State v. McHenry , 88 Wash. 2d 211 ( 1977 )

Utter, J.

Betty Joyce McHenry, respondent herein, was found guilty by a jury of the crime of unlawful possession of a controlled substance as defined in RCW 69.50.401(c). The Court of Appeals reversed that conviction in State v. McHenry, 13 Wn. App. 421, 535 P.2d 843 (1975). We affirm the opinion of the Court of Appeals.

Respondent argued to the Court of Appeals that the trial court committed error which deprived her of fundamental constitutional guaranties by (1) failing to adequately inform the jury the burden of proof was upon the State to prove each element of the crime with which she was charged beyond a reasonable doubt, (2) failing to define what reasonable doubt was, and (3) failing to inform the jury she was presumed innocent until proven guilty.

The material facts as set forth in the Court of Appeals opinion, at page 422, are as follows:

Defendant presented no testimony at trial to dispute the facts adduced by the state's witnesses. It is uncon-troverted that officers of the Tacoma Police Department conducted a lawful search of a Tacoma residence pursuant to a warrant. Defendant and several others were found in the house. A codefendant, one James Thompson, was handcuffed after attempting to draw a pistol on one of the officers. Betty McHenry then pushed her way to his side, took a white slip of paper from his hands, and attempted to swallow it. The paper was retrieved from her mouth and was found to contain heroin.

Respondent's trial counsel (not counsel on appeal) did not except to the court's complete failure to instruct on the presumption of innocence or to the court's failure to isolate and define the requirement of proof beyond a reasonable doubt.

The Court of Appeals squarely faced the quandary presented by this case, at page 426.

It would be possible for us to conclude that the case against Betty McHenry is so unequivocal that a reversal will merely delay the inevitability of an errorless conviction. However, we believe that it would be a greater miscarriage of justice for us to fail to require jury instructions necessary to minimum standards of due process in all criminal trials. The constitutional right to a fair trial means no less.

It is regrettable that the State will be put to the expense of another trial. But to the extent that a reversal of this case will highlight the necessity for inclusion of fundamental doctrines in matters pertaining to criminal justice, it will have served a useful purpose.

Petitioner argues this court should refuse to consider assignments of error directed against the court's failure to give instructions defining the presumption of innocence, the burden of proof in criminal cases, and reasonable doubt, where no instructions were requested and no exception was taken to the failure to give them. Seattle v. Love, 61 Wn.2d 113, 377 P.2d 255 (1962). In Love, there was no discussion of the reason for the rule and the court only stated, at page 114, " [i]t is well settled that, in the absence of a request to instruct, the court's failure to do so is not error." State v. Louie, 68 Wn.2d 304, 413 P.2d 7 (1966). This rule, however, has been subsequently eroded. State v. Peterson, 73 Wn.2d 303, 306, 438 P.2d 183 (1968); State v. McDonald, 74 Wn.2d 474, 445 P.2d 345 (1968). There we recognized an appellate court will consider an error raised for the first time when "an instruction invades a constitutional right of the accused (such as the right to a jury trial) ..." State v. Peterson, supra at 306. We have also recently indicated we will consider error amounting to nondirection where the error was not called to the court's attention and it related to constitutional rights raised for the first time on appeal. The error we considered on appeal, to which no request for an instruction was directed to the trial court, concerned the failure to require a unanimous verdict. State v. Carothers, 84 Wn.2d 256, 262, 525 P.2d 731 (1974).

The failure of the court to state clearly to the jury the definition of reasonable doubt and the concomitant necessity for the State to prove each element of the crime by that standard is far more than a simple procedural error, it is a grievous constitutional failure.

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). The court in Winship proceeded to explain the policy reasons for its insistence upon the constitutional stature of the reasonable doubt standard, at page 363:

The standard provides concrete substance for the presumption of innocence — that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law." ... "a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case."

As noted in Winship, the presumption of innocence is likewise fundamental to a fair trial (Coffin v. United States, 156 U.S. 432, 39 L. Ed. 481, 15 S. Ct. 394 (1895)), and has been repeatedly stated to be fundamental by both the legislature and the judiciary. RCW 10.58.020; State v. Odom, 83 Wn.2d 541, 520 P.2d 152 (1974).

Although the juror's handbook alluded to the necessity of the prosecution proving its case beyond a reasonable doubt, this cannot seriously be argued to be a substitute for the court's instructions to the jury. In the juror's handbook they are told on pages 10-11, "[t]he meaning of 'reasonable doubt' will be defined in the instructions of the court." This was not done.

The judgment is reversed and the case remanded for new trial.

Stafford, C.J., and Brachtenbach, Horowitz, and Dolliver, JJ., concur.