State v. McHenry

• Decision Date: 07 January 1977
• Docket Number: No. 43862,43862
• Citation: 88 Wn.2d 211,558 P.2d 188
• Parties: STATE of Washington, Petitioner, v. Betty Joyce McHENRY, Respondent.
• Court: Washington Supreme Court

Page 211

88 Wn.2d 211

558 P.2d 188

STATE of Washington, Petitioner, v. Betty Joyce McHENRY, Respondent.

No. 43862.

Supreme Court of Washington, En Banc.

Jan. 7, 1977.

Don Herron, Pros. Atty., Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Tacoma, for petitioner.

Michael D. Smith, Tacoma, for respondent.

UTTER, Associate Justice.

Betty Joyce McHenry, respondent herein, was found guilty by a jury of the crime of unlawful possession of a controlled substance as defined in RCW 69.50.401(c). The Court of Appeals reversed that conviction in State v. McHenry, 13 Wash.App. 421, 535 P.2d 843 (1975). We affirm the opinion of the Court of Appeals.

Respondent argued to the Court of Appeals that the trial court committed error which deprived her of fundamental constitutional guarantees by (1) failing to adequately inform the jury the burden of proof was upon the state to prove each element of the crime with which she was charged beyond a reasonable doubt, (2) failing to define what reasonable doubt was, and (3) failing to inform the jury she was presumed innocent until proven guilty.

The material facts as set forth in the Court of Appeals opinion, at page 422, 535 P.2d at page 844, are as follows:

Defendant presented no testimony at trial to dispute the facts adduced by the state's witnesses. It is uncontroverted that officers of the Tacoma Police Department conducted a lawful search of a Tacoma residence pursuant to a warrant. Defendant and several others were found in the house. A codefendant, one James Thompson, was handcuffed after attempting to draw a pistol on one of the officers. Betty McHenry then pushed her way to his side, took a white slip of paper from his hands, and attempted to swallow it. The paper was retrieved from her month and was found to contain heroin.

Respondent's trial counsel (not counsel on appeal) did not except to the court's complete failure to instruct on the presumption of innocence or to the court's failure to isolate and define the requirement of proof beyond a reasonable doubt.

The Court of Appeals squarely faced the quandary presented by this case, at page 426, 535 P.2d at page 846 It would be possible for us to conclude that the case against Betty McHenry is so unequivocal that a reversal will merely delay the inevitability of an errorless conviction. However, we believe that it would be a greater miscarriage of justice to us to fail to require jury instructions necessary to minimum standards of due process in All criminal trials. The constitutional right to a fair trial means no less.

It is regrettable that either in haste or carelessness, these basic instructions were omitted. The fault rests equally upon the prosecution, the defense counsel, and the trial court. It is equally regrettable that the state will be put to the expense of another trial. But to the extent that a reversal of this case will highlight the necessity for inclusion of fundamental doctrines in matters pertaining to criminal justice, it will have served a useful purpose.

Petitioner argues this court should refuse to consider assignments of error directed against the court's failure to give instructions defining the presumption of innocence, the burden of proof in criminal cases, and reasonable doubt, where no instructions were requested and no exception was taken to the failure to give them. Seattle v. Love, 61 Wash.2d 113, 377 P.2d 255 (1962). In Love, there was no discussion of the reason for the rule and the court only stated, at page 114, 377 P.2d at page 256, '(i)t is well settled that, in the absence of a request to instruct, the court's failure to do so is not error.' State v. Louie, 68 Wash.2d 304, 413 P.2d 7 (1966). This rule, however, has been subsequently eroded. State v. Peterson, 73 Wash.2d 303, 306, 438 P.2d 183 (1968); State v. McDonald, 74 Wash.2d 474, 445 P.2d 345 (1968). There we recognized an appellate court will consider an error raised for the first time when 'an instruction invades a constitutional right of the accused (such as the right to a jury trial) . . .' State v. Peterson, supra, 73 Wash.2d at 306, 438 P.2d at 185. We have also recently indicated we will consider error amounting to nondirection where the error was not called to the court's attention and it related to constitutional rights raised for the first time on appeal. The error we considered on appeal, to which no request for an instruction was directed to the trial court, concerned the failure to require a unanimous verdict. State v. Carothers, 84 Wash.2d 256, 262, 525 P.2d 731 (1971).

The failure of the court to state clearly to the jury the definition of reasonable doubt and the concomitant necessity for the state to prove each element of the crime by that standard is far more than a simple procedural error, it is a grievous constitutional failure.

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The court in Winship proceeded to explain the policy reasons for its insistence upon the constitutional statute of the reasonable doubt standard, at page 363, 90 S.Ct. at page 1072:

The standard provides concrete substance for the presumption of innocence--that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' . . . 'a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.'

As noted in Winship, the presumption of innocence is likewise fundamental to a fair trial (Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895)), and has been repeatedly stated to be fundamental by both the legislature and the judiciary. RCW 10.58.020; State v. Odom, 83 Wash.2d 541, 520 P.2d 152 (1974).

Although the juror's handbook alluded to the necessity of the prosecution proving its case beyond a reasonable doubt, this cannot seriously be argued to be a substitute for the court's instructions to the jury. In the juror's handbook they are told on pages 10--11, '(t)he meaning of 'reasonable doubt' will be defined in the instructions of the court.' This was not done.

The judgment is reversed and the case remanded for new trial.

STAFFORD, C.J., and BRACHTENBACH, HOROWITZ and DOLLIVER, JJ., concur.

ROSELLINI, Associate Justice (dissenting).

The majority in this case has ordered a new trial which it implicitly, if not explicitly, acknowledges will inevitably result in the second conviction of the petitioner, unless the jury totally disregards the evidence and renders an arbitrary and capricious verdict. It does so for the sole purpose of advising the lower courts that they have a duty to examine proposed instructions to see if they adequately protect all of the constitutional rights of the accused in a criminal case, and if they do not, to formulate their own instructions covering these rights.

There is nothing before the court to show that the superior court judges need this advice. There is nothing to indicate that the kind of oversight which in this case caused the omission of certain instructions, is a frequent occurrence. Judging by the number of cases which have come before this court, involving this type of omission, I would suggest that the situation rarely arises. I see no evidence before the court to justify it in assuming that trial court judges are unaware of their duty to see that the defendant receives a fair trial or that they do not generally conscientiously perform that duty. Here, it is agreed that the omission was inadvertent on everyone's part. I do not see that ordering a useless new trial will prevent an occasional incidence of inadvertent oversight.

While the giving of instructions on its own initiative is not required of the superior court by statute or court rule, I will agree that in a proper case, such action may be required as a part of the court's duty to see that the defendant is afforded a fair trial. This is not such a case.

In determining whether a defendant has been given a fair trial, it is necessary to examine the record in its entirety. This the majority has neglected to do for obvious reasons. Here, it is apparent upon the whole record that the jury was not misled, and that the prosecutor's burden of proof and the presumption of innocence, which is its corollary, were brought home to it repeatedly throughout the trial proceedings. Anyone familiar with trial practice must be aware that it is the custom of defense attorneys to 'grill' the prospective jurors upon their ability to presume the defendant innocent and to require the prosecuting attorney to prove his case beyond a reasonable doubt. The record shows that this practice was adhered to in this case and that the prospective jurors all dutifully proclaimed their ability to understand and apply these principles. When the evidence, which was direct, corroborated and undisputed, was in and counsel argued the case to the jury, these basic principles were again brought to its attention. Not only did defense counsel argue to the best of his ability (though undoubtedly with little hope of success, considering the nature of the evidence) that the prosecutor had failed to meet his burden and that the jury should find that the presumption of innocence had not been overcome, but the prosecutor himself acknowledged his burden of proof. He argued to the jury that this burden had been sustained.

There seems to be no question but that the omission of instructions with respect to the burden of proof and the presumption of innocence was...