Opinion
40238-6-II
01-04-2012
STATE OF WASHINGTON, Respondent, v. KELLEY SUZANNE STEPHENS, Appellant.
UNPUBLISHED OPINION
HUNT, J.
Kelley Suzanne Stephens appeals her jury convictions for third degree assault and obstructing a law enforcement officer. She argues that the trial court erred (1) in giving the State's proposed jury instructions 11 and 12, which misstated the applicable law about police authority to enter a home, constituted an impermissible comment on the evidence, and created an error of constitutional magnitude; and (2) by admitting irrelevant evidence of her prior and subsequent contacts with police for which the trial court failed to follow the ER 404(b) balancing procedure. She also argues that in the absence of the improperly admitted prior and subsequent police contacts, the evidence is insufficient to support her convictions. Holding that jury instruction 12 improperly directed a verdict for the State, we reverse and remand for a new trial.
FACTS
I. Crimes
Pierce County Sheriff's Deputy Eric Jank knew that there was an outstanding bench warrant for Timothy Roy Clinton's arrest based on his plea of guilty to misdemeanor unlawful "solicitation to possess a controlled substance." Clerk's Papers (CP) at 105. Driving past the residence of Clinton's girlfriend, Kelley Stephens, on June 28, 2009, Jank saw Clinton in the front yard and stopped. Clinton first hid behind some bushes and then ran to the back of the house. Before attempting to arrest Clinton, Jank confirmed the arrest warrant. Because Jank knew that Clinton always carried a knife, Jank called for backup and for a K-9 unit. Responding to the call for backup, Deputy Dennis Miller drove behind Stephens' residence looking for Clinton. Jank then saw Clinton return to the front yard and, despite Jank's command to stop, Clinton entered Stephens' house.
Stephens came out into the yard to speak with Jank. When Jank asked Stephens to tell Clinton to come outside, Stephens replied that she had not seen Clinton go into the house. According to Stephens, Jank reiterated that he had seen Clinton run into the house and that he had a "felony" warrant for his arrest; Stephens reiterated that she had not seen Clinton go inside. III VRP at 125. When Jank asked her to step aside so that he could go inside her home to arrest Clinton, Stephens asked to see the warrant, asserting that she had a constitutional right to see the warrant before she let Jank into her home.
Jank told Stephens that he did not need to show her the warrant, that he did not have a physical copy of the warrant with him, and that the warrant was for Clinton's arrest. Stephens told Jank that she knew he did not have a felony warrant for Clinton because Clinton had pled guilty to only a gross misdemeanor. Jank told Stephens that if she did not get out of the way, he could arrest her for obstructing. Stephens walked back to the porch, stating that she was not letting the deputies inside her house without their first displaying a warrant.
The record does not show that the deputies attempted to obtain a paper copy of the warrant or otherwise to show Stephens that one existed.
Based on a similar previous encounter with Stephens, Jank believed that she was going to lock the door behind her; so he followed her to the porch. As Stephens entered the house and closed the sliding door hard behind her, Jank caught and held the door, which struck and pinned his arm against the door jamb. Jank pushed the door open and put Stephens in a hold by grabbing her wrist and arm while she struggled and yelled profanities at him. Miller joined Jank on the porch, where Jank restrained Stephens with handcuffs and put her in a chair. Stephens continued to struggle until Miller threatened to use his taser if she did not calm down. Jank arrested Stephens for third degree assault and put her in the back seat of his patrol vehicle.
When the K-9 arrived shortly thereafter, Jank removed a barricade that Clinton had erected at the back door, and the K-9 entered the home and secured Clinton. III VRP at 90-91.
II. Procedure
The State charged Stephens with one count of third degree assault, based on her closing the door on Jank and pinning his arm, and one count of obstructing a law enforcement officer, based on her conduct in hindering Clinton's arrest.
The State moved in limine to exclude as irrelevant Stephens' testimony that she believed (1) her constitutional protections prevented police from entering her home without her consent or a warrant; and (2) police could not lawfully enter her home merely by telling her they had an arrest warrant without showing her the actual document. Ruling Stephens' beliefs relevant, the trial court denied the State's motion and noted, "[I]f the State wants to look into some kind of jury instruction regarding the status of the law, that's something we can discuss later." 1 VRP (Dec. 15, 2009) at 7.
The State also moved in limine for admission of a prior incident that had occurred on March 15, 2008, when Jank had previously arrested Clinton at Stephens' home. The trial court granted the State's motion over Stephens' objection. This fact, though relevant to one of the issues that Stephens raises on appeal, does not pertain to the dispositive jury instruction issue.
At trial, Miller described (1) the charged incident as based on Stephens' having closed the door "hard" and "aggressively" on Jank's arm, and (2) his (Miller's) belief that Stephens had tried to close the door on Jank because the door "was slammed closed" and she had stood face to face with Jank. VRP (Dec.15, 2009) at 26. Jank testified that 15 months earlier, he had gone to Stephens' home to arrest Clinton and had spoken with Stephens through a back window; she had denied that Clinton was in the house. After he (Jank) had reiterated to Stephens that he knew Clinton was inside, she had tried to close the window, but he had stopped her and she had walked away from the window. A few minutes later, Stephens had allowed Jank to come in the front door to arrest Clinton.
Stephens testified that (1) she has no convictions, that she had lived in her home for seven years, and that Clinton lived at her house "most of the time"; (2) after talking with Jank outside her home, she wanted to return inside because she was concerned about Clinton's 18-year-old autistic nephew inside and about her pets, one of whom had just had extensive veterinary work on a shattered jaw; (3) she was not sure whether she had explained these circumstances to Jank; (4) she believed that Jank had lied to her about having a "felony" warrant because she knew that Clinton had pled guilty to only a misdemeanor offense; (5) she believed she had a constitutional right to refuse police entry into her home without presentation of a warrant; and (6) as she attempted to close the door, Jank stuck his arm in the door, which then hit him. She denied having intentionally closed the door on Jank's arm and having tried to hinder or to delay Clinton's arrest.
III VRP at 122.
III VRP at 129.
On cross-examination, the State asked Stephens if Clinton typically lived at her house; she replied, "[Y]eah, on occasion." III VRP at 137 (emphasis added). The State also asked Stephens if she believed she could deny police entry if they did not show her the warrant. She stated that she had believed that was her constitutional right, adding:
STEPHENS: . . . If I had looked through the house and found [Clinton], I would have done what I did before, opened the door and let them in.
[STATE]: You're not saying that you were cooperative with the police officers on the different occasions that they had come to try to contact Mr. Clinton, are you?
STEPHENS: I was-I didn't have the opportunity to be cooperative on the second occasion. I was on the first one.III VRP at 144.
Outside the jury's presence, the trial court (1) granted the State's request to impeach Stephens' testimony by cross-examining her about a later incident, on December 4, 2009; and (2) ruled that Stephens had "opened the door" to her level of cooperation with police. III VRP at 148. In the jury's presence, Stephens testified that she had answered police officers' questions to the best of her ability, but the police had not said that they had a warrant or that they wanted to come into the house to arrest Clinton on that other occasion. After Stephens rested, the State recalled Jank to testify further about this other incident. Again, this fact, though relevant to one of the issues that Stephens raises on appeal, does not pertain to the issues we address and resolve in this opinion.
The State proposed two jury instructions about police authority to serve an arrest warrant:
Jury Instruction 11
To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other [e]nclosure, if after notice of his office and purpose, he be refused admittance.
Jury Instruction 12
A valid misdemeanor arrest warrant gives police authority to enter a suspect's residence to make the arrest. The officer need not possess a physical copy of the warrant to make the arrest.CP at 41-42.
Although initially equivocal about whether she opposed instruction 12, Stephens objected on the record to both jury instructions. She first objected to instruction 11:
I have some questions. I guess an objection as to the first one. . . . The second instruction [instruction 12] I think is appropriate, dealing with some of the issues that came up. Just to clarify the officer's authority [under instruction 12], whether Ms. Stephens believed it at the time or not. I think that's an appropriate instruction, given the case and the facts we've heard. But the other one [instruction 11], I just don't see the purpose in it.III VRP at 160-61. The State responded that (1) instruction 11 mirrored RCW 10.31.040 almost verbatim; and (2) it had proposed instruction 11 to make clear that the police can lawfully enter a residence to arrest on a warrant, stating, "With the arrest warrant, [police] can then enter the residence. . . . And, in fact, they could actually knock the door down, if need be." III VRP at 161.
RCW 10.31.040 provides:
To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other [e]nclosure, if, after notice of his or her office and purpose, he or she be refused admittance.
Before ruling on instruction 11, the trial court asked if Stephens' counsel had "anything further." Her counsel responded: "No, Your Honor. I think it kind of encompasses the second instruction [instruction 12] though, where police have authority to enter a suspect's residence and make an arrest if they have a warrant." III VRP at 161. The following colloquy ensued:
THE COURT: I'm going to go ahead and give that proposed instruction [instruction 11]. It is-plainly it's a statement of the law given and it's out of the RCW. Is that a quote, I take it, from the RCW?
[STATE]: Yes. The first instruction [instruction 11] is exactly from [RCW] 10.31.040.
THE COURT: Okay. I think I understand why the State wants to offer it. I'm going to overrule the objection to that first supplemental instruction. And there's no objection to the second supplemental instruction?III VRP at 162 (emphasis added.)
Stephens then objected to this "second supplemental instruction" 12:
Although Stephens did not expressly state, "I object, " to oppose Instruction 12, she engaged in an extensive colloquy with the State and the trial court, raising the same issue that she now argues on appeal. The trial court also treated this colloquy as sufficiently specific to raise an objection when it ruled, "I'm going to go ahead and give both of those instructions [Instructions 11 and 12]." III VRP at 164.
[DEFENSE COUNSEL]: I do have a question on the second one. . . . Just because I don't know-I read State v. Hatch [sic] I didn't think inside that opinion it indicated that an officer need not possess the physical copy of the warrant to make an arrest. Is that in [RCW] 10.31.030 ?
[STATE]: I think in [RCW] 10.31.030, the defendant has a right to ask to see a copy of the warrant, but the officer need not have it on his person, but when they are arrested and brought to the jail, then the officer is to try to get them the ability to see it. . . . I guess I'm [talking] by analogy, clearly, if that's the only right a defendant would have, that clearly I think . . . supports that someone in Ms. Stephens' position does not have any greater rights [than the criminal suspect] . . ..
[DEFENSE COUNSEL]: It is . . . an interesting question. I mean, prior to our case and looking this up, I was . . . questioning whether or not an officer, when they come to a residence, if it's not the residence of the individual who's going to be arrested-in this case Ms. Stephens didn't have a warrant for her-what their authority was to enter the house without showing or providing a copy to the homeowner. And I wasn't able to find anything that said, yes, an officer must or needn't have an actual physical copy of a warrant on him.
Certainly, the first statement is somewhat of an applicable type case on the misdemeanor arrest warrant. The officers in State v. Hatch [sic], [they] went into the residence to arrest someone on a misdemeanor warrant. I believe my recollection is that residence wasn't the residence of the person who was arrested, either.
[STATE]: In Hatch [sic]?
[DEFENSE COUNSEL]: Yes.
[STATE]: I don't recall specifically. I would just note for the record, I think clearly, even from her testimony, I mean, this was, if not his permanent residence, a place where he clearly, if not always, stayed. That was her testimony on the stand. If there had been other . . . evidence of something different, I'm sure it would have been brought up or some type of motion would have been made.
[DEFENSE COUNSEL]: My only concern is I don't want to misstate the law. If that's not the law-
THE COURT: Well, in reading RCW 10.31.030, I think that is a reasonable construction of that part of it. . . . So I'm going to go ahead and give both of those instructions.III VRP at 162-64 (emphasis added).
We believe that the trial court and counsel intended to cite State v. Hatchie, 161 Wn.2d 390, 166 P.3d 698 (2007), throughout this entire colloquy. See also State v. Hatchie, 133 Wn.App. 100, 135 P.3d 519 (2006), aff'd, 161 Wn.2d 390, 166 P.3d 698 (2007).
RCW 10.31.030 provides, in relevant part:
The officer making an arrest must inform the defendant that he or she acts under authority of a warrant, and must also show the warrant: PROVIDED, That if the officer does not have the warrant in his or her possession at the time of arrest he or she shall declare that the warrant does presently exist and will be shown to the defendant as soon as possible on arrival at the place of intended confinement. (Emphasis added.)
Believing that instructions 11 and 12 correctly stated the law, the trial court overruled Stephens' objections and gave both instructions. Neither the State nor Stephens requested additional instructions; thus, the trial court gave no other instructions on this area of law. The jury found Stephens guilty of both counts. Stephens appeals.
ANALYSIS
Stephens argues that the trial court erred by giving the State's proposed jury instructions 11 and 12, which, she contends, misstated the applicable law and constituted an impermissible comment on the evidence. The State counters that (1) Stephens failed to object with sufficient specificity to both instructions below and, therefore, failed to preserve these instruction issues for appeal; but (2) if even preserved, jury instruction 11 accurately presented the law and was not an impermissible court comment on the evidence because it did not refer to elements of the charges. We disagree with the State that Stephens failed to preserve for appellate review the error in jury instruction 12; we agree with Stephens that instruction 12 misstated the law and requires reversal of her convictions.
Although some cases suggest that a party must propose an appropriate substitute instruction if the one given by the trial court is a correct statement of law, the State does not make this argument here. See Hoglund v. Raymark Indus., Inc., 50 Wn.App. 360, 368-69, 749 P.2d 164 (1987); Harris v. Burnett, 12 Wn.App. 833, 843, 532 P.2d 1165 (1975). Accordingly, we decline to invoke these cases as a potential bar to Stephens' otherwise preserved instructional error.
The State apparently drafted these instructions based on RCW 10.31.030 and RCW 10.31.040. Neither instruction, however, appears to have been based on any Washington Pattern Jury Instructions.
The State does not address the merits of Stephens' challenge to instruction 12.
Because we conclude that Stephens preserved her claim of error in instruction 12, which is dispositive, we do not address whether she also sufficiently preserved her claim of error in instruction 11.
A. Preservation of Error
An appellate court may refuse to review any claim of error which was not raised in the trial court. RAP 2.5(a); State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009). To claim error on appeal, an appellant must first show that she took exception to that instruction in the trial court and that her objection apprised the trial court of the precise points of law involved and reasons upon which she argued that the instruction was erroneous. CrR 6.15(c); State v. Bailey 114 Wn.2d 340, 345, 787 P.2d 1378 (1990) (citations omitted). Appellate courts have deemed an alleged instructional error preserved for review where the record reflects that the parties engaged in "extended discussions" concerning jury instructions and the trial court understood the basis for a party's objection. Crossen v. Skagit County, 100 Wn.2d 355, 359, 669 P.2d 1244 (1983).
Contrary to the State's assertion, the record shows that Stephens' objection to instruction 12 was sufficiently specific to apprise the trial court of her reasons for questioning whether the instruction was erroneous. After her initially equivocal statement, "I do have a question on the second one, " Stephens immediately engaged the trial court and the State in a lengthy colloquy about the same issue she now raises on appeal-whether the instruction accurately stated the law. Stephens cited both Hatchie, 161 Wn.2d 390, 166 P.3d 698 (2007), and RCW 10.31.030 in questioning (1) whether the police could lawfully enter her home to arrest Clinton, who, Stephens asserted was a nonresident, without presenting a warrant; and (2) whether the police needed to present a warrant at the time of entry into her home. Whether the police needed to present Clinton's arrest warrant before entering Stephens' home was not dispositive below; nor is it dispositive on appeal. Nevertheless, in referencing Hatchie (involving police authority to enter a third party's home), Stephens sufficiently drew to the trial court's attention the legal distinction between an accused's and a third party's privacy rights when police seek entry into a private residence to serve an arrest warrant. Moreover, as we discuss later in this opinion, it was critical for the trial court to instruct the jury about this important legal distinction for use in deciding the integrally-related factual issue of whether the State had proved the elements of the charged crimes beyond a reasonable doubt.
III VRP at 162.
We hold that Stephens' colloquy with the trial court and counsel was sufficient to apprise the trial court of the legal issue involved in instruction 12 and, therefore, that she preserved her challenge to this instruction for appeal. We now address the merits of that challenge.
Because we hold that Stephens adequately preserved the error in instruction 12, we need not address her alternate argument that, if she failed to preserve either instructional error, she may still argue them both on appeal because the errors are of constitutional magnitude.
B. Standard of Review
We review jury instructions de novo as questions of law. State v. Steen, 155 Wn.App. 243, 247, 228 P.3d 1285 (2010). To satisfy constitutional provisions for a fair trial, "jury instructions, when read as a whole, must correctly tell the jury of the applicable law, not be misleading, and permit the defendant to present [her] theory of the case." O'Hara, 167 Wn.2d at 105. Jury instructions, however, "'must more than adequately convey the law. They must make the relevant legal standard manifestly apparent to the average juror.''" State v. Borsheim, 140 Wn.App. 357, 366, 165 P.3d 417 (2007) (emphasis added) (quoting State v. Watkins, 136 Wn.App. 240, 241, 148 P.3d 1112 (2006)). Washington courts have held jury instructions inadequate where a single instruction was a correct statement of law but, when read as a whole, the jury instructions did not fully inform the jury about the relevant legal standard. See e.g., State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984) ("[S]tanding by itself, without additional instructions from the trial court, this instruction does not make the subjective self-defense standard 'manifestly apparent to the average juror.'") (quoting State v. Painter, 27 Wn.App. 708, 713, 620 P.2d 1001 (1980)) (internal quotation marks omitted).
Accord State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968) (jury instructions must be "readily understood and not misleading to the ordinary mind").
C. Misstatement of Law
Stephens argues that instruction 12 (1) misstated the law and effectively removed the ultimate question from the jury-whether Stephens was resisting lawful police action when she did not allow the officers into her home; and (2) thereby essentially directed the jury to conclude that the police did not overstep their authority when they entered her home to arrest Clinton without her permission or a search warrant. We largely agree. Whether Clinton resided at Stephens' home was a disputed factual issue central to Stephens' defense. Properly instructed, if the jury had a reasonable doubt about whether Clinton resided at Stephens' home, then it could not find that the State had proved the elements of the charged crimes.
As we discuss in more detail later in this opinion, the factual issue of whether Clinton resided in Stephens' home bore directly on critical issues concerning the following elements of the two charged crimes: (1) whether Stephens closed the door on the officer's arm with intent to prevent or to resist the execution of any "lawful" process or mandate of any court officer or the "lawful" apprehension of a person, or while the officer was performing his "official" duties, RCW 9A.36.031(1)(a), (g) (third degree assault); and (2) whether the police actions Stephens hindered, delayed, or obstructed were "official" powers or duties, RCW 9A.76.020(1) (obstructing).
Due process requires the State to prove every essential element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Deal, 128 Wn.2d 693, 698, 911 P.2d 996 (1996). Here, the State charged Stephens with third degree assault and obstructing a law enforcement officer; thus, the burden was on the State to prove all elements of these offenses.
Article IV, section 16 of the Washington Constitution prohibits giving an instruction that implies that the law establishes matters that the fact finder should determine. State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). Stephens argues that instruction 12 constituted a "patent misstatement of the law" because (1) the instruction explained only the police officers' authority to enter a suspect's residence, not their authority to enter the home of a third party; and (2) whether Clinton actually resided at Stephens' home was a question of mixed law and fact, the legal portion of which the trial court failed to resolve and the factual portion of which the improper instruction removed from the jury's purview. Br. of Appellant at 13. We agree.
Article IV, section 16 of the Washington Constitution provides: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." We acknowledge that Stephens also challenges these instructions as impermissible comments by the trial court about its personal opinion on the merits of the case. We do not reach this argument, however, because we agree with Stephens that instruction 12 was an incomplete and incorrect statement of the law that rendered her trial fundamentally unfair.
Under the Fourth Amendment to the United States Constitution, police officers may enter a suspect's home to arrest him if the officers have (1) a warrant for the suspect's arrest and (2) reason to believe that the suspect is inside the dwelling at the time of their entry. Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.") (Emphasis added). But when, as here, the residence of the person named in the arrest warrant is disputed, third party privacy rights are implicated. State v. Winterstein, 167 Wn.2d 620, 630, 220 P.3d 1226 (2009). In order to protect these third party privacy interests, our courts have interpreted our state constitution more broadly than federal law: Under article I, section 7, the police must have "probable cause" to believe that the suspect named in the arrest warrant is a resident of the home that they wish to enter. Hatchie, 161 Wn.2d at 404 ("probable cause" is the minimum standard for determining when police have reason to believe a place to be entered is the suspect's residence); State v. Hatchie, 133 Wn.App. 100, 113-14, 135 P.3d 519 (2006), aff'd, 161 Wn.2d 390, 166 P.3d 698 (2007). If, based on objective evidence, the police lack probable cause to believe that the subject of the arrest warrant is a resident of the home they wish to enter, then the arrest warrant does not authorize the police to enter the home. Winterstein, 167 Wn.2d at 630; see also Hatchie, 161 Wn.2d at 403.
In Hatchie, the Washington Supreme Court recognized that most state courts, and many federal circuit courts, have interpreted Payton's "reason to believe" language as requiring a "less exacting" standard than "probable cause" to believe that the subject of the arrest warrant is a resident of the entered home. Hatchie, 161 Wn.2d at 404. Our supreme court further explained that our state's "probable cause" requirement is a protection of third party privacy interests that comes into play when the police enter the home of a non-suspect. Winterstein, 167 Wn.2d at 629.
Wash. Const. art. I, § 7.
Thus, "[t]he existence of an arrest warrant and the belief that the subject may be a guest in a third party's home is insufficient legal authority to enter the home." State v. Anderson, 105 Wn.App. 223, 231, 19 P.3d 1094 (2001); see also Steagald v. United States, 451 U.S. 204, 213, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Absent the homeowner's consent or exigent circumstances, the police must obtain a search warrant to enter a third party's home to serve the arrest warrant. See Hatchie, 161 Wn.2d at 402; Steagald, 451 U.S. at 213-14, 216. To intrude into a third party's residence, the police need the homeowner's consent, exigent circumstances, or a search warrant because
[a] third party's privacy interest in being free from unreasonable invasion of [her] home is distinguishable from [a] suspect's interest in avoiding unreasonable seizure. It is the rights of the homeowner that the issuing magistrate must balance with the necessity for the search. Unless the third party's interests are considered, the search is no more reasonable than if no [arrest] warrant had been issued. To allow an arrest warrant for a nonviolent misdemeanor to create carte blanche for searching the homes of third parties creates the risk of the sort of abuse complained of here: using the arrest warrant as a "pretext for entering a home in which the police have a suspicion, but not probable cause to believe, that illegal activity is taking place."Hatchie, 161 Wn.2d at 402-03 (emphasis added) (second emphasis omitted) (quoting Anderson, 105 Wn.App. at 232).
Contrary to the State's assertion that non-suspect Stephens' rights were not "any greater" than arrestee Clinton's rights, the law clearly provides greater safeguards to a third-party homeowner than it provides to a criminal suspect. Steagald, 451 U.S. at 215-16. Washington law has long held:
III VRP at 162-63.
An arrest warrant for a suspect only suffices to allow entry into the suspect's own residence, not the residence of a third person. Absent consent or exigent circumstances, which may include hot pursuit, entry into the home of a third party to conduct a search or make an arrest is unreasonable unless done pursuant to a [search] warrant.Hocker v. Woody, 95 Wn.2d 822, 825, 631 P.2d 372 (1981) (citations omitted). Here, because Stephens was not the subject of the arrest warrant, she was a "third party" when the police sought entry into her home to arrest Clinton.
To resolve the legal issues pertinent to rendering verdicts on the charges against Stephens, the jury needed to resolve the underlying factual issue of whether Clinton "resided" with Stephens in her home or whether Clinton was merely in Stephens' residence temporarily: In other words, were the police entering suspect Clinton's home (shared jointly with Stephens) or entering only third-party non-suspect Stephens' home in which Clinton was a guest. If the jury decided that the State had proved beyond a reasonable doubt the fact that Clinton shared the home with Stephens, then Clinton's arrest warrant was sufficient to allow the police to enter the home without her consent. But if the jury decided that the State had not proved beyond a reasonable doubt the fact that Clinton shared the home with Stephens, then Clinton's arrest warrant was insufficient to allow the police to enter the home without Stephens' consent. Instruction 12, however, failed to delineate this critical distinction between police authority to enter the home of a suspect and the more restricted police authority to enter the home of a non-suspect third party when serving an arrest warrant. Instruction 12 told the jury only:
We do not address the other possibilities for lawful entry because there is nothing in the record suggesting that the police also had a search warrant or that there were exigent circumstances justifying their entry.
A valid misdemeanor arrest warrant gives police authority to enter a suspect's residence to make the arrest. The officer need not possess a physical copy of the warrant to make the arrest.CP at 42. Although instruction 12 accurately summarized some statutory language and correctly informed the jury that "[a] valid misdemeanor arrest warrant gives police authority to enter a suspect's residence to make the arrest, " this language covered only part of the applicable law in light of the pivotal factual dispute about whether Clinton resided in the home. Neither instruction 12 nor any other instruction informed the jury about the legal limits on police authority, or lack of authority, to enter a private home that is not the suspect's residence. Stephens' jury received no instruction that, in these circumstances, the law requires the police (1) to obtain the third party's consent; (2) if the third party does not consent, to obtain a search warrant for the third party's home; or (3) otherwise, to justify the entry with legally recognized exigent circumstances, such as "hot pursuit." Hocker, 95 Wn.2d at 825; Hatchie, 161 Wn.2d at 402-04.
The State proposed instruction 12 to summarize RCW 10.31.030 for the jury, specifically, that (1) although an arrestee has a right "to see" a copy of his arrest warrant, the arresting officer need not have the warrant on his person at the time of the arrest; and (2) he may show the warrant to the arrestee after arresting him and bringing him to jail. III VRP at 162. Outside of the jury's presence, the State further explained its purpose for proposing instruction 12:
. . . I'm [talking] by analogy, clearly, if that's the only right a defendant would have, that clearly I think . . . supports that someone in Ms. Stephens' position does not have any greater rights, and certainly would not have a right to insist that there be a physical copy of the warrant at the time it's being served.III VRP at 162-63 (emphasis added).
See also Steagald, 451 U.S. at 215-16.
To provide a complete and, thus, accurate statement of the applicable law, it was essential for the trial court to include these legal restrictions in the jury instructions because (1) Stephens was not the subject of the arrest warrant, (2) she had refused consent for the police to enter her home, and (3) they had no search warrant or exigent circumstances separately authorizing entry into her home to arrest Clinton. As we have previously noted, instruction 12's failure to instruct the jury about third-party rights and these restrictions on police authority presented the jury with an incomplete and incorrect statement of the law relating to the factual issues that the jury needed to resolve in the course of deciding whether the State proved Stephens' guilt of the charged crimes beyond a reasonable doubt: That the "victim, " Officer Jank, acted within the scope of his "official" powers or duties at the time of the crimes is an element of both third degree assaultand obstructing a law enforcement officer.
A person is guilty of assault in the third degree if she:
(a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself, herself, or another person, assaults another; or
. . .
(g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault; . . . RCW 9A.36.031 (1) (emphasis added).The legislature amended RCW 9A.36.031 in 2011, but these amendments are not relevant here. Laws of Washington 2011, ch. 336 §359.
A person is guilty of obstructing a law enforcement officer "if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties." RCW 9A.76.020(1) (emphasis added).
If, however, Officer Jank lacked lawful authority to enter Stephens' home to arrest Clinton, then Jank was not acting within the scope of his "official" powers or duties at the time that Stephens refused his entry and thereby allegedly committed the charged offenses. As Stephens notes, (1) the trial court neither determined as a matter of law nor instructed the jury about whether the police had probable cause to believe Clinton actually resided at her home; and (2) the jury could have interpreted jury instruction 12 as a directive that Stephens acted improperly by demanding to see a copy of Clinton's arrest warrant and questioning Officer Jank's authority to enter her home when he told her he did not have a warrant with him.
Arguably, if instruction 12 expressly pertained only to a "suspect's residence, " the jury might have disregarded this instruction if it believed that the residence was third-party Stephens', not arrestee Clinton's; we reiterate, however, that the evidence was inconclusive on this factual point. Moreover, the trial court provided neither additional language in instruction 12 nor any additional separate instruction clarifying the legal effect of this limiting factor-whose residence was this? Thus, instruction 12 impliedly and erroneously conflated suspects' rights and non-suspect third parties' rights with respect to (1) the scope of lawful police entry to effectuate an arrest warrant and (2) a third-party's right to refuse such entry. And the jury received no other proper instruction on the law distinguishing third-party-homeowners' highly protected privacy rights from suspects' more limited rights in this context or on the corresponding different scopes of police authority depending on whether the suspect lives at the residence that the police seek to enter. Hatchie, 161 Wn.2d at 392-93.
Furthermore, at Stephens' trial, the parties focused on whether the police were legally required to show a copy of Clinton's arrest warrant to non-suspect resident Stephens. The parties did not squarely address whether Clinton was actually a resident of Stephens' home. For example, outside of the jury's presence, the State opined:
[E]ven from [Stephens'] testimony, I mean, this was, if not his permanent residence, a place where he clearly, if not always, stayed. That was her testimony on the stand. If there had been other . . . evidence of something different, I'm sure it would have been brought up or some type of motion would have been made.III VRP at 163-64 (emphasis added).
Furthermore, the record does not support the State's assertion that Stephens' testimony showed Clinton was a resident in her home. When the State asked if Clinton typically lived at her house, Stephens replied, "[Y]eah, on occasion"; and her general testimony indicated that she considered the house to be her home, which Clinton regularly visited. III VRP at 137. Additionally, both Clinton's arrest warrant and his summons listed an address other than Stephens' address. Thus, the matter of Clinton's residence was neither clear nor settled. Clinton's residence was a critical factual question for the State to prove beyond a reasonable doubt and for the jury to decide and to resolve in Stephens' favor if the evidence was lacking. In the absence of another instruction explaining to the jury the legal consequence of Clinton's residence or lack of residence in Stephens' home, instruction 12 had the effect of taking this crucial issue of fact away from the jury.
Without such a clarifying instruction or a trial court determination that the police had probable cause to believe that Clinton resided at Stephens' residence, the jury could readily have read instruction 12 as implying that Officer Jank acted within the scope of his duties when he entered Stephens' home to arrest Clinton, despite his lack of her consent, his lack of a search warrant, and his lack of exigent circumstances. Because there was no instruction informing the jury that it needed to consider whether Officer Jank had authority to enter Stephens' home, the jury could have inferred from the incomplete, and therefore, erroneous, instruction 12, that Stephens unlawfully questioned police authority and unlawfully refused to allow their entry without first displaying Clinton's arrest warrant.
As we have already noted, due process requires the State to prove all elements of a crime beyond a reasonable doubt, Deal, 128 Wn.2d at 698; and jury instructions, when read as a whole, must tell the jury of the applicable law, not be misleading, and permit a defendant to present her theory of the case, O'Hara, 167 Wn.2d at 105. In the absence of additional "readily understood" instructions, instruction 12 was "misleading to the ordinary mind" in omitting critical legal standards governing the scope of police authority to enter a third party's home to arrest a nonresident suspect. State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968). We hold, therefore, that instruction 12 did not make the relevant legal standard "manifestly apparent" to the jury and that, read as a whole, the jury instructions did not satisfy constitutional requirements for a fair trial for Stephens in that they were "misleading, " did not "correctly tell the jury of the applicable law, " and did not permit Stephens "to present [her] theory of the case." O'Hara, 167 Wn.2d at 105.
Borsheim, 140 Wn.App. at 366 (quoting State v. Watkins, 136 Wn.App. 240, 241, 148 P.3d 1112 (2006)).
We reverse and remand for a new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: PENOYAR, C.J., QUINN-BRINTNALL, J.