Opinion
No. 48019-7-I c/w 48078-2-I.
Filed: November 12, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 99-1-07341-6, Hon. Charles W. Mertel, February 2, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Oliver R. Davis, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David B. Koch, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Lee D. Yates, Senior Deputy Pros Attny, Pros Atty Offc, 1850 Key Tower, Seattle, WA 98104-2312.
A self-defense instruction that fails to clearly distinguish between defense against one who intends to commit a felony and defense against one who intends to inflict death or great personal injury improperly states the law. Thus, absent convincing evidence that the error was harmless beyond a reasonable doubt the convictions based upon lack of self-defense must be remanded for a new trial.
FACTS
Antonio Moreno was stabbed to death following a traffic altercation. Edgar and Sergio Anaya, who are brothers, were each charged with murder in the second degree with a deadly weapons enhancement. At trial, the jury heard two separate versions of how the stabbing occurred.
The first version was given by Blanca Moreno, Antonio Moreno's wife. Mrs. Moreno was a passenger in the Moreno vehicle on the day of the stabbing along with the Morenos' five daughters: Lupita (14 years old); Sandra (12 years old); Fabiola (11 years old); Juliana (5 years old); and Daisy (2 years old). Mrs. Moreno testified that they were leaving a party when a white Honda Civic automobile passed them and hit the Moreno's Chevrolet Suburban on the side. Mrs. Moreno testified that the two vehicles met again at a red light and that the Honda Civic automobile again hit and damaged their vehicle. Mr. Moreno pursued the vehicle in order to obtain insurance information from the driver. When the Honda stopped again, after hitting a pole, Mrs. Moreno testified that her husband approached the car nonaggressively and asked for insurance information. Edgar and Sergio Anaya then attacked Mr. Moreno without provocation, pushing and kicking him, although Moreno insisted he did not want to fight. Mrs. Moreno stated that one of the men stabbed Moreno with a knife as Moreno backed away and fell, despite the fact that both she and her husband pleaded with the two men to spare him. Lupita and Sandra confirmed this version of events. Two separate eyewitnesses, Richard Nava and Ruben Valdez, who saw the fight as they passed by, also confirmed this version of events. Both Nava and Valdez testified that one of the Anaya brothers pushed Moreno first, Moreno pushed back, and then he backed away and fell as both men attacked him. Mrs. Morena and Lupita tried to defend Moreno and Sandra begged the two men to leave her father alone. Valdez confirmed that two females tried to jump on the two younger men and tried to pull them away from the older man. Sandra testified that after the Anaya brothers pushed, punched, and stabbed her father, she thought her father reached for a utility tool on his belt which contained a knife.
At the scene, Edgar Anaya gave a second version of events to Detective Weklych. Edgar said that he, Sergio, and three friends were driving in their vehicle away from a party when another vehicle hit them as they passed it. Edgar said they stopped and tried to exchange insurance information, but Moreno only yelled at them so they left. Moreno pursued them in his vehicle and was able to pull in front of their vehicle when it was forced to stop because of a blown tire. Edgar stated that Sergio immediately got out. As Sergio and Moreno began to fight, Mrs. Moreno tried to separate them, telling Edgar that Moreno had been drinking. Edgar stated he stabbed Moreno in order to stop his attack on Sergio.
At trial, Edgar testified that he believed the occupants of the vehicle traveling behind the Chevrolet Suburban were persons he argued with at the party and he flashed his knife at them. He then thought the occupants of the Chevrolet Suburban were retaliating against his actions when that vehicle hit his vehicle. Edgar added that when his vehicle finally stopped, Moreno pulled Sergio out of the car, contradicting his statements to police officers at the scene. Edgar testified at trial that he stabbed Moreno only after he thought Moreno was going for a knife, although he did not tell police officers at the scene that he thought Moreno had a knife.
The three passengers in the Anaya vehicle, Irene Casas, Marie Martinez, and Jasmine Melter, testified that Sergio and Edgar were upset and cursing when they left the party and that Edgar had flashed his knife out the car window. Casas testified that Moreno did not appear angry when he approached their vehicle after it stopped the first time. However, Martinez and Melter testified otherwise. All three women testified that when their vehicle came to its second and final stop, Moreno pulled Sergio out of the car. Both Martinez and Melter testified that Moreno first argued with, then hit Sergio. Martinez also testified that at some point Edgar hit Moreno repeatedly, that Sergio kicked Moreno, and Edgar continued to stab Moreno after Moreno fell to the ground.
Forensic evidence could not conclusively establish which vehicle hit the other first. Forensic scientist Patrick Friel testified that Moreno's blood alcohol level was .11 percent at the time of the incident. Sergio pleaded self-defense and Edgar claimed that he stabbed Moreno to defend Sergio. Both Sergio and Edgar were convicted of the charge of murder in the second degree and sentenced within the standard range. Edgar and Sergio Anaya appeal the jury instructions on self-defense and defense of others. Both claim ineffective assistance of counsel based on their attorneys' failure to object to instructions, failure to propose alternate instructions, and proposal of first aggressor instruction. We review de novo whether the jury instructions accurately stated the law.
State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977).
DISCUSSION
Jury instruction 21, based substantially on Washington Pattern Instruction 16.02, provided that in order to find the Anaya brothers not guilty by reason of self-defense or defense of others, the Anayas must have reasonably believed that the deceased "intended to commit a felony to inflict death or great personal injury." This instruction was offered by the State and was different than the instruction offered by the Anayas in the omission of the word "or." The Anayas claim that WPIC 17.02 should have been given instead of WPIC 16.02, and alternatively that the instruction given was not an accurate statement of the law of self-defense pursuant to RCW 9A.16.050(1). We resolve and remand this case based on the erroneous language of the given jury instruction.
11 WASHINGTON PATTERN INSTRUCTION: CRIMINAL 16.02, at 176 (2d ed. 1994) (WPIC).
RCW 9A.16.050 provides that homicide is justifiable when the slayer reasonably believes the person slain intended "to commit a felony or to do some great personal injury to the slayer . . . ." The Anayas' proposed instructions provided the "or" language, but the State's and the court's instructions did not. Because the degree of great personal injury perceived to justify self-defense or defense of others need not be greater than an ordinary battery, the language "to commit a felony to inflict death or great bodily harm" misstated the law of justifiable homicide.
RCW 9A.16.050(1) (emphasis added).
State v. Walden, 131 Wn.2d 469, 475, 478-79, 932 P.2d 1237 (1997); State v. Riley, 137 Wn.2d 904, 912 n. 4, 976 P.2d 624 (1999).
A self-defense instruction that misstates the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial, and thus may be raised for the first time on appeal. Further, defendants here did not invite the error since their proposed instruction was fundamentally different than the given instruction; it included the conjunction "or" between phrases. The given instruction was a misstatement of the law of self-defense, while the defendants' proposed instruction correctly reflected the standard of RCW 9A.16.050. Where an instructional error misstates the law, the defendant is entitled to a new trial unless it affirmatively appears that the error was harmless beyond a reasonable doubt. Although we are extremely reluctant to reverse, we are not convinced that the error here was harmless beyond a reasonable doubt.
Walden, 131 Wn.2d at 478 (citing State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996)).
Walden, 131 Wn.2d at 478 (citing Wanrow, 88 Wn.2d at 239, and State v. Caldwell, 94 Wn.2d 614, 618, 618 P.2d 508 (1980)).
The State argues that the error was harmless because an intent to "inflict death or great bodily injury" by fists or a weapon would have been an intent to commit a felony. However, the jury instructions given did not define the term "felony," and the jury was not instructed that intent to inflict death or great bodily injury was a felony. The instructions subsumed the language "intent to commit a felony" into the other intent language of WPIC 16.02, "to inflict death or great bodily harm." The jury instructions as a whole did not make the law of self-defense manifestly clear to the average juror. Thus, the error was not harmless beyond a reasonable doubt and remand for a new trial is required.
Instruction 14 merely defined second degree assault and did not illustrate that an assault by fists that was intended to result in death or great bodily injury would have been a felony.
State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984) (citing State v. Painter, 27 Wn. App. 708, 713, 620 P.2d 1001 (1980)).
We need not reach other claims of ineffective assistance of counsel, but we will comment on the Anayas' claim that WPIC 17.02, rather than WPIC 16.02 was applicable here. It is clear that WPIC 16.02 is not the wrong instruction in homicide cases. WPIC 16.02 outlines the defense of justifiable homicide and the instruction is proper when the crime charged requires the State, as here, to prove the mental state necessary for homicide or attempted homicide. WPIC 17.02 defines justifiable acts of force, not justifiable homicide. Although case law indicates that WPIC 17.02 may be used where there is a claim of self-defense to the underlying assault in a second degree murder case based on second degree assault, it is clear that WPIC 16.02 is an appropriate instruction in homicide cases. Further, neither of the defendants here requested or argued the applicability of WPIC 17.02 or objected to the failure of the court to give such an instruction. Perhaps the defendants' attorneys should have made the argument that WPIC 17.02, rather than WPIC 16.02, was applicable to the facts and charges here. However, we cannot say that the failure to do so was improper where use of WPIC 16.02 was highly appropriate. Whether WPIC 17.02 is applicable on these facts can be argued by defendants and determined by the trial court on remand.
State v. Cowen, 87 Wn. App. 45, 53, 939 P.2d 1249 (1997); see WPIC 16.02, note on use at 176 ("Use this instruction in any homicide case in which this defense is an issue supported by the evidence."); RCW 9A.16.050(1).
Cowen, 87 Wn. App. at 53.
State v. Goodrich, 72 Wn. App. 71, 73-74, 77, 863 P.2d 599 (1993); Cowen, 87 Wn. App. at 53; see WPIC 17.02, note on use at 55 (2d ed. Supp. 1998) ("Use this instruction for any charge other than homicide, or attempted homicide. If homicide is involved, use WPIC 16.02[.]").
Finally, Edgar has filed a pro se brief raising multiple supplemental claims. We believe that a new trial will resolve the issues he raises.
The convictions are reversed and this matter is remanded for a new trial.
BAKER and APPELWICK, JJ, concur.