State v. Meggyesy, s. 38133-4-

Citation958 P.2d 319,90 Wn.App. 693
Decision Date06 April 1998
Docket NumberNos. 38133-4-,40395-8-I,s. 38133-4-
CourtCourt of Appeals of Washington
PartiesSTATE of Washington, Respondent, v. Thomas William MEGGYESY, Appellant. STATE of Washington, Respondent, v. Arthur HEGGINS, Jr., Appellant.

Lenell Rae Nussbaum, Seattle, for Appellant Thomas William Meggyesy.

Eric J. Nielsen, Nielsen, Broman & Assoc. Pllc., Seattle, for Appellant Arthur Heggins, Jr.

Lee D. Yates, Senior Deputy Prosecuting Attorney, Seattle, James H. Krider, Seth A. Fine, Snohomish County Prosecutor's Office, Everett, Norm Maleng, King County Prosecutor's Office, Seattle, for Respondent.

COX, Judge.

Arthur Heggins and Thomas Meggyesy challenge the giving of standard WPIC "to convict" jury instructions used in their respective trials. Each contends the trial court erred by instructing the jury that if it found that the State had proved beyond a reasonable doubt all elements of the charged crime, then it had "a duty to return a verdict of guilty." We hold that neither the federal nor the state constitution precludes such an instruction. Accordingly, we affirm.

The State charged Heggins with first degree burglary. The charge arose from a July 1996 police response to a 911 call from Andrea Roland. She complained of an assault and break-in by Heggins.

At trial, Roland testified that she had been involved in a romantic relationship with Heggins. After she attempted to break off the relationship, Heggins came to her home, pushed his way in, shoved her to the floor, and left. Heggins denied the accusation and testified to a different version of events.

The court gave a standard "to convict" instruction, and the jury found him guilty as charged.

Tom Meggyesy was involved in a dispute with Jermaine Holliday, a next door neighbor. The dispute escalated to the point that Meggysey confronted Holliday with a gun and shot him. Holliday lost a kidney, but lived.

The State charged Meggyesy with first degree assault with a deadly weapon. At trial, Meggyesy testified that Holliday had threatened him shortly before the shooting. He also claimed that he had shown Holliday the gun, and Holliday then rushed at him.

The court gave a standard "to convict" instruction to the jury, and it found Meggyesy guilty as charged.

Jury Instruction

In both trials, the trial court gave a jury instruction based on the WPIC "to convict" instruction. Both instructions stated, in relevant part:

To convict the defendant of the crime of [charged crime], each of the following elements of the crime must be proved beyond a reasonable doubt: ...

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.[ 1

Meggyesy and Heggins both argue on appeal that these instructions violated their right to trial by jury because the instructions required the juries to convict if they found that the State proved all of the elements of the charged crimes. They assert that a proper instruction would have informed the jury that it may convict if the State proved the elements of the crime.

For purposes of our review, the only distinction between the two consolidated cases is that Meggyesy failed to object below to the instruction while Heggins did object. Predictably, the State argues that we should not review Meggyesy's claim of instructional error because it is not a "manifest error affecting a constitutional right." 2

We need not reach the "manifest error" issue. Because these cases are consolidated and there is no basis for distinguishing between them for purposes of our analysis, we exercise our discretion and consider Meggyesy's claim of error together with Heggins'. 3

Jury instructions are sufficient if they are not misleading, permit the parties to argue their cases, and properly inform the jury of the applicable law when read as a whole. 4 Appellants assert that both the federal and state constitutions prohibit the challenged jury instruction language. We disagree and hold that neither constitution prohibits the language the appellants challenge.

Appellants' reliance on the federal constitution to support their challenge is misplaced. They fail to cite a single federal case where a court has reversed a "to convict" instruction of the type before us on the basis of a claimed constitutional violation.

We conclude from our review of the relevant case authority that the Supreme Court has never considered this issue. The circuit courts that have considered this issue have distinguished between two categories of cases. The first category includes cases in which the trial judge refused to give an instruction informing the jury that it has the power to acquit against the evidence. 5 The courts have uniformly affirmed refusals to give such instructions. The second category includes cases where the language of a given instruction effectively directed a verdict of guilty. 6 In these cases, the courts have reversed because the challenged instructions invaded the province of the jury. 7

The instructions at issue here do not fall squarely within the second category. The appellants are in effect asking the court to require an instruction notifying the jury of its power to acquit against the evidence.

First, the instructions clearly directed the jury to consider the evidence and to determine whether the State had proven, beyond a reasonable doubt, each element of the charged crime. Thus, unlike the Garaway case, neither trial court here invaded the province of the jury. Likewise, neither court either directed a verdict or expressed an opinion as to the accused's guilt.

Second, as stated in Edwards, the law among the circuit courts is clear that an accused is not entitled to a jury nullification instruction. This is so notwithstanding the courts' recognition that juries have the power to ignore the law in reaching their verdicts. Appellants argue here that their request for an instruction that the jury "may" convict on the evidence (but need not do so) should be distinguished from a request for an instruction on jury nullification. We discern no difference in practical effect between the instruction appellants requested and one expressly permitting "jury nullification," as those words are generally understood. 8

The appellants further argue that several features of the criminal justice system show that the jury has no duty to convict when it determines, beyond a reasonable doubt, that the State has proven all elements of a criminal charge. While we recognize the existence of these features, they do not compel the conclusion that the challenged instructions misstated the law.

The appellants first point to the jury's power to acquit against the evidence. This is an inherent feature of the use of general verdicts. 9 But the power to acquit does not require any instruction telling the jury that it may do so. 10

Appellants also argue that the court has no power to direct a verdict. Of course, the instructions before us do not direct a verdict. 11 But even if they did, we see no connection between the court's lack of power to direct a verdict and informing the jury that it may acquit against the evidence.

Lastly, the appellants urge that the court has no power to coerce a jury. There is no issue of coercion in the cases before us. But even if there was, there is no connection between the lack of the power to coerce a jury and requiring an instruction that states the jury may acquit against the evidence.

In short, the federal constitutional right to trial by jury is not implicated by the instructions before us. The instructions did not misstate the law.

Appellants' arguments based on the state constitution fare no better. As to certain issues, our state constitution provides broader protection than does the federal constitution. 12 We address an argument based on the state constitution only where the claimant sufficiently briefs the Gunwall factors. 13 Appellants have done so here.

Under Gunwall, we are guided in deciding whether to conduct independent analysis under the state constitution based on six factors: 1) the language of the Washington Constitution, 2) differences between the state and federal language; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern.

The first Gunwall criterion, the language of the state constitution, is neutral in this case. Article I, section 21 provides in pertinent part, that "[t]he right of trial by jury shall remain inviolate...." Article I, section 22 (amend.10) provides in pertinent part that "[i]n criminal prosecutions the accused shall have the right to ... have a speedy public trial by an impartial jury...." Nothing in the language of these constitutional provisions addresses the question presented.

The second Gunwall criterion, comparison of the state and federal constitutional language, is also neutral on the question. The sixth amendment to the United States Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed...." Our Supreme Court has held that this language is substantially similar to article I, section 22. 14

Appellants contend that it is significant that the Washington Constitution contains the language in article I, section 21, which the federal constitution does not. They rely for this argument on City of Pasco v. Mace. 15 But that case is inapposite. It relied on language in article I, section 21 that specifically addressed the right to a jury trial in courts not of record. There is no...

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