In re Hegney

• Decision Date: 15 May 2007
• Docket Number: No. 34085-2-II.,34085-2-II.
• Citation: 138 Wn. App. 443,158 P.3d 1193
• Parties: In re Personal Restraint Petition of Justin M. HEGNEY, Petitioner.
• Court: Washington Court of Appeals

158 P.3d 1193

In re Personal Restraint Petition of Justin M. HEGNEY, Petitioner.

No. 34085-2-II.

Court of Appeals of Washington, Division 2.

May 15, 2007.

Neil Martin Fox, Cohen and Iaria, Seattle, WA, for Petitioner.

Justin M. Hegney, Florence, AZ, pro se.

Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, Donna H. Mullen, Attorney at Law, Attorney General Ofc., Olympia, WA, for Respondent.

BRIDGEWATER, P.J.

¶ 1 In this timely personal restraint petition, Justin M. Hegney seeks relief from personal restraint imposed following his 2002 conviction of first degree felony murder, in which robbery was the predicate offense.

¶ 2 At the time of his offense, Hegney was 15 years old. After arresting him, the State asked the juvenile court to decline jurisdiction over Hegney, even though he was not yet 18 years old. The juvenile court so ordered. And the State charged Hegney in adult court, alleging, among other things, that he had committed first degree felony murder. Thereafter, a jury found Hegney guilty of first degree felony murder. After sentencing, Hegney filed an appeal. In an unpublished opinion, we affirmed his conviction.¹ We now deny his petition.

ANALYSIS

I. PERSONAL RESTRAINT PETITION STANDARDS

¶ 3 A personal restraint petitioner has the burden of proving constitutional error that results in actual prejudice or non-constitutional error that results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990). Regardless of whether the petitioner bases his challenge on constitutional or non-constitutional error, he must state facts on which the claim of unlawful restraint is based and state the evidence available to support the factual allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2)(i); In re Pers. Restraint of Williams, 111 Wash.2d 353, 365, 759 P.2d 436 (1988); see also Cook, 114 Wash.2d at 813-14, 792 P.2d 506. If a petition is based on matters outside the appellate record, a petitioner must show that he has "competent, admissible evidence" to support his arguments. In re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992).

II. TO-CONVICT INSTRUCTION

¶ 4 Hegney claims that the to-convict instruction "essentially set up a res ipsa loquitur theory," holding both him and his co-defendant Jesse Hill² responsible for first degree felony murder. Personal Restraint Petition (PRP) Br. at 16. He argues that the to-convict instruction caused "a series of constitutional violations." PRP Br. at 16. We disagree.

¶ 5 At issue here is the following to-convict instruction that the trial court gave to the jury:

To convict either the defendant JUSTIN HEGNEY or the defendant JESSE HILL of the crime of Murder in the First Degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt;

(1) That on or about the 19th day of August, 2000, ERIK TOEWS suffered injuries that resulted in his death on or about the 25th day of August, 2000;

(2) That the defendant or an accomplice was committing or attempting to commit the crime of Robbery in the First Degree;

(3) That the defendant or an accomplice caused the death of ERIK TOEWS in the course of or in the furtherance of such crime or in immediate flight from such crime;

(4) That ERIK TOEWS was not a participant in the crime; and

(5) That the acts occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Ex. 11, Instruction no. 5 (emphasis added).

¶ 6 Hegney contends that this instruction: (1) lessened the State's burden of proof because the first paragraph of the instruction referred to him and his co-defendant in the disjunctive, thereby allowing the jury to convict him based solely on his co-defendant's or his co-defendant's accomplice's actions; (2) denied him his right to a unanimous verdict because it did not require the jury to be unanimous as to whether he was a principal or an accomplice or as to "which of several defendants or accomplices committed the charged acts"; and (3) permitted the jury to convict him of an uncharged crime because the State did not name his co-defendant in the charging information. PRP Br. at 21. In addition, he argues that his trial counsel was ineffective for failing to object to the to-convict instruction.

¶ 7 We review claimed instructional errors de novo, evaluating the instruction "in the context of the instructions as a whole." State v. Benn, 120 Wash.2d 631, 654-55, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S.Ct 382, 126 L.Ed.2d 331 (1993). The instructions as a whole must provide an accurate statement of the law and allow each party to argue its theory of the case to the extent that it is supported by the evidence. Benn, 120 Wash.2d at 654, 845 P.2d 289.

¶ 8 Even assuming Hegney's claims were properly preserved and not invited error, we hold that these contentions have no merit when the jury instructions are read as a whole.

A. LESSENED BURDEN OF PROOF

¶ 9 Hegney claims that "there is no assurance that the jurors separately determined that Mr. Hegney personally committed the charged acts or had the requisite mental state." PRP Br. at 19. But in addition to the to-convict instruction, the trial court instructed the jury:

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.

Ex. 11, Instruction no. 3. By specifically instructing the jury that it must evaluate the charges against each defendant separately, this instruction cured any potential defect in the to-convict instruction caused by referring to Hegney and his co-defendant in the disjunctive.

¶ 10 Absent any contrary showing, we presume that a jury follows the trial court's instructions. State v. Davenport, 100 Wash.2d 757, 763-64, 675 P.2d 1213 (1984). In this case, Hegney has not presented anything to overcome this presumption. Accordingly, his argument fails.

B. UNCHARGED CRIME

¶ 11 Relying on State v. Brown, 45 Wash.App. 571, 726 P.2d 60 (1986), Hegney claims that the to-convict instruction allowed him to be convicted of an uncharged crime, in violation of the United States Constitution and the Washington State Constitution. But even assuming, for the sake of argument, that Brown is not limited to conspiracy cases and applies in the accomplice liability context, his argument has no merit.

¶ 12 At issue here is the information, which listed two co-defendants, Robert Anthony Hernandez and Terrance Lashawn Hunt, and which stated:

I, GERALD A. HORNE, Prosecuting Attorney for Pierce County, in the name and by the authority of the State of Washington, do accuse JUSTIN MICHAEL HEGNEY of the crime of MURDER IN THE FIRST DEGREE, committed as follows:

That JUSTIN MICHAEL HEGNEY, in Pierce County, on or about the 19th day of August, 2000, did unlawfully and feloniously, while committing or attempting to commit the crime of ROBBERY IN THE FIRST DEGREE, and in the course of or in furtherance of said crime or in immediate flight therefrom, JUSTIN MICHAEL HEGNEY or an accomplice, did cause the death of Erik M. Toews, a human being, not a participant in such crime, on or about the 25th day of August, 2000, contrary to RCW 9A.32.030(1)(c) and 9A.08.020, and against the peace and dignity of the State of Washington.

State's Response to PRP, App. B (emphasis added).³ In addition, the statement of probable cause supporting the information alleged that Hegney and "a group of individuals to include defendants [Hegney, Hunt, and Hernandez]" committed the offense.⁴ State's Response to PRP, App. B.

¶ 13 In Brown, the information and statement of probable cause alleged that defendant Christiansen conspired with 11 specifically identified people to commit theft; the information did not allege that Christiansen had conspired with some other unnamed co-conspirator. Brown, 45 Wash.App. at 573-74, 576, 726 P.2d 60. The to-convict instruction, however, allowed the jury to find Christiansen guilty if he agreed with "one or more persons" to engage in the conduct at issue. Brown, 45 Wash.App. at 574 n. 2, 726 P.2d 60. Because several witnesses not named in the information testified at trial about their involvement in the conspiracy, thereby allowing the jury to return a guilty verdict by finding Christiansen conspired with one of the uncharged witnesses, Division One of this court determined that the erroneous instruction was not harmless. Brown, 45 Wash. App. at 576, 726 P.2d 60 (citing State v. Valladares, 99 Wash.2d 663, 664 P.2d 508 (1983)).

¶ 14 Although the information here listed only Hernandez and Hunt as co-defendants, it did not allege that Hernandez and Hunt were the only accomplices. In fact, the information alleged that Hegney or an accomplice committed the offense. Additionally, the statement of probable cause did not purport to name every individual involved in the offense. Instead, it clearly stated that Hegney, Hernandez, and Hunt were among "a group of individuals." State's Response to PRP, App. B (emphasis added). Because the charging documents did not assert that the only other individuals involved in the offense were Hunt and Hernandez, Hegney fails to establish that the to-convict instruction allowed the jury to convict him of an uncharged crime.

C. UNANIMITY

¶ 15 Hegney also claims that the...