State v. Brown

• Decision Date: 12 October 1995
• Docket Number: No. 62275-2,62275-2
• Citation: 903 P.2d 459,127 Wn.2d 749
• Parties: The STATE of Washington, Respondent, v. James Edward BROWN, Petitioner.
• Court: Washington Supreme Court

Page 749

127 Wn.2d 749

903 P.2d 459

The STATE of Washington, Respondent, v. James Edward BROWN, Petitioner.

No. 62275-2.

Supreme Court of Washington En Banc.

Oct. 12, 1995.

Acosta & Nielsen, Eric Nielsen, Seattle, Washington Appellate Defender, Suzanne Elliott, Jessica A. Ryan, Joshua Weinstein, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Lisa Johnson, Deputy, Cynthia Gannett, Deputy, Pamela Mohr, Deputy, Appellate Unit, Seattle, for respondent.

PEKELIS, Justice.

James Brown (Brown) appeals from a court of appeals decision affirming his conviction for second degree rape on the grounds that the trial court erred in (1) admitting the victim's 911 tape as an excited utterance despite her testimony that she had decided to fabricate a portion of her story prior to making the call, and (2) giving a lesser included offense instruction for second degree rape when there was no affirmative evidence supporting an inference that he committed only that crime. We reverse.

On December 15, 1990, T.G. called 911 to report that she had been raped. Officer Shirley Ann Hallam (Hallam) was dispatched to the scene where she interviewed T.G. T.G. told Hallam that she had been abducted, forced into her neighbor Brown's apartment, and then raped by four men. According to T.G., Brown threatened to cut her insides out with a kitchen knife, pulled out a gun and played Russian roulette with her, and tried to burn her with a curling iron.

Brown and his three alleged accomplices, Robert Brown, Anthony Cole, and Daniel Williams, were later arrested and charged with first degree rape. James Brown and Cole were tried together.

At a pretrial hearing, the trial court listened to the tape of T.G.'s 911 call to determine its admissibility. It ruled that the tape was admissible as an excited utterance. Brown objected.

At trial, T.G. testified that she had gone to Brown's apartment willingly on the evening of the alleged rape. She had been in her apartment with her boyfriend Terry and her children when Brown knocked on the door. T.G. then spoke to him outside where she agreed to go to his apartment in order to perform fellatio in exchange for money.

T.G. testified that she then accompanied Brown to his apartment. Once inside Brown's bedroom, she felt that something was wrong and tried to leave. When she opened the front door, however, four men grabbed her and forced her back into the bedroom where the men raped her for approximately two hours. About an hour and a half into the rape, Brown left the room and returned with a gun. Brown held the gun to T.G.'s head and began clicking it. Meanwhile the other men continued raping her. Brown then left the room again and returned with a curling iron. He plugged in the curling iron and touched T.G.'s feet with it. She moved her feet away to avoid being burned.

T.G. further testified that eventually Brown was left alone in the room with her. At that point, she observed Brown loading the gun with bullets. Brown asked the man who was in the bathroom across the hall, "Should I kill her?" The man responded, "Yes, but wait until I leave." Brown held the gun to her head and told her that if she had enough guts, she should try to escape. Brown then walked out of the room, and T.G. escaped by jumping out the window onto the balcony.

Finally, T.G. testified that she returned to her apartment and told Terry that she had been raped. Terry told her to call the police. T.G. responded by saying, "I can't because I went up to his apartment and nothing would happen?" (Report of Proceedings at 520.) She explained that by that comment she meant that she did not think the police would believe she was raped because she went to the apartment willingly and the police knew she was a prostitute. Terry suggested that she think of something. T.G. admitted that it was after this conversation that she decided to tell the police that she had been abducted. She then went to the assistant manager's apartment to use the phone and called 911 to report the rape.

During cross-examination, T.G. also admitted that she had not seen a knife during the rape. She did, however, acknowledge having told Officer Hallam that there had been a knife.

After T.G.'s testimony, Brown renewed his objection to the admission of the 911 tape on the ground that it was not an excited utterance. The motion was denied.

Brown also testified at trial. According to Brown, he went to T.G.'s apartment to sell her drugs. He went inside the apartment, and he, T.G., and Terry consumed cocaine. Later, T.G. came to his door and wanted to buy drugs. After giving him $4 in cash and $2 in food stamps for drugs, T.G. suggested exchanging sex for drugs. Brown agreed and engaged in oral sex with her.

Brown testified that he then left T.G. alone in the bedroom and when he returned, she was gone. He discovered that she had stolen drugs. He then went to her apartment and knocked loudly but no one answered.

The State proposed instructing the jury on second degree rape, as well as on the charged crime of first degree rape. Brown objected to the instruction on the lesser included offense. The trial court overruled his objection and submitted the instruction to the jury.

The jury could not reach a unanimous verdict on first degree rape. It, however, concluded that Brown was guilty of the lesser included offense of second degree rape. He appealed to the court of appeals, which affirmed his conviction in an unpublished opinion.

I LESSER INCLUDED OFFENSE INSTRUCTION

Brown first contends that the trial court erred in instructing the jury on the lesser included offense of second degree rape. In State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978), we established the following two-prong test for determining whether a lesser included offense instruction should be given: "First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed." (Citations omitted.) Id. at 447-48, 584 P.2d 382. Brown concedes that the first prong of the Workman test has been satisfied. He, however, contends that the State failed to satisfy the second prong of the test. We agree.

To satisfy the factual prong of Workman, there must be some affirmative proof that the defendant committed only the lesser crime. State v. Fowler, 114 Wash.2d 59, 67, 785 P.2d 808 (1990). Brown was charged with first degree rape, the elements of which include engaging in sexual intercourse with a person by forcible compulsion and using or threatening to use a deadly weapon. RCW 9A.44.040. The elements of second degree rape include sexual intercourse with another by forcible compulsion. RCW 9A.44.050. Second degree rape, however, does not require the State to prove the use or threatened use of a deadly weapon. RCW 9A.44.050. Brown argues that neither party introduced affirmative evidence that he committed only second degree rape. He notes that T.G. testified that Brown and his three accomplices forced her to have sexual intercourse and that Brown held a gun to her head at one point during the attack. Brown, on the other hand, testified that he and T.G. engaged in consensual sex for money. He denied raping her. Based on this testimony, Brown argues that neither party presented evidence that would support the conclusion that he raped T.G. but did not threaten to use a deadly weapon.

The court of appeals concluded that there was affirmative evidence that Brown committed only second degree rape because there was evidence which tended to impeach T.G.'s claim that a gun was used. The court of appeals ruled that the jury could have found that no gun was used because T.G. appears to have fabricated an earlier statement about a knife and she admittedly fabricated the story of the abduction. According to the court of appeals, this evidence constituted affirmative evidence that Brown was guilty of only second degree rape.

Brown, however, wisely asserts that the court of appeals' ruling contradicts this court's precedent. In Fowler, we held that "affirmative evidence" requires something more than the possibility that the jury could disbelieve some of the State's evidence. Fowler, 114 Wash.2d at 67, 785 P.2d 808; see also State v. Speece, 115 Wash.2d 360, 363, 798 P.2d 294 (1990). Impeachment evidence that serves only to discredit the State's witness but does not itself establish that only the lesser crime was committed cannot satisfy the factual prong of Workman. See Fowler, 114 Wash.2d at 67, 785 P.2d 808.

The State, nevertheless, contends that it did produce affirmative evidence that Brown could have been guilty of only second degree rape. ¹ The State focuses on the fact that the gun was not originally used to force T.G. to submit to sexual intercourse. T.G. testified that she was raped over a two-hour period and that it was not until an hour and a half into the rape that Brown first produced the gun. Thus, some other form of forcible compulsion was used to make T.G. initially submit to the rape. The State argues that the absence of the gun during the first portion of the rape could support a finding that Brown was guilty of only second degree rape.

The first degree rape statute, however, does not require that the deadly weapon be the direct means of forcible compulsion. In pertinent part, the first degree rape statute reads:

(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:

(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or

(b) Kidnaps the victim; or

(c) Inflicts serious physical injury....

RCW 9A.44.040.

Under the statute, the use or threatened use of a deadly weapon during the assault constituting the rape is an aggravating factor elevating the crime to first degree rape. The plain language of the statute...