Opinion
No. 59713-2-I.
September 15, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-08823-9, James D. Cayce, J., entered March 12, 2007.
To establish the affirmative defense of duress, a defendant must have an actual and reasonable belief of imminent danger of death or serious bodily harm. While a defendant need not admit to committing the crime(s) as charged and may present alternative, even competing and logically inconsistent theories of the case in his defense, the defendant must admit to the underlying conduct he claims he would not have engaged in but for the duress. Here, because Shawn Herod denies he performed substantial portions of the underlying conduct of his crimes as charged, he has failed to present evidence sufficient to establish and is precluded from asserting duress. Thus, we affirm.
FACTS
After losing his job as a commercial roofer, Herod struggled financially and suffered from intense chronic back pain. Herod accepted temporary employment power washing the deck of a five bedroom house in Kent. The person Herod believed to be the homeowner told Herod he could stay in the house while working on the power washing job and Herod took advantage of the offer and slept there several nights. The purported homeowner never returned.
Robert Cal Adams was a drug dealer in the Auburn-Kent area. Adams, and several of his associates, regularly came by the house, and when Herod inquired of Adams how he might seek payment, Adams simply laughed. When Herod tried to leave, Adams and his associates refused, physically restraining him and taking his truck keys.
During 2003 and 2004, Adams was under investigation by the United States Drug Enforcement Administration (DEA) and the Auburn Police Department's special investigations unit for illegal drug related activities. By the close of the DEA investigation in May 2004, nine men, including Herod, had been identified as working for Adams and were eventually charged (along with Adams) with numerous drug related counts.
Adams and his men were well known for violence. Herod describes himself as being their prisoner for several months. Herod was regularly beaten and threatened with acts of even greater violence, including the killing of family members should he try to escape.
Herod's convictions stem from two controlled drug buys arranged by investigators using local informants. Herod was identified by an informant witness as having helped sell $250 worth of crack cocaine from a van in a parking lot on January 23, 2004. And on February 18, 2004, a different informant witness purchased cocaine at the Kent house, testifying Herod led her into the kitchen where he weighed and bagged the cocaine in exchange for her money. Herod admitted to being present during the latter transaction but disputes the informant's version of events.
A jury convicted Shawn Herod of two counts of delivery of a controlled substance (cocaine) and found by special verdict that one of the deliveries occurred within 1000 feet of a school bus stop in November 2006. On appeal, Herod argues the trial court erred by refusing to instruct the jury on the affirmative defense of duress. Herod also assigns error to the trial court's jury instruction requiring unanimity for the school bus stop sentencing enhancement.
ANALYSIS
Duress Jury Instruction
Herod contends the trial court's refusal to give the jury an instruction on duress violated his constitutional right to present a full and complete defense. A defendant has the right to present his theory of the case to the jury. A defendant is only entitled to have the jury instructed as to an affirmative defense after offering sufficient admissible evidence to justify giving the instruction.
See U.S. Const. amend. VI, XIV; Wash. Const. art. I, §§ 3, 22; see generally Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 1731, 164 L. Ed. 2d 503 (2006); see also State v. Riker, 123 Wn.2d 351, 869 P.2d 43 (1994).
State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997).
Williams, 132 Wn.2d at 259-60; State v. Ginn, 128 Wn. App. 872, 878-79, 117 P.3d 1155 (2005), review den., 157 Wn.2d 1010 (2006).
Duress is defined in RCW 9A.16.060:
(1) In any prosecution for a crime, it is a defense that:
(a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury; and
(b) That such apprehension was reasonable upon the part of the actor; and
(c) That the actor would not have participated in the crime except for the duress involved.
(2) The defense of duress is not available if the crime charged is murder, manslaughter, or homicide by abuse.
(3) The defense of duress is not available if the actor intentionally or recklessly places himself or herself in a situation in which it is probable that he or she will be subject to duress.
In asserting a defense of duress, a defendant admits to committing illegal conduct (though not necessarily the crime charged), but is contending his conduct was excusable under the circumstances. The Supreme Court observed in State v. Riker, "[a] successful duress defense does not create a reasonable doubt that the defendant did the crime charged, but rather condones the defendant's admittedly unlawful conduct." This is not the same thing as the mitigation of a required element of the crime.
RCW 9A.16.060; see also State v. Russell, 47 Wn. App. 848, 853, 737 P.2d 698, review den., 108 Wn.2d 1032 (1987).
Riker, 123 Wn.2d at 368.
Here, even when viewed most favorably to Herod, the defense is not supported by the evidence. Thus, Herod was not entitled to a jury instruction on duress. Herod had two alternate theories of the case: (1) that the State had failed to present sufficient proof that he was guilty as charged, and (2) to the extent that Herod participated in the delivery of cocaine in either instance, he only did so because of duress. Herod is correct in his assertion that a defendant need not admit to committing the crime as charged to claim duress. However, a defendant must admit to the pertinent underlying conduct for which he claims duress. As the trial court observed, if the jury believed Herod's testimony and presentation of evidence, then they would have returned a not guilty verdict.
See, e.g., Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988) (holding that even when a defendant denies one or more elements of the crime, he is entitled to an entrapment instruction when there is sufficient evidence from which a reasonable jury could find entrapment proven beyond a reasonable doubt).
Moreover, Herod has failed to show any connection between the violence and the two illegal drug transactions. Herod cannot simultaneously deny participation in the crimes charged and claim his participation in the crimes (or their underlying conduct) was the result of his reasonable fear of imminent death or bodily harm. While it is permissible for a defendant to raise inconsistent defenses, each one must still be supported by evidence before a jury instruction on the defense is proper. We affirm the trial court's refusal to give Herod's proposed jury instruction on duress. Jury Instruction Requiring Unanimity for School Bus Stop Enhancement
State v. Frost, 160 Wn.2d 765, 161 P.3d 361 (2007).
Herod also assigns error to the trial court's jury instruction regarding the special verdict for a sentence enhancement on the second count. In pertinent part, Jury Instruction 13 stated:
Since this is a criminal case, all twelve of you must agree on the answer to the special verdict. If you find from the evidence that the state has proved beyond a reasonable doubt that the defendant delivered the controlled substance within one thousand feet of a school bus route stop designated by a school district, it will be your duty to answer the special verdict "yes".
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt that the defendant delivered the controlled substance within one thousand feet of a school bus route stop designated by a school district, it will be your duty to answer the special verdict "no".
This instruction was error as unanimity is required only for a jury to enter a finding of "yes" and requires only one or more votes of "no" in order to answer no. Absent a jury's unanimous vote in the affirmative, the answer should always be "no," regardless of the final vote tally.
State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003); but see State v. Bashaw, 144 Wn. App. 196, 182 P.3d 451 (2008) (Division Three recently came to a different conclusion and upheld a jury instruction stating that unanimity was required to return either a "yes" or "no" decision on a special verdict for a school zone enhancement.).
Here, however, Herod has failed to demonstrate any prejudice. The jury was unanimous in voting "yes" on the school zone enhancement. Unlike in State v. Goldberg, upon which Herod relies heavily, the jury returned a unanimous verdict without first coming to a split vote that led the trial court to improperly direct the jury to continue deliberations in order to reach a unanimous decision.
Goldberg, 149 Wn.2d 888.
A harmless error analysis is appropriate where the error affects the process of the trial but not its fundamental structure or framework.
See Frost, 160 Wn.2d at 779-83 (providing comprehensive discussion of when a harmless error analysis is appropriate).
Because Herod received a unanimous jury verdict as guaranteed by Washington's Constitution, Herod has failed to show he suffered from any actual harm as a result of Jury Instruction 13.
The trial court is affirmed.