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State v. Siddiq6/27/2005
ed any error. Under the invited error doctrine, a defendant is not entitled to a reversal of his conviction based on an erroneous instruction when the court adopts the instruction as proposed by defendant's counsel. This is true even when the error is of constitutional magnitude. City of Seattle v. Patu, 147 Wn.2d 717, 721, 58 P.3d 273 (2003).
But Siddiq also raises this issue under the auspices of a claim of ineffective assistance of counsel. We will address the merits of his argument under that standard. To substantiate a claim of ineffective assistance of counsel, a defendant must show that the performance of his defense counsel was deficient and that this deficiency prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
As support for his argument that a multiple assailant instruction should have been given, Siddiq cites State v. Irons, 101 Wn. App. 544, 4 P.3d 174 (2000). The man shot by Irons was accompanied by three other men. They surrounded Irons, and there was evidence that they intended to assist the victim in confronting him. One of them threatened Irons with a beer bottle. Irons, 101 Wn. App. at 552. Irons was convicted of manslaughter. On appeal, he argued that the justifiable homicide instruction should have specifically allowed the jury to consider that he faced multiple assailants, only one of whom was the victim. Irons, 101 Wn. App. at 552. This court agreed the instruction inadequately conveyed the law of self-defense, and reversed his conviction. Irons, 101 Wn. App. at 560.
Several witnesses testified that there were others present as Siddiq and Jimicum fought, but the testimony focuses on the fight between Siddiq and Jimicum, not the actions of those surrounding them. Some witnesses testified that the people surrounding the two were trying to separate the men as they fought. One witness testified that she and maybe another person at some point sat on Siddiq's feet in their effort to halt the fight.
One witness, Andre Barker, testified that another man was with Jimicum when Jimicum initially pinned Siddiq up against a van. But Barker also testified that this scuffle occurred as the altercation between Siddiq and Jimicum was just beginning. Soon after, the man left to pursue someone else up a hill and Barker followed, leaving Siddiq and Jimicum as they continued to fight each other. This record does not show that Siddiq, when he later pulled out the gun, was being confronted or threatened by anyone other than Jimicum.
Jury instructions are properly given if they are supported by substantial evidence, allow both parties to argue their theories of the case, and properly inform the jury of the applicable law. State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000). Because substantial evidence does not support a multiple assailant instruction, counsel was not ineffective for failing to propose one.
Siddiq also argues that counsel was ineffective for failing to propose an instruction based on the second prong of the justifiable homicide statute. This prong provides that homicide is justifiable when committed in 'the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.' RCW 9A.16.050(2). Relying on testimony that Jimicum attempted to strike him with a wooden board, Siddiq argues that he was resisting 'an attempt to commit a felony' upon his person, and the jury should have been allowed to consider that as a justification for the homicide.
We considered and rejected the same argument in State v. Brenner, 53 Wn. App. 367, 376, 768 P.2d 509 (1989). Brenner involved an altercation between several m
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