Opinion
No. 55377-1-I.
November 13, 2007.
We must decide whether a jury instruction nearly identical to the one at issue in State v. Chenoweth, 127 Wn. App. 444, 111 P.3d 1217 (2005), affirmed on other grounds, 160 Wn.2d 454 (2007), violated Colby Miller's right to a fair trial by pressuring the jurors to reach a unanimous verdict, undermining the presumption of innocence, and misstating the State's burden of proof. We affirm because the instruction did not deprive Miller of a fair trial.
FACTS
Miller was charged with one count of robbery in the first degree, and a jury trial was held. The trial court gave the jury Instruction 15, which provided:
In conclusion, let me remind you that each of you has taken a solemn oath that you will well and truly try the case and a true verdict render upon the evidence given you in the trial and upon the law as now given you by the Court. You must not allow yourselves in the least to be moved by sympathy or influenced by prejudice. The question of guilt or lack of guilt is a question of fact, not a question of sympathy or prejudice or what the punishment will be. If, as a matter of fact, from the evidence, the defendant is guilty, no amount of sympathy will make the defendant not guilty. If the defendant is not guilty, no amount of prejudice will make him guilty; for, regardless of any feelings of sympathy or prejudice, the defendant is, upon the evidence and the evidence alone, either guilty or not guilty. What is the true verdict, as shown by the evidence, is the one question before you.
The jury found Miller guilty, and he appeals.
In Miller's opening brief, he argued that the trial court's restitution order violated his right to trial by jury and that its order that he provide a biological sample for DNA (deoxyribonucleic acid) testing pursuant to RCW 43.43.754 violated his Fourth Amendment right against unreasonable searches and seizures. In his reply brief, he acknowledges that his restitution argument is controlled by State v. Kinneman, 155 Wn.2d 272, 119 P.3d 350 (2005) and his DNA collection argument is controlled by State v. Surge, 160 Wn.2d 65, 156 P.3d 208 (2007). The only issue remaining on appeal is whether instruction 15 violated his right to a fair trial.
ANALYSIS
Miller contends that instruction 15 violated his right to a fair trial by an impartial jury under the federal and state constitutions by pressuring the jurors into reaching a unanimous verdict, undermining the presumption of innocence, and misstating the burden of proof. We reject these arguments after examining instruction 15 in the context of the other jury instructions.
"The wording of jury instructions is left to the discretion of the trial court." State v. Kennard, 101 Wn. App. 533, 537, 6 P.3d 38 (2000). "Jury instructions are sufficient if they correctly state applicable law, are not misleading, and permit counsel to argue their theory of the case." State v. Brown, 132 Wn.2d 529, 618, 940 P.2d 546 (1997). A court is required to instruct the jury that the State has the burden to prove each element of the crime beyond a reasonable doubt. State v. Castle, 86 Wn. App. 48, 51, 935 P.2d 656 (1997). "[T]he right of jury trial includes the right of a jury to fail to agree. . . ." State v. McCullum, 28 Wn. App. 145, 149, 622 P.2d 873 (1981), rev'd on other grounds, 98 Wn.2d 484, 656 P.2d 1064 (1983). When examining the effect of a particular phrase in an instruction, courts must consider the instruction as a whole and in the context of all the instructions. Castle, 86 Wn. App. at 51. "A jury is presumed to follow instructions given." Brown, 132 Wn.2d at 618. Claimed errors of law in jury instructions are reviewed de novo. Kennard, 101 Wn. App. at 537.
In Chenoweth, this court reviewed nearly the same instruction as instruction 15. The only difference between the two instructions is that the last sentence in instruction 15 began, "If the defendant is not guilty, no amount of prejudice will make him guilty," but the last sentence in the Chenoweth instruction began, "If the defendant is innocent, no amount of prejudice will make him guilty," Chenoweth, 127 Wn. App. at 461. (Emphasis added in both.) Chenoweth argued that the instruction suggested that he could be acquitted only if he was innocent. The Court of Appeals declined to reverse on that issue because
several instructions . . . told the jury that it was to decide whether the defendants were guilty or not guilty. Standing alone, the wording of Instruction 26 probably could be improved, but read as a whole, the instructions would not lead the jury to believe that acquittal required a finding of actual innocence.
Chenoweth, 127 Wn. App. at 462.
Similarly, when instruction 15 is read in the context of the other instructions, it is clear that it did not pressure the jurors to reach a unanimous verdict, undermine the presumption of innocence, or misstate the State's burden of proof. Several instructions informed the jury that they were to deliberate and decide whether the State had proven Miller guilty beyond a reasonable doubt, and the jury is presumed to have followed these instructions. Regarding the pressure to reach a unanimous verdict, instruction 3 stated, "[Y]ou should not change your honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict." (Emphasis added.) Regarding the burden of proof and the presumption of innocence, instruction 5 stated in part:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt.
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.
In context, instruction 15 merely made clear that the jury was to deliberate and strive toward a verdict based on the evidence presented and not on sympathies or prejudice. The instruction neither contradicts the State's burden of proof nor directs the jury to reach a unanimous verdict. Nowhere does the instruction undermine the presumption of innocence.
For the foregoing reasons, we affirm.