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State v. Freeburg3/26/2001
establish self- defense in that Ms. Corn was not faced with this type of injury.
In essence, the court held that where justifiable homicide is claimed in self-defense against an unarmed assailant, the objective definition of great bodily harm could cause a juror to reject self-defense without considering the defendant's right to act on appearances.
Thus it is imperative that trial courts make the correction to the standard instructions that the Committee has not yet made. On remand here, and in future justifiable homicide cases, courts should follow the advice set forth in the comment to WPIC 2.04.01 and replace the phrase 'great bodily harm' with the phrase 'great personal injury ' in the act on appearances instruction.
A majority of the panel having concluded that the remainder of this opinion lacks precedential value, it is ordered that only the foregoing will be published. The balance of the opinion will be filed for public record as provided by RCW 2.06.040.
Juror Video
Freeburg assigns error to the showing of a video to all prospective jurors when they reported on the first day of the jury term. He complains that the videotape encouraged the jurors to apply an erroneous burden of proof, endorsed jury deliberation during trial, and implied the defendant could be expected to testify at trial. The trial judge viewed the video, noted that he preferred the old 'Perry Mason' (Raymond Burr) video, but denied Freeburg's motion to select a jury panel from those who had not seen the more recent film.
Washington approves of jury indoctrination based on juror handbooks. When the handbook appears unobjectionable generally, the defendant has the burden of showing how the handbook prejudiced him particularly. We think the same test should apply to challenges to jury indoctrination by way of a video presentation, and Freeburg has not shown how having jurors view the video prejudiced him particularly.
The actual bias of a potential juror must be established by proof. The defense did not question the jurors at voir dire as to possible bias as a result of viewing the video and made no challenges on this basis. A defendant who accepts a juror without exercising his available challenges cannot later be heard to complain of the juror's presence on the panel. Freeburg alleges that the film usurped the judge's duty to instruct jurors on the law, failed to explain basic constitutional principles, and contained a number of errors and prejudicial statements. He complains that the film made 'no effort to explain or emphasize basic constitutional principles such as the presumption of innocence, the burden of proof, and the right to remain silent.'
Freeburg provides no authority requiring such content in preliminary orientation materials, and he ignores the specific instructions given in the courtroom covering all those points. The jury is presumed to have followed those instructions. The trial court did not abuse its discretion by allowing jurors who had seen the jury instruction video to be empanelled.
Other Issues
Freeburg raises several issues regarding evidence rulings, alleged prosecutorial misconduct, and sentencing. We do not address these issues in light of our remand for retrial.
Reversed and remanded.
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