State v. Borrero

• Decision Date: 19 September 2002
• Docket Number: No. 70746-4.,70746-4.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Aaron BORRERO, Petitioner.

58 P.3d 245

147 Wash.2d 353

STATE of Washington, Respondent, v. Aaron BORRERO, Petitioner.

No. 70746-4.

Supreme Court of Washington, En Banc.

Argued October 18, 2001.

Decided September 19, 2002.

David B. Koch, Nielsen Broman & Koch Pllc, Seattle, for Petitioner. Lee D. Yates, Senior Deputy Prosecuting Attorney, Prosecuting Atty Offc, King County Prosecutor/Appellate Unit, for Respondent.

IRELAND, J.

Defendant Aaron Borrero sought review of a Court of Appeals' decision affirming his conviction for first degree kidnapping and attempted first degree murder. At issue is whether the information charging Borrero was constitutionally deficient because it used the term "attempt" rather than "substantial step" to describe Borrero's alleged criminal conduct. We hold that because the plain meaning of "attempt" conveys the substantial step element, Borrero was given the required notice of the crime charged. Also at issue is whether an erroneous accomplice liability jury instruction denied Borrero his due process rights. We hold that because the error in the jury instruction did not relieve the State of its burden to prove every element necessary to constitute the charged crimes, the error was harmless. We affirm the judgment and sentence.

FACTS AND PROCEDURAL HISTORY

Aaron Borrero and Kyle Anderson were each charged with first degree kidnapping and first degree assault in an information filed in King County Superior Court on April 1, 1997. The charges arose from binding and abducting Leslie Lemieux and from throwing Lemieux into a river.

An amended information, adding Michael Vaughn as a codefendant to both charges and removing Anderson as a defendant to the assault charge, was filed on April 21, 1997.

Borrero and Vaughn were allowed to sever their trials from that of Anderson. Vaughn subsequently negotiated a plea agreement under which he would be allowed to plead guilty to a single count of first degree kidnapping in return for his testimony against Borrero and Anderson.

A second amended information was filed on October 20, 1997. The information charged both Borrero and Anderson with first degree kidnapping while armed with deadly weapons. In addition, the information amended the first degree assault count to attempted first degree murder.

Borrero's jury trial commenced before King County Superior Court Judge Michael J. Fox on February 9, 1998.

At trial, Lemieux testified that in March 1997, he took a duffel bag containing 30 pounds of marijuana to Anderson's home in order to complete a prearranged sale with Anderson. When Lemieux walked through a doorway in the house, Borrero stepped out, pointed a pistol at him, and ordered him to lie face down. Another man, who was later identified as Vaughn, held a shotgun to the back of the victim's head. Borrero bound the victim's hands and feet with speaker wire, bound his hands and feet together, and stuffed him into a duffel bag. Lemieux was then carried to the back of his Jeep. After being driven around for several hours, Lemieux testified he was taken from the vehicle while still hog-tied and thrown into the Yakima River by Borrero and Vaughn.

Lemieux managed to break the bond between his hands and feet and to reach the riverbank without being observed by his assailants. The victim then contacted a passing motorist, who summoned police. Borrero was arrested in California two months later.

In his trial testimony, Vaughn testified that he, Borrero, and Anderson planned to rob Lemieux and then drown him. Vaughn corroborated the events described by Lemieux. He stated that Anderson seized the marijuana while Lemieux was held at gunpoint.

Borrero testified that he was not present and was not involved in any way with what happened to Lemieux. When the State had rested, Borrero moved to dismiss the attempted first degree murder charge, arguing that the information failed to allege the "substantial step" element of the offense. The court denied the motion.

Borrero also objected to the accomplice liability jury instruction. The State's proposed instruction was based on the standard WPIC 10.51, but included an additional sentence derived from the comment to the pattern instruction that "an accomplice may be convicted even though the other person is not prosecuted or convicted." Verbatim Report of Proceedings (Mar. 9, 1998) at 10-11. While maintaining his objection to the instruction, Borrero proposed that the language be changed to read as follows: "An accomplice may be tried for the crime even though another person is not prosecuted." Id. at 14. The court gave the instruction as proposed by Borrero.

Borrero was convicted on both counts, including a special verdict finding of a deadly weapon enhancement on the kidnapping charge. The court imposed standard range concurrent sentences of 156 months for kidnapping in the first degree (including a firearm enhancement of 60 months) and 275 months for attempted murder in the first degree.

Borrero appealed his conviction to Division One of the Court of Appeals, contending that the information was insufficient because it "did not allege all necessary statutory elements" of the crime of attempted first degree murder. Br. of Appellant at 1. In addition, Borrero assigned error to the accomplice liability jury instruction given by the trial court.

The Court of Appeals affirmed Borrero's conviction, holding that the use of the word "attempt" in the information sufficiently apprised the defendant of the "substantial step" element required for the crime of attempted murder. State v. Borrero, 97 Wash.App. 101, 106, 982 P.2d 1187 (1999).

This court first deferred Borrero's petition for review pending a decision in State v. Taylor, 140 Wash.2d 229, 996 P.2d 571 (2000). The petition was then granted, and the case was remanded to the Court of Appeals for consideration in light of State v. McCarty, 140 Wash.2d 420, 998 P.2d 296 (2000). State v. Borrero, 141 Wash.2d 1010, 10 P.3d 407 (2000). In its subsequent unpublished opinion, the Court of Appeals adhered to its original decision. State v. Borrero, No. 42865-9-I, 103 Wash.App. 1045, 2000 WL 1808190 (Dec. 11, 2000).

Borrero then filed a second petition for review, which was also granted. State v. Borrero, 143 Wash.2d 1019, 25 P.3d 1019 (2001). Borrero renewed his challenge to the sufficiency of the information. In addition, he contended that the accomplice liability instruction given at trial denied his due process rights because the jury was given the same accomplice instruction found to be erroneous in State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000) and State v. Cronin, 142 Wash.2d 568, 14 P.3d 752 (2000).¹ Borrero argued that the erroneous instruction relieved the State of its burden to prove every element necessary to constitute the charged crime.

ANALYSIS

Issues

Whether an information that charges attempted first degree murder but does not expressly allege the "substantial step" element of criminal attempt is constitutionally insufficient when the document is challenged prior to verdict.

Whether a jury instruction denies the defendant's due process rights if "a" rather than "the" modifies the word "crime" in specifying accomplice liability for a charged crime under the facts of this case.

The documents at issue are the information charging Borrero with attempted murder and the jury instruction concerning accomplice liability.

Sufficiency of Information

"[A] charging document must include all essential elements of a crime." Taylor, 140 Wash.2d at 236, 996 P.2d 571. This "essential elements rule" is grounded in the federal and state constitutional requirements that criminal defendants be informed of the accusations against them. Id.

The United States Constitution provides that "[i]n all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation." U.S. Const. amend. VI. The Washington Constitution contains a similar provision: "In criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation against him [and] to have a copy thereof." Const. art. I, § 22. Also, as established by court rule, the initial pleading by the State in all criminal proceedings is to be "a plain, concise and definite written statement of the essential facts constituting the offense charged." CrR 2.1(a)(1).

"[A]ll essential elements of a crime... must be included in the charging document so as to apprise the defendant of the charges against him and to allow him to prepare his defense." State v. Hopper, 118 Wash.2d 151, 155, 822 P.2d 775 (1992). "When a conviction is reversed due to an insufficient charging document, the result is a dismissal of charges without prejudice to the right of the State to recharge and retry the offense for which the defendant was convicted or for any lesser included offense." State v. Vangerpen, 125 Wash.2d 782, 791, 888 P.2d 1177 (1995).

"The standard of review for evaluating the sufficiency of a charging document is determined by the time at which the motion challenging its sufficiency is made." Taylor, 140 Wash.2d at 237, 996 P.2d 571. When a charging document is challenged for the first time after the verdict, it is to be "liberally construed in favor of validity." State v. Kjorsvik, 117 Wash.2d 93, 102, 812 P.2d 86 (1991). In contrast, however, when an information is challenged before the verdict, as it was in the instant case, "the charging language must be strictly construed." Taylor, 140 Wash.2d at 237, 996 P.2d 571.

"The two distinct standards of review encourage prosecuting attorneys to file sufficient complaints, and also encourage defendants to make timely challenges to defective charging documents to discourage `sandbagging.'" Id. at 237 n. 32, 996 P.2d 571.

State v. Johnson addressed pretrial challenges to informations alleging unlawful delivery of a controlled substance. The Johnson court stated as follows:

The charging documents in these cases are not to be

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