THE STATE OF WASHINGTON, Rеspondent, v. GREGORY ALLEN, Petitioner
No. 49967-5
En Banc.
March 15, 1984
101 Wn.2d 355 | 678 P.2d 798
WILLIAMS, C.J., and BRACHTENBACH, DOLLIVER, DORE, DIMMICK, and PEARSON, JJ., concur.
ROSELLINI, J., concurs in the result.
UTTER, J. (concurring)—I concur only because we are bound by our recent decision of State v. Jones, 97 Wn.2d 159, 162-63, 641 P.2d 208 (1982). If this was an original considеration, I would rule that under our constitution a jury hung 7 to 5 for acquittal necessarily implies a reasonable doubt.
Kim S. Wakefield of Washington Appellate Defender Association, for petitioner.
Norm Maleng, Prosecuting Attorney, and Frederick L. Yeatts, Senior Trial Attorney, for resрondent.
The complaining witness, Lilian Sorensen-Viale, testified that on the afternoon of July 10, 1981 she had just finished taking a shower when she heard a loud noise. Sorensen-Viale went downstairs and saw Allen pacing back and forth on her patio deck. This deck was about 4 to 5 feet above ground level and did not have stairs to the ground. The man pointed to the sliding glass door and then at Sorensen-Viale. Frightened that the man might get in, she telephoned the police. Allen shrugged his shoulders, jumped off the deck, went to his car, and drove away. Sorensen-Viale then noticed that adjacent to the sliding door one of the window frames was bent, the screen was off, there were pry marks on the window, and the window was almost open.
Allen was stopped by a police officer a short distance
Allen‘s story was that he had met an old friend the рrevious day and received directions to the friend‘s home in an unfamiliar neighborhood in Redmond. He drove there and stayed the night. When the friend left the next morning to take care of some business, he gave Allen directions to go to the local 7-11 store. Allen says that he was half аsleep when he received these directions and did not write them down. Sometime in the afternoon, he got up, drank some beers, and headed for the 7-11 store to buy more. Confused, Allen stopped in front of the Sorensen-Viale house to ask directions. When there was no answer at the front door, he went to the back, jumped on the deck and knocked again. Again he received no response. He leaned against the window while looking in. A woman then walked into the room which looked out on the deck. When Allen asked to talk to her, she wеnt and picked up the telephone. Thinking she was calling the police, Allen hopped off the deck and went to his car and drove away.
Allen‘s friend basically confirmed those portions of Allen‘s story of which he was a participant.
When the time came for counsel to take exceptions to the court‘s charge, the defense excepted to the court‘s decision not to give WPIC 10.01, based on
A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.
Defense counsel told the court of the proposed instruction‘s origin and said that “[a]ccording to Washington Pattern Instruction 10.01, this instruction should be added when intent forms one of the elements of the crime.” Report of Proceedings, at 8. The court noted defendant‘s exceptions.
The court instructed the jury that a person commits
The court also instructed the jury on the lesser included offense of first degree criminal trespass. It instructed that the elements of the crime of first degree criminal trespass were that the defendant knowingly entered or remained unlawfully in a building. The court refused to give the petitioner‘s requested instruction WPIC 10.02, defining “knowingly“.
The jury found petitioner guilty of attempted second degree burglary.
On appeal, Allen argued that the trial court erred in refusing his instruction defining intent. The Court of Appeals held that while the constitution requires that the jury be instructed on each element of the crime, it does not require that the elements be further defined.
I
It is clear that the triаl court must instruct the jury on every element of the crime. State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953). Failure to inform the jury that there is an intent element is thus a “fatal defect” requiring reversal. State v. Carter, 4 Wn. App. 103, 110-11, 480 P.2d 794 (1971). It is less clear whether the jury must be further instructed as to a statutory definition of an element of a crime. The cases generally hold that triаl courts must define technical words and expressions used in jury instructions, but need not define words and expressions that are of common understanding. E.g., State v. Davis, 27 Wn. App. 498, 618 P.2d 1034 (1980); State v. Pawling, 23 Wn. App. 226, 597 P.2d 1367, review denied, 92 Wn.2d 1035 (1979).
In a charge of attempt to commit second degree burglary, it is the crime of second degree burglary which identifies the kind of intent required. See State v. Davis, at 508 n.5; W. LaFave & A. Scott, Criminal Law 429 (1972). The crime of attempted burglary is historically considered a specific intent crime. The concept of specific intent involves an intention in addition to the intention to do the physical act. State v. Edmon, 28 Wn. App. 98, 621 P.2d 1310, review denied, 95 Wn.2d 1019 (1981).
In defining the hierarchy of four levels of culpability, it is apparent that the Legislature gave these culpable mental states technical meanings as opposed to their commonly understood meanings.
Other jurisdictions support this proposition. In Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945), a sheriff and two assistants were prosecuted for “willfully” depriving an individual of his civil rights in violation of federal law. The Supreme Court reversed their conviction. The Court held that the trial court erred in not instructing the jury that, in order to convict, it must find that the defendants had the purpose to deprive the prisoner of a constitutional right.
Screws could be viewed as holding only that reversal was required because the trial court failed to submit to the jury an essential element of the crime. Screws, at 107. On the other hand, the opinion also includes the following language:
We recently pointed out that “willful” is a word “of many meanings, its construction often being influenced by its context.” At times the word denotes an act which is intentional rather than accidental. But “when used in a criminal statute it generally means an act done with a bad purpose.” In that event something more is required than the doing of the act proscribed by the statutе. An evil motive to accomplish that which the statute condemns becomes a constituent element of the crime. And that issue must be submitted to the jury under appropriate instructions.
(Citations omitted.) Screws, at 101.
In United States v. Kerley, 643 F.2d 299 (5th Cir. 1981), the court relied on Screws in holding that in prosecution for willful deprivation of constitutional rights by a person acting under cоlor of law, the trial court committed reversible error in failing to define the element of willfulness.
Particularly persuasive are two recent decisions of the courts of Indiana. As in Washington, the Indiana criminal code has a provision defining mental states of culpability.
[T]he instruсtion uses the words “recklessly, knowingly or intentionally.” Under our penal code, these are terms of art; that is, they have special legal definitions.
Ind. Code § 35-41-2-2 (Burns 1979 Repl.) We have held that the use of a word of art in an instruction requires a further instruction on the definition of that word. Martin v. State, (1974) 262 Ind. 232, 246, 314 N.E.2d 60, 70, reh. denied, 262 Ind. 232, 317 N.E.2d 430, cert. denied, (1975) 420 U.S. 911, 95 S. Ct. 833, 42 L. Ed. 2d 841. Cf. Lock v. State, (1980) Ind., 403 N.E.2d 1360. However, Smith tendеred no additional instructions on the meaning of these terms. For these reasons, the tendered instruction was confusing and thus properly refused. The trial court did not err in refusing appellant‘s tendered instruction number five.
Subsequently, in Nash v. State, Ind. App., 433 N.E.2d 807, 812 (1982), the court held that the trial court committed reversible error in failing to define such terms:
While the trial court gave an accurate instruction concerning the statutory offense of theft, it did not attempt to define the terms “intentionally” or “knowingly.” Nash‘s tendered instruction was a correct statement of the law in that it recited verbatim from
I.C. 35-41-2-2 which spеcifically defines the terms. Whether Nash engaged in conduct “knowingly” was a critical issue. The trial court therefore erred in refusing Defendant‘s Proposed Instruction No. 2.
The crimes of second degree burglary and the lesser included offense of first degree criminal trespass inсlude specific mental states; for burglary, intent to commit a crime, and for trespass, knowing unlawful entry into or remaining in a building. Intent and knowledge have been statutorily defined by the Legislature.
CONCLUSION
An instruction, when requested, defining intent in the words of
Reversed.
ROSELLINI, UTTER, and PEARSON, JJ., and CUNNINGHAM, J. Pro Tem., concur.
DOLLIVER, J. (dissenting)—It is hardly breaking new judicial ground to assert jury instructions are to be read as a whole and each instruction must be rеad in connection with all others given. State v. Thompson, 88 Wn.2d 518, 564 P.2d 315 (1977). While I agree with the majority that the jury must be instructed on each element of the crime, State v. Emmanuel, 42 Wn.2d 799, 820, 259 P.2d 845 (1953), there is no constitutional requirement that the court further define one of the elements. State v. Pawling, 23 Wn. App. 226, 232-33, 597 P.2d 1367 (1979). Rather, jury instructions are sufficient if they are readily understood, nоt misleading to the ordinary mind, and permit the theory of the case to be argued by a party to the jury. Petersen v. State, 100 Wn.2d 421, 441, 671 P.2d 230 (1983).
The only error defendant assigns is that proposed instruction 8 was not given:
A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime.
No. 4
To convict the defendant Gregory Allen of the crime of Attempted Burglary in the Second Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about July 10, 1981, the defendant unlawfully attempted to enter a building;
(2) That the attempted entering or remaining was with intent to commit a crime against a person or property therein; and
(3) 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.
On the other hand, if, after weighing all of 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.
No. 6
A person commits the crime of Attempted Burglary in the Second Degree when, with intеnt to commit that crime, he or she does any act which is a substantial step toward the commission of that crime.
Instruction 4 tracks the language of the second degree burglary statute,
Except for the omission of a gender reference, proposed instruction 8 is identical to the language of
The court stated intent was an element of the crime (instruction 4) and gave a lucid and statutorily correct instruction on intent. Defendant‘s conviction should be affirmed.
I dissent.
WILLIAMS, C.J., and BRACHTENBACH and DIMMICK, JJ., concur with DOLLIVER, J.