Opinion
No. 21428-1-III
Filed: September 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County. Docket No: 01-1-00479-5. Judgment or order under review. Date filed: 08/21/2002. Judge signing: Hon. Lesley a Allan.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Douglas J. Shae, Attorney at Law, PO Box 2596, Wenatchee, WA 98807-2596.
Armando Reed appeals his jury conviction for first degree manslaughter and first degree arson. He complains the court's instructions to the jury contained an outdated self-defense instruction, which requires automatic reversal of his conviction. He also argues the court abused its discretion when it failed to include in its jury instructions a special interrogatory regarding his theory of self-defense. The propriety of the calculation of his offender score was conceded at oral argument. The convictions are affirmed.
FACTS
On September 25, 2001, firemen responding to a reported fire in a condominium located in Chelan County discovered the charred remains of a man later identified as Michael Vincentini. An autopsy revealed that Mr. Vincentini's body had been burned after death had occurred. His throat had been cut approximately four times and there were multiple stab wounds on other parts of his body. The coroner determined the stab wounds killed Mr. Vincentini. As a result, the Chelan County Sheriff's Office commenced an investigation.
The fire department determined an accelerant had been used to start two separate fires in the condominium — one on the body and the other in the master bedroom. Armando Reed, who was the victim's stepson, was soon identified as the person reported leaving the scene of the condominium fire in a black sports car. A warrant to search his apartment was issued, which led to the discovery of a large amount of cash and clothing stained with blood. The blood was later tested and found to belong to the victim and to Mr. Reed.
Mr. Reed was originally charged in the Chelan County Superior Court with one count of first degree murder and one count of first degree arson. The information included a deadly weapon enhancement.
A jury trial was held in July 2002. Mr. Reed admitted he stabbed Mr. Vincentini, but that it was done in self-defense. Several witnesses testified that Mr. Vincentini had a quick temper and had physically assaulted Mr. Reed on many occasions in the past. On one such occasion, Mr. Vincentini allegedly shot at Mr. Reed's head several times just to prove a point. Mr. Reed testified that he was afraid of Mr. Vincentini.
Mr. Reed also told the jury that on the date in question Mr. Vincentini had asked Mr. Reed to come to Chelan County in order to interview for a job working in the family owned business. However, instead of a job interview, Mr. Vincentini asked Mr. Reed to set the condominium on fire in an alleged insurance scam. When Mr. Reed refused to cooperate, Mr. Vincentini became enraged and began to pummel Mr. Reed with a flashlight. At that point, Mr. Reed picked up a knife from the kitchen counter in order to protect himself from the physical assault. After Mr. Vincentini collapsed from the knife wounds, Mr. Reed panicked and set Mr. Vincentini and the condominium on fire.
At the conclusion of the evidence, the jury was instructed on the crimes of first degree murder and the lesser included offenses of second degree murder, and first and second degree manslaughter. It also received a self-defense instruction. During deliberations the jury sent the judge several notes asking for clarification of various issues. The judge informed the jury that the answers to its questions were contained in the jury instructions. The jury eventually returned guilty verdicts on the charges of first degree arson and the lesser included offense of first degree manslaughter. In a special verdict form, the jury found that Mr. Reed was armed with a deadly weapon at the time Mr. Vincentini was killed.
Mr. Reed received a high-end, standard range sentence for the crimes based on an offender score of three. A 24-month deadly weapon enhancement was added to his sentence pursuant to former RCW 9.94A.510(4)(a) (2000). He filed a timely notice of appeal on issues related only to the manslaughter conviction.
ANALYSIS 1. Outdated Self-Defense Instruction
Mr. Reed first claims the trial court committed reversible error when it submitted an outdated self-defense jury instruction to the jury for its consideration. Jury instruction 20 was based on 11 Washington Pattern Jury Instructions: Criminal sec. 16.02 (2d ed. 1994), which predated our Supreme Court's decision in State v. LeFaber, 128 Wn.2d 896, 913 P.2d 369 (1996). As properly noted by Mr. Reed, the LeFaber court determined that self-defense necessitates only a `subjective, reasonable belief of imminent harm from the victim.' Id. at 899. It held there was no requirement that a jury find the defendant was ever in actual, imminent harm. Id. A self-defense instruction should allow the jurors to put themselves in the defendant's shoes and, from that perspective, determine the `reasonableness from all the surrounding facts and circumstances as they appeared to the defendant.' Id. at 900. Because Mr. Reed's jury did not receive a post-LeFaber self-defense jury instruction, he maintains his conviction must be reversed. He is only partially correct.
Jury Instruction 20 states:
`It is a defense to a charge of murder in the first degree or any lesser included offense that the homicide was justifiable as defined in this instruction.
`Homicide is justifiable when committed in the lawful defense of the slayer when:
`(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury;
`(2) there was imminent danger of such harm being accomplished[;] and
`(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.
`The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. 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 at 167.
It is error for a trial court to fail to instruct the jury that a defendant need not be in actual danger of imminent harm to act in self-defense against an aggressor, provided the defendant reasonably believes himself or herself to be in danger. State v. Studd, 137 Wn.2d 533, 538, 973 P.2d 1049 (1999). However, this `error does not furnish a basis for a new trial when the defendant invites the error by requesting' an instruction that does not clearly instruct the jury of the legal standard required to establish self-defense. Id. at 538, 546-47.
Here, the State correctly notes the court gave jury instructions 20 and 21, which were the same instructions (A2 and A3) proposed by defense counsel. Under the invited error doctrine, a defendant may not request that instructions be given to the jury and then complain on appeal that the instructions are improper. Id.
In a supplemental filing, Mr. Reed asks us to consider State v. Kruger, 116 Wn. App. 685, 67 P.3d 1147, review denied, 150 Wn.2d 1024 (2003). He claims the Kruger court determined the trial court's failure to properly instruct the jury on voluntary intoxication was reversible error because jurors' notes to the court indicated they were confused over the meaning of the jury instructions. He misinterprets the court's holding. The Kruger court found reversible error based on ineffective assistance of counsel due to the defense attorney's failure to request a voluntary intoxication instruction when the facts of the case warranted such an instruction. Id. at 693-95.
Here, Mr. Reed does not raise an ineffective assistance of counsel argument; thus, his reliance on Kruger is misplaced. The same holds true for his reference in supplemental briefing to State v. Rodriguez, 121 Wn. App. 180, 87 P.3d 1201 (2004) (improper to reduce burden on State to disprove self-defense). Because the self-defense instruction given the jury was proposed by Mr. Reed and he does not raise an ineffective assistance of counsel argument, id. at 183-84, the invited error doctrine precludes our reversal on this issue. Id. at 184.
2. Lack of Special Interrogatory
Mr. Reed also argues that the lack of a special interrogatory based on RCW 9A.16.110(5), regarding his theory of self-defense, established reversible error. He maintains that because no special interrogatory was given, we are forced to speculate just how the jury applied the improper self-defense instruction to the facts of the case. However, we also note that defense counsel did not submit a special interrogatory regarding self-defense and again Mr. Reed does not raise an ineffective assistance of counsel argument. Relying on the rule of law set forth above, we decline to discuss the merits of this argument.
RCW 9A.16.110(5) states in relevant part:
`Whenever the issue of self-defense under this section has been submitted to a jury, and the jury has found the defendant not guilty, the court shall instruct the jury to return a special verdict. . . .'
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and BROWN, J., concur.