State v. Pittman
| Decision Date | 19 June 2006 |
| Docket Number | No. 55682-7-I.,55682-7-I. |
| Citation | 134 Wash.App. 376,166 P.3d 720 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Paul Michael PITTMAN, Appellant. |
Nielsen Broman Koch PLLC, Attorney at Law, Dana M. Lind, Nielsen Broman & Koch PLLC, Seattle, WA, Paul Michael Pittman (Appearing Pro Se), Everett, WA, for Appellant.
Constance Mary Crawley, Prosecutors Office, Craig Scott Matheson, Attorney at Law, Everett, WA, for Respondent.
¶ 1 A jury convicted Paul Pittman of attempted residential burglary. He appeals, arguing the jury instructions were based on an incorrect definition of attempted residential burglary and his counsel was ineffective because he did not request lesser included offense instructions. The jury instructions as a whole, including the "to convict" instruction, adequately informed the jury of the applicable law. But attempted first degree criminal trespass is a lesser included offense of attempted residential burglary, and the evidence at trial supported an inference that Pittman only intended to trespass. Because there was no strategic reason for his attorney not to request a lesser included offense instruction, we reverse and remand for a new trial.
¶ 2 Around 6 a.m. on November 14, 2004, Shane Cline awoke to the sound of his dog barking hysterically. He let the dog out through the rear sliding door, and she continued barking in the yard while Cline got a glass of water from the kitchen. According to Cline, he saw a man through his kitchen window, later identified as Paul Pittman, going through the top two shelves of Cline's toolbox on the deck about 5½ feet from the kitchen window.1 Cline yelled to his wife to call 911, and he let the dog back in through the sliding door. The dog then ran barking to the front door, and Cline heard Pittman turning the door knob and making some sort of kicking-type noise at the lower part of the door. As Cline approached the door the noise stopped. He opened the door and let the dog out, following her until he found her barking at Pittman, who was hiding near a lumber pile on Cline's property.
¶ 3 Cline told Pittman he had a gun and made Pittman drop the backpack he was wearing and lift his shirt to make sure he wasn't armed. When asked what he was doing at Cline's house, Pittman said he went to the front door to apologize after realizing that he was not at his mother's house and that it was not his mother's car he was getting into. Pittman denied going through Cline's toolbox. Snohomish County Sheriff Deputies Jess Sanders and David Zander arrived and arrested Pittman, who told them he woke up from a methamphetamine-induced blackout standing at the open door of Cline's vehicle and that he had then decided to go into Cline's house to apologize. He told them he had used the methamphetamine in the previous 12 hours. Deputy Sanders found a pipe wrench, screwdriver, and pry-type tool in Pittman's backpack. Pittman denied any knowledge about the tools. Cline could not tell whether the tools were from his toolbox. When Cline gave a statement to police, he did not mention that he saw Pittman going through his toolbox.
¶ 4 Pittman was charged with attempted residential burglary. At trial, Cline testified about the events of November 14, stating that Pittman appeared to be under the influence of something other than alcohol and kept telling Cline about being at a "party scene" before arriving at Cline's house. He said he was unsure if Pittman took anything from his toolbox. Deputy Sanders testified that Pittman was shaky and acted very nervous. He said that after Cline walked around his property to ensure nothing was missing, Cline told him that Pittman may have gone through his toolbox, but he could not determine whether the tools in Pittman's backpack were his or not. Crystal Lynn Kelley, Pittman's ex-girlfriend, testified that in early November 2004, sometime before November 14, Pittman fixed her toilet using his own tools, including a screwdriver and wrench, which he brought in a backpack that looked like the one Pittman wore at Cline's home. Pittman did not testify on his own behalf.
¶ 5 Pittman did not object to the court's jury instructions, including instruction 5 defining attempted residential burglary:
A person commits the crime of attempted residential burglary when, with intent to commit that crime, he or she does any act which is a substantial step toward the commission of that crime.
The jury convicted Pittman and he was sentenced within the standard range.
¶ 6 Pittman argues for the first time on appeal that the jury instructions relieved the State of its burden to prove all elements of attempted residential burglary beyond a reasonable doubt. We review de novo alleged errors of law in jury instructions.2 Jury instructions are sufficient when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law.3 Jury instructions should be read as a whole to determine whether they meet the requirements.4 RAP 2.5(a)(3) allows us to consider "manifest error affecting a constitutional right" for the first time on appeal. An instructional error is manifest "when it has practical and identifiable consequences in the trial of the case."5
¶ 7 Instruction 5 borrowed its language verbatim from Washington Pattern Jury Instruction: Criminal 100.01 (WPIC).6 It also correctly defines an attempt crime.7 Although no Washington court has taken issue with the wording of this WPIC and there is no indication the jury was confused, Pittman maintains the WPIC is wrong. He contends instruction 5 misstated the elements of attempted residential burglary because it allowed the jury to convict him if it found he took a substantial step towards the commission of attempted residential burglary, rather than a substantial step toward residential burglary. He cites State v. Smith for support.8
¶ 8 In Smith, the defendant was charged with conspiracy to commit murder in the first degree. But the "to convict" instruction defined conspiracy as an agreement to engage in "`the performance of conduct constituting the crime of Conspiracy to Commit Murder in the First Degree.'"9 In other words, it defined conspiracy as "the even more inchoate crime of conspiracy to commit conspiracy to commit murder."10 The State agreed the instruction was defective but argued the instructions as a whole properly defined conspiracy. The Supreme Court disagreed because the "to convict" instruction, as the "`yardstick' by which the jury measures the evidence to determine guilt or evidence," must contain all the elements of the crime and the jury is not required to look elsewhere.11 Here, Pittman argues the "that crime" language in instruction 5 necessarily refers to attempted residential burglary, so instruction 5 is like the "to convict" instruction in Smith because it defines the even more inchoate crime of attempt to attempt to commit residential burglary.
¶ 9 This case is distinguishable from Smith because instruction 5 is not clearly erroneous. Reading the instruction in a straightforward, commonsense manner, the average juror would interpret "that crime" to mean residential burglary as the parties intended. Even if instruction 5 were somehow confusing, the crucial "to convict" instruction properly asked the jury whether Pittman "did an act which was a substantial step toward commission of residential burglary," not whether he did an act which was a substantial step toward commission of attempted residential burglary. Pittman does not dispute that the "to convict" instruction accurately listed all the essential elements of attempted residential burglary. Nor does he dispute that instruction 8 accurately defined the crime of residential burglary. The jury instructions as a whole properly informed the jury of the applicable law. The alleged inadequacies in instruction 5 did not result in practicable and identifiable consequences, so Pittman cannot show manifest error reviewable for the first time on appeal.
¶ 10 Pittman argues he received ineffective assistance of counsel because his trial attorney failed to request a lesser included offense instruction on first degree attempted criminal trespass. We review ineffective assistance of counsel claims de novo based on the entire record below,12 but there is a strong presumption that counsel provided adequate assistance.13 A defendant must prove counsel's performance was deficient and he was prejudiced by it.14 That is, there must be a reasonable probability that, but for counsel's error, the result would have been different.15 If defense counsel's conduct can be characterized as legitimate trial strategy or tactics, it is not ineffective.16
¶ 11 Under the Workman test, a defendant is entitled to a lesser included offense instruction if each of the elements of the lesser offense is a necessary element of the greater offense (the legal prong), and the evidence supports an inference that only the lesser offense was committed (the factual prong).17 A person is guilty of residential burglary if, "with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle."18 A person is guilty of first degree criminal trespass if the person "knowingly enters or remains unlawfully in a building."19 The definition of "building" includes any dwelling.20
¶ 12 As the State points out, in State v. West we held that although first degree criminal trespass is a lesser included offense of residential burglary, it is not a lesser included offense of attempted residential burglary because a substantial step toward committing burglary does not necessarily involve a criminal trespass.21 However, Pittman argues that attempted...
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... ... State v. Nguyen, 165 Wn.2d 428, 434, 197 P.3d 673 (2008). In determining whether it is appropriate to give an instruction on a lesser included offense, the trial court views the evidence in a light most favorable to the defendant. State v. Pittman, 134 Wn. App. 376, 385, 166 P.3d 720 (2006) (citing State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000)). Manslaughter is a lesser included offense of premeditated murder. State v. Schaffer, 135 Wn.2d 355, 357-58, 957 P.2d 214 (1998). A person commits second degree ... ...
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