Argued: May 7, 2013.
Appeal fro Clallam County Superior Court. 09-1-00253-2. Honorable George L. Wood.
Casey Grannis (of Nielsen Broman & Koch PLLC ), for petitioner.
Deborah S. Kelly, Prosecuting Attorney, and Lewis M. Schrawyer, Deputy, for respondent.
David B. Zuckerman on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.
AUTHOR: Justice Mary E. Fairhurst. WE CONCUR: Justice Charles W. Johnson, Justice Susan Owens, Justice James M. Johnson, Justice Debra L. Stephens, Justice Steven C. Gonzá lez, AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles K. Wiggins.
[178 Wn.2d 489] Fairhurst,
¶ 1 -- The State charged Jeffrey Thomas Lynch with indecent liberties and second degree rape. At trial, Lynch's defense to the rape charge was that the State failed to prove forcible compulsion because the alleged victim, T.S., consented to the sexual intercourse. Over Lynch's objection, the trial court instructed the jury that Lynch had the burden to prove consent by a preponderance of the evidence. The jury found Lynch guilty of the crimes charged. The Court of Appeals affirmed Lynch's second degree rape conviction but reversed the indecent liberties conviction. We hold that the trial court violated Lynch's Sixth Amendment right to control his defense by instructing the jury on the affirmative defense over Lynch's objection and that such error was not harmless.
FACTS AND PROCEDURAL HISTORY
¶ 2 The State charged Lynch with second degree rape and indecent liberties after T.S. reported to the police that Lynch had forcibly
penetrated her vagina with his finger and placed her hand on his penis. These incidents allegedly took place during the middle of the night at Lynch's apartment after Lynch and T.S. had fallen asleep on the couch while watching a movie. Although T.S.'s young son and a friend of T.S.'s were asleep in an adjacent bedroom, there were no witnesses to the alleged crimes besides T.S. and Lynch. T.S. claimed that she physically and verbally resisted Lynch's advances but that Lynch overpowered her.
[178 Wn.2d 490] Lynch admitted that he digitally penetrated T.S.'s vagina but claimed that T.S. consented to his conduct. Lynch denied ever forcing T.S. to place her hand on his penis.
¶ 3 Lynch's case proceeded to a jury trial. At the conclusion of trial, the court gave the following jury instruction at the State's request:
A person is not guilty of RAPE or INDECENT LIBERTIES if the sexual intercourse or sexual contact is consensual. Consent means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.
The defendant has the burden of proving that the sexual intercourse or sexual contact was consensual by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.
Clerk's Papers at 66. Lynch objected to the consent instruction on the grounds that he had the right to control his defense and because he did not want to bear the burden of proving consent. Lynch argued that he introduced evidence that T.S. had consented in order to create a reasonable doubt about whether the State had proved the element of forcible compulsion.
¶ 4 The jury found Lynch guilty on both charges. After the trial court denied Lynch's motion for a new trial, Lynch appealed the guilty verdicts and certain community custody conditions imposed in his judgment and sentence. In an unpublished opinion, the Court of Appeals affirmed in part and reversed in part and remanded. State v. Lynch, noted at 170 Wn.App. 1001 (2012). The Court of Appeals affirmed the second degree rape conviction but reversed the indecent liberties conviction. The Court of Appeals also vacated the community custody conditions that Lynch contested and remanded for further proceedings. Lynch sought review by this court to address the errors assigned to his second
[178 Wn.2d 491] degree rape conviction. Neither Lynch nor the State sought review of the Court of Appeals' reversal of the indecent liberties conviction or vacation of the community custody conditions. We granted review. State v. Lynch, 176 Wn.2d 1016, 298 P.3d 704 (2013).
¶ 5 A. Did the trial court violate Lynch's Sixth Amendment right to control his defense by instructing the jury on the affirmative defense of consent over Lynch's objections?
¶ 6 B. Is the constitutional error harmless?
¶ 7 " We review allegations of constitutional violations de novo." State v. Siers, 174 Wn.2d 269, 273-74, 274 P.3d 358 (2012) (citing State v. Vance, 168 Wn.2d 754, 759, 230 P.3d 1055 (2010)).
A. Did the trial court violate Lynch's Sixth Amendment right to control his defense by instructing the jury on the affirmative defense of consent over Lynch's objections?
¶ 8 The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ..., and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor,
and to have the assistance of counsel for his defense.
Implicit in the Sixth Amendment is the criminal defendant's right to control his defense. See Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (" Although not stated in the [Sixth] Amendment in so many words, the right ... to make one's own defense personally [ ] is thus necessarily implied by the structure of the Amendment." );
[178 Wn.2d 492] State v. Jones, 99 Wn.2d 735, 740, 664 P.2d 1216 (1983) (" Faretta embodies 'the conviction that a defendant has the right to decide, within limits, the type of defense he wishes to mount.'" (quoting United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979))). The defendant's right to control his defense is necessary " to further the truth-seeking aim of a criminal trial and to respect individual dignity and autonomy." State v. Coristine, 177 Wn.2d 370, 375, 300 P.3d 400 (2013).
¶ 9 " Instructing the jury on an affirmative defense over the defendant's objection violates the Sixth Amendment by interfering with the defendant's autonomy to present a defense." Id.; see also Jones, 99 Wn.2d at 739 (trial court violated defendant's right to control his defense by forcing the defendant to enter a not guilty by reason of insanity plea and appointing amicus counsel to argue the insanity defense over defendant's objections); State v. McSorley, 128 Wn.App. 598, 605, 116 P.3d 431 (2005) (trial court violated defendant's right to control his defense by instructing the jury on an affirmative defense to the crime of child luring over defendant's objection).
¶ 10 This court's recent decision in Coristine is dispositive in resolving this case. In Coristine, the State charged Brandon Coristine with second degree rape after he had sexual intercourse with L.F. after L.F. had been drinking at a party at Coristine's house. The State charged Coristine under RCW 9A.44.050(1)(b), which states that a person is guilty of second degree rape if the " victim is incapable of consent by reason of being physically helpless or mentally incapacitated." Coristine's trial strategy throughout the case was to show that the State failed to prove that L.F. was physically helpless or mentally incapacitated during sexual intercourse.
¶ 11 At the close of evidence, the trial court in Coristine held an instruction conference to decide whether it should instruct the jury on the affirmative defense of reasonable belief. See RCW 9A.44.030(1). Under RCW 9A.44.030(1), a
[178 Wn.2d 493] defendant is not guilty of second degree rape if the defendant " reasonably believed" that the alleged victim was not mentally incapacitated or physically helpless. The defendant has the burden of proving reasonable belief by a preponderance of the evidence. Id. At the instruction conference, the State argued that the court was required to give the instruction because Coristine had " 'bolster[ed]' his case by offering '... additional evidence' that the victim was not incapacitated." Coristine, 177 Wn.2d at 374 (first alteration in original) (quoting 3 Verbatim Report of Proceedings at 395). Coristine objected to the instruction because he did not want the burden of proof. Coristine " reiterated his failure-of-proof defense, arguing that testimony from defense witnesses about L.F.'s alcohol consumption and behavior at the party cast doubt on the State's allegation that L.F. was physically helpless or mentally incapacitated during sexual intercourse." Id. at 374-75.
¶ 12 The trial court instructed the jury on the reasonable belief affirmative defense over Coristine's objections, and the jury found Coristine guilty. The Court of Appeals affirmed. This court reversed the Court of Appeals, holding that " [t]he Sixth Amendment right to control one's defense encompasses the decision to present an affirmative defense." Id. at 376. We reasoned, " Imposing a defense on an unwilling defendant impinges on the independent autonomy the accused must have to defend against charges." Id. at 377.
¶ 13 In this case, the trial court violated Lynch's Sixth Amendment right to control his defense by instructing the jury on the affirmative defense of consent over Lynch's objections. Like Coristine, Lynch attempted to cast doubt on an element of the State's case--the element of forcible compulsion. Also like Coristine, Lynch objected to the
affirmative defense instruction because he did not want the burden of proof. By " [i]mposing a defense on an unwilling defendant," the trial court " impinge[d]" Lynch's autonomy to conduct his defense. Id. The State argues that the
[178 Wn.2d 494] consent instruction was justified because Lynch introduced evidence that T.S. consented. But in Coristine, we rejected a similar argument made by the State that evidence presented by Coristine bolstering his case somehow justified instructing the jury on an affirmative defense. In accordance with Coristine, we hold that the trial court violated Lynch's Sixth Amendment right to control his defense by instructing the jury on the affirmative defense of consent over Lynch's objection.
B. Is the constitutional error harmless?
¶ 14 " [I]f trial error is of constitutional magnitude, prejudice is presumed and the State bears the burden of proving it was harmless beyond a reasonable doubt." Id. at 380 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). " [A] violation of the defendant's right to control his own defense may be subject to review for harmless error." Id. (citing Jones, 99 Wn.2d at 748).
¶ 15 The State argues that any constitutional error was harmless because " there was no inconsistency between the consent instruction and the defense Lynch advanced with respect to second-degree rape." Br. of Resp't at 17. Contrary to the State's argument, however, instructing the jury that Lynch had the burden of proving consent was inconsistent with Lynch's trial strategy of casting doubt on the element of forcible compulsion. The consent instruction imposed a burden on Lynch that was greater than the burden necessary to create a reasonable doubt about forcible compulsion. See Martin v. Ohio, 480 U.S. 228, 234, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (noting that evidence creating a reasonable doubt about an element of a crime " could easily fall far short" of proving a defense by a preponderance of the evidence).
¶ 16 Even if we accepted the State's argument that there was " no inconsistency" between the instruction and Lynch's defense, this fact alone is not enough to prove harmless
[178 Wn.2d 495] error. Br. of Resp't at 17. In Coristine, we held that the State failed to prove harmless error in part because " [a] deprivation of [a defendant's right to control his defense] is error even if the trial court's instructions in the law are a model of accuracy." 177 Wn.2d at 381. We further stated, " [I]f seizing control over a defendant's trial strategy were harmless so long as the court correctly instructed the jury in the defense it chose, little would remain of the Sixth Amendment right to control one's defense." Id. We acknowledge that the consent instruction, derived from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.25 (3d ed. 2011), was an accurate statement of the law. This court even approved the use of a similar instruction in a similar context in State v. Gregory, 158 Wn.2d 759, 801, 147 P.3d 1201 (2006). Under Coristine, however, giving such an instruction over a defendant's objection violates the defendant's right to control his defense regardless of the instruction's accuracy.
¶ 17 In a similar vein, the State argues that any error was harmless " because the consent instruction did not come into play until the jury had evaluated whether the State established its burden of proof." Br. of Resp't at 18-19. The State seems to be arguing that the consent instruction was harmless because the instruction regarding the State's burden (to prove all the elements of the crimes beyond a reasonable doubt) was accurate. In support of its assertion, however, the State offers nothing more than the conclusory statement that " the jury would have found Lynch guilty of both crimes regardless of the consent instruction." Id. at 19. The State fails to prove that instructing the jury on an affirmative defense over Lynch's objections was harmless beyond a reasonable doubt.
¶ 18 The trial court violated Lynch's Sixth Amendment right to control his defense when it instructed the jury on
[178 Wn.2d 496] the affirmative defense of consent over Lynch's objections. The ...