State v. Kyllo, No. 81164-4.

CourtUnited States State Supreme Court of Washington
Writing for the CourtMadsen
Citation215 P.3d 177,166 Wn.2d 856
PartiesSTATE of Washington, Respondent, v. Kenneth Lee KYLLO, Petitioner.
Decision Date03 September 2009
Docket NumberNo. 81164-4.
215 P.3d 177
166 Wn.2d 856
STATE of Washington, Respondent,
v.
Kenneth Lee KYLLO, Petitioner.
No. 81164-4.
Supreme Court of Washington, En Banc.
Argued May 26, 2009.
Decided September 3, 2009.

[215 P.3d 179]

Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Seattle, for Petitioner.

Susan I. Baur, Michelle L. Shaffer, Cowlitz County Prosecutor's Office, Kelso, for Respondent.

MADSEN, J.


¶ 1 The defendant maintains that trial counsel was ineffective because counsel misstated the law on self-defense in an instruction counsel proposed that was given to the jury and in statements made during closing argument about Kenneth Kyllo's self-defense claim. We agree and accordingly reverse Mr. Kyllo's conviction for second degree assault. We remand for retrial.

FACTS

¶ 2 On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, defendant Kenneth Kyllo was involved in a fight with another inmate, Robert Mickens. Witnesses presented conflicting testimony about how the fight began and who started it, but in short a fist fight occurred that ended when Kyllo "grabbed onto" Mickens and bit his ear off. II Verbatim Report of Proceedings (VRP) (Oct. 26-27, 2004) at 202-12.

¶ 3 On June 16, 2004, the State charged Kyllo with assault in the second degree, alleging that Kyllo had intentionally assaulted Mickens and had recklessly inflicted substantial bodily harm on Mickens. Kyllo claimed he acted in self-defense. The jury was instructed that a person is entitled to act in self-defense when he reasonably believes he is about to be injured and when the force used is not more than is necessary. Clerk's Papers (CP) at 97 (Jury Instruction 11). In addition, Kyllo's counsel proposed the following "act on appearances" self-defense instruction; this instruction was given to the jury as jury instruction 13:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

CP at 79 (proposed instruction); CP at 99 (Jury Instruction 13). Counsel did not propose an instruction defining "great bodily harm" and none was given. However, in light of the fact that Kyllo was charged with second degree assault that would require the State to prove he inflicted "substantial bodily harm," see RCW 9A.36.021, an instruction was given defining "substantial bodily harm" as "bodily injury that involves a temporary but substantial disfigurement," or "temporary but substantial loss or impairment" of a bodily organ, or a "fracture" of a body part. CP at 105 (Jury Instruction 19). The trial court also gave an aggressor instruction. CP at 100 (Jury Instruction 14).

¶ 4 Counsel for both parties presented closing argument consistent with jury instruction 13, the "act on appearances" instruction. During the State's closing argument, the prosecuting attorney argued that Kyllo did not act in self-defense, saying, "The defendant had absolutely no reason to believe that he was going to be killed or severely, brutally attacked in this attack." III VRP (Oct. 25-27, 2004) at 373. During his closing argument, Kyllo's counsel argued, with regard to the amount of force Kyllo allegedly used in defending himself:

That was exactly the amount of force that he needed to use at that minute to save his

215 P.3d 180

life, to save himself either from death or grievous bodily harm.... He knew that Mickens was a violent man with a violent history, and he did what he needed to do to save himself from serious injury or death.

Id. at 385. Counsel also argued to the jury that if Kyllo "acted based on appearances and did only that which he thought was necessary to protect himself from serious injury or death, you will return a verdict of not guilty based upon self-defense." Id. at 386.

¶ 5 The jury rejected the self-defense claim and found Kyllo guilty of second degree assault as charged. At sentencing, the State sought to have Kyllo sentenced as a persistent offender. The court concluded that the State had proved Kyllo was a persistent offender and imposed a sentence of life in prison without the possibility of early release.

¶ 6 Kyllo appealed. The Court of Appeals affirmed the conviction but reversed his sentence and remanded for resentencing. State v. Kyllo, noted at 141 Wash.App. 1037, 2007 WL 4111908. We granted discretionary review but limited the issues on review. State v. Kyllo, 164 Wash.2d 1024, 196 P.3d 137 (2008).

ANALYSIS

¶ 7 Kyllo argues that jury instruction 13, the "act on appearances" instruction, improperly lowered the State's burden of proof, thereby violating his right to due process. He maintains that counsel's representation was ineffective because his counsel proposed an instruction identical to instruction 13 and argued to the jury that Kyllo was entitled to the defense of self-defense only if he reasonably believed he was in danger of death or grievous bodily harm.

¶ 8 The first question is whether appellate review is precluded either under the invited error doctrine or because Kyllo did not object to instruction 13. The Court of Appeals held that Kyllo invited any error in giving instruction 13 because the defense proposed an identical instruction. Kyllo, 141 Wash.App. 1037, 2007 WL 4111908, at *4. We disagree. If instructional error is the result of ineffective assistance of counsel, the invited error doctrine does not preclude review. State v. Aho, 137 Wash.2d 736, 745, 975 P.2d 512 (1999); State v. Rodriguez, 121 Wash. App. 180, 183-84, 87 P.3d 1201 (2004).

¶ 9 The Court of Appeals also said that appellate review is precluded because Kyllo did not object to jury instruction 13. Again, we disagree. A claim of ineffective assistance of counsel is an issue of constitutional magnitude that may be considered for the first time on appeal. State v. Nichols, 161 Wash.2d 1, 9, 162 P.3d 1122 (2007). Additionally, because the State must disprove self-defense when properly raised, as part of its burden to prove beyond a reasonable doubt that the defendant committed the offense charged, a jury instruction on self-defense that misstates the law is an error of constitutional magnitude, State v. Acosta, 101 Wash.2d 612, 615-16, 683 P.2d 1069 (1984), State v. Walden, 131 Wash.2d 469, 473, 932 P.2d 1237 (1997), and State v. LeFaber 128 Wash.2d 896, 900, 913 P.2d 369 (1996), and this error can be raised for the first time on appeal, State v. L.B., 132 Wash.App. 948, 952, 135 P.3d 508 (2006). Accordingly, we turn to the merits of this claim.

¶ 10 To establish ineffective assistance of counsel the defendant must establish that his attorney's performance was deficient and the deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996). Deficient performance is performance falling "below an objective standard of reasonableness based on consideration of all the circumstances." State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). Reasonable conduct for an attorney includes carrying out the duty to research the relevant law. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. The prejudice prong requires the defendant to prove that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. State v. Leavitt, 111 Wash.2d 66, 72, 758 P.2d 982 (1988). If either element of the test is not satisfied, the inquiry ends. Hendrickson, 129 Wash.2d at 78, 917 P.2d 563.

215 P.3d 181

¶ 11 There is a strong presumption that counsel's performance was reasonable. State v. Studd, 137 Wash.2d 533, 551, 973 P.2d 1049 (1999); State v. Thomas, 109 Wash.2d 222, 226, 743 P.2d 816 (1987). When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient. Hendrickson, 129 Wash.2d at 77-78, 917 P.2d 563; McFarland, 127 Wash.2d at 336, 899 P.2d 1251.

¶ 12 The first question in deciding whether Kyllo was denied effective representation is whether jury instruction 13 misstated the law as Kyllo contends. Kyllo's claim of self-defense involves his use of nondeadly force against Mickens. RCW 9A.16.020(3) provides that a defendant's use of nondeadly force against another is justifiable when the defendant reasonably believes he is about to be injured and uses no more force than is necessary.

¶ 13 A jury instruction on self-defense that misstates the harm that the person must apprehend is erroneous. See Walden, 131 Wash.2d at 477-78, 932 P.2d 1237. Because nondeadly force is at issue in this case, the jury should have been informed, as RCW 9A.16.020(3) provides, that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured. One is not required to believe he is about to be grievously harmed or killed. Instruction 13 told the jury, however, that Kyllo was entitled to act in self-defense only if he believed in good faith and on reasonable grounds that he was "in actual danger of great bodily harm." CP at 99. The instruction incorrectly stated that Kyllo had to apprehend a greater degree of harm than is legally required before nondeadly force may be used in self-defense.

¶ 14 The State agrees that self-defense, in the context here, requires only a subjective, reasonable belief of imminent harm from the victim. See LeFaber, 128 Wash.2d at 899, 913 P.2d 369. The State maintains, however, that because the jurors were not given a definition of "great bodily harm" the instructions did not exclude ordinary batteries or prohibit the jury from considering Kyllo's subjective impressions of all the facts and circumstances.

¶ 15 We disagree. In relevant part the ordinary definition of "great" is...

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995 practice notes
  • State v. Harmon, 37415-7-III
    • United States
    • Court of Appeals of Washington
    • February 8, 2022
    ...State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either element is not satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). In reviewing the record for deficiencies, there is a strong presumption that counsel's performance was reasonable. ......
  • State v. Swarers, No. 36066-1-III
    • United States
    • Court of Appeals of Washington
    • December 5, 2019
    ...of counsel raises an issue of constitutional magnitude that this court may consider for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To demonstrate ineffective assistance of counsel, a defendant must make two showings. First, the defendant must establis......
  • State v. Chouap, No. 41426–1–II.
    • United States
    • Court of Appeals of Washington
    • September 11, 2012
    ...at 688, 104 S.Ct. 2052. “There is a strong presumption that counsel's performance was reasonable.” State v. Kyllo, 166 Wash.2d 856, 862, 215 P.3d 177 (2009). “When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient.” Kyllo, 166 Wash.......
  • In re Caldellis, No. 89585-6
    • United States
    • United States State Supreme Court of Washington
    • December 15, 2016
    ...assistance must overcome "a strong presumption that counsel's performance was reasonable." State v. Kyllo , 166 Wash.2d 856, 862, 215 P.3d 177 (2009). Accordingly, the defendant bears the burden of establishing deficient performance. State v. McFarland , 127 Wash.2d 322, 335, 899 P.2d 1251 ......
  • Request a trial to view additional results
995 cases
  • State v. Harmon, 37415-7-III
    • United States
    • Court of Appeals of Washington
    • February 8, 2022
    ...State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either element is not satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). In reviewing the record for deficiencies, there is a strong presumption that counsel's performance was reasonable. ......
  • State v. Swarers, No. 36066-1-III
    • United States
    • Court of Appeals of Washington
    • December 5, 2019
    ...of counsel raises an issue of constitutional magnitude that this court may consider for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). To demonstrate ineffective assistance of counsel, a defendant must make two showings. First, the defendant must establis......
  • State v. Chouap, No. 41426–1–II.
    • United States
    • Court of Appeals of Washington
    • September 11, 2012
    ...at 688, 104 S.Ct. 2052. “There is a strong presumption that counsel's performance was reasonable.” State v. Kyllo, 166 Wash.2d 856, 862, 215 P.3d 177 (2009). “When counsel's conduct can be characterized as legitimate trial strategy or tactics, performance is not deficient.” Kyllo, 166 Wash.......
  • In re Caldellis, No. 89585-6
    • United States
    • United States State Supreme Court of Washington
    • December 15, 2016
    ...assistance must overcome "a strong presumption that counsel's performance was reasonable." State v. Kyllo , 166 Wash.2d 856, 862, 215 P.3d 177 (2009). Accordingly, the defendant bears the burden of establishing deficient performance. State v. McFarland , 127 Wash.2d 322, 335, 899 P.2d 1251 ......
  • Request a trial to view additional results

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