Opinion
No. 57041-2-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-07275-8, Sharon S. Armstrong, J., entered October 3, 2005.
Counsel for Appellant(s), Dana M. Lind, Nielsen Broman Koch PLLC, Seattle, WA.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.
Lee Davis Yates, King County Prosecutor's Office, Seattle, WA.
Reversed and remanded by unpublished per curiam opinion.
Bernard Robinson challenges his convictions for one count of second degree assault and one count of fourth degree assault, contending he received ineffective assistance of counsel. We agree. Because jury instructions 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 instructions been given, we reverse.
FACTS
On October 15, 2004, Bernard Robinson entered the Glen Hotel to retrieve his belongings from Dionne Presberry, his former girlfriend. While he was knocking on Presberry's door, Dale Hurley came into the hallway. The two had some kind of fight and Hurley was seriously injured. While the fight was going on, Salvador Negrete arrived and tried to intervene, and he too exchanged blows with Robinson. Hurley's injuries were consistent with being kicked in the head with a boot, and included fractures to the bones around his eye, a bruise on his brain, and facial injuries. The State charged Robinson with one count of first degree assault against Hurley, one count of fourth degree assault against Negrete, and one misdemeanor count of violating a court order prohibiting contact with Presberry. Robinson entered a plea of guilty to violation of a protection order.
At trial on the assault charges, accounts of the altercation differed. Hurley, who had been in a coma and had suffered memory loss as a result of his injuries, testified he did not remember anything after coming out of the communal bathroom and seeing Robinson "trying to get into my room," saying "hi," and seeing toilet paper "flying" from his hand. Negrete testified that he came around the corner and saw Hurley lying on the floor as Robinson kicked him in the head, three kicks on one side and three on the other. Robinson stood over Hurley as though preparing to stomp on his head. Negrete pushed Robinson away, and Robinson turned and punched Negrete in the mouth. Negrete fought back and Robinson stepped away, ending the struggle.
Report of Proceedings (RP) (Sept. 8, 2005) at 248-49.
Robinson testified that as he was knocking on Presberry's door, someone grabbed him from behind, shouting and swearing. Thinking he was under attack, he spun around to defend himself and quickly punched his assailant in the face with his right fist and then followed with a left. As the man fell, Robinson kicked at him twice, connecting on only one kick. As he kicked, he felt another person knock him forward and then grab him and pull him back into some kind of hold, so he broke out of the hold, swung around and exchanged punches with the second man. Once he recognized Negrete, he stepped away and stopped the fight.
The jury was instructed that to convict Robinson of first degree assault, the jury must find that he assaulted Hurley with "a force or means likely to produce great bodily harm or death, to wit: kicking to the head," and that he "acted with the intent to inflict great bodily harm." Instruction 9 provided the following definition:
Robinson does not challenge his instruction as an impermissible judicial comment, but because we remand for a new trial, we caution that the "to wit" language deserves close scrutiny. See, e.g., State v. Levy, 156 Wn.2d 709, 132 P.3d 1076 (2006).
Clerk's Papers at 78.
Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
Id. at 79.
The instructions on self-defense were proposed by the defense and accepted by the court, including Instruction 21:
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. Actually [sic] danger is not necessary for the use of force to be lawful.
Id. at 91.
The jury acquitted Robinson of first degree assault and found him guilty of the lesser included crime of second degree assault.
DISCUSSION
Robinson contends his counsel was ineffective because he requested the wrong instructions on self defense. To establish ineffective assistance of counsel, Robinson must show both deficient performance and resulting prejudice. Prejudice is established where there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987).
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
When a defendant alleges self-defense, the State must prove its absence beyond a reasonable doubt. Jury instructions on self-defense must more than adequately convey the law.
State v. Acosta, 101 Wn.2d 612, 615-16, 683 P.2d 1069 (1984).
State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).
The instruction proposed by Robinson's counsel was based upon WPIC 17.04, and permits use of force in self-defense where a person reasonably fears great bodily harm. This is not a correct statement of the law. A person "about to be injured" may use force to defend himself so long as the force is not more than is necessary. RCW 9A.16.020(3). Fear of injury is enough; the law does not require fear of great bodily harm. "Where the defendant raises a defense of self-defense for use of non-deadly 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."
State v. L.B., 132 Wn. App. 948, 953, 135 P.3d 508 (2006).
The State allows that Instruction 21 should have substituted "injury" for "great bodily harm," but contends counsel cannot be considered deficient for requesting a standard WPIC instruction. We disagree. In State v. Walden, the Supreme Court pointed out that "great bodily harm" is an element of assault in the first degree, not the standard for use of non-deadly force in self-defense. In State v. Rodriguez, we held that WPIC 17.04, together with the definition of great bodily harm for first degree assault, decreased the State's burden to disprove self-defense because it required the jury "to find that [the defendant] was scared of death or at least permanent injury. And that is not the test." We held that proposing the instruction constituted deficient performance.
131 Wn.2d 469, 475 n. 3, 932 P.2d 1237 (1997) ("great bodily harm" is distinctly defined for other purposes and "should not be used in instructions on self defense").
121 Wn. App. 180, 185-87, 87 P.3d 1201 (2004).
Id. at 187.
Id. at 185-87.
Given this history, we can conceive of no legitimate tactical or strategic reason for counsel to propose a jury instruction with the same problematic language more than a year after Rodriguez was published. As in Rodriguez, the "net effect was to decrease the State's burden to disprove self-defense."
Id.
The State contends any error was harmless because the attorneys did not discuss the term "great bodily harm" during closing and the jury rejected Robinson's claim.
Robinson's defense, however, was founded on his testimony that he had been robbed in the past, that he knew robberies and assaults had occurred in the hallways of the Glen Hotel, and that when Hurley violently grabbed the collar of his coat from behind, and when Negrete later grabbed him from behind, he feared he was being attacked. Robinson testified he did not intend to hurt Hurley but punched him hard and quickly to ward off his attack. He claimed he was off balance when he kicked at Hurley and believed that his kicks only connected once or twice.
Additional evidence supported the defense theory that Hurley initiated the fight by shouting and swearing and violently grabbing Robinson from behind. Hurley had a history of drug and alcohol abuse and mental problems, and a few weeks earlier, he had "flipped out" and knocked on all the doors in the building before being taken for mental health treatment. He testified he thought Robinson was trying to break into his room. Further, Negrete did not see the beginning of the scuffle between Robinson and Hurley.
RP (Sept. 13, 2005) at 450.
The jury's acquittal on first degree assault could indicate that the jury believed at least some part of the defense theory. But because Robinson did not claim he feared death or permanent injury, Instructions 9 and 21 essentially precluded consideration of his self-defense claim on either charge. We cannot say the outcome of the trial would have been the same with proper instructions. We therefore reverse and remand for a new trial.
Robinson claims his attorney provided ineffective assistance by failing to propose an instruction on voluntary intoxication for the lesser-included offenses, and that the court erroneously excluded certain testimony regarding his intoxication. Given our disposition, we do not address these issues.
Reversed and remanded.
GROSSE and COX, JJ., concur.