Opinion
No. 35697-0-II.
April 15, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-01364-1, Paula Casey, J., entered December 19, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
A jury convicted Robert Simmons of second degree assault. Simmons appeared pro se with Samuel Meyer as standby counsel. Simmons appeals his conviction, arguing that he received ineffective assistance from standby counsel because Meyer provided him with the wrong self-defense jury instruction. We affirm his conviction.
FACTS
Around midnight on July 25, 2006, in Tenino, Simmons awoke and discovered that his girlfriend, Kristi Dillon, had not come home from work. After learning that Dillon had left to pick up a stranded friend, Simmons decided to search for Dillon, waking her 9-year-old daughter to accompany him.
Simmons located Dillon's car and began to follow her in his van very closely. Moments later, Simmons intentionally rear ended Dillon's car. Dillon stopped her car and got out.
Perry Vickers, one of Dillon's passengers, got out of the vehicle as well, removed his shirt, and started to confront Simmons, who jumped out of his van. Simmons then grabbed a machete and an axe from the van. Vickers fled and Simmons chased him while holding the machete and axe. Multiple witnesses observed Simmons chasing Vickers with the weapons. Simmons attacked Vickers with at least one of the weapons. Several witnesses, including Dillon's daughter and multiple bystanders, testified that before Simmons attacked Vickers, Simmons threatened to kill him.
The police took Simmons into custody, and the State charged him with (1) attempted first degree murder with a deadly weapon, or in the alternative first degree assault; (2) felony harassment; (3) second degree assault with a deadly weapon; (4) reckless endangerment — domestic violence; (5) and two counts of second degree assault with a deadly weapon.
The State charged Simmons, respectively, under RCW 9A.28.020, 9A.32.030(1)(a) or (b), 9.94A.602, 9.94A.510, or 9A.36.011(1)(a); 9A.46.020(2)(b); 9A.36.021(1)(c), 9.94A.602(4), 9.94A.602, 10.99.020; 9A.36.050, 10.99.020; and 9A.36.021(1)(c), 9.94A.602(4), 9.94A.602.
Attorney Larry Jefferson initially represented Simmons, but prior to trial he withdrew as counsel. The trial court appointed new counsel, Meyer, but Simmons filed a motion to proceed pro se. After a colloquy, the trial court granted his motion and assigned Meyer as standby counsel.
At trial, Simmons argued to a jury that he went to search for Dillon the night of the altercation because he was worried about her. The State argued that Simmons went after Dillon because he did not approve of her relationship with Vickers. Simmons testified that his intent in following Dillon so closely was to make sure she recognized him. Also, Simmons claimed he only rear ended Dillon's car once, but admitted it was not "completely an accident." Report of Proceedings (RP) (Dec. 5, 2006) at 998. Dillon, her passengers, and Dillon's daughter testified that Simmons hit the car twice.
Simmons argued that he pulled the axe and machete out in self defense and denied hitting Vickers with the weapons. Two witnesses unrelated to the conflict testified that they saw Simmons hit Vickers with one or both weapons. Vickers testified that Simmons cut his back with the machete. Simmons denied that he chased Vickers down, testifying that he simply chased Vickers away.
Jacqueline Rochester testified that she saw Simmons hit Vickers with the axe three or four times, and then with the machete three times. Donald Freelove testified that he saw Simmons hit Vickers with the axe once.
During trial, the court ordered Meyer to provide Simmons with copies of the appropriate jury instructions. Simmons subsequently proposed a self defense instruction, using Washington Practice: Washington Pattern Jury Instructions: Criminal 17.04, at 203 (2d ed. 1994) (WPIC), which became jury instruction 22. The jury convicted Simmons of second degree assault with a deadly weapon enhancement and acquitted him on the remaining charges. The court sentenced Simmons to a standard range of 29 months.
Simmons claims that the State provided an identical instruction, but fails to cite to the record showing this. He also did not include the State's proposed instructions in the Clerk's Papers.
WPIC 17.04 and jury instruction 22 state:
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.
Simmons now appeals.
ANALYSIS
I. Ineffective Assistance
A. Standard of Review
Simmons argues that he received ineffective assistance from his standby counsel because Meyer provided him with the wrong jury instruction. Both federal and state constitutions guarantee effective assistance of counsel. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance was deficient; and (2) that deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when there is a reasonable probability that the outcome would have differed but for the deficient performance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Standby counsel's role is not to represent the defendant, but to provide technical information and be available should the defendant terminate self representation. Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Bebb, 108 Wn.2d 515, 525, 740 P.2d 829 (1987); State v. Silva, 107 Wn. App. 605, 628, 27 P.3d 663 (2001); State v. Buelna, 83 Wn. App. 658, 661, 922 P.2d 1371 (1996). Further, "unless otherwise ordered by the trial court, standby counsel is not required to actually perform research and errands on behalf of pro se defendants." Silva, 107 Wn. App. at 629.
B. Record Insufficient for Review
Simmons argues that Meyer should have researched the WPICs and provided him with the correct jury instruction. Simmons apparently requested certain materials from the trial court regarding pattern jury instructions, but failed to include the motion in the record. Thus, we have no way of knowing what exactly he requested. The trial court ordered Meyer to provide Simmons with copies of pattern jury instructions that Meyer felt were appropriate. However, there is no information in the record indicating what materials Meyer gave to Simmons, if any.
On appeal, we will not consider matters not in the record. RAP 9.2(b). Appellant has the burden to provide an adequate record to review issues raised; the trial court's decision must stand if this burden is not met. RAP 9.2; See State v. Slanaker, 58 Wn. App. 161, 165, 791 P.2d 575 (1990) (citing Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988)); State v. Rienks, 46 Wn. App. 537, 545, 731 P.2d 1116 (1987).
Simmons does not meet his burden for providing an adequate record for review. We do not know whether Meyer provided the allegedly erroneous instruction or whether Simmons himself researched and supplied the jury instruction at issue. If we cannot discern from the record what action Meyer took in providing jury instructions to Simmons, it is impossible for us to review any claim of error based on his actions. Based on the inadequacy of the trial record we decline to find that Simmons' representation was ineffective.
C. Failure to Show Prejudice
Even if we find that Meyer's conduct fell below an objective standard, Simmons cannot show prejudice; namely that having the instructions proposed by appellate counsel would have changed the outcome of the trial. This is because Simmons was not entitled to a self-defense instruction.
Jury instructions are sufficient if supported by substantial evidence; if they allow the parties to argue their case theories; and when read as a whole, properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 908 n. 1, 909, 976 P.2d 624 (1999). Additionally, self-defense instructions are subject to heightened appellate scrutiny and must more than adequately convey the law of self defense. State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). Further, "[a] jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial." LeFaber, 128 Wn.2d at 900.
Even if presumed prejudicial, an erroneous jury instruction that misstates the law is subject to harmless error analysis. State v. L.B., 132 Wn. App. 948, 954, 135 P.3d 508 (2006); State v. Woods, 138 Wn. App. 191, 202, 156 P.3d 309 (2007). An erroneous instruction is harmless when it appears beyond a reasonable doubt that the error did not contribute to the ultimate verdict. State v. Berube, 150 Wn.2d 498, 505, 79 P.3d 1144 (2003) (citing State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)).
The facts in this case simply did not support a self-defense instruction. As jury instruction 24, the aggressor instruction, correctly highlights:
No person may, by any intentional act reasonablylikely to provoke a belligerent response, create a necessity for acting in self-defense and thereuponuse, offer, or attempt to use force upon or towardanother person. Therefore, if you find beyond areasonable doubt that the defendant was theaggressor, and that the defendant's acts and conductprovoked or commenced the fight, then self-defense isnot available as a defense.
CP at 177.
The jury heard evidence that Simmons' actions, intentionally ramming Dillon's vehicle, likely prompted the confrontation with Vickers. Further, Vickers testified that he only got out of Dillon's car and confronted Simmons after Simmons rammed the car a second time. There is no evidence that Vickers or any other person provoked Simmons' vehicular attack or that Simmons withdrew from combat prior to Vickers' confrontation. Additionally, the jury heard from multiple witnesses who observed Simmons chasing Vickers with the weapons. As an aggressor Simmons could not prove he acted in self defense.
Further, even if the jury did not believe Simmons provoked Vickers, Simmons could not demonstrate that he used only such force as was reasonably necessary to defend himself. As jury instruction 21, the reasonable force instruction, stated: "Necessary means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended, under the circumstances as they reasonably appeared to the actor at the time." CP at 174.
First, once Vickers began to run away, Simmons was not justified in chasing him down with an axe and machete. At that point, Simmons could have returned to the van and driven away; he no longer had any reason to fear for his safety. Second, Vickers did not possess any weapons when he confronted Simmons, but Simmons attacked Vickers with two weapons. Finally, Vickers suffered injury to his back, indicating he had turned to flee when Simmons attacked. Simmons could not claim that he used reasonable force.
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.
VAN DEREN, A.C.J., QUINN-BRINTNALL, J., concur.
CP at 175.