State v. Labanowski, s. 57582-7
| Decision Date | 19 September 1991 |
| Docket Number | 57606-8,Nos. 57582-7,s. 57582-7 |
| Citation | 816 P.2d 26,117 Wn.2d 405 |
| Court | Washington Supreme Court |
| Parties | , 26 A.L.R.5th 874 STATE of Washington, Respondent, v. Stephen G. LABANOWSKI, Petitioner. STATE of Washington, Respondent, v. Ronald Shellie MILLER, Petitioner. |
Seth R. Dawson, Snohomish County Prosecutor, Seth Aaron Fine, Deputy, Joan Cavagnaro, Deputy, Everett Mark W. Muenster, Vancouver, amicus curiae, for petitioners on behalf of Washington Ass'n of Criminal Defense Lawyers.
William H. Hawkins, Island County Prosecutor, Coupeville, for respondent.
The appeals in these two criminal cases have been consolidated. Both involve the type of concluding instructions which should be given to a jury in order to structure its deliberations in cases where lesser included offense or lesser degree instructions are given.
Defendant Stephen Labanowski was charged with second degree assault following events which occurred on May 31, 1988. The trial judge instructed the jury on both the charged crime of second degree assault and simple assault as a lesser included offense.
As more fully set forth below, the trial court instructed the jury in a manner which arguably inferred that it must unanimously agree to acquit on the charged crime before it could render a verdict on the lesser offense. The defendant maintains that the instructions should have informed the jury it was allowed to reach a verdict on the lesser offense if it was unable to reach agreement on a verdict for the greater crime.
The trial court gave an instruction which stated:
When a crime has been proven against a person and there exists a reasonable doubt as to which of two or more crimes that person is guilty, he or she shall be convicted only of the lowest crime.
Instruction 10 (part). This portion of instruction 10 is an almost verbatim restatement of a statute, RCW 9A.04.100(2).
The trial court also gave a standard concluding instruction based upon former WPIC 155.00, 11 Wash.Prac., Washington Pattern Jury Instructions 565-66 (1977). This instruction (instruction 16) is the basis of the defendant Labanowski's appeal and states in pertinent part:
You will be furnished with all of the exhibits admitted in evidence, these instructions and verdict forms A and B.
You must fill in the blank provided in verdict form A the words "not guilty" or the word "guilty," according to the decision you reach.
If you find the defendant guilty on verdict form A, do not use verdict form B. If you find the defendant not guilty on verdict form A, fill in the blank provided in verdict form B the words "not guilty" or the word "guilty," according to the decision you reach.
If you find the defendant guilty of the crime of assault but have a reasonable doubt as to which of two or more degrees of that crime the defendant is guilty, it is your duty to find the defendant not guilty on verdict form A, and to find the defendant guilty of the lower degree on verdict form B.
Since this is a criminal case, all twelve of you must agree for you to return a verdict. When all of you have so agreed, fill in the proper form of verdict or verdicts to express your decision.
Instruction 16 (part).
Defense counsel excepted to instruction 16 and instead proposed an instruction which stated in relevant part:
You will be furnished with all of the exhibits admitted into evidence, these instructions and two verdict forms, A and B.
When completing the verdict forms, you will first consider the crime of assault in the second degree as charged. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form A the words "not guilty" or the word "guilty," according to the decision you reach.
If you find the defendant guilty on verdict form A, do not use verdict form B. If you find the defendant not guilty of the crime of assault in the second degree, or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the lesser crime of simple assault. If you unanimously agree on a verdict, you must fill in the Since this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the proper form of verdict or verdicts to express your decision.
blank provided in verdict form B the words "not guilty" or the word "guilty," according to the decision you reach.
(Italics ours.) This proposed instruction was based upon revised WPIC 155.01, 11 Wash.Prac., Washington Pattern Jury Instructions 330-31 (Supp.1986). Defense counsel argued to the trial court that the trial court's instruction 16 was a "pre-State v. Watkins" retiring instruction. 1 The State argued that revised WPIC 155.01 misinterpreted State v. Watkins, 99 Wash.2d 166, 660 P.2d 1117 (1983) and that the unrevised form of the WPIC correctly stated the law in Washington.
The trial court rejected the defendant's proposed instruction based upon revised WPIC 155.01 and instead gave the former version of the WPIC. It noted, however, that the verdict forms given allowed the defense to argue its view that the jury may consider the lesser offense before it makes a decision in regard to the greater.
The trial court supplied the jury with verdict forms A and B, which read in part:
Verdict Form A
We, the jury, find the defendant Stephen G. Labanowski ____
(write in not guilty or guilty)
of the crime of Assault in the Second Degree as charged.
We, the jury, having found the defendant Stephen G. Labanowski not guilty of the crime of Assault in the Second Degree as charged, or being unable to unanimously agree as to that charge, find the defendant
________________________________
(write in not guilty or guilty)
of the lesser included crime of Simple Assault.
(Italics ours.)
The defendant Labanowski was convicted of assault in the second degree as charged. In his appeal to the Court of Appeals, he argued that the trial court erred in giving instruction 16 because that instruction inferred to the jury that it must unanimously agree on a verdict of not guilty to the greater charge (second degree assault) before it could consider the lesser offense (simple assault). The Court of Appeals held that the instruction did not foreclose "consideration" of the lesser charge prior to rendering a verdict on the greater one and declined to answer the question whether a jury may render a verdict on a lesser charge prior to reaching a unanimous not guilty verdict on the greater charge. State v. Labanowski, 58 Wash.App. 860, 867, 795 P.2d 176, review granted, 115 Wash.2d 1027, 803 P.2d 798 (1990). The Court of Appeals further observed that the structuring of jury deliberations is a complicated issue which has engendered a variety of approaches in other jurisdictions.
On June 2, 1985, the defendant Ronald S. Miller shot and killed his estranged wife's boyfriend. He was charged with, and pleaded guilty to, the crime of premeditated murder in the first degree. In a 1988 decision, this court allowed him to withdraw his guilty plea because he had been misinformed as to the potential sentence. 2
At Mr. Miller's subsequent trial, the trial judge instructed the jury on murder in the first degree, as charged, and on the lesser crimes of murder in the second degree and manslaughter. Although the defendant Miller admitted killing the victim, he contended he did not intend or premeditate the death. In the concluding instruction (instruction 17) in that case, the trial judge instructed the jury based upon WPIC 155.00 in its unrevised form, 11 Wash.Prac., Washington Pattern Jury Instructions 565-66 (1977).
The portion of instruction 17 which is the basis for the Miller appeal states:
You will be furnished with all of the exhibits admitted in evidence, these instructions and verdict forms A, B, and C.
You must fill in the blank provided in each verdict form the words "not guilty" or the word "guilty", according to the decision you reach.
If you find the defendant guilty on verdict form A, do not use verdict forms B or C. If you find the defendant not guilty on verdict form A, fill in the blank provided in verdict form B the words "not guilty" or the word "guilty" according to the decision you reach.
If you find the defendant guilty on verdict form B, do not use verdict form C. If you find the defendant not guilty on verdict form B, fill in the blank provided in verdict form C the words "not guilty" or the word "guilty" according to the decision you reach.
If you believe the defendant is guilty beyond a reasonable doubt of the crime of either murder in the first degree, murder in the second degree, or manslaughter in the first degree but have a reasonable doubt as to which of the crimes the defendant is guilty, it is your duty to find the defendant not guilty on verdict form A and to find the defendant guilty of a lower degree on verdict form B or C; and if you believe the defendant guilty beyond a reasonable doubt of the crime of either murder in the second degree or manslaughter in the first degree but have a reasonable doubt as to which of those crimes the defendant is guilty, it is your duty to find the defendant not guilty on verdict form B and to find the defendant guilty of a lower degree on verdict form C.
Since this is a criminal case, all twelve of you must agree for you to return a verdict. When all of you have so agreed, fill in the proper form of a verdict or verdicts to express your decision.
Instruction 17 (part).
Defense counsel excepted to this instruction on the basis that under it the jury could not return a verdict on one of the lesser offenses until it either unanimously found the defendant not guilty of murder in the first degree or until the trial judge declared the...
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