Opinion
No. 65538-8-I
10-31-2011
STATE OF WASHINGTON, Respondent, v. MARIO PETRILLI, Appellant.
UNPUBLISHED OPINION
Grosse, J. — An instruction which requires a jury to be unanimous in order to answer "no" to a special verdict is manifest constitutional error and may be raised for the first time on appeal. Here, the special verdict form improperly required jury unanimity for a negative answer.
Mario Petrilli raises additional issues in his statement of additional grounds, none of which have any merit. Accordingly, we affirm the conviction but vacate Petrilli's sentence enhancement and remand for further proceedings.
FACTS
On February 19, 2010, David Kline went to Paul May's residence to help him move out of a basement room he rented from Mario Petrilli. On the night of the move, both May and Kline were drinking beer. A fight broke out between Petrilli and Kline. Petrilli attacked Klein with his fists, a stun gun, and a metal bar. Petrilli admitted discharging a stun gun on Kline's shoulder. At trial, both Kline and May testified that Petrilli had a metal bar during the altercation, but neither could remember if Petrilli actually struck Kline with the bar.
Kline ran out the back door of the house. As Kline was walking toward his truck, May heard Petrilli yell at Kline to get off his property. When Kline responded that he was going, Petrilli replied, "Not fast enough," and fired his gun. Petrilli cocked the gun and kept it aimed at Klein while Klein got into his truck. Kline dove off and called 911 shortly thereafter.
The police arrived and arrested Petrilli. Petrilli admitted that he owned a variety of guns, but did not disclose the black handgun that police found in a hidden compartment inside the headboard of his bed. A cartridge casing from the black handgun was found on top of the deck.
A jury convicted Petrilli of one count of second degree assault with a firearm enhancement and one count of third degree assault. Petrilli appeals.
ANALYSIS
The jury instruction accompanying the special verdict in this case informed the jury:
Because this is a criminal case, all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form "yes," you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no."
Petrilli did not object to the instruction at trial. The State argues that failure to object precludes review here; and even if reviewable, any error was harmless. An instruction that a jury must deliberate to unanimity to answer "no" to a special verdict form is an incorrect statement of law. In State v. Ryan, we recently held that such an instruction is manifest constitutional error and may be raised for the first time on appeal. Further, as Ryan noted, such error is not harmless:
State v. Bashaw, 169 Wn.2d 133, 147, 234 P.3d 195 (2010).
160 Wn. App. 944, 948-49, 252 P.3d 895, review granted, 172 Wn.2d 1004 (2011).
The Bashaw court strongly suggests its decision is grounded in due process. The court identified the error as "the procedure by which unanimity would be inappropriately achieved" and referred to "the flawed deliberative process" resulting from the erroneous instruction. The court then concluded the error could not be deemed harmless beyond a reasonable doubt, which is the constitutional harmless error standard. The court refused to find the error harmless even where the jury expressed no confusion and returned a unanimous verdict in the affirmative. We are constrained to conclude that under Bashaw, the error must be treated as one of constitutional magnitude and is not harmless.
160 Wn. App. at 948-49 (quoting Bashaw, 169 Wn.2d at 147).
Legal Financial Obligations
Petrilli also contends that the trial court erred in requiring Petrilli to pay $1,465.50 in total legal financial obligations. This scrivener's error was corrected by an order amending the judgment and sentence entered on July 30, 2010, setting out the correct amount of $965.50. Thus, Petrilli's argument is moot.
Statement of Additional Grounds
Petrilli raises several additional claims in a pro se statement of additional grounds for review. We have carefully reviewed all of Petrilli's additional grounds that could be identified, and find no merit in any of them. Additionally, much of the evidence that Petrilli relies on to support his ineffective assistance of counsel claims is outside of the record, including failure to call friends and other witnesses, and spending an insufficient amount of time with him to prepare for trial. On direct appeal, we do not consider matters outside the record.
These arguments include: (1) the State's failure to bring Petrilli to trial within speedy trial time, (2) trial court setting excessive bail of $200,000, (3) State's failure to demonstrate in court that the stun gun worked, (4) Washington Pattern Jury Instructions that inadequately explain the weapons, (5) hearsay contained in the certificate for probable cause, and (6) ineffective assistance of counsel for failing to call witnesses and hiring an inappropriate expert.
State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995).
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Accordingly, we affirm the conviction but vacate Petrilli's sentence enhancement and remand for further proceedings.
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WE CONCUR:
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