¶23 (concurring) — Although I agree with the result reached by my colleagues, I write separately to address the state of RAP 2.5(a)(3) analysis in Washington jurisprudence. Many conflicting recent opinions address what constitutes a “manifest error affecting a constitutional right” such that the error need not be preserved in the trial court but may be raised for the first time on appeal. In my opinion, these cases mistakenly seek to interpret a phrase that is clear on its face and should not be interpreted by the very courts whose jurisdiction the rule limits.
History of Reviewing Errors Raised for the First Time on Appeal
¶24 Appellate courts in this country do not generally review errors raised for the first time on appeal. As longtime First Circuit Judge Frank Coffin eloquently noted,
[A]ppellate courts in civil law jurisdictions will review issues of fact with little deference to trial court findings and will even receive new evidence. . . . But in the United States . . . the ancient writ-of-error way of thinking still holds sway—the concept that the target of an appeal is the alleged error(s) of the trial judge, not whether a fresh view of facts and legal issues would command a different result. Consequently our appellate courts step into the shoes of the trial judge and view the facts and issues as they were presented to him.
But there is more than history and tradition supporting our adherence to the record made below. There is an instinct of fairness due both the trial judge or agency and a litigant’s adversary a sense that one’s opponent should have a chance to defend, explain, or rebut some challenged ruling and that the trial judge should have a clear first chance to address the issue. Indeed, if appellate courts were to consider some unpreserved issues but not others, depending on gradations of sympathy the result would be an extremely uneven playing field.
*407There is also the canny recognition that if late-blooming issues were allowed to be raised for the first time on appeal, this would be an incentive for game-playing by counsel, for acquiescing through silence when risky rulings are made, and, when they can no longer be corrected at the trial level, unveiling them as new weapons on appeal. Finally, there is an element of institutional self-preservation in closing the door to what could be a flood of open-ended appellate opportunities.
Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging 84-85 (1994). In accord with Judge Coffin’s sentiments, Washington has long recognized the fundamental fairness of requiring parties to preserve issues they wish to present to the appellate courts for review.
¶25 For instance, in 1861, when “Washington” still included the whole of Idaho and parts of Colorado and Montana, the Supreme Court of the Washington Territory decided Blumberg v. McNear, 1 Wash. Terr. 141 (1861). In this wharfage case, Blumberg petitioned for a mistrial because the trial court refused to give his proposed jury instructions. Justice Oliphant’s opinion noted,
These instructions are not properly before the Court, not having been excepted to at the time. When a party wishes the action of the Court below to be reviewed upon a writ of error, for refusing or granting a new trial — to the admission or rejection of evidence — refusing to give instructions prayed for — or to the charge of the Court, he must except or object, as the case may be, at the time, and have the same noted by the Judge, or else they will not be regarded by the Supreme Court.
Blumberg, 1 Wash. Terr, at 141-42 (emphasis added).
¶26 Thus, 115 years before the adoption of RAP 2.5(a)(3), absent a contemporaneous objection at trial, an appellate court could not properly review an assignment of error. And, although the Blumberg court did not address whether an appellate court could review a manifest error raised for the first time on appeal, in Williams v. Ninemire, 23 Wash. 393, 63 P. 534 (1900), the court did review an erroneous jury instruction not objected to at trial that, in effect, directed a *408verdict against the appellant. Thus, the exception allowing review of an error raised for the first time on appeal for “manifest error affecting a constitutional right” existed long before the adoption of RAP 2.5(a)(3).
¶27 Between Blumberg in 1861 and the adoption of RAP 2.5(a)(3) in 1976, the Washington Supreme Court handed down over 50 cases that in one way or another, addressed “manifest error.” And although research reveals that these cases use the term without defining it, Black’s Law Dictionary dates the first English usage of “manifest error” to the 18th century and describes it as “[a]n error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record.” Black’s Law Dictionary 622 (9th ed. 2009). Review of over 100 years of Washington jurisprudence confirms this.
¶28 In the case of State v. Phillips, 59 Wash. 252, 259, 109 P. 1047 (1910), for instance, the Supreme Court stated,
The aid of counsel is guaranteed by the constitution to every person accused of crime, and this is universally recognized as one of the surest safeguards against injustice and oppression. Any conduct or statement on the part of the court that tends to impair the influence or destroy the usefulness of counsel is palpable and manifest error.
And in Sawdey v. Spokane Falls & Northern Railway, 27 Wash. 536, 538-39, 67 P. 1094 (1902), the pervasive usage of the term is made clear:
And, in support of their position, [counsel argues] that an assignment of error is an assignment of ignorance, for error implies ignorance; that to charge gross, palpable, or manifest error,—terms which are commonly found in briefs filed in appellate courts,—is to charge uncommon error, which is uncommon ignorance; and that to say that the action of the court was an “extrajudicial assumption of power” was to say that the judge assumed to decide that which did not belong to the judge to determine.
(Emphasis added.) In McLain v. Easley, 146 Wash. 377, 381-82, 264 P. 714 (1928), the Supreme Court went so far *409as to recognize its own manifest error on a motion for reconsideration:
Our attention is now called to a manifest error, inadvertently made, in the remanding of the case to the superior court and directing the entry of judgment upon the verdict rendered in favor of appellants. There had been made by respondents in the superior court, not only a motion for judgment notwithstanding the verdict, which motion was granted, but also, in the alternative, a motion for new trial, which was not disposed of; this because there was no occasion for the court considering the motion for a new trial after granting the motion for judgment notwithstanding the verdict. This condition of the record was overlooked in the Departmental decision. It is plain, under our previous holdings, that upon the reversal of the judgment notwithstanding the verdict, there being a motion for new trial undisposed of, the case should have been remanded to the superior court for disposition of that motion and for further proceedings.
(Emphasis added.)
¶29 Clearly, history reveals that the “manifest error” standard—at least in relation to obvious departures from controlling law—has long precedence in Washington. Thus, it is unsurprising that, in 1976, Washington rejected the federal courts’ more expansive “plain error rule” in favor of this state’s longstanding “manifest error” jurisprudence.
The Federal Plain Error Rule
¶30 In November 1972, the United States Supreme Court proposed that federal courts adopt the final version of the Federal Rules of Evidence drafted by the Advisory Committee on Rules of Evidence.17 56 F.R.D. 183, 184 (1973). The final version of Fed. R. Evid. 103 reads, in part,
*410(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.
56 F.R.D. at 194-95. The notes accompanying these sections of Fed. R. Evid. 103 stated,
Subdivision (a) states the law as generally accepted today. Rulings on evidence cannot be assigned as error unless (1) a substantial right is affected, and (2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. The objection and the offer of proof are the techniques for accomplishing these objectives. . . . The rule does not purport to change the law with respect to harmless error. See 28 USC § 2111, ER.Civ.R 61, F.R.Crim.P. *41152, and decisions construing them. The status of constitutional error as harmless or not is treated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh. denied id. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241.
Subdivision (d). This wording of the plain error principle is from Rule 52(b) of the Federal Rules of Criminal Procedure. While judicial unwillingness to be constricted by mechanical breakdowns of the adversary system has been more pronounced in criminal cases, there is no scarcity of decisions to the same effect in civil cases. ... In the nature of things the application of the plain error rule will be more likely with respect to the admission of evidence than to exclusion, since failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the error.
56 F.R.D. at 195-96. In January 1975, Congress promulgated the Federal Rules of Evidence. Pub. L. No. 93-595, 88 Stat. 1926 (1975). Fed. R. Evid. 103 and its accompanying notes did not change.
¶31 The federal evidentiary rules, however, had no binding authority on state courts. Accordingly, in 1976, the Washington Supreme Court “codified” what it intended to be a more restrictive rule related to raising an issue for the first time on appeal—RAP 2.5(a)(3). Importantly, although the comments accompanying the rule explicitly related RAP 2.5(a)(3) to usage in federal practice, and implicitly (in reference to the New Jersey rule) to the plain error standard, they reemphasized that such review should be limited solely to constitutional questions: “Exception (3) is intended to encompass developing case law. Thus, certain constitutional questions can be raised for the first time on review. ... It is derived from New Jersey Rule 2:10-2 and conforms to federal practice. Fleming v. Goodwin, 165 F.2d *412334 (8th Cir. 1948).” RAP 2.5 cmt. (a) at 86 Wn.2d 1152 (1976).18
¶32 The court adopted the “manifest error” terminology when promulgating RAP 2.5(a)(3), rather than the more common “plain error” standard, in an effort to limit appellate review of unpreserved error to instances where an appellant’s constitutional rights were in jeopardy, and deliberately chose the well-understood and long-standing “manifest error” language to avoid confusion with the more expansive “plain error” standard.19
*413Plain Reading of RAP 2.5(a)(3)
¶33 Approximately 50 published appellate court opinions have been released in the last two years (and over 100 unpublished opinions) addressing, or touching upon, RAP 2.5(a)(3). These numerous opinions attempt to amend by interpretation20 a standard clearly understood and justly applied for over 125 years. RAP 2.5(a)(3) is clear on its face and reads,
Errors Raised for First Time on Review. The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. A party or the court may raise at any time the question of appellate court jurisdiction. A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground. A party may raise a claim of error which was not raised by the party in *414the trial court if another party on the same side of the case has raised the claim of error in the trial court.
RAP 2.5(a) at 124 Wn.2d 1111 (1994) (underline omitted).21
¶34 We review construction of a court rule de novo because it is a question of law. See State v. Robinson, 153 Wn.2d 689, 693, 107 P.3d 90 (2005). When interpreting court rules, an appellate court approaches the rules “as though they had been drafted by the Legislature.” State v. Greenwood, 120 Wn.2d 585, 592, 845 P.2d 971 (1993). Thus, we apply rules of statutory construction to the interpretation of court rules. City of Seattle v. Guay, 150 Wn.2d 288, 300, 76 P.3d 231 (2003).
¶35 Were this an unfamiliar statute, the course before the appellate court would be clear. When interpreting a statute, “the court’s objective is to determine the legislature’s intent.” State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). If the meaning of a statute is plain on its face, an appellate court “must give effect to that plain meaning.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). To determine the plain meaning of a statute, an appellate court looks to the text, as well as “the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009). An undefined term is “given its plain and ordinary meaning unless a contrary legislative intent is indicated.” Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998). If, after this inquiry, the statute is susceptible to more than one reasonable interpretation, it is ambiguous and an appellate court “may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent.” Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007).
*415¶36 Read in the context of the rest of RAP 2.5(a), RAP 2.5(a)(3) is clearly an exception allowing a party to raise an issue, for the first time on appeal, that it did not raise and preserve for review in the trial court. The language of the statute also indicates that if a party has established that a “manifest error affecting a constitutional right” occurred at trial, an appellate court should review that decision.22 I note that either the “lack of trial court jurisdiction” or a party’s “failure to establish facts upon which relief can be granted” are fatal to a cause of action. And it is clear from those cases applying the “manifest error standard” before its incorporation into the rule that the court intended the issues reviewable under authority of RAP 2.5(a)(3) to likewise be those capable of being fatal to the cause of action.23
¶37 As noted previously, a “manifest error” is “[a]n error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record.” Black’s Law Dictionary 622 (9th ed. 2009).24
*416¶38 Given the history of the manifest error standard and its common definition, the meaning of RAP 2.5(a)(3) is clear from a careful reading of its plain words: an appellant may raise an issue not previously raised in the trial court if it is (1) plain on the record and indisputably contrary to controlling law and (2) the error identified affects a constitutional right. Two separate burdens are placed on an appellant seeking review under the exception provided in RAP 2.5(a)(3) for review of an unpreserved error. First, a plaintiff must establish that a “manifest error” occurred and, second, a plaintiff must establish that the error affected a constitutional right. In reviewing alleged errors brought pursuant to RAP 2.5(a)(3), courts should determine whether the appellant has met the burden of showing that a manifest error occurred before addressing the appellant’s constitutional claims. Because “[i]f it is not necessary to reach a constitutional question, it is well established policy that we should decline to do so.” State v. Speaks, 119 Wn.2d 204, 207, 829 P.2d 1096 (1992).
¶39 If an appellant has met the burden of showing that a manifest error has occurred, then the court should determine whether the appellant has also indicated how that error implicated a constitutional right. As Judge Forrest wisely pointed out in State v. Lynn, 67 Wn. App. 339,342-43, 835 P.2d 251 (1992), “Criminal law is so largely constitutionalized that most claimed errors can be phrased in constitutional terms. Suppression motions involve the Fourth Amendment. Admissions and confessions involve the Fifth and Sixth Amendments. Instructional errors may implicate constitutional due process. Hearsay involves Sixth Amendment confrontation rights.” Accordingly, I agree with my colleagues in the majority that the defendant has the burden of showing how the manifest error at issue *417“implicates a specifically identified constitutional right.” Majority at 400.
¶40 If an appellate court determines that the defendant has met both of these burdens, then the court must review the merits of the claim. And although RAP 2.5(a)(3) does not address the standard of review our courts should employ, Chapman, a seminal case decided almost 10 years before the promulgation of RAP 2.5(a)(3), clearly indicates that harmless error review is appropriate when an error affects an appellant’s constitutional rights:
Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment____[BJefore a ... constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.
386 U.S. at 24. Per Chapman, the State clearly has the burden of establishing that the error was harmless.
¶41 In summation, when addressing an alleged error brought pursuant to RAP 2.5(a)(3), an appellate court should analyze, consecutively, three things: (1) whether the appellant has shown that a manifest error, meaning an error that is plain and indisputable, and that amounts to a complete disregard of the controlling law occurred at trial; (2) whether the appellant has shown how that error affected a specifically identified constitutional right; and (3) whether the State has shown that the error was harmless beyond a reasonable doubt. Appellate courts should not address constitutional claims first as this is contrary to our generally accepted method of appellate jurisprudence. In addition, appellate courts should not assume arguendo that a defendant has met both burdens and proceed to harmless error analysis as this method is contrary to the plain *418reading of the rule and the justness of the appellate process identified by Judge Coffin. Read in context, RAP 2.5(a)(3) clearly indicates that an appellate court must review an appellant’s claims but only if those claims are substantiated by the record presented for review and affect a specifically identified constitutional right.
Conclusion
¶42 Carefully read, RAP 2.5(a)(3) provides a workable, longstanding framework for balancing the need to ensure the public’s confidence in the integrity of the trial court’s judgment with the duty to remain faithful to the underpinnings of the United States system of justice. By addressing only “manifest errors affecting a constitutional right” raised for the first time on review rather than all newly assigned errors, appellate courts ensure that a defendant’s constitutional rights are duly protected while simultaneously heeding the “instinct of fairness due both the trial judge or agency and a litigant’s adversary” discussed by Judge Coffin.
¶43 Applying Washington’s longstanding manifest error exception to the issue preservation rule in the present case, at the time of Shawny Bertrand’s trial, State v. Goldberg, 149 Wn.2d 888, 895, 72 P.3d 1083 (2003), clearly indicated that “special verdicts do not need to be unanimous in order to be final.” Thus, jury instruction 13 contained a manifest error contrary to controlling law. Bertrand, then, has met the burden of showing that a manifest error occurred. However, as this court recently explained in Grimes, this error does not implicate a constitutional right.25 Moreover, our Supreme Court has held in an analogous situation that issues involving the finality of nonunanimous jury decisions are not of constitutional magnitude. In State v. *419Labanowski, 117 Wn.2d 405, 423-24, 816 P.2d 26 (1991), the court addressed two types of jury unanimity instructions related to lesser included or lesser degrees of charged crimes. The court stated that “neither the ‘acquittal first’ nor the ‘unable to agree’ type of instruction is erroneous as a matter of law.” Labanowski, 117 Wn.2d at 424. And the court stressed that “[njumerous cases ... have held that the ‘acquittal first’ instruction does not impinge on a defendant’s constitutional rights.”26 Labanowski, 117 Wn.2d at 423. Thus, Bertrand has failed to meet her additional burden of showing how the error affected a specifically identified constitutional right. And, as the majority correctly determines, having failed to meet both “burdens necessary to trigger our limited discretion under RAP 2.5(a)(3) ... we need not address the merits of her instructional challenge for the first time on appeal.” Majority at 402-03.
¶44 Accordingly, I concur with the result reached by the majority in this case.
Review denied at 175 Wn.2d 1014 (2012).
The Chief Justice of the Supreme Court may appoint such committees pursuant to 28 U.S.C. § 331. In 1965, an Advisory Committee on Rules of Evidence began drafting uniform evidentiary rules for the federal court system. 46 F.R.D. 161,171-81 (1969). Of note, the minutes from the August 1968 committee meeting reveal that significant debate occurred as to whether a provision should be included in the evidentiary rules addressing judicial notice of plain errors not *410brought to the attention of the trial court and, if so, how that language should read:
Mr. Berger then drew the attention of the members to Rule 52 of the Federal Rules of Criminal Procedure. He read subsection (a) Harmless error and subsection (b) Plain error. Judge Sobeloff asked why not adopt that exact language. Mr. Berger stated that in Criminal Rules if an error affected a substantial right, it did not have to be brought to the attention of the court. Mr. Williams stated that that language would be subject to abuse. . . . Professor Cleary suggested inserting in the Note that a “Constitutional error is_ a plain error f Mr. Spangenberg then suggested striking subsection (d). His reason was that it was a rule of appellate procedure. . . . Professor Cleary then suggested that “Nothing in this rule precludes consideration of constitutional error.”
Minutes of the August 1968 Meeting of the Advisory Committee on Rules of Evidence, Fed. Evidence Review 12 (Aug. 8-10, 1968), http://federalevidence.com/ pdPFRE_Amendments/Prel975/EV08-1968-min.pdf (emphasis added).
The New Jersey rule reads, “Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.” N.J. Ct. R. 2:10-2. The Fleming reference likely refers to the following language in that case: “Ordinarily this Court will not consider a question which was not presented to or passed upon by the District Court . . . but this rule does not preclude the Court from correcting a plain error, particularly in a case in which the public interest is involved.” 165 F.2d at 337.
Washington’s own Rules of Evidence bolster this view. Although the Washington Supreme Court acquiesced to the adoption of most of the Fed. R. Evid. in 1979, the court took special exception to Fed. R. Evid. 103(d) as evinced by our “version” of the rule: “[103] (d) Errors Raised for the First Time on Review. [Reserved—See RAP 2.5(a)].” ER 103, at 91 Wn.2d 1123 (1979). The comment following the rule explains,
Section (d). Federal Rule 103(d), Plain error, is deleted. The Washington Supreme Court recently codified the extent to which an error may be asserted for the first time in an appellate court. See RAP 2.5(a). Rule 103(d) defers to the Rules of Appellate Procedure and the decisions construing them.
To be distinguished is the extent to which counsel may acquiesce in a trial court ruling and then move for a new trial on the ground that the ruling was in error. That determination is made by reference not to the appellate rules but to the rules of civil and criminal procedure and decisional law. See, e.g., CR 46, CrR 8.7; Sherman v. Mobbs, 55 Wn.2d 202, 347 P.2d 189 (1959).
ER 103 cmt. 103, at 91 Wn.2d 1124 (1979). And in a footnote, the Supreme Court in State v. Scott, 110 Wn.2d 682, 687 n.4, 757 P.2d 492 (1988), stated,
Reference in this opinion to cases and commentary interpreting Fed. R. Crim. P. 52(b) is not intended to suggest that RAP 2.5(a)(3) is equivalent in all respects to the federal rule, but merely acknowledges our appellate rule’s genesis in federal law.. . . Indeed, because it covers only constitutional errors, RAP 2.5(a)(3) is significantly narrower than Fed. R. Crim. P. 52(b) which covers “[p]lain errors”.
(Second alteration in original.)
GR 9, first adopted in 1982, explains,
The purpose of rules of court is to provide necessary governance of court procedure and practice and to promote justice by ensuring a fair and expeditious process. In promulgating rules of court, the Washington Supreme Court seeks to ensure that:
(1) The adoption and amendment of rules proceed in an orderly and uniform manner;
(5) Minimal disruption in court practice occurs, by limiting the frequency of rule changes; and
(6) Rules of court are clear and definite in application.
Although the Supreme Court left itself the discretion to amend the court rules “without following the procedures set forth” in them (GR 9(j)(l)), the haphazard way in which our RAP 2.5(a)(3) jurisprudence has progressed should make us especially cautious. Had the Scott court sought to clarify or amend RAP 2.5(a)(3) as envisioned in GR 9, rather than simple recourse to ad hoc interpretation without a plain meaning analysis, perhaps the court could have provided consistent guidance of the scope of appellate review for issues raised for the first time on appeal over 20 years ago, which its chosen course has not done.
The original 1976 version of RAP 2.5(a) did not include the last three sentences added in the 1994 version above. See 86 Wn.2d 1151 (1976).
As this court recently noted in State v. Grimes, 165 Wn. App. 172, 187 n.17, 267 P.3d 454 (2011), the Supreme Court has stated both that appellate review in these situations is mandatory and that it is discretionary. As explained above, a plain reading of the rule indicates that review is required.
The first Washington Supreme Court case squarely addressing RAP 2.5(a)(3), Scott, confirms this:
As our cases hold, and RAP 2.5(a)(3) succinctly states, certain instructional errors that are of constitutional magnitude may be challenged for the first time on appeal. Constitutional errors are treated specially because they often result in serious injustice to the accused. . . . Such errors also require appellate court attention because they may adversely affect the public’s perception of the fairness and integrity of judicial proceedings.
110 Wn.2d at 686-87 (emphasis added). The Scott court also emphasized the more limited scope of Washington’s preservation rule, noting that RAP 2.5(a)(3) “reflects a policy of encouraging the efficient use of judicial resources” by avoiding the sanctioning of “a party’s failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial.” 110 Wn.2d at 685.
Black’s also has a definition for “manifest constitutional error.” Black’s Law Dictionary at 622. However, the entry indicates, and research confirms, that the term was first used in 1985—almost 10 years after RAP 2.5(a)(3) was passed, and is therefore inapposite. Although the Supreme Court’s recent State v. O’Hara, 167 *416Wn.2d 91, 100 n.1, 217 P.3d 756 (2009), opinion cites to Black’s “manifest constitutional error” entry, the opinion fails to address how justices of the 1976 Supreme Court could rely upon a legal term invented in 1985 when they drafted RAP 2.5(a)(3). Moreover, the citation and discussion of the entry occurs in a footnote and is likely obiter dicta.
Grimes, 165 Wn. App. at 185 (“because the [State v.] Bashaw [, 169 Wn.2d 133, 234 P.3d 195 (2010),] decision is not founded in our state constitution or in the United States Constitution, an error in giving [this] special verdict [instruction] is not based on a constitutional right”).
As the Labanowski court notes, both the Eighth and Ninth Circuit Court of Appeals have expressly found that requiring jury unanimity on a greater offense before providing jurors the option of deciding a lesser included offense is not an issue of constitutional magnitude. 117 Wn.2d at 422.