State v. Hood
| Decision Date | 26 September 2016 |
| Docket Number | No. 73401–6–I,73401–6–I |
| Court | Washington Court of Appeals |
| Parties | State of Washington, Respondent, v. Christopher Robin Hood, Appellant. |
Kevin Andrew March, Nielsen, Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122–2842, for Appellant.
Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104–2362, for Respondent.
Becker, J.¶1 The community custody sentencing statute, RCW 9.94A.701
, is not ambiguous with respect to which crimes have a 18–month term of community custody. Finding no error in sentencing and holding that it was not manifest constitutional error to use the pattern instruction defining reasonable doubt, we affirm.
FACTS
¶2 According to testimony at trial, appellant Christopher Hood was married to LD from 2006 to 2014. As the divorce was being finalized, Hood showed up uninvited at LD's apartment and workplace on several occasions. LD obtained a protection order. On November 21, 2014, LD was preparing to leave for work around 3:45 a.m. When she opened the door, Hood burst in and shoved her against the wall. He pulled a gun from his waistband, hit her with the butt of the gun two or three times, and held the gun to her head. Hood left when a dog started barking upstairs. LD called the police.
¶3 A jury convicted Hood of three crimes of domestic violence as defined under RCW 10.99.020
—burglary in the first degree, felony violation of a court order, and stalking. The trial court imposed an exceptional sentence based on the jury's finding of an aggravating factor. Hood appeals.
REASONABLE DOUBT INSTRUCTION
¶4 The court gave the standard reasonable doubt instruction, WPIC 4.01. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 27 (3d ed. Supp. 2014–15) (WPIC). The instruction reads in relevant part, “A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence.” Hood did not object. For the first time on appeal, he argues that it implicitly—and unconstitutionally —requires jurors to be able to articulate reasonable doubt. He claims the instruction undermines the presumption of innocence and shifts the burden of proof in the same way as the fill-in-the-blank arguments that our Supreme Court disapproved in State v. Emery, 174 Wash.2d 741, 760, 278 P.3d 653 (2012)
.
¶5 The State first contends that Hood invited any error that may exist in the pattern instruction. The basic premise of the invited error doctrine is that a party who sets up an error at trial cannot claim that very action as error on appeal and receive a new trial. State v. Momah, 167 Wash.2d 140, 153, 217 P.3d 321 (2009)
, cert. denied, 562 U.S. 837, 131 S.Ct. 160, 178 L.Ed.2d 40 (2010). Thus, a party may not request a particular instruction and later complain on appeal that the requested instruction was given. State v. Studd, 137 Wash.2d 533, 546, 973 P.2d 1049 (1999). Invited error prevents review of instructional errors even if they are of constitutional magnitude. City of Seattle v. Patu, 147 Wash.2d 717, 720, 58 P.3d 273 (2002)
.
¶6 Hood responds that the State's claim of invited error is not supported by the record and that if anything his counsel did is interpreted as invited error, then he received ineffective assistance of counsel.
¶7 When the court inquired at the beginning of the trial, the prosecution had submitted instructions but the defense had not.
¶8 A week later, as the defense was about to rest, the court tentatively promised to provide counsel with a set of proposed instructions by the next morning. The court stated that defense counsel had “stipulated” to the instructions proposed by the State.
(Emphasis added.)
¶9 The defense rested mid-morning of the next day. The court stated that the defense had “joined” in the State's instructions.
(Emphasis added.)
¶10 After the recess, the court and counsel discussed the instructions. Both counsel raised issues with some of the instructions the court was proposing to give. The court made certain modifications. The jury was then called in, and the court read the instructions.
¶11 The State bases its claim of invited error on the trial court's statements, quoted above, that Hood “stipulated to” and “joined in” the jury instructions submitted by the State. The premise of the State's argument is that a criminal defendant has an obligation under CrR 6.15(a)1
to propose jury instructions. The State contends that defense counsel efficiently discharged that obligation by choosing to join in the State's proposed instructions rather than generating a set of proposed instructions for the defense, and as a result, Hood should not now be heard to argue that one of the State's proposed instructions is erroneous.
¶12 The State's premise is incorrect. CrR 6.15(a)
does not impose an obligation to propose jury instructions. If a party wishes to propose instructions, CrR 6.15(a) sets forth the timing and procedure to be followed. See State v. Sublett, 176 Wash.2d 58, 75–76, 292 P.3d 715 (2012). Since it is the State that wishes to secure the conviction, the State ordinarily assumes the burden of proposing an appropriate and comprehensive set of instructions. Just as a defendant has no duty to bring himself to trial, Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), a defendant has no duty to propose the instructions that will enable the State to convict him.
¶13 It is typical for discussions about jury instructions to occur more than once during the course of a trial. The initial discussions are often somewhat informal and do not need to be held in open court. Sublett, 176 Wash.2d at 75, 292 P.3d 715
. Often, the trial judge will review various drafts, solicit comments, and strive to isolate, understand, and reduce the areas of disagreement between the parties before producing the final set of instructions that the court proposes to give. Before the final instructions are given to the jury, counsel must be given a formal opportunity to object in the absence of the jury. CrR 6.15(c). Any objections to the instructions, as well as the grounds for the objections, must be put on the record to preserve review. Sublett, 176 Wash.2d at 75–76, 292 P.3d 715. All of that occurred in this case. Hood did not propose instructions, but he did raise specific objections to the court's set of proposed instructions, and his objections led to changes being made.
¶14 It is not clear why the trial court made a point of saying that Hood had “joined in” or “stipulated to” the State's proposed instructions. There is no record of Hood formally stipulating to the correctness of the instructions proposed by the State. The court's remarks may have simply been intended to memorialize the fact that Hood had not proposed a competing set of instructions. In any event, the court's remarks do not provide a basis for holding that Hood specifically invited the court to give the reasonable doubt instruction to which he now assigns error.
¶15 In determining whether the invited error doctrine applies, our courts consider “whether the defendant affirmatively assented to the error, materially contributed to it, or benefited from it.” In re Pers. Restraint of Co gg in, 182 Wash.2d 115, 119, 340 P.3d 810 (2014)
. “The doctrine appears to require affirmative actions by the defendant.” In re Pers. Restraint of Thompson, 141 Wash.2d 712, 724, 10 P.3d 380 (2000). It has been applied when a defendant took knowing and voluntary actions to set up the error. Thompson, 141 Wash.2d at 723–24, 10 P.3d 380. For example, in the consolidated appeals examined in Studd, the defendants were claiming self-defense. Those defendants who proposed a particular self-defense instruction that was accepted by the court and given to the jury were held to have invited the error they claimed on appeal. Studd, 137 Wash.2d at 547, 973 P.2d 1049. Nothing of the sort occurred in this case. Hood did not affirmatively request any particular instruction. We conclude appellate review of the reasonable doubt instruction is not barred by the doctrine of invited error.
¶16 This is not to say that defense counsel can safely ignore the process of developing the instructions in a criminal case. An attorney has an obligation to object to instructions which appear to be incorrect or misleading and must also propose instructions necessary to support argument of the client's theory of the case. Failure to preserve error by objecting in the trial court generally operates as a waiver, RAP 2.5(a)
, and this case is no exception. Hood contends that despite his failure to object, he may raise the alleged error under RAP 2.5(a...
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