109 Wash. App. 494 | Wash. Ct. App. | 2001
— Aaron Howerton was convicted of first degree aggravated murder in May 1995 and was sentenced to a term of life in prison. At trial, the State argued that Howerton was the principal actor in the murder and that he was aided by Timothy Barnes (AKA“T-Dog”). In response to conflicting evidence regarding the extent of Howerton’s involvement, however, the State alternatively maintained his culpability as an accomplice. After finding Howerton guilty of first degree premeditated murder, the jury returned affirmative findings on two aggravating factors. While Howerton alleges several errors in this petition, most of his argument focuses on whether aggravating factors can be applied to enhance a defendant’s sentence based on accomplice liability. For the reasons set forth below, Howerton’s petition is denied.
FACTS
On May 1, 1994, Wilder Eby was shot and killed and his car and other property were stolen. Eby’s mother reported him missing when he did not return home the next day. Several days later, when the police discovered that Howerton had some of Eby’s stereo equipment in his car, they began to suspect his involvement in Eby’s disappearance. The police obtained a search warrant for Howerton’s car and confronted him with their suspicions. Howerton told the police that Barnes had shot Eby. Howerton explained that he, Barnes, and Eby had driven to a remote area to smoke marijuana. He claimed that at one point he asked Eby (who was driving) to stop the car so that he could urinate. As Howerton was urinating on the side of the road,
Barnes gave the police a different account of what happened. Barnes claimed that Howerton approached him and asked for his help in murdering and robbing Eby. After agreeing to help, Barnes said that he, Howerton, and Eby drove to a secluded area upon Howerton’s suggestion. When Howerton asked Eby to stop the car so that he could urinate, the three men got out. It was at that point that Howerton shot Eby. Barnes pleaded guilty to first degree murder and agreed to testify against Howerton.
At trial, several witnesses testified that both Howerton and Barnes talked about killing and robbing Eby beforehand, and similarly, both claimed responsibility afterwards. The State argued that Howerton planned the murder/ robbery, pulled the trigger, and took Eby’s stereo. Because the witness testimony was conflicting, however, the State alternatively maintained Howerton’s culpability as an accomplice.
The jury found Howerton guilty of first degree premeditated murder, and by special verdict found that both aggravating factors existed. Howerton was sentenced to life imprisonment without the possibility of release or parole. This court denied Howerton’s appeal in January 1998, and he filed this petition in November 1999. We then postponed
DISCUSSION
1. Aggravating Factors
“A person is guilty of aggravated first degree murder if he or she commits murder as defined by RCW 9 A. 32-.030(l)(a). . ,”
We, the jury, having found the defendant guilty of murder in the first degree, make the following answers to the questions submitted by the court:
QUESTION: Has the State proven the existence of the following aggravating circumstance beyond a reasonable doubt?
The defendant or an accomplice committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime.
ANSWER: Yes
(Yes or No)
QUESTION: Has the State proven the existence of the following aggravating circumstance beyond a reasonable doubt?
The murder was committed in the course of, in furtherance of, or in the immediate flight from robbery.
ANSWER: Yes
(Yes or No)
Based on the jury’s affirmative findings on these aggravating factors, Howerton was given a mandatory sentence of life imprisonment without the possibility of release or parole. See RCW 10.95.030(1).
Although there is no specific statutory authorization for the application of complicity principles to an aggravated murder charge, it is a possibility envisioned by the Legislature. The Legislature’s intent is most apparent in RCW 10.95.070, which lists several factors to be considered in a special sentencing proceeding following an aggravated murder conviction. Under this section, it is a mitigating factor if “the defendant was an accomplice to a murder committed by another person where the defendant’s participation in the murder was relatively minor [.]”
This conclusion regarding the theoretical applicability of the aggravating factors to accomplices to premeditated murder, however, is but the first step in the analysis of this issue as it is presented in this case. The more difficult question is whether these aggravating factors can be attributed to a defendant solely on the basis of complicity. In other words, did the Legislature intend to hold accomplices to murder strictly liable for the existence of aggravating factors or must the State prove the applicability of the factors to the individual defendant?
Our Supreme Court addressed a similar issue in State v. McKim, 98 Wn.2d 111, 653 P.2d 1040 (1982) when it considered “whether the deadly weapon statute . . . can be applied to enhance the sentence of a defendant who was not personally armed during the commission of an offense.” McKim, 98 Wn.2d at 112 (footnote omitted). In its analysis, the court noted that while under the old accomplice liability statute an accomplice could be held strictly liable for sentence enhancements, “[t]he new complicity statute . . . makes an accomplice equally liable only for the substantive crime — any sentence enhancement must depend on the accused’s own misconduct.”
As the McKim court concluded — and as Howerton argues in this case — a defendant’s culpability for an aggravating factor cannot be premised solely upon accomplice liability for the underlying substantive crime absent explicit evidence of the Legislature’s intent to create strict liability. Instead, any such sentence enhancement must depend on the defendant’s own misconduct. McKim, 98 Wn.2d at 117.
In this case, the jury was instructed that the first aggravating factor applied if “[t]he defendant or an accomplice committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime.”
With respect to the second aggravating factor, the jury was asked to decide whether “[t]he murder was committed in the course of, in furtherance of, or in immediate flight from robbery.” Howerton argues that because this interrogatory is worded entirely in the passive voice (without identifying an individual actor), it would similarly allow the jury to find the aggravating factor applicable to him based upon the acts of an accomplice. However, in suggesting that the second interrogatory is subject to the same attack as the first, Howerton ignores an important difference in the way they are worded. While the first interrogatory requires the jury to make a decision regarding the existence of a particular mental state (i.e., whether the murder was committed to conceal the commission of another crime or the identity of a person committing a crime), the second interrogatory focuses on a specific act (i.e., a robbery). According to McKim, application of this second aggravating factor must be premised on Howerton’s own misconduct. Thus, to determine whether this aggravator was properly applied to Howerton, the key inquiry is whether there is evidence sufficient to implicate Howerton in the robbery.
It is undisputed that Howerton was present when the murder and subsequent robbery occurred. Furthermore, the jury heard testimony from several witnesses who claimed to have heard Howerton and Barnes talking several days before the crime about killing the victim and stealing his stereo. Most importantly, Howerton himself admitted taking stereo equipment out of the victim’s car shortly after the murder. The victim’s stereo equipment and his hat were in fact recovered from Howerton’s car after he was arrested. These facts implicate Howerton in the robbery and act as a safeguard against the possibility that the jury attributed the second aggravating factor to Howerton based solely upon the conduct of an accomplice.
Moreover, because the murder and the robbery were so closely related temporally and spatially, and given
2. Effect of State v. Roberts
This case was stayed pending the Supreme Court’s decision in State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000), and both parties have submitted briefing as to its effect. In that case, Michael Roberts was tried, convicted, and sentenced to death for aggravated first degree murder. On appeal, the Supreme Court considered, inter alia, whether the jury instructions in that case “allowed the jury to improperly apply guilt phase accomplice liability principles to penalty phase aggravating factors.” Roberts, 142 Wn.2d at 500. The court began its analysis of this issue by noting the distinction between the two components of an aggravated first degree murder conviction: (1) an underlying conviction for first degree premeditated murder and (2) the existence of one or more of the aggravating factors listed in RCW 10.95.020. Roberts, 142 Wn.2d at 501. Then, after concluding that “the Legislature envisioned, at least in some circumstances, that an accomplice might be subject to the death penalty,” Roberts, 142 Wn.2d at 502, the court turned to the challenged jury instructions.
Framing the court’s analysis of the jury instructions was its recognition of the principle that “[t]he imposition of a
“(1) The defendant and his accomplice committed the murder to conceal the commission of a crime or to protect or conceal the identity of a person committing a crime; or
“(2) The murder was committed in the course of, in furtherance of, or in immediate flight from a robbery in the first or second degree or a kidnapping in the first degree.”
Roberts, 142 Wn.2d at 504. As to the first interrogatory, the court noted that at least some form of actus reus was required of the defendant because of the use of the word “and.” But the court also acknowledged that the interrogatory failed to specify the extent of the defendant’s requisite involvement in the murder. Roberts, 142 Wn.2d at 504. The court found the second interrogatory even more problematic because it required no finding of any actus reus on the part of the defendant due to the fact that it was worded in the passive voice. The court ultimately concluded that the aggravating factor instruction was flawed because each interrogatory allowed the jury to “impose capital punishment on Roberts even if he did not personally cause the victim’s death or if he was only a minor participant in the underlying events.” Roberts, 142 Wn.2d at 504. The court found the flaw in the jury instructions to be reversible error:
In summary, we hold when jury instructions as used in this case allow for the possibility that the defendant was convicted solely as an accomplice to premeditated first degree murder, the defendant may not be executed unless the jury expressly finds (1) the defendant was a major participant in the acts that caused the death of the victim, and (2) the aggravating factors under the statute specifically apply to the defendant.
Roberts, 142 Wn.2d at 508-09 (emphasis added).
3. Jury Instructions
After the instructions were read to the jury and after closing arguments from both parties, the trial court submitted to the jury a revised special verdict form which added the phrase “or an accomplice” to the interrogatory regarding the first aggravating factor. Howerton claims that by submitting this altered instruction to the jury without any explanation, the court improperly highlighted the instruction’s error.
While Howerton is correct in identifying the first interrogatory as an improper statement of the law (see above analysis), he has failed to demonstrate that he was prejudiced by the court’s decision to change the instruction and submit it separately. See In re Pers. Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982) (“[I]n order to prevail in a collateral attack, a petitioner must show that more likely than not he was prejudiced by the error.”). Even if the error in the first aggravating factor was improperly highlighted, the second factor remained unchanged and contained no such error. The jury’s finding as to the second aggravator is sufficient to uphold Howerton’s sentence.
4. Court’s Response to Jury Question
During its deliberation, the jury sent out a question regarding the special verdict form:
In Instruction No. 15 the first question starts “The defendant committed the murder to .. .” On the special verdict form the*506 question starts “The defendant or an accomplice committed the murder to . ..” Which question is correct? “The defendant” or “The defendant or an accomplice.”
Br. of Pet’r, at App. C. After the bailiff called defense counsel and informed him of the court’s intended reply, the court submitted the following statement: “You should follow the instructions and you should answer the questions as put to you in the special verdict form.” Br. of Pet’r, at App. C.
Communications between judge and jury in the absence of the defendant or defense counsel are clearly prohibited and therefore constitute error. However, the State may prove that such an error is harmless beyond a reasonable doubt. State v. Allen, 50 Wn. App. 412, 419, 749 P.2d 702 (1988) (citing State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983)). Where, as in this case, a trial court’s response to a jury question conveys no additional information but directs the jury to refer to previous instructions, no prejudice results. Allen, 50 Wn. App. at 419-20. We hold that the trial court’s response to the jury question was harmless error.
5. RCW 9A.72.090: Bribing a Witness
RCW 9A.72.090(l)(a) provides in relevant part:
(1) A person is guilty of bribing a witness if he or she offers, confers, or agrees to confer any benefit upon a witness or a person he or she has reason to believe is about to be called as a witness in any official proceeding or upon a person whom he or she has reason to believe may have information relevant to a criminal investigation . .. with intent to:
(a) Influence the testimony of that person!.]”
Howerton argues that by promising several witnesses leniency in charging in exchange for their testimony, the State violated this statute. Howerton’s argument is without merit.
While Howerton cites no Washington cases to support his position, he points this court to the Tenth Circuit’s analysis of this issue under the federal bribery statute in United
6. Ineffective Assistance of Counsel
Howerton’s attorney at trial sought and received authorization and funding to hire neuropsychologist Dr. Lloyd Cripe. After interviewing Howerton, Dr. Cripe concluded that because of his low intellect and stunted psychological development, Howerton was likely to be passive and “more of a follower than a leader in relationships.” Decl. of Dr. Cripe, at 2. On appeal, Howerton argues that his trial attorney’s failure to present this evidence to the jury constituted ineffective assistance of counsel.
The court in State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) set forth the test for an ineffective assistance claim:
To demonstrate ineffective assistance of counsel, a defendant must make two showings: (1) defense counsel’s representation was deficient, i.e., it fell below an objective standard of reason*508 ableness based on consideration of all the circumstances; and (2) defense counsel’s deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.
Reviewing courts should begin this analysis with a strong presumption that representation was effective. State v. Brett, 126 Wn.2d 136,198, 892 P.2d 29 (1995). “Because the presumption runs in favor of effective representation, the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.” McFarland, 127 Wn.2d at 336.
As the State points out in this case, Dr. Cripe’s conclusion that Howerton would tend to be a “follower” was not consistent with the defense theory at trial; defense counsel argued that Howerton had no involvement in the murder— not as an accomplice or a principal. Defense counsel’s decision to refrain from introducing evidence to contradict its own theory of the case was clearly supported by legitimate strategic or tactical considerations. Furthermore, Howerton has presented no evidence to suggest that the outcome would have been different if Cripe’s evaluation had been presented to the jury. Thus, we reject Howerton’s ineffective assistance claim.
Howerton’s personal restraint petition is denied.
Baker and Ellington, JJ., concur.
RCW 9A.32.030(l)(a) states that a person is guilty of murder in the first degree when “[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person!.]”
An implicit prerequisite for consideration of this mitigating factor is the defendant’s conviction as an accomplice on an aggravated murder charge.
The old complicity statute (RCW 9.01.030) stated, in part, that “ ‘ “[e]very person concerned in the commission of a felony. .. whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent... is a principle, and shall be proceeded against and punished as such.” ’ ” McKim, 98 Wn.2d at 115-16 (quoting State v. Willis, 5 Wn. App. 441, 443, 487 P.2d 648 (1971)). This section was amended to its current form (RCW 9A.08.020) in 1976 and no longer provides for “punishment” of an accomplice to the same extent as the principle. McKim, 98 Wn.2d at 115-16.
The weapon enhancement now reads: “The following additional times shall be added to the standard sentence range for felony crimes ... if the offender or an accomplice was armed with a firearm. .. .” Former RCW 9.94A.310(3) (2000) (emphasis added).
The language of this interrogatory varies slightly from the language used in the aggravated murder statute: “The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crimef.]” RCW 10.95.020(9).
The State points out that the practice of plea bargaining for a reduced charge is specifically authorized by statute:
(2) In certain circumstances, a plea agreement with a defendant in exchange for a plea of guilty to a charge or charges that may not fully describe the nature of his or her criminal conduct may be necessary and in the public interest. Such situations may include the following:
(b) The defendant’s willingness to cooperate in the investigation or prosecution of others whose criminal conduct is more serious or represents a greater public threat!.]
RCW 9.94A.450(2)(b).