f.: 1 L.I_ i r Jai : ti 20111 OCT 21 

### Ail 9: IN THE COURT OF APPEALS OF THE STATE OF WASI - 

## JA S CEP +'ry STATE OF WASHINGTON, DIVISION II 3Y
Respondent,

v. JOHN EVAN GRIFFITHS, JR., Appellant. No. 44573 -5 -II

UNPUBLISHED OPINION

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 

### doublejeopardy by holding a second trial afterthe first ended with a mistrial and that his right to effective assistance ofcounsel 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 doublejeopardy protections, butthat defense counsel' s failure to objectto the obviously defective self -

defense instruction was deficient and prejudicial. Accordingly, we reverse and remand for a new trial.' FACTS There are several versions ofthe 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 notobjecting to a first aggressor 

### jury instruction,which stated that adefendant cannot rely on self - defense ifhe 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 carwas parked in the lot
when Griffiths, who was driving a dark green SUV ( sport utility vehicle), screeched to a stop, jumped out ofhis carwith atire iron in his hand, yelled profanities at Kang, and approached 

### Kang's car. Theytestified thatwhen Kang got out ofhis car, Griffiths grabbed him bythe 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 hisjeep. Moments later, as he was waiting with his blinker on to enter aparking space, Kang allegedly came the wrong way 

### down a one -

way parking row and tookthe spot before Griffiths had achance to pull in. Griffiths testified that he feltthat he " had a civil duty to at least speakwith the young man driving the way he was." Report of Proceedings ( RP) (Jan. 7, 2013) at 185 -86. He admitted taking atire iron 

### with him because he was concerned for his safety and the safety ofhis children who were in the jeep. 

### Griffiths furthertestified that (1) Kang got out ofhis car and got into Griffiths' face and

was squaring off as if to fight, (

### 2) he then noticed that Kang was forming afist behind his back 

### and bringing his shoulder forward as ifto strike, and (3) at that moment Griffiths put his arm up to protect himselfand grabbed Kang' s shirt. Griffiths denied that he choked Kang orput his 

### hand on Kang' s throat. When he saw four men coming from the mall to help Kang, Griffiths got into hisjeep and drove off. 

### Kelli Phelps testified that Kang was driving well overthe 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 saidthat Griffiths was angry as he approached Kang' s car, yelled at Kang to

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### 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 thatwhen Kang got out ofthe 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 ifKang ever did that again. The State charged Griffiths with second degree assault while armed with a deadly 

### weapon and harassment. Thejury returned a not guiltyverdict 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 ofthis instruction was erroneous, Griffiths' counsel did not object to the instruction. 

### Thejury found Griffiths guilty and found that he was armed with a deadly weapon. Griffiths appeals. ANALYSIS A. DOUBLE JEOPARDY In a Statement ofAdditional Grounds, Griffiths argues that all charges must be dismissed because the trial court violated the proscription against doublejeopardy by trying him again after his first trial ended in a mistrial due to a hungjury. He argues thatthe second trial violated the Fifth Amendment to the federal constitution and article 1, section 2 ofthe state constitution. We disagree.

344573 -5 -II It is well settled thatthere is no doublejeopardy violation when a defendant is tried a 

### second time after ajury fails to reach averdict in the first trial, as long asthe deadlock is genuine. State v. Daniels, 165 Wn.2d 627, 644, 200 P. 3d 711 ( 2009). Here, it was undisputed 

### thatthejury could not reach a verdict and therefore the trial court declared a mistrial. We hold that retrying Griffiths did not offend doublejeopardy protections. B. INEFFECTIVE ASSISTANCE OF COUNSEL Griffiths argues that he was denied his right to effective assistance ofcounsel 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 ifthere is a reasonable 

### probabilitythat except for counsel' s errors, the result ofthe proceeding would have differed. Grier, 171 Wn.2d at 34. Reasonable probability in this context means a probability sufficient to 

### undermine confidence ofthe outcome. In re Pers. Restraint ofCrace, 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 ofAssault in the Second Degree that the force used or attempted or offered to be used was lawful as defined in this instruction.

444573 -5 -II The use of or attempt to use or offer to use force upon or toward the person ofanother is 

### lawful when used or attempted or offered by a person who reasonablybelieves that he is 

### aboutto be injured by someone lawfully aiding aperson who he reasonablybelieves 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 ofthe facts and circumstances known to the person at the time of and prior to the incident. 

### The State has the burden ofproving beyond a reasonable doubt thatthe force used or 

### attempted or offered to be used bythe defendant was not lawful. Ifyou find that the State has not proved the absence ofthis defense beyond a reasonable doubt, it will be 

### your dutyto return averdict ofnot 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 ifaperson [person 1] believes he is aboutto be injured bysomeone [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 ofthis 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 outthatthejudge and the prosecutor also failed to notice that the instruction was improper, but that does not excuse 

### defense counsel' s failure to identifythe problem and object. Weagree that Griffith's counsel

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was deficient for failing to object to this instruction. The question is whetherthis 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 awhole, thejury instructions must make the relevant legal 

### standard manifestly apparent to the averagejuror. McCreven, 170 Wn. App. at 462. Here, the second paragraph ofthe self - defense instruction is gibberish. And to the extent it can be understood, it misstates the relevant legal standard. Thejury was instructed that 

### Griffiths could claim self - defense only ifhewas aboutto 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, ifthejury 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 ofthe 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 ofinstruction 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 ofthe erroneous second paragraph. The fourth paragraph ofinstruction 14

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### properly statesthat .

it is the State's burden to provethatthe force Griffiths used was unlawful, but again does not address when force is lawful — the subject ofthe erroneous.second paragraph. 

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

### danger ofinjuryto claim self - defense. The instruction states: A person is entitled to act on appearances in defending himself ifhe believes in good faith and on reasonable grounds that he is in actual danger of injury, although afterwards 

### might develop thatthe person was mistaken astothe extent ofthe danger. Actual danger is not necessary forthe use offorce to be lawful. ACP at 75. 

### Instruction 17 properly states circumstances underwhich 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 

### againstsuch attackbythe use oflawful force. The lawdoes not impose a dutyto retreat. ACP at 77. Butthese instructions do not clarifythe incorrect statement in instruction 14 that 

### self - defense applies only to athreatfrom someone lawfully aiding aperson aboutto be injured. Further, instruction 14 states that self - defense is available ifthe defendant' s use offorce was lawful " as defined in this instruction." 

### ACP at 74. This language did not allowthejuryto look 

### to instructions 15 or 17 in determining whether Griffiths' use offorce was lawful. Instruction 14 misstated the law. Under the erroneous language ofthat instruction,the 

### jury could not have foundthat Griffiths acted in self - defense. As a result,the defective instruction prevented Griffiths from arguing his theory ofthe 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 

### properwhen,taken as awhole,they set out the applicable law and allowthe parties to argue their theories ofthe case).

744573 -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 anewtrial. 

### Amajorityofthe panel having determinedthatthis opinion will not be printed inthe 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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