Opinion
No. 61204-2-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-06032-1, Gregory P. Canova, J., entered January 28, 2008.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
UNPUBLISHED OPINION
Monny Sou appeals his conviction for second degree assault, alleging that he received ineffective assistance when his counsel proposed erroneous self-defense instructions that were submitted by the court to the jury. Sou also argues that the trial court exceeded its authority by imposing a prohibition on nonprescription drugs as a community custody condition. Because the evidence does not support that Sou reasonably believed that he was about to be injured, we hold that Sou was not prejudiced by the instructional error, and, therefore, he was not denied effective assistance. The trial court erred, however, when it imposed the prohibition on nonprescription drugs without evidence that these drugs contributed to Sou's crime. Accordingly, we reverse Sou's sentence as to this error only.
Background
On July 22, 2007, at approximately 1:40 a.m., Michael Sullivan and his friend Amanda Hubbert left a birthday party at the Club Heaven bar in the Pioneer Square area of Seattle. At the party, Sullivan and Hubbert had consumed alcohol, but they were not intoxicated as they waited on the busy sidewalk outside the bar for a friend to drive them home. Hubbert was talking with a couple about five to 10 feet away when Sullivan felt someone strike the back of his head and say, "What are you, gay?" Upon answering "yes," Sullivan was immediately struck in the mouth by a blow that knocked him to the ground unconscious. Sullivan did not see who had hit him or asked him if he was gay. Nor did Hubbert see the person who struck Sullivan, as she turned around only to see Sullivan being hit across the face and then collapsing on the sidewalk. When Sullivan regained consciousness, his mouth was bleeding, and one of his teeth was fractured just below the level of the gum. Sullivan was taken to the emergency room at the Swedish Medical Center. Afterwards, Sullivan's dentist determined that the fractured tooth could not be saved and surgically removed the root. The process of replacing the tooth with a dental implant required extensive dental work that was still not completed at the time of trial.
One of the State's witnesses was Dr. Thomas Kang, who participated in Sullivan's treatment. Kang testified that "it would take a significant blow to avulse a tooth like that, for it to actually fracture below the gum line."
At the time of trial, placement of the implant had required eight dental appointments.
Sou's testimony, as well as that of his friends, Craig Fawcett and Ryan Johnson, presents a different picture. According to Sou, he and his friends had driven from Tacoma and planned to go to several bars that night in Pioneer Square. At the first bar, the group was joined by an acquaintance of Fawcett's named Jason. Fawcett testified that he met Jason at the "party scene" in Arizona, where he saw Jason about three or four times a year over the course of three years. Fawcett stated that he did not know Jason was in Seattle and had not seen Jason since the incident. Fawcett also testified that he neither knew Jason's last name nor had Jason's contact information. Sou and Johnson also could not provide this information.
Another friend of Sou's, Jordan Potter, accompanied them. Potter, however, did not testify.
By the end of the evening, Sou and his friends had several drinks, but they were not intoxicated when they left Club Heaven at about 1:30 a.m. Outside the bar, Sou testified that he saw Jason stop to talk with Hubbert. Sullivan was in the parking lot about 15 feet away urinating on a car. After a few minutes, Sullivan approached Jason, and they began arguing. Sou walked towards the two men to "break it up" when Jason called Sullivan a "faggot," hit Sullivan in the mouth, and ran away. Sullivan next tried to hit Sou but missed. Sou also claimed that Sullivan "grabbed" him and that he touched Sullivan "in the chest area."
Thinking that Sullivan was "attacking" him, Sou struck Sullivan in the mouth. He denied hitting Sullivan because he was gay, stating that he did not hold any homophobic beliefs. On cross-examination, Sou admitted that Sullivan was a "tall, thin guy." At that time, Sullivan was six feet tall and weighed 165 pounds; Sou was five feet nine inches and weighed 170 pounds. Immediately after hitting Sullivan, Sou said that he walked away so Sullivan wouldn't "have a chance to get up or to retaliate against me."
Fawcett testified that he only saw Jason hit Sullivan. Fawcett could not say if Sullivan had approached or tried to hit Sou. Johnson also saw Jason hit Sullivan and said that he then saw Sullivan and Sou with "their hands up, and [Sou] threw the first punch." But Johnson conceded that his memory was "blurry" and later stated that he "didn't know if [Sullivan] was [in] a defensive position or if it was like [Sullivan] was going to try to do something back."
Within seconds of throwing the punch, Sou was arrested. Two of the responding police officers, Detectives Domingo Ortiz and Robert Sevaaetasi, witnessed the incident and testified at trial. Ortiz testified that he had been watching from about 30 to 40 feet away when Sou approached Hubbert. Sullivan then stepped to Hubbert's side. According to Ortiz, "all of a sudden [Sou] just sucker punched" Sullivan. Ortiz estimated that the entire incident lasted about 40 seconds.
Sevaaetasi, who was on duty with Ortiz, testified that at the time of the incident there was a lull in the crowd so he had an unobstructed view of what happened between Sullivan and Sou. He further recalled that the weather and lighting were "good." According to Sevaaetasi, Sullivan and Hubbert were facing each other and talking when Sou walked towards them, turned suddenly, and hit Sullivan in the mouth. Sevaaetasi recalled that Sullivan "wasn't doing anything aggressive, he was just talking to Amanda, and he turned his face a little bit, he g[ot] punched in the face, [and] he just f[ell] down." Sevaaetasi maintained, "I clearly saw that [Sullivan] was not in a defensive mode, offensive mode, he wasn't animated. I clearly saw Mr. Sou walk past him and sucker punch him." After punching Sullivan, Sevaaetasi said that Sou "just nonchalantly continued walking towards my way. He wasn't running. It was like a casual thing he had just done."
When Sevaaetasi arrested Sou, Sou first said that he had not done "anything." Sou later claimed that Sullivan had hit him first when Sevaaetasi confronted him about hitting Sullivan. That evening, Sou also talked to a second officer, Officer Derrick Denherder. Sou explained to Denherder that "a guy tried to punch him first, so he punched the guy." Sou then said, "[T]hat was stupid." According to Sevaaetasi and Denherder, Sou did not mention Jason. Sevaaetasi also testified that Sou's friends also did not mention Jason that evening.
The State charged Sou with one count of malicious harassment and one count of second degree assault. On November 21, 2007, the jury hung on the count of malicious harassment, but it found Sou guilty of second degree assault. Sou was sentenced on January 25, 2008, to 14 months for the assault conviction and placed on community custody for 18 to 36 months. As a condition of community custody, Sou was prohibited from consuming nonprescription drugs.
Standard of Review
We review challenged jury instructions de novo, examining them in the context of the instructions as a whole. "`Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.'" Self-defense instructions, however, face heightened appellate scrutiny. "Jury instructions must more than adequately convey the law of self-defense." "Read as a whole, the jury instructions must make the relevant legal standard manifestly apparent to the average juror." Accordingly, "[a] jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial." Given this presumption, "a defendant is entitled to a new trial unless the error can be declared harmless beyond a reasonable doubt."
State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
State v. Rodriguez, 121 Wn. App. 180, 184-85, 87 P.3d 1201 (2004) (quoting State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000)).
State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).
State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997).
LeFaber, 128 Wn.2d at 900.
State v. Woods, 138 Wn. App. 191, 202, 156 P.3d 309 (2007) (citing State v. Caldwell, 94 Wn.2d 614, 618, 618 P.2d 508 (1980)).
"`[E]vidence of self-defense must be assessed from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees.'" "[T]he self-defense standard incorporates both objective and subjective elements: the subjective portion requires the jury to stand in the defendant's shoes and consider all the facts and circumstances known to the defendant, while the objective portion requires the jury to determine what a reasonably prudent person similarly situated would do."
Woods, 138 Wn. App. at 198 (quoting State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993)).
Woods, 138 Wn. App. at 198 (citing Janes, 121 Wn.2d at 238; Walden, 131 Wn.2d at 474).
Discussion
A. Ineffective Assistance of Counsel
Sou argues that he received ineffective assistance because his counsel proposed the wrong jury instructions on self-defense. Although the invited error doctrine generally precludes review of instructional errors, our courts may review these errors in the context of ineffective assistance of counsel claims. Analysis of ineffective assistance claims begins with the strong presumption that counsel's representation was effective. To overcome this presumption, the defendant must show deficient performance and resulting prejudice. Counsel's performance is deficient when it falls below an objective standard of reasonableness based on consideration of all circumstances. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different.
State v. Studd, 137 Wn.2d 533, 550-51, 973 P.2d 1049 (1999).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Studd, 137 Wn.2d at 551.
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
Here, Sou's counsel proposed, and the trial court submitted to the jury, the following self-defense instruction (instruction 9), based on WPIC 17.02.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 17.02, at 253 (3d ed. 2008) (WPIC).
It is a defense to charges of malicious harassment and assault in the second degree that the force used was lawful as defined in this instruction.
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary.
The jury was also given the following "act on appearances" instruction (instruction 11), based on WPIC 17.04.
11 WPIC 17.02, at 262.
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.
Included in instruction 11 was the following definition of "great bodily harm," based on WPIC 2.04.
11 WPIC 17.02, at 28. The record does not indicate whether Sou's counsel proposed this definition of "great bodily harm" or whether the trial court included it sua sponte.
"Great bodily harm" means bodily injury that creates a probability of death, or that causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
Sou contends that, in proposing instruction 11, his counsel's performance was deficient. The State concedes that Sou has shown deficient performance under State v. Rodriguez. In that case, the State charged Rodriguez with first degree assault for stabbing Christopher Van Dinter in a fight. The jury was given substantially the same jury instructions — an "act on appearances" instruction based on WPIC 17.04, along with the definition of "great bodily harm" based on WPIC 2.04. Division Three held that the combination of these two instructions misstated the law:
121 Wn. App. 180, 87 P.3d 1201 (2004).
Rodriguez, 121 Wn. App. at 183.
Rodriguez, 121 Wn. App. at 185-86.
[W]hen this definition [of great bodily harm] is read into the self-defense instruction, the problem becomes apparent. Based on this definition of "great bodily harm," the jury could easily (indeed may have been required to) find that in order to act in self-defense, Mr. Rodriguez had to believe he was in actual danger of probable death, or serious permanent disfigurement, or loss of a body part or function.[]
Rodriguez, 121 Wn. App. at 186.
The court concluded that this instructional error "decrease[d] the State's burden to disprove self-defense." Accordingly, the court held that defense counsel's performance was deficient in proposing the two instructions because it could not "conceive of some reason why Mr. Rodriguez's lawyer would propose these instructions as a tactic or strategy." Here, as in Rodriguez, there is no legitimate strategic or tactical reason for Sou's counsel to propose instruction 11, which contains the same problematic language. We accept the State's concession regarding deficient performance.
Rodriguez, 121 Wn. App. at 187.
Rodriguez, 121 Wn. App. at 187.
The State nonetheless argues that Sou has not shown prejudice because "no reasonable jury could have concluded [that] he acted in self-defense when he `sucker punched' Sullivan." "The prejudice prong of a claim of ineffective assistance of counsel compares well to a harmless error analysis." "An error is harmless if it appears beyond a reasonable doubt that it did not contribute to the verdict."
Rodriguez, 121 Wn. App. at 187.
State v. L.B., 132 Wn. App. 948, 954, 135 P.3d 508 (2006).
In Rodriguez, the court found that the instructional error was not harmless because the "particular defense instructions struck at the heart of Mr. Rodriguez's defense, i.e., he was very afraid of Mr. Van Dinter." Specifically, Rodriguez testified that he was afraid of Van Dinter because Van Dinter was younger, wore a large ring on his finger, and had threatened to "knock his teeth out." Significantly, two days before the incident, Van Dinter had struck Rodriguez twice in the face, causing the police to arrest him. And only 15 minutes before the incident, Van Dinter and Rodriguez had exchanged angry words when Rodriguez had approached him offering friendship.
Rodriguez, 121 Wn. App. at 187.
Rodriguez, 121 Wn. App. at 183.
Rodriguez, 121 Wn. App. at 182.
Rodriguez, 121 Wn. App. at 182.
In contrast with Rodriguez, the instructional error here was harmless because evidence in the record does not support that Sou reasonably believed that he was about to be injured by Sullivan. The State's evidence included eyewitness accounts from two police detectives, who were standing so close to Sou and Sullivan that they were able to respond to the incident within seconds. Both Ortiz and Sevaaetasi stated that they saw Sou "sucker punch" Sullivan. Sevaaetasi also specifically recalled that Sullivan was neither in an offensive nor defensive posture and that his facial expression was not animated.
Sou testified that he "didn't walk more than two feet" when Sevaaetasi arrested him.
Moreover, Sou's account of the incident is inconsistent. Initially, he testified that he thought Sullivan was "attacking" him when he tried to stop a fight between Sullivan and Jason. Yet, Sou failed to mention Jason's involvement to officers that evening. In fact, Sou first denied doing "anything" and then only asserted that he acted in self-defense when Sevaaetasi told him that he had seen Sou hit Sullivan. In addition, Sou offered different reasons for being afraid of Sullivan. He first asserted that Sullivan actually attempted to hit him but missed. Later, he stated that he only thought Sullivan was going to hit him because Sullivan wore a particular facial expression and "grabbed" him. At the same time, Sou admitted on cross-examination that Sullivan was not physically imposing. Sou also did not have any particular reason to fear Sullivan since the two men had no contact before that evening.
Finally, Sou's account is not corroborated by the defense witnesses. Fawcett stated that he only saw Jason hit Sullivan, while Johnson admitted that his memory of the incident was "blurry." In fact, Johnson's testimony somewhat validates the officers' accounts as he could not determine "if [Sullivan] was [in] a defensive position or if it was like [Sullivan] was going to try to do something back."
In light of the evidence presented at trial, the instructional error was harmless. Sou was not prejudiced when his counsel proposed instruction 11, and, therefore, he was not denied effective assistance of counsel. Because the outcome of the trial would have been the same had the proper instructions been given, we affirm.
B. Condition of Community Custody
Sou lastly contends that the trial court erred when it imposed a condition of community custody prohibiting him from consuming "non-prescription drugs." He argues that Sentencing Reform Act of 1981, chapter 9.94A RCW, does not allow the court to impose this condition due to the "complete lack of evidence that drug consumption was directly related to the circumstances of [his] offense." The State responds that this condition is "duplicative of the condition requiring Sou `[n]ot [to] possess or consume controlled substances except pursuant to a lawfully issued prescription.'"
At Sou's sentencing, the court placed Sou on community custody status for 18 to 36 months after release from prison. As a condition of community custody, the court stated, "You're neither to possess nor consume any alcohol or non-prescription drugs." The order entered by the court provided that "[t]he defendant shall not consume any alcohol or non Rx drugs."
This condition should be stricken. Following Sou's argument, RCW 9.94A.700(5)(e) provides that a sentencing court may impose special conditions such as ordering compliance with "any crime-related prohibitions." No evidence was presented at trial showing that Sou's actions were related to the use of nonprescription drugs. Moreover, the State's argument — that the condition prohibiting the consumption of nonprescription drugs is "duplicative" of the condition prohibiting the possession or consumption of controlled substances without a valid prescription — yields the same result. Thus, we remand to correct this error in the judgment and sentence.
Conclusion
Sou was not denied effective assistance when his counsel proposed erroneous self-defense instructions that were given by the court to the jury. While the instructional error shows deficient performance, this error did not prejudice Sou because evidence in the record does not support that he reasonably believed that he was about to be injured. The trial court, however, exceeded its authority in imposing a community custody condition that prohibited Sou from consuming nonprescription drugs without evidence that these drugs contributed to his crime. Accordingly, we reverse Sou's sentence solely as to this issue, and remand for entry of an order revising the judgment and sentence to remove this community custody condition.
Affirmed.