State v. Cox, 46510
| Decision Date | 14 August 1980 |
| Docket Number | No. 46510,46510 |
| Parties | STATE of Washington, Respondent, v. Larry Lee COX, Petitioner. |
| Court | Washington Supreme Court |
John R. Muenster, Public Defender, Seattle, for petitioner.
Norm Maleng, King County Pros. Atty., Gordon S. Jones, Deputy Pros. Atty., Seattle, for respondent.
This appeal examines whether the trial court committed reversible error by failing to specifically instruct that the burden of proof in a criminal case is upon the State. We conclude that the totality of circumstances was such that the omission of the instruction does not require reversal of the conviction.
On September 1, 1977, a Seattle gas station employee reported the theft of cash and various automobile equipment including four new tires and a battery alternator tester. The employee informed the police that he had observed a man in a long coat running from the station towards the west, and had immediately thereafter seen petitioner Larry Lee Cox approaching from the same direction and carrying a long coat. The police subsequently received tips from two informants that petitioner possessed property stolen from a Seattle service station. On September 12, 1977, a police officer went to Cox's home to arrest him on a warrant for a traffic violation, and noticed four tires inside Cox's automobile. After unsuccessfully seeking Cox's permission to search the car, the officer obtained a search warrant and found tires, a battery alternator tester and other automobile equipment matching the descriptions of the items taken from the station. Petitioner was charged with and convicted of second-degree burglary.
At trial, the judge instructed on proof beyond a reasonable doubt and the presumption of innocence:
To convict the defendant of the crime of burglary in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 1st day of September, 1977, the defendant entered or remained unlawfully in the building.
(2) That the entering or remaining was with intent to commit a crime against a person or property therein.
(3) That the acts occurred in King County, Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty.
You are instructed that the law presumes a defendant to be innocent until proven guilty beyond a reasonable doubt. This presumption is not a mere matter of form, but it is a substantial part of the law of the land, and it continues throughout the entire trial and until you have found that this presumption has been overcome by the evidence beyond a reasonable doubt.
Instruction No. 9. The judge also instructed on the definitions of reasonable doubt and presumption of innocence. Instruction No. 9. However, the trial court inadvertently omitted the standard jury instruction that the burden of proof in a criminal case is upon the State. See, e. g., Washington Pattern Jury Instructions (WPIC) 4.01.
On appeal, petitioner claimed that the omission of a specific instruction that the burden is upon the State violated the due process guarantees of the Fourteenth Amendment to the United States Constitution and art. 1, § 3 of the Washington Constitution. The Court of Appeals correctly considered the claim despite the petitioner's failure to object to the error at trial, since the claim involves an alleged violation of a constitutional right, and constitutional claims can be raised for the first time on appeal. State v. Blight, 89 Wash.2d 38, 44, 569 P.2d 1129 (1977); State v. McHenry, 88 Wash.2d 211, 213, 558 P.2d 188 (1977). The Court of Appeals rejected petitioner's claim, finding that the totality of the circumstances in this case were such that petitioner received a constitutionally fair trial despite the challenged omission in the jury instructions. The court explained that "(w)hile we do not condone the omission of an explicit reference to the State as the party with the burden of proof," the record in this case when considered as a whole did not warrant reversal of the conviction.
Petitioner contends that the Court of Appeals applied the wrong test in determining the validity of the jury instructions. He argues that our decision in State v. McHenry, supra, established that the omission of language specifically identifying the State as the party with the burden of proof is reversible error per se, and that the Court of Appeals therefore erred in applying a totality of the circumstances test and affirming the conviction.
In McHenry, the trial court failed to give an instruction adequately informing the jury that the burden of proof is upon the State, but furthermore failed to instruct that the defendant must be proven guilty beyond a reasonable doubt and that the defendant is presumed innocent until proven guilty. Rejecting the totality of circumstances test proposed by the dissent, the majority in McHenry applied a per se test and concluded that the omission of these instructions constituted reversible error. It was evident, however, that the per se reversible error was not caused simply by the omission of a specific instruction identifying the State as the party bearing the burden of proof. As explained in McHenry, there are two indispensable functions that must be performed by the jury instructions in any criminal case: (1) To declare that each element of the crime must be proven beyond a reasonable doubt, and define the standard of reasonable doubt; and (2) To state that the burden is upon the McHenry, at 214, 558 P.2d at 190. 1 The function of informing the jury of the reasonable doubt standard can only be achieved by a specific instruction. Therefore when, as in the McHenry case, the jury instructions fail to include a specific instruction on reasonable doubt, the omission is per se reversible error.
In contrast to the reasonable doubt function, the function of informing the jury that the burden of proof is upon the State and not the defendant could conceivably be achieved by either of two means an...
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