State v. Brown, No. 69785-0

Citation58 P.3d 889,147 Wash.2d 330
Decision Date19 September 2002
Docket Number No. 69787-6., No. 69785-0
CourtUnited States State Supreme Court of Washington
PartiesSTATE of Washington, Respondent, v. Jacob Patrick BROWN, Petitioner. State of Washington, Respondent, v. Marshall C. Harris, Petitioner. State of Washington, Respondent. v. Linniell Phipps, Jr., Petitioner. State of Washington, Respondent, v. Linniell Phipps, Jr., Defendant, and Lechaun Dwayn Baker, and each of them, Petitioner.

Nielsen, Broman & Associates, David Koch, Gregory Link, David Donnan, Thomas Kummerow, Washington Appellate Project, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Ann Summers, James Whisman, Deputy County Prosecutors, for Respondent.

IRELAND, J.

This case determines whether an erroneous accomplice, liability jury instruction is subject to harmless error analysis, and if so, whether the instruction was harmless in these consolidated appeals. We hold that an erroneous jury instruction may be subject to harmless error analysis if the error does not relieve the State of its burden to prove each element of the crime charged. An erroneous instruction is harmless if, from the record in a given case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. The analysis must be completed as to each defendant and each count charged. The Court of Appeals' decision is affirmed in part and reversed in part.

FACTS
State v. Brown; State v. Harris

Jacob Brown's convictions were based on seven counts committed against Lewis Brown, Thomas Boyd, and Jelani and Jerel Tackett, in three separate incidents. Co-defendant Marshall Harris was convicted as a result of his participation in the Lewis Brown incident.

Lewis Brown

Porsche Washington and Lewis Brown (Lewis) were involved in an intimate relationship. On September 30, 1996, Porsche called Lewis and arranged to meet him at a Seattle motel. Lewis arrived at about 2 a.m. the following morning, and he complied with Porsche's request that he take off his clothes. Then three men, who Lewis later identified as Jacob Brown (not related to Lewis), Marshall Harris, and Tesino Barber, suddenly came out of the bathroom. Brown was armed with a revolver.

Brown hit Lewis in the chest with his fist, and Barber struck him in the face with a gun that he took from Lewis's coat. Brown and Barber also took Lewis's watch, rings, cell phone, cash, and other personal belongings. Lewis testified that Washington hit him in the face and applied a substance to his anus before Barber forced a dildo into Lewis's anus and mouth and burned Lewis's arm with a hot iron.

Harris signed the motel registration card. Lewis testified that Harris blocked the door to the motel room during the incident and that Harris threatened to beat Lewis.

After Lewis got dressed, Barber took him from the motel room at gunpoint. Barber drove Lewis's car to the Rainier Valley, told the victim to get out, and then drove away. Lewis sought help at a convenience store. He was taken to a hospital and treated for lacerations and burns. When police found Lewis's car several days later, the stereo and speakers had been removed. Lewis was able to identify Brown, Harris, and Barber in police photo montages.

Thomas Boyd

In the early morning of October 6, 1996, police responded to reports of gunshots near a residence in Auburn. They discovered the body of Thomas Boyd lying just inside the front door of his home.

When Porsche Washington was arrested on another matter two weeks later, she made a statement to police about Boyd's shooting. As a result, an arrest warrant was issued for Jacob Brown. Brown gave conflicting accounts of Boyd's death, but both Washington and Brown admitted being at or near the residence when Boyd was shot. In his third statement to police, Brown said that he and Washington had gone to Boyd's house to steal money from him. Brown described how he and Washington worked together. She would pose as a prostitute; he would feign hysteria and demand money for drugs. Victims usually paid Brown in order to get rid of him, but Boyd fought with Brown. Brown stated that while the men were struggling, Washington shot Boyd.

Jelani and Jerel Tackett

The final incident began in the late evening of October 14, 1996, when Porsche Washington and Ramona Rigney went for a ride with Jelani Tackett and his brother, Jerel. The women asked Jelani to drive them to an apartment and then to a nearby convenience store in Seattle. At the store, Ramona got out. Jacob Brown and Tesino Barber approached the car, and Washington introduced Brown as her brother. At Washington's request, Jelani agreed to take Brown and Washington to their mother's house.

Washington, Brown, and Barber rode in Jelani's car, and Brown directed Jelani to pull to the curb in a residential area. Barber got into the front seat beside Jelani; Washington and Brown conferred behind the parked car.

Brown suddenly appeared at the driver's side window and pointed a gun at Jelani's head. At the same time, Barber demanded his money and jewelry. While Jelani wrestled with Barber, Jerel got out of the car. Brown then grabbed Jerel, put the gun to Jerel's head, and ordered Jelani to get out of the car. Washington and Barber fled.

Brown threatened Jerel and Jelani and told them to walk away. When Jelani pursued Brown and demanded the return of his car keys, Brown ran and fired several shots.

The cases against Brown and Harris were consolidated for trial. On July 31, 1997, a jury found Brown guilty of first degree murder, two counts of first degree robbery, first degree rape, and three counts of first degree assault, with a firearm enhancement rendered on each count. Harris was convicted, in the same court, of first degree robbery, first degree rape, and first degree assault, with a firearm enhancement for each count.

State v. Phipps and Baker

Charges against Linniell Phipps and Lechaun Baker stemmed from a series of events that occurred in the early morning of March 11, 1997.

Curtis Rodgers was visiting two men who lived in a Federal Way motel room. While Rodgers and another man were in the bathroom discussing a drug deal, two men came in through the front door of the room. One of them wore a mask and held a pistol.

The gunman told the occupants of the motel room to lie down on the floor and ordered both men out of the bathroom. The man who accompanied the gunman demanded the keys to a truck that belonged to Alice Manchester, a woman present in the room. The two men left with Rodgers at gunpoint and drove away in the truck.

After going a short distance, the gunman removed his mask and got out of the truck with Rodgers. The other man remained in the driver's seat. The gunman shot Rodgers twice in the abdomen, and the victim fell to the ground. When the driver urged the gunman to hurry up, the gunman fired a shot that grazed the victim's scalp. The two men then left.

Rodgers survived after emergency medical treatment and surgery. He was able to identify the gunman as Linniell Phipps and the driver who accompanied him as Phipps' half-brother, Leehaun Baker. Others who had been present in the motel room also identified Phipps and Baker.

On March 23, 1997, Phipps and Baker were stopped and arrested in Phipps' car. When police searched the car, they found the gun used to shoot Rodgers.

On July 14, 1997, a jury found Phipps and Baker guilty of attempted murder in the first degree, first degree robbery, first degree kidnapping, and first degree burglary, with a firearm sentence enhancement for each count.

PROCEDURAL HISTORY

Brown and Harris appealed their convictions and sentences on numerous procedural and evidentiary grounds. The Court of Appeals affirmed the trial court decision in part, reversed in part, and remanded for further proceedings. The court held that there was insufficient evidence to convict Brown of first degree assault against Jerel Tackett. Accordingly, that conviction was reversed and dismissed. The court also reversed and remanded for new trial Brown's felony murder conviction because there was insufficient evidence to support one of the alternative predicate crimes. Because the State failed to elect the predicate crime or request a unanimity instruction, the defendant's right to a unanimous jury verdict was violated. In addition, the firearms enhancements against Brown and Harris were reversed and remanded to the trial court for resentencing. State v. Brown, 100 Wash.App. 104, 106, 995 P.2d 1278 (2000). The State has not crossappealed any of the decisions of the Court of Appeals.

Phipps and Baker also appealed their convictions and sentences on several grounds. The Court of Appeals affirmed the judgments of conviction and remanded their cases for resentencing. State v. Phipps, Nos. 41367-8-1, 42892-6-1, 100 Wash.App. 1024, 2000 WL 422859, *10 (Apr.10, 2000).

On appeal, Brown, Harris, and Baker contested the accomplice liability jury instruction given at their trials. The Court of Appeals held "that the trial court's accomplice liability instruction, if erroneous, was harmless error" as to Brown and Harris. Brown, 100 Wash.App. at 106, 995 P.2d 1278. With regard to Baker's contention that the instruction given was erroneous, the Court of Appeals stated that "[b]ecause the language of the accomplice liability instruction here did not present an issue at trial, any alleged error was harmless." Phipps, 2000 WL 422859, *4.

Brown, Harris, Phipps, and Baker each filed a petition for review in this Court. Review of Phipps' petition was denied, and consideration of the remaining petitions was deferred pending final determination 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).

The petitions of Brown, Harris, and Baker were then granted review and consolidated.

ISSUE

Review is limited to the sole issue of "whether an erroneous accomplice liability...

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