Tacoma murder conviction overturned in fatal shooting. Here’s what appellate court said

A man accused in a fatal shooting behind a Tacoma apartment had his murder conviction overturned last week after an appeals court found that the jury was given a flawed instruction at the close of his trial.

In an opinion authored by Judge Bradley Maxa, a three-judge panel of Division II of the Washington State Court of Appeals ordered a new trial for Germi Zeigler. Zeigler had been convicted of second-degree murder in the March 11, 2020, killing of 37-year-old Ozelle Tyrece Tate.

Zeigler was sentenced to 25 years in prison in January 2022. According to the state Department of Corrections, he remains incarcerated at the Stafford Creek Corrections Center near Aberdeen.

In his trial, presided over by Superior Court Judge Susan Adams, jurors were given instructions on self defense and first aggressor, the latter of which, according to the opinion, stated that if Zeigler’s acts and conduct provoked the fight that created the need to defend himself, then self defense was not an available defense.

Zeigler, 32, and his court-appointed attorney for the appeals process, Kevin A. March, successfully argued that the first aggressor instruction should have included a statement that words alone cannot make a defendant the first aggressor.

Prosecutors contended that the additional sentence was unnecessary because no reasonable juror could find that words alone provoked Tate, but the panel of judges disagreed.

“The words Zeigler used were a significant portion of the altercation with Tate,” Maxa wrote. “Even though we conclude above that some conduct also was involved, a reasonable juror could find that it was the words alone that constituted the first aggression.”

“We hold that the trial court erred in giving the first aggressor jury instruction without also instructing the jury that words alone are not adequate provocation to make a defendant the first aggressor in an altercation,” the opinion states.

The Pierce County Prosecuting Attorney’s Office will not be asking the state Supreme Court to review the appeals court’s decision, a spokesperson told The News Tribune.

“Our efforts will be focused on trying this case,” spokesperson Adam Faber said in an email.

In regard to the instructional error, Faber said the defense did not raise an issue with the language of the first aggressor instruction at trial. He said an appellant would ordinarily be precluded from raising any claim of error on appeal under the Rules of Appellate Procedure 2.5. Had they raised the issue, Faber said, the trial court could have evaluated the evidence and listened to arguments to determine if the instruction should be modified.

Faber said in this case the appeals court exercised its discretion to determine the issue on the merits despite the issue not being raised in the trial court.

The shooting occurred during an argument between Zeigler and Tate in Court G, an alley between South 15th and 16th streets in Tacoma’s Hilltop neighborhood. In the appeals court’s recounting of the incident, Tate was sitting in the passenger’s seat of a car when Zeigler, who had an issue with the other man, walked up to him while holding a gun in his hoodie pocket.

Zeigler stood over Tate, less than a foot away, and yelled, “I’m a real gangster,” and, “You’ve been disrespecting me,” several times. Tate’s girlfriend later said Zeigler was acting aggressive, and he was foaming at the mouth. Tate said he didn’t have a problem and told Zeigler to back up, according to the girlfriend’s testimony. Tate had his hands up at one point, he was shaking, and he looked scared.

Zeigler claimed it looked like Tate was reaching for a gun, so he instinctively fired two shots at Tate. A witness testified that Zeigler then ran back to his car and drove off. He fled the state and was later arrested in Macon, Georgia .

A Tacoma Police Department officer found Tate lying on the ground with a gunshot wound to his upper leg, according to charging papers. Tate was transported to a hospital, where he died of blood loss.

March, an attorney for Seattle law firm Nielsen Koch & Grannis, said he appreciated that the decision recognized the instructional error, and he hopes Pierce County can provide Zeigler with a fair trial. He was also glad to see that the opinion pointed out flaws in the state’s presentation of the case.

“I appreciate that the court of appeals recognized that the state falsely represented what the evidence was,” March said.

Maxa wrote in the opinion that the prosecutor who delivered closing arguments made statements that were not supported by the record, including repeatedly saying Zeigler’s gun was visible before the shooting, that he was waving the firearm around during the verbal altercation, and that Tate told Zeigler, “There’s no need for a gun.” According to court records, closings were presented by deputy prosecuting attorney Kathleen Oliver.

In an analysis of the evidence that supported giving jurors the first aggressor instruction, Maxa wrote that the question at hand was whether Zeigler’s acts, as opposed to his words, provoked a need for self defense.

Prosecutors argued that the aggressive act was Zeigler pulling out the gun and aiming it at Tate before shooting him, according to the judge. In the facts section of their brief, prosecutors said Zeigler walked directly up to Tate, pulled out a gun and aimed it at him, trapping Tate in the car.

“The problem with the State’s argument is that its recitation of the evidence is not supported by the evidence,” Maxa wrote.

Prosecutors cited the testimony of two witnesses, but the panel of judges found that none of it came close to supporting the statement that Zeigler “pulled out a gun and aimed it at Tate.” Tate’s girlfriend testified that the shots happened so fast that she never saw the gun.

Faber said some of the language in prosecutors’ brief was not derived from testimony at trial but rather from argument, and the court commented that some of that argument should not have been made.

“In the brief, our office should have made the distinction between testimony and argument better and clearer,” Faber said.

Because the state misstated the record, Maxa wrote, the panel rejected the state’s argument that the aggressive act was Zeigler pulling out a gun and aiming it at Tate before shooting him.

The appeals court did find other evidence cited by prosecutors did sufficiently support a finding that Zeigler’s conduct and words were reasonably likely to provoke a belligerent response, so the trial court was right to give the first aggressor instruction, denying Zeigler’s alternative claim that the instruction should not have been given at all.

“Other than falsely claiming that Zeigler pointed a gun at Tate, the State argues that Zeigler engaged in aggressive actions before shooting Tate that constituted a course of aggressive conduct that culminated with the shooting with which he was charged,” Maxa wrote.