(dissenting)—I disagree with the majority's holding that the court's failure to adequately inform the jury of the State's burden of proof on self-defense was "harmless error."
The majority states that in an instructional error case, "it is not possible to isolate the error with clinical precision since it involves the possible contamination of the jurors' perspective." My colleagues also note they "cannot invade the province of the jury by becoming triers of fact or in speculating what they might do." I agree with these observations. What I cannot agree with is their conclusion that the failure to properly instruct the jury on the issue of self-defense "played a miniscule role in this trial." Majority, at 877. In my view, an appellate court cannot hold such an error harmless where, as here, the failure to instruct involved the question of who had the burden of proof on a disputed and essential element of the crime charged.
The due process clause of the fourteenth amendment to the United States Constitution requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Sandstrom v. Montana, 442 U.S. 510, 520, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979); Patterson v. New York, 432 U.S. 197, 206-07, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977); In re Winship, 397 U.S. 358, 364, 25 *888L. Ed. 2d 368, 90 S. Ct. 1068 (1970). In State v. Roberts, 88 Wn.2d 337, 344-46, 562 P.2d 1259 (1977), the court determined the State had the burden of proving beyond a reasonable doubt the absence of self-defense in a murder prosecution arising under the "old" criminal code which provided that a killing was murder unless it was "excusable or justifiable." Laws of 1909, ch. 249, §§ 140, 141, 143, pp. 930-31. In State v. McCullum, 98 Wn.2d 484, 492-94, 656 P.2d 1064 (1983), the court held that the Legislature did not intend to reallocate the burden of proof when it removed the words "unless it is excusable or justifiable" from the new code's definition of homicide. RCW 9A.32-.030, .050, .060, .070. In any event, the court concluded that such a reallocation would be unconstitutional because self-defense negates intent which is expressly made an element of the crime of first degree murder. See RCW 9A.32-.030(1)(a); McCullum, at 494-96.
As early as State v. Roberts, supra at 346, our Supreme Court stated:
The jury should be instructed as to the pertinent aspects of the law of justification in homicide cases and then simply informed that the State has the burden to prove absence of self-defense beyond a reasonable doubt.
(Italics mine.) While the failure to provide a specific instruction is not reversible per se, the jury must understand from the instructions as a whole that the State bears the burden of proof. State v. Acosta, 101 Wn.2d 612, 622, 683 P.2d 1069 (1984). In Acosta, at 623, the court held instructions which were similar in pertinent detail to those given to Mr. Robinson's jury were inadequate.
Thus, it is well established the State has the burden of proof of the elements of the crime, and lack of self-defense is an element of the crime of first degree murder. The crucial question is whether an instructional error affecting allocation of the burden of proof can be harmless. My analysis of Sandstrom v. Montana, supra, and Connecticut v. Johnson, 460 U.S. 73, 74 L. Ed. 2d 823, 103 S. Ct. 969 (1983), leads me to conclude that such an error is harmless *889only where the element of the crime is conceded or otherwise not in dispute.
In Connecticut v. Johnson, supra at 83, the Court stated:
We agree with the State that, in light of Chapman [v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967)], these [previous] cases cannot be read for the broad proposition that instructional error of constitutional dimensions may never be harmless. This is not to say, however, that any form of instructional error should be analyzed for harmlessness.
(Some italics mine.) The issue there was whether an instruction in an attempted murder case that "Every person is conclusively presumed to intend the natural and necessary consequences of his acts" could be considered harmless. The Supreme Court said "no." The Court relied on its earlier decision in Sandstrom which involved a similar instruction. The Sandstrom Court noted at page 524:
A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom's jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state.
(Italics mine.) Consequently, the error was not one appropriate for harmless error analysis:
If the jury may have failed to consider evidence of intent, a reviewing court cannot hold that the error did not contribute to the verdict. The fact that the reviewing court may view the evidence of intent as overwhelming is then simply irrelevant. To allow a reviewing court to perform the jury's function of evaluating the evidence of intent, when the jury never may have performed that function, would give too much weight to society's interest in punishing the guilty and too little weight to the method by which decisions of guilt are to be made.
(Footnote omitted.) Connecticut v. Johnson, supra at 85-86.
*890Here, we are not dealing with a presumption that shifts the burden of proof, as in Sandstrom and in Connecticut v. Johnson. However, the instructional error at issue in this case, just as in the presumption cases, allowed the jury to improperly shift the burden of proof to the defendant on an essential element of the crime. If the jury incorrectly believed the burden of proof was on Mr. Robinson, then it may have viewed his uncorroborated testimony as insufficient to establish the existence of self-defense beyond a reasonable doubt. On the other hand, if the jury had correctly understood the burden was on the State, it may have viewed the same testimony as sufficient to create a reasonable doubt. The focus is on how the instructional error affected the jury's consideration of the evidence. Hence, the harmless error tests which focus on the evidence are irrelevant. See Connecticut v. Johnson, supra at 85-86. Although I agree with the majority that Mr. Robinson's self-defense claim is doubtful, that is not enough. Mr. Acosta's claim was similarly doubtful, yet our Supreme Court refused to find the instructional error harmless there. State v. Acosta, supra. I firmly believe that my role as an appellate court judge prohibits me from speculating on the effect of this erroneous instruction on the jury's determination of an essentially disputed factual matter.
Accordingly, with constraint, I would reverse Mr. Robinson's conviction of first degree murder and remand for trial with proper instructions. Since Mr. Robinson did not claim self-defense in the second degree assault charge, the instructional error could not have affected his conviction thereunder. I would therefore affirm that portion of the judgment against him.
Review denied by Supreme Court January 18, 1985.