Opinion
No. 35490-0-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00023-4, Toni A. Sheldon, J., entered October 9, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Penoyar, JJ.
Jason Lee Frazier appeals his conviction of second degree assault. We affirm.
This case involves incidents implicating Frazier and Luther Maners on November 26, 2005. Both Maner and Frazier convey different versions of the events of that day.
According to Maners, he drove his truck to Ken Swanlund's property on November 26. He spoke to Swanlund in Swanlund's front yard for approximately 20-30 minutes, during which time Frazier and Aaron Martin came out from behind a trailer. He maintains that Frazier was "thumping" a baseball bat in his hand and told Maners, it was for him. 2 RP at 104. When Maners inquired as to why the bat was for him, Swanlund told him to shut up and Frazier said he was going to "F-ing kill" him. 2 RP at 104, 107. Maners believed that Swanlund, Martin, and Frazier were attempting to corner him. Although he initially thought of fighting the three men, Maners "figured [his] odds were gone" when he noticed Martin was holding a handgun. 2 RP at 111. Thereafter, Maners purposely backed up toward his truck. As he turned to get into the driver's side of the vehicle, someone struck him in the back of the head. Maners then somehow made it into his truck and drove to Pamela and David Shafer's home, where he was temporarily residing. Once he made it to the Shafers, they called for an ambulance, which arrived about 10 to 15 minutes later.
Frazier, however, conveys a different story. According to him, Maners offered to sell Swanlund some property, which was previously and allegedly stolen from Frazier's home. Swanlund informed Frazier and they arranged for Maners to come to Swanlund's property. Unbeknownst to Maners, Frazier was also on the property during this meeting. Frazier maintains that the two men had a verbal altercation, before he recovered his property from Maners. According to Frazier, Maners left the property thereafter.
Frazier then jogged down the street to his home. Martin was following some distance behind him. As Frazier reached his property, Maners jumped out of some bushes, holding a four-inch buck knife. Frazier then grabbed a Maglite flashlight, which he always carried in his jacket, and backhanded Maners in an attempt to protect himself. Frazier ran toward his house, where he saw his wife and three kids in the driveway. Aaron Martin was still following him. When both Frazier and Martin got closer to the house, they jumped into Frazier's 1978 Grand Prix with his wife and daughters and drove away.
Despite the disputed details, it is undisputed that Maners emerged from the incident with a gash on the back of his head. Maners suffered a mild concussion and required eight stitches to close his wound. An ambulance picked him up at the Shafers' home and transported him to the hospital.
Deputy William Philpott of the Mason County Sheriff's Office investigated the incident. He went back to Swanlund's property, per Maners' statement, to investigate the incident. But Deputy Philpott found no blood at the scene. In fact, he found no physical evidence of the altercation aside from the gash on the back of Maners' head. Nor did he find any evidence of the alleged knife, gun, baseball bat, or Maglite flashlight.
The State charged Frazier with second degree assault and felony harassment. After a lengthy trial in Mason County Superior Court, a jury found Frazier guilty of second degree assault but not guilty of felony harassment. Frazier timely appeals.
Frazier alleges that his counsel was ineffective for not objecting to an allegedly defective self-defense instruction. The State responds that the self-defense instructions were proper and even if they were improper, the error was harmless. Moreover, the State argues that Frazier was not prejudiced by his attorney's performance at trial. We agree with the State.
Standard of Review Effective Assistance of Counsel
While the invited error doctrine generally forecloses review of instructional errors, it does not foreclose review of a claim of ineffective assistance of counsel based on such instructions. State v. Studd, 137 Wn.2d 533, 550-51, 973 P.2d 1049 (1999).
To establish ineffective assistance of counsel, Frazier must show that: (1) his counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). He must overcome the strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. In general, we will not find counsel's performance deficient when he requests an instruction based on a pattern instruction that courts have repeatedly and unanimously approved. State v. Summers, 107 Wn. App. 373, 383, 28 P.3d 780 (2001) , amended on recons., 43 P.3d 526 (2002). And to show prejudice, he must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335.
Self-Defense Instructions
We review challenged jury instructions de novo, examining the effect of a particular phrase in an instruction by considering the instructions as a whole and reading the challenged portions in the context of all the instructions given. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). "Jury instructions are `sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.'" State v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005) (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). "Read as a whole, the jury instructions must make the relevant legal standard manifestly apparent to the average juror." State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). "A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial." State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).
Self-defense jury instructions must "more than adequately" inform the jury of the law on self-defense in order to pass appellate scrutiny. Walden, 131 Wn.2d at 473. Self-defense requires only a "subjective, reasonable belief of imminent harm from the victim." LeFaber, 128 Wn.2d at 899. The jury need not find actual imminent harm. LeFaber, 128 Wn.2d at 899. Rather, the self-defense instructions should allow the jury to put themselves in the defendant's shoes and from that perspective, determine the "reasonableness from all the surrounding facts and circumstances as they appeared to the defendant." LeFaber, 128 Wn.2d at 900.
Here, Frazier's counsel proposed, and the trial court submitted to the jury, the following self-defense instruction 12, based on 11 Washington Pattern Jury Instructions: Criminal 17.02, at 196-98 (2d ed. 1994) (WPIC):
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 and when the force is not more than is necessary.
The person using the force may employ such force and means as a reasonable 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 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.
CP at 43, 55.
In addition, the jury considered the following "act on appearance" instruction 13 based on 11 WPIC 17.04, at 203-04:
The record is unclear as to whether the State proposed jury instructions 13 and 14, or the trial court included them sua sponte.
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 44 (emphasis added). Although Frazier's counsel did not propose this instruction, he failed to object to it. Similarly, Frazier's counsel failed to object to jury instruction 14, defining "great bodily harm:"
Great bodily harm means bodily injury that creates a probability of death, or that causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
CP at 45; see also WPIC 2.04.
Frazier agrees that the self-defense instruction 12 was a correct and accurate statement of the law. But he argues that the court grossly misstated the law on self-defense in instructions 13 and 14 because they required the jury to find that he believed he was in actual danger of "great bodily harm" rather than lawful bodily injury. Br. of Appellant at 6. To support his argument, Frazier relies on State v. Woods, 138 Wn. App. 191, 156 P.3d 309 (2007).
In Woods, the State charged the defendant with third degree assault after an incident where he stabbed the victim in the shoulder, resulting in a wound requiring three stitches. Woods, 138 Wn. App. at 195. The defense theory, supported by witnesses, was that the victim was the initial aggressor who first struck the defendant in the hand with a hammer over an altercation involving money. Woods, 138 Wn. App. at 195. Division Three of this court held that the defendant's attorney was ineffective for proposing a self-defense instruction based on WPIC 17.04. Woods, 138 Wn. App. at 201-02. It reasoned that the jury could have found the defendant reasonably believed that the victim was going to injure him, even if he did not expect great bodily harm. Woods, 138 Wn. App. at 201.
In rendering its decision, the Woods court relied on State v. L.B., 132 Wn. App. 948, 135 P.3d 508 (2006). L.B. involved a juvenile defendant charged with fourth degree assault. The defense theory was that the defendant responded to an alleged verbal threat by striking the victim in the jaw with his fist. L.B., 132 Wn. App. at 950-51. The L.B. trial court noted that WPIC 17.04 permits a defendant to act in self-defense if he had a reasonable belief that he was in danger of great bodily harm. L.B., 132 Wn. App. at 951. On appeal, Division One held that WPIC 17.04 was not an accurate statement of the law:
According to the plain language of RCW 9A.16.020(3), a person has a right to use force to defend himself against danger of injury, "in case the force is not more than is necessary." The term "great bodily harm" places too high of a standard for one who tries to defend himself against a danger less than great bodily harm but that still threatens injury. Where the defendant raises a defense of self-defense for use of nondeadly force, WPIC 17.04 is not an accurate statement of the law because it impermissibly restricts the jury from considering whether the defendant reasonably believed the battery at issue would result in mere injury.
L.B., 132 Wn. App. at 953 (emphasis added).
Likewise, in State v. Walden, 131 Wn.2d 469, the Washington Supreme Court held that deadly force can only be used in self-defense against an unarmed victim if the defendant is threatened with death or great personal injury. Walden, 131 Wn.2d at 481-82. And again, in Walden, the defense did not allege that the victims confronted the defendant with a deadly weapon. Rather, Walden's defense theory was that he produced a knife to scare off the unarmed teens with which he had a previous verbal altercation. Walden, 131 Wn.2d at 471-72.
But this case is distinguishable. In Walden, L.B., and Woods, the defense theory did not involve self-defense against deadly force. In other words, the defense in all three cases did not claim that the victims possessed deadly weapons or exerted deadly force.
In this case, however, Frazier's defense theory was that he struck Maners on the back of the head with his Maglite only after Maners unexpectedly lunged at him with a four-inch buck knife. Moreover, Maners testified that Frazier struck him with a baseball bat, that Martin had a handgun, and that Frazier, Martin and Swanlund tried to corner him. Under either fact pattern, deadly force was at issue. See State v. Clarke, 61 Wn.2d 138, 142, 377 P.2d 449 (1962) (deadly force is force "capable of, and entails great risk of, killing"). As such, there was ample evidence that Frazier struck Maners because he reasonably believed he had to protect himself from deadly harm. Therefore, Walden, L.B., and Woods are inapposite.
Based on the defense theory that Frazier believed the victim was armed with a knife and threatening to cause great bodily harm, there was no possibility that a jury could have reached a different conclusion, even with proper self-defense instructions. Thus we hold that the error, if any, was harmless and there was no prejudice to Frazier in instructions 13 and 14 under the facts presented. There was no ineffective assistance based on their use at trial.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and PENOYAR, J. concur.