State v. Brewczynski

• Decision Date: 14 February 2013
• Docket Number: No. 29120–1–III.,29120–1–III.
• Citation: 294 P.3d 825
• Parties: STATE of Washington, Respondent, v. David Kellogg BREWCZYNSKI, Appellant.
• Court: Washington Court of Appeals

294 P.3d 825

STATE of Washington, Respondent,

v.David Kellogg BREWCZYNSKI, Appellant.

No. 29120–1–III.

Court of Appeals of Washington, Division 3.

Feb. 14, 2013.

Eric J. Nielsen, Casey Grannis, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

KULIK, J.

¶ 1 David Brewczynski was convicted by a jury in Spokane County Superior Court of first degree murder with aggravating circumstances, first degree burglary, and theft of a firearm. On appeal, he contends (1) the amended information failed to give him notice that he faced an alternative means of committing first degree burglary, (2) the trial court erred in instructing the jury on the uncharged alternative means of committing burglary, (3) defense counsel failed to impeach a key witness with evidence of a prior conviction, (4) the trial court erred in admitting expert testimony on footwear comparison evidence, (5) the jury was erroneously instructed that it must be unanimous to answer “no” to the special verdict, and (6) cumulative error denied him a fair trial. We stayed this case pending resolution of State v. Kosewicz, 174 Wash.2d 683, 278 P.3d 184,cert. denied,––– U.S. ––––, 133 S.Ct. 485, 184 L.Ed.2d 305 (2012). Following our Supreme Court's decisions in Kosewicz and in State v. Guzman Nuñez, 174 Wash.2d 707, 285 P.3d 21 (2012), we reverse the first degree burglary conviction, and affirm the first degree murder with aggravating circumstances and theft of a firearm convictions.

FACTS

¶ 2 On September 20, 2008, neighbors discovered the body of 80–year–old Kenneth Cross in the closet of his Spokane Valley bedroom. Mr. Cross had been shot once on the left side of his head and once on the right side of his head. He was also severely beaten, sustaining multiple skull and rib fractures. His back door showed signs of forced entry and his basement office had been ransacked.

¶ 3 Earlier that day, Mr. Cross was visited by his housecleaner—Teresa Nelson—and his stepson—Douglas Livingstone—who both reported leaving the house by around 1:30 p.m. When a friend was unable to reach Mr. Cross later that day, she sent neighbors to check on him. They eventually discovered his body at about 7:30 p.m.

¶ 4 The police investigation first focused on Mr. Livingstone and Ms. Nelson. Mr. Livingstone had resented his stepfather as a child and believed Mr. Cross's family was trying to prevent him from receiving money from Mr. Cross's estate. One officer reported that Mr. Livingstone arrived at the scene of the crime that night and, before looking at anything, stated that he had heard that the back door was kicked in. Ms. Nelson gave inconsistent accounts of the day. She claimed Mr. Cross had showed her a pistol in his bedroom the day before he died and told her he would use it on anyone who tried to break into his house. A neighbor claimed he saw Ms. Nelson's car in Mr. Cross's driveway around 3:30 p.m. on the day he died.

¶ 5 William Lundin owned property in Spokane with a trailer house, a large garage containing a studio apartment, and a mobile home. Mr. Lundin lived in the trailer, a couple lived in the mobile home, and Mr. Brewczynski had lived in the garage studio apartment until he was evicted in early September 2008. Only Mr. Brewczynski and Mr. Lundin had keys to the garage. After Mr. Brewczynski moved out, Mr. Lundin changed the garage locks around September 25. On September 28, 2008, Mr. Lundin opened a paint bucket stored in the garage and found a little cooler containing a metal container wrapped in heavy foil. Inside the metal container were jewelry, a gun, gloves, and a wallet with Mr. Cross's identification and credit cards. Forensic tests later established that Mr. Cross's DNA ¹ was on the gun and the outside of one of the gloves and that Mr. Brewczynski's DNA was on the inside of the glove. Additionally, a pair of boots was retrieved from Mr. Brewczynski that had Mr. Cross's blood and DNA on the outside.

¶ 6 Mr. Brewczynski was charged by amended information with premeditated first degree murder with aggravating circumstances (RCW 9A.32.030(1)(a), (c)), first degree burglary (RCW 9A.52.020(1)(a)), and theft of a firearm (RCW 9A.56.300). The jury convicted him of all charges and found by special verdict that he was armed with a firearm and committed the murder “in the course of, in furtherance of, or in immediate flight from” first degree burglary. Clerk's Papers (CP) at 113.

ANALYSIS

¶ 7 Uncharged Alternative—Burglary. Mr. Brewczynski first contends the amended information is constitutionally defective because it failed to include all the elements of the crime of first degree burglary. He essentially argues that the amended information was inadequate because he was charged with one means of committing first degree burglary, but the jury was allowed to consider an additional alternative means of committing first degree burglary in the jury instructions. He confuses the constitutional sufficiency of the amended information with the constitutionality of instructing the jury on uncharged alternatives.

¶ 8 An accused has a constitutional right to be informed of the charges he or she will face at trial. U.S. Const. amend. VI; Const. art. I, § 22 (amend. 10). A charging document is adequate only if it includes all essential elements of a crime—statutory and nonstatutory—so as to inform the defendant of the charges and to allow the defendant to prepare a defense. State v. Vangerpen, 125 Wash.2d 782, 787, 888 P.2d 1177 (1995). If a statute sets forth alternative means by which a crime may be committed, the information may charge one or all of the alternatives, provided the alternatives are not inconsistent with each other. State v. Chino, 117 Wash.App. 531, 539, 72 P.3d 256 (2003) (quoting State v. Williamson, 84 Wash.App. 37, 42, 924 P.2d 960 (1996)).

¶ 9 Relevant to these facts, a person commits first degree burglary if he or she enters or remains unlawfully in a building with intent to commit a crime against a person or property therein and while entering, remaining, or leaving the building, he or she (a) is armed with a deadly weapon or (b) assaults any person. RCW 9A.52.020(1). The State charged Mr. Brewczynski with entering and remaining unlawfully in Mr. Cross's building and, while in the building and in immediate flight from the building, being armed with a handgun. Thus, the amended information properly included all the essential elements of first degree burglary under the alternative in RCW 9A.52.020(1)(a); being armed with a deadly weapon. See Chino, 117 Wash.App. at 540, 72 P.3d 256 (the defendant properly declined to allege that the information is defective for omitting the remaining alternatives and instead challenged the inclusion of uncharged alternatives in the jury instructions).

¶ 10 Mr. Brewczynski also, however, challenges the inclusion of an uncharged alternative in the first degree burglary instructions. Instruction 7 states that “[a] person commits the crime of burglary in the first degree when he or she enters or remains unlawfully in a building with intent to commit a crime against a person or property therein, and if, in entering or while in the building or in immediate flight therefrom, that person is armed with a deadly weapon or assaults any person.” CP at 88 (emphasis added). The “to convict” instruction also requires the jury to find beyond a reasonable doubt that the defendant was either armed with a deadly weapon or assaulted a person. Consistent with the constitutional requirement that a defendant be informed of the charges he or she faces at trial, we review instructional errors de novo to determine whether the challenged instruction states the applicable law correctly. State v. Aguilar, 153 Wash.App. 265, 278–79, 223 P.3d 1158 (2009).

¶ 11 It is error to instruct the jury on alternative means that are not contained in the charging document. See State v. Severns, 13 Wash.2d 542, 548, 125 P.2d 659 (1942); Chino, 117 Wash.App. at 540, 72 P.3d 256. Here, the trial court erred in instructing the jury on the uncharged alternative of RCW 9A.52.020(1)(b) (assault of a person). This error may be harmless if other instructions clearly limit the crime to the charged alternative. Severns, 13 Wash.2d at 549, 125 P.2d 659;Chino, 117 Wash.App. at 540, 72 P.3d 256. None of the remaining instructions here limit the jury to consider solely the “armed with a deadly weapon” alternative of committing first degree burglary. Moreover, the prosecutor in closing argument urged the jury to consider both alternatives. Consequently, the error is not harmless because it remains possible that the jury convicted Mr. Brewczynski on the basis of the uncharged alternative. Chino, 117 Wash.App. at 540–41, 72 P.3d 256.

¶ 12 Thus, we must reverse the stand-alone first degree burglary conviction due to instructional error. Severns, 13 Wash.2d at 548, 125 P.2d 659;Chino, 117 Wash.App. at 540–41, 72 P.3d 256 (The theft of a firearm conviction is not affected by the instructional error.). The remaining question is whether the validity of the aggravated murder conviction is affected by reversal of the burglary conviction.

¶ 13 Application of Kosewicz—Aggravating Factor for First Degree Murder. As discussed above, the purpose of the essential elements rule is to inform the defendant of the charges against him or her so that he or she may prepare a defense. State v. Kjorsvik, 117 Wash.2d 93, 101, 812 P.2d 86 (1991). An aggravating factor, however, “is not the functional equivalent of an essential element, and, thus, need not be charged in the information to provide adequate notice to the defendant.” Kosewicz, 174 Wash.2d at 692–93, 278 P.3d 184.

¶ 14 In this case, the amended information alleged that Mr. Brewczynski murderedMr. Cross “in the course of, in furtherance of or in immediate flight from the crime of Burglary in the First Degree.” CP at 48. Significantly, the...