106 Wash. App. 40 | Wash. Ct. App. | 2001
Darrell Jones contends the jury instructions in his trial for unlawful possession of a firearm relieved the State of its burden of proving two elements of the offense. The State does not dispute that the instructions omitted one of the elements, but contends any error was harmless. In supplemental briefs requested by this court, the parties disagree as to whether Neder v. United States
FACTS
Only a few background facts are necessary to review Jones’ contentions. A police officer responding to a report of shots being fired came upon three individuals, including Jones, standing near a parked car. The officer saw Jones place an object under the car and later found a handgun in that location. The gun was fully loaded and smelled of spent gunpowder. On cross-examination, the officer admitted he had not test-fired the gun and that it was not warm when he found it.
Jones did not testify at trial, but one of the other individuals at the scene, Zaron Hoard, testified that Jones did not have a gun in his hand and never bent down to put something under the car. Hoard said the third individual seen by police officers that night was actually closest to the car. In closing argument, defense counsel argued misidentification and asserted that the State had not proved that the gun was a “firearm” as defined in the instructions.
The court’s “to convict” instruction set forth the following elements for second degree unlawful possession of a firearm:
[E]ach of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 26th day of October, 1998, the defendant owned or had a firearm in his possession or under his control, to wit: a Dakota .45 caliber revolver;
(2) That the defendant had previously been convicted of a felony offense [;] and
(3) That the acts occurred in the state of Washington.
Instruction 6. The jury convicted Jones as charged.
Following Jones’ trial, the Washington Supreme Court held for the first time that “knowing possession” is an implied element of second degree unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 367, 5 P.3d 1247 (2000). It is undisputed that the “to convict” instruction in this case did not include that element. The State argues, however, that the error was harmless because knowledge was not disputed at trial. We disagree.
Initially, we note that it is unclear whether harmless error analysis applies in this setting. A line of Washington cases holds that harmless error analysis does not apply when instructional errors relieve the State of its burden of proof.
We need not resolve this issue. Even assuming Neder is controlling, we cannot say that the omission of the knowledge element was harmless beyond a reasonable doubt.
Given our holding, we need not reach Jones’ argument that the “to convict” instruction could be read as directing a verdict on whether the Dakota .45 caliber revolver was a “firearm” as defined in the court’s instructions. We note, however, that our courts have condemned similar instructions.
Reversed.
Becker, A.C.J., and Baker, J., concur.
Reconsideration denied July 27, 2001.
Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
See generally State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999); State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995); State v. Eastmond, 129 Wn.2d 497, 503, 919 P.2d 577 (1996); State v. Smith, 131 Wn.2d 258, 263-66, 930 P.2d 917 (1997); State v. Pope, 100 Wn. App. 624, 630, 999 P.2d 51, review denied, 141 Wn.2d 1018 (2000).
See, e.g., State v. White, 97 Wn.2d 92, 109, 640 P.2d 1061 (1982); State v. Hehman, 90 Wn.2d 45, 578 P.2d 527 (1978).
See People v. Asay, 224 Cal. App. 3d 608, 273 Cal. Rptr. 737 (1990) (noting that
See, e.g., State v. Smith, 131 Wn.2d at 265-66 (citing state and federal case law); State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977); State v. Jackson, 87 Wn. App. 801, 812-15, 944 P.2d 403 (1997) (relying on federal constitution and federal case law); State v. Austin, 59 Wn. App. 186, 796 P.2d 746 (1990); see also State v. Johnson, 100 Wn.2d 607, 620-21, 674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985) (indicating that, for purposes of determining whether harmless error analysis applies to a particular error, Washington courts will follow the lead of the U.S. Supreme Court).
See generally State v. Allen, 101 Wn.2d 355, 358, 678 P.2d 798 (1984) (citing State v. Carter, 4 Wn. App. 103, 110-11, 480 P.2d 794 (1971), which in turn cites State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970)); State v. Emmanuel, 42 Wn.2d 799, 259 P.2d 845 (1953); State v. Hilsinger, 167 Wash. 427, 9 P.2d 357 (1932); State v. Rader, 118 Wash. 198, 203 P. 68 (1922).
The Neder majority held that failure to instruct on an element of an offense is harmless if it appears beyond a reasonable doubt that the jury’s verdict would have been the same absent the error. See Neder v. United States, 527 U.S. at 7-15.
See generally State v. Becker, 132 Wn.2d 54, 935 P.2d 1321 (1997); State v. Akers, 136 Wn.2d 641, 965 P.2d 1078 (1998); State v. Holt, 56 Wn. App. 99, 783 P.2d 87 (1989).