(dissenting)—The majority correctly states the law. That is, the instructions, taken as a whole, must make it clear to the jury that the State has the burden of proving the absence of self-defense beyond a reasonable doubt. State v. Acosta, 101 Wn.2d 612, 621, 683 P.2d 1069 (1984). However, I disagree with the majority's holding that the instructions given the jury were adequate under this standard.
The instructions given Mr. Martineau's jury are similar in pertinent detail to the instructions which were disapproved in Acosta, at 614. Specifically, the court advised the jury that it must return a guilty verdict if it found the State proved each of the listed elements of second degree murder beyond a reasonable doubt. As in Acosta, the jury was not told in the elements instruction that the force used must be unlawful, wrongful, or without justification or excuse. As in Acosta, the placement of the instruction defining self-defense immediately after the elements instruction may have led the jury to believe by negative inference that the State had no burden with respect to self-defense.4
I would also hold that the instructional error was not harmless. At least two distinct tests have emerged for determining whether a constitutional violation is harmless: (1) the error is harmless only when it can be said beyond a reasonable doubt that it did not contribute to the verdict, and (2) the error is harmless whenever it can be said beyond a reasonable doubt that the evidence not tainted by the error is so overwhelming that it necessarily leads to a finding of guilt. State v. Acosta, supra at 624.
*898In my view, an error in the burden instructions taints all the evidence because the jury considers the proof in light of the instructions. See discussion in State v. Robinson, 38 Wn. App. 871, 691 P.2d 213 (1984) (Mclnturff, J., dissenting). Here, both Mr. Martineau and the State offered testimony supporting their separate versions of the circumstances of the killing. I cannot say on review that the jury's guilty verdict was not influenced by a misconception, based upon the instructions, of which party had the burden of proof on self-defense. Our Supreme Court has spoken. Simply, there is no clear statement to the jury, as mandated by Acosta, that the State must prove beyond a reasonable doubt the absence of self-defense.
With constraint, I would reverse Mr. Martineau's conviction and remand for a new trial.
Reconsideration denied December 11, 1984.
Review denied by Supreme Court February 15, 1985.
The State points to instruction 5, which excludes justifiable killings from its definition of murder. Unfortunately, the cited instruction does not clear up the ambiguity regarding the burden of proof created in other instructions. The definition instruction does not purport to touch on the question of which party had the burden.