State Of Washington v. Gary Bernard Sanders Ii ( 2018 )

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iN THE COURT OF APPEALS OF THE S``E``ATE OF WASH|NGTON
THE STATE OF WASH|NGTON, ) No. 75075-5-E
)
Respondent, ) DlVlS|ON ONE
)
v. )
)
GARY BERNARD SANDERS l|, )
) UNPUBLESHED OP|N|ON
Appei|ant, )
)
COREY ASTANE_|V|N MANN, )
)
Defendant. ) FELED: October 22, 2018
SCHlNDLER, J. -- Gary Bernard Sanders ii seeks reversai of the jury conviction
for felony murder in the first degree. Sanders claims the trial court erred in refusing to
give a clarifying instruction during jury deliberations and insufficient evidence supports
the jury finding hirn guiity of the predicate crime of burgiary in the first degree The to~
convict jury instruction and the instruction on the statutory affirmative defense to felony
murder in the first degree accurately state the |avv. The jury instructions made the law
manifestiy apparent and When read as a whole, were not ambiguous The court did not
abuse its discretion by instructing the jury to consider the instructions as a Whole and
refusing to give a clarifying instruction We also conclude sufficient evidence supports
NO. 75075-5-£/2
the jury finding Sanders guilty of the predicate crime of burglary in the first degree, and
affirm the jury verdict
FACTS
in 2013, 24~year-oid i.atasha Wali126 Wn.2d
12NO. 75075-5-|/13
136, 171, 892 P.Zd 29 (1995). A jury instruction that misstates the iaw may be an error
of constitutional magnitude § State v. Marguez, 131 Wn. App. 566, 575~76, 127
P.3d 766 (2006). We review de novo alleged errors of iaw in jury instructions State v.
lEiarnesl 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).
“ ‘Jury instructions are sufficient when they aliow counsel to argue their theory of
the case, are not misleading and when read as a whole property inform the trier of fact
of the applicable iaw.’ ” State v. Knutz, 161 Wn. App. 395, 403, 253 P.3d 437 (2011)2
(quoting State v. Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010)). When read as
a whole jury instructions must make the applicable iegai standard “ ‘manifestiy apparent
to the average juror.’ ” State v. t.eFaber, 128 Wn.2d 896, 960, 913 P.2d 369 (1996),
abrogated on other grounds bv State v. O’i-lara, 167 Wn.2d 91, 217 P.3d 756 (2009)3
(quoting State v. Alier_y, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)).
The court used 11 Washington Practice: Washington Pattern Jury instructions
Criminai 26.04, at 366 (3d ed. 2008) (VVPEC), to instruct the jury on the eiements of the
crime of felony murder in the first degree The to-convict “Jury instruction 13" states:
To convict a defendant of the crime of iVlurder in the First Degree
each of the foliowing eiements of the crime must be proved beyond a
reasonabie doubt:
(1) That on or about June 3, 2013, the defendant committed
Robbery in the First Degree or Burglary in the First Degree;
(2) That the defendant or another participant in the crime caused
the death of Latasha Waiker in the course of or in furtherance of such
crime;
(3) That Latasha Waiker was not a participant in the crime of
Robbery in the First Degree or Burgiary in the First Degree; and
(4) That any of these acts occurred in the State of Washington.
if you find from the evidence that each of these eiements has been
proved beyond a reasonable doubt, then it wiii be your duty to return a
2 internal quotation marks omitted
3 internal quotation marks omitted
13
No. 75075-5-!/14
verdict of guilty.
On the other hand, if, after weighing ali of the evidence you have a
reasonable doubt as to any one of these eiements, then it wiii be your duty
to return a verdict of not guilty.
The court used VVPiC 19.01, at 291, to instruct the jury on the affirmative defense
to felony murder in the first degree and felony murder in the second degree WPiC
19.01 is based on the statutory afhrmative defense RCW 9A.32.030(1)(c) and
.()50(‘i)(b).4 State v. Fisher, 185 Wn.2d 836, 848, 374 P.3d 1185 (2016); WP|C 19.01
cmt. at 292. Jury instruction 246 states:
lt is a defense to a charge of lViurder in the First and Second
Degree that the defendant:
(1) Did not commit the homicidai act or in any way solicit, request,
command importune, cause or aid the commission thereof; and
(2) Was not armed with a deadly weapon, or any instrument,
articie, or substance readily capable of causing death or serious physicai
injury; and
(3) Had no reasonabie grounds to believe that any other participant
was armed with such a weapon, instrumentl article or substance; and
(4) Had no reasonable grounds to believe that any other participant
intended to engage in conduct likeiy to result in death or serious physical
injury.
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 the evidence iri the case that
f The feiony murder in the second degree statute RCW 9A.32.650(1)(b) includes the same
affirmative defense as felony murder in the first degree RCW 9A.32.030(1)(c). RCW 9A.32.050(1)(b)
StateSZ
A person is guilty of murder in the second degree when . . . [h]e or she commits or
attempts to commit any feiony, including assauit, other than those enumerated in RCW
9A.32.G30(1)(c), anci, in the course of and in furtherance of such crime or in immediate
flight therefrom, he or she or another participant, causes the death of a person other
than one of the participants; except that in any prosecution under this subdivision (1)(b) in
which the defendant was not the only participant in the underiying crime if estabiished by
the defendant by a preponderance of the evidence it is a defense that the defendant:
(i) Did not commit the homicidal actor in any way soiicit, request, command
importune cause or aid the commission thereof; and
(ii) Was not armed with a deadly weapon, or any instrument, article or
substance readiiy capable of causing death or serious physical injury; and
(iii) Had no reasonable grounds to believe that any other participant was armed
with such a weapon, instrument, artic|e, or substance; and
(iv) i-iad no reasonable grounds to believe that any other participant intended to
engage in conduct likely to result in death or serious physicai injury.
14
NO. 75075-5-|/15
heid:
it is more probabiy true than not true. lf you find that the defendant has
estabiished this defense it wili be your duty to return a verdict of not guilty
as to this charge.fSi
ln State V. Gamboa, 38 Wn. App. at 409, 413, 685 P.Zd 643 (1984), the court
The statutory defense when read as a whole, negates none of the
elements the State was required to prove ii, that the defendants took
personal property from the victim by the use or threatened use of force in
the course of which activity the victim’s death was caused. The defense
merely permits an accused to disprove his participation in the homicidal
a_c_t1 not in the underiying feiony, and to establish that he was not armed
and was ignorant of his coparticipant's being armed and of the likelihood
of death or serious physical iniury.[61
See aiso State v. Rice, 102 Wn.2d 120, 126, 683 P.ZG 199 (1984).
The concluding instruction states, in pertinent part:
When compieting the verdict forms for defendant Gary Sanders,
you wiii first consider the crime of lVlurder in the First Degree as charged
if you unanimously agree on a verdict, you must fill in the biank provided
in verdict form A the words “not guiity” or the Word “guilty,” according to
the decision you reach. |f you cannot agree on a verdict, do not fili in the
blank provided in Verdict Form A.
if you find the defendant Gary Sanders guiity on verdict form A, do
not use verdict forms B, C, or D. If you find the defendant not guiity of the
crime of Murder in the First Degree or if after full and careful
consideration of the evidence you cannot agree on that crime you will
consider the lesser crirne of lVlurder in the Second Degree |f you find the
defendant not guilty of the crime of Niurder in the Second Degree or if
after full and careful consideration of the evidence you cannot agree on
that crime you will consider both iesser crimes of Robbery in the First
Degree and Burglary in the First Degree You must consider each of
these crimes separately Your verdict on one crime shouid not control
your verdict on the other. if you unanimously agree on a verdict for these
crimes, you must fii| in the blank provided in verdict form C and D the
words “not guiity” or the word “guiity”, according to the decision you reach.
5 The WPlC 19.01 note on use at 291 states, “Use this instruction with WPiC 26.04, Niurderm
First Degree--Fe|ony-Elements, and WP|C 27.04, Niurder--Second Degree-Feiony--Elements, which
set forth the elements of felony murder in the first or second degree when there are muitipie participants
and the statutory defense is in issue.”
6 Emphasis in original
15
NO. 75075-5-|/16
Sanders does not contend that the to-convict felony murder in the first degree
jury instruction or that the statutory affirmative defense to felony murder jury instruction
do not accurately state the law.7 Sanders ciaims the instructions are ambiguous
because the to-convict instruction states that if the jury finds the State has proved the
elements of the crime “beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty,” but the affirmative defense instruction states that if Sanders proves the
affirmative defense by a preponderance of the evidence “it will be your duty to return a
verdict of not guiity” to the charge of felony murder in the first degree.
Considered as a whoie, we conclude the instructions are not ambiguous and
cleariy address the reiationship between the to-convict instruction and the affirmative
defense instruction 'i'he jury instructions state that during deiiberations, the jury sha|i
“consider the instructions as a whoie.” The first sentence of the affirmative defense
instruction unequivocaliy states, “lt is a defense to a charge of Niurder in the First and
Second Degree." The affirmative defense jury instruction states that if Sanders shows
by a preponderance of the evidence that he did not commit the homicidal act, was not
armed with a deadiy weapon, had no reason to believe anyone else was armed, or had
no reason to beiieve anyone else intended to engage in conduct likely to cause death or
serious physical injury, it is a cornpiete defense to felony murder in the first degree and
the jury must find Sanders not guiity.
We review a trial court’s decision as to whether to give further instructions in
response to a request from a deiiberating jury for abuse of discretion. State v. Brown,
7 |n the cases Sanders cites, LeFaber, 128 Wn.2d 896, and State v, Camgbeil, 163 Wn. App.
394, 260 P.3d 235 (2011), vacated on reconsideration by State v. Carnpbe||, 172 Wn. App. 1009 (2012),
the instructions did not accurately state the law.
16
NO. 75075-5~|/17
132 Wn.2d 529, 612, 940 P.2d 546 (1997). A triai court’s refusal to give a proposed jury
instruction is reviewed for an abuse of discretion in re Det. of Pouncy, 168 Wn.2d 382,
390, 229 P.3d 678 (2010). lt is within the sound discretion of the trial court whether to
give further instructions to a jury after it has begun deiiberations. State v. Ng, 110
Wn.2d 32, 42, 750 P.Zd 632 (1988). A trial court abuses its discretion only if its decision
is manifestly unreasonabie rests on untenable grounds, or is made for untenable
reasons. State ex rel. Carroii v. Junker, 79 Wn.2d 12, 26, 482 P.Zd 775 (1971).
Where the instructions accurately state the |aw, the trial court need not further
instruct the jury. Ng, 110 Wn.2d at 42-44. A court does not abuse its discretion by
referring the jury to the instructions aiready given that correctly state the law. Ng, 110
Wn.2d at 42-44. Jury questions do not create an inference that the “entire jury was
confused, or that any confusion was not clarified before a final verdict was reached.”
§g, 110 Wn.2d at 43.8 “ '[Q]uestions from the jury are not final determinations.’ ” §g,
10 Wn.2d at 439 (quoting State v. Mi|ler, 40 Wn. App. 483, 489, 698 P.2d i123 (1985)).
“ ‘[T]he decision of the jury is contained exclusively in the verdict.’ " _i§|_g, 10 Wn.2d at 43
(quoting Mj]jer, 40 Wn. App. at 489).10
During deiiberations, the jury submitted three “Jury De|iberations Question”
forms. On the first day of deliberations, the jury submitted a Jury Deiiberations
3 Sanders aiso cites Recommendation 38 from the Washington State Jury Cornmission that
states, "'i'ria| judges should make every effort to respond fuiiy and fairly to questions from deliberating
jurors” and “shou|d not merely refer them to the instructions without further comment.” 11A Washington
Practice: Washington Pattern Jury lnstructions: Crirnina|, app. l-il at 834 (3d ed. 2008).
9 A|teration in original.
1° We note that where as here a defendant agrees to and proposes a jury instruction, the
defendant cannot challenge the instruction on appea|. State v. Henderson, 114 Wn.2d 867, 870-71, 792
P.2d 514 (1990).
17
No. 75075~5“|/1 8
Question: “Does the instruction # 13 apply to Defendant Gary Sanders.” Sanders’
attorney and the prosecutor agreed the court should respond by stating, “Yes.”
The next morning, the jury submitted a second Jury Deliberations Question:
As it reiates to Defendant Sanders:
There are questions regarding the sequence of deliberations as it reiates
to the instructions
Question #1
lf the jury determines that a_|i of the eiements of the crime as
identified in instruction 13 are proven, how is the jury to apply instruction
24G?
Question #2
If the jury determines that the defenses identified in instruction 246
are atl proven out, how does that fact affect the proof estabr§$hed in
instruction #13?li1i
Sanders proposed the court respond by stating, “if the jury agree that the four
factors in instruction 246 have been estabiished, the verdicts for Defendant Gary
Sanders on Verdict Forms A and 8 as to him should be Not Guiity." Sanders aiso
proposed submitting a special verdict form to the jury asking, “Do the jury find that each
of the four factors iisted in instruction 24G has been estabiished.” The court rejected
the proposed response and speciai verdict form. The court responded to the jury
inquiry by stating, “Piease re-read your instructions carefully The use of verdict forms
and how they are to be applied is contained within."
11 Emphasis in original.
18
i\|o. 75075-5-|/19
That afternoon, the jury submitted a third Jury Deiiberations Question:
As it reiates to Defendant Sanders:
Can the jury convict for murder in the ist degree based upon itern 13 as
written, without consideration of instruction 24G.
Sanders argued the jury question was “ambiguous” and proposed the court give
“a substitute To-Convict instruction . . , for each offense felony murder 1 and the iesser
crime of feiony murder 2, in which the ``i'o-Convict instruction for each offense adds the
absence of the four factors of affirmative defense.” The court rejected the request The
court responded, “You rnust consider ali the instructions as a whoie. Read the
instructions in their entirety.”
The foliowing morning, the jury returned a verdict finding Sanders guilty of felony
murder in the first degree
There is no dispute the court fuiiy and fairly responded to the firstjury inquiry
Because the second jury inquiry specifically asked questions “regarding the sequence
of deiiberations” for the to-convict and the affirmative defense we conciude the court
did not abuse its discretion by rejecting Sanders‘ request to provide a suppiernentai
instruction or a special verdict form and instructing the jury to consider the instructions
as a whole and read the instructions in their entirety. Because the jury instructions
made the law manifestly apparent and were not ambiguous, the court did not abuse its
discretion in responding to the third jury question by instructing the jury that it must read
the instructions in their entirety as a whoie. We presume that jurors follow the court’s
instructions. State v. Kaiebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015).
Sanders contends there is insufficient evidence to support the predicate crime of
burgiary in the first degree and the feiony murder conviction. We considered and
19
No. 75075-5-i/20
rejected the same argument in State v. Mann, 4 Wn. App. 2d 1034, 2018 WL 3238683,
at *5-*7. We adhere to our decision in Mann.
We afhrm the jury conviction of felony murder in the first degree
WE CONCURZ
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