Opinion
No. 56893-1-I.
April 16, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 97-1-00970-1, James H. Allendoerfer, J., entered February 10, 1998 and August 16, 2005.
Affirmed by unpublished opinion per Grosse, J., concurred in by Appelwick, C.J., and Cox, J.
The error for failing to give a self-defense instruction in a prosecution for manslaughter is harmless when such an instruction was given in the same trial with respect to the additional charge of felony murder, a charge on which the jury convicted. The same facts are present in both charges. The wording of the self-defense instruction actually given (i.e., using the term "grave bodily injury" rather than the term "great personal injury") was harmless because that term was not defined and the defendant's fear was that the alleged antagonist was armed with a gun. We affirm the trial court.
FACTS
Paris Perrantes ordered his girlfriend's mother and two of her friends out of the apartment he shared with his girlfriend. Worried for her daughter's safety, the mother and her friends refused to leave. Perrantes retrieved a loaded shotgun from his bedroom and again demanded that the women leave. The weapon discharged killing one of the women.
Perrantes was charged with one count of second degree felony murder, with second degree assault as the underlying felony, and one count of first degree manslaughter. A jury found Perrantes guilty on both counts. Perrantes subsequently appealed alleging, inter alia, instructional error and double jeopardy. In an unpublished opinion, this court held that double jeopardy attached and vacated the first degree manslaughter conviction. Because it vacated the manslaughter conviction, the court did not address the claims of error pertaining to that manslaughter conviction.
State v. Perrantes, noted at 98 Wn. App. 1035 (1999).
In May 2005, this court granted Perrantes' personal restraint petition, vacating his conviction for second degree felony murder under Andress and Hinton. The matter was remanded to the trial court for further proceedings. The trial court reinstated the conviction for first degree manslaughter. Jury Instructions
In re Personal Restraint of Perrantes, No. 51399-1 (2005).
In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002).
In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004).
The following instructions were given:
Instruction No. 16
It is a defense to a charge of assault in the second degree that the force offered to be used was lawful as defined in this instruction.
The offer to use force upon or toward the person of another is lawful when offered by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person or a malicious trespass and when the force is not more than is necessary.
The person 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 offered to be 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.
Instruction No. 20
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.
(Emphasis added).
The court also instructed the jury on excusable homicide.
Instruction No. 29
It is a defense to a charge of murder or manslaughter that the homicide was excusable as defined in this instruction.
Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any lawful intent.
The state has the burden of proving the absence of excuse beyond a reasonable doubt. 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.
With regard to the jury's application of these defenses, the court gave the following instruction:
Instruction No. 29A
A distinction must be made between the defense of excusable homicide, as defined in Instruction 29, and the defense of self-defense, as defined in Instruction 16.
. . . .
Self-defense is an applicable theory only in Count I of this case.
ANALYSIS
Perrantes first contends that it was error for the trial court to reinstate a vacated conviction. This issue has already been decided and is controlled by State v. Schwab. Under a factual pattern similar to the case at bar, the court in Schwab held that the double jeopardy doctrine did not preclude reinstatement of a vacated crime because the double jeopardy attached to the punishment, not the conviction of that vacated crime. Thus, the reinstatement of the manslaughter conviction is appropriate.
State v. Schwab, 134 Wn. App. 635, 141 P.3d 658 (2006).
Perrantes next contends that the failure to instruct the jury on self-defense on the manslaughter charge was erroneous. The State concedes that such failure was error and we agree. The signal case is State v. Brightman. Brightman iterated that the proper defense for accidental homicide is to argue that the homicide was excusable. But, in a footnote, the court stated:
Brightman, 155 Wn.2d 506, 122 P.3d 150 (2005).
Even so, we note that a person's claim that he or she was acting in self-defense when the accident occurred is not irrelevant. See State v. Callahan, 87 Wn. App. 925, 932-33, 943 P.2d 676 (1997). Excusable homicide is available as a defense only where the slayer is "doing any lawful act by lawful means." RCW 9A.16.030. In turn, RCW 9A.16.020(3) establishes that the use of force is lawful when the person is about to be injured, so long as the force used is not more than necessary. Thus, a defendant could argue that his action that precipitated the accidental killing amounted to lawful self-defense under RCW 9A.16.020(3), even if he could not argue that an accidental killing was a justifiable homicide under RCW 9A.16.050. This resolution is in accord with Callahan, where the Court of Appeals held that an act of self-defense could reasonably precipitate an accidental shooting. 87 Wn. App. at 932-33.
Brightman, 155 Wn.2d at 525 n. 13 (emphasis in original).
Under Brightman, the defendant should have been able to argue the victim's death was excusable, an accident resulting from lawful self-defense. Thus, the trial court's refusal to permit the defendant to argue self-defense with regard to the manslaughter charge was erroneous.
Even though it concedes that it was error for the trial court to refuse to give the self-defense instruction, the State argues that such error was cured by the verdict in this case. The jury found that the defendant had not acted in self-defense with regard to the second degree murder charge. Although that charge was later vacated, it was not because of any failure on the part of the jury to properly evaluate the evidence and apply the instructions of the court in reaching its verdict.
The defense, however, argues that the State cannot rely on the verdict because Instruction No. 20 utilized the term "great bodily harm" and was therefore an incorrect instruction. The State argues that under the circumstances of this case, the use of the term "great bodily harm" can be considered negligible in impact. The use of the term "great bodily harm" has been criticized in other contexts when accompanied by a definition of great bodily harm. Here, there was no such definition of great bodily harm given to the jury. The jury did not know the phrase meant anything other than harm to the body which is essentially the same as great personal injury. In State v. Rodriquez, this court noted that an identical instruction, "standing alone or with other instructions to [the] jury on the question of self-defense . . . would at least be innocuous and perhaps even an accurate statement of the law." The harm in Rodriquez occurred when the instruction was supplemented by another instruction which defined "great bodily harm" in accordance with the statute. Without the addition of such a technically nuanced construction, Instruction 20 becomes a correct instruction.
The State also argues that the defense had not assigned error to Instruction 20 and, for the first time at oral argument, contended that Instruction 20 was invited error. Normally, the defense would then raise ineffective assistant of counsel and our analysis would necessarily involve whether or not the attorney's failure to object to Instruction 20 was deficient and, if deficient, whether it was prejudicial. Because our conclusion is that the error is harmless, we will not address the State's contention of invited error.
Rodriquez, 121 Wn. App 180, 185-86, 87 P.3d 1201 (2004).
The State also argues that even if this court still finds the mere usage of the words great bodily harm to be erroneous, it is not prejudicial under the holding in State v. Freeburg. The Freeburg court held that where the injury faced by the defendant was a gunshot at close range, there was no likelihood that the use of the great bodily harm language affected the outcome. Had the jury believed Freeburg, they would have had to believe that he faced a threat of great bodily harm. A similar fact pattern is present here. Perrantes testified that he believed his girlfriend's mother was about to pull a gun on him. He thought she was going to shoot him. If that were the truth, his actions may have been justified. The conviction for the felony murder clearly indicated that the jury did not find Perrantes' version of the events to be credible. Under these circumstances we find the error to be harmless and affirm the trial court.
Freeburg, 105 Wn. App. 492, 507, 20 P.3d 984 (2001).
APPELWICK, C.J. and COX, J., concur.