138 Wash. 2d 680 | Wash. | 1999
— The State of Washington charged Nicholaus J. McDonald in Grays Harbor County Superior Court with three counts of aggravated first degree murder. A jury found McDonald guilty of two counts of the lesser-
FACTS
On August 11, 1995, after walking into a police station in Grants Pass, Oregon, 17-year-old Nicholaus McDonald implicated his 16-year-old boyfriend Brian Bassett (hereinafter Bassett) in the shooting deaths of Bassett’s parents, Michael and Wendy Bassett. McDonald indicated to the Grants Pass police officers that the shootings took place at the Bassetts’ home in McCleary, Washington, at approximately 12:30 a.m. that day. He said that Bassett, who had been “kicked out” of his parents’ home, climbed up a ladder and then surreptitiously entered the home through a second-floor window. Verbatim Report of Proceedings (RP) at 1274. McDonald revealed that as he waited outside of the house he heard gunshots. Bassett, according to McDonald’s statement to the Grants Pass police, thereafter came out and accompanied McDonald inside, allegedly telling him that “I had to finish his parents off.” RP at 1766. McDonald also implicated himself in the drowning death of Bassett’s five-year-old brother Austin. McDonald was returned to Washington and was thereafter charged in Grays Harbor County Superior Court with three counts of
A police officer who had taken McDonald’s statement in Grants Pass testified at trial and indicated that McDonald told him that upon entering the home with Bassett he found Bassett’s parents lying dead with their child, Austin, crying and touching his parents in an apparent effort to rouse them. The officer went on to say that McDonald told him that Bassett filled a bathtub and told Austin, who was covered in his parents’ blood, “that he had to take a bath.” RP at 1277. The officer said that McDonald told him that “he then went into the bathroom and that Bassett was waiting just outside the door,” and “that he feared Bassett would shoot him, so he held the boy under the water face down until he was drowned.” RP at 1282.
McDonald testified at trial and admitted that he shot Michael once in the head with Bassett’s gun, claiming that he did so only to relieve Michael’s “suffering” after Bassett had already shot him. RP at 1860. “I felt that he was suffering,” he testified, “. . . and I heard what sounded like air was—like, his lung was shot and air was going through the lung or through the hole.” RP at 1860-61.
McDonald denied that he had shot Wendy Bassett, and, despite his earlier statements to the Grants Pass police, he also denied having drowned Austin Bassett. McDonald claimed that his earlier confession to Austin’s murder was intended to conform to a “concoction that me and Brian had came to,” RP at 1841, and now claimed that he had entered the bathroom to find that Bassett had already drowned Austin in the bathtub. Instead of assisting Bassett in this murder, McDonald asserted that “I gave him a dirty look.” RP at 1795. McDonald admitted to driving off alone with the bodies of Austin and Michael and hiding them along a logging road. He also conceded that he helped Bassett hide Wendy’s body in the Bassetts’ pump house, and
A forensic pathologist testified for the State. His testimony revealed that Michael Bassett had been shot five times, and that either of two gunshot wounds to Michael’s head, including the one that McDonald admitted to, would have been fatal. Moreover, of the other three gunshot wounds, one—a gunshot wound to the heart—would have been fatal. Yet another wound “may have been fatal.” RP at 1221. According to the pathologist, the order in which these injuries occurred could not be determined.
The jury acquitted McDonald of the murder of Wendy Bassett, and found him guilty of the second degree murders of Austin and Michael Bassett. McDonald appealed to the Court of Appeals, Division Two, which unanimously affirmed the trial court in a partially published opinion. See State v. McDonald, 90 Wn. App. 604, 953 P.2d 470, review granted, 136 Wn.2d 1019, 969 P.2d 1064 (1998). We granted McDonald’s petition for review.
ANALYSIS
1. McDonald’s contention that his act of shooting Michael Bassett, after Michael had been mortally wounded, was not a proximate cause of Michael’s death.
McDonald would have us examine the question of whether his act of shooting Michael Bassett constituted, as a matter of law, a proximate cause of Michael’s death. Although McDonald concedes that Michael was alive at the time he shot him, he contends that his act was not the proximate cause of Michael’s death because Michael’s death was already imminent due to gunshot injuries inflicted by Bassett. In support of this contention, he points to the testimony of the forensic pathologist, who indicated that before McDonald fired a gun at Michael’s head, Michael had already sustained two, and possibly three, gunshot wounds—each of which would have been fatal. The question posed by McDonald is whether McDonald’s conduct in shooting Michael was a proximate cause of Michael’s death.
To constitute murder, there must be a causal connection between the death of a human being and the criminal conduct of a defendant or a person to whom a defendant acts as an accomplice so that the act done was a proximate cause of the resulting death.
The term ‘proximate cause’ means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened.
There may be more than one proximate cause.
If you are satisfied beyond a reasonable doubt that the acts of the defendant or a person to whom he acted as an accomplice, were a proximate cause of the death of the deceased, it is not a defense that the conduct of another may also have been a proximate cause of the death.
Clerk’s Papers (CP) at 30 (emphasis added). With the exception of the reference to “accomplice,” the first three paragraphs mirror Washington Pattern Instructions— Criminal (WPIC) 25.02. The last paragraph is taken verbatim from WPIC 25.03. See 11 Washington Practice: WPIC §§ 25.02-03, at 276-80 (2d ed. 1994). As the Court of Appeals correctly observed, under this instruction the jury could find “either that McDonald’s gunshot was one of multiple proximate causes of Michael’s death or that McDonald acted as an accomplice to Bassett, whose gunshots were a proximate cause of Michael’s death.” McDonald, 90 Wn. App. at 610.
The State avers that we need not decide the question posed by McDonald because there is substantial evidence from which the jury could have convicted McDonald as an accomplice of Bassett. That being the case, it argues that we need not address the question of principal liability for McDonald. For reasons we set forth hereafter, we agree with the State that there is substantial evidence in the record that McDonald acted as Bassett’s accomplice. We also
We are not unmindful of the fact that where the trial court instructs the jury that there are alternative means of committing the charged criminal act, and does not require a unanimous determination of which alternative is used, we have required substantial evidence of each alternative. See State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984) (citing State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976)), modified on other grounds by State v. Kitchen, 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988). Consistent with that view, we have noted that “if the evidence is insufficient to present a jury question as to whether the defendant committed the crime by any one of the means submitted to the jury, the conviction will not be affirmed.” State v. Ortega-Martinez, 124 Wn.2d 702, 708, 881 P.2d 231 (1994) (citing State v. Whitney, 108 Wn.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980); State v. Simon, 64 Wn. App. 948, 831 P.2d 139 (1991), aff’d in part, 120 Wn.2d 196, 840 P.2d 172 (1992)).
These cases have turned, however, upon alternative means of principal liability: for example, premeditated murder and felony murder as alternative means described in a jury instruction of committing first degree murder. See State v. Fortune, 128 Wn.2d 464, 909 P.2d 930 (1996). In contrast, we have never before held that accomplice liability qualifies as an alternative means of committing a single offense also presented on the basis of principal liability. Were
The legislature has said that anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal, regardless of the degree or nature of his participation. Whether he holds the gun, holds the victim, keeps a lookout, stands by ready to help the assailant, or aids in some other way, he is a participant. The elements of the crime remain the same.
State v. Carothers, 84 Wn.2d 256, 264, 525 P.2d 731 (1974) (emphasis added), disapproved on other grounds by State v. Harris, 102 Wn.2d 148, 153-54, 685 P.2d 584 (1984). Accordingly, “a verdict may be sustained upon evidence that the defendant participated . . . as an aider or abettor, even though he was not expressly accused of aiding and abetting and even though he was the only person charged in the information.” Carothers, 84 Wn.2d at 260 (citing State v. Frazier, 76 Wn.2d 373, 456 P.2d 352 (1969); State v. Brown, 75 Wn.2d 611, 452 P.2d 958 (1969)). Here the jurors need not have decided whether it was Bassett or McDonald who actually killed Michael “so long as both participated in the crime.” State v. Hoffman, 116 Wn.2d 51, 105, 804 P.2d 577 (1991).
The only authority we can find that supports the proposition that substantial evidence must support finding McDonald guilty as both a principal and an accomplice is an opinion from Division One of the Court of Appeals. There the court reversed a conviction, and remanded for a new trial, on the basis that there was not substantial evidence of accomplice liability—leaving the court unable to
*688 determine whether the jury based its verdict on constructive possession or accomplice liability because instruction 8, the “to-convict” instruction, allowed the jury to convict on either of these theories. Where, as here, the jury is presented with alternative means of committing a crime, jury unanimity is not required [as to which means upon which to convict] as long as there is substantial evidence of both alternatives.
While Munden hinted at the right approach, we would take a logical step further and hold that because the evidence in this case clearly supports a finding of accomplice liability, we need not engage in the empty exercise of reaching McDonald’s principal liability argument or the Court of Appeals’ resolution of it. It is enough to note that “[a]ccomplice liability represents a legislative decision that one who participates in a crime is guilty as a principal, regardless of the degree of the participation.” Hoffman, 116 Wn.2d at 104 (emphasis added) (citing State v. Randle, 47 Wn. App. 232, 237, 734 P.2d 51 (1987), review denied, 110 Wn.2d 1008 (1988)).
McDonald, not content to simply eat his cake, would have it too by arguing that he could not have even been convicted as an accomplice: “In the context of multiple proximate causes, accomplice liability only lies if it can be said that the accomplice’s act was the proximate cause of
Even if the jury concluded that McDonald did not act as a principal when he shot Michael in the head, it could have found that McDonald aided Bassett in the commission of a crime. McDonald, by his own admission, shot Michael Bassett in the head while he was still alive. Surely a more compelling example of participation in a crime could not be found. We have written that “ ‘it matters not that some jurors may have believed that the petitioner filed the gun, while others may have believed that his only role was in aiding and abetting [the other participant], so long as all twelve agreed that he did participate.’ ” Hoffman, 116 Wn.2d at 105 (alteration in original) (quoting Carothers, 84 Wn.2d at 265). Clearly, that standard was met in this case.
On the other hand, if McDonald were correct in his arguments concerning both principal and accomplice liability we would necessarily conclude that both he and Bassett
2. Alleged errors by the trial court.
A. Did the trial court err in incorporating accomplice liability into its proximate cause instruction?
The foregoing logic guides us in dismissing McDonald’s argument, made for the first time on appeal, that instruction 18 is erroneous because it “does not conform to WPIC 25.02 and 25.03, and improperly incorporates accomplice liability into the completely separate legal concept of proximate cause, thus substituting a method of proof for the satisfaction of an element of the offense, i.e., proximate cause.” Br. of Appellant at 32-33. Under Rule 2.5(a) of the Rules of Appellate Procedure (RAP), appellate courts will generally not consider issues raised for the first time on appeal. “However, a claim of error may be raised for the first time on appeal if it is a ‘manifest error affecting a constitutional right.’ ” State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3) (citing State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988); State v. Lynn, 67 Wn. App. 339, 342, 835 P.2d 251 (1992))). The burden, though, is upon the defendant to make the required showing. “The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant’s rights; it is this showing of actual prejudice that makes the error ‘manifest,’ allowing appellate review.” McFarland, 127 Wn.2d at 333 (emphasis added) (citing Scott, 110 Wn.2d at 688; Lynn, 67 Wn. App. at 346).
Even more easily dismissed is McDonald’s claim that because he
was acquitted of the death of Wendy Bassett, a reasonable inference can be drawn that the jury did not find him to be an accomplice of Brian Bassett regarding the death of either Wendy or Michael Bassett. As a result, McDonald’s action cannot be argued to be the proximate cause of Michael Bassett’s death, and his conviction for this crime must be reversed.
Pet. for Review at 13-14. This is mere speculation, however. Perhaps the jury just accepted his explanation that he did not know that Bassett planned to kill his parents, but he did come into the house after Wendy had already been mortally wounded in order to assist Bassett in killing Michael.
McDonald next argues that he was denied the opportunity to present admissible evidence in his defense when the trial judge refused to admit evidence of out-of-court statements that Bassett had allegedly made to another. At a pretrial CrR 3.5 hearing, Ernie Lunsford, Jr. testified that following the murders, while he was a fellow inmate with Bassett in the Grays Harbor County jail, Bassett confided that he, not McDonald, had killed Austin Bassett. In determining whether evidence of Bassett’s statements to Lunsford was reliable and admissible under ER 804(b)(3), the trial judge ruled that these statements were untrustworthy and inadmissible at trial: “[Tjhere are no real corroborating circumstances that would clearly indicate trustworthiness of the statements.” RP at 770. 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) (citing State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).
ER 804(b)(3) provides for a hearsay exception allowing the admission of a statement against interest where the declarant is unavailable (as Bassett, himself a murder defendant in a separate proceeding, certainly was):
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. ... [A] statement tending to expose the declarant to criminal liability [and offered to exculpate the accused] is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
(Emphasis added.) See also State v. St. Pierre, 111 Wn.2d 105, 117, 759 P.2d 383 (1988) (citing State v. Ng, 104 Wn.2d
1. Was there an apparent motive for declarant to he?
2. What was the declarant’s general character?
3. Did more than one witness hear declarant’s statement?
4. Was the statement made spontaneously?
5. Did the timing of the statements and the relationship between declarant and witness suggest trustworthiness?
6. Does the statement contain an express assertion of past facts?
7. Did the declarant have personal knowledge of the identity and role of the crime’s other participants?
8. Was the declarant’s statement based upon faulty recollection?
9. Was the statement made under circumstances that provide reason to believe the declarant misrepresented defendant’s involvement in the crime?
See Whelchel, 115 Wn.2d at 722-25; State v. Mitchell, 117 Wn.2d 521, 529, 817 P.2d 398 (1991), overruled on other grounds by State v. Dent, 123 Wn.2d 467, 485, 869 P.2d 392 (1994).
McDonald does not contest the fact that Bassett’s “character suggests just the opposite” of trustworthiness (factor two). Whelchel, 115 Wn.2d at 722. He could hardly do so given both Bassett’s confession to law enforcement that he participated in the murders and the nature of the crimes charged. Nor does McDonald contest the fact that only one person, Lunsford, heard the alleged statement
“Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971) (citing MacKay v. MacKay, 55 Wn.2d 344, 347 P.2d 1062 (1959); State ex rel. Nielsen v. Superior Court, 7 Wn.2d 562, 110 P.2d 645, 115 P.2d 142 (1941)). In overview, no abuse of discretion by the trial court in its evidentiary ruling excluding Lunsford’s testimony has been shown that would allow this court to reverse McDonald’s conviction. See Myers, 133 Wn.2d at 34.
3. Did McDonald receive ineffective assistance of counsel?
McDonald’s final argument is that he was prejudiced by ineffective assistance of trial counsel. We strongly presume that trial counsel’s representation was effective. See McFarland, 127 Wn.2d at 335. To establish ineffective assistance of counsel, McDonald must demonstrate two
McDonald faults his trial attorney for not objecting to instruction 18, which was, as we have discussed, not an incorrect statement of the law. He also faults his attorney for his failure to introduce testimony from a corrections officer at the Jackson County juvenile facility, where Bassett and McDonald were initially held in Oregon, that he overheard Bassett mumbling to himself incriminating words about Austin’s death. The officer, Frank Heflin, testified during a CrR 3.5 hearing that “I heard him say, I killed—I can’t believe I killed my mother and father and dah-dahdah-dah-dah brother dah-dah-dah, and he stopped at that point.” RP at 230. Nothing about McDonald was overheard. On cross-examination the officer said that the words sounded like he “killed his parents and brother. I’m not sure. There was—like I said, there was mumbling in between ‘mother’ and ‘brother.’ I’m not sure ‘brother’ was involved together with the killing.” RP at 234. McDonald asserts that this testimony would have corroborated Bassett’s alleged statements to Lunsford. Because it is unclear that Bassett actually mumbled that he killed Austin, it is unlikely that this evidence would have served a corroborative purpose—or otherwise supported McDonald’s defense that he did not kill Austin. McDonald’s trial counsel could quite reasonably have decided that presenting this witness’s testimony about Bassett’s incoherent mumbling would not advance McDonald’s defense.
CONCLUSION
In conclusion, it is uncontroverted that Nicholaus McDonald shot Michael Bassett in the head as Michael lay dying of the gunshot wounds inflicted by his son, Brian Bassett. The trial court’s instruction to the jury allowing it to convict McDonald of Michael’s death as either a principal or as Bassett’s accomplice was not erroneous, and substantial evidence supported accomplice liability. We reject McDonald’s arguments that an out-of-court statement should have been admitted and that he was denied effective assistance of counsel. We affirm the Court of Appeals’ decision upholding McDonald’s convictions for the second degree murders of Austin and Michael Bassett.
Guy, C.J., and Durham, Smith, Johnson, Madsen, Talmadge, Sanders, and Ireland, JJ., concur.
Bassett was also charged with three counts of aggravated first degree murder and was convicted. In an unpublished opinion, the Court of Appeals affirmed Bassett’s convictions. State v. Bassett, No. 20551-3-II (Wash. Ct. App. Feb. 26, 1999).
Accomplice liability is also expressly incorporated into instructions 5-7, which establish the elements necessary to convict McDonald of the murders in the first degree of Michael, Wendy, and Austin, and in the lesser crime instructions, 14-17, for the elements necessary to convict McDonald of murder in the second degree. McDonald did not challenge these instructions. “ ‘[T]he jury is presumed to read the court’s instructions as a whole, in light of all other instructions. The jury is also to presume each instruction has meaning.’ ” State v. Studd, 137 Wn.2d 533, 549, 973 P.2d 1049 (1999) (alteration in original) (quoting State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999)).
As McDonald testified:
“The idea was that he wanted to go to the crazy ward and he wanted me to take—oh, basically what he said—or—not what he said but the idea, the idea was that, um, that he held the gun to my head and made me drowned his brother. After killing his parents, he held the gun to my head and made me drive out in the woods and dump the bodies off, and that I was scared for my life, and that he was crazy.” RP at 1826.
To quote from an exchange between McDonald and his attorney:
Q. “When you heard what Brian had said, what did you think?
A. “I thought he messed the whole thing up really bad and that I had to make my story go along with his, so I changed it.” RP at Í843.
But see Mitchell, 117 Wn.2d at 531 (statement found to be spontaneous where defendant, prior to his arrest and confinement, gave it in response to a question outside of “ ‘coercive atmosphere of official interrogation’ ”).
