State v. Henderson

Decision Date14 June 1990
Docket NumberNo. 55035-2,55035-2
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Jerome Larnedo HENDERSON, Petitioner. En Banc

Washington Appellate Defender Ass'n, Karen Morth, New York City, for petitioner.

Norm Maleng, King County Prosecutor, Cynthia S.C. Gannett, Deputy, Seattle, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

The jury unanimously agreed that the defendant, Jerome Larnedo Henderson, was guilty of the crime of attempted burglary in the second degree as charged by the King County Prosecuting Attorney. The evidence against him was substantial. An independent eyewitness saw the defendant trying to break into a neighbor's house. Seattle One issue is dispositive of this case.

                police officers promptly responding to a call from the eyewitness observed the defendant in the act and apprehended him as he attempted to flee.   The defendant also made incriminating statements at the time of his capture.   The experienced trial court allowed the conviction to stand as did the Court of Appeals in a unanimous reported opinion. 1  We also [792 P.2d 515] affirm but do so on a different basis than did the Court of Appeals
                
ISSUE

Can the defendant in a criminal trial (as here) request that instructions be given to the jury (as here) and then, after the requested instructions have been given to the jury by the trial court (as here), complain on appeal that the instructions given were constitutionally infirm (as the defendant does here)?

DECISION

CONCLUSION. We answer the question posed by this issue in the negative. The law of this state is well settled that a defendant will not be allowed to request an instruction or instructions at trial, and then later, on appeal, seek reversal on the basis of claimed error in the instruction or instructions given at the defendant's request. To hold otherwise would put a premium on defendants misleading trial courts; this we decline to encourage.

At trial, the defendant proposed, and the trial court gave, instructions defining the charge of attempted burglary in the second degree in the language recommended by the Washington Practice Instructions--Criminal (WPIC). 2 The defendant also proposed, and the trial court gave, pattern WPIC instructions for the two offenses the defendant claimed were "lesser included offenses", namely, criminal trespass in the first degree 3 and criminal trespass in the second degree. 4

The defendant was convicted of attempted burglary in the second degree as charged and sentenced thereon.

On appeal, the defendant claims that the instructions were erroneous, arguing as follows:

In State v. Johnson, [100 Wash.2d 607, 674 P.2d 145 (1983) ], the Washington Supreme Court held that "it is error for the trial court in a burglary prosecution to fail in its instructions to specify and define the crime or crimes allegedly intended." Johnson, supra at 625 . That holding, issued in December 1983, was the controlling law in the State of Washington until it was overruled by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985), issued in December 1985.

Here, then, the trial court failed to properly instruct the jury under the controlling case law. Henderson's acts occurred in September 1985, after the Johnson decision and before Bergeron was decided. The rule in Johnson, therefore, applies to his case, and under Johnson this instructional error violated Henderson's due process right to have the jury instructed on the definition of every element of the offense charged. 3 Johnson, supra at 623-628 ; State v. Emmanuel, 42 Wn.2d 799, 821, 259 P.2d 845 (1953).

Brief of Appellant, at 4-5.

The defendant concedes that this issue was not raised in the trial court. As he notes in footnote 3, referred to in the portion of his brief just quoted:

Although this issue was not raised in the trial court, RAP 2.5(A) allows constitutional error to be raised for the first time on appeal.

(Italics ours.) Brief of Appellant, at 5 n. 3 (part). This argument misses the point, however, which is that even if error was committed, of whatever kind, it was at the defendant's invitation and he is therefore precluded from claiming on appeal that it is reversible error.

The law in this regard was clearly declared in State v. Boyer, 91 Wash.2d 342, 588 P.2d 1151 (1979), a unanimous decision of this court:

This court, in State v. Kroll, 87 Wn.2d 829, 558 P.2d 173 (1976), and succeeding cases, has recognized the constitutional requirement that the prosecution bear the burden of proving beyond a reasonable doubt each element of the crime charged. It is against this constitutional test that a challenged instruction may be measured. In this case, however, we do not reach the constitutional issue.

The instruction given is one which the defendant himself proposed. A party may not request an instruction and later complain on appeal that the requested instruction was given. Ball v. Smith, 87 Wn.2d 717, 556 P.2d 936 (1976); Vangemert v. McCalmon, 68 Wn.2d 618, 414 P.2d 617 (1966). The defendant's challenge to the instruction must therefore fail.

The judgment is affirmed.

(Italics ours.) Boyer, 91 Wash.2d at 344-45, 588 P.2d 1151.

Boyer is the established law of this state. As in the present case, constitutional error was there claimed but review was denied on the basis of invited error. Boyer has been regularly followed both by this court and by our Court of Appeals, as the following illustrative excerpts demonstrate:

A party cannot request an instruction and later complain on appeal that the instruction should not have been given. 18

(Footnoting Boyer, at 345, 588 P.2d 1151.) State v. Kincaid, 103 Wash.2d 304, 314, 692 P.2d 823 (1985).

Moreover, we note that the same result is required by the doctrine of invited error. See generally State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979). That doctrine prohibits a party from setting up an error at trial and then complaining of it on appeal. State v. Boyer, supra. The present case does exactly that.

State v. Pam, 101 Wash.2d 507, 511, 680 P.2d 762 (1984).

Under these circumstances, we hold that: ... (2) any error in connection therewith was invited error and cannot be complained of on appeal; 117

(Footnoting Pam, at 511, 680 P.2d 762.) State v. Mak, 105 Wash.2d 692, 748, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).

Even where constitutional issues are involved, invited error precludes judicial review. State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979).

State v. Tyson, 33 Wash.App. 859, 864, 658 P.2d 55, review denied, 99 Wash.2d 1023 (1983).

Even where constitutional rights are involved, invited error precludes appellate review.

State v. Alger, 31 Wash.App. 244, 249, 640 P.2d 44, review denied, 97 Wash.2d 1018 (1982).

Affirmed.

CALLOW, C.J., DORE, A.C.J., and BRACHTENBACH and DURHAM, JJ., concur.

UTTER, Justice (dissenting).

The majority's rigid application of the invited error doctrine without any consideration of the circumstances surrounding the erroneous jury instruction provokes this dissent.

Mr. Henderson requested the Washington pattern jury instructions defining burglary and attempt to commit burglary in the second degree. WPIC 60.03; WPIC 100.02. The court gave both instructions. Henderson also proposed an instruction that would have modified the effect of the instruction regarding attempt. After the court refused to give the modifying instruction, Henderson requested that the court revise the main instruction for attempt by incorporating the gist of the modification. Again, the trial court refused but noted the exception.

The prosecutor presented no evidence of Henderson's intent upon entering the dwelling. The jury found Henderson guilty as charged.

Normally, the doctrine of invited error would prevent the defendant from objecting on appeal to a jury instruction he proposed at trial. However, the doctrine should be applied prudently, with respect to the facts of each case, to prevent a denial of a constitutional right. Although the defendant proposed the instruction of which he now complains, he had also proposed an additional instruction that would have modified the effect of the objectionable instruction. The court neither gave the proposed instruction nor modified the attempt to commit burglary instruction to incorporate the defendant's objection.

Even if the trial court correctly refused to give the modifying instruction, that does not alter the fact that the defendant was actually proposing something different from the instructions given by the court. Taken as a whole, the defendant's proposed instructions concerning the specified underlying crime differ from the instructions as given. See State v. Osbey, 238 Kan. 280, 284, 710 P.2d 676 (1985) (the difference of one word between instruction proposed and instruction used was sufficient to establish reversible error, and precluded application of invited error rule). Accordingly, the case of State v. Boyer, 91 Wash.2d 342, 588 P.2d 1151 (1979), and its progeny, relied upon by the majority, are not dispositive. Viewed as a whole, the instructions were not what the defendant requested. The doctrine of invited error does not preclude review in such a situation.

This court's history of applying the doctrine of invited error with little analysis or discussion implies that the doctrine is strictly applied regardless of circumstances. See, e.g., State v. Neher, 112 Wash.2d 347, 352, 771 P.2d 330 (1989); State v. Kincaid, 103 Wash.2d 304, 314, 692 P.2d 823 (1985); In re Griffith, 102 Wash.2d 100, 102, 683 P.2d 194 (1984); State v. Boyer, 91 Wash.2d 342, 345, 588 P.2d 1151 (1979); Ball v. Smith, 87 Wn.2d 717, 556 P.2d 936 (1976); Vangemert v. McCalmon, 68 Wash.2d 618, 414 P.2d 617 (1966).

Recently, however, we declined to apply the doctrine of invited error in a capital case. See State v. Rice, 110 Wash.2d 577, 611 n. 19, 757 P.2d 889 (1988), cert. denied, --- U.S. ----,...

To continue reading

Request your trial
289 cases
  • State v. Studd
    • United States
    • Washington Supreme Court
    • 1 Abril 1999
    ..."[a] party may not request an instruction and later complain on appeal that the requested instruction was given." State v. Henderson, 114 Wash.2d 867, 870, 792 P.2d 514 (1990) (emphasis omitted) (quoting State v. Boyer, 91 Wash.2d 342, 345, 588 P.2d 1151 (1979)). Henderson also involved err......
  • State v. Prado
    • United States
    • Washington Court of Appeals
    • 8 Enero 2015
    ...review. Invited error bars review because a partycannot set up an error at trial and then complain on appeal. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting State v. Panu 101 Wn.2d 507, 511, 680 P.2d 762 (1984)). This prohibition applies even to constitutional issues. ......
  • State v. Elmore, 64085-8.
    • United States
    • Washington Supreme Court
    • 7 Octubre 1999
    ...connection with an ineffectiveness of counsel argument ... Gentry, 125 Wash.2d at 646, 888 P.2d 1105. See also State v. Henderson, 114 Wash.2d 867, 869-70, 792 P.2d 514 (1990) (an invited error will not be reviewed on appeal even if it meets the standard for review under RAP 2.5); State v. ......
  • State v. Hacheney, No. 29965-8-II (WA 8/3/2005)
    • United States
    • Washington Supreme Court
    • 3 Agosto 2005
    ...by Hacheney, to be on point or helpful here. 28. State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (quoting State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (emphasis omitted from 29. Report of Proceedings: Jury Inquiry (RPJ) at 3. 30. RPJ at 9. 31. Studd, 137 Wn.2d at 546......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT