State v. Robinson

• Decision Date: 15 November 1984
• Docket Number: No. 6101-III-9,6101-III-9
• Citation: 691 P.2d 213,38 Wn.App. 871
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. John Allen ROBINSON, Appellant.

Page 871

38 Wn.App. 871

691 P.2d 213

STATE of Washington, Respondent, v. John Allen ROBINSON, Appellant.

No. 6101-III-9.

Court of Appeals of Washington, Division 3,

Panel Four.

Nov. 15, 1984.

Review Denied Jan. 18, 1985.

Bradley Jones, Rigby & Jones, Seattle, for appellant.

Norman K. Maleng, Pros. Atty., William L. Downing, Deputy Pros. Atty., Seattle, for respondent.

THOMPSON, Judge.

John Allen Robinson appeals his jury convictions of second degree assault and first degree murder, both committed while armed with a deadly weapon, a firearm. The primary issue concerns the Superior Court's failure to specifically instruct the jury the State had the burden of proving absence of self-defense beyond a reasonable doubt. In light of the recent holding in State v. Acosta, 101 Wash.2d 612, 683 P.2d 1069 (1984), we find it was error not to instruct the jury the State must prove absence of self-defense beyond a reasonable doubt, but further hold it was harmless error. We affirm both convictions.

During the late winter, spring and summer of 1982, Mr. Robinson was involved in a dissolution proceeding initiated by his wife, Mildred. John Pruitt, Mr. Robinson's brother-in-law, testified that Mr. Robinson was agitated over the divorce, although Mr. Robinson denied this. On May 11, 1982, Mr. Pruitt received the following message on his record-a-call:

This is John Robinson. Would you tell Mildred to get in touch with me with those kids right away or I will go into my drastic act and whoever has to suffer the consequences--whoever wants to have to suffer for it are the ones I can find like you, her sister, and anybody else that is related to her. Get the kids here in the morning.

Mr. Pruitt stated that he recognized the voice as that of Mr. Robinson. He notified the police, who told him the matter appeared to be a domestic dispute, but advised him to save the recording.

Then, on July 28, 1982, as Mr. Pruitt and his son approached their residence in their van, the son was shot in the arm. Mr. Pruitt testified the shot was fired by Mr. Robinson, who was seated in a brown vehicle which Mr. Pruitt believed was Mr. Robinson's Monte Carlo. The Seattle police contacted Mr. Robinson, who provided an alibi and stated that the Pruitts wanted him in jail so that Mildred could move into his house. He also pointed out that his Monte Carlo was in California. No charges were filed against Mr. Robinson at that time. Mr. Pruitt called Thomas Neville, Mrs. Robinson's attorney in the dissolution, and informed him of the shooting.

Shortly after 4 p.m. on August 2, Mr. Neville contacted Detective Michael Tando of the Seattle Police Department in connection with the Pruitt assault. About 4:30 p.m., Detective Tando received a call from Mr. Robinson. Detective Tando told him not to have any contact with the Pruitts, and that they were under surveillance.

Later that afternoon, Mr. Neville was shot and killed by Mr. Robinson in the lobby of Mr. Neville's office building. Richard Sanford, a clerk in a bookstore adjoining the lobby Mr. Robinson fled the scene, but turned himself in to the police that evening. At the time of his arrest, Mr. Robinson stated that a third person not known to him shot Mr. Neville while Mr. Neville and Mr. Robinson stood in the lobby talking about the divorce. However, at trial, Mr. Robinson admitted his involvement, but stated he had acted in self-defense. He testified that he and Mr. Neville were discussing the divorce while walking toward the lobby exit when Mr. Neville stopped and signaled to a third person. According to Mr. Robinson, Mr. Neville saw that Mr. Robinson had observed the signal and screamed "Oh, my God". Mr. Neville then pulled back his coat and appeared to be searching for a gun. Mr. Robinson shot him when Mr. Neville drew an object out of his coat.

testified he heard three loud sounds in rapid succession and saw a man he identified as Mr. Robinson heading toward an exit. Mr. Robinson turned, looked at Mr. Neville, and walked back to him. Mr. Sanford then heard a fourth report and saw a flash of light from the midsection of Mr. Robinson. Klaus Zech, a janitor in the building, was also in the lobby. He testified he heard "three ... loud bangs and one sort of followed after it ..." He looked and saw Mr. Robinson standing over Mr. Neville holding "something".

THE MURDER CONVICTION

Mr. Robinson contends the court erred when it refused to specifically instruct the jury that the State had the burden of proving lack of self-defense beyond a reasonable doubt. We agree.

Here, the court instructed:

NO. 2

The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The plaintiff has the burden of proving each element of the crime beyond a reasonable doubt.

NO. 5

To convict the defendant John Allen Robinson of the crime of murder in the first degree ... each of the following elements ... must be proved beyond a reasonable doubt:

(1) That on or about the second day of August, 1982, the defendant John Allen Robinson shot Thomas Neville, a human being;

(2) That the defendant acted with intent to cause the death of Thomas Neville;

(3) That the intent to cause the death was premeditated;

(4) That Thomas Neville died as a result of defendant's acts; and

(5) That the acts occurred in King County, Washington.

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 as to count I.

NO. 13

It is a defense to a charge of murder or manslaughter that the homicide was excusable or justifiable as defined in this instruction.

In State v. McCullum, 98 Wash.2d 484, 499, 656 P.2d 1064 (1983), the court stated that the failure to expressly allocate the burden of proof to the State is not necessarily reversible error, but that an express instruction is "preferable" in order to avoid jury confusion. The test for determining if instructions which do not expressly allocate the burden of proof are error is "whether the jury ... could understand from the instructions as a whole, that the State bears the burden of proof on self-defense". State v. Acosta, supra 101 Wash.2d at 622, 683 P.2d 1069.

In Acosta, the defendant raised the issue of self-defense in a prosecution for second degree assault. The court refused to give an express instruction on the burden of proof on this issue, and instead used a pattern instruction which merely listed the statutory elements of second degree assault and instructed the jury the State must prove the elements beyond a reasonable doubt. Lack of excuse or justification was not among the statutory elements of the crime. The court also instructed that self-defense was a complete defense to second degree assault and that if the evidence showed the defendant acted in self-defense, the jury's duty was to return a not guilty verdict.

The Supreme Court held in Acosta the instructions did not adequately inform the jury that the State must prove absence of self-defense. Acosta, at 623, 683 P.2d 1069. Here, the instructions suffer from the same deficiencies found in Acosta. The instruction setting forth the elements of first degree murder did not include lack of excuse or justification as an item to be proved by the State, and the jury reasonably could infer from the self-defense instruction that the defendant bore the burden of proof on that issue.

We next must determine whether the error was harmless. Since the error infringed upon a constitutional right of the defendant, the error is presumed prejudicial, and the State has the burden of proving the error was harmless. State v. Stephens, 93 Wash.2d 186, 190-91, 607 P.2d 304 (1980). Constitutional errors cannot be deemed harmless unless they are harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967); State v. Evans, 96 Wash.2d 1, 5-10, 633 P.2d 83 (1981).

Our State Supreme Court and the United States Supreme Court have set out two alternative approaches in making this determination:

(1) constitutional error is harmless only if it can be said beyond a reasonable doubt that it did not contribute to the verdict (hereinafter "contribution test"); and (2) constitutional error is harmless whenever it can be said beyond a reasonable doubt that the evidence not tainted by the error is so overwhelming that it necessarily leads to a finding of guilt (hereinafter "overwhelming evidence test").

State v. Johnson, 100 Wash.2d 607, 621, 674 P.2d 145 (1983). Application of the contribution test contemplates focusing on the constitutional error, asking whether it might have contributed to a guilty verdict. On the other hand, the overwhelming evidence test focuses on the untainted evidence and asks the question whether there remains overwhelming evidence to support the jury verdict. As noted by Justice Brachtenbach in his concurring opinion in State v. Evans, supra, the rule of harmless constitutional error is clear. What is not clear is the proper analysis or methodology an appellate court must use in determining if a constitutional error is harmless beyond a reasonable doubt. The problem is compounded in an instructional error case in that it is not possible to isolate the error with clinical precision since it involves the possible contamination of the jurors' perspective. An additional complication is the caveat that we cannot invade the province of the jury by becoming triers of fact or in speculating what they might do. Complications notwithstanding, when an appellate standard is established, implied in the setting of that standard is tacit permission to do that which is necessary to apply it. In order to apply the harmless error test, it is necessary to enter into a limited evidence weighing process. Doing so, we conclude that failure to instruct the jury that the State had the burden of disproving self-defense played...