State v. McLoyd

• Decision Date: 21 July 1997
• Docket Number: No. 37409-5-I,37409-5-I
• Citation: 939 P.2d 1255,87 Wn.App. 66
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Raymond D. McLOYD, Appellant. Division 1

Page 66

87 Wn.App. 66

939 P.2d 1255

The STATE of Washington, Respondent, v. Raymond D. McLOYD, Appellant.

No. 37409-5-I.

Court of Appeals of Washington,

Division 1.

July 21, 1997.

Kimberly N. Gordon, Richard Tassano, Washington Appellate Project, Seattle, for Appellant

Gregory Jackson, King County Prosecutor's Office, Seattle, for Respondent.

COLEMAN, Judge.

Raymond McLoyd appeals his conviction for second degree murder, arguing that the self-defense instruction erroneously required the jury to consider whether he was in danger of actual imminent harm rather than whether he reasonably believed that harm was imminent. The Supreme Court recently held that because a similar self-defense instruction was ambiguous,

the jury instructions failed to properly state the applicable law. State v. LeFaber, 128 Wash.2d 896, 913 P.2d 369 (1996); see State v. Hutchinson, 85 Wash.App. 726, 938 P.2d 336 (1997). Here, however, another instruction explicitly provided that actual imminent harm was not necessary. We therefore hold that the instructions read in their entirety properly state the law. We affirm.

FACTS

McLoyd was charged by amended information with murdering Charles Blutchford in the first and second degree. The second degree murder charge was based on an underlying felony of second degree assault.

McLoyd testified that he has a $1,500 stereo system in his car. As he waited at the intersection of Pacific Highway South and 204th Street, he heard "three guys talking about car jacking [him] for [his] system." The teenagers were about ten feet away from his car and kept talking about stealing his stereo, instructing McLoyd to come out of his car. McLoyd leaned out of his car, and the boys ran. Two boys picked up wooden boards and gestured for McLoyd to come out of his car. The third teenager, Blutchford, "looked like he was coming toward [McLoyd's] car with his hand down his pants." McLoyd thought Blutchford was reaching for a gun so McLoyd fired one shot, attempting to shoot him in the arm. Blutchford, who had no weapon, died.

Defense counsel requested WPIC 16.02, a self defense instruction for homicide cases. The instruction provided in relevant part:

Homicide is justifiable when committed in the lawful defense of the slayer when:

(1) the slayer reasonably believed that the person slain intended to inflict death or great personal injury;

(2) there was imminent danger of such harm being accomplished; and 3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.

(Italics ours.) McLoyd proposed another instruction, based on WPIC 16.07, that the court also provided:

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 a homicide to be justifiable.

(Italics ours.)

McLoyd was found guilty of second degree murder and sentenced within the standard range.

ANALYSIS

The critical issue on appeal is whether the trial court erred in giving the justifiable homicide jury instruction because it misstated the law on self-defense. McLoyd argues that the trial court erred because the standard is whether the defendant reasonably believed that there was imminent harm, not whether there was in fact imminent harm. The State argues that under the invited error doctrine, McLoyd cannot challenge an instruction on appeal that he proposed at trial. Alternatively, the State argues that the instructions read as a whole properly instructed the jury on the law of self-defense.

We initially consider whether the invited error doctrine precludes review. That doctrine prohibits a party from creating an error at trial and then complaining of it on appeal. The doctrine applies even when the error is of constitutional magnitude. See In re Griffith, 102 Wash.2d 100, 102, 683 P.2d 194 (1984).

McLoyd claims that under LeFaber, manifest constitutional errors can, as a matter of right, be raised for the first time on appeal even if they are invited. This assertion is false. See Griffith, 102 Wash.2d at 101, 683 P.2d 194. In LeFaber, the record was unclear whether defense counsel merely failed to object to the instruction or whether he proposed a similar instruction. LeFaber, 128 Wash.2d at 904 n. 1, 913 P.2d 369 (J. Alexander, dissenting). The distinction is critical because failing to except to an instruction does not constitute invited error. Therefore, review was predicated on this ambiguity, not on a newly created exception to the invited error doctrine.

Here, defense counsel invited the error, specifically proposing an instruction based on WPIC 16.02 over the State's objection. Defense counsel also, however, proposed a clarifying instruction. Under these circumstances, the invited error doctrine does not preclude review. See State v. Fields, 87 Wash.App. 57, 940 P.2d 665 (1997).

The Supreme Court recently addressed the constitutionality of a similar jury instruction in LeFaber, 128 Wash.2d at 902-03, 913 P.2d 369. In a 5-4 majority, the court noted that the standard for self-defense was well settled: a jury may find self-defense based on the defendant's subjective, reasonable belief of imminent harm; actual imminent harm is not necessary. LeFaber, 128 Wash.2d at 899, 913 P.2d 369. The instruction at issue in LeFaber provided:

Homicide is justifiable when committed in the lawful defense of the defendant or any person in the defendant's presence or company when the defendant reasonably believes that the person slain intends to inflict death or great personal injury and there is imminent danger of such harm being accomplished.

LeFaber, 128 Wash.2d at 898-99, 913 P.2d 369. The LeFaber court reasoned that a juror could read the instruction to arrive at the proper law, finding that the "reasonably believes" language modified the "imminent danger" clause since the clauses are joined by the word "and." On the other hand the court noted that a proper grammatical reading could also lead a juror to believe that the "imminent danger" clause is severed from the "reasonably believes" language. LeFaber, 128 Wash.2d at 902-03, 913 P.2d 369. Since the instruction as a whole offered no further guidance, the court reversed LeFaber's conviction. LeFaber, 128 Wash.2d at 903, 913 P.2d 369.

The State argues that unlike LeFaber, here, the jury instructions read as a whole accurately informed the jury on the law of self-defense. Instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury on the applicable law. Flint v. Hart, 82 Wash.App. 209, 223, 917 P.2d 590 (1996). If the jury instructions read as a whole are still ambiguous, the reviewing court cannot conclude that the jury followed the constitutional rather than the...