State v. Brunson
| Decision Date | 09 November 1995 |
| Docket Number | 62645-6,Nos. 62141-1,s. 62141-1 |
| Citation | 905 P.2d 346,128 Wn.2d 98 |
| Parties | The STATE of Washington, Respondent, v. Kevin Joe BRUNSON, Petitioner. In the Matter of the Personal Restraint Petition of Kevin Joe BRUNSON, Petitioner. The STATE of Washington, Respondent, v. Eric Eugene WEST, Petitioner. The STATE of Washington, Respondent, v. Chad R. ZACHARIASEN, Petitioner. |
| Court | Washington Supreme Court |
Norm Maleng, King County Prosecutor, Peter R. Goldman, Deputy, Seattle, for Respondent.
Trial courts in three burglary cases instructed their juries that they may make the following inference: a person who enters or remains unlawfully in a building intends to commit a crime against people or property inside. Defendants argue the inference is unconstitutional. The Court of Appeals upheld the validity of the instruction, and we affirm.
At 3:38 a.m. on March 24, 1991, a police officer found a three-foot hole in the front door of Agency Rent-a-Car in Burien. Inside, all the rooms were "in disorder", appearing as if "somebody had gone through everything."
The intruder had moved a file cabinet into the hallway and jimmied it open. Police lifted ten latent prints from the cabinet, eight of which were worthless. The remaining two prints matched those of Defendant Kevin Brunson. The manager of Agency Rent-a-Car testified that approximately a dollar's worth of change was gone, but acknowledged on cross examination that he had not reported anything missing to police detectives.
On April 9, 1991, police in Kent, Washington, arrested Brunson on unrelated charges. Two days later, a detective from King County questioned Brunson about the Burien burglary. Brunson denied responsibility for the break-in. During the interrogation, the detective answered a phone call. When the detective put down the receiver, he told At the close of Brunson's trial, the court gave WPIC 60.05, the pattern inference of intent instruction:
Brunson that fingerprints found on the file cabinet matched Brunson's. According to the detective, Brunson then said something like, "[A]ll right, you got me. I did that one." The detective acknowledged on cross examination these were not Brunson's exact words
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Clerk's Papers at 33. The trial court also gave a general jury instruction on circumstantial evidence.
Evidence may be either direct or circumstantial. Direct evidence is that given by a witness who testifies concerning facts which he or she has directly observed or perceived through the senses. Circumstantial evidence consists of proof of facts or circumstances which, according to common experience permit a reasonable inference that other facts existed or did not exist. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.
Clerk's Papers at 23 (former WPIC 5.01).
On October 8, 1991, a King County jury found Brunson guilty of second degree burglary. Brunson appealed, and on August 1, 1994, the Court of Appeals affirmed his conviction. State v. Brunson, 76 Wash.App. 24, 877 P.2d 1289 (1994).
On the evening of May 23, 1991, Karen Bowman was alone in her living room when she heard the sound of dishes clanking in the kitchen. She walked to the kitchen and screamed. A man had climbed halfway through her kitchen window and was leaning on the counter top with his hands straddling the kitchen sink.
While Bowman screamed, the man pushed back out the window. Bowman continued to scream as the man picked up a walkman tape recorder in the yard. He turned to her and said, "[Q]uiet lady, I just wanted to use the phone." Bowman saw the man a total of forty-five seconds to a minute while he was approximately seven feet below her and three to four feet away.
Bowman shut the window and called 911. She described the burglar as an African-American male with an "afro", in his late teens, wearing a gray jacket and carrying a walkman. Within minutes, police found Eric West waiting at a nearby bus stop, wearing a gray jacket and working on a walkman. They arrested West and held him in a patrol car.
Another police officer drove Bowman to the scene. Bowman immediately identified West who was sitting in the patrol car some three to four feet away. When the officers took West out of the patrol car, Bowman again identified West as the man who had crawled through her kitchen window.
Bowman and a police officer returned to Bowman's house, where they found several glasses and part of a mortar and pestle from Bowman's kitchen in the yard. They also saw a tree stump, used as a planter, pushed up against the house under the window. The police collected fingerprints, but they were inconclusive.
At trial, the court read the pattern instructions on inference of intent in burglary cases (WPIC 60.05) and use of direct and circumstantial evidence (former WPIC 5.01). The court also instructed the jury on a lesser included charge: first degree criminal trespass. On August 23, 1991, the jury found West guilty of one count of residential burglary.
West appealed, and the Court of Appeals, after consolidating West's case with Brunson's, affirmed West's conviction. Brunson, 76 Wash.App. at 31, 877 P.2d 1289.
On the afternoon of October 6, 1991, Lad Williams, resident He met the Defendant, Chad Zachariasen, at the white pickup truck, and asked him what he was doing. Zachariasen responded that his girlfriend in apartment three told him he could park there. Williams became suspicious because the building had no apartment three.
manager of an apartment building in the University District of Seattle, noticed a white pickup truck dash into the building's parking garage as another car left. The garage has a gate which only tenants can operate. The truck had waited until a tenant had left and the gate was open. Williams walked to the garage to investigate.
Williams saw property belonging to apartment maintenance in the back of the pickup, including a rake, shovel, broom, "shop vac", and painting gear. Next to the pickup were other tenants' property, including two bicycles. Williams noticed Zachariasen's pants and moccasins were wet, and a trail of wet footprints led from a storage shed to the pickup. He told Zachariasen to unload the truck. When he saw his own sunglasses in a coat inside the pickup, Williams became angry and asked Zachariasen how he would like it if Williams stole Zachariasen's truck.
Zachariasen started the truck's engine and attempted to drive away. Williams unplugged the electric garage door opener, blocking the exit. Zachariasen leapt out of the truck and ran through an opening in the fence. Police later discovered that someone had jimmied the door knob to the storage room and clipped a padlock on the garage door. The white pickup truck belonged to Robert Luark. Luark testified he had loaned the truck to Zachariasen prior to the burglary.
At the close of trial, the State requested the trial court give the pattern instruction on the inference of intent. Defense counsel excepted to the instruction, arguing it was appropriate in cases, unlike this one, where the evidence did not clearly show what action the defendant intended to take inside the building. The court decided not to give the instruction.
In spite of the court's decision, the instruction inadvertently On March 4, 1992, the jury found Zachariasen guilty of second degree burglary. Zachariasen appealed. On December 8, 1994, the Court of Appeals affirmed the conviction in an unpublished opinion.
appeared in the court's final set of instructions and the court read it to the jury. Defense counsel asked the court to remove the instruction or, in the alternative, to grant a mistrial. The court conceded giving the instruction was "an unforgiveable error administratively by the Court", but it did not take out the inference instruction. The court ruled inclusion of the instruction was not prejudicial error.
On February 9, 1995, this court granted review of the consolidated cases of Brunson and West. On April 6, 1995, this court granted review of Zachariasen's appeal and consolidated it with that of Brunson and West.
These consolidated cases challenge the constitutionality of WPIC 60.05, the inference of intent instruction. Defendants raise three issues:
1. Does WPIC 60.05 create a mandatory presumption or a permissive inference?
2. Which standard of proof, beyond a reasonable doubt or more likely than not, governs the connection between the proven fact (entering or remaining unlawfully) and inferred fact (intent to commit a crime inside) in WPIC 60.05?
3. Does the rational connection between proven fact and inferred fact in WPIC 60.05 satisfy the standard of proof?
Both residential burglary and burglary in the second degree have two elements: (a) entering or remaining unlawfully in a dwelling other than a vehicle, and (b) intent to commit a crime against a person or property In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.
therein. RCW 9A.52.025-.030. To clarify proof of the second element, the Legislature adopted the following inference of intent:
RCW 9A.52.040....
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