State v. Studd

Alexander, J.

— The principal question that is presented by these six consolidated appeals is the same: Whether 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. The defendants, all six of whom were convicted at a jury trial, each argue that it was not made clear to jurors that a defendant need not be in actual danger of imminent harm in order to act in self-defense against a perceived aggressor, provided the defendant reasonably believes himself to be in danger. We conclude that while it is error for a trial court to fail to make this standard clear in a jury instruction, such error does not furnish a basis for a new trial when the defendant invites the error by requesting the instruction. We, therefore, affirm the Court of Appeals in two cases where it upheld the conviction, recognizing that the error had been invited. We also affirm the Court of Appeals in another case where it held that requesting the erroneous instruction did not constitute ineffective assistance of counsel. We further affirm the Court of Appeals in two cases where it reversed the defendant’s conviction due to the fact that the defendant’s efforts to correct the error complained of were rebuffed by the trial court. Finally, we reverse the Court of Appeals in one case where it failed to recognize that the error was invited, and remand the case to it for consideration of issues raised before it that it did not address.

FACTS

State v. Studd

Keith Studd killed David Castle with a single stab wound from a knife during a fight. Studd was thereafter charged in Spokane County Superior Court with second degree felony murder. At trial, Studd argued that he had stabbed Castle in self-defense because he feared that Castle was reaching for a weapon. Studd proposed two jury instructions on self-defense, which were given almost completely unchanged by the trial court. One of these instructions, which was taken verbatim from 11 Washington Pattern Jury Instructions: Criminal 16.02 (1994) (WPIC), read as follows:

It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction.

Homicide is justifiable when committed in the lawful defense of the slayer when:

(1) The slayer reasonably believed that the person slain intended to inflict death or great personal injury;

(2) There was imminent danger of such harm being accomplished; and

(3) The slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him at the time of and prior to the incident.

The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.

Clerk’s Papers (CP) at 130 (emphasis added). The other instruction was taken verbatim from WPIC 16.07 and it stated as follows:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger.

Actual danger is not necessary for a homicide to be justifiable.

CP at 132 (emphasis added).

Studd was convicted of second degree felony murder, and appealed. Following Studd’s conviction this court concluded in another case that a jury instruction similar to WPIC 16.02 was erroneous in that it did not make clear to the jury that, in order to sustain the defense of self-defense the defendant must have a subjectively reasonable belief of imminent harm, as determined from the surrounding facts and circumstances. State v. LeFaber, 128 Wn.2d 896, 913 P.2d 369 (1996). Citing LeFaber, the Court of Appeals, Division Three, reversed Studd’s conviction, holding that the self-defense instructions set forth above were in irreconcilable conflict and did not, therefore, accurately state the law of self-defense. State v. Studd, 87 Wn. App. 385, 389, 942 P.2d 985 (1997), review granted, 134 Wn.2d 1010, 954 P.2d 276 (1998).1 The State sought review, arguing that under the “invited error” doctrine Studd cannot complain about an instruction that he proposed. We granted review. In doing so, we consolidated this case with the five that are discussed hereafter.

State v. Cook

Lee Cook shot and killed Troy Robinson. Cook had been robbed at gunpoint by Robinson during the course of a drug transaction, and Cook argued that his subsequent shooting of Robinson was in self-defense. Cook was thereafter charged in Pierce County Superior Court with first degree murder and unlawful possession of a short firearm.2 Cook proposed, and the trial court gave, self-defense instructions nearly identical to the two given in Studd above. Cook was convicted of second degree murder and appealed. The Court of Appeals, Division Two, affirmed Cook’s conviction in an unpublished opinion. State v. Cook, No. 19020-6-II (Wash. Ct. App. July 18, 1997). It held that the two self-defense instructions are “complementary, not contradictory” and that “read together, these instructions make the relevant legal standard manifestly apparent to the average juror.” Cook, slip op. at 5. The Court of Appeals further held that Cook had also “invited the trial court to give the flawed instruction.” Cook, slip op. at 6. Cook sought review, which we granted.

State v. Bennett

Daun Bennett stabbed his former girl friend, JoLayne Boston, 14 times and then shot her with her own gun. State v. Bennett, 87 Wn. App. 73, 75-76, 940 P.2d 299 (1997), review granted by State v. Studd, 134 Wn.2d 1010, 954 P.2d 276 (1998). Boston survived the attack. Bennett was thereafter charged in Snohomish County Superior Court with first degree attempted murder while armed with a deadly weapon. Bennett contended that he had acted in self-defense in an altercation with Boston during which he had tried to take Boston’s gun away from her. As in Studd and Cook, Bennett requested instructions identical to WPIC 16.02 and 16.07 and the trial court acceded to his request. Bennett was convicted as charged and appealed. The Court of Appeals, Division One, affirmed, holding that the invited error doctrine did not preclude the defendant from raising the instructional error claim, because Bennett raised it under the guise of ineffective assistance of counsel due to his trial counsel having proposed an erroneous self-defense instruction. It held, however, that Bennett had received effective counsel because the instructions, read as a whole, accurately stated the law on self-defense. Bennett sought review, and we granted it.

State v. McLoyd

Raymond McLoyd shot and killed Charles Blatchford. McLoyd claimed that he had acted in self-defense in response to Blatchford’s efforts to “carjack” his automobile. McLoyd was thereafter charged in King County Superior Court with first degree murder and second degree felony murder while armed with a deadly weapon.3 Like the defendants in the preceding three cases, McLoyd requested, and the trial court provided the jury, instructions modeled on WPIC 16.02 and WPIC 16.07. McLoyd was convicted of committing second degree felony murder while armed with a deadly weapon. He appealed to the Court of Appeals, Division One, which affirmed his conviction. State v. McLoyd, 87 Wn. App. 66, 939 P.2d 1255 (1997), review granted by State v. Studd, 134 Wn.2d 1010, 954 P.2d 276 (1998). It held that although McLoyd had invited the error complained of by proposing an instruction based on WPIC 16.02, the invited error doctrine did not bar his challenge to the instruction because McLoyd had also proposed a clarifying instruction. However, the Court of Appeals concluded that when read together the instruction based on WPIC 16.07 cured any ambiguity that would arise from reading the instruction based on WPIC 16.02 alone. We granted discretionary review.

State v. Ameline

William Ameline killed Barbara Hunsaker by beating her with an iron pipe. Ameline argued that he had acted in self-defense, asserting that Hunsaker had demanded money from him and was threatening him with a knife. Ameline admitted that he buried Hunsaker’s body in a remote area after attempting to make the killing look like the work of the “Green River Killer.” Ameline was thereafter charged in Pierce County Superior Court with second degree murder. In response to Ameline’s request the trial court gave the jury the following self-defense instruction:

It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction.

Homicide is justifiable when committed in the lawful defense of the slayer when the slayer reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.

The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the slayer at the time of and prior to the incident.

The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable.

CP at 72. Ameline argued that it needed to be made clearer to the jury that “behaving as a reasonably prudent person” he was entitled to defend himself against the apparent threat of injury, even if he was mistaken about the threat. Verbatim Report of Proceedings (VRP) at 493. Consistent with that contention, Ameline requested the following jury instruction:

If a person acting as a reasonably prudent person, mistakenly believes himself to be in danger of injury or of an offense being committed against him or his property, he has the right to defend himself by the use of lawful force against that apparent injury or offense even if he is not actually in such danger.

CP at 48. The trial court refused to give this instruction. Ameline was convicted of second degree murder and appealed. After first affirming the conviction in an unpublished opinion, the Court of Appeals, Division Two, upon reconsideration, reversed and remanded in an unpublished opinion. State v. Ameline, No. 17339-5-II (Wash. Ct. App. July 25, 1997). The Court of Appeals held that because the trial court had rejected Ameline’s efforts to clarify the law of self-defense in the jury instructions, he had not invited the instructional error. The State sought review in this court, which we granted.

State v. Fields

Vincent Fields stabbed and killed Scott Holm with a kitchen knife. Fields testified that he had acted in self-defense, stabbing Holm only after Holm pulled out a gun during an argument over stereo speakers that Fields had been in the process of buying from Holm. Fields was thereafter tried in King County Superior Court on a charge of first degree murder and other charges that are not before this court.

Fields requested a jury instruction substantially similar to the one disapproved of in LeFaber. The trial court gave WPIC 16.02 verbatim instead. Fields also proposed an instruction that was almost identical to WPIC 16.07 in order to clarify the law on self-defense for jurors. The State objected and the trial court refused to give the instruction, which read:

A person is entitled to act on appearances in defending himself, herself, or another, if that person in good faith and on reasonable grounds believe [sic] that he, she, or another is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger.

Actual danger is not necessary for a homicide to be justifiable.

CP at 29. Fields had argued in support of this instruction that “they might say he was mistaken in his belief that he was in danger, that he wasn’t really in any danger, and therefore he overreacted. This instruction is aimed directly at that situation.” VRP at 823. Fields was convicted of second degree murder and appealed.4

The Court of Appeals, Division One, reversed and remanded. State v. Fields, 87 Wn. App. 57, 940 P.2d 665 (1997), review granted by State v. Studd, 134 Wn.2d 1010, 954 P.2d 276 (1998). It held that the instruction given by the trial court allowed the jury to interpret the law as requiring “an imminent danger of actual harm in order to accept Fields’ self-defense claim.” Fields, 87 Wn. App. at 61 (emphasis added). The Court of Appeals also concluded that although Fields had proposed essentially the same instruction, his proposal to also give WPIC 16.07 “would have cured the ambiguity by clarifying that actual danger is not an element of self-defense.” Fields, 87 Wn. App. at 63. It determined, therefore, that Fields did not invite error. The State sought review in this court, which we granted.

ANALYSIS

In Washington, “[a] jury may find self-defense on the basis of the defendant’s subjective, reasonable belief of imminent harm from the victim.” LeFaber, 128 Wn.2d at 899 (emphasis added) (citing State v. Janes, 121 Wn.2d 220, 238-39, 850 P.2d 495, 22 A.L.R.5th 921 (1993)). Given this subjective component, there need be no finding of actual imminent harm. See LeFaber, 128 Wn.2d at 899 (citing State v. Theroff, 95 Wn.2d 385, 390, 622 P.2d 1240 (1980); State v. Miller, 141 Wash. 104, 105, 250 P. 645 (1926)).

The question shared by each of these six cases is whether a jury instruction that was clearly erroneous in its statement of self-defense law should alone be grounds for a new trial. The instruction complained of by Studd, Cook, McLoyd, Bennett and Fields is based on WPIC 16.02. In LeFaber we reversed a conviction due to the erroneous impression of self-defense law created by an instruction that we wrote was similar to, but “lacking the glaring structural difficulties of,” WPIC 16.02. LeFaber, 128 Wn.2d at 902. Our holding was based upon the fact that “[a] jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial.” LeFaber, 128 Wn.2d at 900 (citing State v. McCullum, 98 Wn.2d 484, 487-88, 656 P.2d 1064 (1983); State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977)). Although WPIC 16.02 was not challenged in LeFaber, we noted in dicta that it was actually a more erroneous statement of self-defense law than the instruction at issue there. “The structure of WPIC 16.02 could mislead a jury because the imminent danger requirement is set off by a separate number and thus lacking connection to the reasonable belief qualifier.” LeFaber, 128 Wn.2d at 902 (citing State v. LeFaber, 77 Wn. App. 766, 771, 893 P.2d 1140 (1995), rev’d on other grounds by, 128 Wn.2d 896, 913 P.2d 369 (1996)). We now make explicit what was implicit in that commentary: WPIC 16.02 is not the “manifestly clear instruction” that jurors require. LeFaber, 128 Wn.2d at 902 (citing State v. Allery, 101 Wn.2d 591, 595, 682 E2d 312 (1984)). Moreover, the instruction complained of by Ameline contains the same offending language as the instruction invalidated in LeFaber.

Unhappily for Studd, Cook, McLoyd and Bennett, however, the fact that a clearly erroneous jury instruction was given is not the end of the story. For the first three of these defendants, that is so because we have also held that “ ‘[a] party may not request an instruction and later complain on appeal that the requested instruction was given.’ ” State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (emphasis omitted) (quoting State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979)). Henderson also involved erroneous WPIC instructions proposed by a defendant and later complained of, and we held there that “even if error was committed, of whatever kind, it was at the defendant’s invitation and he is therefore precluded from claiming on appeal that it is reversible error.” Henderson, 114 Wn.2d at 870 (emphasis added). Henderson is directly on point. There can be no doubt that this is a strict rule, but we have rejected the opportunity to adopt a more flexible approach. See Henderson, 114 Wn.2d at 872 (the dissent there argued that “the doctrine should be applied prudently, with respect to the facts of each case,” but acknowledges that “[t]his court’s history of applying the doctrine of invited error with little analysis or discussion implies that the doctrine is strictly applied regardléss of circumstances.” (Utter, J., dissenting) (citations omitted)).

The dissent here seeks to avoid confronting the invited error doctrine by assigning significance to the fact that “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.” Dissenting op. at 558. This argument overlooks the fact that the invited error issue was never reached in LeFaber because there the record was “somewhat unclear as to whether defense counsel merely failed to except to the giving of the instruction, or whether he affirmatively assented to the instruction or proposed one with similar language.” LeFaber, 128 Wn.2d at 904 n.l (Alexander, J., dissenting). Because we are not in the business of inventing unbriefed arguments for parties sua sponte, there certainly was no significance in our not doing so in LeFaber.

Here, the record is quite clear with regard to defendants Studd, Cook, and McLoyd that these defendants requested instructions modeled after WPIC 16.02. Consequently, the doctrine of invited error prevents them from now complaining about the trial court acceding to their request to give a certain instruction. The Court of Appeals in McLoyd wrongly concluded otherwise,5 although it went on to affirm McLoyd’s conviction anyway. Although Justice Mad-sen indicates in her concurrence that she “cannot conceive” of how the invited error doctrine applies to defendants requesting jury instructions modeled on WPIC instructions that have met “with this court’s general approval,"6 we are satisfied that there is authority for such a result. Indeed, we have previously refused to address the retroactivity of a United States Supreme Court opinion where a legal presumption declared unconstitutional had been used, four years earlier, in a jury instruction requested by a criminal defendant. See In re Personal Restraint of Griffith, 102 Wn.2d 100, 101-02, 683 P.2d 194 (1984) (citing Sandstrom v. Montana, 442 U.S. 510, 512, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)). We reached this conclusion despite the fact that “the unconstitutional instruction was standard in this state, In re Personal Restraint of Hagler, 97 Wn.2d 818, 819, 650 P.2d 1103 (1982), and had been expressly approved by this court.” Griffith, 102 Wn.2d at 104 (Utter, J., dissenting) (emphasis added) (citing State v. Mays, 65 Wn.2d 58, 66, 395 P.2d 758 (1964)). We will not overrule such binding precedent sub silentio.

The dissent next attempts to distinguish our longstanding invited error doctrine on the strength of two opinions from the Court of Appeals. See Dissenting op. at 558-59. One of those opinions, State v. Studd, we are reversing today. As for the other opinion, State v. Young, 48 Wn. App. 406, 739 P.2d 1170 (1987), the error there did “not arise from the giving of the instruction, but the refusal to clarify it" despite a request to do so. Young, 48 Wn. App. at 415 (emphasis added). The error, therefore, was not truly invited. Young, 48 Wn. App. at 415. Finally, with no Washington law to support it, the dissent is reduced to making policy arguments, based upon language from cases in other jurisdictions, for abandoning our invited error doctrine. We decline the invitation.

In fight of Griffith, where the error was invited we need not. address the issue, as the Court of Appeals in McLoyd did, of whether WPIC 16.07 cures the defects in WPIC 16.02 in conformity with LeFaber. See Griffith, 102 Wn.2d at 102. We have, however, recently held that where “presumptively prejudicial” ambiguity was created by giving an instruction based upon a then-existing version of WPIC 16.02 it was cured by providing an instruction based upon the then-existing WPIC 16.07. State v. Hutchinson, 135 Wn.2d 863, 884, 959 P.2d 1061 (1998). This was because “[t]he jury is presumed to read the court’s instructions as a whole, in light of all other instructions. The jury is also to presume each instruction has meaning.” Hutchinson, 135 Wn.2d at 885 (citing McLoyd, 87 Wn. App. at 71) (emphasis added). For the reasons stated above, the Court of Appeals is reversed in Studd, and Studd’s and McLoyd’s convictions are affirmed.

Although Cook invited error by requesting an instruction based on WPIC 16.02, he has also raised two other issues that merit our attention. He argues that the trial court erred in not providing a “ ‘no duty to retreat’ ” instruction, based upon WPIC 16.08, that he had requested. Pet. for Review at 11. We have previously held that “[n]o duty to retreat exists when one is feloniously assaulted in a place where [one] has a right to be.” Allery, 101 Wn.2d at 598 (citing State v. Hiatt, 187 Wash. 226, 60 P.2d 71 (1936); State v. Lewis, 6 Wn. App. 38, 491 P.2d 1062 (1971)). A defendant is entitled to a jury instruction to this effect if sufficient evidence in the record supports it. See Allery, 101 Wn.2d at 598 (citing State v. King, 92 Wn.2d 541, 599 P.2d 522 (1979)). However, the Court of Appeals in Cook found that retreat was simply not an issue: “The State asserted that Cook shot Robinson after any subjective risk of imminent danger had passed. The defense theorized that Robinson still held Cook at gunpoint at the time of the shooting. Neither scenario raises an inference that Cook could have avoided the use of force through a timely retreat.” Cook, slip op. at 8 (emphasis added). Cook’s response is that the deputy prosecutor put the opportunity for retreat into issue during her closing argument. He, for example, notes that she said of Cook that “[h]e certainly wasn’t going to run away from trouble. He was going to finish it.” VRP at 1174. Cook takes these remarks completely out of context. The deputy prosecutor, in our view, was merely trying to establish premeditation, the prior example being used to show Cook’s mental state in bringing the gun to a drug deal in the first place. We do not believe that the deputy prosecutor was suggesting that Cook could have run away during the ensuing altercation with the victim.

Even less persuasive is Cook’s argument that by giving the jury instruction 22, a non-WPIC instruction, over defense objections, the trial court “improperly emphasized the state’s theory of the case” that Cook killed Robinson for revenge. Instruction 22 read as follows: “Justifiable homicide committed in the defense of the slayer, or ‘self-defense,’ is an act of necessity. The right of self-defense does not permit action done in retaliation or revenge.” CP at 105. Cook admits that this language comports with our reasoning in Janes, where we wrote that

[t]he objective aspect . . . keeps self-defense firmly rooted in . . . necessity. No matter how sound the justification, revenge can never serve as an excuse for murder. “ ‘[T]he right of self-defense does not imply the right of attack in the first instance or permit action done in retaliation or revenge.’ ”

Janes, 121 Wn.2d at 240 (quoting People v. Dillon, 24 Ill. 2d 122, 125, 180 N.E.2d 503 (1962)). Cook argues, however, that this jury instruction has never been approved— without citing any authority for what “approval” is necessary. Pet. for Review at 14. We find that the instruction correctly stated the law, and did not unfairly emphasize the State’s theory of the case or, in any way, comment upon the evidence. Cook’s conviction is affirmed.

With regard to Bennett, the Court of Appeals cited a decision of this court in holding that “[t]he invited error doctrine generally forecloses review of an instructional error .... But invited error does not bar review of a claim of ineffective assistance of counsel based on such an instruction.” Bennett, 87 Wn. App. at 76 (citing Henderson, 114 Wn.2d at 870; State v. Gentry, 125 Wn.2d 570, 646, 888 P.2d 1105 (1995)). In Gentry we held that although we would “adhere to our normal use of the invited error doctrine” in capital cases, we would review challenges to invited jury instructions through ineffective assistance of counsel claims. See Gentry, 125 Wn.2d at 646; see also State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996) (applying this rule where defendant was charged with second degree promotion of prostitution).

By framing his argument this way, Bennett avoids one thicket only to become entangled in another. We strongly presume that counsel’s representation was effective. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). A two-prong test must be met to demonstrate ineffective assistance of counsel. See, e.g., State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh’g denied, 467 U.S. 1267 (1984)). Bennett must first show that his “counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances.” McFarland, 127 Wn.2d at 334-35 (citing Thomas, 109 Wn.2d at 225-26). However, “[djeficient performance is not shown by matters that go to trial strategy or tactics.” State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (emphasis added) (citing State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994)). 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. Thus we do not even reach the second part of the test, where Bennett would have had to also prove that “defense counsel’s deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.” McFarland, 127 Wn.2d at 335 (citing Thomas, 109 Wn.2d at 225-26). Bennett’s conviction is affirmed.

The jury instructions complained of by Ameline and Fields were given in circumstances different from those involving Studd, McLoyd, Cook and Bennett, and result in simple applications of our holding in LeFaber. In Ameline’s case the jury was charged with an instruction containing the same language that we found to be unconstitutional in LeFaber. The instruction in both cases stated that homicide is justifiable when the slayer “reasonably . . . intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.” Ameline CP at 72; LeFaber, 128 Wn.2d at 898-99 (emphasis added). In LeFaber we held that this language permits “an erroneous interpretation of the law as requiring actual danger.” LeFaber, 128 Wn.2d at 902. The fact that Ameline proposed much the same instruction is no bar to his challenge to it, for he also proposed a curative instruction that was not given and, thus, did not invite the error that he complains of now. Therefore, LeFaber controls here because “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). We affirm the Court of Appeals’ decision reversing Ameline’s conviction and remanding for a new trial.

The trial court in Fields’ case gave WPIC 16.02 verbatim to the jury, consistent with Fields’ request. Fields had, however, additionally requested an instruction identical to WPIC 16.07 as a curative instruction, and the trial court rejected that request. Thus the ambiguous language of WPIC 16.02 was unmitigated, and “the jury might have understood a self-defense claim to require a showing that actual harm was imminent.” Fields, 87 Wn. App. at 65. Because “the fatal ambiguity resulted from the State’s successful objection to the clarifying instruction that Fields proposed,” Fields cannot be said to have invited the error he complains of and LeFaber applies. Fields, 87 Wn. App. at 65. Accordingly, the Court of Appeals properly reversed his conviction and remanded for a new trial. We affirm the Court of Appeals.

CONCLUSION

In conclusion, we affirm the decisions of the Court of Appeals in Cook, Bennett, and McLoyd, which upheld convictions, and also affirm the decisions in Ameline and Fields wherein the convictions were reversed and new trials were ordered. Finally, we reverse the Court of Appeals in Studd, and remand to that court so that it might consider the other issues that Studd had raised on appeal that it failed to address in light of its holding in his favor. See RAP 13.7(b).

Guy, C.J., Durham, Smith, Johnson, and Talmadge, JJ., and Dolliver, J. Pro Tern., concur.

1 The Court of Appeals wrote that “[i]n view of this decision, other issues raised by Mr. Studd on appeal shall not be considered.” Studd, 87 Wn. App. at 390.

2 Cook pleaded guilty to the latter charge.

3 The State subsequently moved for dismissal of the first charge.

4 Fields did not appeal convictions for second degree theft, possession of methamphetamine, and possession of cocaine with intent to deliver. State v. Fields, 87 Wn. App. 57, 61 n.1, 940 P.2d 665 (1997).

5 Had McLoyd sought, and been denied, a clarifying instruction, the error would not have been invited. However, here his request for a clarifying instruction—WPIC 16.07—was, in fact, acceded to. McLoyd is prohibited from “setting up an error at trial and then complaining of it on appeal. The present case does exactly that.” State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984) (citation omitted), overruled on other grounds hy State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995).

6 Concurrence at 554 (emphasis added).