State v. Fowler

• Citation: 785 P.2d 808,114 Wn.2d 59
• Decision Date: 01 February 1990
• Docket Number: No. 56175-3,56175-3
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Respondent, v. William James FOWLER, Petitioner.

Page 59

114 Wn.2d 59

785 P.2d 808

The STATE of Washington, Respondent, v. William James FOWLER, Petitioner.

No. 56175-3.

Supreme Court of Washington,

En Banc.

Feb. 1, 1990.

Mestel & Muenster, John Muenster, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Jeffrey Ramsdell, Deputy County Prosecutor, Seattle, for respondent.

DOLLIVER, Justice.

On November 6, 1978, Russell Verbon, his wife Jacqueline, and son Mark were driving down a 2-lane residential street in Seattle when they came across William J. Fowler's car blocking both lanes of traffic. Russell Verbon decelerated his car and waited for Fowler to proceed. When Fowler eventually did so, Russell Verbon attempted to pass him but was unsuccessful because he did not have enough room. Shortly thereafter, Fowler stopped his car in the middle of the road. He then got out of his car and pounded his fist abruptly on the hood of Russell Verbon's car.

Mark Verbon testified he got out of the back seat of the car but quickly jumped back in when he saw Fowler pull a gun out of a holster he was wearing. Russell Verbon testified he saw Fowler point a handgun at him as he put his car into reverse and began backing away. Jacqueline Verbon testified she saw Fowler reach for a gun in a holster, draw it out, and point it at her husband.

Fowler testified he was not "100 percent for sure" but "it's more than possible" he was carrying a .357 magnum in a shoulder holster that day. Fowler also testified if he was in fact carrying a gun it would have been visible as he began to take off his shirt in anticipation of a fight between himself and Mark Verbon. Fowler also admitted he was angry and that he slammed his fist on the hood of the Verbon car. Fowler testified at no time did he ever "pull a gun or point a gun" at anyone.

In 1973, Fowler was convicted on two felony charges, one involving a grand larceny conviction. Fowler's motion to exclude these prior convictions at trial was denied.

Fowler was tried and convicted of second degree assault with a special finding he was armed with a deadly weapon and a firearm. He appealed his conviction and alleged the trial court erred when it: (1) failed to instruct the jury the State had the burden of proving beyond a reasonable doubt the presence of a deadly weapon in fact; (2) overruled Fowler's objections to certain statements made by the prosecutor in her closing argument; (3) denied Fowler's motion to exclude his prior convictions; (4) failed to instruct the jury on the lesser included offense of unlawful display of a firearm; and (5) failed to define the term "unlawful force" in the jury instructions. The Court of Appeals in an unpublished opinion affirmed the trial court on all grounds. We affirm.

I

We turn first to the failure of the trial court to instruct the jury on the State's burden of proof in relation to the deadly weapon charge. According to RCW 9.95.040, the State must prove the presence of a deadly weapon in fact in order to permit a special finding that a defendant was armed with a deadly weapon. State v. Pam, 98 Wash.2d 748, 753, 659 P.2d 454 (1983), overruled on other grounds. State v. Brown, 111 Wash.2d 124, 143-44, 761 P.2d 588 (1988), aff'd on rehearing, 113 Wash.2d 520, 782 P.2d 1013 (1989). A defendant's penalty cannot be enhanced if the evidence establishes only that he was armed with a gun-like, but nondeadly, object. Pam, 98 Wash.2d at 753, 659 P.2d 454. Furthermore, the trial court is required to instruct the jury it must find the defendant armed with a deadly weapon beyond a reasonable doubt. State v. Tongate, 93 Wash.2d 751, 754-56, 613 P.2d 121 (1980).

Since the trial court failed to instruct the jury on the State's burden of proof relative to the deadly weapon charge, it erred according to Tongate. What effect the trial court's error should have is the issue presented to this court. We granted Fowler's petition for review mainly to answer this question.

This court has held an error infringing upon a defendant's constitutional rights is presumed prejudicial and that the State has the burden of proving the error was harmless beyond a reasonable doubt. State v. Pam, supra, 98 Wash.2d at 753, 659 P.2d 454; State v. Stephens, 93 Wash.2d 186, 191, 607 P.2d 304 (1980); State v. Burri, 87 Wash.2d 175, 182, 550 P.2d 507 (1976); State v. Claborn, 95 Wash.2d 629, 628 P.2d 467 (1981). A "harmless error" is one which is " ' "trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case." ' " Pam, 98 Wash.2d at 754, 659 P.2d 454 (quoting State v. Wanrow, 88 Wash.2d 221, 237, 559 P.2d 548 (1977)). This is the standard the Court of Appeals applied in affirming Fowler's conviction. However, this court has also held a failure to instruct on reasonable doubt constitutes reversible error per se. In re Gunter, 102 Wash.2d 769, 689 P.2d 1074 (1984). The apparent inconsistency of Gunter with Pam needs to be resolved.

In Gunter, the defendant was found guilty of second degree assault with a special finding he was armed with a deadly weapon or firearm. Gunter, at 771, 689 P.2d 1074. The trial court failed to instruct the jury on the State's burden of proof in relation to the deadly weapon special verdict. Gunter, at 771, 689 P.2d 1074. In holding the trial court's error reversible per se, the court reasoned:

In State v. Cox, 94 Wn.2d 170, 174, 615 P.2d 465 (1980), the court expressly held failure to instruct on reasonable doubt is per se reversible error:

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 [State v. McHenry, 88 Wash.2d 211, 558 P.2d 188 (1977) ] case, the jury instructions fail to include a specific instruction on reasonable doubt, the omission is per se reversible error.

Gunter, at 774, 689 P.2d 1074.

In State v. Cox, supra, the defendant was charged with and convicted of second degree burglary. Cox, 94 Wash.2d at 172, 615 P.2d 465. The trial court instructed the jury on the State's burden to prove each element of the crime against defendant beyond a reasonable doubt. Cox, at 172, 615 P.2d 465. The court also instructed the jury on the presumption of innocence. Cox, at 172, 615 P.2d 465. However, the court failed to give the standard instruction informing the jury that the burden of proof in a criminal case is upon the State. Cox, at 173, 615 P.2d 465. In affirming the defendant's conviction, this court applied a totality of the circumstances approach and evaluated the instructions as a whole in order to determine the harmful effect of omitting the instruction. Cox, at 175, 615 P.2d 465.

By applying a totality of the circumstances approach in Cox, we specifically rejected the reversible per se standard developed in State v. McHenry, supra, where not only did the trial court fail to instruct the jury on the State's burden of proof, it also failed to instruct on reasonable doubt or the presumption of innocence. McHenry, 88 Wash.2d at 212, 558 P.2d 188.

Unlike McHenry, Gunter did not entail a complete failure to instruct on reasonable doubt. From the reasonable doubt instruction which was given, the jury could have inferred that the same standard should apply to the deadly weapon special verdict as well.

For this reason, we hold where no reasonable doubt instruction is given at all, as in McHenry, such an error is reversible per se. However, in cases where the jury is instructed at least once on the State's burden of proof in a criminal case, the omission of further instruction where required shall be analyzed by looking at whether the error was harmless beyond a reasonable doubt. Although Tongate requires the trial court to instruct the jury on the State's burden of proof in relation to the deadly weapon special verdict, an across-the-board application of the McHenry standard in cases where the instruction is inadvertently omitted would only lead to retrial of cases where there is no doubt the jury would have reached the same result had it been properly instructed.

In this case, the court did instruct the jury once on reasonable doubt, although not specifically on the deadly weapon charge. Therefore, the court's instructional error should be analyzed according to whether the error was harmless beyond a reasonable doubt. Based on the testimony of the Verbons and Fowler, it is clear the instructional error was harmless. The jury was instructed the State had the burden of proving beyond a reasonable doubt Fowler was guilty of second degree assault. See instructions 2 and 3. From the evidence and testimony presented at trial, the jury could only find Fowler guilty of assault if it also found he was armed at the time of the incident. Although Fowler alleges the jury may have concluded he committed an assault when he slammed his fist on the hood of the Verbon car, no evidence or testimony to support this theory was developed at trial. Fowler either committed an assault with a weapon or he did not commit an assault at all.

Furthermore, Fowler himself testified he owned a .357 magnum and that it was "more than possible" he was carrying it on this particular day. The Verbons all testified they saw Fowler draw the gun as he stood next to their car. Based on the overwhelming evidence from both sides regarding the gun, Fowler would have been found armed with a deadly weapon beyond a reasonable doubt even if the jury had been properly instructed. The error was harmless beyond a reasonable doubt.

II

We examine next the impropriety of certain statements the prosecutor made in her closing argument to the jury. The prosecutor stated:

There is one further thing I think you should ask yourselves. In this case, the State has the burden of proof in a criminal charge and the State welcomes that burden in this case. I think you will find the State has met that burden, but anyone can call and...