State v. LeFaber

Schultheis, J.

(concurring in part, dissenting in part) — I concur in all respects save for the majority’s assessment of instruction 20. From that holding, I respectfully dissent.

*773We should take this opportunity to express strong disapproval of the pattern instruction on which instruction 20 is based instead of merely cautioning that "Mr. LeFaber’s argument may well apply to the suggested format of pattern instruction WPIC 16.02[.]” Majority, at 770. Commendably, the trial judge discerned the ambiguity of the pattern instruction and attempted to eliminate it. Regrettably, the effort did not go far enough. Although a vast improvement, the instruction given still allows a jury to interpret the elements in either of two ways. The jury could have, as hypothesized by the majority, read the instruction to mean "Homicide is justifiable . . . when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and [reasonably believes that] there is imminent danger of such harm being accomplished.” It is equally plausible the jury read the instruction to mean "Homicide is justifiable . . . when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and there is [in fact] imminent danger of such harm being accomplished.”

The determination of whether a slayer acted in self-defense has always been made on the basis of the reasonableness of the slayer’s belief, based on his subjective perception and knowledge, that danger is imminent. State v. Allery, 101 Wn.2d 591, 594-95, 682 P.2d 312 (1984); State v. Wanrow, 88 Wn.2d 221, 235-36, 559 P.2d 548 (1977). Imminent danger need not be present in fact. State v. Theroff, 95 Wn.2d 385, 390, 622 P.2d 1240 (1980). An instruction which can be interpreted to state that homicide is justifiable only if there is actual imminent danger misstates the law.

WPIC 16.02 has been repeatedly approved by the courts. State v. Jones, 95 Wn.2d 616, 623-24, 628 P.2d 472 (1981); State v. Brenner, 53 Wn. App. 367, 375-76, 768 P.2d 509, review denied, 112 Wn.2d 1020 (1989); State v. Martineau, 38 Wn. App. 891, 894-95, 691 P.2d 225 (1984), review denied, 103 Wn.2d 1020 (1985); State v. Negrin, 37 Wn. App. 516, 521 n.1, 681 P.2d 1287, review denied, 102 Wn.2d 1002 (1984). Research reveals no case, however, in which the ambiguity in the pattern instruction has been brought to the *774attention of the court. It is also notable that an instruction essentially identical to instruction 20 has been approved as "adequate”, although again, ambiguity was not at issue. State v. Benn, 120 Wn.2d 631, 658 n.5, 845 P.2d 289, cert. denied, 510 U.S. 944, 126 L. Ed. 2d 331, 114 S. Ct. 382 (1993).

A variety of minor changes would improve instruction 20 to the point of adequacy; e.g., inserting the term "that” between "and” and "there”, thus referring the reader back to the slayer’s reasonable belief;2 inserting the term "both” between "believes” and "that”;3 a combination of the two;4 or inserting "reasonably believes that” between "and” and "there”.5 The last of these is redundant, repetitive, reiterative, duplicative and says the same thing twice, but stylistic niceties must give way to serving the function of jury instructions, which is to declare the law with as much accuracy, precision and neutrality as can be mustered.

I am aware that the current version of WPIC 16.02 is based on RCW 9A.16.050(1) and that the statute reflects the same ambiguity as does the pattern instruction. However, the concept of self-defense was not born by virtue of this 1975 enactment. It existed long before. State v. Miller, 141 Wash. 104, 105-06, 250 P. 645 (1926). The Legislature is presumed to have been aware of existing judicial construction when enacting RCW 9A.16.050. State v. McCullum, 98 Wn.2d 484, 493, 656 P.2d 1064 (1983). Ambiguity notwithstanding, nothing in the statute suggests it was intended to change the existing state of the law. McCullum, at 492-93.

*775Because due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged, the jury must be instructed on each element of the offense. State v. Ng, 110 Wn.2d 32, 44, 750 P.2d 632 (1988); see also State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995). An ambiguous jury instruction which can be read to misstate the justifiable homicide defense is an error of constitutional magnitude and for that reason may be raised for the first time on appeal. State v. Scott, 110 Wn.2d 682, 688 n.5, 757 P.2d 492 (1988). The error is presumed prejudicial unless it is trivial and in no way affected the outcome. Negrin, at 522. In light of instruction 20, the jury could have found that Mr. LeFaber reasonably believed Mr. Stephens intended great personal injury, but that in fact there was no imminent danger because Mr. Stephens was unarmed, still outside the house and the police were presumably en route. Thus, the error may have affected the outcome and reversal is required.

Review granted at 127 Wn.2d 1017 (1995).

"Homicide is justifiable . . . when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and that there is imminent danger of such harm being accomplished.”

"Homicide is justifiable . . . when the defendant reasonably believes both that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.”

"Homicide is justifiable . . . when the defendant reasonably believes both that the person slain intends to inflict death or great personal injury and that there is imminent danger of such harm being accomplished.”

"Homicide is justifiable . . . when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and reasonably believes that there is imminent danger of such harm being accomplished.”