Fl LE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 88945-7
Respondent, )
)
v. ) EnBanc
)
RONALD MEL YIN MENDES )
a/k/a RONALD JOSEPH MENDES, )
)
Petitioner. )
) Filed APR 1 0 2014
C. JOHNSON, J.-The central issue in this case is whether Ronald Mendes
was "compelled" to waive his constitutional right not to testify as a witness in his
own criminal case after the trial court refused to rule on whether the evidence
presented during the State's case in chief entitled Mendes to a self-defense
instruction. Mendes challenges his conviction for felony murder based on
allegations that he shot and killed Danny Saylor after an altercation at Saylor's
home. At trial, Mendes's theory of the case was that he acted in self-defense after
Saylor came at him with a baseball bat. After the State rested, Mendes's counsel
asked the court to make a preliminary ruling on whether enough evidence had been
State v. Mendes (Ronald M), No. 88945-7
presented through the State;s witnesses to warrant a self-defense instruction.
Counsel explained that Mendes did not wish to testify unless the court found that
more testimony was necessary on this issue. The State objected, and the trial court
declined to rule on Mendes's request. Mendes then testified on his own behalf.
Mendes was convicted of felony murder. 1 On appeal, Mendes argued that the trial
court improperly compelled him to testify when it declined to rule on whether the
State's evidence alone entitled him to a self-defense instruction. The Court of
Appeals rejected this argument and held that Mendes was not entitled to an
advisory ruling on jury instructions before the close of all the evidence and that
Mendes's decision to te,stify was voluntary and tactical. We affirm.
FACTS AND PROCEDURAL HISTORY
Mendes met Lori Palomo in October 2007, when Palomo was temporarily
estranged from her long-term and live-in boyfriend, Saylor. Palomo and Mendes
engaged in a three·· week intimate relationship that ended when Palomo returned to
live with Saylor. Even though Saylor and Palomo were back together, Mendes
occasionally came to Saylor's house to see Palomo. All three were
methamphetamine users.
1Mendes was also convicted of a firearm enhancement and four counts of witness
tampering but did not challenge those convictions.
2
State v. Mendes (Ronald M), No. 88945-7
One night, while Palomo's car was parked at Saylor's house, someone
vandalized it. Palomo and Saylor suspected Mendes was the vandal and thereafter,
Saylor did not want Mendes to come over. Palomo asked Mendes not to come
around anymore.
· On January 27, 2008, Mendes returned to Saylor's house armed with a
loaded .45 caliber gun. Charles Bollinger, one of three house guests of Saylor's,
met Mendes at the front door. Bollinger advised Mendes that he should not be at
the home. Bollinger and Mendes went to a gas station and then returned to the
home. During their trip to the gas station, Mendes showed Bollinger the gun. Upon
returning to the house, Bollinger woke Saylor to inform him that Mendes was in
the house. McKay Brown, another house guest, advised Mendes to leave, but he
did not leave.
Learning that Mendes was in the house, Saylor dressed and went to the front
room. A brief "ruckus" occurred, in which Saylor pushed Mendes against the front
door and the two swung at each other. 7 Verbatim Report of Proceedings (VRP)
(Apr. 25, 2011) at 324. Mendes then aimed the gun at Saylor and said, "I'll smoke
you, mother fucker." 8 VRP (Apr. 26, 2011) at 456. Saylor left the front room to
find his baseball bat, and Bollinger yelled at Mendes again to leave.
' .' '
During this time, Mendes claims that he tried to leave but could not move
quickly because of a bad hip and at one point, he paused because he thought he
3
State v. Mendes (Ronald M), No. 88945-7
dropped his methamphetamine. When Saylor returned to the front room with the
bat in the air, Bollinger had Mendes near the front doorway. Mendes saw Saylor
coming toward him with the bat in the air. Mendes immediately shot Saylor in the
chest, killing him.
The jury found l\1endes guilty of second degree murder and guilty of
unlawful possession ofa firearm. IVIendes appealed and in an unpublished opinion,
4 the Court of Appeals reversed his conviction. The Court of Appeals reversed
because Mendes's trial counsel was ineffective for failing to request a revived self-
defense jury instruction, and because the trial court erred in failing to instruct the
jury that it could acqui~ Mendes of second degree murder if it found that he acted
in self-defense when he committed the predicate assault. 2
On remand and by amended information, the State charged Mendes with
second degree intentional murder) second degree felony murder, and four counts of
. .,
w~tness tampering. After the State's case in chief, Mendes asked the trial court
whether he would be entitled to a self-defense instruction based on the State's
evidence alone. The trial court declined to decide the motion until both sides
rested. Mendes testified but told the court that his testimony would be given over
his standing objection and that his decision to testify was based on the court's
2
State v.. Mendes, noted at 156 Wn. App. 1059 (2010).
4
State v. 1\IIendes (Ronaldfl/1), No. 88945-7
ruling. The jury convicted Mendes of second degree felony murder, the firearm
enhancement, and four counts of witness tampering. Mendes was sentenced to 517
months. Mendes appealed the felony murder conviction. The Court of Appeals
affirmed. We granted review only on the issue of compelled testimony. State v.
Mendes, 178 Wn.2d 1010,311 P.3d26 (2013).
ANALYSIS
1. Ruling on Jury Instructions
·The· first question presented is whether, upon motion by the defendant, a trial
court must give a ruling on jury instructions before the close of all the evidence.
Criminal Court .Rule (CrR) 6.15(a) 3 tells us when parties must offer proposed jury
.
instructions~ but neither this rule nor other court rules tell us whether a court is
required to decide if a defendant is entitled, upon request, to a self-defense
instruction at the close of the State's case.
--------.- . . . .-=------·-·_·_;;..
..
3
CrR 6.15(a) provides, "Proposed Instructions. Proposed jury instructions shall be
served and filed when a case is called for trial by serving one copy upon counsel for each party,
by filing one copy with the clerk, and by delivering the original and one additional copy for each
party to the trial judge. Additional instructions, which could not be reasonably anticipated, shall
be served and filed at any time before the court has instructed the jury.
"Not less than 10 days before the date of trial, the court may order counsel to serve and
file proposed instructions not less than 3 days before the trial date.
"Each proposed instruction shall be on a separate sheet of paper. The original shall not be
numbered nor include citations of authority.
"Any superior court may adopt special rules permitting certain instructions to be
request(3d by number from any published book of instructions."
5
State v. Mendes (Ronald M), No. 88945-7
Mendes argues .that nothing in the court rules forbids a trial court from ruling
ort ~his sort of motion. He cites State v. Maurer, 34 Wn. App. 573, 576, 663 P.2d
152 (1983), for the proposition that even when no statute or rule authorizes the
specific action, it does not follow that the court is powerless to act. On the other
hand, he cites no rule or statute mandating that a trial judge rule on jury
iristructions before all of the evidence is presented.
J Mendes also argues that in a criminal trial a defendant may challenge the
sufficiency of the evidence at several points throughout the proceeding, including
before trial and at the end of the State's case in chief. State v. Knapstad, 107
Wn.2d 346, 356-57, 729 P.2d 48 (1986). We find Mendes's reliance on Knapstad
misplaced. While it is true that the trial court may rule on the sufficiency of the
evidence at the end of the State's case in chief, the rule in Knapstad is consistent
with CrR 8.3(b ). CrR 8.3(b) provides in relevant part that "[t]he court, in the
furtherance of justice, after notice and hearing, may dismiss any criminal
prosecution due to arbitrary action or governmental misconduct." There is no
equivalent rule requiring a trial court to decide if a defendant is entitled to a self-
defense instruction at the close of the State's case. As mentioned above, CrR 6.15
6
State v. Mendes (Ronald 1\!/.), No. 88945-7
is the only rule regarding jury instructions in criminal cases and it is silent on the
. 4
ISSUe.
We hold that upon motion by either party, a trial court has discretion to give
a preliminary ruling on jury instructions at any time during trial, but nothing
supports the conclusion that a trial court must make a ruling on jury instructions
before all parties have rested. CrR 6.15( a) contemplates that jury instructions be
~ubrnitted before trial and that the jury instructions could be settled before trial.
The rule also contemplates that jury instructions can be submitted and discussed
during the presentation of evidence or even during jury deliberations. We note that
"it is error to give an instruction which is not supported by the evidence." State v.
Benn, 120 Wn.2d 631, 654? 845 P.2d 289 (1993) (citing State v. Hughes, 106
Wn.2d 176, 191, 721 P.2d 902 (1986)). Given this, and given CrR 6.15(a) is silent
' '
as to when a trial court must make a ruling on jury instructions, we hold that a trial
court has discretion as to when to rule on jury instructions.
2. "Compelled" Testimony
The second question presented is whether Mendes was compelled to testify
in violation of his constitutional rights after the court declined to rule whether the
State's evidence alone entitled him to a self-defense instruction. The Fifth
4
The denial of a defendant's request to have the trial court decide a midtrial request on an
instruction is not error requiring a new trial.
7
State v. Mendes (Ronald M), No. 88945-7
Amendment to the federal constitution provides that "[n]o person ... shall be
compelled in any criminal case to be a witness against himself' and article I,
section 9 of the Washington State Constitution provides that "[n]o person shall be
compelled in any criminal case to give evidence against himself." We interpret
these two constitutional provisions consistently. State v. Unga, 165 Wn.2d 95, 100,
196 p .3d 645 (2008).
·~ '(,'The use of the word "compelled" connotes that the accused must be forced
to testify against his will, that the testimony is exacted under compulsion and over
his . objection."' State v. VanAuken, 77 Wn.2d 136, 138, 460 P.2d 277 (1969)
. . . '
(quoting State v. Jeane, 35 Wn.2d 423, 433, 213 P.2d 633 (1950)). The right
against self-incrimination is intended to prohibit the inquisitorial method of
investigation in which the accused is forced to disclose the contents of his mind or
speak:his guilt. At trial, the right against self-incrimination generally prohibits the
State from forcing the defendant to testify. State v. Easter, 130 Wn.2d 228, 236,
. ' .
922 P.2d 1285 (1996).
Very few recent cases exist where a defendant has been found to be
"compelled" to testify in violation of their constitutional rights. 5 In State v. Foster,
5
ltl. fact, many cases dealing with compelled, in court testimony discuss when a
defendant can be compelled to testify under a grant of immunity. See, e.g., State v. Carroll, 83
Wn.2d 109, 112, 515 P.2d 1299 (1973).
' .'
8
State v. Mendes (Ronald lvl), No. 88945-7
91 Wn.2d 466, 472, 589 P.2d 789 (1979), the defendant argued that he was not
given sufficient notice that the jury would be instructed on the charge of negligent
assault, and therefore he was wrongfully led to waive his privilege against self-
incrimination as guaranteed by the Fifth Amendment. In other words, the
defendant argued that he would not have testified had he known that the jury was
going to be instructed on the charge of negligent assault. We rejected this argument
imd held that there was no evidence of compulsion to testify, "rather, the record
r~'flects that the defendant volun1:arily testified in seeking to exculpate himself."
Foster, 91 Wn.2d at 473. We found the Fifth Amendment challenge to be without
merit because the defendant was represented by counsel and made the tactical
decision to testify.
ln. VanAuken, defendants contended that the admission of a policewoman's
testimony forced them to take the witness stand and testify contrary to the mandate
of article I, section9. We held that "'[t]he proper grounds for the exclusion of a
confession are that it has been obtained in violation of the constitutional
requirell!ent of due pr()cess or that it has not met the test of our statutory
. . .
requirement for admissibility of confessions."' VanAuken, 77 Wn.2d at 138
(qu:oting State v. Moore, 60 Wn.2d 144, 147, 372 P.2d 536 (1962)). In this case,
the admission of the policewoman's testimony did not operate to "compel"
defendants to testify in the constitutional sense of the term. "To hold otherwise
9
State v. lvfendes (Ronald M), No. 88945-7
could create the incongruous result that the state could not introduce otherwise
valid evidence simply because defendants might feel a need to take the stand and
contradict or explain it." VanAuken, 77 Wn.2d at 138.
Mendes argues that this case is distinguishable from Foster because Mendes
sought clarification on potential jury instructions before he chose to testify and
because Mendes was not asking the trial court to exclude an instruction that the
·.State was otherwise entitled to only because it contradicted his version of events.
Therefore, he argues the trial court's refusal to rule on his motion, and the refusal
to say whether the evidence presented in the State's case would entitle Mendes to a
self-defense instruction, forced Mendes to waive his constitutional rights and
compelled him to testify against his will.
The State argues that like many defendants before him, Mendes had to make
the tactical decision, in consultation with his attorney, whether or not to take the
stand in his defense. ·we agree. Our case law has consistently held that a defendant
is not "compelled" to testify in violation of their constitutional rights in a situation
like this case. No one forced Mendes to testify in a constitutional sense. The record
establishes that in consultation with his attorney, Mendes chose to take the stand.
Although defendants are regularly faced with the dilemma of a choice between
complete silence and presenting a defense, it has never been thought of as a
10
State v. Mendes (Ronald M), No. 88945-7
violation of the privilege against compelled self-incrimination. We affirm the
Court of Appeals.
WE CONCUR:
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