State v. Brown
| Citation | 998 P.2d 321,140 Wash.2d 456 |
| Decision Date | 04 May 2000 |
| Docket Number | No. 67935-5.,67935-5. |
| Court | United States State Supreme Court of Washington |
| Parties | STATE of Washington, Respondent, v. Jason BROWN, A/K/A Joseph Osell Palmer, Petitioner. |
Stella B. Paterson, Richard Tassano, Amy Williams, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, Dennis McCurdy, Deputy, James Whisman, Deputy, Seattle, for Respondent.
Petitioner Jason Brown seeks review of a decision of the Court of Appeals, Division I, which affirmed his conviction in the King County Superior Court for assault in the third degree under RCW 9A.36.031(1)(g).1 The Court of Appeals concluded that for a conviction of assault under RCW 9A.36.031(1)(g), it is not necessary for the State to prove a defendant had knowledge that the victim was a law enforcement officer nor that the victim was in the performance of official duties at the time of the assault.2 We granted review. We affirm.
The question presented in this case is whether knowledge that the victim is a law enforcement officer in the performance of official duties at the time of an assault is an implied element of the crime of assault in the third degree under RCW 9A.36.031(1)(g), thus requiring the State to charge and prove that element beyond a reasonable doubt.
Petitioner Jason Brown, also known as Joseph Osell Palmer, was charged by second amended information in the King County Superior Court with the crime of assault in the third degree under RCW 9A.36.031(1)(g).3 The charge arose from a "buy-bust" operation conducted by Seattle Police officers on the morning of March 10, 1995.4
The pertinent portion of Charge II in the second amended information stated:5
Plainclothes officer Gregory Neubert posed as a narcotics buyer outside McDonald's restaurant at Third Avenue and Pine Street in downtown Seattle.6 He wore "[b]lack leather boots," "ripped up jeans," a "white t-shirt with some black lettering and pictures on the front" and a "green military field jacket" with a hood.7 The jacket, when closed, concealed his police badge and service weapon.8
Officer Neubert testified that on the day of Petitioner's arrest, he initiated a conversation with a male person outside McDonald's and asked whether he had narcotics for sale.9 The man accused Officer Neubert of being a "cop" and proceeded into the restaurant.10 Officer Neubert followed the man into the restaurant and argued with him over whether Neubert was a law enforcement officer.11 The man then walked away, remaining in McDonald's while Officer Neubert returned outside to the front of the restaurant.12
Officer Neubert testified that Petitioner Jason Brown approached him in front of the restaurant and asked what he was looking for.13 He responded by asking whether Petitioner was "down," a term the officer knew was street vernacular for having narcotics.14 According to Officer Neubert, Petitioner responded 15 Officer Neubert then asked for a "40," street vernacular for $40 worth of rock cocaine.16 Petitioner told Officer Neubert to wait outside while he entered McDonald's.17 Through a window Officer Neubert watched Petitioner sit at a table and remove a white object from a plastic bag.18 Petitioner stood up and appeared to have a conversation with the man who had accused Officer Neubert of being a "cop."19 Petitioner then came out of the restaurant and exchanged a white round object tightly wrapped in cellophane with Officer Neubert for two $20 bills.20 After the exchange, Petitioner went back into McDonald's. Officer Neubert immediately placed the hood of his jacket over his head as a signal to standby officers that he had made a "good buy."21 He briefly inspected the white round object and suspected it was "bunk," a word commonly referring to fake cocaine.22 Officer Neubert then followed Petitioner into McDonald's to keep him in view in order to assist standby officers in making an arrest.23 In the restaurant, Officer Neubert observed Petitioner having another conversation with the man who had accused him of being a police officer.24 Petitioner immediately spun around to face Officer Neubert, catching him by surprise.25 Being at a loss for words, Officer Neubert spontaneously accused Petitioner of selling him "bunk."26
Officer Neubert testified at trial that Petitioner responded to his accusation by unzipping his jacket, reaching inside and slowly removing what appeared to the officer to be a handgun.27 He testified he felt "scared" and "thought the individual was going to pull the gun out and shoot" him.28 Officer Neubert then walked slowly backward, at which point Petitioner began walking slowly toward him.29 Officer Neubert testified he unbuttoned his coat, pulled out his service weapon and shouted "Seattle Police, drop the gun, drop it, drop it."30 Officer Neubert's police badge which hung from a necklace became visible when he unbuttoned his coat.31 According to Officer Neubert, Petitioner continued to walk slowly toward him, withdrawing what appeared to be a handgun and pointing it at him.32 Officer Neubert testified he identified himself again by screaming "Seattle Police, drop the gun[!]"33 He testified that Petitioner "made no efforts to drop the handgun [or] lower the handgun...."34 Officer Neubert then shot Petitioner in the chest and "propelled him backwards onto the ground."35 What the officer thought was a "handgun" was actually only a cigarette lighter designed to look like a handgun.36 Officer Neubert testified he was nevertheless "afraid" when Petitioner pointed it at him.37
The case was tried before a jury in the King County Superior Court on December 13, 1995. The Honorable Linda Lau gave instructions to the jury, which included the following:
A person commits the crime of assault in the third degree when he assaults a law enforcement officer who was performing his or her official duties at the time of the assault or when he assaults another with intent to prevent or resist the lawful apprehension or detention of himself or another person.38
An assault is an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.[40]
Petitioner took no exception to these instructions.41
During deliberations on December 22, 1995, the jury foreman submitted a written inquiry to Judge Lau referring to "Instruction # 14, Element # 2," asking "Is it third degree assault when the suspect becomes aware of the fact that the victim is a law enforcement officer at some point in the course of an assault, and is not aware of that at the initiation of an assault?"42 Judge Lau in a written response on the inquiry form answered "You have all the jury instructions, please reread them."43
At the conclusion of its deliberations, the jury found Petitioner "guilty" on Count I, violation of the Uniform Controlled Substances Act, and Count II, assault in the third degree.44 Petitioner on January 30, 1996 was given concurrent sentences of thirty-three months on each count.45
On February 8, 1996, Petitioner filed a notice of appeal to the Court of Appeals, Division I, challenging only his conviction for assault in the third degree.46 He claimed the trial court erred in giving Instruction Number 14 because the "to convict" instruction did not comply with State v. Allen47 and misstated elements of the crime under RCW 9A.36.031(1)(g).48 The Court of Appeals, the Honorable Faye C. Kennedy writing, affirmed the conviction. The court stated that although Petitioner did not object to Instruction Number 14 at the time of trial, he could challenge it for the first time on appeal as a manifest error affecting a constitutional right.49 The court then declined to follow State v. Allen, which states: "In addition to an intent to commit an act which constitutes an assault, ... [RCW 9A.36.031(1)(g)] requires knowledge or intent that the person assaulted was a law enforcement officer engaged in performing his official duties."50 The court in this case concluded to the contrary that "in order to convict under RCW 9A.36.031(1)(g), the State is not required to prove that the defendant knew either that the victim was a law enforcement officer or that the victim was performing official duties at the time of the assault."51
Petitioner Jason Brown petition...
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State v. Moreno
...a defendant know the victim was an officer and that the officer was performing their duties at the time of the assault. 140 Wash.2d 456, 467, 998 P.2d 321 (2000) (citing RCW 9A.36.031(1)(g) ). In that case, while the State needed to prove that a defendant intended to assault the victim, we ......
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State v. Calvin
...unzipped his jacket, removed a cigarette lighter that looked like a handgun, and pointed the lighter at the officer. 140 Wash.2d 456, 461–62, 998 P.2d 321 (2000). In State v. Godsey, a police officer was placed in reasonable fear when the defendant approached him with fists up, invited him ......
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State v. Williams
...was a police officer in the performance of official duties is not an element of the crime of third degree assault." State v. Brown, 140 Wash.2d 456, 467, 998 P.2d 321 (2000). 3 Appellant's Br. at 21. 4 Williams also contends that there was insufficient evidence presented at trial to support......
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State v. Calvin
...unzipped his jacket, removed a cigarette lighter that looked like a handgun, and pointed the lighter at the officer. 140 Wash.2d 456, 461–62, 998 P.2d 321 (2000). In State v. Godsey, a police officer was placed in reasonable fear when the defendant approached him with fists up, invited him ......