210 P.3d 1029 (Wash.App. Div. 2 2009), 36457-3, State v. Yarbrough

Docket Nº:36457-3-II.
Citation:210 P.3d 1029, 151 Wn.App. 66
Opinion Judge:QUINN-BRINTNALL, J.
Party Name:STATE of Washington, Respondent, v. Verrick Vere YARBROUGH, Appellant.
Attorney:Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent. Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, Reed Manley Benjamin Speir, Attorney at Law, University Place, WA, for Appellant.
Judge Panel:I concur: ARMSTRONG, J.PENOYAR, A.C.J. (concurrence).
Case Date:June 30, 2009
Court:Court of Appeals of Washington
 
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210 P.3d 1029 (Wash.App. Div. 2 2009)

151 Wn.App. 66

STATE of Washington, Respondent,

v.

Verrick Vere YARBROUGH, Appellant.

No. 36457-3-II.

Court of Appeals of Washington, Division 2.

June 30, 2009

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Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent.

Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, Reed Manley Benjamin Speir, Attorney at Law, University Place, WA, for Appellant.

QUINN-BRINTNALL, J.

[151 Wn.App. 73] ¶ 1 A jury found Verrick V. Yarbrough guilty of first degree murder by extreme indifference, [151 Wn.App. 74] first degree assault, and second degree unlawful possession of a firearm. The jury also returned a special verdict finding that Yarbrough committed both the first degree murder and first degree assault to obtain or maintain his membership or to advance his position in the hierarchy of an organization, association, or identifiable group, and that both these offenses involved a destructive and foreseeable impact on persons other than the victim. Yarbrough appeals his conviction, arguing that (1) the trial court erred by improperly admitting gang-related evidence, (2) the admission of gang-related evidence deprived him of his right to a fair trial, (3) his defense counsel was ineffective for failing to request a limiting instruction on gang-related evidence and for failing to object to expert testimony related to gang evidence, (4) the evidence was not sufficient to establish that he committed a crime to advance his position in an identifiable group, (5) his right to be free from double jeopardy was violated when the trial court imposed an exceptional sentence for the aggravating factor that the murder involved a foreseeable impact on persons other than the victim, and (6) cumulative error deprived him of his right to a fair trial. We affirm.

FACTS

Background Facts

¶ 2 In the early morning hours of July 8, 2006, shots fired outside " Club Friday," an underage dance club on Pacific Avenue in downtown Tacoma, temporarily paralyzed Tiffany Walker, injured Stephen Burnett, and left Rhaczio " Rha Rha" Simms dead. The State charged Yarbrough with first degree murder by extreme indifference in violation of RCW 9A.32.030(1)(b) (count I), first degree assault in violation of RCW 9A.36.011(1)(a) (count II), and second degree unlawful possession of a firearm in violation of RCW 9.41.040(2)(a)(i) (count III). The State also alleged that an exceptional sentence was warranted because the offenses were gang-related and counts I and II involved a destructive [151 Wn.App. 75] and foreseeable impact on persons other than the victim. RCW 9.94A.535(3)(r), (s).

¶ 3 The evidence at trial showed that four days earlier, on July 4, 2006, Yarbrough, also known as " V-Real," and a group of his friends had a verbal confrontation with Simms and a group of his friends at Tacoma's Ruston Way waterfront. Yarbrough's group was wearing blue clothing and someone from that group yelled, " This is Hilltop." 3 Report of Proceedings (RP) at 400. Then someone from Simms's group yelled, " This is the 96th." 3 RP at 400. Someone from the Hilltop group also said, " if we weren't in front of the police, we would bust right now." 3 RP at 400. A witness understood " bust" to mean that if the police had not been there, they would have started shooting.

¶ 4 On the evening of July 7, 2006, into the early morning of July 8, 2006, Yarbrough and a group of his friends were at Club Friday. Yarbrough wore gang-related clothing, and he and his friends flashed gang signs and exclaimed, " This is Hilltop Crips" (Clerk's Papers (CP) at 4) and " fuck Folk, and fuck Bloods." 1 3 RP at 474. A Club Friday security guard told Yarbrough and his friends that they had to stop or he would eject them.

¶ 5 Tiayrra Bradley and her cousin, Yunique Richardson, were also at Club Friday that evening. Bradley and Richardson left the club at some point between midnight and 1:30 am. As they walked toward Bradley's

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car, Bradley and Richardson noticed Simms parking his car. When Simms said that he was going to Club Friday, Bradley and Richardson decided to walk back to the club with him.

¶ 6 As the three crossed the street toward Club Friday, Bradley heard someone yell, " What is up? This is Hilltop Crip." 3 RP at 411. Bradley turned toward the voice and saw Yarbrough with a group of seven or eight young men. Bradley then heard Yarbrough say, " This is Hilltop Crip, cuz, what you know about that." 3 RP at 460. Bradley noticed that Yarbrough had something in his hand and told [151 Wn.App. 76] Simms that she thought someone had a gun. Gunfire erupted from Yarbrough's group; Bradley and Richardson took cover behind a parked car. Richardson testified that she felt bullets fly past her and into a nearby bar. After the shooting, Bradley ran to her car and saw two moving cars collide, grazing each other. Richardson was still on the ground when she heard the collision. Richardson got up and ran to Bradley's car. When the girls noticed that Simms was still lying on the ground, Bradley pulled her car up close to where Simms lay. Police arrived a few minutes later. Simms died from a gunshot wound to the back of his head.

¶ 7 Walker, Kiara Moore, and Channeka Voeuk were also at Club Friday that evening. Moore testified that she saw Yarbrough inside Club Friday wearing a blue jacket but she did not see him participate in any gang-related activity. Walker testified that she saw people she did not recognize in the club flashing gang signs. Walker, Moore, and Voeuk all left the club together sometime between 12:30 and 1:00 in the morning. Each woman testified that she heard gunfire as they approached Walker's car, which was parked across the street from Club Friday. In addition, Voeuk testified that she saw a group of around six young men standing opposite Club Friday but that she did not see where the shots were coming from. Walker testified that she saw Yarbrough shooting a gun across the street but not in their direction. She then saw Yarbrough running and heard gunfire from the opposite side of the street. A bullet struck Walker in the back and she fell to the ground. Walker's injuries initially left her paralyzed from the waist down but she was eventually able to walk again.

¶ 8 On the night of the shooting, Chad Legg was working security at On The Rocks, a bar located near Club Friday. Legg testified that he was outside the bar when he saw a young black man standing near a maroon car talking with two people in the back seat. Legg asked the young man for a light for his cigarette. About five or six minutes later, Legg heard gunfire and saw muzzle flashes across the street from On The Rocks. Legg also heard gunfire coming from a [151 Wn.App. 77] different location. Legg saw the young man who had given him a light get shot and fall to the ground. Legg did not see who was firing the guns. After the shooting, Legg heard a car collision.

¶ 9 Phillip Dutra was also outside On The Rocks during the shooting. Dutra testified that he saw Simms run down the street and fall about 10 feet in front of him, but he stated that he did not realize at the time that Simms was shot. Dutra also saw a maroon colored car parked near On The Rocks and noticed that the trunk was open and that someone was digging around in it. He could not see who was reaching in the trunk because the trunk door obscured his view.

¶ 10 Burnett was a patron at On The Rocks on the night of the shooting. Burnett testified that he was inside the bar when the gunfire broke out. Burnett heard a zip, something ricochet behind him, and then a bullet struck his buttocks.

¶ 11 Johnnie Dudley was walking near Club Friday on the night of the shooting. Dudley testified that he heard gunfire coming from the east side of the street and saw shots coming from a group of people. Although Dudley could see that someone was holding a gun, he could not clearly see who that person was. Dudley did see Simms running from the gunfire as he was shot and fall to the ground.

¶ 12 Candace Rhem, Monica Johnson,2 and William Terry went to Club Friday together

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on the night of the shooting. Rhem and Johnson left Club Friday sometime between midnight and 1:00 am to get some food. After driving to a nearby fast food restaurant, they returned and parked near Club Friday next to Terrance Jackson's car to eat. Rhem and Johnson testified that they heard gunfire coming from the direction of Club Friday and that they saw a group of males, including Terry, Jackson, and Yarbrough running toward them. Terry and Terry's friend, Greg, jumped into Rhem's car while Jackson, Yarbrough, and at [151 Wn.App. 78] least two other young men jumped into Jackson's car. Johnson testified that she saw that one of the young men who got into Jackson's car had a gun but Johnson could not identify him. Both cars drove to a Union 76 gas station in Tacoma's Hilltop neighborhood. Terry and Greg left Rhem's car and walked away from the gas station with a different group of people while Rhem drove Johnson home.

¶ 13 Michael Vaughn was walking to his car parked near Club Friday when he heard gunfire. As Vaughn drove southbound on Pacific Avenue, another vehicle struck his car. Vaughn pulled over and got out of his car. He then noticed Simms's body lying in the street. Vaughn testified that he saw a young African-American woman run screaming toward the body. Vaughn told her not to move the body and then returned to his car to wait for police to arrive.

¶ 14 Tacoma Police Officer David Yerbury testified that on July 8, 2006, he was patrolling the downtown Hilltop area of...

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