State v. Bennett

• Decision Date: 24 January 2006
• Docket Number: No. 32896-8-II.,32896-8-II.
• Citation: 131 Wn. App. 319,126 P.3d 836
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Bruce L. BENNETT, Jr., Appellant.

Page 836

126 P.3d 836

131 Wn. App. 319

STATE of Washington, Respondent, v. Bruce L. BENNETT, Jr., Appellant.

No. 32896-8-II.

Court of Appeals of Washington, Division Two.

January 24, 2006.

Carol L. Case, Clallam County Prosecutor's Office, Port Angeles, WA, for Respondent.

Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

PART PUBLISHED OPINION

HUNT, J.

¶ 1 Bruce L. Bennett, Jr., appeals his attempted first degree escape conviction and sentence. He argues that (1) the reasonable doubt instruction was improper; (2) the evidence was insufficient to convict because a limiting instruction precluded the jury's finding one element of the offense; and (3) the trial court erred in including his Oregon offenses in his offender score because Oregon law does not require a unanimous verdict by all 12 jurors to convict of a crime. Finding no error, we affirm.

FACTS

I. JURY TRIAL

¶ 2 The State charged Bennett with attempted first degree escape, which required the State to prove that, at the time of the attempted escape, he was being detained pursuant to a felony conviction or equivalent juvenile offense. RCW 9A.76.110(1). In order to avoid disclosing to the jury that Bennett had attempted to escape while serving time for murder, the parties stipulated that, at the time of the attempted escape, Bennett was being detained at a detention facility pursuant to a felony conviction. The stipulation stated that the parties stipulated "for purposes of establishing the elements of the crime." Exhibit 40. The trial court read the stipulation to the jury and advised it that, as a result of the stipulation, the question of whether Bennett was being detained pursuant to a felony conviction was not at issue. Bennett did not object.

¶ 3 Bennett testified in his defense, denying any involvement in the attempted escape. The stipulation was the only evidence that Bennett had any prior convictions for any purpose, including impeachment.

¶ 4 After the parties rested, they discussed jury instructions. The State proposed an instruction modeled on Washington Pattern Jury Instruction — Criminal § 4.01A. Bennett argued that this instruction was a comment on the evidence and that it was confusing because it used more than one example to help define reasonable doubt.¹ The trial court rejected Bennett's arguments and adopted the State's reasonable doubt instruction.

¶ 5 Additionally, in an apparent attempt to prevent the jury from using Bennett's prior felony conviction as propensity evidence, the trial court gave the following limiting instruction:

Evidence that the Defendant has previously been convicted of a crime is not evidence of the Defendant's guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to the testimony of the Defendant and for no other purpose.

Instruction No. 5, Clerk's Papers (CP) at 29. Although the State asserts that both parties offered this instruction and that neither party objected, the record before us on appeal does not show who proposed this instruction; nor does it contain any objection by either party. Moreover, neither party mentioned this instruction in closing argument.

¶ 6 The jury convicted Bennett as charged.

II. SENTENCING

¶ 7 At sentencing, the parties and the court discussed Bennett's prior convictions, which included two Washington convictions (a second degree robbery and a second degree murder), and three Oregon convictions (a first degree burglary and two counts of first degree kidnapping). Bennett did not argue that the Oregon offenses were not comparable to Washington offenses, and the trial court did not address this issue. The sentencing court determined that Bennett had an offender score of four,² and sentenced him to a standard range sentence.

¶ 8 Bennett appeals his conviction and sentence.

ANALYSIS

I. REASONABLE DOUBT INSTRUCTION

¶ 9 Bennett argues that the trial court committed reversible error in giving the jury Instruction No. 3, a reasonable doubt instruction, taken from 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01A, at 68 (2d ed (1994)) (WPIC). We disagree.

¶ 10 Instruction No. 3 stated:

The Defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that reasonable doubt exists.

A Defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the Defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

CP at 27 (Instruction No. 3) (emphasis added).

¶ 11 WPIC 4.01A is based on the reasonable doubt instruction that Division One of this court approved in State v. Castle, 86 Wash.App. 48, 935 P.2d 656, review denied, 133 Wash.2d 1014, 946 P.2d 402 (1997), as supplemented by the Washington Supreme Court Committee on Jury Instructions. WPIC, § 4.01A cmt. at 24-25 (Supp.1998).

¶ 12 Asking us to reject Castle, Bennett argues that (1) the "real possibility" language in the last sentence of the instruction is equivalent to the "substantial doubt" language the United States Supreme Court rejected in Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), overruled in part by Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (rejecting the standard applied in Cage)³; and (2) the following language compounds the problem because the phrase "possible doubt" is not defined and the State's burden is presented in the negative — "There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt." Br. of Appellant at 5-6, citing a portion of Instruction No. 3.

A. Standards

¶ 13 In a criminal case, the trial court must instruct the jury that the State has the burden to prove each essential element of the crime beyond a reasonable doubt. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996). It is reversible error if the instructions relieve the State of that burden. Pirtle, 127 Wash.2d at 656, 904 P.2d 245 (citations omitted). Such is not the case here, however.

¶ 14 Although no particular wording is required, the jury instructions must define reasonable doubt and clearly communicate the correct allocation of the burden of proof. State v. Coe, 101 Wash.2d 772, 787-88, 684 P.2d 668 (1984). This standard is not met if the defendant establishes that the wording of the challenged instruction misled the jury as to its functions and responsibilities under the law. State v. Hayes, 73 Wash.2d 568, 572, 439 P.2d 978 (1968).

¶ 15 We review a challenged jury instruction de novo, examining the effect of a particular phrase in an instruction by considering the instructions as a whole and reading the challenged portion in the context of all the instructions given. Pirtle, 127 Wash.2d at 656, 904 P.2d 245.

B. Castle

¶ 16 The instruction at issue in Castle stated:

The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt.

A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

Castle, 86 Wash.App. at 53, 935 P.2d 656 (emphasis added).

¶ 17 The Castle court held that the term "real possibility" did not lower the State's standard of proof because it simply distinguished "reasonable from unfounded doubt" and referred "to the nature of the possibility, not to its quantum." Castle, 86 Wash.App. at 58, 935 P.2d 656. Comparing the instruction to the instruction at issue in Cage, the Castle court determined that Cage never addressed the "real possibility" language present in the instruction Castle challenged. Castle, 86 Wash.App. at 55, 935 P.2d 656.

¶ 18 Examining cases from a variety of jurisdictions, the Castle court noted that other courts had addressed similar language and that these courts had found the language permissible. Castle, 86 Wash.App. at 55, 935 P.2d 656 (discussing Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994); United States v. Conway, 73 F.3d 975 (10th Cir.1995); United States v. Williams, 20 F.3d 125 (5th Cir.1994), cert. denied, 513 U.S. 891, 115 S.Ct. 239, 130 L.Ed.2d 162 (1994); United States v. Taylor, 997 F.2d 1551 (D.C.Cir.1993) (citing seven additional cases examining similar language and...