State v. Berube
| Decision Date | 13 November 2003 |
| Docket Number | No. 71616-1.,71616-1. |
| Citation | 79 P.3d 1144,150 Wash.2d 498 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Christine BERUBE, Petitioner, State of Washington, Respondent, v. Kory L. Nielsen, Petitioner. |
Nancy L. Talner, Kenmore, Washington Appellate Project, Nancy P. Collins, Seattle, for petitioners.
Gerald Horne, Pierce County Prosecutor, John M. Neeb, Deputy, Tacoma, Juelanne Dalzell, Jefferson Couty Prosecutor, Port Townsend, for respondent.
Christine Berube and Kory Nielsen were convicted of homicide by abuse and each was given an exceptional sentence of 640 months. Their convictions and sentences were affirmed by Division Two of the Court of Appeals. Berube and Nielsen seek review of the Court of Appeals unpublished opinion, arguing that the trial court gave an erroneous accomplice liability instruction that cannot be considered harmless, erroneously instructed the jury that a failure to act creates criminal liability, and erroneously imposed exceptional sentences. Berube also argues that there is insufficient evidence to support her conviction as an accomplice. We affirm the Court of Appeals.
Berube and Nielsen each made a call to the 9-1-1 dispatch at approximately 3:30 a.m. on April 24, 1998 to report that Berube's 23-month-old son, Kyle Theis, was cold and not breathing. Paramedics who arrived at the home were unable to revive Kyle and he was pronounced dead at the hospital at 4:45 a.m. Emergency room doctors noticed extensive bruising on Kyle, one doctor even observing that Kyle presented with the largest number of bruises he had seen on one child's body at one time.
Kyle's bruises were numerous and varied in age. There was extensive bruising on his forehead, cheeks and around both ears. He had numerous bruises on his upper, middle and lower back, and several abrasions on his shoulder. Kyle also had bruises all over his arms, hands, near his groin, and on his left calf and foot. There were bruises on his chest, neck and abdomen, which included "pattern injuries" on the chest and abdominal area. The pattern injury to the chest was consistent with being hit with a belt.
Kyle had two areas of significant hair loss. One of the areas had a small abrasion and some bruising within it. The hair that was left in the areas indicated that it was a traumatic loss of hair that was pulled out at different times. Kyle also had a one-inch wide and one-half inch deep gaping injury to the frenulum in his upper lip.
The autopsy revealed that Kyle had two skull fractures, two subdural hemotomas, subarachnoid hemorrhages, and retinal hemorrhages in both of his eyes. One of the subdural hemotomas was acute and most likely occurred within 24 hours of Kyle's death. The autopsy showed a lower back spinal injury that was likely caused by a twisting motion or by being slammed into a sitting position. Kyle's cause of death was classified as inflicted injury resulting from blunt force impact to the head. Berube and Nielsen were both charged by amended information with homicide by abuse, as principal or accomplice, on June 10, 1998. Their cases were consolidated for trial by agreed order on May 22, 1998. Berube filed a motion to continue trial, which the State agreed to, and the trial court set the trial for September 9, 1998. Nielsen opposed the continuance on the grounds of speedy trial and unsuccessfully sought to sever the two cases.
The jury found Berube and Nielsen guilty of homicide by abuse and the trial court imposed on each an exceptional sentence of 640 months. Berube and Nielsen appealed to Division Two of the Court of Appeals on various grounds. Berube claimed there was insufficient evidence to convict her as an accomplice. Nielsen contended that his trial should have been severed from Berube's and that Berube's continuance violated his own speedy trial rights. Jointly, Berube and Nielsen argued that jury instructions relating to accomplice liability misstated the law and relieved the State of its burden of proof. They also argued that another jury instruction was flawed in that it allowed both of them to be convicted as an accomplice based on the failure to act rather than by an affirmative action. Finally, Berube and Nielsen claimed that their sentences were unlawful because they were not factually supported.
In an unpublished opinion,1 the Court of Appeals agreed that the jury instructions relating to accomplice liability misstated the law. However, it concluded that the error was harmless and affirmed the convictions. The court also affirmed both exceptional sentences. Berube and Nielsen sought review. We originally deferred the petitions pending our decision in State v. Brown, 147 Wash.2d 330, 58 P.3d 889 (2002). The petitions were ultimately granted on February 4, 2003.
Jury instruction 18 given in Berube and Nielsen's trial states:
(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 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.
Berube Clerk's Papers (BCP) at 53; Nielsen Clerk's Papers (NCP) at 147 (emphasis added). Berube and Nielsen claim that jury instruction 18 was erroneously given. See State v. Roberts, 142 Wash.2d 471, 509-13, 14 P.3d 713 (2000) (); State v. Cronin, 142 Wash.2d 568, 579, 14 P.3d 752 (2000) ().
The Court of Appeals agreed that the trial court erred in giving jury instruction 18. However, it found that the error was harmless. Berube and Nielsen contend that the error was not harmless because it relieved the State of its burden of proof, which could never be a harmless error, and requires automatic reversal. Our recent decision in Brown provides a framework for determining whether an erroneous jury instruction regarding accomplice liability constitutes a harmless error.
In Brown, an identical accomplice liability jury instruction was given. This court found that although "[i]t 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," Brown, 147 Wash.2d at 338, 58 P.3d 889, "not every omission or misstatement in a jury instruction relieves the State of its burden" so as to require reversal. Id. at 339, 58 P.3d 889. Therefore, a harmless error analysis is warranted. "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), cited in Brown, 147 Wash.2d at 340, 58 P.3d 889.
Under the Neder test, as adopted in Brown, to determine that a constitutional error is harmless, it must appear beyond a reasonable doubt that the error did not contribute to the ultimate verdict. Brown, 147 Wash.2d at 341, 58 P.3d 889. "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." Id.2 The error can also be held harmless if accomplice liability was considered by the jury only in terms of the charged crime. State v. Borrero, 147 Wash.2d 353, 365, 58 P.3d 245 (2002). Further, if the record supports a finding that the jury verdict would be the same absent the error, harmless error may be found. See, e.g., id.
The crime with which Berube and Nielsen were charged with was homicide by abuse.3 RCW 9A.32.055(1) defines this crime as follows:
(1) A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person.
It is undisputed that the trial court erred in instructing the jury that Berube and Nielsen could be found guilty as accomplices if they knew their actions would promote or facilitate the commission of any crime, and not only the crime charged. The omitted element in the jury instruction is that the State must prove Berube and Nielsen had general knowledge of the crime—in this case homicide by abuse.
Homicide by abuse is a unique crime because the defendant must have engaged in a pattern or practice of either assault or torture. The record provides overwhelming evidence that Berube and Nielsen were active participants in the repetitive beatings of Kyle, which ultimately led to his death. The record also shows that both Berube and Nielsen were present on April 23,...
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