The State of Washington, Respondent, v. Brandon S. Coristine, Petitioner, 177 Wash. 2d 370

Stephens, J. ¶1 This case asks us to determine whether the trial court violated petitioner Brandon Coristine’s constitutional rights by offering an affirmative defense instruction over his objection. Coristine argues that offering the instruction to the jury violated his right to control his defense. We hold that where a defendant chooses not to argue or invoke an affirmative defense, offering an instruction on the defense over the defendant’s objection violates the Sixth Amendment to the United States Constitution. We reverse the Court of Appeals and remand for a new trial.

FACTS AND PROCEDURAL HISTORY ¶2 Coristine was charged with rape in the second degree arising out of events during a house party at his residence in Spokane, Washington. To prove rape in the second degree, the State must prove beyond a reasonable doubt that the defendant engaged in sexual intercourse with someone who was incapable of consent by reason of being physically helpless or mentally incapacitated.

RCW 9A.44.050(l)(b). ¶3 At trial, the State presented testimony that Coristine’s alleged victim, L.F., drank heavily at the party and went to sleep and that some time later Coristine came into her room and had sexual intercourse with her as she lay on her stomach, coming in and out of consciousness. Coristine and two other defense witnesses — Coristine’s wife and his sister-in-law — testified that L.F. consumed alcohol at the party but did not appear to be intoxicated.

Coristine also testified that L.F. initiated the sexual intercourse and was an active and willing participant. ¶4 After the close of evidence, the trial court held an instruction conference at which the sole contested issue was whether to read a jury instruction on the statutory affirmative defense of “reasonable belief.” See RCW 9A.44-.030(1). Coristine’s counsel objected to the instruction, arguing that Coristine’s defense was simply that the State failed to prove L.F. was incapacitated. 3 Verbatim Report of Proceedings (VRP) at 397.

The prosecutor argued in favor of giving the instruction, asserting the court was required to give the instruction if Coristine “bolster[ed]” his case by offering “any additional evidence” that the victim was not incapacitated, including witness testimony. 3 VRP at 395. The trial court was skeptical at first, noting that Coristine was free to choose his own defense, but eventually accepted the State’s argument. 3 VRP at 395-99.

Over Coristine’s objection, the court read the following pattern instruction to the jury: It is a defense to a charge of rape in the second degree that at the time of the act the defendant reasonably believed that [L.F.] was not mentally incapacitated or physically helpless. The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty as to this charge. 3 VRP at 409-10; see 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 19.03, at 296 (3d ed. 2008). After the instructions were given, each side presented closing argument. Coristine reiterated his failure-of-proof defense, arguing that testimony from defense witnesses about L.F.’s alcohol consumption and behavior at the party cast doubt on the State’s allegation that L.F. was physically helpless or mentally incapacitated during sexual intercourse.

Neither side mentioned the affirmative defense of reasonable belief. ¶5 The jury deliberated for two days and found Coristine guilty of rape in the second degree. The Court of Appeals affirmed the conviction. State v. Coristine, 161 Wn. App. 945, 252 P.3d 403 (2011). We granted discretionary review. State v. Coristine, 172 Wn.2d 1014, 262 P.3d 63 (2011). ANALYSIS ¶6 In order to further the truth-seeking aim of a criminal trial and to respect individual dignity and autonomy, the Sixth Amendment gives the accused the right to present a defense.

Consistent with this right, the Sixth Amendment requires deference to the defendant’s strategic decisions. ¶7 Because an affirmative defense is one the defendant may raise, the Sixth Amendment requires courts to honor an intelligent and voluntary choice to forgo an affirmative defense. Instructing the jury on an affirmative defense over the defendant’s objection violates the Sixth Amendment by interfering with the defendant’s autonomy to present a defense. A.

The Sixth Amendment Protects a Defendant’s Autonomy ¶8 The Sixth Amendment guaranties of compulsory process, confrontation, and the assistance of counsel help ensure fair trials. See Faretta v. California, 422 U.S. 806, 818-21, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). These assurances safeguard the truth-seeking function of criminal trials. In putting the State to its proof, a defendant may call witnesses, cross-examine the State’s witnesses, and have the assistance of counsel, thereby guarding against a wrongful conviction.

See, e.g., Herring v. New York. 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (“[P]artisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.”). ¶9 Presenting one’s own defense also affirms individual dignity and autonomy. See McKaskle v. Wiggins, 465 U.S. 168, 176-77, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984) (noting that the Sixth Amendment right to conduct one’s own defense “exists to affirm the dignity and autonomy of the accused”); see also Portuondo v. Agard, 529 U.S. 61, 76, 120 S. Ct. 1119, 146 L.

Ed. 2d 47 (2000) (Stevens, J., concurring) (noting that a “defendant’s Sixth Amendment right ‘to be confronted with the witnesses against him’ . . . reflects respect for the defendant’s individual dignity and reinforces the presumption of innocence”). ¶10 To further the truth-seeking function of trial and to respect the defendant’s dignity and autonomy, the Sixth Amendment recognizes the defendant’s right to control important strategic decisions. See McKaskle, 465 U.S. at 177 (“[T]he primary focus must be on whether the defendant had a fair chance to present his case in his own way.”); State v.

Jones, 99 Wn.2d 735, 742, 664 P.2d 1216 (1983) (defendant’s fundamental right to make decisions about the course of the defense is mandated by “ ‘respect for [his or her] freedom as a person’ ” (quoting Frendak v. United States, 408 A.2d 364, 376 (D.C. 1979))). B. Courts Must Respect a Defendant’s Right To Forgo an Affirmative Defense ¶11 The Sixth Amendment right to control one’s defense encompasses the decision to present an affirmative defense. We first recognized this principle in Jones, 99 Wn.2d 735.

In Jones, the trial court entered a plea of not guilty by reason of insanity over the defendant’s objection and allowed the introduction of evidence of insanity after the defense presented its case. Id. at 739. The jury found the defendant to be insane at the time he committed the crime. Id. at 738. ¶12 We granted the defendant a new trial. Relying on Faretta, we observed that “a defendant has a constitutional right to at least broadly control his own defense.” Jones, 99 Wn.2d at 740.

In Faretta, the United States Supreme Court held the Sixth Amendment grants criminal defendants the personal right to self-representation at trial. 422 U.S. at 819. We noted that Faretta stands for “ ‘the conviction that a defendant has the right to decide, within limits, the type of defense he wishes to mount.’ ” Jones, 99 Wn.2d at 740 (quoting United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979)); see also North Carolina v. Alford, 400 U.S. 25, 33, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (“[Courts] should not ‘force any defense on a defendant in a criminal case.’ ” (quoting Tremblay v. Overholser, 199 F.

Supp. 569, 570 (D.D.C. 1961))). ¶13 In line with Faretta and Alford, we reasoned that “ ‘respect for a defendant’s freedom as a person mandates that he or she be permitted to make fundamental decisions about the course of proceedings.’ ” Jones, 99 Wn.2d at 742 (quoting Frendak, 408 A.2d at 376). Such respect demands that “courts do not impose . . . defenses on unwilling defendants.” Id. at 743. Imposing a defense on an unwilling defendant impinges on the independent autonomy the accused must have to defend against charges.

As the Court proclaimed in Faretta in upholding the right to self-representation, “[u]nless the accused has acquiesced . . . , the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” Faretta, 422 U.S. at 821. We concluded that the court must honor the intelligent and voluntary choice of a competent defendant to forgo an insanity defense. Jones, 99 Wn.2d at 746. ¶14 Our reasoning in Jones was followed in State v. McSorley, 128 Wn. App. 598, 116 P.3d 431 (2005).

There, the State requested an instruction on an affirmative defense to the charge of child luring, an instruction to which the defendant “ ‘most strenuously’ ” objected. Id. at 603.

Nevertheless, the trial court granted the State’s motion, instructing the jury that “ ‘[i]t is a defense to a charge of luring that... [t]he defendant’s actions were reasonable under the circumstances! ] and . . . [t]he defendant did not have any intent to harm the health, safety, or welfare of the minor.’ ” Id. (quoting clerk’s papers at 13). ¶15 Relying on Jones, Alford, and Faretta, the Court of Appeals reversed, holding a new trial was required. McSorley, 128 Wn. App. at 605.

Quoting Jones, the McSorley court emphasized that the Sixth Amendment prohibits courts from “ ‘forcing] any defense on a defendant in a criminal case.’ ” Id. (internal quotation marks omitted) (quoting Jones, 99 Wn.2d at 740). ¶16 In concluding the Sixth Amendment gives a defendant the right to forgo an available affirmative defense, the McSorley court correctly extended Jones. As with the decision to plead guilty by reason of insanity, the decision to offer an affirmative defense cannot be forced on an unwilling defendant. See Jones, 99 Wn.2d at 743.

An affirmative defense places a burden of proof on the defendant, thus shaping the defense by introducing elements it must prove. This process may influence a wide range of strategic trial decisions, such as who is called to testify, the questions asked on direct and cross-examination, and what arguments are made in summation. ¶17 Instructing the jury to consider an affirmative defense over the defendant’s objection interferes with the accused’s right to present a chosen defense.

The Sixth Amendment places this important strategic decision squarely in the hands of the defendant, not the prosecutor or the trial court. C. Instructing the Jury on “Reasonable Belief,” over Coristine’s Objection, Violated His Sixth Amendment Rights ¶18 Coristine maintains he elected to forgo an affirmative defense as a matter of strategy; his sole defense was that the State failed to prove its case. The State disputes this, arguing that Coristine raised the affirmative defense by testifying that L.F. did not “appear” drunk.

But Coristine’s testimony served to cast doubt on the State’s case, consistent with his defense that L.F. was capable of consent. There is no basis to conclude Coristine offered this testimony in support of an unargued defense that he reasonably believed that L.F. was not mentally incapacitated or physically helpless. Rather, it supported his argument that she was not in fact incapacitated or helpless. ¶19 Writing approvingly of the trial court’s decision to force an affirmative defense on Coristine, the Court of Appeals argued that failure to give the instruction “might well have been error.” Coristine, 161 Wn.

App. at 951. This is incorrect. While an attorney’s failure to recognize and raise an affirmative defense can fall below the constitutional minimum for effective representation, the record here confirms a valid strategic decision. See In re Pers. Restraint of Hubert, 138 Wn. App. 924, 928-29, 158 P.3d 1282 (2007) (“ ‘[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” (alteration in original) (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984))). ¶20 The distinction is between failing to recognize a defense and validly waiving one. Once a trial court determines that a defendant’s waiver of an affirmative defense is voluntary and intelligent, it cannot direct the defense it believes is necessary to ensure constitutionally effective counsel at the expense of the defendant’s right to control a chosen defense. Because Coristine validly waived his right to mount a reasonable belief affirmative defense, the trial court violated his Sixth Amendment rights when it failed to respect his decision. D.

The Sixth Amendment Violation Is Not Harmless ¶21 We must determine whether the constitutional error in this case warrants vacating Coristine’s conviction and remanding for a new trial. Some fundamental constitutional errors “are so intrinsically harmful as to require automatic reversal,” but for “all other constitutional errors,” we apply harmless-error analysis to determine whether reversal is appropriate. Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).

In Jones, we recognized that a violation of the defendant’s right to control his own defense may be subject to review for harmless error. 99 Wn.2d at 748. ¶22 The notion of constitutional harmless error arrived relatively late to American courts. Although federal law and procedure had long allowed appellate courts to decide cases “without regard to errors or defects which do not affect the substantial rights of the parties,” 28 U.S.C. § 2111, and although all 50 states had harmless-error statutes in place by 1967, the Supreme Court’s ratification of constitutional harmless-error analysis in Chapman v.

California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), was a landmark. ¶23 Chapman held that if trial error is of constitutional magnitude, prejudice is presumed and the State bears the burden of proving it was harmless beyond a reasonable doubt. Id. at 24; accord State v. Irby, 170 Wn.2d 874, 886, 246 P.3d 796 (2011).

The Court announced this rule as a constitutional minimum protection for the rights of accused persons, observing that “we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights.” Chapman, 386 U.S. at 21. Although Justice González’s dissent today invites the court to adopt an imaginative new test for harmless error, the parties did not brief this issue and we did not grant review to consider it.

We therefore decline to engage in an unnecessary debate about the merits of our present test. ¶24 Under the Chapman standard, the State has not demonstrated that forcing an affirmative defense upon Coristine after the close of the evidence was harmless beyond a reasonable doubt. Preliminarily, the error in this case was not merely the giving of a gratuitous or unnecessary correct instruction. This is because the injury was not to Coristine’s right to be tried by a jury applying accurate instructions of law.

Instead, the trial court erred by denying Coristine his Sixth Amendment right to mount the defense of his choosing. McKaskle, 465 U.S. at 177-78. A deprivation of this right respecting individual autonomy is error even if the trial court’s instructions in the law are a model of accuracy.

Indeed, if seizing control over a defendant’s trial strategy were harmless so long as the court correctly instructed the jury in the defense it chose, little would remain of the Sixth Amendment right to control one’s defense. ¶25 On the facts of this case, the presence of the unwanted instruction was not inconsequential to the jury’s deliberations. First, the instruction risked confusion between the jury’s consideration of the victim’s capacity and Coristine’s “reasonable belief” in her capacity, an issue that had not been directly addressed in the evidence.

We need not determine whether the affirmative defense instruction shifted the burden of proof to the defense on the issue of capacity, as Coristine asserts. It certainly impacted jury deliberations by interfering with Coristine’s straightforward presentation of his sole defense — that L.F. was in fact not incapacitated.

The likelihood of confusion was compounded here by the fact that the jury heard no testimony about reasonable belief, as the instruction was not forced upon Coristine until after the close of the evidence. ¶26 Chief Justice Madsen, in a separate dissent, argues that the timing of the decision to give the affirmative defense instruction — after the close of the evidence — was somehow less prejudicial than the alternative. Dissent (Madsen, C.J.) at 386.

The argument rests solely on a comparison between this case and Jones, i.e., at least Coristine was not required to maintain inconsistent theories of defense from the start of the trial, as was Jones. But we cannot conclude Coristine suffered less prejudice as a result. Because the trial court in Jones forced the defendant to mount an insanity defense at the outset of his trial, Jones had the opportunity to present evidence, expert or other testimony, and cross-examination addressing this alternative theory. Jones, 99 Wn.2d at 738-39.

In Coristine’s case, the affirmative defense was presented to the jury after the opportunity had passed for Coristine to offer evidence to support it. 3 VRP at 393, 399. We cannot agree with Chief Justice Madsen that a defendant who does not have the opportunity to support an unwanted defense by offering evidence somehow suffers less prejudice than one who does. ¶27 The presence of an unwanted affirmative defense instruction is particularly problematic in a case, such as this, that involves the relative credibility of a handful of eyewitnesses, including the victim and the accused.

We do not share the dissenters’ confidence that the instruction was inconsequential or that the two defenses were essentially consistent. Indeed, the mere fact that the parties thought it mattered and strenuously debated the giving of the affirmative defense instruction should undermine such confidence.

Given the nature of the issues involved, the absence of an opportunity to present evidence tailored to the affirmative defense, and the tension between Coristine’s chosen defense and the theory of “reasonable mistake,” we cannot say that instructing the jury over his objection was not the “slight impetus” that affected the verdict. Glasser v. United States, 315 U.S. 60, 67, 62 S. Ct. 457, 86 L. Ed. 680 (1942). Accordingly, we hold that the violation of Coristine’s Sixth Amendment right to control his defense was not harmless beyond a reasonable doubt. Under the Chapman standard, a new trial is required.

CONCLUSION ¶28 The trial court violated Coristine’s Sixth Amendment right to control his own defense by instructing the jury on an affirmative defense that Coristine did not want to pursue. This constitutional violation was not harmless beyond a reasonable doubt. We reverse the Court of Appeals and remand for a new trial. C. Johnson, Owens, and Fairhurst, JJ., and Chambers, J. Pro Tem., concur. Wiggins, J, concurs in the result only. To be clear, absolute denial of a defendant’s right to control the defense is structural error and not subject to harmless-error analysis. See, e.g., McKaskle, 465 U.S. at 177 n.8.

However, we review lesser deprivations of this right for harmless error. See Jones, 99 Wn.2d at 748. As in Jones, the error here was not an absolute deprivation. We therefore presume that it caused prejudice and reverse and remand for a new trial unless the State proves it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). We also note that the errors in Jones, while different from those here, do not constitute the necessary or sufficient facts for a finding of reversible error.

The question of whether error is harmless or reversible does not rest on bright-line rules; it is contextual and arises from the facts of the case. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (reciting “a host of factors” to consider in determining whether error was harmless beyond a reasonable doubt). The question here is not whether or to what degree this case resembles Jones, but whether the error was harmless beyond a reasonable doubt. At any rate, Coristine was in fact saddled with inconsistent defenses during the critical period of the jury’s deliberations.