State v. Kyllo

Summary

The Washington Supreme Court held that Kenneth Kyllo's trial counsel rendered ineffective assistance by proposing an 'act on appearances' self-defense instruction conditioning the defense on a reasonable belief of 'actual danger of great bodily harm,' when RCW 9A.16.020(3) requires only a reasonable belief of impending injury for nondeadly force, and by similarly overstating in closing argument the fear of death or grievous harm needed for self-defense. Although the proposed instruction tracked then-current former WPIC 17.04, decisions predating Kyllo's late-2004 trial (Walden, Freeburg, Rodriguez, L.B.) should have alerted counsel that the pattern language conflicted with the statute, so the failure to research the law was deficient and not legitimate strategy. Because self-defense was Kyllo's entire case and the evidence on provocation was conflicting, the court found a reasonable probability the outcome would have differed, reversed the conviction, and remanded for retrial. Review was not barred by invited error or lack of objection because the error stemmed from ineffective assistance and errors of constitutional magnitude may be raised for the first time on appeal; the separately granted appearance-of-fairness sentencing issue was not reached.