State v. Scott

• Decision Date: 09 June 1988
• Docket Number: No. 54241-4,54241-4
• Citation: 110 Wn.2d 682,757 P.2d 492
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Keith Lyle SCOTT, Clark Benjamin Williamson, Defendants, and Ferdinand Brown, Petitioner.

Page 682

110 Wn.2d 682

757 P.2d 492

The STATE of Washington, Respondent, v. Keith Lyle SCOTT, Clark Benjamin Williamson, Defendants and Ferdinand Brown, Petitioner.

No. 54241-4.

Supreme Court of Washington En Banc.

June 9, 1988.

Washington Appellate Defender, Neil M. Fox, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Celeste Stokes, Deputy County Prosecutor, Seattle, for respondent.

DURHAM, Justice.

Ferdinand Brown was arrested on March 26, 1985, along with two other individuals, while riding in the back of an automobile which had been seen near the site of a burglary. On the seat next to Brown, police found several pieces of electronics equipment which were identified as missing from the burglarized apartment.

At Brown's trial, the State argued that while Brown may not have personally removed the stolen items from the apartment, he was an accomplice to the burglary. Brown offered, and the trial court accepted, an instruction on accomplice liability that described "knowledge" as an element of the offense but did not define the term. ¹ The trial court did not supplement this instruction with one defining "knowledge".

Brown made no objection at trial to the judge's failure to define "knowledge" and raised the issue for the first time on appeal. Brown argued in the Court of Appeals, and continues to argue here, that the trial court's failure to submit to the jury a definition of "knowledge" was constitutional error and thus may be challenged for the first time on appeal under the authority of RAP 2.5(a)(3). The Court of Appeals decided that Brown's challenge need not be entertained because the asserted error, even if constitutional, was not "obvious and manifest". State v. Scott, 48 Wash.App. 561, 567-69, 739 P.2d 742 (1987). ² We granted Brown's petition for review.

I

This case points out the need for clarification of certain matters of trial and appellate procedure. Primary among these are the scope and basis of our holding in State v. Allen, 101 Wash.2d 355, 678 P.2d 798 (1984), that when the trial court instructs the jury on the elements of a crime for which the mens rea is "intent", that term must be defined in the manner set forth in RCW 9A.08.010(1)(a). Not decided in Allen, and at issue here, is the applicability of this rule to the mental state of "knowledge" described in RCW 9A.08.010(1)(b). Also unstated in Allen is the precise legal basis for the decision. Brown, and at least one panel of the Court of Appeals, have interpreted Allen as constitutionally based. See State v. Tyler, 47 Wash.App. 648, 652-53, 736 P.2d 1090 (1987). Other courts, including the court below, have been reluctant to view Allen in this way. See State v. Scott, 48 Wash.App. at 567-68, 739 P.2d 742; State v. Thompson, 47 Wash.App. 1, 9, 733 P.2d 584 (1987); State v. Boot, 40 Wash.App. 215, 218, 697 P.2d 1034 (1985).

The scope and basis of the Allen holding is determinative of Brown's right to present his appeal. Having failed to object at trial to the absence of an instruction defining "knowledge", Brown may not raise the objection for the first time on appeal unless it relates to "manifest error affecting a constitutional right." RAP 2.5(a)(3). Thus, only if the rule of Allen is a constitutional rule, and only if the rule extends to "knowledge", can Brown's appeal be heard.

Also in need of clarification is the proper construction to be given the "manifest error" standard stated in RAP 2.5(a)(3). The court below, apparently concerned that "the rule is often construed too broadly", asserted its discretion to refuse review of constitutional errors when "obvious and manifest injustice" has not occurred. Scott, 48 Wash.App. at 568, 739 P.2d 742; see also State v. Stubsjoen, 48 Wash.App. 139, 147-50, 738 P.2d 306, review denied, 108 Wash.2d 1033 (1987). This approach reflects a much narrower construction of RAP 2.5(a)(3) than we previously have adopted. In several cases, we have held that instructional errors which are "of a constitutional magnitude" may be raised for the first time on appeal, without considering the degree to which the asserted errors were "manifest". State v. McCullum, 98 Wash.2d 484, 487-88, 656 P.2d 1064 (1983); see State v. Peterson, 73 Wash.2d 303, 306, 438 P.2d 183 (1968).

We will attempt in this opinion to explain the "manifest error" standard of RAP 2.5(a)(3) and to clarify our holding in Allen. With respect to the case at hand, we affirm the judgment of the Court of Appeals.

II

RAP 2.5(a) states the general rule for appellate disposition of issues not raised in the trial court: appellate courts will not entertain them. See, e.g., State v. Coe, 109 Wash.2d 832, 842, 750 P.2d 208 (1988); State v. Peterson, supra 73 Wash.2d at 306, 438 P.2d 183. The rule reflects a policy of encouraging the efficient use of judicial resources. The appellate courts will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial. See Seattle v. Harclaon, 56 Wash.2d 596, 597, 354 P.2d 928 (1960).

With respect to claimed errors in jury instructions in criminal cases, this general rule has a specific applicability. CrR 6.15(c) requires that timely and well stated objections be made to instructions given or refused "in order that the trial court may have the opportunity to correct any error." Seattle v. Rainwater, 86 Wash.2d 567, 571, 546 P.2d 450 (1976); cf. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977) (describing analogous federal rule). Citing this rule or the principles it embodies, this court on many occasions has refused to review asserted instructional errors to which no meaningful exceptions were taken at trial. See, e.g., Rainwater, 86 Wash.2d at 570-72, 546 P.2d 450; State v. Scherer, 77 Wash.2d 345, 352, 462 P.2d 549 (1969); State v. Louie, 68 Wash.2d 304, 311-12, 413 P.2d 7 (1966), cert. denied, 386 U.S. 1042, 87 S.Ct. 1501, 18 L.Ed.2d 610 (1967).

Brown's instructional challenge squarely confronts these procedural barriers. He did not object at trial to the accomplice liability instruction that was given; indeed, the trial court accepted a version of the instruction that Brown had proposed. Nor did Brown request an instruction defining "knowledge", the omission of which he now asserts to be error. Thus, Brown comes before this court in much the same position as did the defendant in State v. Kroll, 87 Wash.2d 829, 558 P.2d 173 (1976), and our response to Brown's claim should be the same as our response in Kroll: "No error can be predicated on the failure of the trial court to give an instruction when no request for such an instruction was ever made." Kroll, at 843, 558 P.2d 173.

Not surprisingly, therefore, Brown seeks to avoid the consequences of his failure to comply with the well settled procedural requirements by elevating his challenge "into the constitutional realm". Louie, 68 Wash.2d at 314, 413 P.2d 7. As our cases hold, and RAP 2.5(a)(3) succinctly states, certain instructional errors that are of constitutional magnitude may be challenged for the first time on appeal. Constitutional errors are treated specially because they often result in serious injustice to the accused. ³ State v. Peterson, supra 73 Wash.2d at 306 n. 5, 438 P.2d 183. Such errors also require appellate court attention because they may adversely affect the public's perception of the fairness and integrity of judicial proceedings. State v. McHenry, 88 Wash.2d 211, 558 P.2d 188 (1977); see generally 3A C. Wright, Federal Practice and Procedure § 856, at 339-41 (2d ed. 1982). ⁴

The Court of Appeals assumed that Brown's challenge is constitutional, but refused review because it did not believe the asserted error to be "manifest" within the meaning of RAP 2.5(a)(3). Specifically, the court determined that the "failure to define knowledge [could not have] created 'obvious and manifest injustice' ". State v. Scott, 48 Wash.App. 561, 569, 739 P.2d 742 (1987). We take a different approach. First, we do not assume that Brown's challenge is of constitutional magnitude, but conclude that the error Brown asserts is not in fact constitutional error. See infra. Second, we would not limit applicability of RAP 2.5(a)(3) according to the degree to which the asserted error appears "manifest".

We agree with the Court of Appeals that the constitutional error exception is not intended to afford criminal defendants a means for obtaining new trials whenever they can "identify a constitutional issue not litigated below." State v. Valladares, 31 Wash.App. 63, 76, 639 P.2d 813 (1982), aff'd in part, rev'd in part, 99 Wash.2d 663, 664 P.2d 508 (1983). The exception actually is a narrow one, affording review only of "certain constitutional questions". Comment (a), RAP 2.5, 86 Wash.2d 1152 (1976). Moreover, the exception does not help a defendant when the asserted constitutional error is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

We disagree, however, that by deciding that an error is not "manifest", an appellate court can usefully shortcut the review process. Even the threshold determination of "reviewability" requires diligent attention to the record. Cf. United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985) ("Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record."). Thus, no appellate effort is saved by cutting off review of those cases in which reversal is determined to be unnecessary.

The proper way to approach claims of constitutional error asserted for the first time on appeal is as follows. First, the appellate court should satisfy itself that the error is truly of constitutional magnitude--that is what is meant by "manifest". ⁵ If the asserted error is not a...