697850MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 69785-0
Title of Case: State of Washington V. Jacob Patrick Brown
v.
State of Washington V. Marshall C. Harris
File Date: 09/19/2002
Oral Argument Date: 06/12/2001


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County;
96-1-07232-6
Honorable Stephen G. Scott, Judge.


JUSTICES
--------
Authored by Faith E Ireland
Concurring: Charles W. Johnson
Barbara A. Madsen
Bobbe J. Bridge
Tom Chambers
Susan J. Owens
Dissenting: Richard B. Sanders
Charles Z. Smith
Gerry L. Alexander


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
David B. Koch
Nielsen Broman & Koch Pllc
810 3rd Ave Ste 320
Seattle, WA 98104

Gregory C. Link
Washington Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101

David L. Donnan
Washington Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101

Counsel for Respondent(s)
Ann M. Summers
King County Prosecutors Office
1850 Key Tower
700 5th Ave
Seattle, WA 98104

James M. Whisman
King County Pros Office--Appellate Unit 1850 Key Tower
700 5th Ave #1850
Seattle, WA 98104

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
Respondent, ) v. )
No. 69785-0
)
JACOB PATRICK BROWN, )
Petitioner. )
---------------------------------------------- ) STATE OF WASHINGTON,
)
Respondent, )
v. )
)
MARSHALL C. HARRIS, )
Petitioner. ) Consolidated
) with
STATE OF WASHINGTON, )
Respondent, ) No. 69787-6
v. )
)
LINNIELL PHIPPS, JR., )
Petitioner. )
---------------------------------------------- )
STATE OF WASHINGTON, )
Respondent, ) En Banc
)
v. )
) Filed September 19, 2002
LINNIELL PHIPPS, JR., )
Defendant, )
and )
)
LECHAUN DWAYN BAKER, )
and each of them, )
Petitioner. )
)
IRELAND, J. -- This case determines whether an erroneous accomplice
liability jury instruction is subject to harmless error analysis, and if
so, whether the instruction was harmless in these consolidated appeals. We
hold that an erroneous jury instruction may be subject to harmless error
analysis if the error does not relieve the State of its burden to prove
each element of the crime charged. An erroneous instruction is harmless if,
from the record in a given case, it appears beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained. The
analysis must be completed as to each defendant and each count charged.
The Court of Appeals' decision is affirmed in part and reversed in part.
FACTS
State v. Brown; State v. Harris
Jacob Brown's convictions were based on seven counts committed against
Lewis Brown, Thomas Boyd, and Jelani and Jerel Tackett, in three separate
incidents. Codefendant Marshall Harris was convicted as a result of his
participation in the Lewis Brown incident.
Lewis Brown
Porsche Washington and Lewis Brown (Lewis) were involved in an
intimate relationship. On September 30, 1996, Porsche called Lewis and
arranged to meet him at a Seattle motel. Lewis arrived at about 2 a.m. the
following morning, and he complied with Porsche's request that he take off
his clothes. Then three men, who Lewis later identified as Jacob Brown
(not related to Lewis), Marshall Harris, and Tesino Barber, suddenly came
out of the bathroom. Brown was armed with a revolver.
Brown hit Lewis in the chest with his fist, and Barber struck him in
the face with a gun that he took from Lewis's coat. Brown and Barber also
took Lewis's watch, rings, cell phone, cash, and other personal belongings.
Lewis testified that Washington hit him in the face and applied a substance
to his anus before Barber forced a dildo into Lewis's anus and mouth and
burned Lewis's arm with a hot iron.
Harris signed the motel registration card. Lewis testified that Harris
blocked the door to the motel room during the incident and that Harris
threatened to beat Lewis.
After Lewis got dressed, Barber took him from the motel room at
gunpoint. Barber drove Lewis's car to the Rainier Valley, told the victim
to get out, and then drove away. Lewis sought help at a convenience store.
He was taken to a hospital and treated for lacerations and burns. When
police found Lewis's car several days later, the stereo and speakers had
been removed. Lewis was able to identify Brown, Harris, and Barber in
police photo montages.
Thomas Boyd
In the early morning of October 6, 1996, police responded to reports
of gunshots near a residence in Auburn. They discovered the body of Thomas
Boyd lying just inside the front door of his home.
When Porsche Washington was arrested on another matter two weeks
later, she made a statement to police about Boyd's shooting. As a result,
an arrest warrant was issued for Jacob Brown. Brown gave conflicting
accounts of Boyd's death, but both Washington and Brown admitted being at
or near the residence when Boyd was shot.
In his third statement to police, Brown said that he and Washington
had gone to Boyd's house to steal money from him. Brown described how he
and Washington worked together. She would pose as a prostitute; he would
feign hysteria and demand money for drugs. Victims usually paid Brown in
order to get rid of him, but Boyd fought with Brown. Brown stated that
while the men were struggling, Washington shot Boyd.
Jelani and Jerel Tackett
The final incident began in the late evening of October 14, 1996, when
Porsche Washington and Ramona Rigney went for a ride with Jelani Tackett
and his brother, Jerel. The women asked Jelani to drive them to an
apartment and then to a nearby convenience store in Seattle. At the store,
Ramona got out. Jacob Brown and Tesino Barber approached the car, and
Washington introduced Brown as her brother. At Washington's request,
Jelani agreed to take Brown and Washington to their mother's house.
Washington, Brown, and Barber rode in Jelani's car, and Brown directed
Jelani to pull to the curb in a residential area. Barber got into the
front seat beside Jelani; Washington and Brown conferred behind the parked
car.
Brown suddenly appeared at the driver's side window and pointed a gun
at Jelani's head. At the same time, Barber demanded his money and jewelry.
While Jelani wrestled with Barber, Jerel got out of the car. Brown then
grabbed Jerel, put the gun to Jerel's head, and ordered Jelani to get out
of the car. Washington and Barber fled.
Brown threatened Jerel and Jelani and told them to walk away. When Jelani
pursued Brown and demanded the return of his car keys, Brown ran and fired
several shots.
The cases against Brown and Harris were consolidated for trial. On July
31, 1997, a jury found Brown guilty of first degree murder, two counts of
first degree robbery, first degree rape, and three counts of first degree
assault, with a firearm enhancement rendered on each count. Harris was
convicted, in the same court, of first degree robbery, first degree rape,
and first degree assault, with a firearm enhancement for each count.
State v. Phipps and Baker
Charges against Linniell Phipps and Lechaun Baker stemmed from a
series of events that occurred in the early morning of March 11, 1997.
Curtis Rodgers was visiting two men who lived in a Federal Way motel
room. While Rodgers and another man were in the bathroom discussing a drug
deal, two men came in through the front door of the room. One of them wore
a mask and held a pistol.
The gunman told the occupants of the motel room to lie down on the
floor and ordered both men out of the bathroom. The man who accompanied
the gunman demanded the keys to a truck that belonged to Alice Manchester,
a woman present in the room. The two men left with Rodgers at gunpoint and
drove away in the truck.
After going a short distance, the gunman removed his mask and got out
of the truck with Rodgers. The other man remained in the driver's seat.
The gunman shot Rodgers twice in the abdomen, and the victim fell to the
ground. When the driver urged the gunman to hurry up, the gunman fired a
shot that grazed the victim's scalp. The two men then left.
Rodgers survived after emergency medical treatment and surgery. He
was able to identify the gunman as Linniell Phipps and the driver who
accompanied him as Phipps' half-brother, Lechaun Baker. Others who had
been present in the motel room also identified Phipps and Baker.
On March 23, 1997, Phipps and Baker were stopped and arrested in
Phipps' car. When police searched the car, they found the gun used to
shoot Rodgers.
On July 14, 1997, a jury found Phipps and Baker guilty of attempted murder
in the first degree, first degree robbery, first degree kidnapping, and
first degree burglary, with a firearm sentence enhancement for each count.
PROCEDURAL HISTORY
Brown and Harris appealed their convictions and sentences on numerous
procedural and evidentiary grounds. The Court of Appeals affirmed the
trial court decision in part, reversed in part, and remanded for further
proceedings. The court held that there was insufficient evidence to
convict Brown of first degree assault against Jerel Tackett. Accordingly,
that conviction was reversed and dismissed. The court also reversed and
remanded for new trial Brown's felony murder conviction because there was
insufficient evidence to support one of the alternative predicate crimes.
Because the State failed to elect the predicate crime or request a
unanimity instruction, the defendant's right to a unanimous jury verdict
was violated. In addition, the firearms enhancements against Brown and
Harris were reversed and remanded to the trial court for resentencing.
State v. Brown, 100 Wn. App. 104, 106, 995 P.2d 1278 (2000). The State has
not cross-appealed any of the decisions of the Court of Appeals.
Phipps and Baker also appealed their convictions and sentences on
several grounds. The Court of Appeals affirmed the judgments of conviction
and remanded their cases for resentencing. State v. Phipps, Nos. 41367-8-
I, 42892-6-I, slip op. at 10 (Wash. Ct. App. Apr. 10, 2000).
On appeal, Brown, Harris, and Baker contested the accomplice liability
jury instruction given at their trials. The Court of Appeals held "that
the trial court's accomplice liability instruction, if erroneous, was
harmless error" as to Brown and Harris. Brown, 100 Wn. App. at 106. With
regard to Baker's contention that the instruction given was erroneous, the
Court of Appeals stated that "{b}ecause the language of the accomplice
liability instruction here did not present an issue at trial, any alleged
error was harmless." Phipps, slip op. at 4.
Brown, Harris, Phipps, and Baker each filed a petition for review in this
Court. Review of Phipps' petition was denied, and consideration of the
remaining petitions was deferred pending final determination in State v.
Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000) and State v. Cronin, 142 Wn.2d
568, 14 P.3d 752 (2000).
The petitions of Brown, Harris, and Baker were then granted review and
consolidated.
ISSUE
Review is limited to the sole issue of "whether an erroneous accomplice
liability instruction is subject to harmless error analysis, and if so,
whether the instruction was harmless in these cases." Order at 2, State v.
Brown, Harris, and Baker, No. 69785-0 (Wash. Sup. Ct. Apr. 10, 2001).
ANALYSIS

In the cases before us, the trial court presented WPIC 10.51 to
instruct the juries on accomplice liability. The pattern instruction
states:
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.

The word "aid" means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene
and ready to assist by his or her presence is aiding in the commission of
the crime. However, more than mere presence and knowledge of the criminal
activity of another must be shown to establish that a person present is an
accomplice.

Clerk's Papers (CP) at 106 (Brown), 144 (Harris), 86 (Baker); 11 Washington
Pattern Jury Instructions: Criminal 10.51, at 157 (2d ed. 1994)(WPIC).
In contrast, the accomplice liability statute provides in relevant
part:

(3) A person is an accomplice of another person in the commission of
the crime if:

(a) With knowledge that it will promote or facilitate the commission
of the crime, he

(i) solicits, commands, encourages, or requests such other person to
commit it; or

(ii) aids or agrees to aid such other person in planning or
committing it{.}
RCW 9A.08.020(3)(a).
The trial court instructed the juries that an accomplice must have
knowledge that his or her actions will promote or facilitate the commission
of "a" crime rather than conforming to the statutory language of "the"
crime. Brown, Harris, and Baker (Defendants) contend that by using the
term "a crime" instead of "the crime," the court instructed the juries that
the Defendants were guilty as accomplices if they knew their actions would
promote or facilitate the commission of any crime, and not only the crime
charged. It is a misstatement of the law to instruct a jury that a person
is an accomplice if he or she acts with knowledge that his or her actions
will promote any crime. The Roberts and Cronin courts have held that for
accomplice liability to attach, a defendant must not merely aid in any
crime, but must knowingly aid in the commission of the specific crime
charged. Roberts, 142 Wn.2d at 509-13; Cronin, 142 Wn.2d at 578-80.
It is a fundamental precept of criminal law that the prosecution must prove
every element of the crime charged beyond a reasonable doubt.1 Defendants
argue that the erroneous accomplice liability instruction permitted the
State to obtain guilty verdicts against them without proving every element
of the charged offenses beyond a reasonable doubt. They contend that this
error is not subject to harmless error analysis, but instead automatically
requires reversal of their convictions. We disagree.
Under Roberts and Cronin, the accomplice liability instruction given
in the instant cases was held to be erroneous. In addition, the Roberts
and Cronin courts found the defective instruction was not harmless as to
the defendants' aggravated first degree murder convictions because it
relieved the State of proving every element of the crime charged. An
instruction that relieves the State of its burden to prove every element of
a crime requires automatic reversal.2
However, not every omission or misstatement in a jury instruction
relieves the State of its burden. In that instance, recent decisions of
this court have incorporated harmless error analyses. For example, in its
discussion of the same accomplice liability instruction that is at issue in
the cases before us, the Cronin court observed "that the State must prove
every essential element of a crime beyond a reasonable doubt for a
conviction to be upheld." Cronin, 142 Wn.2d at 580. It then noted, "that
a conviction cannot stand if the jury was instructed in a manner that would
relieve the State of this burden." Id. The court went on to determine
"whether the instructional error in these cases can be labeled harmless."
Id. (emphasis added). The Cronin court answered its question by
concluding as follows: "{W}e hold that the trial court's jury instruction
regarding accomplice liability in both State v. Bui, 142 Wn.2d 568, 14 P.3d
752 (2000) and State v. Cronin was legally deficient. We also hold that
the instructional error was not harmless in either case." Id. at 586.
In State v. Stein, the jury was instructed under the alternative
theories of conspiracy and accomplice liability. 144 Wn.2d 236, 241, 27
P.3d 184 (2001). In its determination that the trial court's conspiracy
instructions were erroneous, the Stein court also undertook a harmless
error analysis: "Instructional error is presumed to be prejudicial unless
it affirmatively appears to be harmless." Id. at 246 (emphasis added).
The United States Supreme Court has held that an erroneous jury
instruction that omits an element of the offense is subject to harmless
error analysis:
Unlike such defects as the complete deprivation of counsel or trial
before a biased judge, an instruction that omits an element of the offense
does not necessarily render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.

Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999). We find no compelling reason why this Court should not follow the
United States Supreme Court's holding in Neder.
As evidenced by Roberts and Cronin, even in cases where there are multiple
crimes charged and multiple defendants as to some charges, the use of an
erroneous instruction may be harmless.
Another instruction in the cases before us admonished the juries as
follows:
A separate crime is charged against one or more of the defendants in
each count. The charges have been joined for trial. You must decide the
case of each defendant or each crime charged against that defendant
separately. Your verdict on any count as to any defendant should not
control your verdict on any other count or as to any other defendant.

CP at 104 (Brown), 142 (Harris), 66 (Baker).
In order to conduct its analysis, the Neder court set forth the
following test for determining whether a constitutional error is harmless:
"{W}hether it appears 'beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.'" Neder, 527 U.S. at 15
(quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed.
2d 705 (1967)). When applied to an element omitted from, or misstated in,
a jury instruction, the error is harmless if that element is supported by
uncontroverted evidence. Neder, 527 U.S. at 18.
Therefore, we must thoroughly examine the record before us as to each
defendant. In order to hold the error harmless, we must "conclude beyond a
reasonable doubt that the jury verdict would have been the same absent the
error." Id. at 19.
Jacob Brown
The Court of Appeals' rulings reversed and remanded Brown's murder
conviction for a new trial and reversed and dismissed his conviction for
first degree assault against Jerel Tackett. The State did not cross-
appeal. Therefore, we must complete harmless error analyses only
concerning the remaining charges, including first degree robbery, first
degree assault, and first degree rape against Lewis Brown, and first degree
robbery and first degree assault against Jelani Tackett.
In the robbery of Lewis Brown, the record shows that Jacob Brown
struck the victim, took his personal property, and held him at gunpoint.
Because Brown acted as a principal in the robbery, the difference between
"a crime" and "the crime" in the accomplice instruction is harmless beyond
a reasonable doubt. However, as to the charges of rape and assault against
the same victim, there is no evidence of direct participation by Brown as a
principal. Under the accomplice instruction given, the jury might have
concluded that because Brown robbed the victim, he was guilty as an
accomplice to the rape and assault. The instruction was not harmless, and
Brown must have a new trial, with a proper accomplice instruction, as to
the rape and assault of Lewis Brown.
In the robbery and assault of Jelani Tackett, it is clear from the
record that Brown was a principal as to both charges. In these instances,
the erroneous accomplice instruction is again harmless beyond a reasonable
doubt.
In sum, we affirm the Court of Appeals' reversal and remand for a new
trial on the murder charge. We reverse and remand for a new trial on the
additional charges of Lewis Brown's rape and assault. We affirm the
reversal and dismissal of the assault charge as to Jerel Tackett. We
affirm Brown's convictions for the robbery of Lewis Brown and for the
robbery and assault of Jelani Tackett. We affirm the remand to the trial
court of Brown's firearms enhancements for resentencing in light of In re
Post Sentencing Review of Charles, 135 Wn.2d 239, 254, 955 P.2d 798 (1998).
Marshall Harris
All the charges against Marshall Harris - first degree robbery, first
degree rape, and first degree assault - were based on accomplice liability
in the Lewis Brown incident. Evidence was presented at trial that Harris
rented the motel room for Porsche Washington, hid in the bathroom with
Brown and Barber, and burst into the room after the victim had undressed.
There was testimony that Harris verbally threatened the victim and may have
discouraged him from escaping during the robbery and sexual assault by
standing in front of the door.
The record indicates that Harris did not touch Lewis Brown or actively
participate in the robbery, assault, or rape. He was, at most, an
accomplice to the crimes charged. Based on the erroneous instruction
given, the jury could have convicted Harris for all of the crimes if it
concluded that he was an accomplice to any of the crimes. The instruction
was not harmless, and Harris must have a new trial as to all counts.
In sum, we reverse and remand for a new trial on the robbery, rape, and
assault charges with a proper accomplice instruction.
Lechaun Baker
Baker was charged with four crimes. In three of them - robbery,
kidnapping, and burglary - the evidence establishes that Baker acted as a
principal. Baker unlawfully entered the motel room with Phipps with the
intent to commit a crime. Baker was the principal actor in the robbery
because he took the keys to the truck from Manchester. Baker was as active
as his codefendant in ordering Rodgers out of the room and into the
vehicle, which Baker drove. Under these facts, any error in the accomplice
instruction as to robbery, kidnapping, and burglary is harmless beyond a
reasonable doubt.
With respect to the attempted murder charge, Baker did not pull the
trigger, even though he fully participated in the events leading up to the
shooting. A jury could conclude that Baker's assistance in delivering the
victim to the scene of the shooting, coupled with what the prosecution
characterized as his shouted encouragement, was sufficient to show his
shared general intent to justify his liability as an accomplice in the
crime of attempted murder. But under the erroneous instruction, a jury
could also believe that Baker was guilty of attempted murder because he was
guilty as a principal in the robbery, kidnapping, and burglary. It cannot
be said that the erroneous jury instruction was harmless. Therefore, Baker
must have a new trial on the attempted murder charge with a proper
accomplice instruction.
In sum, Baker's convictions for robbery, kidnapping, and burglary are
affirmed. We reverse and remand for a new trial on the attempted murder
charge. We affirm the remand to the trial court of Baker's firearms
enhancements for resentencing in light of In re Post Sentencing Review of
Charles.
CONCLUSION

Under recent Washington case law, as well as Neder v. United States,
an erroneous jury instruction that omits or misstates an element of a
charged crime is subject to harmless error analysis to determine whether
the error has not relieved the State of its burden to prove each element of
the case. To determine whether an erroneous instruction is harmless in a
given case, an analysis must be completed as to each defendant and each
count charged. From the record, it must appear beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.
The accomplice liability instruction at issue in the cases before us
is not harmless as to some of the charges against the defendants.
Therefore, we reverse and remand for a new trial on the charges that
Defendant Brown raped and assaulted Lewis Brown. We reverse and remand for
a new trial on the robbery, rape, and assault charges against Defendant
Harris. We also reverse and remand for a new trial on Defendant Baker's
attempted murder charge. As to the remaining charges, the Court of Appeals
is affirmed.

1The Legislature has codified the State's burden as follows: "Every person
charged with the commission of a crime is presumed innocent unless proved
guilty. No person may be convicted of a crime unless each element of such
crime is proved by competent evidence beyond a reasonable doubt." RCW
9A.04.100(1).
2State v. Smith, 131 Wn.2d 258, 265, 930 P.2d 917 (1997) ("{F}ailure to
instruct on an element of an offense is automatic reversible error.");
State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995) ("The State must
prove every essential element of a crime beyond a reasonable doubt for a
conviction to be upheld. . . . It is reversible error to instruct the jury
in a manner that would relieve the State of this burden.").

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