Opinion
Nos. 25226-4-III, 26125-5-III.
April 10, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-00269-2, Cameron Mitchell, J., entered May 18, 2006, together with a petition for relief from personal restraint.
Judgment reversed and petition dismissed by unpublished opinion per Schultheis, C.J., concurred in by Brown, J., and Thompson, J. Pro Tem.
Donald Youngblood entered the Kennewick home of Anthony Gillen and shot two bullets through Mr. Gillen's floor. At trial on charges of first degree unlawful possession of a firearm, first degree assault, and first degree extortion, he claimed self-defense. The jury found him guilty of second degree assault.
On appeal, he contends his trial counsel proposed an erroneous jury instruction on the law of self-defense. He also challenges trial court decisions on the admissibility of evidence and asserts prosecutorial misconduct. His consolidated personal restraint petition alleges he was not allowed to attend critical stages of the proceedings.
Because we conclude that inconsistent and erroneous jury instructions on self-defense show ineffective assistance of counsel, we reverse. The personal restraint petition is therefore dismissed as moot.
Facts
Sometime in early 2004, Mr. Gillen made a videotape of two women engaging in a sex act. One of the women later decided she wanted the videotape or wanted it destroyed. Mr. Youngblood, who had known Mr. Gillen for 15 to 20 years and had been Mr. Gillen's Alcoholics Anonymous (AA) sponsor, decided to assist her. He and others met with Mr. Gillen on one or two occasions to demand return of the videotape and other items. Mr. Gillen never handed over the videotape, but promised to destroy it.
In early March 2004, Mr. Youngblood decided to contact Mr. Gillen again about the videotape. He entered Mr. Gillen's house uninvited. According to Mr. Gillen, Mr. Youngblood drew a handgun and waved it in Mr. Gillen's face, demanding the videotape and $20 owed to Mr. Youngblood's roommate. Mr. Youngblood ended the encounter by firing two shots into the floor and leaving.
Kennewick police officers later arrested Mr. Youngblood for assault. While he was in the county jail, he called a friend and told her he had contacted Mr. Gillen for "an AA talk." Report of Proceedings (Jan. 25, 2006) at 347. He admitted shooting the gun but explained that Mr. Gillen had come at him with a golf club. This conversation was recorded by jail officers and offered into evidence at trial.
In July 2004, the Benton County superior court ordered the appointment of experts to examine Mr. Youngblood and report on his mental condition. Dr. William Grant, a forensic psychiatrist at Eastern State Hospital, conducted an outpatient interview with Mr. Youngblood. During this interview, Mr. Youngblood told Dr. Grant that he went to Mr. Gillen's house to make Mr. Gillen confront his recent behavior. Mr. Youngblood also stated that he left his gun in the car during the encounter. Dr. Grant concluded that Mr. Youngblood was sane and had the capacity to commit the assault at the time of the incident.
Mr. Youngblood had been convicted of armed robbery in 1976. Because of his status as a felon, he was charged by second amended information with first degree unlawful possession of a firearm (RCW 9.41.040(1)(a)). Additionally, he was charged with first degree assault (RCW 9A.36.011(1)(a)), and first degree extortion (RCW 9A.56.110, .120). The unlawful possession of a firearm charge was dismissed on the first day of trial when defense counsel produced a 1994 certificate of rehabilitation that restored Mr. Youngblood's right to possess a firearm. The jury found Mr. Youngblood guilty only of the lesser included crime of second degree assault (RCW 9A.36.021) and the trial court imposed a sentence below the standard range. This appeal and personal restraint petition followed.
Self-Defense Instructions
Mr. Youngblood contends deficient representation by his trial counsel seriously prejudiced the defense. He asserts, in part, that trial counsel proposed or accepted two inconsistent and erroneous instructions on self-defense. Instruction 13, based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.02, at 196 (2d ed. 1994) (WPIC), is the standard instruction on self-defense:
It is a defense to a charge of Assault in the First Degree or Assault in the Second Degree that the force used, attempted or offered to be used was lawful as defined in this instruction.
The use of, attempt to use or offer to use force upon or toward the person of another is lawful when used, attempted or offered 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 or offering to use 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.
The state has the burden of proving beyond a reasonable doubt that the force used, attempted or offered to be used by the defendant was not lawful.
Clerk's Papers (CP) at 57 (emphasis added). Defense counsel, who proposed nearly identical language for instruction 13, did not object.
Defense counsel's proposed instruction had one additional concluding sentence that is also found in WPIC 17.02: "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 72. The State's assertion that the trial court included the final sentence from WPIC 17.02 when it read the instructions to the jury is incorrect. Due to our resolution of the appeal on other grounds, we do not address the prejudice, if any, caused by the deletion of this sentence.
The companion instruction on self-defense, instruction 15, explains that the appearance of danger is enough to trigger self-defense:
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 59 (emphasis added). Instruction 15 is based on WPIC 17.04. See WPIC 17.04, at 203. Defense counsel proposed instruction 15 as given.
Mr. Youngblood agrees that instruction 13's reference to the defendant's reasonable belief "that he is about to be injured" is the correct statement of the standard for self-defense. Citing State v. Woods, 138 Wn. App. 191, 200, 156 P.3d 309 (2007), he contends instruction 15, which refers to the defendant's reasonable belief that "he is in actual danger of great bodily harm," is inconsistent with instruction 13 and an erroneous statement of the law. Although defense counsel proposed instruction 15, the doctrine of invited error does not bar review because Mr. Youngblood claims ineffective assistance of counsel. Woods, 138 Wn. App. at 197.
Every criminal defendant has the right to effective assistance of counsel at trial. U.S. Const. amend. VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, a defendant must show that trial counsel's performance was deficient and that the deficiency prejudiced the defense. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). This court presumes that counsel's representation was effective. State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999). To rebut that presumption, the defendant must show that trial counsel's performance fell below an objective standard of attorney reasonableness. Id. The defendant must also show that counsel had no legitimate strategic or tactical reason for the challenged conduct.
McFarland, 127 Wn.2d at 336.
Generally, any time a defendant produces some evidence of self-defense, he or she is entitled to a self-defense instruction. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). The burden then shifts to the prosecution to prove the absence of self-defense beyond a reasonable doubt. Id. at 473-74. Evidence of self-defense is evaluated under both subjective and objective standards. Id. at 474. The subjective aspect requires the jury to stand in the defendant's shoes and to consider the circumstances known to the defendant, while the objective aspect requires the jury to decide what a reasonably prudent person similarly situated would have done. Id.; Woods, 138 Wn. App. at 198.
The "degree of force used in self-defense is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant." Walden, 131 Wn.2d at 474. Deadly force may be used in self-defense, but only when the defendant reasonably believes he or she is threatened with death or great personal injury. Id. In deadly force self-defense cases, an instruction based on WPIC 17.04 accurately requires the defendant to prove that he or she reasonably feared great personal injury. Id. at 474-75. On the other hand, a threat to use deadly force is distinct from the actual use of deadly force and arguably does not require the same subjective fear of injury: "`merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified in pulling the trigger.'" Id. at 474 n. 2 (quoting as dicta 1 Wayne R. LaFave Austin W. Scott, Jr., Substantive Criminal Law § 5.7(a), at 651 (1986)).
Walden, 131 Wn.2d at 475 n. 3, advocates the use of "great personal injury" rather than "great bodily harm" in WPIC 17.04.
In Woods, this court held that in the case of a nondeadly assault with a deadly weapon, the defendant is not required to show that he reasonably believed he faced actual danger of great bodily harm. Woods, 138 Wn. App. at 201. Mr. Woods claimed he stabbed a man with a knife when the man threatened Mr. Woods with a hammer. The trial court correctly instructed the jury that Mr. Woods was entitled to use force to defend himself if he reasonably believed he was about to be injured. Id. at 199. That instruction was nearly identical to instruction 13 in this case. And as in this case, the trial court also instructed the jury that a person may defend himself if he "`believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm.'" Id. at 200. This court concluded that the latter instruction (based on WPIC 17.04) was inconsistent with the former instruction (based on WPIC 17.02) and erroneously stated the law of self-defense. Id. When "` 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.'" Id. at 201 (quoting State v. L.B., 132 Wn. App. 948, 953, 135 P.3d 508 (2006)).
Mr. Youngblood testified at trial that he pulled his gun and shot two bullets into the floor because he thought Mr. Gillen was going to hit him with a golf club. Mr. Gillen testified that Mr. Youngblood pointed the gun at Mr. Gillen's face but intentionally shot at the floor, not at Mr. Gillen. Mr. Youngblood did not use deadly force, but at most a threat to use deadly force. Instruction 15, which required Mr. Youngblood to prove that he reasonably believed he was in actual danger of great bodily harm, misstated the law on self-defense for the use of nondeadly force. Id.
"Jury instructions on self-defense must more than adequately convey the law." Walden, 131 Wn.2d at 473. A jury instruction that misstates the law of self-defense is an error of constitutional magnitude and is presumed prejudicial. Woods, 138 Wn. App. at 197 (quoting State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996)). Proposal of an erroneous instruction, even if it comes from the WPIC, may constitute ineffective assistance of counsel. Id. at 197-98.
As stated in Woods, 138 Wn. App. at 201, "there was no strategic or tactical reason for counsel's proposal of an instruction that incorrectly stated the law." The jury could have found that Mr. Youngblood reasonably believed Mr. Gillen was going to injure him, even if it did not find that Mr. Youngblood believed he faced actual danger of great bodily harm. See id. at 202.
Mr. Youngblood was prejudiced by his counsel's deficient conduct in proposing instruction 15. Because we cannot say with confidence that the outcome of the trial would have been the same with proper self-defense instructions, we reverse.
We decline to address Mr. Youngblood's remaining appellate issues. His personal restraint petition is dismissed as moot. In re Det. of LaBelle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986); RAP 16.11(b).
Reversed. The personal restraint petition is dismissed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and THOMPSON, J. Pro Tem, concur.