STATE of Washington, Respondent,
v.
Kenneth Lee KYLLO, Petitioner.
Supreme Court of Washington, En Banc.
*179 Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Seattle, for Petitioner.
Susan I. Baur, Michelle L. Shaffer, Cowlitz County Prosecutor's Office, Kelso, for Respondent.
MADSEN, J.
¶ 1 The defendant maintains that trial counsel was ineffective because counsel misstated the law on self-defense in an instruction counsel proposed that was given to the jury and in statements made during closing argument about Kenneth Kyllo's self-defense claim. We agree and accordingly reverse Mr. Kyllo's conviction for second degree assault. We remand for retrial.
FACTS
¶ 2 On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, defendant Kenneth Kyllo was involved in a fight with another inmate, Robert Mickens. Witnesses presented conflicting testimony about how the fight began and who started it, but in short a fist fight occurred that ended when Kyllo "grabbed onto" Mickens and bit his ear off. II Verbatim Report of Proceedings (VRP) (Oct. 26-27, 2004) at 202-12.
¶ 3 On June 16, 2004, the State charged Kyllo with assault in the second degree, alleging that Kyllo had intentionally assaulted Mickens and had recklessly inflicted substantial bodily harm on Mickens. Kyllo claimed he acted in self-defense. The jury was instructed that a person is entitled to act in self-defense when he reasonably believes he is about to be injured and when the force used is not more than is necessary. Clerk's Papers (CP) at 97 (Jury Instruction 11). In addition, Kyllo's counsel proposed the following "act on appearances" self-defense instruction; this instruction was given to the jury as jury instruction 13:
A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
CP at 79 (proposed instruction); CP at 99 (Jury Instruction 13). Counsel did not propose an instruction defining "great bodily harm" and none was given. However, in light of the fact that Kyllo was charged with second degree assault that would require the State to prove he inflicted "substantial bodily harm," see RCW 9A.36.021, an instruction was given defining "substantial bodily harm" as "bodily injury that involves a temporary but substantial disfigurement," or "temporary but substantial loss or impairment" of a bodily organ, or a "fracture" of a body part. CP at 105 (Jury Instruction 19). The trial court also gave an aggressor instruction. CP at 100 (Jury Instruction 14).
¶ 4 Counsel for both parties presented closing argument consistent with jury instruction 13, the "act on appearances" instruction. During the State's closing argument, the prosecuting attorney argued that Kyllo did not act in self-defense, saying, "The defendant had absolutely no reason to believe that he was going to be killed or severely, brutally attacked in this attack." III VRP (Oct. 25-27, 2004) at 373. During his closing argument, Kyllo's counsel argued, with regard to the amount of force Kyllo allegedly used in defending himself:
That was exactly the amount of force that he needed to use at that minute to save his *180 life, to save himself either from death or grievous bodily harm.... He knew that Mickens was a violent man with a violent history, and he did what he needed to do to save himself from serious injury or death.
Id. at 385. Counsel also argued to the jury that if Kyllo "acted based on appearances and did only that which he thought was necessary to protect himself from serious injury or death, you will return a verdict of not guilty based upon self-defense." Id. at 386.
¶ 5 The jury rejected the self-defense claim and found Kyllo guilty of second degree assault as charged. At sentencing, the State sought to have Kyllo sentenced as a persistent offender. The court concluded that the State had proved Kyllo was a persistent offender and imposed a sentence of life in prison without the possibility of early release.
¶ 6 Kyllo appealed. The Court of Appeals affirmed the conviction but reversed his sentence and remanded for resentencing. State v. Kyllo, noted at
ANALYSIS
¶ 7 Kyllo argues that jury instruction 13, the "act on appearances" instruction, improperly lowered the State's burden of proof, thereby violating his right to due process. He maintains that counsel's representation was ineffective because his counsel proposed an instruction identical to instruction 13 and argued to the jury that Kyllo was entitled to the defense of self-defense only if he reasonably believed he was in danger of death or grievous bodily harm.
¶ 8 The first question is whether appellate review is precluded either under the invited error doctrine or because Kyllo did not object to instruction 13. The Court of Appeals held that Kyllo invited any error in giving instruction 13 because the defense proposed an identical instruction. Kyllo,
¶ 9 The Court of Appeals also said that appellate review is precluded because Kyllo did not object to jury instruction 13. Again, we disagree. A claim of ineffective assistance of counsel is an issue of constitutional magnitude that may be considered for the first time on appeal. State v. Nichols,
¶ 10 To establish ineffective assistance of counsel the defendant must establish that his attorney's performance was deficient and the deficiency prejudiced the defendant. Strickland v. Washington,
*181 ¶ 11 There is a strong presumption that counsel's performance was reasonable. State v. Studd,
¶ 12 The first question in deciding whether Kyllo was denied effective representation is whether jury instruction 13 misstated the law as Kyllo contends. Kyllo's claim of self-defense involves his use of nondeadly force against Mickens. RCW 9A.16.020(3) provides that a defendant's use of nondeadly force against another is justifiable when the defendant reasonably believes he is about to be injured and uses no more force than is necessary.
¶ 13 A jury instruction on self-defense that misstates the harm that the person must apprehend is erroneous. See Walden,
¶ 14 The State agrees that self-defense, in the context here, requires only a subjective, reasonable belief of imminent harm from the victim. See LeFaber,
¶ 15 We disagree. In relevant part the ordinary definition of "great" is "considerable or remarkable in magnitude ... intensity, [or] degree." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 994 (2002). Thus, the term "great bodily harm" in instruction 13 told the jury that to justify using force in self-defense, apprehension of a greater degree of harm was required than mere "injury."
¶ 16 Moreover, as mentioned, the jury was also instructed on "substantial bodily harm" in connection with the second degree assault charge against Kyllo that the State had to prove. While this instruction was not erroneous, under the circumstances here it may have contributed to jury misunderstanding of the kind of harm that Kyllo had to fear before he could act in self-defense. The terms "great bodily harm" and "substantial bodily harm" might have appeared similar enough to a juror to reinforce the impression given by instruction 13 that more than mere injury had to be apprehended. See CP at 105 (Jury Instruction 19, defining "substantial bodily harm" as "bodily injury that involves a temporary but substantial disfigurement," or "temporary but substantial loss or impairment" of a bodily organ, or a "fracture" of a body part).
¶ 17 Giving an "act on appearances" instruction based on the apprehension of "great bodily harm" is improper in a case involving use of nondeadly force and a defense of self-defense. Instead, the instruction should have described apprehension of injury. Instruction 13 was erroneous and lowered the State's burden of proof.
¶ 18 The State points out, however, that in jury instruction 11 the jury was correctly instructed that a person is entitled to act in self-defense when he reasonably believes he is about to be injured and when the force used is not more than necessary. While this is true, "[j]ury instructions on self-defense must more than adequately convey the law." Walden,
¶ 19 These requirements were not satisfied in this case. Instruction 13 misstated the kind of injury that Kyllo had to reasonably apprehend in order to be able to use self-defense. Further, because the jury was given only a definition of "substantial bodily harm," the jury could have been confused and could have believed that the definition was effectively equivalent to "great bodily harm," the term used in Instruction 13. The jury instructions allowed the jury to apply an incorrect standard.
¶ 20 Next, we must determine whether proposing the erroneous instruction was deficient performance on counsel's part. At the time of trial, trial counsel's proposed "act on appearances" instruction was identical to the former 1994 pattern jury instructions, which used the term "great bodily harm." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.04 (2d ed. 1994) (WPIC).
¶ 21 As the Court of Appeals explained in a case decided subsequent to Kyllo's trial, prior to 1994, WPIC 17.04 referred to "injury" and not to "bodily harm" and provided that a person has the right to defend himself by the use of lawful force if the person, acting as a reasonably prudent person, mistakenly believes himself to be in danger of injury. L.B.,
¶ 22 In L.B., the Court of Appeals held that giving an "act on appearances" instruction based on the apprehension of "great bodily harm" is improper when the defendant raises a defense of self-defense for the use of nondeadly force. L.B.,
¶ 23 Following the decisions in L.B. and Woods, WPIC 17.04 was amended, and "great bodily harm" was replaced by "injury" to reflect the law of self-defense established by the legislature. As the Committee on Instructions stated, "The requirement of `great bodily harm' contained in the prior versions has been changed to `injury.' Under RCW 9A.16.020, one can use self-defense to prevent any assault, regardless of whether the assault threatened great bodily harm." WPIC cmt. (3d ed.2008). The Comment also advises that this WPIC applies to the use of nondeadly force, as opposed to deadly force.
¶ 24 We have had prior occasion to consider whether counsel was ineffective when proposing a standard WPIC. In Studd,
¶ 25 However, there is a significant difference between Studd and the present case. In Studd, at the time of trial the case that made it clear that the instruction at issue was erroneous, LeFaber, had not yet been decided. In contrast, at the time of Kyllo's trial there were several cases that should have indicated to counsel that the pattern instruction was flawed. First is Walden. In Walden we noted the confusion engendered by the challenged instruction's use of both the term "great bodily harm" and the term "great bodily injury."
¶ 26 Most importantly for present purposes, we concluded that because "great bodily harm" is an element of first degree assault with a specific definition in that context, this term should not be used in jury instructions on self-defense. Id. at 475 n. 3,
¶ 27 In addition to Walden, two decisions by the Court of Appeals also suggested that former WPIC 17.04 (1994) was incorrect. Rodriguez, like Walden, involved the use of deadly force in self-defense. In accord with the analysis in Walden, the court held that it was error to give the same "act on appearances" instruction given in Kyllo's case together with an instruction defining "great bodily harm." Rodriguez,
¶ 28 Finally, in State v. Freeburg,
¶ 29 The Court of Appeals expressly noted the confusion caused by use of both terms and the fact that this court had said that "great bodily harm" should not be used because it is an element of first degree assault and is distinctly defined in that context. Id. at 504-05,
¶ 30 Unlike Studd, here there was relevant case law at the time of trial that counsel should have discovered. Although these cases all deal with deadly force, they all indicate that "great bodily harm" should not be used in an "act on appearances" self-defense instruction. Walden was decided in 1997, Freeburg in March 2001, Rodriguez in April 2004, and Kyllo's trial occurred in late 2004. Further, Walden and Rodriguez would have told counsel that giving the instruction defining "substantial bodily harm" along with the "act on appearances" instruction that used "great bodily harm" was likely to misinform the jury about the law because "substantial bodily harm" is plainly not the correct standard.
¶ 31 With proper research, counsel should have determined from RCW 9A.16.020 and these cases that proposing an "act on appearances" instruction using "great bodily injury" was improper despite the term's appearance in former WPIC 17.04. Failing to research or apply relevant law was deficient performance here because it fell "below an objective *184 standard of reasonableness based on consideration of all the circumstances." McFarland,
¶ 32 We agree with Kyllo that counsel's conduct did not constitute legitimate trial strategy or tactics. In Woods the Court of Appeals was faced with an ineffectiveness claim based on proposing an instruction in accord with former WPIC 17.04. The court held that counsel's performance was deficient in light of Walden, L.B., and Freeburg, notwithstanding the fact that the proposed instruction was a pattern jury instruction. The Court of Appeals said that "there was no strategic or tactical reason for counsel's proposal of an instruction that incorrectly stated the law [and] eased the State of its proper burden of proof on self-defense." Woods,
¶ 33 Similarly, in Rodriguez, where an ineffectiveness claim was also raised, the court could not conceive of any reason why the defendant's lawyer would propose the defective instructions, since they decreased the State's burden to disprove self-defense. We agree. Counsel's performance here was deficient and was not the result of strategy or legitimate tactics.
¶ 34 The next question is whether the deficient performance prejudiced Kyllo. Self-defense was Kyllo's entire case. The record shows considerable conflicting evidence on who provoked the fight and what actually happened. If Mickens provoked the fight and if the jury believed, based on the instructions, that Kyllo had to apprehend anything greater than mere "injury" in order to act in self-defense based on his apprehension, whether mistaken or not, then this could easily have led the jury to conclude that he was not entitled to claim self-defense. Not only did the instructions tell the jury that something greater was required, both counsel at trial misstated the legal standard that applied, arguing that Kyllo needed to reasonably fear death or, at the least, "severe," "serious," or "grievous" bodily harm or injury before the right to self-defense could apply. Kyllo's own counsel argued too high a level of injury. As in Walden, reasonable jurors could read instruction 13 to prohibit consideration of self-defense unless Kyllo feared greater injury than the law requires.
¶ 35 Moreover, although the jury was correctly instructed that a person is entitled to act in self-defense when he reasonably believes he is about to be injured and when the force used is not more than is necessary, CP at 97 (Jury Instruction 11), the jury could still be misled into misapplying the law regarding self-defense because counsel's proposed instruction (instruction 13) and instruction 19 (the "substantial bodily harm" definition) require an apprehension of greater harm than is required before Kyllo could act on a mistaken belief he was about to be injured. Just as occurred in Walden, the jury was correctly instructed on the general law of self-defense but then was given erroneous "act on appearances" instructions.
¶ 36 We conclude that there is a reasonable probability that but for counsel's deficient performance the outcome of the proceedings would have been different.
¶ 37 Kyllo also contends that his counsel was ineffective for repeatedly telling the jury during closing argument that Kyllo needed to be in fear of losing his life or suffering grievous harm, rather than mere injury, in order to act in self-defense.
¶ 38 The right to effective assistance of counsel extends to closing arguments. Yarborough v. Gentry,
¶ 39 Kyllo has established that his counsel was ineffective in proposing the "act on appearances" *185 instruction without any definition letting the jury know that the defendant did not have to apprehend "great bodily harm" or "substantial bodily harm" but instead could lawfully act in self-defense if he reasonably feared "injury," and in misstating the law of self-defense during closing argument. Trial counsel's performance was deficient and Kyllo was thereby prejudiced. His conviction must be reversed and this cause remanded for a new trial.
¶ 40 Because we remand for retrial, we do not reach the second issue on which we granted discretionary review, an appearance of fairness question related to sentencing.[1]
CONCLUSION
¶ 41 Mr. Kyllo was denied effective assistance of counsel. We reverse the Court of Appeals, reverse Kyllo's conviction, and remand for retrial.
WE CONCUR: GERRY L. ALEXANDER, C.J., CHARLES W. JOHNSON, RICHARD B. SANDERS, TOM CHAMBERS, SUSAN OWENS, MARY E. FAIRHURST, JAMES M. JOHNSON, DEBRA L. STEPHENS, JJ.
NOTES
Notes
[1] We do comment on one aspect of this issue, however. The Court of Appeals found a violation of the appearance of fairness doctrine and to remedy the error remanded for resentencing before a visiting judge. To avoid any possible confusion, we emphasize that it is unnecessary for Kyllo's new trial on remand to be heard by a visiting judge.