(concurring in part, dissenting in part) — I agree with the majority that the conviction of Daun Bennett must be affirmed because he has not shown his counsel was deficient and, thus, cannot prevail on his ineffective assistance of counsel claim. I also agree with the majority that the convictions of William Ameline and Vincent Fields should be reversed and remanded for retrial because the jury instructions used in their trials were clearly erroneous. However, I disagree with the majority’s dispositions as to Keith Studd, Lee Cook, and Raymond McLoyd. The majority affirms their convictions even though the jury instructions used in procuring their convictions contained fatal flaws which may have resulted in criminal convictions of innocent men.
The majority correctly frames the issue as to Studd, *556Cook, and McLoyd as í£[w]hether a jury instruction that erroneously states the law of self-defense furnishes a basis for a new trial when the erroneous instruction is requested by the defendant.” Majority at 538. The answer to this question is undeniably “yes.” In State v. LeFaber we held “A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial” and requires reversal. State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).
Here, defendants Studd, Cook, and McLoyd each admitted the killing but each raised self-defense at trial. Further, each defendant raised the specter that he reasonably, but mistakenly, feared for his life when he slayed the victim. The issue at each of the three trials in question was the validity of each defendant’s claim of self-defense. In particular the critical question was whether each defendant may have reasonably, albeit mistakenly, believed he was in mortal danger when he killed the victim.
In LeFaber we established that a defendant may successfully prevail on a claim of self-defense if he reasonably, but mistakenly, believed he was in imminent danger when he slayed the victim. 128 Wn.2d at 899-900. When such a defense is raised, the instructions “must more than adequately convey the law of self-defense” and “must make the relevant legal standard ‘manifestly apparent to the average juror.’ ” Id. at 900 (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)). Thus, a self-defense jury instruction is erroneous if it does not make it manifestly apparent to the average juror that a person is entitled to use self-defense even though he is not in actual danger so long as he reasonably (but mistakenly) believes he is in danger. State v. Theroff, 95 Wn.2d 385, 390, 622 P.2d 1240 (1980). The instruction is likewise erroneous if it leaves ambiguous whether actual danger is required. LeFaber, 128 Wn.2d at 902.
Here the court issued the approved Washington Fattern Jury Instruction 16.02 verbatim, which stated there must be actual danger in order for the defendant to invoke self-*557defense. See Majority at 539 (self-defense is available only if “ £[t]here was imminent danger of such harm being accomplished . . . .’ ”) (quoting WPIC 16.02)). As the majority notes, this instruction was invalidated shortly after the three trials by this court in LeFaber because it fails to make manifestly apparent that a mistaken but reasonable belief will suffice. Majority at 546. In fact, the instruction does the opposite by unambiguously providing that there must be actual imminent danger of such harm being accomplished. As such the instruction is clearly inadequate.7 Here, the juries might have found that the defendants reasonably, but mistakenly, feared for their lives when they acted in self-defense. In such case the instructions require the jury to convict while the law says acquit. Under LeFaber a conviction procured under such circumstances is constitutionally defective and reversal is mandated.
But the majority denies these defendants the new trial which our law requires on the ground that the defendants invited the error. Majority at 546-47. But in each of these three cases the defendants merely requested pattern jury instructions verbatim which were accepted and approved at the time.
The invited error doctrine “prohibits a party from setting up an error at trial and then complaining of it on appeal.” State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 *558Wn.2d 315, 893 P.2d 629 (1995). For example, in Pam, the State had intentionally created the appealable issue simply as a test case to push an appeal. State v. Pam, 101 Wn.2d at 511. Because the State had set up the error at trial only to challenge it on appeal we rightly closed the appellate court doors. In the present cases, however, the defendants did not set up the error in this sense. The defendants were simply trying to make an accurate statement of the law using approved pattern jury instructions. The majority emphasizes this point when it denies Bennett’s ineffective assistance of counsel claim on the grounds counsel acted properly in relying on accepted pattern jury instructions. See Majority at 551 (“LeFaber had not been decided at the time of Bennett’s trial, so his counsel can hardly be faulted for requesting a jury instruction based upon a then-unquestioned WFIC 16.02.”). The majority cannot have it both ways.
The majority concedes it applies a “strict rule.” Majority at 547. It does indeed. The majority sends three men to prison for life even though the jury instructions used in procuring their convictions were erroneous on the critical point. We cannot say how the jury would have ruled under proper instructions on self-defense. Indeed, it is conceivable that under correct jury instructions at least one of these defendants would be found not guilty and acquitted by reason of self-defense. The integrity of the system as well as the fates of three men imprisoned for life cry for a retrial.
I note that application of the invited error doctrine is not as inflexible as the majority suggests. For example, in LeFaber this court reviewed the erroneous self-defense instruction without attaching any importance to the question of whether the defendant had proposed the incorrect jury instruction. The critical question in LeFaber was whether the instruction, and thus the conviction, was erroneous. Even more on point is State v. Young, 48 Wn. App. 406, 415, 739 P.2d 1170 (1987) wherein the court found the invited error doctrine inapplicable because “the proposed *559instruction was a Washington pattern civil instruction.” The Court of Appeals did the same in State v. Studd:
Generally, defendants are not allowed to request an instruction at trial and later seek reversal on the basis of claimed error relating to the same instruction. State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990). The policy underlying this rule is the courts do not want to encourage defendants to mislead the court and, therefore, provide a reason for appeal. Id. at 868. However, this case poses a unique situation. Defendants offered a Washington Pattern Jury Instruction which at the time was upheld by this court, only later to be struck by the Supreme Court as an ambiguous and erroneous statement of the law. LeFaber, 128 Wn.2d at 901-02. This case presents circumstances which justify an exception to the invited error rule.
87 Wn. App. 385, 389-90, 942 P.2d 985 (1997).
We should allow a defendant to challenge erroneous jury instructions in cases where the defendant sought an approved pattern jury instruction in good faith only to have the same instruction invalidated as erroneous after defendant’s trial but before his appeal is finalized. Such a rule would be in keeping with the general rule that “constitutional rulings in criminal cases apply retroactively to all cases not yet finally decided on direct review.” State v. Campbell, 125 Wn.2d 797, 800, 888 P.2d 1185 (1995). Cf. Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (actual innocence may be shown notwithstanding procedural bar in habeas proceeding).
Additionally, such rule would be in keeping with that used in sister jurisdictions. For example, in the Ninth Circuit a defendant may challenge jury instructions even if he proposed or assented to them unless he knew or had reason to know they were faulty. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). California follows a similar rule: “For the doctrine of invited error to apply, it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act simply out of ignorance or mistake
*560.... This is because important rights of the accused are at stake, and it is the trial court’s duty fully to instruct the jury.” People v. Maurer, 32 Cal. App. 4th 1121, 1127, 38 Cal. Rptr. 2d 335 (1995). See also State v. Griffith, 110 Idaho 613, 716 P.2d 1385, 1386 (1986) (invited error doctrine inapplicable where counsel sought the instruction “without any apparent tactical purpose”).
To adhere to the majority’s strict rule under the unusual facts of the three cases at issue here sacrifices justice and sends three men to prison under an erroneous charge to the jury. The integrity of our system instead demands retrial for Studd, Cook, and McLoyd.8
As an aside the majority references the curing instruction, WPIC 16.07, and suggests that this instruction cured the “ambiguity” in WPIC 16.02, rather than created one. Majority at 549 (citing State v. Hutchinson, 135 Wn.2d 863, 884, 959 P.2d 1061 (1998)). However, WPIC 16.02 is not ambiguous. It is a clear misstatement of the law. A clear misstatement may not be cured by another instruction as we have squarely held any attempt to cure a misstatement results in an impermissible ambiguity. State v. Walden, 131 Wn.2d 469, 478, 932 P.2d 1237 (1997). Since I cannot reconcile this court’s well-reasoned and long-standing rule as articulated in Walden with its erroneous application in Hutchinson, I would give these defendants the benefit of the rule in Walden—a rule which Hutchinson does not purport to abandon except by its mistaken application. Compare Hutchinson, 135 Wn.2d at 885 (“While instruction 24 could have been interpreted to require actual imminent danger, instruction 30 explicitly informed the jury the defendant was entitled to act on appearances . . . .”) with Walden, 131 Wn.2d at 478 (“[T]he rule requiring instructions to be considered as a whole does not save the internally inconsistent instruction in this case.”).
Additionally, the majority’s treatment of the no-duty-to-retreat issue raised by Cook is unpersuasive. Cook asked for a no-duty-to-retreat instruction but was denied one even though such is an accurate statement of the law and the facts supported such instruction. See State v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984) (Washington follows the no-duty-to-retreat rule); State v. Theroff, 95 Wn.2d 385, 389, 622 P.2d 1240 (1980) (“Each side is entitled to have the trial court instruct upon its theory of the case if there is evidence to support that theory.”).