State v. Studd

¶1(concurring) — The invited error doctrine should not be applied to preclude claimed error resulting from a pattern jury instruction proposed by the defense. The pattern jury instructions are the result of considerable work of the Washington Supreme Court Committee on Jury Instructions which was created in 1963 by order of this court. See 6 Washington Pattern Jury Instructions: Civil Preface, at VII (3d ed. 1989) (WPI). In remarks addressing the third edition of the Civil Washington pattern jury instructions, the members of this court observed that the pattern instructions reduce

the time and effort which must be expended on the preparation of jury instructions in the day to day trial of cases. Furthermore, these pattern instructions have greatly enhanced the quality of justice in our courts by improving the quality of instructions given to juries. The intention is to present patterns for simple, brief, accurate and unbiased statements of the law. . . . We recommend the use of these pattern instructions.

¶2Letter from Justices to Members of the Washington Bench and Bar (Jan. 1989), in 6 WPI at V The Committee Chair noted the aim of the Committee “to present patterns for *554simple, brief, accurate and unbiased statements of the law . . . .”6 WPI, Preface at VII (Judge George T. Shields, Chair).

¶3Clearly, the criminal pattern instructions have been formulated with the same goals in mind. Further, the importance this court attaches to the pattern instructions is evident in the many cases where the court refers to the instructions or to the Committee’s comments. Indeed, this court has specifically referred prosecutors to the criminal pattern instructions for the' purpose of identifying, in many cases, the essential elements that must be included in a charging document. State v. Kjorsvik, 117 Wn.2d 93, 102 n.13, 812 P.2d 86 (1991).

¶4This court has said the invited error doctrine serves to avoid a defendant’s misleading the trial court. State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990). I cannot conceive how that purpose is furthered by condemning the defendant for doing exactly what most attorneys do, with this court’s general approval, in proposing instructions—rely on the Committee’s pattern jury instructions. The Court of Appeals sensibly refused to apply the invited error doctrine in a criminal case where, in the absence of a criminal pattern instruction on superseding intervening cause, the civil pattern instruction proposed by the defense was given. State v. Young, 48 Wn. App. 406, 414-15, 739 P.2d 1170 (1987). Although it is now apparent that criminal pattern instruction 16.02 on self-defense could lead to fatal ambiguity should it be given alone, defendants should not be faulted for proposing the instruction.

¶5The injustice in applying the invited error doctrine in these circumstances is underscored in the majority’s analysis. While the majority applies the doctrine where defendants have proposed pattern jury instructions, the majority also holds that giving of a pattern instruction is not ineffectiveness of counsel because it is not deficient performance for counsel to rely upon the pattern instructions.

¶6I would hold the invited error doctrine does not apply where the instructions proposed are pattern jury instructions.

¶7*555I would, nevertheless, affirm the convictions in four of these consolidated cases. In a decision filed shortly after oral argument in this matter, the court held that while 11 Washington Pattern Jury Instructions: Criminal 16.02, at 176 (2d ed. 1994) (WPIC) is ambiguous and presumptively prejudicial, the jury is nevertheless adequately instructed on the law of self-defense where WPIC 16.07 is given along with WPIC 16.02. State v. Hutchinson, 135 Wn.2d 863, 884-85, 959 P.2d 1061 (1998), cert. denied, 119 S. Ct. 1065 (1999). The two instructions, “taken in their entirety, properly state[] the law.” Id. at 885. Because both of these instructions were given in State v. Studd, 87 Wn. App. 385, 942 P.2d 985 (1997), State v. Cook, No. 19020-6-II (Wash. Ct. App. July 18, 1997), State v. Bennett, 87 Wn. App. 73, 940 P.2d 299 (1997) and State v. McLoyd, 87 Wn. App. 66, 939 P.2d 1255 (1997), I would affirm in these cases on the basis that no instructional error occurred. In two of the cases, State v. Ameline, No. 17339-5-II (Wash. Ct. App. July 25, 1997) and State v. Fields, 87 Wn. App. 57, 940 P.2d 665 (1997) instructional error did occur because WPIC 16.02 was given alone, and reversal for new trials is proper.

¶8I concur in the result reached by the majority.

¶9(concurring in part, dissenting in part) — I agree with the majority that the conviction of Daun Bennett must be affirmed because he has not shown his counsel was deficient and, thus, cannot prevail on his ineffective assistance of counsel claim. I also agree with the majority that the convictions of William Ameline and Vincent Fields should be reversed and remanded for retrial because the jury instructions used in their trials were clearly erroneous. However, I disagree with the majority’s dispositions as to Keith Studd, Lee Cook, and Raymond McLoyd. The majority affirms their convictions even though the jury instructions used in procuring their convictions contained fatal flaws which may have resulted in criminal convictions of innocent men.

¶10The majority correctly frames the issue as to Studd, *556Cook, and McLoyd as í£[w]hether a jury instruction that erroneously states the law of self-defense furnishes a basis for a new trial when the erroneous instruction is requested by the defendant.” Majority at 538. The answer to this question is undeniably “yes.” In State v. LeFaber we held “A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial” and requires reversal. State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).

¶11Here, defendants Studd, Cook, and McLoyd each admitted the killing but each raised self-defense at trial. Further, each defendant raised the specter that he reasonably, but mistakenly, feared for his life when he slayed the victim. The issue at each of the three trials in question was the validity of each defendant’s claim of self-defense. In particular the critical question was whether each defendant may have reasonably, albeit mistakenly, believed he was in mortal danger when he killed the victim.

¶12In LeFaberwe established that a defendant may successfully prevail on a claim of self-defense if he reasonably, but mistakenly, believed he was in imminent danger when he slayed the victim. 128 Wn.2d at 899-900. When such a defense is raised, the instructions “must more than adequately convey the law of self-defense” and “must make the relevant legal standard ‘manifestly apparent to the average juror.’ ” Id.at 900 (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)). Thus, a self-defense jury instruction is erroneous if it does not make it manifestly apparent to the average juror that a person is entitled to use self-defense even though he is not in actual danger so long as he reasonably (but mistakenly) believes he is in danger. State v. Theroff, 95 Wn.2d 385, 390, 622 P.2d 1240 (1980). The instruction is likewise erroneous if it leaves ambiguous whether actual danger is required. LeFaber, 128 Wn.2d at 902.

¶13Here the court issued the approved Washington Fattern Jury Instruction 16.02 verbatim, which stated there must be actual danger in order for the defendant to invoke self-*557defense. See Majority at 539 (self-defense is available only if “ £[t]here was imminent danger of such harm being accomplished . . . .’ ”) (quoting WPIC 16.02)). As the majority notes, this instruction was invalidated shortly after the three trials by this court in LeFaberbecause it fails to make manifestly apparent that a mistaken but reasonable belief will suffice. Majority at 546. In fact, the instruction does the opposite by unambiguously providing that there must be actual imminent danger of such harm being accomplished. As such the instruction is clearly inadequate.7 Here, the juries might have found that the defendants reasonably, but mistakenly, feared for their lives when they acted in self-defense. In such case the instructions require the jury to convict while the law says acquit. Under LeFabera conviction procured under such circumstances is constitutionally defective and reversal is mandated.

¶14But the majority denies these defendants the new trial which our law requires on the ground that the defendants invited the error. Majority at 546-47. But in each of these three cases the defendants merely requested pattern jury instructions verbatim which were accepted and approved at the time.

¶15The invited error doctrine “prohibits a party from setting up an error at trial and then complaining of it on appeal.” State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 *558Wn.2d 315, 893 P.2d 629 (1995). For example, in Pam, the State had intentionally created the appealable issue simply as a test case to push an appeal. State v. Pam, 101 Wn.2d at 511. Because the State had set up the error at trial only to challenge it on appeal we rightly closed the appellate court doors. In the present cases, however, the defendants did not set up the error in this sense. The defendants were simply trying to make an accurate statement of the law using approved pattern jury instructions. The majority emphasizes this point when it denies Bennett’s ineffective assistance of counsel claim on the grounds counsel acted properly in relying on accepted pattern jury instructions. See Majority at 551 (“LeFaber had not been decided at the time of Bennett’s trial, so his counsel can hardly be faulted for requesting a jury instruction based upon a then-unquestioned WFIC 16.02.”). The majority cannot have it both ways.

¶16The majority concedes it applies a “strict rule.” Majority at 547. It does indeed. The majority sends three men to prison for life even though the jury instructions used in procuring their convictions were erroneous on the critical point. We cannot say how the jury would have ruled under proper instructions on self-defense. Indeed, it is conceivable that under correct jury instructions at least one of these defendants would be found not guilty and acquitted by reason of self-defense. The integrity of the system as well as the fates of three men imprisoned for life cry for a retrial.

¶17I note that application of the invited error doctrine is not as inflexible as the majority suggests. For example, in LeFaberthis court reviewed the erroneous self-defense instruction without attaching any importance to the question of whether the defendant had proposed the incorrect jury instruction. The critical question in LeFaberwas whether the instruction, and thus the conviction, was erroneous. Even more on point is State v. Young, 48 Wn. App. 406, 415, 739 P.2d 1170 (1987) wherein the court found the invited error doctrine inapplicable because “the proposed *559instruction was a Washington pattern civil instruction.” The Court of Appeals did the same in State v. Studd:

Generally, defendants are not allowed to request an instruction at trial and later seek reversal on the basis of claimed error relating to the same instruction. State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990). The policy underlying this rule is the courts do not want to encourage defendants to mislead the court and, therefore, provide a reason for appeal. Id. at 868. However, this case poses a unique situation. Defendants offered a Washington Pattern Jury Instruction which at the time was upheld by this court, only later to be struck by the Supreme Court as an ambiguous and erroneous statement of the law. LeFaber, 128 Wn.2d at 901-02. This case presents circumstances which justify an exception to the invited error rule.

¶1887 Wn. App. 385, 389-90, 942 P.2d 985 (1997).

¶19We should allow a defendant to challenge erroneous jury instructions in cases where the defendant sought an approved pattern jury instruction in good faith only to have the same instruction invalidated as erroneous after defendant’s trial but before his appeal is finalized. Such a rule would be in keeping with the general rule that “constitutional rulings in criminal cases apply retroactively to all cases not yet finally decided on direct review.” State v. Campbell, 125 Wn.2d 797, 800, 888 P.2d 1185 (1995). Cf. Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (actual innocence may be shown notwithstanding procedural bar in habeas proceeding).

¶20Additionally, such rule would be in keeping with that used in sister jurisdictions. For example, in the Ninth Circuit a defendant may challenge jury instructions even if he proposed or assented to them unless he knew or had reason to know they were faulty. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). California follows a similar rule: “For the doctrine of invited error to apply, it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act simply out of ignorance or mistake

¶21*560.... This is because important rights of the accused are at stake, and it is the trial court’s duty fully to instruct the jury.” People v. Maurer, 32 Cal. App. 4th 1121, 1127, 38 Cal. Rptr. 2d 335 (1995). See also State v. Griffith, 110 Idaho 613, 716 P.2d 1385, 1386 (1986) (invited error doctrine inapplicable where counsel sought the instruction “without any apparent tactical purpose”).

¶22To adhere to the majority’s strict rule under the unusual facts of the three cases at issue here sacrifices justice and sends three men to prison under an erroneous charge to the jury. The integrity of our system instead demands retrial for Studd, Cook, and McLoyd.8