State v. Bennett

• Citation: 87 Wn.App. 73,940 P.2d 299
• Decision Date: 21 July 1997
• Docket Number: No. 37880-5-I,37880-5-I
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Daun Leon BENNETT, Appellant.

Page 73

87 Wn.App. 73

940 P.2d 299

STATE of Washington, Respondent, v. Daun Leon BENNETT, Appellant.

No. 37880-5-I.

Court of Appeals of Washington Division 1.

July 21, 1997.

Kelly Curtin, Nielsen, Broman & Assoc., Seattle, Stephen Traylor, Seattle, for Appellant.

Seth Fine, Breck Marsh, Snohomish County Pros. Office, Everett, for Respondent.

COX, Judge.

Daun Leon Bennett challenges his conviction for attempted first degree murder. He claims that his trial attorney provided ineffective assistance of counsel by proposing a self-defense instruction that our Supreme Court disapproved after his trial. ¹ We conclude that the jury instructions were sufficient when read as a whole. Therefore counsel's representation was not deficient. Accordingly, we affirm.

On an evening in May 1995, JoLayne Boston arrived at her home to find Bennett, her estranged boyfriend, waiting for her. The two had been involved in a long-term, stormy relationship punctuated by several break-ups and reconciliations. Boston realized that Bennett was there that evening because she saw his truck parked in front of the house. She parked her vehicle in front of his, blocking his exit. Boston was carrying a pistol in her purse.

When Boston exited her vehicle, she heard the screen door close and saw Bennett walking off the porch. Boston confronted Bennett about his presence there, insisted that he leave, and threatened to call the police.

At that point, Boston returned to her truck. As she did, Bennett saw the pistol protruding from her purse. He demanded the gun. She refused and entered her vehicle. Bennett tried to reach across her to her purse to seize the weapon. He then placed his knife to her throat and told her that he would slit it unless she gave him the gun. Boston raised her hand to push away the knife. Bennett began stabbing her. He eventually stabbed her 14 times.

Boston attempted to defend herself by kicking Bennett, who then pulled her out of the truck by her legs. At that point, her purse fell to the ground as she landed on her feet. Bennett picked up the purse and removed the gun. Boston lunged for the gun but tripped over a board in the driveway. Bennett then shot her in the chest. When she realized that the wound had not completely disabled her, she stood up and ran to her neighbors' house. Someone there called the police.

Meanwhile, a different neighbor heard Boston's screams and went to her house armed with a rifle. He confronted Bennett, who told the neighbor that he had shot and stabbed Boston. The police arrived and took Bennett into custody.

Bennett testified in substantial conformity with the foregoing. But he said that he merely "poked" Boston a few times with the knife to stop her from grabbing the gun. According to him, he pulled her out of the truck, grabbed the gun, and attempted to unload it by cocking the hammer. At that point, Bennett said that Boston grabbed at the gun, which went off and shot her.

The State charged Bennett with one count of attempted first degree murder with a deadly weapon enhancement. A jury found Bennett guilty as charged. Bennett appeals.

Ineffective Assistance of Counsel

Bennett argues that he received ineffective assistance of counsel. The claim is based on the self-defense instruction his attorney proposed. The invited error doctrine generally forecloses review of an instructional error where the appellant proposed the challenged instruction. ² But invited error does not bar review of a claim of ineffective assistance of counsel based on such an instruction. ³

Washington courts use a two-prong test to overcome the strong presumption of effectiveness that courts apply to counsel's performance. ⁴ A defendant must first demonstrate that defense counsel's representation was deficient. ⁵ "Deficient performance is not shown by matters that go to trial strategy or tactics." ⁶ The defendant must also show prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." ⁷ The defendant must meet both prongs of the test to merit relief. ⁸

A Deficient Representation

Bennett argues that his trial counsel's representation was deficient because counsel proposed self-defense instructions that failed to make the law of self-defense clear. He is mistaken.

The law of self-defense is well-settled. Recently, our Supreme Court reiterated that "[a] jury may find self-defense on the basis of the defendant's subjective, reasonable belief of imminent harm from the victim." ⁹ The jury need not find that actual harm was imminent. ¹⁰ The jury should instead view the situation from the defendant's point of view and assess the reasonableness of the defendant's actions based on "all the surrounding facts and circumstances as they appeared to the defendant." ¹¹ Moreover, "[t]he instructions, read as a whole, must make the relevant legal standard ' " 'manifestly apparent to the average juror.' " ' " ¹²

Here, the defense proposed, and the court gave, instructions 13 through 16. All related to self-defense.

We first consider instruction 14 that states:

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

Attempted homicide is justifiable when committed in the lawful defense of the actor when:

(1) the actor reasonably believed that the person threatened or harmed intended to commit a felony;

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

(3) the actor employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the actor, 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 attempted homicide was not justifiable. If you find 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. ¹³

Instruction 14 is substantially the same as the instruction that our Supreme Court disapproved in LeFaber. ¹⁴ There, the trial court gave the following instruction:

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. ¹⁵

When it rejected the foregoing instruction in LeFaber, the Supreme Court also referred with disapproval to the corresponding WPIC instruction, 16.02. That instruction states:

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 the incident. ¹⁶

The above italicized portions of instruction 14, the LeFaber instruction, and WPIC 16.02 all share the same shortcoming. A finding of self-defense does not depend on an objective determination that danger is actually imminent. Rather, it is a subjective determination that applies: What danger does the accused reasonably believe is imminent? Thus, read in isolation, instruction 14 in this case fails to accurately state the law of self-defense. It creates the possibility that the jury might have arrived at an erroneous conclusion based on an improper statement of the law. ¹⁷

Our inquiry does not end at that instruction. Here, instruction 16 supplements and clarifies the statement of the law of self-defense in instruction 14. Instruction 16 states:

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 an attempted homicide to be justifiable.

Instruction 16 makes clear that actual imminent harm is not necessary to show self-defense. Thus, instructions 14 and 16 do not conflict, as Bennett argues. Instruction 14 describes the necessary showing of harm to show lawful self-defense: "there was imminent danger of such harm being accomplished...." ¹⁸ Instruction 16 makes clear the subjective nature of the inquiry into "imminent danger." Imminent danger from the point of view of a defendant is not necessarily the same as actual danger. When read together, these two instructions properly state the law of self-defense. ¹⁹

Bennett cites State v. Aumick ²⁰ as supplemental authority, apparently for the proposition that reference to other instructions to supply the elements of self-defense is not appropriate in this case. There, our Supreme Court held that the trial court committed reversible error when it omitted the element of intent from the "to convict" instruction that set forth the elements of criminal...