Appeal from Superior Court, Stevens County; Honorable Fred L. Stewart, Judge.
Dolliver, J., Smith, Johnson, Madsen, Sanders, J.j., concur, Alexander, J. (dissenting by separate opinion), Durham, C.j., Guy, Talmadge, J.j., dissenting
DOLLIVER, J. --Defendant Victor A. LeFaber challenges a trial court instruction as erroneously requiring that the jury find actual danger of imminent harm to accept his claim of self-defense. The court agrees the jury instruction failed to make manifestly clear the law of self-defense and thereby prevented Defendant from obtaining a fair trial. We reverse Defendant's conviction.
On the night of December 11, 1989, Defendant shot and killed Evan Stephens. See State v. LeFaber, 77 Wash. App. 766, 767-68, 893 P.2d 1140 (1995). Charged with second degree murder, Defendant argued self-defense, asserting Stephens' drunken belligerence that night and reputation for violence created a credible threat of imminent danger to justify the killing. The trial court gave a single jury instruction, instruction 20, explaining the requirements of self-defense:
It is a defense to a charge of Murder in the Second Degree, Manslaughter in the First Degree, and Manslaughter in the Second Degree that the homicide was justifiable as defined in this instruction.
Homicide is justifiable when committed in the lawful defense of the defendant or any person in the defendant's
presence or company when the defendant 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 defendant may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the defendant taking into consideration all the facts and circumstances known to the defendant at the time and prior to the incident. The force employed may not be more than is necessary.
The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable.
The jury found Defendant guilty of first degree manslaughter. The Court of Appeals affirmed the conviction, with Judge Schultheis concurring in part, dissenting in part. LeFaber, 77 Wash. App. at 772. The Supreme Court granted discretionary review.
Defendant primarily complains instruction 20 contained an impermissible ambiguity allowing jurors to misinterpret the elements of self-defense as requiring a finding of actual harm. Defendant also challenges his conviction on the grounds the trial court failed to provide an instruction on the State's burden of proof in a self-defense claim, erroneously excluded witness testimony regarding the victim's prior violent acts, and committed cumulative errors. Because we reverse Defendant's conviction on the basis of the ambiguous self-defense instruction, we need not reach his additional arguments.
The standard for self-defense is well settled. A jury may find self-defense on the basis of the defendant's subjective, reasonable belief of imminent harm from the victim. State v. Janes, 121 Wash. 2d 220, 238-39, 850 P.2d 495, 22 A.L.R.5th 921 (1993); State v. Allery, 101 Wash. 2d 591, 594-95, 682 P.2d 312 (1984). A finding of actual imminent harm is unnecessary. State v. Theroff, 95 Wash. 2d 385, 390, 622 P.2d 1240 (1980); State v. Miller, 141 Wash. 104, 105,
250 P. 645 (1926). Rather, the jury should put itself in the shoes of the defendant to determine reasonableness from all the surrounding facts and circumstances as they appeared to the defendant. Janes, 121 Wash. 2d at 238-39; Allery, 101 Wash. 2d at 594; State v. McCullum, 98 Wash. 2d 484, 656 P.2d 1064 (1983); State v. Wanrow 88 Wash. 2d 221, 235-36, 559 P.2d 548 (1977).
Jury instructions must more than adequately convey the law of self-defense. Allery 101 Wash. 2d at 595. The instructions, read as a whole, must make the relevant legal standard "'"manifestly apparent to the average juror."'" Allery, 101 Wash. 2d at 595 (quoting State v. Painter, 27 Wash. App. 708, 713, 620 P.2d 1001 (1980), review denied, 95 Wash. 2d 1008 (1981)). In Allery, for example, the court disapproved a jury instruction that adequately conveyed the reasonableness standard for self-defense but, by omitting a direction to consider all surrounding circumstances, failed to make that standard manifestly clear. Allery, 101 Wash. 2d at 593, 595. A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial. See, e.g., McCullum, 98 Wash. 2d at 487-88; Wanrow, 88 Wash. 2d at 237.
Although this court has approved as constitutional self-defense instructions identical or similar to instruction 20, we have not yet had occasion to address the specific challenge Defendant raises here. See State v. Benn, 120 Wash. 2d 631 658 & n.5, 845 P.2d 289, cert. denied, 114 S. Ct. 382, 126 L. Ed. 2d 331 (1993); State v. Jones, 95 Wash. 2d 616, 623-24, 628 P.2d 472 (1981); see also State v. Brenner, 53 Wash. App. 367, 375-76, 768 P.2d 509, review denied, 112 Wash. 2d 1020 (1989); State v. Negrin, 37 Wash. App. 516, 521-22 n.1., 681 P.2d 1287, review denied, 102 Wash. 2d 1002 (1984); State v. Heath, 35 Wash. App. 269, 273, 666 P.2d 922, review denied, 100 Wash. 2d 1031 (1983). Defendant objects to the language "there is imminent harm" and its placement in the instruction as permitting two reasonable interpretations, one an accurate statement of the law and one erroneous. Jurors could obtain the proper statement of the
law by reading the sentence as: "when the defendant reasonably believes that . . . there is imminent danger of such harm being accomplished." At the same time, jurors could as easily believe actual harm was required by reading the sentence as: "when . . . there is imminent danger of such harm being accomplished."
The State asserts instruction 20 adequately conveys the law of self-defense because its language mirrors that of the ...