State Of Washington, Respondent V. Daniel Pierre, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46008-4-II
Respondent,
v.
DANIEL MICHAEL PIERRE, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — On remand from our Supreme Court, Daniel Pierre appeals his
convictions of third degree assault, harassment, and bail jumping, asserting that (1) the trial court
violated his public trial right by addressing for-cause challenges to potential jurors at sidebars,
(2) the trial court erred by giving a harassment to-convict jury instruction that omitted an
essential element of the offense, and (3) the trial court erred by giving a self-defense jury
instruction that misstated the self-defense standard under the facts of the case and by refusing to
give his proposed self-defense jury instruction.1
1 In our opinion in State v. Pierre, noted at 188 Wn. App. 1005 (unpublished), remanded, 184
Wn.2d 1009, 359 P.3d 790 (2015), we reversed Pierre’s convictions, holding that his public trial
right had been violated by the exercise of for-cause challenges at sidebar. We also held in the
alternative that the trial court erred by giving a harassment to-convict jury instruction that
omitted an essential element of the offense and, thus, reversed Pierre’s harassment conviction on
that basis as well. In light of our reversal of all of Pierre’s convictions based on the violation of
his public trial right, we declined to address his challenge to the trial court’s self-defense jury
instruction.
Filed
Washington State
Court of Appeals
Division Two
June 14, 2016

No. 46008-4-II
2
Following our Supreme Court’s decision in State v. Love, 183 Wn.2d 598, 354 P.3d 841
(2015), cert. denied, 136 S. Ct. 1524 (2016), we hold that the trial court did not violate Pierre’s
public trial right by addressing for-cause juror challenges at sidebars while in open court. We
further hold that the trial court’s self-defense jury instruction set forth the proper legal standard
under the facts of the case. Finally, we confirm our prior holding that the trial court erred by
giving a harassment to-convict jury instruction that omitted an essential element of the offense
and that the error was not harmless beyond a reasonable doubt. Accordingly, we affirm Pierre’s
third degree assault and bail jumping convictions but reverse Pierre’s harassment conviction and
remand for a new trial on that charge.
FACTS
On July 24, 2012, Olympia police officers Jason Winner and Kimberly Seig went to an
Olympia apartment complex in response to several calls that a man and woman were fighting in
Daniel Pierre’s apartment. When the officers arrived, they could hear people yelling inside of
Pierre’s apartment. The voices in the apartment went silent after the officers knocked on the
door and announced their presence. The officers entered the apartment and secured two people
inside the residence, Pierre’s cousin, Joseph Musekamp, and Pierre’s girlfriend, Roberta
Hagoodhenry.
Officer Winner then approached Pierre, who was in his bathroom tending to an injury on
his face. According to Winner, he ordered Pierre to show his hands several times, but Pierre did
not comply with his orders. Winner attempted to physically restrain Pierre and a struggle
ensued. During the struggle, Pierre pushed Winner’s chest. Winner also felt a palm strike his

No. 46008-4-II
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left shoulder before subduing Pierre. After he was restrained, Pierre told Winner that he would
“[k]ick [his] ass.” Report of Proceedings (RP) (Jan. 21, 2014) at 86. Pierre also told Winner,
“You don’t know who you’re messing with,” and made a comment that he would find Winner on
the streets. RP (Jan. 21, 2014) at 87. The State charged Pierre with third degree assault, felony
harassment, and bail jumping. The matter proceeded to jury trial.
During the jury selection process, the trial court addressed for-cause challenges to
potential jurors at sidebar and later stated on the record:
[Trial court]: . . . I want to go ahead and put the sidebars on the record. During jury
selection, we had two sidebars. At the first sidebar, we all agreed that Juror No. 25
should be dismissed for cause based upon a health issue that Juror No. 25 described
during the course of jury selection briefly.
The defense made a motion to dismiss Number 1 for cause. [The State]
indicated that [it] would leave it to the court and the court’s recollection of what
Juror No. 1 indicated. I dismissed Number 1 for cause based upon her statements
of being a victim 20 years ago and that it was still affecting her. And then she
talked about that and brought it up more than one time during the course of the jury
selection process.
There was a second sidebar after jury selection had started, and that was the
defense requesting that Juror No. 10 be dismissed for cause based upon the fact that
he had disclosed that he was good friends with Officer Winner’s brother and that
Officer Winner’s brother was his supervisor. [The State] objected and indicated
that he had not made an unequivocal statement that he could not be fair. I ultimately
agreed with [the State’s] argument. I too did not hear a definitive statement, so I
denied the request for cause as to Juror No. 10.
RP (Jan. 21, 2014) at 37-38. The trial judge then asked the parties if they had anything to add to
the record, and the parties stated they did not.
At trial, Winner testified consistently with the facts as stated above. Pierre testified that
he was unaware that police were at his apartment until Winner approached him in the bathroom.
Pierre further testified that he had complied with Winner’s order to turn around and show his

No. 46008-4-II
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hands, but that Winner then tried to grab his shoulders. Pierre admitted that he tried to pull away
from Winner’s grasp and that he told Winner, “What the [expletive] are you doing,” and asked,
“What are you doing in my house?” RP (Jan. 22, 2014) at 385. Pierre stated that Winner
grabbed his throat and pushed him against a wall and then brought him down to the floor by
grabbing his hair. Pierre stated that during the scuffle he had tried to knock Winner’s hands
away, but that he didn’t make contact because Winner had let go of him at that point. Pierre also
denied that he had pushed Winner or that he took a swing at him. Although Pierre denied
pushing Winner, he admitted that when Winner was behind him, he had pushed against the wall
“to keep from going down.” RP (Jan. 22, 2014) at 393. Pierre testified that he did not intend to
cause any bodily harm to Winner when threatening him, explaining that he made threats because
he was irate about being assaulted by the officer in his home.
Defense counsel proposed the following self-defense jury instruction based on 11
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL (WPIC) 17.02,
at 253 (3d ed. 2008).
It is a defense to a charge of assault that the force used was lawful as defined
in this instruction.
The use of force upon or toward the person of another is lawful when used
by a person who reasonably believes that he is about to be injured in preventing or
attempting to prevent a malicious trespass or other malicious interference with real
or personal property lawfully in that person’s possession and when the force is not
more than is necessary.
The person using 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, attempted, or offered to be used by the defendant was not lawful. If you find

No. 46008-4-II
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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.
Clerk’s Papers (CP) at 23. Defense counsel also proposed a self-defense instruction based on
WPIC 17.04 that stated:
A person is entitled to act on appearances in defending himself, if that
person believes in good faith and on reasonable grounds that he is in actual danger
of great bodily harm, although it afterwards might develop that the person was
mistaken as to the extent of the danger. Actual danger is not necessary for the use
of force to be lawful.
CP at 24. The State opposed defense counsel’s proposed self-defense jury instructions, arguing
that the actual danger standard for evaluating a self-defense claim applied where a defendant is
accused of assaulting a law enforcement officer. Defense counsel argued that the self-defense
jury instruction for assaults on law enforcement officers did not apply under the facts of the case
because Winner was not attempting to arrest Pierre when Pierre allegedly assaulted Winner. The
trial court declined to give defense counsel’s proposed self-defense jury instructions, but instead
the trial court provided a jury instruction based on WPIC 17.02.01 that stated:
It is a defense to a charge of Assault in the Third Degree that the force used
was lawful as defined in this instruction.
A person may use force to resist a physical direction by a known police
officer only if the person receiving the physical direction is in actual and imminent
danger of serious injury from an officer’s use of excessive force. The person may
employ such force and means as a reasonably prudent person would use under the
same or similar circumstances.
The State has the burden of proving beyond a reasonable doubt that the force
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 as to this charge.

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CP at 78. Defense counsel agreed that the language of the trial court’s self-defense jury
instruction was appropriate. The jury returned verdicts finding Pierre guilty of third degree
assault, harassment, and bail jumping. Pierre appeals from his convictions.
ANALYSIS
I. PUBLIC TRIAL RIGHT
Pierre first contends that the trial court violated his public trial right by addressing for-
cause challenges to potential jurors at sidebars without first considering the factors set forth in
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Following our Supreme Court’s
decision in Love, we disagree that a closure took place here and, thus, hold that the trial court did
not violate Pierre’s public trial rights.
In Love, our Supreme Court held that the defendant’s public trial right was not violated
by the exercise of for-cause challenges at the bench because no courtroom closure had occurred.
183 Wn.2d at 606. In so holding, our Supreme Court reasoned:
[T]he public had ample opportunity to oversee the selection of Love’s jury because
no portion of the process was concealed from the public; no juror was questioned
in chambers. To the contrary, observers could watch the trial judge and counsel ask
questions of potential jurors, listen to the answers to those questions, see counsel
exercise challenges at the bench and on paper, and ultimately evaluate the
empaneled jury. The transcript of the discussion about for cause challenges and the
struck juror sheet showing the peremptory challenges are both publically available.
The public was present for and could scrutinize the selection of Love’s jury from
start to finish, affording him the safeguards of the public trial right missing in cases
where we found closures of jury section.
Love, 183 Wn.2d at 607.

No. 46008-4-II
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Here, as in Love, the public was able to (1) view the questioning of jurors, (2) listen to the
juror’s answers, (3) visually observe counsel exercise their for-cause challenges at the bench, and
(4) evaluate the composition of the empaneled jury. 183 Wn.2d at 607. Although, on this record
we cannot determine whether the arguments regarding for-cause challenges were transcribed by
a court reporter, the trial court adequately summarized these arguments on the record, and
allowed both parties the opportunity to add to its summary. The trial court’s summary of the for-
cause challenges explained that (1) juror 25 had been dismissed for cause upon agreement of the
parties based upon a health concern that was expressed during jury voir dire, (2) defense counsel
challenged juror 1 for cause based on her status as a victim, with which the trial court agreed,
and (3) defense counsel challenged juror 10 for cause based on his friendship with Officer
Winner’s brother, which the trial court denied because it did not hear a definitive statement that
the juror could not be fair.
Because this recitation of the for-cause challenge arguments adequately set forth (1) the
jurors who were challenged for cause, (2) the party lodging the challenge, (3) the party’s reasons
for lodging the challenge, (4) oppositions to the challenge, if any, and (5) the trial court’s reasons
for granting or denying the challenge, it permitted the public to scrutinize the process in the same
manner as a verbatim transcription of the arguments. Accordingly, we hold that no closure
occurred here and, thus, Pierre’s public trial right was not violated.
II. SELF-DEFENSE JURY INSTRUCTION
Next, Pierre contends that the trial court erred by refusing to give defense counsel’s
proposed self-defense jury instructions and by instructing the jury on self-defense based on

No. 46008-4-II
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WPIC 17.02.01.2 Specifically, Pierre contends that, because he was not being placed under
arrest when allegedly assaulting Winner, the jury did not have to find that he was in actual
danger of serious injury to be justified in his use of force against Winner and, thus, the trial court
erred by refusing to give his proposed self-defense instruction and by instructing the jury under
WPIC 17.02.01. We disagree.
Jury instructions are sufficient when they allow the parties to argue their theories of the
case, they are not misleading, and they properly inform the jury of the applicable law when read
as a whole. State v. McCreven, 170 Wn. App. 444, 462, 284 P.3d 793 (2012). Jury instructions
on self-defense must do more than adequately convey the law; they “‘must make the relevant
legal standard manifestly apparent to the average juror.’” McCreven, 170 Wn. App. at 462
(internal quotation marks omitted) (quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369
(1996), abrogated by State v. O'Hara, 167 Wn.2d 91, 217 P.3d 756 (2009)). We review a trial
court’s ruling on a proposed jury instruction for an abuse of discretion if based on a factual
dispute and de novo if based on a ruling of law. State v. Walker, 136 Wn.2d 767, 771-72, 966
P.2d 883 (1998). Here, the parties did not dispute that Pierre was not being placed under arrest
2 Pierre raises an ineffective assistance of counsel claim to preserve his contention with the trial
court’s refusal to give his proposed self-defense jury instructions and the trial court’s giving of
the self-defense instruction in this case should we determine that defense counsel failed to
preserve the issue for appeal. Because the record clearly establishes that defense counsel
objected to the trial court’s self-defense instruction and with the trial court’s refusal to give his
proposed instructions, the issue is preserved for appeal, and we need not address Pierre’s
ineffective assistance of counsel claim.

No. 46008-4-II
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when allegedly assaulting Winner in self-defense, rather, the issue before the trial court was what
self-defense standard applied under those facts. Accordingly, our review is de novo.
At issue here is the appropriate legal standard when evaluating a claim of self-defense to
assault against a law enforcement officer performing official duties, where the officer was
detaining, but not arresting, the defendant. We hold that the actual danger standard of WPIC
17.02.01 applies and, thus, the trial court did not err by so instructing the jury.
An arrestee is not justified in the use of force against an arresting officer unless the
arrestee was in actual danger of serious injury from the officer’s excessive use of force. State v.
Holeman, 103 Wn.2d 426, 430-31, 693 P.2d 89 (1985). The actual danger standard of WPIC
17.02.01 also applies to the use of force against law enforcement officers that are merely
detaining, and not arresting, the defendant. State v. Bradley, 141 Wn.2d 731, 743, 10 P.3d 358
(2000); State v. Ross, 71 Wn. App. 837, 842-43, 863 P.2d 102 (1993). It is the fact of a law
enforcement officer’s performance of official duties, and not the officer’s specific act of arresting
the defendant, that triggers the actual danger standard for evaluating self-defense claims.
Therefore, the trial court properly rejected Pierre’s proposed self-defense instructions, which
instructions relied on the reasonable belief standard, and properly instructed the jury under WPIC
17.02.01.

No. 46008-4-II
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III. TO-CONVICT JURY INSTRUCTION
In our original opinion in Pierre, noted at 188 Wn. App. 1005 (unpublished), remanded,
184 Wn.2d 1009, we held that the trial court erred by giving a harassment to-convict jury
instruction that omitted an essential element of the offense. Our Supreme Court’s order
remanding this matter for reconsideration in light of Love does not affect this analysis.
Accordingly, we reverse Pierre’s harassment conviction and remand for a new trial on that
charge. We affirm his remaining convictions for the reasons set forth above.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Maxa, A.C.J.
Lee, J.