DocketNumber： Nos. 69043-0; 69050-2
Judges： Alexander, Talmadge
Filed Date： 12/14/2000
Status： Precedential
Modified Date： 11/16/2024
— We granted direct review of judgments of the King County Superior Court in two separate cases, State v. Bui and State v. Cronin. The principal and only common issue that is presented in the consolidated appeal of these cases is whether the jury in each case was provided with a correct instruction on the law regarding accomplice liability. For reasons stated herein, we conclude that the instructions were defective and not harmless in either case. Consequently, Bui’s conviction for first degree assault and Cronin’s conviction for aggravated murder in the first degree are reversed. Cronin’s conviction for first degree felony murder, not being affected by the erroneous jury instruction, is affirmed.
I. FACTS
State v. Bui
Linh Ngoc Bui associated with a Seattle gang known as
As the driver of the leading YOT car pulled his vehicle to a stop at an intersection, Bui maneuvered his car so that it blocked the other car’s passage. Tang then pulled in behind Bui. At this point a VB gang member exited from each VB car. The young men who exited the cars, Hung Van Nguyen and Lam Giang, then proceeded to open fire on the YOT car that was stopped. That car escaped without injury to any occupants. Passengers in the second YOT car were not, however, as fortunate. As that car approached the intersection at which the VB cars were located, Nguyen and Giang again opened fire. As a result, two YOT members were struck with bullets. This activity caused the second YOT car to quickly speed past the VB shooters who continued firing as the car made its getaway. After the incident, Bui and Tang transported their passengers to a home where some of the VBs lived.
Bui, Nguyen, Tang, and Giang were each charged with one count of “Assault in the First Degree” with the allegation that they used “firearms and deadly weapons” in the commission of the offense. Clerk’s Papers (CP) at 1. The State offered to recommend reduced sentences for Bui and
At the conclusion of all the testimony, the trial judge instructed the jury as follows:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing a crime.
CP at 87 (jury instruction 10). Bui’s counsel objected to this instruction, arguing that in order for accomplice liability to attach, the defendant must know the general nature of the specific crime that the principal intends to commit. Br. of Appellant at 17.
During closing arguments, the prosecutor proffered this explanation of accomplice liability:
[A]N ACCOMPLICE IS A PERSON WHO IS AN ACCOMPLICE IF HE ENCOURAGES OR AIDS ANOTHER PERSON IN COMMITTING A CRIME WITH KNOWLEDGE THAT WILL PROMOTE OR FACILITATE THE COMMISSION OF A CRIME. DOES THE STATE HAVE TO PROVE THAT LINH BUI KNEW THAT THE PERSON IN HIS CAR WOULD GET OUT AND SHOOT? NO. IT’S THE COMMISSION OF A CRIME.
DID LINH BUI KNOW BY HIS ACTIONS WHEN HE*573 CHASED AFTER ANOTHER CAR, WHEN HE PULLED ACROSS IN FRONT OF THEM AND BLOCKED THEM OFF IN AN INTERSECTION, ALLOWED HIS PASSENGERS TO GET OUT, DOES COMMON SENSE SHOW US THAT HE KNEW HE WAS FACILITATING THE COMMISSION OF A CRIME? HARASSMENT? PHYSICAL ASSAULT? ANY CRIME.
9 VRP at 26-27 (emphasis added). Bui’s counsel objected to this portion of the prosecutor’s argument and asked the trial court to instruct the jury that a defendant’s intent to harass could not satisfy the knowledge requirement and thus could not trigger accomplice liability for first degree assault. The trial judge declined to give the additional instruction.
During its deliberations the jury submitted the following question to the trial judge:
Accomplice liability
# 10 states “in the commission of a crime [”]
To be an accomplice to first degree assault, does he need to have knowledge that he is assisting in a first degree assault or that he is promoting a crime of any kind.
CP at 14. The trial judge responded to the inquiry:
The defendant does not need to know the specific crime (lst° assault) that will occur but must know the general nature of the crime that will occur[.]
CP at 14.
The jury found Bui and Nguyen guilty of all three counts of first degree assault, finding that they each used a “deadly weapon” in the commission of the offenses. CP at 16. At sentencing, Bui moved to dismiss the charges, arguing that there was insufficient evidence that he knew an assault was going to be committed. The trial court denied his motion but acknowledged that the record was “essentially silent” on the issue of whether Bui knew there would be a shooting. The trial court imposed an exceptional sentence for the underlying assault convictions of no time in prison and
State v. Cronin
On May 3, 1994, Timothy Cronin and fellow inmate Michael Roberts escaped from a minimum-security prison in Mission, British Columbia, Canada. The two men crossed the Canadian border into the United States and proceeded to embark on a crime spree in this state and the state of Oregon. Their criminal endeavors came to an end when they were arrested after robbing a health food store in Salem, Oregon. Cronin and Roberts were apprehended in their get-away vehicle—a gray Chevrolet Blazer that was registered to Mr. Eli Cantu of King County, Washington.
After telephone attempts to contact Cantu were unsuccessful, Oregon authorities contacted the King County police and asked them to visit Cantu’s residence in Edmonds in order to determine if Cronin and Roberts had stolen Cantu’s vehicle. Upon entering Cantu’s flat, the police officers found his lifeless body tied to a chair. A pool of blood, apparently caused by a fatal stab wound, lay beneath his body. This finding prompted two King County detectives to travel to Salem to speak with Cronin about Cantu’s death. The detectives gave Cronin his Miranda
The State subsequently charged Cronin in King County Superior Court with felony murder in the first degree and, in the alternative, premeditated first degree murder with alleged aggravating circumstances that the murder was committed: (1) to conceal the commission of a crime or to protect or conceal the identity of the perpetrator, and (2) in the course of, in furtherance of, or in immediate flight from
During a CrR 3.5
After the trial commenced, the State decided to introduce Cronin’s statement in its case in chief. The State acknowledged that initially it had not intended to use Cronin’s statement in its case in chief, but reconsidered its decision after Cronin’s counsel suggested in his opening statement that Cronin “was not present with Roberts at the murder scene,” and cross-examined a State’s witness to “cast doubt upon his identification of Cronin at the crime scene.” Br. of Resp’t at 41. Over objection by Cronin’s counsel, the trial court concluded that the statement would be admitted.
In his statement to the detectives, Cronin conceded that he had escaped from prison with Roberts and that, together with Roberts, he paid a visit to Cantu, a person whom Cronin described as Roberts’s friend. Essentially, Cronin claimed that Roberts asked Cantu if it would be possible for Cantu to help them by letting Roberts and Cronin “tie up” Cantu and take his vehicle so that it would appear that
The State proffered two theories for Cronin’s guilt for the murder of Cantu. One theory was that the evidence showed that Cronin was the actual killer of Cantu and that, therefore, he was guilty of premeditated murder. The other theory was that he was an accomplice to Roberts who committed the premeditated murder of Cantu.
Cronin asked the trial court to instruct the jury that in order for the jury to find him guilty as an accomplice to premeditated murder, it must find that he shared “the same intent or mental state possessed by the principal with reference to the crime charged.” The trial court declined to give Cronin’s proposed instruction and, instead, instructed the jury as follows:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commis*577 sion of a crime, he either:
(1) solicits, commands, encourages or requests another person to commit the crime; or
(2) aids or agrees to aid another person in committing a crime.
CP at 206 (jury instruction 7).
During closing arguments, the deputy prosecutor contended that Cronin was guilty of premeditated murder as an accomplice and explained the “theory” behind accomplice liability:
A person who is an accomplice to a crime is guilty of that crime. We’ve all heard the phrase “in for a penny, in for a pound,” “in for a dime, in for a dollar.” This is the principle, this is the policy underlying accomplice-liability.
VRP at 3998. The deputy prosecutor went on to state that in order for Cronin to be held accountable for premeditated murder, Cronin merely needed to aid or agree to aid:
in the commission of the assaultive behavior that unravels into that fatal stabbing.
VRP at 3999.
Cronin’s counsel disputed the State’s explanation of accomplice liability and contended that Cronin’s statement indicated that he did not know that Roberts was going to kill Cantu and, indeed, did not help plan the killing. Counsel claimed, further, that Cronin was not present when Roberts killed Cantu and was not apprised of the killing until after it occurred. He contended, therefore, that Cronin could not be found guilty as an accomplice to “Aggravated Murder in the First Degree.” CP at 268.
The jury found Cronin guilty of felony murder in the first degree and premeditated murder with one aggravating factor.
II. DISCUSSION
A. Accomplice Liability Instruction
Bui and Cronin both assert that the jury instruction relating to accomplice liability that was given to the jury at their respective trials was an incorrect statement of the law. They each contend that the accomplice liability instruction allowed the jury to find them guilty of a crime committed by another person if it found they had general knowledge that their actions would promote “a crime.” It is their position that under our state’s complicity statute, RCW 9A.08.020, a person is not culpable as an accomplice unless that person possesses general knowledge of the specific crime with which he or she is eventually charged. The State counters that the instruction, which Bui and Cronin assail, is modeled on WPIC 10.51. 11 Washington Pattern Jury Instructions: Criminal (2d ed. 1994). It submits that it is an accurate statement of the law on accomplice liability because, in its view, accomplice liability attaches so long as the defendant knows that he or she is aiding in the commission of any crime. The question before us then is whether a putative accomplice can be found guilty of the crime charged for merely acting with knowledge that his or her actions would promote or facilitate “any crime.”
We recently dealt with this precise issue in State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000). As we indicated there, the plain language of the complicity statute does not support the State’s argument that accomplice liability attaches so long as the defendant knows that he or she is
We adhere to our decision in Roberts and conclude here, as we did in that case, that the fact that a purported accomplice knows that the principal intends to commit “ ‘a crime’ ” does not necessarily mean that accomplice liability attaches for any and all offenses ultimately committed by the principal. See Roberts, 142 Wn.2d at 513. In our judgment, in order for one to be deemed an accomplice, that individual must have acted with knowledge that he or she was promoting or facilitating the crime for which that individual was eventually charged. Because the jury instruction which was given in the Bui and Cronin trials permitted the jury to find accomplice liability on an incorrect legal basis, they were legally deficient. The fact that the instruction was modeled on a Washington pattern instruction for a criminal case does not alter our conclusion.
The State contends that even if the jury instruction that was given in the Bui and Cronin trials is legally incorrect, any error that resulted therefrom was harmless. Suppl. Br. of Resp’t at 8. Bui and Cronin both assert that the erroneous instruction was not harmless and that their convictions should, therefore, be reversed.
In addressing the harmless error issue, we first observe
1. State v. Bui
In order to prove that Bui was an accomplice, the State had to show that Bui possessed general knowledge that he was aiding in the commission of the crime of assault. See Rice, 102 Wn.2d at 125 (citing Davis, 101 Wn.2d 654). As we have observed above, the jury instruction given to the jury departed from the accomplice liability statute and essentially allowed the jury to convict Bui as an accomplice if it found that he knew his actions would promote or facilitate “a crime.” Indeed, the prosecutor implored the jury to return a verdict of guilty if it found that Bui had facilitated any crime. 9 VRP at 26. Because the instruction relieved the State from meeting its burden of proving beyond a reasonable doubt that Bui knew that he was facilitating the crime of assault, the error cannot be said to be benign. See Jackson, 137 Wn.2d at 727.
Moreover, we do not agree with the State that the prejudicial effect of the erroneous instruction in question was mitigated by the judge’s attempt to “clarify” the in
In sum, we are satisfied that the jury instruction may have allowed the State to secure a conviction without having to prove beyond a reasonable doubt that Bui knew he was facilitating the commission of the crime of assault. Alleviating the State of this burden cannot be said to be error that is harmless.
2. State v. Cronin
In order to establish that Cronin committed premeditated first degree murder, the State had to prove that Cronin either (1) acted with premeditated intent and murdered Cantu or (2) had general knowledge that his confederate, Michael Roberts, would murder Cantu. Based on the jury’s answer to the special interrogatory, to the effect that Cronin did not “personally act with a premeditated intent to cause the death of Eli Cantu,” it is apparent that Cronin’s conviction for premeditated first degree murder hinged on accomplice liability. In order to convict Cronin as an accomplice to premeditated murder, the State had to prove
B. Other Issues
Although we have concluded that there was an instructional error that justifies a new trial for Bui on all of his convictions and a new trial for Cronin on his first degree murder conviction, it is necessary for us to briefly discuss two other issues that may resurface during Bui’s retrial. Cronin also raises an additional issue that relates to the validity of both of his convictions. Although we have concluded that the instructional error affected his first degree murder conviction, we are satisfied it did not affect his conviction for first degree felony murder. Thus, it is necessary for us to discuss this additional issue raised by Cronin.
1. State v. Bui
a. Testimony of June Kansap
Bui contends that the trial court abused its discretion by allowing his girl friend, June Kansap, to testify, over his counsel’s objections, that she heard what she believed was a gunshot at the Jackson Street house several hours before the shooting. Br. of Appellant at 37. The State responds that the trial court has broad discretion in admitting testimony at trial and that it did not abuse its discretion in allowing Kansap’s testimony.
At trial, Kansap testified that approximately four hours
WELL, WHAT IS INTERESTING ABOUT [KANSAP’S] STATEMENT IS THAT IT’S CLEAR THAT LINH BUI KNOWS THAT THESE PEOPLE HAVE GUNS IN THE HOUSE. AND IT’S CLEAR THE OTHER PEOPLE HAVE GUNS, KNOW THERE ARE GUNS IN THE HOUSE. THIS ISN’T A BIG SURPRISE THAT PEOPLE SUDDENLY JUMP OUT OF THESE CARS AND STARTED SHOOTING.
9 VRP at 31 (emphasis added).
Bui alleges that Kansap’s testimony had no relevance on the issue of whether he had knowledge that he was facilitating the commission of an assault when he blocked the YOT car. He claims, additionally, that even if the testimony has some relevance on that issue, its prejudicial effect substantially outweighs any probative value it may have.
We are satisfied that the trial court did not err in concluding that Kansap’s testimony was relevant.
Bui asserts that Kansap’s testimony was “highly inflammatory” and allowed the State to make the “unfair suggestion” that Bui “knew that someone in his group had a gun and intended to commit an assault.” Br. of Appellant at 38-39. We reject this argument. Although Kansap’s testimony may have been beneficial to the State’s case, nothing in her testimony appears to have had the capacity to inflame the jury or numb its sense of reason or logic. We do not believe, therefore, that the trial court abused its discretion in allowing Kansap to testify as to what she heard a few hours before the shooting occurred.
b. Consecutive Sentencing
Bui also asserts that the trial court erred when it ruled that RCW 9.94A.310(3)(e) mandates that the three firearm enhancement sentences were to be run consecutively. We are not inclined to discuss this issue because it may not be an issue on retrial. In the event the issue should resurface, we believe that our recent decision in In re Post Sentencing Review of Charles, 135 Wn.2d 239, 955 P.2d 798 (1998), provides the trial court with the necessary guidance in interpreting RCW 9.94A.310. See also In re Personal Restraint of Greening, 141 Wn.2d 687, 694, 9 P.3d 206 (2000).
2. State v. Cronin
Cronin argues that the trial court erred in allowing the State, in its case in chief, to play to the jury the tape-recorded statement Cronin gave to the King County detec
We review a trial court’s evidentiary rulings under the abuse of discretion standard. See State v. Myers, 133 Wn.2d 26, 34, 941 P.2d 1102 (1997). An evidentiary ruling will remain undisturbed by this court unless we find that the trial court’s ruling is based on untenable grounds or was made for untenable reasons. See State v. Norlin, 134 Wn.2d 570, 576, 951 P.2d 1131 (1998).
Cronin asserts that the prosecution entered into the functional equivalent of a “pretrial stipulation” at the confession hearing held pursuant to CrR 3.5 when it stated it would not use the statement other than for impeachment purposes. In our judgment, the trial court did not act in a manifestly unreasonable fashion when it ruled that the State could play Cronin’s recorded statement for the jury’s consideration. We say that because, after reviewing the record, we are satisfied that the State did not stipulate that it would not use Cronin’s statement in its case in chief. The record reflects, rather, that the deputy prosecutor informed the trial court that “[fit’s our anticipation at this point that we do not and will not be using Mr. Cronin’s statement in our case in chief.” VRP at 4 (emphasis added). We have previously observed that:
Generally, a stipulation is an agreement between the parties to which there must be mutual assent. Furthermore, to be effective, the terms of a stipulation must be definite and certain.
State v. Parra, 122 Wn.2d 590, 601, 859 P.2d 1231 (1993) (citation omitted) (citing 73 Am. Jur. 2d Stipulations § 2 (1974)). The equivocal statement made by the State at the CrR 3.5 hearing does not qualify as a “definite and certain” statement. Consequently, we do not believe that the trial court abused its discretion in allowing the State to present Cronin’s statement in its case in chief.
In conclusion, we hold that the trial court’s jury instruction regarding accomplice liability in both State v. Bui and State v. Cronin was legally deficient. We also hold that the instructional error was not harmless in either case. We conclude, therefore, that Bui’s convictions for first degree assault are reversed. We also reverse Cronin’s conviction for premeditated first degree murder for the same reason. Finally, we conclude that because Cronin’s first degree felony murder conviction was unaffected by the instructional error, a point Cronin concedes, his felony murder conviction should be affirmed.
Smith, Johnson, Madsen, and Sanders, JJ., concur.
The evidence disclosed that Bui was not an actual member of the gang but, rather, was an “associate” who spent time with gang members.
Flashing a gang sign involves some type of gesture or hand movement that signifies gang affiliation. 4 Verbatim Report of Proceedings (VRP) at 30-31.
Tang agreed to testify for the State and pleaded guilty to a reduced charge of rendering criminal assistance.
The record does not reflect if Giang was ever tried for first degree assault.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Roberts was tried separately and convicted of aggravated first degree murder and sentenced to death. We reversed his first degree murder conviction, vacated the sentence of death and remanded for retrial. State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000).
CrR 3.5(a) states, in relevant part, that: ‘When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible.”
Roberts had been serving a sentence for murder.
The jury did not find that the murder was committed to conceal the commission of a crime or to protect or conceal the identity of a person committing a crime. It did, however, find that the murder was committed in the course of, in fiirtherance of, or in immediate flight from a robbery in the first or second degree or a kidnapping in the first degree.
At sentencing, the trial court determined that the felony murder charge merged with the aggravated first degree murder charge. CP at 169.
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401.
Cronin did not testify at trial.