    Fl LE



   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,        )
                            )                 No. 88945-7
               Respondent,  )
                            )
       v.                   )                 EnBanc
                            )
RONALD MEL YIN MENDES       )
a/k/a RONALD JOSEPH MENDES, )
                            )
               Petitioner.  )
                            )                 Filed         APR 1 0 2014


      C. JOHNSON, J.-The central issue in this case is whether Ronald Mendes

was "compelled" to waive his constitutional right not to testify as a witness in his

own criminal case after the trial court refused to rule on whether the evidence

presented during the State's case in chief entitled Mendes to a self-defense

instruction. Mendes challenges his conviction for felony murder based on

allegations that he shot and killed Danny Saylor after an altercation at Saylor's

home. At trial, Mendes's theory of the case was that he acted in self-defense after

Saylor came at him with a baseball bat. After the State rested, Mendes's counsel

asked the court to make a preliminary ruling on whether enough evidence had been
State v. Mendes (Ronald M), No. 88945-7


presented through the State;s witnesses to warrant a self-defense instruction.

Counsel explained that Mendes did not wish to testify unless the court found that

more testimony was necessary on this issue. The State objected, and the trial court

declined to rule on Mendes's request. Mendes then testified on his own behalf.

Mendes was convicted of felony murder. 1 On appeal, Mendes argued that the trial

court improperly compelled him to testify when it declined to rule on whether the

State's evidence alone entitled him to a self-defense instruction. The Court of

Appeals rejected this argument and held that Mendes was not entitled to an

advisory ruling on jury instructions before the close of all the evidence and that

Mendes's decision to te,stify was voluntary and tactical. We affirm.

                          FACTS AND PROCEDURAL HISTORY

      Mendes met Lori Palomo in October 2007, when Palomo was temporarily

estranged from her long-term and live-in boyfriend, Saylor. Palomo and Mendes

engaged in a three·· week intimate relationship that ended when Palomo returned to

live with Saylor. Even though Saylor and Palomo were back together, Mendes

occasionally came to Saylor's house to see Palomo. All three were

methamphetamine users.




       1Mendes was also convicted of a firearm enhancement and four counts of witness
tampering but did not challenge those convictions.


                                             2
State v. Mendes (Ronald M), No. 88945-7


      One night, while Palomo's car was parked at Saylor's house, someone

vandalized it. Palomo and Saylor suspected Mendes was the vandal and thereafter,

Saylor did not want Mendes to come over. Palomo asked Mendes not to come

around anymore.

    · On January 27, 2008, Mendes returned to Saylor's house armed with a

loaded .45 caliber gun. Charles Bollinger, one of three house guests of Saylor's,

met Mendes at the front door. Bollinger advised Mendes that he should not be at

the home. Bollinger and Mendes went to a gas station and then returned to the

home. During their trip to the gas station, Mendes showed Bollinger the gun. Upon

returning to the house, Bollinger woke Saylor to inform him that Mendes was in

the house. McKay Brown, another house guest, advised Mendes to leave, but he

did not leave.

      Learning that Mendes was in the house, Saylor dressed and went to the front

room. A brief "ruckus" occurred, in which Saylor pushed Mendes against the front

door and the two swung at each other. 7 Verbatim Report of Proceedings (VRP)

(Apr. 25, 2011) at 324. Mendes then aimed the gun at Saylor and said, "I'll smoke

you, mother fucker." 8 VRP (Apr. 26, 2011) at 456. Saylor left the front room to

find his baseball bat, and Bollinger yelled at Mendes again to leave.
'         .'            '




      During this time, Mendes claims that he tried to leave but could not move

quickly because of a bad hip and at one point, he paused because he thought he

                                          3
    State v. Mendes (Ronald M), No. 88945-7


    dropped his methamphetamine. When Saylor returned to the front room with the

    bat in the air, Bollinger had Mendes near the front doorway. Mendes saw Saylor

    coming toward him with the bat in the air. Mendes immediately shot Saylor in the

    chest, killing him.

          The jury found l\1endes guilty of second degree murder and guilty of

    unlawful possession ofa firearm. IVIendes appealed and in an unpublished opinion,

4   the Court of Appeals reversed his conviction. The Court of Appeals reversed

    because Mendes's trial counsel was ineffective for failing to request a revived self-

    defense jury instruction, and because the trial court erred in failing to instruct the

    jury that it could acqui~ Mendes of second degree murder if it found that he acted

    in self-defense when he committed the predicate assault. 2

           On remand and by amended information, the State charged Mendes with

    second degree intentional murder) second degree felony murder, and four counts of
                        .       .,




    w~tness    tampering. After the State's case in chief, Mendes asked the trial court

    whether he would be entitled to a self-defense instruction based on the State's

    evidence alone. The trial court declined to decide the motion until both sides

    rested. Mendes testified but told the court that his testimony would be given over

    his standing objection and that his decision to testify was based on the court's



           2
               State v.. Mendes, noted at 156 Wn. App. 1059 (2010).


                                                     4
State v. 1\IIendes (Ronaldfl/1), No. 88945-7


ruling. The jury convicted Mendes of second degree felony murder, the firearm

enhancement, and four counts of witness tampering. Mendes was sentenced to 517

months. Mendes appealed the felony murder conviction. The Court of Appeals

affirmed. We granted review only on the issue of compelled testimony. State v.

Mendes, 178 Wn.2d 1010,311 P.3d26 (2013).

                                           ANALYSIS

    1. Ruling on Jury Instructions

       ·The· first question presented is whether, upon motion by the defendant, a trial

court must give a ruling on jury instructions before the close of all the evidence.

Criminal Court .Rule (CrR) 6.15(a) 3 tells us when parties must offer proposed jury
                            .




instructions~     but neither this rule nor other court rules tell us whether a court is

required to decide if a defendant is entitled, upon request, to a self-defense

instruction at the close of the State's case.




--------.- . . . .-=------·-·_·_;;..
      ..
         3
          CrR 6.15(a) provides, "Proposed Instructions. Proposed jury instructions shall be
served and filed when a case is called for trial by serving one copy upon counsel for each party,
by filing one copy with the clerk, and by delivering the original and one additional copy for each
party to the trial judge. Additional instructions, which could not be reasonably anticipated, shall
be served and filed at any time before the court has instructed the jury.
        "Not less than 10 days before the date of trial, the court may order counsel to serve and
file proposed instructions not less than 3 days before the trial date.
        "Each proposed instruction shall be on a separate sheet of paper. The original shall not be
numbered nor include citations of authority.
        "Any superior court may adopt special rules permitting certain instructions to be
request(3d by number from any published book of instructions."


                                                 5
State v. Mendes (Ronald M), No. 88945-7


      Mendes argues .that nothing in the court rules forbids a trial court from ruling

ort ~his sort of motion. He cites State v. Maurer, 34 Wn. App. 573, 576, 663 P.2d

152 (1983), for the proposition that even when no statute or rule authorizes the

specific action, it does not follow that the court is powerless to act. On the other

hand, he cites no rule or statute mandating that a trial judge rule on jury

iristructions before all of the evidence is presented.

J     Mendes also argues that in a criminal trial a defendant may challenge the

sufficiency of the evidence at several points throughout the proceeding, including

before trial and at the end of the State's case in chief. State v. Knapstad, 107

Wn.2d 346, 356-57, 729 P.2d 48 (1986). We find Mendes's reliance on Knapstad

misplaced. While it is true that the trial court may rule on the sufficiency of the

evidence at the end of the State's case in chief, the rule in Knapstad is consistent

with CrR 8.3(b ). CrR 8.3(b) provides in relevant part that "[t]he court, in the

furtherance of justice, after notice and hearing, may dismiss any criminal

prosecution due to arbitrary action or governmental misconduct." There is no

equivalent rule requiring a trial court to decide if a defendant is entitled to a self-

defense instruction at the close of the State's case. As mentioned above, CrR 6.15




                                            6
State v. Mendes (Ronald 1\!/.), No. 88945-7


is the only rule regarding jury instructions in criminal cases and it is silent on the
.        4
ISSUe.


             We hold that upon motion by either party, a trial court has discretion to give

a preliminary ruling on jury instructions at any time during trial, but nothing

supports the conclusion that a trial court must make a ruling on jury instructions

before all parties have rested. CrR 6.15( a) contemplates that jury instructions be

~ubrnitted       before trial and that the jury instructions could be settled before trial.

The rule also contemplates that jury instructions can be submitted and discussed

during the presentation of evidence or even during jury deliberations. We note that

"it is error to give an instruction which is not supported by the evidence." State v.

Benn, 120 Wn.2d 631, 654? 845 P.2d 289 (1993) (citing State v. Hughes, 106

Wn.2d 176, 191, 721 P.2d 902 (1986)). Given this, and given CrR 6.15(a) is silent
                             '               '




as to when a trial court must make a ruling on jury instructions, we hold that a trial

court has discretion as to when to rule on jury instructions.

    2. "Compelled" Testimony

             The second question presented is whether Mendes was compelled to testify

in violation of his constitutional rights after the court declined to rule whether the

State's evidence alone entitled him to a self-defense instruction. The Fifth


             4
         The denial of a defendant's request to have the trial court decide a midtrial request on an
instruction is not error requiring a new trial.


                                                  7
State v. Mendes (Ronald M), No. 88945-7


 Amendment to the federal constitution provides that "[n]o person ... shall be

 compelled in any criminal case to be a witness against himself' and article I,

 section 9 of the Washington State Constitution provides that "[n]o person shall be

 compelled in any criminal case to give evidence against himself." We interpret

 these two constitutional provisions consistently. State v. Unga, 165 Wn.2d 95, 100,

 196 p .3d 645 (2008).

·~             '(,'The use of the word "compelled" connotes that the accused must be forced

 to testify against his will, that the testimony is exacted under compulsion and over

 his . objection."' State v. VanAuken, 77 Wn.2d 136, 138, 460 P.2d 277 (1969)
  .        .              .         '




 (quoting State v. Jeane, 35 Wn.2d 423, 433, 213 P.2d 633 (1950)). The right

 against self-incrimination is intended to prohibit the inquisitorial method of

 investigation in which the accused is forced to disclose the contents of his mind or

 speak:his guilt. At trial, the right against self-incrimination generally prohibits the

     State from forcing the defendant to testify. State v. Easter, 130 Wn.2d 228, 236,
       .                '   .

     922 P.2d 1285 (1996).

               Very few recent cases exist where a defendant has been found to be

     "compelled" to testify in violation of their constitutional rights. 5 In State v. Foster,



               5
             ltl. fact, many cases dealing with compelled, in court testimony discuss when a
     defendant can be compelled to testify under a grant of immunity. See, e.g., State v. Carroll, 83
     Wn.2d 109, 112, 515 P.2d 1299 (1973).
           '       .'




                                                      8
State v. Mendes (Ronald lvl), No. 88945-7


91 Wn.2d 466, 472, 589 P.2d 789 (1979), the defendant argued that he was not

given sufficient notice that the jury would be instructed on the charge of negligent

assault, and therefore he was wrongfully led to waive his privilege against self-

incrimination as guaranteed by the Fifth Amendment. In other words, the

defendant argued that he would not have testified had he known that the jury was

going to be instructed on the charge of negligent assault. We rejected this argument

imd held that there was no evidence of compulsion to testify, "rather, the record

r~'flects that the defendant volun1:arily testified in seeking to exculpate himself."

Foster, 91 Wn.2d at 473. We found the Fifth Amendment challenge to be without

merit because the defendant was represented by counsel and made the tactical

decision to testify.

       ln. VanAuken, defendants contended that the admission of a policewoman's

 testimony forced them to take the witness stand and testify contrary to the mandate

 of article I, section9. We held that "'[t]he proper grounds for the exclusion of a

 confession are that it has been obtained in violation of the constitutional

 requirell!ent of due pr()cess or that it has not met the test of our statutory
        .              . .


 requirement for admissibility of confessions."' VanAuken, 77 Wn.2d at 138

 (qu:oting State v. Moore, 60 Wn.2d 144, 147, 372 P.2d 536 (1962)). In this case,

 the admission of the policewoman's testimony did not operate to "compel"

 defendants to testify in the constitutional sense of the term. "To hold otherwise

                                             9
State v. lvfendes (Ronald M), No. 88945-7


could create the incongruous result that the state could not introduce otherwise

valid evidence simply because defendants might feel a need to take the stand and

contradict or explain it." VanAuken, 77 Wn.2d at 138.

       Mendes argues that this case is distinguishable from Foster because Mendes

sought clarification on potential jury instructions before he chose to testify and

because Mendes was not asking the trial court to exclude an instruction that the

·.State was otherwise entitled to only because it contradicted his version of events.

Therefore, he argues the trial court's refusal to rule on his motion, and the refusal

to say whether the evidence presented in the State's case would entitle Mendes to a

self-defense instruction, forced Mendes to waive his constitutional rights and

compelled him to testify against his will.

       The State argues that like many defendants before him, Mendes had to make

the tactical decision, in consultation with his attorney, whether or not to take the

stand in his defense. ·we agree. Our case law has consistently held that a defendant

is not "compelled" to testify in violation of their constitutional rights in a situation

like this case. No one forced Mendes to testify in a constitutional sense. The record

establishes that in consultation with his attorney, Mendes chose to take the stand.

Although defendants are regularly faced with the dilemma of a choice between

complete silence and presenting a defense, it has never been thought of as a




                                             10
State v. Mendes (Ronald M), No. 88945-7


violation of the privilege against compelled self-incrimination. We affirm the

Court of Appeals.




WE CONCUR:




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