State v. Bourgeois
| Decision Date | 06 November 1997 |
| Docket Number | No. 64316-4,64316-4 |
| Citation | 945 P.2d 1120,133 Wn.2d 389 |
| Parties | STATE of Washington, Petitioner, v. Jeremiah BOURGEOIS, Respondent. |
| Court | Washington Supreme Court |
Richard R. Tassano, Thomas M. Kummerow, Washington Appellate Project, Seattle, for Respondent.
The principal issue before us is whether the trial court committed reversible error in permitting the State to elicit on the direct examination of several of its witnesses that they were reluctant to appear in court or were afraid to testify. We conclude that although this was error in all but one instance, it was harmless. We also conclude that several irregularities that occurred during the course of the trial were not sufficiently prejudicial to warrant a new trial. Consequently, we reverse the decision of the Court of Appeals and reinstate the defendant's conviction for aggravated first degree murder and first degree assault.
On May 19, 1992, a lone gunman entered the High Point Market in West Seattle and shot two of the market's co-owners, Tecle Ghebremichaele and Efram Isak. Ghebremichaele died as a result of the wounds he received in the incident. Isak survived.
Jeremiah Bourgeois, who was then 14 years of age, was subsequently arrested and charged in King County juvenile court with assaulting Isak and murdering Ghebremichaele. When the juvenile court declined to assert jurisdiction over Bourgeois, the State charged Bourgeois in King County Superior Court with first degree assault and aggravated first degree murder. The State alleged as an aggravating factor that Bourgeois shot Ghebremichaele in retaliation for Ghembremichael's testimony against Bourgeois's brother at an earlier trial. That trial arose out of a charge against Bourgeois's brother for the shooting of Ghebremichaele and the third co-owner of the High Point Market, Dagnew Andemichael, at the market on January 5, 1992.
At Bourgeois's trial, the State called Andemichael as its first witness. The deputy prosecutor asked Andemichael, "[D]o you want to be here today?" Verbatim Report of The State's next witness was Efram Isak. Over defense counsel's objection, the trial court permitted the deputy prosecutor to ask Isak if he had come to court "completely voluntarily." VRP at 257. Isak stated that he "was arrested and [did not] want to be arrested again the next day." VRP at 257. He then testified about the May 19 shooting that led to the charges against Bourgeois. He recalled that the person who assaulted him was wearing a "mask," and he was unable to identify that person.
Proceedings (VRP) at 111. After the trial court rejected defense counsel's relevancy objection, Andemichael stated that he did not want to be in court and was there only because he had been arrested on a material witness warrant. Andemichael then testified about the incident that led to the charge against Bourgeois's brother.
Frank Rojas, who was in his apartment across the street from the High Point Market at the time of the May 19 shooting, also testified on behalf of the State. In response to a question from a deputy prosecutor, Rojas stated that he did not want to be in court. When asked "why," Rojas stated, over defense counsel's objection, "Just fear, worry." VRP at 474. Rojas went on to say that he was "[f]earful of getting hurt, my family being hurt," and that he was in court only because he had been arrested on a material witness warrant. VRP at 474. Rojas testified that he had not appeared when served with a subpoena because he VRP at 475.
Rojas then testified about the incident, indicating that on the evening of May 19, he noticed "J.J." [Bourgeois] walking toward the High Point Market wearing a red hooded sweatshirt. Rojas said that after looking away momentarily, he "glanced up again" and saw someone "with [a] hood over their head and a bandana over their face" walking toward the Market. VRP at 487, 490. According to Rojas, the person wearing the bandana was of the same height, gender, and ethnicity as Bourgeois. Rojas testified that although there was "some doubt in [his] mind, a little Rojas testified that when the police arrived at the scene of the shooting, he identified himself as Frank Zamzrla and told them that he "had no idea" who the assailant was. VRP at 517. Rojas indicated further that during this first contact with the police, he selected a picture of someone other than Bourgeois from a photo montage that was shown to him. He also said that it was "possible" he told the officers that Bourgeois's brother was the assailant. VRP at 550. Rojas indicated that when the police later contacted him, he told them his true name and picked Bourgeois's picture out of the same photo montage that had been shown to him earlier. Rojas testified that he originally lied about his identity because he "had warrants," and that he purposely picked the wrong picture when first shown the montage because he was "scared for [his] family and [himself]." VRP at 519, 523.
bit," the person wearing the hood and bandana looked like Bourgeois. VRP at 490. He also indicated that any uncertainty he had was a result only of "some things" he later heard in the neighborhood. VRP at 494. Rojas said that after hearing several gunshots, he turned to see the person in the bandana standing in the doorway of the High Point Market with his arm extended, apparently firing a gun.
Debra Steward, who also testified on behalf of the State, stated over defense counsel's objection that she felt "fearfulness" and "nervousness" about testifying, and that she did not want to "be involved" or "anger anybody by [her] testimony." VRP at 752. Steward also testified that Bourgeois came to her house and offered to give her and her son $120 "[t]o say that [Bourgeois] was baby-sitting [Steward's son]" on the evening of the shooting. VRP at 775. According to Steward, Bourgeois had not provided care for her son on the evening of the shooting. Finally, Steward testified that while she was leaving a party approximately a week and a half before trial, someone pushed her to the ground and said, "Don't do it, Debbie." VRP at 754. She indicated that the incident made her afraid to testify.
Manuel Parejo, a self-described "snitch" with an extensive history of felony convictions, also testified for the State. He said that prior to Bourgeois's trial, he was housed in the same section of the King County Jail as Bourgeois. According to Parejo, he and Bourgeois had a conversation in the jail about the incident at the High Point Market. Recounting what he said he learned from Bourgeois, Parejo testified: VRP at 1029. According to Parejo, Bourgeois told him that he "had a white guy that was a witness that was going to lie for him" by saying that Bourgeois was at the witness's house during the shooting. VRP at 1022.
Randy Browne, a white male, was one of several witnesses who testified for the defense. According to Browne, Bourgeois arrived at Browne's house between 4:00 and 5:00 p.m. on May 19, and remained there until after "about 12:00 or 1:00." VRP at 1154. Bourgeois did not testify.
One of the trial court's instructions to the jury stated:
Evidence has been introduced in this case on the subject of the alleged willingness of a witness to testify, including, but not limited to, the alleged fear of the witness. This evidence has been admitted for the limited purpose of assessing the credibility of a witness. You must not consider this evidence for any other purpose.
During his closing argument, the deputy prosecutor stated:
Ladies and gentlemen of the jury, the essence of this case on which you have heard evidence for approximately three weeks can be distilled to just a few words: deadly retaliation and reasonable fear of more of it. If you doubt whether or not that's an accurate distillation, consider the following: consider the fact that Dagnew Andemichael had to be threatened with a material witness warrant to get him to come here to testify.
VRP at 1322-23. Bourgeois's counsel objected to this line of argument, contending that it was beyond the scope of the above-quoted jury instruction. The trial court overruled his objection. The deputy prosecutor continued:
Consider as well Efram Isak who had to, in fact, be arrested on a material witness warrant and threatened with remaining in jail before he would testify.
Consider Debra Steward, who was so fearful she did not want to admit in open court that she was fearful because she understood that she had been pushed down recently when leaving a party apparently just one-to-two weeks before she testified.
VRP at 1323. After the trial court granted defense counsel's request for a continuing objection to this line of argument, the deputy prosecutor told the jury that Frank Rojas "expressed substantial fear about what he had seen and about the idea of testifying" and reminded them that Rojas "ultimately ... had to be arrested to come in and testify in this matter." VRP at 1324. The deputy prosecutor also stated:
Who can blame any of these persons for being terrified? They have every motive--and that's the whole point of this--every motive to come in here and conceal or try to minimize what they saw or what they observed, and, further, not to be as certain as they once were as to everything they had observed.
It is in this context, in the context of credibility, that you must consider the testimony that you have heard in this matter from each of these witnesses.
VRP at 1325. The jury found Bourgeois guilty of aggravated first degree murder and first degree assault.
At the sentencing hearing, the trial court not...
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State v. Carlson, No. 30419-8-II (WA 5/10/2006)
...reasonable probabilities, the trial's outcome would have been materially affected had the error not occurred. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). The outcome would not have been affected if the evidence erroneously admitted is of minor significance in reference to ......
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