[No. 24910-7-III. Division Three. April 24, 2007.]
[1] Criminal Law — selfdefense — Instruction — Review — Heightened Scrutiny. selfdefense instructions in criminal trials are subject to heightened appellate scrutiny. The instructions must more than adequately convey the law of selfdefense. Read as a whole, the instructions must make the relevant legal standard manifestly apparent to the average juror. [2] Criminal Law — selfdefense — Instruction — Error — Nature. A jury instruction misstating the law of selfdefense is error of constitutional magnitude and is presumed to be prejudicial. [3] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Erroneous Proposed Instruction — Invited Error Doctrine — Effect. The doctrine of invited error does not foreclose review of a defendant's claim that defense counsel was ineffective for requesting an erroneous instruction that was given at trial. [4] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Test. A criminal defendant has the right to effective assistance of counsel at trial under the Sixth Amendment and Const. art. I, § 22. An appellate court reviewing a claim of ineffective assistance of counsel starts with the presumption that counsel's representation was effective. In order to find that trial counsel was ineffective, the defendant must show that counsel's performance was deficient in some respect and that the deficiency prejudiced the defense. The defendant must also demonstrate the absence of legitimate strategic or tactical reasons for the challenged conduct. Deficient performance is performance below an objective standard of reasonableness based on all the circumstances. The prejudice prong of the test requires the defendant to prove there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. [5] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Duty To Investigate — In General. Reasonable attorney conduct includes a duty to investigate the relevant law. [6] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Erroneous Proposed Instruction — Pattern Instruction. Proposing a detrimental instruction, even when it is a pattern jury instruction, may constitute ineffective assistance of counsel. [7] Criminal Law — selfdefense — Burden of Proof — In General. When a criminal defendant raises selfdefense to a charge and produces some evidence thereof, the absence of selfdefense becomes another element of the offense that the State must prove beyond a reasonable doubt. [8] Criminal Law — selfdefense — Reasonableness of Apprehension — Subjective and Objective Test. Evidence of selfdefense must be assessed from the standpoint of a reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. The court must inform the jury that the selfdefense standard incorporates both objective and subjective elements: the subjective portion requires the jury to stand in the defendant's shoes and consider all the facts and circumstances known to the defendant, while the objective portion requires the jury to determine what a reasonably prudent person similarly situated would do. [9] Criminal Law — selfdefense — Fear of Injury — Imminence — Test. A jury may find selfdefense on the basis of the defendant's subjective, reasonable belief of imminent harm from the victim. Given this subjective component, the jury need not find actual imminent harm. [10] Criminal Law — selfdefense — Statutory Provisions — In General. RCW 9A.16.020(3) sets out the parameters of selfdefense in Washington. The statute states that the use of force is lawful when used by a party about to be injured in preventing or attempting to prevent an offense against his or her person. [11] Criminal Law — selfdefense — Fear of Injury — "Great Bodily Harm" — Instruction — Validity. In a prosecution in which selfdefense is in issue, it is error to instruct the jury that "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." The proper term is "great personal injury," not "great bodily harm." Great personal injury is an injury that would produce severe pain and suffering. Great bodily harm is injury creating probability of death or causing significant serious permanent disfigurement, or creating significant permanent loss or impairment of the function of a bodily part or organ. Because great bodily harm is an injury far more severe than great personal injury, it is imperative that trial courts use the correct language. [12] Criminal Law — selfdefense — Fear of Injury — Instruction — Pattern Instruction — Applicability.The standard for selfdefense set forth in Washington Pattern Jury Instructions: Criminal 17.04 should not be given in a nondeadly force case. In cases not involving death, the defendant's use of force is justified if the defendant reasonably believed that injury was imminent. The pattern instruction 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. [13] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Erroneous Proposed Instruction — Absence of Strategic or Tactical Reason. Defense counsel's proposal of a legally erroneous instruction will support a claim of ineffective assistance of counsel if there is no strategic or tactical reason for proposing the instruction. [14] Criminal Law — Right to Counsel — Effective Assistance of Counsel — Prejudice — Inaccurate Instructions. An erroneous instruction is prejudicial to a criminal defendant if it misstates the standard for evaluating the defendant's primary defense. Prejudice is presumed when an instruction misstates the law unless the error is harmless beyond a reasonable doubt. An instructional error is harmless only if it is trivial, or formal, or merely academic and in no way affected the final outcome of the case. Nature of Action: Prosecution for third degree assault while armed with a deadly weapon. Superior Court: The Superior Court for Spokane County, No. 05-1-03399-2, Neal Q. Rielly, J., on January 27, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding that an inaccurate instruction on selfdefense given at trial likely affected the outcome of the trial, the court reverses the judgment. William D. Edelblute-, for appellant. Steven J. Tucker-, Prosecuting Attorney, and Kevin M. Korsmo- and Andrew J. Metts III-, Deputies, for respondent. ¶1 SCHULTHEIS, A.C.J. — Curtis S. Woods appeals his conviction for third degree assault while armed with a deadly weapon, alleging ineffective assistance of counsel based on a faulty selfdefense instruction. Because the jury instruction proposed by defense counsel and given by the court did not accurately state the law and we cannot say the result would have been the same had the correct instruction been given, we reverse. FACTS ¶2 Around 9:00 AM on September 11, 2005, Mr. Woods was walking to a senior center for breakfast. As he approached the center, Richard Probert was parking his truck in front of the center. Mr. Woods walked up to Mr. Probert's truck, intending to ask for some money he had given to Mr. Probert the night before. As Mr. Woods approached the driver's side of the truck, Mr. Probert ordered him to get away from his truck. Mr. Woods refused to back away and continued to confront Mr. Probert about the money. ¶3 At this point, Mr. Woods' and Mr. Probert's stories differ. According to Mr. Woods, Mr. Probert reached for a hammer under the driver's seat and hit Mr. Woods on the hand with it. Mr. Woods retaliated by jabbing him with a knife. Mr. Woods was later treated for a hand wound. ¶4 Mr. Probert testified that when he opened the door to his truck, Mr. Woods came running up, yelling, "Where's my shit?" Report of Proceedings (RP) at 25. According to Mr. Probert, Mr. Woods was angry because he had failed to return his microwave. Mr. Probert testified that Mr. Woods was carrying a knife and refused to put it down. Simply to frighten Mr. Woods, Mr. Probert picked up a hammer from under his seat and placed it on the passenger seat. Undaunted, Mr. Woods stabbed Mr. Probert in the shoulder, resulting in a wound that required three stitches. Mr. Probert denied threatening or assaulting Mr. Woods. ¶5 Two witnesses saw the confrontation, but neither was able to see inside the cab of the truck. Timothy Leu witnessed the altercation from his third floor apartment above the street where Mr. Probert's truck was parked. He testified that he saw a male with a knife arguing with someone inside a pickup truck. He then witnessed the person outside the truck make a "stabbing motion" into the vehicle. RP at 52. Mr. Leu admitted that he was not able to see inside the truck, could not see the driver, and could not provide a complete description of the assailant. ¶6 Sterley Palmer told a slightly different version of events. Mr. Palmer testified that he was waiting outside the senior center for breakfast when he saw Mr. Woods standing on the sidewalk near the edge of the street. He saw Mr. Probert advance toward Mr. Woods and watched Mr. Woods back up. Mr. Probert then walked around to the driver's side of his truck and opened the door. When asked to characterize Mr. Woods' demeanor, he answered: "He was definitely in a—what I would call a defensive/offensive pose, ready to either back away or attack." RP at 63. ¶7 Next, Mr. Palmer saw Mr. Probert enter his truck and Mr. Woods "raising his hand and bringing it forward." RP at 64. Mr. Palmer heard a yell, and then saw Mr. Probert chasing Mr. Woods with a three- or four-pound hammer. Like Mr. Leu, Mr. Palmer could not see inside the truck and therefore did not witness the circumstances of the assault. ¶8 As a result of this incident, the State charged Mr. Woods with one count of third degree assault while armed with a deadly weapon. At trial, defense counsel submitted the general selfdefense instruction, which provides that a person may act in selfdefense if he reasonably believes he is about to be injured. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02, at 196 (2d ed. 1994) (WPIC). Trial counsel also proposed WPIC 17.04, at 203, the "act on appearances" instruction, which provides that actual danger is not necessary for selfdefense. ¶9 The jury found Mr. Woods guilty as charged. ANALYSIS ¶10 On appeal, Mr. Woods challenges the selfdefense instruction based on WPIC 17.04 (Instruction 13), claiming defense counsel was ineffective in proposing it. The State responds that the doctrine of invited error precludes his challenge to the instruction. Standard of Review Invited Error Ineffective Assistance ¶14 Deficient performance is performance " 'below an objective standard of reasonableness based on consideration of all the circumstances.' " Studd, 137 Wn.2d at 551 (quoting McFarland, 127 Wn.2d at 334-35). Reasonable attorney conduct includes a duty to investigate the relevant law. State v. Jury, 19 Wn. App. 256, 263, 576 P.2d 1302 (1978); Strickland, 466 U.S. at 690-91. Proposing a detrimental instruction, even when it is a WPIC, may constitute ineffective assistance of counsel. See Aho, 137 Wn.2d at 745-46 (counsel ineffective for offering instruction that allowed client to be convicted under a statute that did not apply to his conduct). ¶15 The prejudice prong of the test requires the defendant to prove there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. State v. Leavitt, 111 Wn.2d 66, 72, 758 P.2d 982 (1988) (adopting test from Strickland, 466 U.S. at 687). Standard for selfdefense ¶17 "[E]vidence of selfdefense must be assessed from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees." State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993). Courts must inform the jury that the selfdefense standard incorporates both objective and subjective elements: the subjective portion requires the jury to stand in the defendant's shoes and consider all the facts and circumstances known to the defendant, while the objective portion requires the jury to determine what a reasonably prudent person similarly situated would do. Id.; Walden, 131 Wn.2d at 474. ¶19 Once a defendant produces some evidence of selfdefense, the burden shifts to the prosecution to prove the absence of selfdefense beyond a reasonable doubt. See Acosta, 101 Wn.2d at 615-16 (selfdefense rebuts the "unlawful" element of assault); see also State v. Dyson, 90 Wn. App. 433, 438, 952 P.2d 1097 (1997) ("because a person who acts in selfdefense is not 'fail[ing] to be aware of a substantial risk that a wrongful act' may occur, selfdefense negates the requirement of a 'wrongful act' ") (alteration in original) (footnote omitted) (quoting RCW 9A.08.010(1)(d)). Where the State is relieved from proving the absence of selfdefense, an error of constitutional magnitude results, which may be raised for the first time on appeal. Walden, 131 Wn.2d at 473. ¶20 RCW 9A.16.020(3) sets out the parameters of selfdefense in Washington. The statute states that the use of force is lawful when "used by a party about to be injured . . . in preventing or attempting to prevent an offense against his or her person." The selfdefense Instructions ¶21 The jury was correctly instructed that Mr. Woods was entitled to use force to defend himself if he reasonably believed he was about to be injured. RCW 9A.16.020(3); State v. Bland, 128 Wn. App. 511, 116 P.3d 428 (2005). Instruction 12, based on WPIC 17.02, stated: It is a defense to a charge of third degree assault that the force used was lawful as defined in the 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 in preventing or attempting to prevent and when the force is not more than is necessary. The person using 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 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. Clerk's Papers (CP) at 22. ¶22 Unfortunately, the jurors were also given instruction 13, based on WPIC 17.04, which stated: 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 23 (emphasis added). ¶23 Mr. Woods correctly contends that instruction 13 exceeded the bounds of the law in requiring the jury to find that he believed he was in actual danger of great bodily harm. Instruction 13 is inconsistent with instruction 12, and it is an erroneous statement of the law of selfdefense. Even in homicide cases, the defendant does not have to establish that he reasonably feared great bodily harm. See, e.g., Walden, 131 Wn.2d at 475 n.3 (the instruction defining justifiable homicide as well as the "act on appearances instruction" must use the term "great personal injury" and not "great bodily harm"). ¶24 This distinction is meaningful. "Great personal injury is an injury that would produce severe pain and suffering"; whereas "great bodily harm is injury creating probability of death or causing significant serious permanent disfigurement, or creating significant permanent loss or impairment of the function of a bodily part or organ." State v. Freeburg, 105 Wn. App. 492, 504, 20 P.3d 984 (2001). Because great bodily harm is an injury far more severe than great personal injury, the Freeburg court held it "imperative" that trial courts use the correct language. Id. at 507; see also State v. Corn, 95 Wn. App. 41, 975 P.2d 520 (1999) (great bodily harm instruction not harmless). ¶26 State v. L.B., 132 Wn. App. 948, 135 P.3d 508 (2006) supports our position. L.B. involved a juvenile charged with fourth degree assault. Before issuing its ruling, the trial court noted that WPIC 17.04 permits a defendant to act in selfdefense if he had a reasonable belief he was in danger of great bodily harm. Id. at 951. Division One of this court ruled that WPIC 17.04 was not an accurate statement of the law, explaining: 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 selfdefense 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 953 (emphasis added). ¶29 Mr. Woods' defense was that Mr. Probert was the initial aggressor, hitting him with a three- to four-pound hammer. The defense's theory was supported by Mr. Palmer's testimony that Mr. Probert was the first to advance, and that Mr. Woods reacted by backing off. And even Mr. Probert admitted that he reached for a hammer intending to frighten Mr. Woods. Thus, the jury could have found that Mr. Woods reasonably believed that Mr. Probert was going to injure him, even if he did not expect great bodily harm. CONCLUSION ¶30 We conclude that instruction 13 precluded consideration of Mr. Woods' selfdefense claim. And because we cannot say the outcome of the trial would have been the same with proper selfdefense instructions, we reverse. KULIK, J., and KATO, J. PRO TEM., concur.