/FTEfEV X W CLERKS OFFICE X This opinion was emsats COURT,31WE OF VI2ft8l@iSniM filed for record DATE f?EBjy02l^ at_6£Q6^n reh. ZO, 2oZ-£> jusriGS ^ Susan L.Carlson Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 97183-8 Petitioner, V. En Banc ROBERT DESHAWN GROTT, Filed: FEB i 0 2020 Respondent. YU,J.— The issues in this case relate to a first aggressor instruction that was given at respondent Robert Grott's trial for a shooting incident in which Grott claimed that he acted in lawful self-defense. The instruction informed the juiy that Grott could not claim self-defense if the jury found "beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight." Clerk's Papers(CP) at 1035. For the first time on appeal, Grott contended that this instruction was improperly given because State V. Grott, No. 97183-8 it was not supported by the evidence presented at trial. The Court of Appeals agreed and reversed Grott's convictions. We reverse the Court of Appeals. As a threshold matter, we hold that RAP 2.5(a)(3) does not apply to Grott's unpreserved objection to the first aggressor instruction in this case, so he is not entitled to raise it for the first time on appeal. We nevertheless exercise our discretion to reach the issue because the law regarding first aggressor instructions requires some clarification. On the merits, we hold that the first aggressor instruction was properly given in this case and that Grotfs trial counsel was not ineffective for failing to object. We therefore remand to the Court of Appeals to address the other issues raised on appeal. FACTUAL BACKGROUND AND PROCEDURAL fflSTORY A. Factual background This factual background is based on the evidence presented at trial. Where relevant to the issue of whether a first aggressor instruction was properly given, the evidence is presented in the light most favorable to the State. State v. Wingate, 155 Wn.2d 817, 823 n.l, 122 P.3d 908 (2005)(per curiam)(citing State v. Fernandez- Medina, 141 Wn.2d 448, 455-56,6 P.3d 1150 (2000)).

State V. Grott, No. 97183-8

A. RAP 2.5(a)(3) does not apply to Grott's unpreserved objection to the first aggressor instruction

Grott's objection to the first aggressor instruction in this case was raised for the first time on appeal. He does not object to the wording of the instruction but to the fact that it was given at all, contending that it was not supported by the evidence presented at trial.

In general, parties must contemporaneously object to proposed jury instructions. CrR 6.15(c). However, RAP 2.5(a)(3) allows a party to object for the first time on appeal where there is a "manifest error affecting a constitutional right." Application of RAP 2.5(a)(3) depends on the answers to two questions: "(1) Has the party claiming error shown the error is truly of a constitutional magnitude, and if so,(2) has the party demonstrated that the error is manifest?" State V. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). In this case, the answer to both questions is no.

State V. Grott, No. 97183-8

implicates a constitutional interest as compared to another form of trial error." O'Hara, 167 Wn.2d at 98. This evaluation must be done "on a case-by-case basis." Id. at 104.

"Jury instructional errors that we have held constituted manifest constitutional error include directing a verdict, shifting the burden of proof to the defendant, failing to define the 'beyond a reasonable doubt' standard, failing to require a unanimous verdict, and omitting an element of the crime charged." Id. at 100-01 (citations omitted); see also Kalebaugh, 183 Wn.2d at 584 (constitutional error in defining the reasonable doubt standard). The Court of Appeals here indicated that this standard is always met by an erroneously given first aggressor instruction because such instructions provide that "the jury does not have to consider whether the State has proved beyond a reasonable doubt that the defendant did not act in self-defense." Grott, No. 50415-4-II, slip op. at 5. This view of first aggressor instructions has been expressed in several opinions. E.g., State V. Bea, 162 Wn. App. 570, 575-76, 254 P.3d 948 (2011); State v. Stark, 158 Wn. App. 952, 960-61, 244 P.3d 433 (2010).

We now clarify that first aggressor instructions are used to explain to the jury one way in which the State may meet its burden: by proving beyond a reasonable doubt that the defendant provoked the need to act in self-defense. See Wingate, 155 Wn.2d at 821; Riley, 137 Wn.2d at 909-10. Because first aggressor State V. Grott, No. 97183-8

instructions do not actually relieve the State of its burden of proof, erroneously given first aggressor instructions are not necessarily errors of constitutional magnitude.

In this case, the jury was instructed on self-defense and Grott was not prevented from arguing that theory of the case. The first aggressor instruction properly held the State to its burden of proof by requiring the jury to "find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight." CP at 1035. Thus, even if the first aggressor instruction was erroneously given, the error was not of constitutional magnitude.

State V. Grott, No. 97183-8

Manifest error requires "a 'plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.'" O'Hara, 167 Wn.2d at 99 (alteration in original)(internal quotation marks omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). "[T]o determine whether an error is practical and identifiable, the appellate court must place itself in the shoes ofthe trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error." Id. at 100.

In this case, the trial lasted nearly three weeks, and there was substantial, conflicting evidence about the precise timeline of the shooting and the events leading up to it. As discussed further below, some testimony indicated that there was a confrontation between Grott and Thomas on the day of the shooting, which Grott provoked by firing the first shots. There is thus no basis to conclude that the trial court should have sua sponte rejected the State's proposed first aggressor instruction. Giving the first aggressor instruction was therefore not manifest error and RAP 2.5(a)(3) does not apply.

B. The first aggressor instruction in this case was properly given

Although Grott is not entitled to challenge the first aggressor instruction for the first time on appeal,"RAP 2.5(a) grants appellate courts discretion to accept review of claimed error not appealed as a matter of right." State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015). We exercise our discretion to reach the State V. Grott, No. 97183-8

other issues presented in order to further clarify the law governing first aggressor instructions. In light of these clarifications and the evidence presented at trial, we hold that there was sufficient evidence to support giving a first aggressor instruction in this case.

When this court reviews first aggressor instructions, we apply the same standards that we use to review other jury instructions. '"Jury instructions are sufficient ifthey permit each party to argue his theory of the case and properly inform the jury of the applicable law.'" Riley, 137 Wn.2d at 909(quoting State v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)). "[Wjhen determining if the evidence at trial was sufficient to support the giving of an instruction, the appellate court is to view the supporting evidence in the light most favorable to the party that requested the instruction." Wingate, 155 Wn.2d at 823 n.l (citing Fernandez-Medina, 141 Wn.2d at 455-56). While we have cautioned that "courts should use care in giving an aggressor instruction," we have also recognized that "an aggressor instruction should be given where called for by the evidence." Riley, 137 Wn.2dat910n.2.

Nevertheless, some appellate opinions broadly state that "[ajggressor instructions are not favored." State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990); see also State v. Sullivan, 196 Wn. App. 211, 289, 383 P.3d 574 (2016); State V. Birnel, 89 Wn. App. 459, 473, 949 P.2d 433 (1998). This view appears to State V. Grott, No. 97183-8

originate from State v. Arthur, which held that a prior version of the pattern first aggressor instmction was "too vague and too broad." 42 Wn. App. 120, 124, 708 P.2d 1230 (1985). In a footnote, the Arthur court stated in dicta,"Few situations come to mind where the necessity for an aggressor instruction is warranted. The theories of the case can be sufficiently argued and understood by the jury without such instruction." Id. at 125 n.l. We aclcnowledged this dicta in Riley, but we nevertheless held that "an aggressor instruction should be given where called for by the evidence." Riley, 137 Wn.2d at 910 n.2.

This court has never held that first aggressor instructions are broadly disfavored, and we do not do so today. First aggressor instructions are disfavored only where they are not justified. To determine whether first aggressor instructions are justified, appellate courts should apply ordinary standards of review, which require a case-by-case inquiry based on the specific evidence produced at trial. See Wingate, 155 Wn.2d at 823 n.l; Riley, 137 Wn.2d at 909-10.

In contrast to the fact-specific inquiry required by our precedent, some opinions, including the Court of Appeals opinion in this case, have expressed a bright-line rule that the alleged act of first aggression cannot "be the actual assault" with which the defendant is charged. Kidd, 57 Wn. App. at 100; see also Grott, No. 50415-4-II, slip op. at 7; Sullivan, 196 Wn. App. at 290; Bea, 162 Wn. App. at 577. We have never explicitly adopted this bright-line rule, and while we do not State V. Grott, No. 97183-8

entirely reject it now, we do hold that it must be confined to its proper context. It cannot be applied in cases like this one, where the defendant engaged in a course of aggressive conduct, rather than a single aggressive act.

In cases where the defendant undisputedly engaged in a single aggressive act and that act was the sole basis for the charged offense, we agree that the single aggressive act cannot support a first aggressor instruction. One cannot simultaneously engage in an act of first aggression and an act of lawful self- defense because an act of first aggression is an "intentional act reasonably likely to provoke a belligerent response" by the victim, while lawful self-defense requires a "subjective, reasonable belief of imminent harmfrom the victim." 11 Washington Practice: Washington Pattern Jury Instructions; Criminal 16.04, at 256 (4th ed. 2016); LeFaber, 128 Wn.2d at 899 (emphasis added). Thus, where a defendant who is charged for firing a single shot claims self-defense, that shot cannot, in itself, support a first aggressor instruction. State v. Wasson, 54 Wn. App. 156, 159, 772 P.2d 1039 (1989); State v. Upton, 16 Wn. App. 195, 197, 204, 556 P.2d 239(1976). Likewise, where the defendant is charged for making a single threat with a gun, that threat cannot support a first aggressor instruction. State V. Brower, 43 Wn. App. 893, 896, 902, 721 P.2d 12(1986).

However, in most cases, the facts are more complicated and bright-line rules are not appropriate. For instance, in State v. Hughes, the defendant was charged State V. Grott, No. 97183-8

with murder and assault based on a "7-minute gun battle" in which the defendant killed one police officer and wounded another. 106 Wn.2d 176, 178-79, 721 P.2d 902(1986). The defendant "testified that he shot the officers in self-defense, thinking that the two had a contract on his life because of a drug deal." Id. at 179. On direct review, this court affirmed that a first aggressor instruction "was properly given to the jury since there was evidence that the defendant shot first when the officers attempted to arrest him." /(7. at 191. Similarly, in State v. Gregory, we held a first aggressor instruction was proper where the defendant shot "a Seattle taxicab driver during the course of a vicious gunfight" and the driver suffered "five gunshot wounds—^the last four of which were subsequently determined to have been fatal." 79 Wn.2d 637, 638, 488 P.2d 757(1971), abrogated on other grounds by State v. Rogers, 83 Wn.2d 553, 520 P.2d 159 (1974). Thus, where there is evidence that the defendant engaged in a course of aggressive conduct, rather than a single aggressive act, "the provoking act can be part of a 'single course of conduct.'" Sullivan, 196 Wn. App. at 290 (emphasis added).

In this case, the Court of Appeals applied the bright-line rule that an alleged act of first aggression cannot be part of the charged conduct, reasoning that every shot Grott fired was "part of the actual charged incident to which self-defense is claimed," so in order "[t]o support a first aggressor instruction the evidence would State V. Grott, No. 97183-8

have to show that Grott made an intentional act before the shooting." Grott, No. 50415-4-II, slip op. at 7. However, Grott engaged in a course of aggressive conduct, firing 48 shots over the course of several minutes and pausing to reload multiple times. We therefore must conduct a fact-specific inquiry in which we "view the supporting evidence in the light most favorable to the party that requested the instruction" to determine if the evidence was sufficient to support a first aggressor instruction. Wingate, 155 Wn.2d at 823 n.l. That standard is met here because "there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense." Riley, 137 Wn.2d at 909.

Smith testified that Grott fired several shots before Thomas even realized Grott was there. However, the medical examiner testified that Thomas was directly facing Grott at some point during the shooting, and Thomas was found with a loaded gun with the safety off. From this, the jury could reasonably infer that sometime after Grott began shooting, Thomas turned to face Grott and pulled out his own gun. The jury could therefore conclude that once Thomas pulled out his gun, Grott had a reasonable fear of imminent harm and continued shooting in self-defense, ultimately killing Thomas. But if Grott provoked the need to defend himself by firing the first shots, then self-defense was not legally available to him. The jury was appropriately instructed accordingly.

State V. Grott, No. 97183-8

We therefore reverse the Court of Appeals and hold that the first aggressor instruction in this case was properly given. C. Trial counsel was not ineffective for failing to object to the first aggressor instruction

Finally, Grott contends that his trial counsel was ineffective for failing to object to the first aggressor instruction. Ineffective assistance claims are reviewed de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "To prevail on an ineffective assistance of counsel claim, the defendant must show that (1) defense counsel's representation was deficient in that it fell below an objective standard of reasonableness and (2)the deficient performance prejudiced the defendant." Id. In this case, Grott cannot show prejudice because the first aggressor instruction was supported by the evidence presented at trial, so any objection would have been properly overruled. See State v. McFarland, 127 Wn.2d 322, 337 n.4, 899 P.2d 1251 (1995). Grott therefore does not show that his trial counsel was ineffective.

CONCLUSION

We hold that erroneously given first aggressor instructions are not necessarily constitutional errors, and reaffirm that constitutional errors are not necessarily manifest. In this case, giving a first aggressor instruction was not a manifest constitutional error, so Grott does not have the right to raise an objection for the first time on appeal. : State V. Grott, No. 97183-8

We nevertheless reach the merits of Grott's objection to clarify that first aggressor instructions are reviewed according to ordinary standards of appellate review. The inquiry must be fact specific and based on the evidence presented at trial, so broad, bright-line rules are rarely appropriate. In this case, the first aggressor instruction was properly given and trial counsel was not ineffective for failing to object. We therefore reverse and remand to the Court of Appeals to consider the other issues on appeal. RAP 13.7(b); Wingate, 155 Wn.2d at 823-24.

State V. Grott,'Sio. 97183-8

WE CONCUR: f 6. / ^^kuuiiQpj