(June 2018 WSB photo by Christopher Boffoli)

The King County Prosecuting Attorney’s Office says it’s not filing charges “at this time” against 25-year-old Nickolas Osborne, arrested Monday in connection with the June 2018 Alki Avenue stabbing death of 28-year-old Jonathan Pecina. Here’s the KCPAO’s statement:

We appreciate that Seattle Police Department has worked hard on this investigation, taking extraordinary measures to identify the previously unknown participant in this fatal encounter. Since that arrest and over the past several days, this office has made a thorough review of available evidence trying to determine whether the state could disprove a claim of self-defense beyond a reasonable doubt, as required by law. At this time we have concluded that we cannot file a charge.

A lengthy memo provided with the statement concludes in part:

In this case, the suspect has a plausible claim of self-defense. Even though Osborne disavows any memory of the incident, the evidence from independent, unconnected witnesses is that he was surrounded, taunted and baited by two men; that the men “kept pushing him and pushing him for a fight”; that the men were both using their belts as weapons; that they were assaulting Osborne with their belts, so much so that a witness commented “the guy is pretty tough because he’s taking some pretty good whacks”; that the assault went on for a while until Osborne “finally took a blow at them”; and that there was no doubt that the two men were the aggressors.

We’ll add the rest of the memo text once the names of witnesses can be redacted.

ADDED 4:27 PM: Below is the text of the KCPAO memo, with witnesses’ names redacted. Be aware that there are some graphic descriptions of the stabbing scene.

Just after 10:00 PM on 6/2/18, SPD received a call of a stabbing in the 1100 block of Alki Avenue SW, in Seattle. The victim, Jonathon Pecina, was found with a single gaping stab wound on the left side of his neck. Pecina died at the scene. The person who stabbed him disappeared into the night.

The subsequent investigation determined that the victim and three friends … drove down early that afternoon from Everett to hang out on Alki. The victim and (one friend) went off to find some girls, while (the other two) stayed behind. (One of those two) wasn’t feeling well, so he was sitting on a public bench near the boat launch while (the other) kept him company. Eventually, (friend 2) told (friend 3) that he wanted to take off and asked him to find the victim and (friend 1). A few minutes later (friend 3) and (friend 1) came running back to (friend 2), (friend 1) exclaiming that the victim had been stabbed by a Donald Trump supporter. (friend 2) thought he was joking at first, but all three then fled the scene. The victim’s body was found a short distance away, on the north side of Alki Ave SW. A baseball cap and knife sheath were found on the south side of the street, approximately 50 yards to the west. A significant blood trail led from that location to the body.

(friend 2) and (friend 3) were quickly located ((friend 1) did not come forward even though he subsequently admitted that he remained at the scene and observed SPD patrol cars arriving) and were cooperative. Both recounted the narrative immediately above, but neither saw the assault and neither knew where (friend 1) was.

In the meantime, Detective Takemoto interviewed two witnesses, a married couple who live in a nearby condo. They reported seeing two Hispanic males [presumably the victim and (friend 1)] in an altercation with a single white male. Our initial understanding from the couple was somewhat incomplete, that the Hispanic males had surrounded the white male and were verbally baiting him and removing their belts. At one point, the white male swung his arm out and one of the Hispanic males went down.

Video was recovered from one of the nearby condos some distance away. It is inconclusive as to the sequence of events, but appears to confirm two men confronting a third, the two men removing something from their waistbands and the third man swinging his arm at the other two. After one of the two men goes down, the third man flees. In the video, the male who went down is helped to his feet by his apparent companion, who then attempts to walk him across the street. At one point they pass in front of a car, forcing it to stop, before proceeding across the street to the area where the victim’s body was eventually found.

Later that evening, three teenagers came forward and reported that they were driving on Alki eastbound in a BMW when they were forced to stop by a young man crossing the street, dragging a second man while holding him in a headlock. Both men appeared to be Hispanic. The second man was in distress and holding his hand to his neck. He appeared to be asking for help as the person who held him in the headlock was forcing him across the street. The front passenger in the car saw a handgun in the waistband of the guy holding the other man: “I saw the gun. It was a black gun and I saw the butt of the gun. Told my friend to drive away and he had the gun fully pulled out.” As the man who was dragging the other man moved toward the car and appeared about to draw the gun, the driver sped away at the urging of his friends. They were five yards away when the passenger looked back and saw the gun fully out, pointed towards the car as they drove away. All three teenagers thought that the man with the gun might be attempting to carjack them. The teenagers also mentioned that on the way downtown to SPD they noticed blood on the front of their car.

Sure enough, there was a significant amount of blood on the hood and front left quarter panel; all of the blood appeared to be the result of high velocity spurting, rather than contact transfer. It also shows how close the victim and (friend 1) were to the car when the latter attempted to stop it.

At first blush, it appeared that whoever stabbed the victim then tried to drag him across Alki for reasons unknown. It then occurred to all involved that perhaps the man dragging the victim was not the assailant, but (friend 1) attempting to get aid for the victim, and that the menacing with the gun may have been part of an effort to get the victim to the hospital.

The search for the person who stabbed the victim continued but met with little success. However, (friend 1) was eventually located and interviewed on 6/8/18, six days after the incident. He was, to put it mildly, uncooperative and only minimally conversational. He would not name the friends who were with him and the victim that night. He said that he and the victim had gone for a walk, looking for girls. They came across “some racist-ass motherf—er” who was saying “some racist sh-t.” The guy was saying he hates Mexicans. The victim and (friend 1) were going to walk off, but the guy kept talking and they got mad. They immediately knew he was a “Trump supporter” because he was racist, although (friend 1) does not recall the details of what he said. He was asked directly if the guy threatened them and (friend 1) shook his head “No.” He could not describe the guy other than to say he was a “typical white guy.” (friend 1) claimed that never took off his belt, but that the victim did, to protect himself. As noted above, (friend 1) was on-scene when the police arrived but did not come forward. He was asked if he had a gun that night and answered “No.”

Detectives Cruise and Mooney worked extremely hard to locate the killer, including broadcasting a direct appeal to the public. Last week they got a DNA hit on the sheath left at the scene. It came back to Nickolas Osborne … Osborne appears to be mentally unstable and to have a severe drinking problem. A criminal history check shows that Osborne has a number of convictions and contacts with law enforcement in which racial animosity appears to be a common theme. His history includes the following:

• 3/24/18 (three months before the incident): Malicious Mischief 1 for attempting to light a patrol car on fire after he was arrested for menacing people with a stick at Lincoln Park. He made statements about the “Illuminati” being out to get him.

• 6/8/18 (six days after the incident): Felony Harassment; Osborne used a knife to threaten a Hispanic male at a gym, muttering about the Illuminati, FBI, and MS13.

• 6/23/19: another incident with racial overtones on Alki Avenue SW and 61st Avenue SW, although it appears that Osborne was the victim here. Officers responded to a possible shooting call. When they arrived, Osborne was detained and was armed with a knife. A witness to the incident reported that Osborne had been engaged in a physical fight with four Hispanic males who had fled scene after one of them shot him with a BB gun. Witnesses reported that Osborne was chasing a Hispanic male with a knife. Osborne was found to be in possession of a knife at the time. During Osborne’s interaction with investigating officers, he said he was shot at by “border jumpers” and “f—ing Mexicans.”

Osborne was located and arrested late Monday afternoon, 7/1/19. He was cooperative and was interviewed by detectives Cruise and Mooney at SPD Headquarters. He said that he is homeless and lives on the streets, and typically sleeps in the area of the lighthouse at the west end of Alki in West Seattle. He stated that he drinks (wine only) and does not use drugs. He denied any knowledge of the stabbing of Jonathan Pecina.

It was the impression of all present (myself included) that Osborne is a severe alcoholic who sincerely does not recall the incident. Based upon his demeanor, his account of life on the streets and his alcohol history, it is entirely plausible that the fight with Pecina was something that he truly may not recall. Osborne’s day-to-day existence seems to be marked by confrontation and violence, and he may not recall the events of 6/2/18 as particularly noteworthy, especially if he left the scene immediately after the victim was stabbed. He may not even know the victim died.

(friend 1) was re-contacted three days ago, on Tuesday, 7/2/19, the day following the arrest of Osborne. He was in the Snohomish County Jail. He refused to cooperate. “Off the record,” he again denied having a gun and said that if someone saw him messing with his waistband, he was trying to get his bandanna.

Discussion

This case was LODI’d on Tuesday, 7/2/19, the morning following the interview of Osborne, despite cautions from the Prosecutor’s Office that the suspect, no matter how vile his political beliefs and criminal history, may have a strong self-defense claim. This preliminary assessment was also the consensus among the investigators and prosecutor at the time of the incident in June 2018, particularly after the young men in the BMW were interviewed that same night.

The case file was delivered to the Prosecutor’s Office the following day, 7/3/19. A review of the case file appears to strengthen, rather than weaken, the suspect’s potential self-defense claim. In addition to the statements of the young men in the BMW, the full account provided by married couple who live in a nearby condo provides compelling evidence of self-defense. That account includes the following:

• (p. 1) There were two aggressors (Hispanic males), and one person who was not an aggressor. That third person, a blond male, was “just seemingly being taunted and picked on.”

• (p. 2) The Hispanic males were part of a larger group a half-block east.

• (p. 2) The witness thought the Hispanic males were going to let the guy go because he started to walk away, but they “said more stuff and screaming at him.”

• (p. 3) The white male walked over and put his satchel down and then said “Okay, let’s get it on” because the Hispanic males “just kept pushing him and pushing him for apparently some kind of fight.”

• (p. 3) The Hispanic males both pulled off belts (at least one had what the witness described as a “huge” buckle) and were swinging them.

• (p. 4) The Hispanic males were “thumping him with these belts. . . . [H]e was taking some pretty good blows. . . . I’m thinking the guy is pretty tough because he’s taking some pretty good whacks.”

• (p. 4) It was only after this went on for a while that the white male “finally took a blow at them.”

• (p. 9) “They were awfully confrontational toward him. . . . [T]hey were most certainly the aggressors.”

• (p. 9) The belts the Hispanic males used “were not just belts; they were weapons. . . . They were four inches in diameter.”

• (p. 9) The Hispanic males “were most certainly the aggressors.”

In addition, the C.I.R. received on 7/3/19 contains the following entry for 6/3/18, at 1535 hours:

[A] man approached Detectives and wanted to provide information. He said he did not want to identify himself. He said last night for several hours there were four Hispanic males seated on the benches opposite 1238 Alki Ave SW. He said they appeared to be “up to no good.” He said he watched them for some period of time and it appeared one of them may have been concealing an object, possibly a handgun in the front of his pants.

Based upon the available evidence, we cannot in good faith find that homicide charges are warranted at this time. In order to successfully pursue a homicide charge, the State would be required to prove beyond a reasonable doubt that Osborne, despite having vile political beliefs and criminal history, did not act in self- defense. Under Washington law, a person may use force against another when the person reasonably believes that he or another person is about to be injured and when the force is not more than is necessary. RCW 9A.16.020(3). 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. State v. Walden, 131 Wn. 2d 469, 474, 932 P.2d 1237 (1997). Under the subjective aspect of the inquiry, the jury places itself in the defendant’s shoes and views the defendant’s acts in light of all the facts and circumstances known to the defendant. State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993). Under the objective aspect of the inquiry, the jury considers what a reasonable person in the defendant’s situation would have done. Id. The imminent threat of great bodily harm does not actually have to be present, so long as a reasonable person in the defendant’s situation could have believed that such threat was present. State v. LeFaber, 128 Wn.2d 896, 899-900, 913 P.2d 369 (1996).

In this case, the suspect has a plausible claim of self-defense. Even though Osborne disavows any memory of the incident, the evidence from independent, unconnected witnesses is that he was surrounded, taunted and baited by two men; that the men “kept pushing him and pushing him for a fight”; that the men were both using their belts as weapons; that they were assaulting Osborne with their belts, so much so that a witness commented “the guy is pretty tough because he’s taking some pretty good whacks”; that the assault went on for a while until Osborne “finally took a blow at them”; and that there was no doubt that the two men were the aggressors.

In addition to all this, any prosecution would be undercut by (friend 1)’s claim that he was unarmed, which is in direct contradiction of the young men in the BMW and the citizen referenced in the C.I.R. entry for 6/3/18, at 1535 hours. If (friend 1) was armed, it would simply enhance a claim of self-defense at trial that Osborne was being beaten by two men with belts, one of whom was armed. More important, it appears that as recently as three days ago (friend 1) will not cooperate in a prosecution.

Finally, the fact that Osborne did not claim self-defense when he was interviewed on 7/1/19 does not undercut a potential claim of self-defense.

At this point, given all the facts and circumstances, a reasonable jury would be justified in finding that Osborne acted in self-defense.