State v. Brown

• Decision Date: 27 March 2000
• Docket Number: No. 41310-4-I, No. 41524-7-I.
• Citation: 100 Wash.App. 104,995 P.2d 1278
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jacob Patrick BROWN, Appellant. State of Washington, Respondent, v. Marshall C. Harris, Appellant.

995 P.2d 1278

100 Wash.App. 104

STATE of Washington, Respondent, v. Jacob Patrick BROWN, Appellant.

State of Washington, Respondent, v. Marshall C. Harris, Appellant.

Nos. 41310-4-I, 41524-7-I.

Court of Appeals of Washington, Division 1.

March 27, 2000.

Nielsen Broman & Associates PLLC, David B. Koch, Catherine Lynn Floit, Seattle, for Appellant Jacob Patrick Brown.

Gregory Charles Link, Washington Appellate Project, Seattle, for Appellant Marshall C. Harris.

Charles Wesley Lind, Seattle, for Respondent.

BAKER, J.

Jacob Brown was convicted of felony murder, two counts of first degree robbery, first degree rape, and three counts of first degree assault, based upon three separate incidents that occurred during a two-week period. Codefendant Marshall Harris was convicted of first degree rape, first degree robbery, and first degree assault as a result of his participation in one of those incidents. Brown and Harris appeal their convictions and sentences on numerous procedural and evidentiary grounds.

We affirm the imposition of consecutive sentences against Brown and Harris for the rape and assault of Lewis Brown because they constituted serious violent offenses arising from separate and distinct criminal conduct. We uphold the trial court's finding that the traffic stop and investigation of Brown was valid based on the officer's reasonable suspicion that Brown was the person described in the warrant. We affirm the conviction of Brown and Harris for first degree assault against Lewis Brown. We hold that the court properly denied Brown's witness immunity request as well as his motion to sever the felony murder count. The trial court properly declined to give a unanimity instruction for the rape, robbery and assault of Lewis Brown because the Petrich¹ requirements were satisfied. We uphold the trial court's finding that the rape, robbery and assault of Lewis Brown by Brown and Harris did not constitute "same criminal conduct." We find that the court properly denied Harris's motion to sever defendants. We hold that the trial court's accomplice liability instruction, if erroneous, was harmless error.

However, we hold that there was insufficient evidence to convict Jacob Brown of first degree assault against Jerel Tackett, and accordingly we reverse and dismiss that conviction. We further hold that the felony murder conviction violated Brown's right to a unanimous jury verdict, and we reverse and remand that conviction for a new trial. Lastly, we reverse and remand the firearms enhancements against Brown and Harris to the trial court for resentencing in light of In re Post Sentencing Review of Charles.²

Lewis Brown Incident

Porsche Washington asked Lewis Brown to meet her at a motel in Seattle. Lewis went there at around 2 A.M. At Porsche's request, Lewis removed his clothes. Then Jacob Brown, Marshall Harris, and Tesino Barber came out of the bathroom.³ Jacob hit Lewis in the chest with his fist, and Barber hit Lewis in the face with a gun. They went through Lewis's clothes and took his gun, watch, rings, cell phone, and other personal belongings. Barber then inserted a dildo into Lewis's anus and mouth, and burned Lewis's upper arm with a hot iron. Harris blocked the door to the motel room throughout the incident, and threatened to beat Lewis.

The men then told Lewis to get dressed. Barber and Lewis left the motel room and went to Lewis's car. Barber drove Lewis's car to the Rainier Valley area, told Lewis to get out, and drove away. Lewis walked to a nearby convenience store and called 911. He was taken to a hospital and treated for lacerations and burns.

Thomas Boyd Incident

Shortly after midnight, police responded to reports of four gunshots at a residence in Auburn. Witnesses saw a sedan driving away and a woman fleeing on foot. Police officers investigated the residence and found the body of a man lying just inside the front door. The man was later identified as Thomas Boyd. There was gunpowder residue and a graze mark from a bullet on the front door. The officers also found signs of a disturbance inside the house, but it appeared that nothing had been taken.

Two weeks later, Porsche Washington was arrested on another matter. She gave a statement concerning Boyd's shooting. Based on the statement, the police confirmed that a long-barreled .22 caliber revolver had been recovered from under the passenger seat of Jacob Brown's car during an earlier traffic stop. A ballistics examiner compared the bullets and marks found at the Boyd murder scene with the gun recovered from Brown's car in an attempt to determine whether they matched, but the results were inconclusive.

Brown was arrested and, over the next several days, gave several conflicting statements concerning the Boyd shooting. First, Brown claimed that he and Washington had been invited to Boyd's home. Washington got up to use the restroom, and Brown heard what sounded like a man holding his hand over her mouth. Brown jumped up, and Boyd suddenly attacked him. Brown was scratched and bitten on the hand and face. Boyd picked Brown up and dropped him outside on the patio. Brown then ran to his car and drove to a nearby donut shop, where he paged Washington. Brown claimed that he hadn't heard shots and that he didn't know how Boyd was shot. In Brown's second statement to the police, he claimed that Washington was a prostitute and that he had taken her to Boyd's house for that purpose. He initially reiterated his claim that he hadn't heard any gunshots, but then stated that he may have heard one or two shots when starting his car. Next he claimed that he heard gunshots while running past Washington in the front yard. Finally, he asserted that Washington was standing in the front yard while he struggled on the porch with Boyd, that he heard the shots coming from Washington's direction, and that Washington admitted shooting Boyd. In Brown's third statement, when asked exactly why he and Washington went to Boyd's house, Brown admitted that they were trying to "get some money." When asked how they usually got money, Brown explained that Washington would set up the situation with men she had met while prostituting:

Normally, we look at the person to see— you know, [a], if he's a sucker, you know. I mean is he—can conversation get him to abide by what we asked.... Just start talking to him and then have the—the female was all ready—the female was there to advocate it for everything. She's the one who, to make the man think that they are going to have sexual activity, whatever. Then I will just come through and act like—you know, what I'm saying— I was a smoker. A smoker means a guy that smokes crack and acts all hysterical. And he like, man, let me borrow some money or let me have $15-$20, so I can get a hit.

Brown indicated that a normal reaction is for the man to give him the money to make him leave, and that Washington would provide encouragement if necessary. When asked what Brown would do if the man resisted, Brown said, "I would play the role, and I would really freak and stressing and get hysterical.... And then I was—I was freaking, so I'm not going to leave until he gave me $5, $10, $15.... So that's how we work it, just like that." Brown claimed that the plan was to get money through conversation, not intimidation. However, Brown said that as soon as he saw Boyd, he knew that the dope fiend role wasn't going to work with him.

Jelani and Jerel Tackett Incident

Jelani Tackett met Porsche Washington when he stopped to help her with her disabled car. The next day, Washington called Jelani and asked him to meet her. Jelani picked her up at a motel south of Seattle. She asked him to drive to another location, where they picked up Washington's friend Ramona Rigney. Jelani then went home and picked up his brother Jerel.

Washington and Rigney asked for a ride to an apartment. Rigney went in for a short time, and when she came out, she suggested that they drive to a nearby mini-market. When they arrived, Jacob Brown and Tesino Barber approached the car. Washington introduced Brown as her brother and asked for a ride to "mom's house." Jelani reluctantly agreed after Washington assured him that everything was fine.

Brown directed Jelani to another location. Brown and Washington got out and started talking behind the car, and Barber got into the front seat with Jelani. Suddenly, Brown appeared at the driver's side window and pointed a gun at Jelani's head. Jelani heard clicking noises, but the gun did not fire. Barber said, "give me your stuff, don't say nothing" and began to take Jelani's rings off. Jelani wrestled with Barber and pressed the hilt of his knife against Barber, pretending that it was a gun. Brown put his gun to Jelani's head and ordered him to release Barber. Brown then ordered Jerel and Jelani out of the car. Jerel got out. Brown grabbed Jerel, put his gun to Jerel's head, and told Jelani to get out or he would shoot Jerel. Jelani got out and Barber snatched the keys out of his hand. Brown let go of Jerel and walked a few steps away.

Jelani testified that Brown was standing about 15 feet away, pointing his gun "right at us, at me" (referring to himself and Jerel). Jelani said that Brown started running away, still "pointing the gun at me." Jelani said that when he did not move, Brown shot his gun "towards us, towards me." When asked where Brown was pointing the gun when he fired the shot, Jelani said he was "pointing it at me." Jelani demanded his keys, but Brown ran down the street and fired another shot. Jelani followed Brown, and Brown fired two more shots directly at him as they went around the corner.

Jerel also testified that Brown was standing about 15 feet away when Brown first threatened to start shooting. Jerel indicated that he wasn't standing right next to his brother at that moment, but a couple of feet to one side. Jerel said that he moved back, but that Jelani stood his ground in the middle of the street and even...