Skjonsby, Matter of

• Decision Date: 07 May 1985
• Docket Number: No. 6574-III-0,6574-III-0
• Citation: 40 Wn.App. 541,699 P.2d 789
• Parties: In the Matter of the Application for Relief From Personal Restraint of David James SKJONSBY, Petitioner.
• Court: Washington Court of Appeals

Page 541

40 Wn.App. 541

699 P.2d 789

In the Matter of the Application for Relief From Personal Restraint of David James SKJONSBY, Petitioner.

No. 6574-III-0.

Court of Appeals of Washington,

Division 3, Panel Two.

May 7, 1985.

Jack Ackerman, Francis & Ackerman, Seattle, for petitioner.

Donald C. Brockett, Pros. Atty., Clark Colwell, Deputy, Spokane, for respondent.

MUNSON, Judge.

David James Skjonsby seeks relief from personal restraint imposed as a result of his November 1981 conviction for second degree assault. Relying on State v. Acosta, 101 Wash.2d 612, 683 P.2d 1069 (1984), Mr. Skjonsby contends the jury instructions in his case did not properly allocate the burden of proof on self-defense. We are constrained to agree and grant the petition.

During the afternoon and early evening of July 25, 1981, Mr. Skjonsby and his wife, Jinni, were drinking at home. Around 9 p.m. they went to a bar in downtown Spokane. They listened to music, danced, and drank beer. Just before closing time at the tavern, the couple left to go home. Mrs. Skjonsby testified she was afraid Mr. Skjonsby had been drinking too much so she walked 3 miles back to their home. Mr. Skjonsby drove the car and arrived before his wife.

Mrs. Skjonsby testified she found the back screen door locked upon her arrival, so she knocked on the door. She further testified that when Mr. Skjonsby opened the screen door, he immediately started to hit her, knocking her down to the ground, pinning her to the ground and continuing to beat her. Her injuries, substantiated at trial by photographs, included cuts to her face and ears requiring stitches, bruises, blackened eyes and a split lip. She testified she hit Mr. Skjonsby once, knocking his glasses to the ground, but only after he had hit her. She acknowledged at least one prior physical confrontation with Mr. Skjonsby where she slapped him and threw a bottle at him causing a severed tendon.

Mr. Skjonsby testified there were several occasions before July 25 when his wife had been verbally and physically abusive toward him, including the bottle throwing incident and another incident where she chased him with a butcher knife. He also testified that during their marriage, his wife would "disappear" from the family home for various periods of time.

As to the July 25th incident, Mr. Skjonsby testified that when the couple left the tavern at closing time, his wife crossed a street and got in a van with two men. He said he drove home alone, checked on the children, and locked the doors. He testified his wife arrived at the residence at approximately 3 a.m. and began screaming obscenities when she found the door was latched. He said he unlatched the door, guided her gently by the wrists into the back yard and was trying to talk calmly with her when she attacked him, tearing his watch from his wrist and breaking his glasses with a fist to the side of his head. Mr. Skjonsby said that while he was kneeling on the ground groping for his broken glasses, Mrs. Skjonsby punched, pummeled, and kicked him in the back and head areas. Only then, he said, did he strike her "maybe up to five times" until she stopped hitting him.

At the close of the evidence, the defense proposed an instruction ¹ dealing with self-defense and burden of proof. The trial court refused to give the proposed defense instruction. The trial court gave general pattern instructions on presumption of innocence and reasonable doubt, i.e., WPIC 4.01, together with an elements instruction on second degree assault. ² The court gave two instructions dealing with self defense ³ and excessive force. ⁴ The self-defense instructions immediately followed the elements instruction.

The instructions given did not indicate who had the burden of proof on self-defense and neither counsel argued that issue to the jury.

Mr. Skjonsby appealed, raising only one issue--a lesser included offense instruction. The appeal was dismissed by a commissioner's ruling in June 1983. State v. Skjonsby, cause 5109-III-9.

It is necessary, of course, to make a threshold determination whether there were (1) constitutional errors and (2) actual prejudice arising therefrom. The burden of proving actual prejudice rests with the petitioner. Possible prejudice will not be sufficient. In re Hews, 99 Wash.2d 80, 93, 660 P.2d 263 (1983).

Several Washington cases in recent years have discussed the relationship between self-defense and burden of proof instructions. State v. Acosta, supra (second degree assault conviction reversed; instructions did not properly inform jury of State's burden of proving absence of self-defense); State v. McCullum, 98 Wash.2d 484, 656 P.2d 1064 (1983) (first degree murder conviction reversed; statutes and due process require State to prove absence of self-defense beyond a reasonable doubt); State v. Savage, 94 Wash.2d 569, 618 P.2d 82 (1980) (second degree murder conviction reversed on other grounds; instructions which defined second degree murder as an unjustifiable killing permitted defendant to argue State had burden of proving absence of self-defense, therefore, no other instructions required); State v. Hanton, 94 Wash.2d 129, 614 P.2d 1280, cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980) (first degree manslaughter conviction reversed; instructions improperly placed burden of proving self-defense on defendant); State v. Burt, 94 Wash.2d 108, 614 P.2d 654 (1980) (second degree murder conviction affirmed; instructions adequate to allow both sides to argue their respective theories of the case); State v. King, 92 Wash.2d 541, 599 P.2d 522 (1979) (second degree murder conviction affirmed; instructions given adequate for defense to argue State had not sustained the burden of proving the absence of self-defense); State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (1977) (second degree murder conviction reversed; the burden of proving the absence of self-defense remains upon the State and the defendant has no burden of proving self defense); State v. Robinson, 38 Wash.App. 871, 691 P.2d 213 (1984), review denied, 103 Wn.2d 1015 (1985) (first degree murder and second degree assault convictions affirmed; error in instructions on self-defense was harmless error in light of overwhelming evidence of guilt); State v. Martineau, 38 Wash.App. 891, 691 P.2d 225 (1984), review denied, 103 Wn.2d 1020 (1985) (second degree murder conviction affirmed; instructions adequately set forth burden of proof); State v. Heath, 35 Wash.App. 269, 666 P.2d 922,review denied, 100 Wn.2d 1031 (1983) (first degree murder conviction affirmed; instructions allowed each side to adequately argue burden of proof of self-defense); State v. Mercer, 34 Wash.App. 654, 663 P.2d 857 (1983) (second degree murder conviction affirmed; instructions did not place the burden on defendant to prove self-defense, and there was no error by not instructing jury that the State had the burden in this pre-McCullum trial); State v. LeBlanc, 34 Wn.App. 306, 660 P.2d 1142, review denied, 100 Wn.2d 1021 (1983) (simple assault conviction reversed; when evidence of self-defense produced, State must then prove absence of self-defense beyond a reasonable doubt and failure to instruct on State's burden constitutes prejudicial constitutional error).

These cases are premised on United States Supreme Court cases holding that instructional errors which tend to shift the burden of proof to a criminal defendant may affect his right to due process of law. E.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Under the federal and state cases cited above, the instructions in this case were in error and the error is of constitutional magnitude.

We must next determine whether the error was harmless. Since the error infringed upon a constitutional right, it is presumed prejudicial. State v. Stephens, 93 Wash.2d 186, 190-91, 607 P.2d 304 (1980). Constitutional errors cannot be deemed harmless unless they are harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). State v. Robinson, supra.

In State v. Robinson, supra, 38 Wash.App. at 876, 691 P.2d 213, our court held error in the instructions regarding self-defense was harmless:

Our State Supreme Court and the United States Supreme Court have set out two alternative approaches in making this determination:

(1) constitutional error is harmless only if it can be said beyond a reasonable doubt that it did not contribute to the verdict (hereinafter "contribution test"); and (2) constitutional 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 (hereinafter "overwhelming evidence test").

Under either the "contribution test" or the "overwhelming evidence test", we cannot come to the same conclusion in this case. Here, the only issue was self-defense. The only two witnesses were Mr. and Mrs. Skjonsby, who clearly disputed who started the fight between them. All...