State v. Rodriguez

87 P.3d 1201
Court of Appeals of Washington·Decided April 15, 2004·No. 20717-0-III·Published·Cited by 22 cases

Opinion

87 P.3d 1201 (2004)

STATE of Washington, Respondent,
v.
Refujio Abel RODRIGUEZ, Appellant.

No. 20717-0-III.

Court of Appeals of Washington, Division 3, Panel Three.

April 15, 2004.

*1202 James E. Egan, Attorney at Law, Kennewick, WA, for Appellant.

David W. Corkrum, Deputy Prosecuting Attorney, Pasco, WA, for Respondent.

OPINION PUBLISHED IN PART

SWEENEY, A.C.J.

Jury instructions must "more than adequately" inform the jury of the law on self-defense in order to pass appellate scrutiny. State v. Walden, 131 Wash.2d 469, 473, 932 P.2d 1237 (1997). Here, the jury could have believed that in order for Refujio Rodriguez to act in self-defense, he had to fear he was in actual danger of death or serious permanent disfigurement or loss of a body part or function. That reduced the burden on the State to disprove self-defense. We therefore reverse.

FACTS

Christopher Van Dinter confronted Refujio Rodriguez about the noise he was making outside their apartment building. Mr. Van Dinter punched Mr. Rodriguez twice in the face. Police arrested Mr. Van Dinter for the assault. The next day, using profane language, Mr. Van Dinter confronted Mr. Rodriguez's minor son about the incident.

Two days after the first assault, Mr. Rodriguez approached a group which included Mr. Van Dinter. He told Mr. Van Dinter he wanted to talk to him. Mr. Rodriguez said he wanted to be friends. Mr. Van Dinter told Mr. Rodriguez he did not want to speak with him and he was supposed to stay away from him. Both men were angry. Mr. Rodriguez left.

Mr. Rodriguez returned approximately 15 minutes later and called to Mr. Van Dinter and asked to speak to him. Mr. Van Dinter stood up. Again, he was angry. A friend *1203 restrained Mr. Van Dinter and persuaded him to talk to Mr. Rodriguez. Mr. Van Dinter and his friend met Mr. Rodriguez at the corner of the building. The conversation again grew acrimonious. Mr. Van Dinter told Mr. Rodriguez if he did not leave him alone, he was going to hit him. The friend again physically restrained Mr. Van Dinter and told him assaulting Mr. Rodriguez was not worth another trip to jail.

Mr. Van Dinter shoved Mr. Rodriguez onto the steps of the apartment. Mr. Rodriguez stumbled. Mr. Rodriguez then lifted his shirt and pulled out a knife. A scuffle ensued. Mr. Rodriguez stabbed Mr. Van Dinter in the side.

Mr. Rodriguez testified that he armed himself with a knife because he was afraid of Mr. Van Dinter. Mr. Van Dinter was younger. Mr. Van Dinter had threatened to knock his teeth out. And Mr. Van Dinter had a big ring on his finger. Mr. Rodriguez explained that he took out the knife as he was being pushed into the stairs to try to keep Mr. Van Dinter at bay. He told the jury he did not stab Mr. Van Dinter deliberately; it happened as he was trying to catch his balance and Mr. Van Dinter leaned in to get at him.

The State charged Mr. Rodriguez with one count of first degree assault while armed with a deadly weapon. The court gave the self-defense instructions requested by Mr. Rodriguez. The jury found Mr. Rodriguez guilty and returned a special verdict that he was armed with a deadly weapon.

DISCUSSION

JURY INSTRUCTIONS

Mr. Rodriguez now challenges the self-defense instructions he requested.

Invited Error. If the challenge to the instructions on appeal was simply that they were incorrect statements of the law and should not have been given, the invited error doctrine would directly answer Mr. Rodriguez's challenge. State v. Studd, 137 Wash.2d 533, 538, 973 P.2d 1049 (1999). But that is not his assignment of error. Instead, he contends that his lawyer was ineffective in proposing the instructions in the first place. And while it would seem that the defendant should not be allowed to make an end run around the invited error doctrine, the rule laid down by our Supreme Court holds otherwise:

Under the invited error doctrine, a defendant may not request that instructions be given to the jury and then complain upon appeal that the instructions are constitutionally infirm. Here, however, defendant maintains that any error that occurred was the result of ineffectiveness of counsel and therefore the invited error doctrine does not apply. Review is not precluded where invited error is the result of ineffectiveness of counsel. Defendant claims that counsel's representation was deficient because counsel failed to investigate the effective dates of the relevant statutes in connection with the factual charging period.

State v. Aho, 137 Wash.2d 736, 744-45, 975 P.2d 512 (1999) (emphasis added) (citations omitted). We must then address these instructions in the context of Mr. Rodriguez's assignment of error—the ineffective assistance of counsel.

Ineffective Assistance of Counsel. We start with the strong presumption that counsel's representation was effective. Studd, 137 Wash.2d at 551, 973 P.2d 1049. This requires the defendant to demonstrate the absence of legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wash.2d 322, 336, 899 P.2d 1251 (1995).

Mr. Rodriguez must show his lawyer's performance was deficient and that that deficiency prejudiced him. State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance is performance "`below an objective standard of reasonableness based on consideration of all the circumstances.'" Studd, 137 Wash.2d at 551, 973 P.2d 1049 (quoting McFarland, 127 Wash.2d at 334-35, 899 P.2d 1251). Mr. Rodriguez claims his counsel was ineffective for proposing flawed jury instructions. We then turn to the self-defense instructions proposed by counsel and given by the court.

*1204 Standard of Review. The legal standard we apply to jury instructions is:

Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.

State v. Irons, 101 Wash.App. 544, 549, 4 P.3d 174 (2000). But our Supreme Court subjects self-defense instructions to more rigorous scrutiny. "Jury instructions on self-defense must more than adequately convey the law." Walden, 131 Wash.2d at 473, 932 P.2d 1237. The instructions read as a whole must make the relevant legal standard "`manifestly apparent to the average juror.'" State v. Allery, 101 Wash.2d 591, 595, 682 P.2d 312 (1984) (quoting State v. Painter, 27 Wash.App. 708, 713, 620 P.2d 1001 (1980)). The precedent, the principle, and indeed the reasons for singling out this particular typ

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State v. Rodriguez, 87 P.3d 1201 (Wash. Ct. App. 2004).

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