State v. McCullum

• Decision Date: 06 January 1983
• Docket Number: No. 47766-3,47766-3
• Parties: STATE of Washington, Respondent, v. Alva W. McCULLUM, Petitioner.
• Court: Washington Supreme Court

Page 484

98 Wn.2d 484

656 P.2d 1064

STATE of Washington, Respondent, v. Alva W. McCULLUM, Petitioner.

No. 47766-3.

Supreme Court of Washington En Banc.

Jan. 6, 1983.

Barry Flegenheimer, Seattle-King County Public Defender Assn., Seattle, John Ziegler, Walla Walla, for petitioner.

Norman K. Maleng, King County Prosecutor, Lee D. Yates, Deputy Pros. Atty., Seattle, for respondent.

WILLIAM H. WILLIAMS, Justice.

Petitioner Alva W. McCullum stabbed William Slater to death on March 23, 1978, in the presence of several witnesses in a Seattle cocktail lounge. Petitioner claimed he acted in self-defense. A jury convicted him of first degree murder, and he was sentenced to life imprisonment. The Court of Appeals, Division One, upheld McCullum's conviction and sentence. State v. McCullum, 28 Wash.App. 145, 622 P.2d 873 (1981). We find the trial court committed prejudicial error in its instructions to the jury and therefore reverse and remand for a new trial.

Petitioner and William Slater first became acquainted in 1974. Sometime in 1976, a conflict developed between the two men as a result of rumors allegedly started by Slater. Petitioner testified that he began to fear Slater because he knew Slater carried a gun and had been told Slater might shoot him. Petitioner saw Slater on one occasion in 1976 when Slater was armed with a pistol.

On the day of the killing in 1978, petitioner went to the Cottage Inn Restaurant in Seattle and sat with a group of people which included Slater. He testified that Slater began making insulting remarks about him. Petitioner left the table for a short period, but later rejoined Slater and the others. Slater allegedly made another insulting remark about petitioner and made a movement toward his jacket, where petitioner believed Slater kept a gun. Petitioner reacted by pulling out two knives he had in his possession.

He then stabbed Slater in the head, shoulder, and chest areas.

Petitioner was charged with murder in the first degree, in violation of RCW 9A.32.030(1)(a). ¹ His defenses at trial were temporary mental irresponsibility and self-defense. After prolonged deliberations, the jury found petitioner guilty. The trial judge sentenced him to a maximum term of life imprisonment.

Petitioner challenges his conviction and sentence on three grounds. He contends the trial judge impermissibly coerced the jury into reaching a verdict and, in addition, erroneously refused to consider probation when sentencing him. The Court of Appeals resolved these issues adversely to petitioner. The third ground for reversal was first presented in the petition for review to this court. Petitioner asserts the trial court's jury instruction on self-defense violated due process by improperly shifting the burden of proof to him to disprove an element of the crime. ² Since we find the jury instruction on self-defense violative of due process and reverse on that ground, we need not decide the propriety of the Court of Appeals' resolution of the first two issues.

Although petitioner first raised the self-defense issue in his petition for review to this court, it is an established principle of law that constitutional claims may be heard for the first time on appeal. State v. Regan, 97 I

                Wash.2d 47, 50, 640 P.2d 725 (1982);   State v. Theroff, 95 Wash.2d 385, 391, 622 P.2d 1240 (1980);   In re Lee, 95 Wash.2d 357, 363-64, 623 P.2d 687 (1980);   State v. Green, 94 Wash.2d 216, 231, 616 P.2d 628 (1980).   The clear import of recent United States Supreme Court cases is that instructional errors which tend to shift the burden of proof to a criminal defendant are of a constitutional magnitude because they may implicate a defendant's rights of due process.   See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979);   Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977);   Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975);   In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).   Petitioner's argument that the jury instructions given in this case relieved the State of its burden of disproving self-defense in a murder prosecution raises a constitutional claim which we must address
                

AVAILABILITY OF SELF-DEFENSE INSTRUCTION

In order to properly raise the issue of self-defense, there need only be some evidence admitted in the case from whatever source which tends to prove a killing was done in self-defense. State v. Adams, 31 Wash.App. 393, 395, 641 P.2d 1207 (1982); State v. Stallworth, 19 Wash.App. 728, 733, 577 P.2d 617 (1978). Although it is essential that some evidence be admitted in the case as to self-defense, there is no need that there be the amount of evidence necessary to create a reasonable doubt in the minds of the jurors on that issue. See State v. Roberts, 88 Wash.2d 337, 345-46, 562 P.2d 1259 (1977); State v. Adams, supra. The trial court is justified in denying a request for a self-defense instruction only where no credible evidence appears in the record to support a defendant's claim of self-defense. State v. Roberts, supra 88 Wash.2d at 346, 562 P.2d 1259.

In determining whether sufficient evidence has been produced to justify a jury instruction on self-defense, the trial court must apply a subjective standard and view the evidence The appellants need not have been in actual danger of great bodily harm, but they were entitled to act on appearances; and if they believed in good faith and on reasonable grounds that they were in actual danger of great bodily harm, although it afterwards might develop that they were mistaken as to the extent of the danger, if they acted as reasonably and ordinarily cautious and prudent men would have done under the circumstances as they appeared to them, they were justified in defending themselves.

                from the defendant's point of view as conditions appeared to him or her at the time of the act.   State v. Wanrow, 88 Wash.2d 221, 234-36, 559 P.2d 548 (1977).   As we stated in  State v. Miller, 141 Wash. 104, 105-06, 250 P. 645 (1926)
                

(Citations omitted.)

In the case at bar, petitioner testified that he feared Slater, knew Slater had previously carried a gun, and believed Slater still carried a gun at the time of the alleged incident. Further, he testified that he had been told Slater might shoot him. When Slater made insulting remarks about him at the restaurant and allegedly made a movement toward his jacket where petitioner believed Slater kept a gun, petitioner testified he believed Slater would shoot him. Considering these circumstances, there was enough evidence produced at trial to properly raise the issue of self-defense, thus entitling petitioner to a jury instruction on that issue.

II

BURDEN OF PROOF

The due process clause of the fourteenth amendment to the United States Constitution requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Sandstrom v. Montana, supra 442 U.S. at 520, 99 S.Ct. at 2457; Patterson v. New York, supra 432 U.S. at 206-07, 97 S.Ct. at 2324-25; In re Winship, supra, 397 U.S. at 364, 90 S.Ct. at 1072. In order to determine which facts the prosecution must prove beyond a reasonable doubt, it is necessary to analyze each element of the particular crime. State v. Hanton, 94 Wash.2d 129, 132, 614 P.2d 1280, cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980). Holloway v. McElroy, 632 F.2d 605, 635 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).

The State bears the burden of proving beyond a reasonable doubt the absence of a defense if the absence of such defense is an ingredient of the offense and there is some evidence of the defense. Patterson, 432 U.S. at 214-15, 97 S.Ct. at 2329-30. There are two ways to determine if the absence of a defense is an ingredient of the offense: (1) the statute may reflect a legislative intent to treat absence of a defense as one "of the elements included in the definition of the offense of which the defendant is charged", Patterson, 432 U.S. at 210, 97 S.Ct. at 2327; or (2) one or more elements of the defense may "negate" one or more elements of the offense which the prosecution must prove beyond a reasonable doubt, Hanton, 94 Wash.2d at 132-33, 614 P.2d 1280. See generally Note, The Constitutionality of Affirmative Defenses After Patterson v. New York, 78 Colum.L.Rev. 655, 666-70 (1978); Note, Criminal Law--Affirmative Defenses in the Washington Criminal Code--The Impact of Mullaney v. Wilbur, 421 U.S. 684 [95 S.Ct. 1881, 44 L.Ed.2d 508] (1975), 51 Wash.L.Rev. 953 (1976). ³

A. Statutory Allocation of Burden of Proof as to Self-Defense

In State v. Roberts, supra 88 Wash.2d at 344-46, 562 P.2d 1259, we determined that the State had the burden of proving, beyond a reasonable doubt, the absence of self-defense in a murder prosecution. That case arose under the "old" criminal code, which provided that a killing was murder or manslaughter unless it was "excusable or justifiable". Laws of 1909, ch. 249, §§ 140, 141, 143, pp. 930-31. One of the enumerated justifications for homicide was self-defense. Laws of 1909, ch. 249, § 154, p. 934. In 1975, the Legislature repealed the old criminal code and adopted a new criminal code which omitted the "excusable or justifiable" language from the definition of homicide. RCW 9A.32.030; RCW 9A.32.050; RCW 9A.32.060; RCW 9A.32.070. The Legislature also placed the homicide justification of self-defense under the provisions of RCW 9A.16, entitled "Defenses". See RCW 9A.16.020(3) and RCW 9A.16.050(1) and (2).

Thereafter, in State v. King, 92 Wash.2d 541, 599 P.2d 522 (1979), we were again presented with the issue of which party had the burden of proof as to self-defense in a murder prosecution. In that case, we found the trial court's jury instruction on self-defense sufficiently permitted the defendant to argue his theory of the case, i.e., that the State had not sustained the burden...