conclude that flight is a reasonably effective
alternative to the use of force in self-defense, the no duty to retreat
instruction should be given.' State v. Williams, 81 Wn. App. 738, 744,
916 P.2d 445 (1996); State v. Redmond, noted at 112 Wn. App. 1030, 2002 WL
1402564, at *2 (2002). The Court of Appeals then suggests, obversely, that
'such an instruction is not required . . . where the evidence does not
otherwise suggest that retreat was a reasonable alternative to the use of
force.' Id.
This rule is illustrated by this court's decision in State v. Studd. In
Studd, the defendant argued that the victim was holding him at gunpoint at
the time he shot the victim. Studd, 137 Wn.2d at 549. Based on these
objective circumstances, this court held that retreat was not a reasonable
alternative to the use of force for a person being held at gunpoint, and
upheld the trial court's refusal to provide a no duty to retreat
instruction. Id. In cases such as Studd, the danger that a jury will
erroneously conclude that a defendant should have retreated, despite the
absence of a duty to retreat, is minimal.
Agreeing with the Court of Appeals' characterization of the case law, we
now turn to the Court of Appeals' application to the facts in this case.
Unlike Studd, where the defense presented a defense theory that
incorporated the objective fact that the defendant was being held at
gunpoint at the time he shot the victim, clearly making retreat an
unreasonable alternative, in this case the undisputed objective facts
indicate that during the altercation, Johnson was between his car
and Redmond, arguably leaving Redmond with an easy opportunity to retreat.2
Upholding the trial court, the Court of Appeals looked beyond the fact that
Redmond objectively had a reasonable opportunity to retreat, and held that
retreat was not an issue because Redmond's testimony included subjective
thoughts regarding his ability to outrun Johnson and his characterization
of his response as reactionary.
The Court of Appeals' conclusion pushes our reasoning in Studd too far
beyond the facts of that case. Where the only objective facts suggest that
retreat would be a reasonable alternative to the use of force, the risk
that jurors would conduct their own evaluation of the possibility of
retreat is not sufficiently diminished by testimony regarding the
defendant's speculation about his chances for a successful retreat. To the
contrary, such testimony may invite jurors
to engage in their own assessment of the defendant's opportunity to
retreat.3 As noted above, where the possibility of such speculation
exists, the jury should be instructed that the law does not require a
person to retreat when he or she is assaulted in a place where he or she
has a right to be.
The failure to provide a no duty to retreat instruction to the jury is a
reversible error. At trial, the judge noted that he felt this was 'barely
a case . . . even entitled to a self-defense instruction.' VRP (Jan. 23,
2001) at 48. Be that as it may, the no duty to retreat instruction is
required where, as in this case, a jury may objectively conclude that
flight is a reasonably effective alternative to the use of force in self-
defense. The trial court cannot allow the defendant to put forth a theory
of self-defense, yet refuse to provide corresponding jury instructions that
are supported by the evidence in the case. Each party is entitled to have
the jury provided with instructions necessary to its theory of the case if
there is evidence to support it. State v. Riley, 137 Wn.2d 904, 908 n.1,
976 P.2d 624 (1999). Failure to provide such instructions constitutes
prejudicial error. Id. Accordingly, we reverse and remand for a new
trial.
B. Hearsay Statement - Johnson's Testimony
Redmond contends that the trial court improperly addressed two of his
hearsay objections. ''Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.' ER 801(c). We review the
admission of evidence by a trial court for abuse of discretion. Davis v.
Globe Mach. Mfg. Co., 102 Wn.2d 68, 76, 684 P.2d 692 (1984).
Redmond first contends that Johnson's testimony, in which he testifies
other unnamed students told him that Redmond was upset and planned to
confront him, constitutes inadmissible hearsay. Even though no basis for
admission was given at the trial court, the Court of Appeals held that the
trial court did not err when it admitted Johnson's testimony because it was
offered to show the victim's state of mind or motivation, a nonhearsay
purpose. Although it is a close question whether the out-of-court
declarations revealed Johnson's state of mind in a way that is relevant to
this case, we agree that the trial judge's decision to admit the testimony
was within his reasonable discretion.
The Court of Appeals failed to address, however, the trial court not giving
a requested limiting instruction. This court has noted that when testimony
that would otherwise be inadmissible hearsay is admitted to show the state
of mind or intention of a person, it may be misused by the jury. State v.
Parr, 93 Wn.2d 95, 98-99, 606 P.2d 263 (1980). Accordingly, limiting
instructions are usually required. Id. In this case, we find no
justification for the trial court not providing an appropriate limiting
instruction, and hold that it was an abuse of discretion not to instruct
the jury regarding the specific manner in which it should consider this
portion of Johnson's testimony.
Because we reverse and remand this case based on the trial court's failure
to provide a no duty to retreat instruction, we need not consider whether
the trial court's error in failing to provide a limiting instruction
constitutes a harmless or reversible error.
C. Hearsay Statements - Medical Records
Redmond also appeals the inclusion of three unredacted portions of
Johnson's medical records. Redmond contends that redaction was necessary
because the records contained attributions of fault, making them
inadmissible under ER 803(a)(4). Because ER 803(a)(4) pertains to
statements "reasonably pertinent to diagnosis or treatment," it allows
statements regarding causation of injury, but generally not statements
attributing fault. State v. Woods, 143 Wn.2d 561, 602, 23 P.3d 1046, cert.
denied, 534 U.S. 964 (2001). For example, the statement 'the victim said
she was hit on the legs with a bat,' would be admissible, but 'the victim
said her husband hit her in the face' would not be admissible.
The trial court abused its discretion when it failed to redact two of the
three portions of medical records complained of by Redmond.4 Redaction
could easily have eliminated attributions of fault, while preserving the
portions relevant to treatment or diagnosis. For example, the wording 'an
ex-student accosted and dragged Mr. Johnson from his auto' and 'was
accosted in the parking lot by another male. He was taken from his car'
should have been redacted. State Ex. 5, at 1, 3. We do not find any
inappropriate attribution of fault in the third statement complained of by
Redmond.5
Although we hold that the trial court erred in failing to require redaction
of certain portions of the medical records, because of our holding on the
jury instruction issue, we do not consider whether the trial court's error
provides an independent basis to require a new trial.
III. CONCLUSION
Because the trial court committed a prejudicial error by failing to provide
a no duty to retreat jury instruction, we reverse and remand for a new
trial. We also find the admission of Johnson's hearsay statement without a
limiting instruction, and two of the three medical statements admitted
without redaction, to be an abuse of discretion. We do not determine
whether these admissions were harmless.

WE CONCUR:

1 Redmond's right to be in the Lindbergh High School parking lot is
not disputed.
2 There was also testimony that invited the jury to speculate whether
retreat was a viable option. Redmond testified he believed that running
away was not an option because he had seen Johnson fight before, knew
Johnson's strength and speed, and believed Johnson would have been able to
chase him down. Redmond also stated that he did not have a chance to
reflect before punching Johnson. Johnson, on the other hand, testified
that Redmond stepped back away from Johnson, leading Johnson to believe
that the confrontation was over and that Redmond was going to walk away.
Johnson then claims that, as he was turning to get back into his car,
Redmond punched him in the face.
3 This risk was exacerbated by the prosecutor's statement in her
closing argument that 'Bryan Johnson's back was up against the car, so if
anybody had the way to get out of the situation, it was the defendant.'
VRP (Jan. 23, 2001) at 61. The Court of Appeals correctly notes that, put
in context, the prosecutor was challenging the credibility of Redmond's
claim that he feared Johnson. We disagree, however, with the Court of
Appeals' conclusion that the prosecutor's statement did not imply a duty to
retreat. On the contrary, the prosecutor's clear message to the jury was
that if Redmond was really afraid of Johnson, he should have retreated.
The prosecutor's suggestion highlights the need for the no duty to retreat
instruction in this case.
4 The first statement that should have been redacted reads: '{Johnson}
. . . was leaving school yesterday, and while on school grounds apparently
an ex-student accosted and dragged Mr. Johnson from his auto and slammed
his head into the dash of the car several times, resulting in the current
injuries.' State Ex. 5, at 1. The second statement that should have been
redacted reads: '{Johnson} . . . was leaving school yesterday and was
accosted in the parking lot by another male. He was taken from his car and
in an altercation, his head was slammed apparently against the roof of the
car, resulting in the current injuries.' Id. at 3.
5 The third statement complained of by Redmond reads: '{Johnson} was
at school in the parking lot when he was struck in the face and his jaw was
smashed against the side of the car Limberg {sic} High School at
approximately 1330 today.' Id. at 6.

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