ymiEv X 'N CLEHKt omee X This opinioh wasfiled for record 8U>RBE coun;SniE OP mSHMSTQN aw.fi!i n ■ o,l\^r^y,3rwje I DATE DEC 2 7 ?flia 1 cmeF JUSTICE rV ^. SUSAN lMrlSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 95194-2 Respondent,
V. En Banc
JOHN ANTHONY CHACON,
Petitioner. Filed flFF 2 7 WH J
MADSEN,J.—John Chacon seeks reversal of an unpublished Court of Appeals
opinion affirming his conviction for second degree assault and criminal trespass. At trial,
the judge instructed the jury on reasonable doubt, using 11 Washington Practice:
Washington Pattern Jury Instructions: Criminal 4.01, at 93 (4th ed. 2016)(WPIC), but
omitted the last sentence of that instruction, which states,"The defendant has no burden
of proving that a reasonable doubt exists." See Clerk's Papers(CP)at 30-31, 66.'
Chacon failed to object to the instruction but argues that the omission is a manifest
constitutional error, which may be reviewed for the first time on appeal pursuant to RAP
'It is not clear why the sentence was omitted. The State's proposed instruction included the sentence, and Chacon claims he did too, although his proposed instructions are not in the appellate record. No. 95194-2
2.5(a)(3). Further, relying on Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124
L. Ed. 2d 182(1993), Chacon claims the error is not subject to a harmless error analysis.
We hold the instruction given here was not manifest constitutional error and affirm
Chacon's conviction.
FACTS
Chacon was charged with second degree assault and first degree criminal trespass,
following an altercation and subsequent arrest at the Olympia Senior Center. At trial, the
State and defense both provided the court with proposed jury instructions, and the State
specifically provided the court with WPIC 4.01, the burden of proof instruction.
However,the instruction to the jury did not include the last sentence of the instruction, as
mentioned above.
ANALYSIS
RAP 2.5(aX3)
Chacon did not object to the court's reasonable doubt instruction. Ordinarily, we
do not consider unpreserved errors raised for the first time on review. State v. Scott, 110
Wn.2d 682, 685, 757 P.2d 492(1988). However, manifest errors affecting a
constitutional right may be raised for the first time on appeal. RAP 2.5(a)(3); In re
Dependency ofM.S.R., 174 Wn.2d 1, 11,271 P.3d 234(2012). Chacon argues that he is
entitled to review under RAP 2.5(a)(3) because the omission of language in the
reasonable doubt instruction was manifest constitutional error.
To determine whether manifest constitutional error was committed there must be
'"a plausible showing by the [appellant] that the asserted error had practical and No. 95194-2
identifiable consequences in the trial of the case.'" State v. O'Hara, 167 Wn.2d 91, 99,
217 P.3d 756(2009)(alteration in original)(internal quotation marks omitted)(quoting
State V. Kirhnan, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)).
Some jury instruction errors have been held to constitute manifest constitutional
error in this state such as shifting the burden of proof to the defendant. State
V. McCullum, 98 Wn.2d 484, 487-88,656 P.2d 1064(1983)(plurality opinion); omitting
an element of the crime charged. State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145
(1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000
(1985); and failing to define the "beyond a reasonable doubt" standard. State v. McHenry,
88 Wn.2d 211, 214, 558 P.2d 188 (1977), among others. See O'Hara, 167 Wn.2d at 100-
01. In contrast, this court has held that failing to instruct on a lesser included offense.
State V. Kwan Fai Mak, 105 Wn.2d 692, 745-49, 718 P.2d 407(1986), and failing to
define individual terms, Scott, 110 Wn.2d at 690-91, do not constitute manifest
constitutional errors. This court has not yet considered whether failing to inform the jury
that the defendant bears no burden to prove that a reasonable doubt exists constitutes
manifest constitutional error.
Constitutional Requirements
The Sixth Amendment to the United States Constitution requires that "[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury." U.S. CONST,amend. VI. It is well settled that the right to a jury trial is a
fundamental right, essential to a fair trial. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.
Ct. 1444, 20 L. Ed. 2d 491 (1968). "The right includes, of course, as its most important No. 95194-2
element, the right to have the jury, rather than the Judge, reach the requisite finding of
'guilty.'" Sullivan, 508 U.S. at 277 (citing 5/>ar/v. United States, 156 U.S. 51, 105-06,
15 S. Ct. 273, 39 L. Ed. 343 (1895)). "What the faetfinder must determine to return a
verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the
burden of proving all elements ofthe offense charged and must persuade the faetfinder
'beyond a reasonable doubf ofthe facts necessary to establish each of those elements."
Id. at 277-78 (citations omitted).
To satisfy due process under the Fourteenth Amendment,the prosecution bears the
burden of proving every element of every crime beyond a reasonable doubt. U.S. CONST,
amend. XIV; Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979);In re Winship, 397 U.S. 358, 364,90 S. Ct. 1068, 25 L. Ed. 2d 368(1970). It is
well settled that the beyond a reasonable doubt standard is required for due process, but
the constitution neither prohibits courts from defining reasonable doubt nor does it
require them to do so. Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d
583 (1994).
Similarly, the presumption of innocence in favor ofthe accused is '"axiomatic and
elementary'" and "is a basic component of a fair trial under our system of criminal
justice." Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691,48 L. Ed. 2d 126(1976)
(quoting Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481 (1895)).
However, in Kentucky v. Whorton, the Supreme Court held that the due process clause of
the Fourteenth Amendment does not even absolutely require that an instruction on the No. 95194-2
presumption of innocence be given.^ 441 U.S. 786, 789-90, 99 S. Ct. 2088,60 L. Ed. 2d 640(1979). Instead, such failure must be evaluated in light ofthe totality of
circumstances. Id. at 789.
In Victor, the Supreme Court considered two separate jury instructions. The
instructions for defendant Sandoval did not state that the defendant bore no burden to
show a reasonable doubt existed. In defendant Victor's instructions, there was a
provision similar to WPIC 4.01, where the State's burden of proof"'never shifts.'"
Victor, 511 U.S. at 7, 18. In both cases, that court found the jury instructions were
constitutional. What Victor makes clear is that due process is primarily concerned that
the jury understands the State's burden of proof—^that the State must prove each element
of each charged crime beyond a reasonable doubt.
Manifest Error
The Sixth and Fourteenth Amendments collectively require that a jury is instructed
on the proper burden of proof and the defendant's presumption of innocence, and that a
jury verdict is the result of a complete understanding of those requirements. Thus, in
^ The dissent seems to suggest we are relying on Whorton to justify the omission of the last sentence in WPIC 4.01. See dissent at 3. We are not. We cite it simply to reiterate due process requirements under the United States Constitution. Wharton held that failing to instruct on the presumption of innocence is not per se reversible error. We have taken the same approach in In re Personal Restraint ofLite, 100Wn.2d224,228,668 P.2d 581 (1983). However, it is unnecessary to engage in a "totality of the circumstances" analysis a la Whorton. The presumption of innocence was clearly instructed to the jury. The jury instruction read,"A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt." CP at 31. There was no "lingering ambiguity" in the presumption of innocence instruction. See dissent at 4 n.1. No. 95194-2
order for Chacon to show manifest constitutional error, he must prove his complaint falls
under one of these principles.
Here, Chacon complains that the jury instruction deviates from WPIC 4.01, which
provides:
[The][Each] defendant has entered a plea of not guilty. That plea puts in issue every element of[the][each] crime charged. The [State] [City][County] is the plaintiff and has the burden of proving each element of[the][each] crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists [as to these elements]. A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. [If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.]
WPIC 4.01 at 93. The trial court omitted the last sentence: "The defendant has no
burden of proving that a reasonable doubt exists." See CP at 30-31, 66. Relying on State
V. Bennett, 161 Wn.2d 303, 165 P.3d 1241 (2007), Chacon urges that the failure to
instruct the jury using WPIC 4.01, as directed by this court, is reversible constitutional
error. We disagree.
In Bennett, the court was urged to invalidate a reasonable doubt instruction called
a ''Castle instruction," so named for the case that approved it. State v. Castle, 86 Wn.
App. 48, 935 P.2d 656 (1997).^ Specifically, Bennett argued that the phrases "real
^ The Castle instruction in Bennett reads as follows: The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. No. 95194-2
possibility" and "every possible doubt" used in the Castle instruction are not inherently
prejudicial but become so if the other words in the instruction fail to clarify their
meaning. Bennett, 161 Wn.2d at 315. Thus, in Bennett, the court was focused on the
language "real possibility" and "every possible doubt" relating to the State's burden of
proof. We held that the language used there did not violate the Constitution but exercised
our inherent supervisory powers in mandating the use of WPIC 4.01. Id. at 316-17.
Specifically, we stated:
We have approved WPIC 4.01 and conclude that sound judicial practice requires that this instruction be given until a better instruction is approved. Trial courts are instructed to use the WPIC 4.01 instruction to inform the jury of the government's burden to prove every element of the charged crime beyond a reasonable doubt.
Mat 318.
In Bennett, we did not mandate WPIC 4.01 because we believed it to be the
minimum constitutional requirement. We did so to promote uniformity and simplicity in
defining a core concept of our justice system. Id. We did not hold that failure to instruct
A defendant is presumed iimocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced ofthe defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration ofthe evidence, you are firmly convinced that the defendant is guilty ofthe crime charged, you must find him guilty. If on the other band, you think there is a real possibility that be is not guilty, you must give him the benefit ofthe doubt and find him not guilty. Bennett, 161 Wn.2d at 313. No. 95194-2
in the words of WPIC 4.01 is a constitutional error, but we did instruct courts to use the
WPIC instruction as it is a "clear, simple, accepted, and uniform instruction." Id.
The dissent argues it is error to examine the omission standing alone and we must
consider the totality ofthe circumstances in evaluating whether there is manifest
constitutional error. See dissent at 3-4. Yet Chacon raised a claim of error on the jury
instruction alone, not the prosecutor's remarks at trial. RAP 2.5(a)(3) dictates that we
focus on the claim of error."^
As explained above, the Constitution requires that a jury is informed of the State's
burden of proof and that the defendant is presumed innocent until proved guilty. The jury
instructions given in this case adequately relayed the State's burden of proof beyond a
reasonable doubt and the defendant's presumption of innocence. The omitted language
reinforces that the burden of proof rests entirely on the State. The instruction, as given
here, did not amount to constitutional error.^
In arguing to the contrary, Chacon relies on State v. Castillo, 150 Wn. App. 466,
208 P.3d 1201 (2009), and State v. Lundy, 162 Wn. App. 865, 256 P.3d 466 (2011). In
Castillo, the trial court opted not to use WPIC 4.01 over the defendant's objections. 150
Wn. App. at 470. Division One of the Court of Appeals reversed, stating that "there is
The dissent decries our approach as based in "procedure." See dissent at 5. But Chacon relies on a procedural remedy to provide recourse due to his failure to object at trial. Thus, we must work within the framework of the asserted procedure to determine if we can provide the petitioner relief. RAP 2.5(a)(3) requires that the defendant "show how the alleged error actually affected the defendant's [constitutional] rights at trial." Kirkman, 159 Wn.2d at 926-27 (emphasis added). ^ Division Two has also held that failing to provide the Bennett instruction is not an error of constitutional magnitude. See State v. Jimenez Macias, 171 Wn. App. 323, 331, 286 P.3d 1022 (2012).
8 No. 95194-2
nothing ambiguous about the supreme court's directive: trial courts are to use only WPIC
4.01 as the reasonable doubt instruction 'until a better instruction is approved.'" Id. at
472(boldface omitted). However, the court did not hold that failure to instruct using
WPIC 4.01 was itself constitutional error. Rather, the court found several flaws in the
trial court's instruction. First, the court noted the jury instruction given lacked an
equivalent to the last sentence of WPIC 4.01, which in context was significant because
the prosecutor's cross-examination and closing argument suggested that Castillo had an
obligation to prove a witness was lying. Id. at 473. Second, the court was concerned
with use ofthe word "ingenious."® It noted the difference in two dictionary definitions of
that word, that the difference in the meanings was problematic, and that one or more of
the definitions might be obsolete and misleading to the jury. Id. at 473-74. Thus, the
court rejected the State's harmless error argument and found reversible error based on the
trial court's failure to use WPIC 4.01 in defiance of this court's mandate and failing to
provide a superior alternative to that jury instruction. Id. at 472-73.
Castillo does not support Chacon's argument for manifest constitutional error.
First, the instruction in that case bears no resemblance to the instruction here. Second,
® The instruction in Castillo read, in part, A "reasonable doubt" is not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving caused by insufficiency of proof of guilt. Proof beyond a reasonable doubt does not mean proof to an absolute or mathematical certainty, but it does mean proof which leaves you firmly convinced ofthe defendant's guilt. The proof need not exclude every hypothesis or possibility of innocence, but proof beyond a reasonable doubt must exclude every fair and rational hypothesis except that of guilt. Castillo, 150 Wn. App. at 470-71. No. 95194-2
the Castillo court did not end its discussion with its reminder that courts have been
instructed to use WPIC 4.01. Instead, the court analyzed the instruction given in light of
the Constitution's due process requirements. Third, the defendant in Castillo timely
objected and, therefore, the Court of Appeals did not consider whether giving the
instruction was manifest constitutional error.
Chacon also argues that if this court rejects what he describes as Castillo's
automatic reversal rule, then we should follow Lundy and apply a harmless error analysis.
He contends the error in his trial was not harmless. Similar to this ease, in Lundy the
court examined a modified WPIC 4.01 jury instruction that was unobjected to by the
defendant.^ While the court determined it was improper to modify WPIC 4.01, it also
noted that doing so "[does not] automatically eonstitute[] reversible error." Lundy, 162
Wn. App. at 872. The court in Lundy applied a constitutional harmless error analysis and
concluded the defendant was not prejudiced by the modified jury instruction. Id. at 872-
73. In the proper case we might find Lundy persuasive. However, we believe in the
^ The jury instruction read: A defendant is presumed innocent. This presumption continues throughout the entire trial unless you find during your deliberations that it has been overcome by evidence beyond a reasonable doubt. Each crime charged by the State includes one or more elements which are explained in a subsequent instruction. The State has the burden of proving each element of a charged crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt. Lundy, 162 Wn. App. at 870-71. Essentially, compared to WPIC 4.01, the first two paragraphs are switched in the trial court's instruction.
10 No. 95194-2
absence of an objeetion, the proper analysis is to determine whether the claimed error
was manifestly unconstitutional.
Manifest constitutional error requires a showing that the alleged error itself had
"practical and identifiable consequences." Here, the instruction given by the trial eourt
did not misinform the jury ofthe State's burden of proof, as the evidentiary standard was
explicitly relayed to the jury. The omitted provision only reinforces and reiterates to the
jury that the burden of proof lies entirely with the proseeution. We find no manifest
constitutional error.
CONCLUSION
The instruction given in this case, omitting language that the defendant bears no
burden of proving a reasonable doubt exists, does not violate the Sixth and Fourteenth
Amendments and is not manifest eonstitutional error.
11 No. 95194-2
WE CONCUR:
f/Md
12 State V. Chacon
No. 95194-2
GonzAlez, J.(dissenting)—"This court, as guardians of all constitutional
protections, is vigilant to protect the presumption of innocence." State v. Bennett,
161 Wn.2d 303, 316, 165 P.3d 1241 (2007). In exercising our role as guardians,
we recognize that the presumption ofinnocence is "too fundamental, too central to
the core ofthe foundation of our justice system not to require adherence to a clear,
simple, accepted, and uniform [presumption of innocence] instruction." Id. at 318.
In John Chacon's case, the jury was not instructed on a crucial aspect ofthe
presumption:"The defendant has no burden of proving that a reasonable doubt
exists." Clerk's Papers at 30-31, 66. "In determining whether a claimed error is
manifest, a reviewing court should view the error in the context ofthe record as a
whole, rather than in isolation." State v. Burke, 163 Wn.2d 204, 224, 181 P.3d 1
(2008)(Madsen, J., dissenting)(citing State v. Scott, 110 Wn.2d 682, 688, 757
P.2d 492(1988)). The majority fails to properly apply this approach. If it had, it
would find manifest constitutional error. RAP 2.5(a)(3). I respectfully dissent. State V. Chacon, No. 95194-2(Gonzalez, J., dissenting)
Here, neither party objected to the incomplete instruction. The record
suggests the parties mistakenly believed the court gave the entire reasonable doubt
pattern jury instruction. The court's failure to give a complete instruction on the
burden of proof implicates the constitutional right to a fair trial. The State's
burden of proof beyond a reasonable doubt is "the bedrock principle of the
presumption ofinnocence, the foundation of our criminal justice system." State v.
Warren, 165 Wn.2d 17, 27, 195 P.3d 940(2008)(prosecutor's argument was
improper because it undermined the presumption ofinnocence).
The omission alone may not be enough to show manifest constitutional
error. But here, during closing argument, the prosecutor misstated the burden of
proof by telling the jurors that finding no reasonable doubt meant they believed
Chacon "did it." Report ofProceedings(RP)at 514. In response, defense counsel
informed the jury that the defendant did not have a burden to prove reasonable
doubt, but, during rebuttal, the prosecutor suggested that conviction was required
because the defendant failed to provide evidence of his innocence. See id. at 561,
581-82.
The court's omission in the jury instructions affected Chacon's
interconnected constitutional rights given the closing arguments in this case. U.S.
Const, amends. VI, XIV; Wash. Const, art. I, §§ 3,22. Chacon was tried with an
incomplete reasonable doubt instruction, and since the prosecutor repeatedly State V. Chacon, No. 95194-2(Gonzalez, J., dissenting)
misstated the burden, the alleged error is sufficiently manifest and demands
review. The trial court omitted a sentence from Washington Pattern Jury
Instructions: Criminal 4.01 (WPIC)regarding the defendant's lack of burden to
establish reasonable doubt. Bennett, 161 Wn.2d at 317-18. Both parties agree the
court should have used the complete language of WPIC 4.01, including the
sentence regarding defendant's lack of burden. So do we. The error, coupled with
the improper arguments, had "practical and identifiable" consequences at trial:
jurors were misinformed about the burden of proof. State v. Lamar, 180 Wn.2d
576,583,327 P.3d46(2014).
The majority relies on Kentucky v. Whorton for the proposition that due
process "does not even absolutely require that an instruction on the presumption of
innocence be given." Majority at 4 {citing Kentucky v. Whorton, 441 U.S. 786,
789-90, 99 S. Ct. 2088, 60 L. Ed. 2d 640(1979)). "Instead, such failure must be
evaluated in light of the totality of circumstances." Id. at 5. The majority focuses
on whether the omission, standing alone, constituted prejudice. See id. at 5-10.
This is wrong.^ The jury must understand that the State must prove the defendant
guilty beyond a reasonable doubt and that the defendant has no burden of proof
'The majority says Chacon "raised a claim of error on the jury instruction alone, not the prosecutor's remarks at trial." Majority at 8. I disagree, ffe limited our review in this case to WPIC 4.01. Order, No. 95194-2(Feb. 7, 2018); Suppl. Br. ofPet'r at 17 n.10. Chacon argued the prosecutor's remarks at trial prejudiced him. See Pet. for Review at 18; Suppl. Br. of Pet'r at 17-18. Our analysis of the prosecutor's remarks goes to whether, given the cumulative effective of the remarks and the instructional error, Chacon is entitled to relief. State V. Chacon, No. 95194-2(Gonzalez, J., dissenting)
whatsoever. See Bennett, 161 Wn.2d at 318 ("Trial courts are instructed to use the
WPIC 4.01 instruction to inform the jury of the government's burden to prove
every element ofthe charged crime beyond a reasonable doubt.").^ Further, we
must consider "the totality of the circumstances," including "all the instructions to
the jury, the arguments of counsel, whether the weight ofthe evidence was
overwhelming, and other relevant factors." Whorton,441 U.S. at 788-89.
In this case, the evidence was not overwhelming; it was "contradictory and
inconclusive," and therefore,"correct[]place[ment of] the burden ... was vital" to
the outcome.^ In re Pers. Restraint ofLile, 100 Wn.2d 224, 229,668 P.2d 581
(1983). As discussed, the prosecutor misstated the burden of proofrequirement in
both closing argument and rebuttal, suggesting the jury should find guilt if the jury
^ The simultaneously complex and crucial nature of the reasonable doubt instruction is a likely reason why all published federal pattem jury instructions include language specifying the defendant's lack of burden in addition to instructions on the State's burden of proof. Moreover, a majority of states with published jury instructions include this language as well. Empirical research and the national trend ofrobustjury instructions highlight the need to instruct juries on the State's burden of proofand the defendant's lack of burden. A study of postverdict jurors found that nearly one-third ofthe jurors believed as long as the State presents some evidence,"it becomes the defendant's responsibility to persuade the jury of his [or her] innocence." Lawrence M. Solan, Refocusing the Burden ofProofin Criminal Cases: Some Doubt about Reasonable Doubt,78 Tex. L. Rev. 105, 119-20(1999)(citing Bradley Saxton,How Well Do Jurors Understand Jury Instructions? A Field Test Using Real Juries and Real Trials in Wyoming, 33 Land & Water L. Rev. 59(1998)). The majority declares,"The omitted provision only reinforces and reiterates to the jury that the burden of prooflies entirely with the prosecution." Majority at 11. This is demonstrably false. Lingering ambiguity in any instruction is contrary to the presumption ofinnocence and would only serve to confuse the jury. ^ The parties disputed whether Chacon caused Officer Davis' injury. The other officers present did not see Chacon strike Officer Davis, and Officer Davis' doctor was uncertain ofthe cause of the injury. State V. Chacon, No. 95194-2(Gonzalez, J., dissenting)
believed Chacon "did it." RP at 514. But it is possible to believe Chacon "did it"
yet also have a reasonable doubt that it was proved beyond a reasonable doubt.
Confronted with an omitted instruction, it is the "combined effect in light ofthe
particular nature of this case that constitutes actual prejudice." Lile, 100 Wn.2d at
229. Thus, Chacon shows that the incomplete instruction prejudiced him. He is
entitled to review, and he is entitled to relief.
When a jury fails to receive a complete instruction—and the totality of the
circumstances indicate due process was violated—such an error represents a
manifest injustice affecting a constitutional right. Chacon's fundamental due
process rights deserve consideration on the merits, not disposal by procedure. The
majority's holding eviscerates Bennett:jury instructions shall include a statement
that the defendant has no burden whatsoever. 161 Wn.2d at 318. Respectfully, I
dissent. State V. Chacon, No. 95194-2(Gonzalez, J., dissenting)