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                                                                                    20111 OCT 21              Ail 9:
    IN THE COURT OF APPEALS OF THE STATE OF WASI JA
                                                  -                                              S


                                          DIVISION II                               3Y
                                                                                                CEP +' ry
 STATE OF WASHINGTON,                                                 No. 44573 -5 -II


                                Respondent,


        v.

                                                               UNPUBLISHED OPINION
 JOHN EVAN GRIFFITHS, JR.,


                                Appellant.




       MAXA, J. —    John Evan Griffiths, Jr. appeals his second degree assault conviction,


claiming that the trial court violated his federal and state constitutional protections against

double jeopardy by holding a second trial after the first ended with a mistrial and that his right to

effective assistance of counsel was violated when defense counsel failed to object to an


erroneous self -defense instruction. We hold that retrying Griffiths following a mistrial did not

violate double jeopardy protections, but that defense counsel' s failure to object to the obviously

defective self -defense instruction was deficient and prejudicial. Accordingly, we reverse and

remand for a new trial.'


                                                FACTS


        There are several versions of the facts but the witnesses all agreed that on April 21, 2012,


Griffiths confronted Michael Kang in the Olympia Capital Mall parking lot. Three witnesses –



1 Griffiths also argues that defense counsel was ineffective for not objecting to a first aggressor
jury instruction, which stated that a defendant cannot rely on self -defense if he was the aggressor
in a fight. He further argues that the cumulative effect of errors denied him the right to a fair
trial. Because we reverse based on the defective self defense
                                                      -       instruction, we do not address
these issues.
44573 -5 -II



Rachel Hendrickson, Laura Fletcher               and   Kang —testified that Kang' s car was parked in the lot

when    Griffiths,   who was     driving   a   dark   green   SUV ( sport utility   vehicle),   screeched to a stop,

jumped out of his car with a tire iron in his hand, yelled profanities at Kang, and approached

Kang' s car. They testified that when Kang got out of his car, Griffiths grabbed him by the

throat, raised the tire iron above his head, and threatened to kill him.


         Griffiths testified that as he was proceeding through a four -way stop intersection at the

mall, Kang' s vehicle was speeding, did not stop, and nearly struck his jeep. Moments later, as he

was waiting with his blinker on to enter a parking space, Kang allegedly came the wrong way

down a one -way parking row and took the spot before Griffiths had a chance to pull in. Griffiths

testified that he felt that he " had a civil duty to at least speak with the young man driving the way

he   was."   Report   of   Proceedings ( RP) (     Jan. 7, 2013) at 185 -86. He admitted taking a tire iron

with him because he was concerned for his safety and the safety of his children who were in the

jeep.

         Griffiths further testified that ( 1) Kang got out of his car and got into Griffiths' face and

was   squaring   off as    if to fight, (2)    he then noticed that Kang was forming a fist behind his back

and bringing his shoulder forward as if to strike, and ( 3) at that moment Griffiths put his arm up

to protect himself and grabbed Kang' s shirt. Griffiths denied that he choked Kang or put his

hand on Kang' s throat. When he saw four men coming from the mall to help Kang, Griffiths got

into his jeep and drove off.

          Kelli Phelps testified that Kang was driving well over the 15 miles per hour speed limit

and that she saw the confrontation between Kang and Griffiths as she was walking through the

parking lot. She said that Griffiths was angry as he approached Kang' s car, yelled at Kang to


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44573 -5 -II




slow down, and yelled that he had his kids in the car. Kang responded by telling Griffiths to " F"

off.   Griffiths then   responded, "   Do   you want   to   come out   here   and   say that ?" RP ( Jan. 8, 2013)


at 254. Phelps testified that when Kang got out of the car, Griffiths approached with the tire iron

in one hand and pushed Kang into the space between Kang' s car and door. She testified that she

never saw Griffiths choke Kang but saw him use a flat hand on Kang' s .upper chest. According

to Phelps, Griffiths told Kang that he would kill him if Kang ever did that again.

          The State charged Griffiths with second degree assault while armed with a deadly

weapon and harassment. The jury returned a not guilty verdict on the harassment count but

could not reach a verdict as to the assault and the trial court declared a mistrial as to the assault.

At the second trial on the assault charge, the trial court gave a self -defense instruction. Although

the second paragraph of this instruction was erroneous, Griffiths' counsel did not object to the

instruction.


          The jury found Griffiths guilty and found that he was armed with a deadly weapon.

Griffiths appeals.


                                                   ANALYSIS


A.        DOUBLE JEOPARDY


          In a Statement of Additional Grounds, Griffiths argues that all charges must be dismissed

because the trial court violated the proscription against double jeopardy by trying him again after

his first trial ended in a mistrial due to a hung jury. He argues that the second trial violated the

Fifth Amendment to the federal constitution and article 1, section 2 of the state constitution. We

disagree.




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44573 -5 -II




        It is well settled that there is no double jeopardy violation when a defendant is tried a

second time after a jury fails to reach a verdict in the first trial, as long as the deadlock is

genuine.     State   v.   Daniels, 165 Wn. 2d 627, 644, 200 P. 3d 711 ( 2009). Here, it was undisputed


that the jury could not reach a verdict and therefore the trial court declared a mistrial. We hold

that retrying Griffiths did not offend double jeopardy protections.

B.      INEFFECTIVE ASSISTANCE OF COUNSEL


        Griffiths argues that he was denied his right to effective assistance of counsel because

trial counsel did not object to the erroneous self -defense instruction. We agree.

        1.      Legal Principles


        To prevail on an ineffective assistance of counsel claim, the defendant must show both

that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation

prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).

Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness.          Grier, 171 Wn.2d at 34. Prejudice exists if there is a reasonable


probability that except for counsel' s errors, the result of the proceeding would have differed.

Grier, 171 Wn.2d at 34. Reasonable probability in this context means a probability sufficient to

undermine confidence of the outcome. In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280

P. 3d 1102 ( 2012).


        2.      Self Defense
                     -       Instruction


         The trial court gave a self -defense instruction, instruction 14, which provided in part:

         It is a defense to the charge of Assault in the Second Degree that the force used or
         attempted or offered to be used was lawful as defined in this instruction.




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44573 -5 -II



        The use of or attempt to use or offer to use force upon or toward the person of another is
        lawful when used or attempted or offered by a person who reasonably believes that he is
        about to be injured by someone lawfully aiding a person who he reasonably believes is
        about to be injured in preventing or attempting to prevent an offense against the person,
        and when the force is not more than is necessary.

        The person using or offering to use the force may employ such force and means as a
        reasonably prudent person would use under the same or similar conditions as they
        appeared to the person, taking into consideration all of the facts and circumstances known
        to the person at the time of and prior to the incident.


        The State has the burden of proving beyond a reasonable doubt that the force used or
        attempted or offered to be used by the defendant was not lawful. If you find that the
        State has not proved the absence of this defense beyond a reasonable doubt, it will be
        your duty to return a verdict of not guilty as to Assault in the Second Degree.

Amended Clerk' s Papers ( ACP) at 74 ( emphasis added).


        Instruction 14 tracks the language       of   WPIC 17. 02.   11 WASHINGTON PRACTICE:


WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17. 02,                  at   253 ( 3d   ed.   2008). But the


italicized phrase in the above quote is in brackets in WPIC 17. 02 and should have been removed

from instruction 14. Because the phrase was not removed, the instruction states that force is

lawful only if a person [ person 1] believes he is about to be injured by someone [ person 2] aiding
another person [ person   3]   who "   he" [ could refer to either person 1 or person 2] believes is about


to be injured. This sentence makes no sense. Griffiths argues, and the State correctly concedes,

that the second paragraph of this instruction is unintelligible and confusing.

         3.    Deficient Representation and Prejudice


         The State does not seriously contend that defense counsel was not deficient in failing to

object to the obviously defective self -defense instruction. The State points out that the judge and

the prosecutor also failed to notice that the instruction was improper, but that does not excuse


defense counsel' s failure to identify the problem and object. We agree that Griffith' s counsel


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44573 -5 - II




was deficient for failing to object to this instruction. The question is whether this deficiency

prejudiced Griffiths.


         Regarding prejudice, jury instructions on self -defense must more than adequately convey

the law. State v. McCreven, 170 Wn.          App.   444, 462, 284 P. 3d 793 ( 2012), review denied, 176


Wn.2d 1015 ( 2013).      Read as a whole, the jury instructions must make the relevant legal

standard manifestly apparent to the average juror. McCreven, 170 Wn. App. at 462.

         Here, the second paragraph of the self -defense instruction is gibberish. And to the extent


it can be understood, it misstates the relevant legal standard. The jury was instructed that

Griffiths could claim self -defense only if he was about to be injured by someone lawfully aiding

a person about to be injured. In fact, the law allows a defendant to claim self -defense if he is

about   to be injured   by   anyone.   RCW 9A. 16. 020( 3); State v. Kyllo, 166 Wn.2d 856, 863, 215


P. 3d 177 ( 2009).   As a result, if the jury applied the instruction as written, Griffiths was

precluded from claiming self -defense. Instruction 14 misstated the law and necessarily

prejudiced Griffiths.


         The State argues that giving the erroneous instruction was harmless because although one

paragraph of the self -defense instruction is difficult to understand, the remaining portion of

instruction 14 clearly explained self -defense and instructions 15 and 17 also helped to clarify any

confusion. We disagree.


         The third paragraph of instruction 14 properly stated the law regarding the amount of

force a person can use in self -defense. But that paragraph did not address when it is lawful to use


any force, the subject of the erroneous second paragraph. The fourth paragraph of instruction 14




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44573 -5 -II




properly states that .it is the State' s burden to prove that the force Griffiths used was unlawful,

but   again   does   not address when   force is lawful —the subject of the erroneous. second paragraph.


            Instruction 15 explains that a person must only reasonably believe that he is in actual

danger of injury to claim self -defense. The instruction states:

            A person is entitled to act on appearances in defending himself if he believes in good
            faith and on reasonable grounds that he is in actual danger of injury, although 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.

ACP    at   75.   Instruction 17 properly states circumstances under which force can be lawful. The

instruction states:


            It is lawful for a person who is in a place where that person has a right to be and who has
            reasonable grounds for believing that he is being attacked to stand his ground and defend
            against such attack by the use of lawful force. The law does not impose a duty to retreat.

ACP at 77. But these instructions do not clarify the incorrect statement in instruction 14 that

self -defense applies only to a threat from someone lawfully aiding a person about to be injured.

Further, instruction 14 states that self -defense is available if the defendant' s use of force was

lawful " as defined in this instruction."      ACP at 74. This language did not allow the jury to look

to instructions 15 or 17 in determining whether Griffiths' use of force was lawful.

            Instruction 14 misstated the law. Under the erroneous language of that instruction, the


jury could not have found that Griffiths acted in self defense.
                                                       -        As a result, the defective

instruction prevented Griffiths from arguing his theory of the case. See State v. Davis, 174 Wn.

App. 623, 638,        300 P. 3d 465, 472,   review   denied, 178 Wn.2d 1012 ( 2013) (   jury instructions are

proper when, taken as a whole, they set out the applicable law and allow the parties to argue their

theories of the case).




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44573 -5 -I1



        We hold that defense counsel' s failure to object to instruction 14 was deficient and

prejudiced Griffiths. Accordingly, we reverse Griffiths' conviction and remand for a new trial.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




 LEE,




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