State v. Cronin
| Decision Date | 14 December 2000 |
| Docket Number | No. 69043-0, No. 69050-2. |
| Citation | 142 Wash.2d 568,14 P.3d 752 |
| Parties | The STATE of Washington, Respondent, v. Timothy Dennis CRONIN, Appellant. The State of Washington, Respondent, v. Linh Ngoc Bui, Appellant. |
| Court | Washington Supreme Court |
Suzanne Lee Elliott, Seattle, Nielsen, Broman & Assoc., David Bruce Koch, Seattle, for Appellant.
Norm Maleng, King County Prosecutor, Lee Yates, Deputy, James Whisman, Deputy, Cynthia Gannett, Deputy, Seattle, for Respondent.
We granted direct review of judgments of the King County Superior Court in two separate cases, State v. Bui and State v. Cronin. The principal and only common issue that is presented in the consolidated appeal of these cases is whether the jury in each case was provided with a correct instruction on the law regarding accomplice liability. For reasons stated herein, we conclude that the instructions were defective and not harmless in either case. Consequently, Bui's conviction for first degree assault and Cronin's conviction for aggravated murder in the first degree are reversed. Cronin's conviction for first degree felony murder, not being affected by the erroneous jury instruction, is affirmed.
Linh Ngoc Bui associated with a Seattle gang known as the "Viet Boys" (VB). Br. of Resp't at 5.1 On April 6, 1996, Bui and several members of that gang ventured into Seattle's "International District" for a night of "cruising." The gang members rode in two automobiles, a Honda driven by Bui and a Blazer driven by Senh Tang. While engaged in "cruising," the VBs happened upon two other cars occupied by members of another gang, the "Young Oriental Troop" (YOT). As the vehicles of the respective gangs passed each other, one of the YOTs appeared to flash a "gang sign."2 Immediately thereafter, a passenger in Bui's Honda yelled out "FOLLOW THEM." 7 Verbatim Report of Proceedings (VRP) at 42. Bui complied. Tang followed suit and joined Bui in following the YOT cars.
As the driver of the leading YOT car pulled his vehicle to a stop at an intersection, Bui maneuvered his car so that it blocked the other car's passage. Tang then pulled in behind Bui. At this point a VB gang member exited from each VB car. The young men who exited the cars, Hung Van Nguyen and Lam Giang, then proceeded to open fire on the YOT car that was stopped. That car escaped without injury to any occupants. Passengers in the second YOT car were not, however, as fortunate. As that car approached the intersection at which the VB cars were located, Nguyen and Giang again opened fire. As a result, two YOT members were struck with bullets. This activity caused the second YOT car to quickly speed past the VB shooters who continued firing as the car made its getaway. After the incident, Bui and Tang transported their passengers to a home where some of the VBs lived.
Bui, Nguyen, Tang, and Giang were each charged with one count of "Assault in the First Degree" with the allegation that they used "firearms and deadly weapons" in the commission of the offense. Clerk's Papers (CP) at 1. The State offered to recommend reduced sentences for Bui and Tang in exchange for their testimony at trial. Bui rejected the offer.3 The State then amended the information to charge Bui and Nguyen with two additional counts of "Assault in the First Degree" with an allegation that they used "firearms and deadly weapons" in the commission of the offense. CP at 8. Bui and Ngyuen proceeded to trial with Nguyen.4
At the conclusion of all the testimony, the trial judge instructed the jury as follows:
CP at 87 (jury instruction 10). Bui's counsel objected to this instruction, arguing that in order for accomplice liability to attach, the defendant must know the general nature of the specific crime that the principal intends to commit. Br. of Appellant at 17.
During closing arguments, the prosecutor proffered this explanation of accomplice liability:
[A]N ACCOMPLICE IS A PERSON WHO IS AN ACCOMPLICE IF HE ENCOURAGES OR AIDS ANOTHER PERSON IN COMMITTING A CRIME WITH KNOWLEDGE THAT WILL PROMOTE OR FACILITATE THE COMMISSION OF A CRIME. DOES THE STATE HAVE TO PROVE THAT LINH BUI KNEW THAT THE PERSON IN HIS CAR WOULD GET OUT AND SHOOT? NO. IT'S THE COMMISSION OF A CRIME.
BLOCKED THEM OFF IN AN INTERSECTION, ALLOWED HIS PASSENGERS TO GET OUT, DOES COMMON SENSE SHOW US THAT HE KNEW HE WAS FACILITATING THE COMMISSION OF A CRIME? HARASSMENT? PHYSICAL ASSAULT? ANY CRIME.
9 VRP at 26-27 (emphasis added). Bui's counsel objected to this portion of the prosecutor's argument and asked the trial court to instruct the jury that a defendant's intent to harass could not satisfy the knowledge requirement and thus could not trigger accomplice liability for first degree assault. The trial judge declined to give the additional instruction.
During its deliberations the jury submitted the following question to the trial judge:
CP at 14. The trial judge responded to the inquiry:
The defendant does not need to know the specific crime (1st ° assault) that will occur but must know the general nature of the crime that will occur[.]
The jury found Bui and Nguyen guilty of all three counts of first degree assault, finding that they each used a "deadly weapon" in the commission of the offenses. CP at 16. At sentencing, Bui moved to dismiss the charges, arguing that there was insufficient evidence that he knew an assault was going to be committed. The trial court denied his motion but acknowledged that the record was "essentially silent" on the issue of whether Bui knew there would be a shooting. The trial court imposed an exceptional sentence for the underlying assault convictions of no time in prison and imposed a 60-month firearm enhancement sentence on each of the three convictions, ordering the sentences to run consecutively. Thus, Bui received a 180-month sentence.
On May 3, 1994, Timothy Cronin and fellow inmate Michael Roberts escaped from a minimum-security prison in Mission, British Columbia, Canada. The two men crossed the Canadian border into the United States and proceeded to embark on a crime spree in this state and the state of Oregon. Their criminal endeavors came to an end when they were arrested after robbing a health food store in Salem, Oregon. Cronin and Roberts were apprehended in their get-away vehicle—a gray Chevrolet Blazer that was registered to Mr. Eli Cantu of King County, Washington.
After telephone attempts to contact Cantu were unsuccessful, Oregon authorities contacted the King County police and asked them to visit Cantu's residence in Edmonds in order to determine if Cronin and Roberts had stolen Cantu's vehicle. Upon entering Cantu's flat, the police officers found his lifeless body tied to a chair. A pool of blood, apparently caused by a fatal stab wound, lay beneath his body This finding prompted two King County detectives to travel to Salem to speak with Cronin about Cantu's death. The detectives gave Cronin his Miranda5 warnings and then proceeded to take a tape-recorded statement from him after he indicated he understood his rights and was willing to make a statement.
The State subsequently charged Cronin in King County Superior Court with felony murder in the first degree and, in the alternative, premeditated first degree murder with alleged aggravating circumstances that the murder was committed: (1) to conceal the commission of a crime or to protect or conceal the identity of the perpetrator, and (2) in the course of, in furtherance of, or in immediate flight from a robbery in the first or second degree or a kidnapping in the first degree.6 During a CrR 3.57 hearing regarding the admissibility of the statement Cronin gave to King County detectives, the deputy prosecuting attorney told the trial court that "[i]t's our anticipation at this point that we do not and will not be using Mr. Cronin's statement in our case in chief, but we do want to have the opportunity to use it to rebut Mr. Cronin should he take the stand[.]" VRP at 4. After hearing testimony from the King County detectives that interviewed Cronin shortly after his arrest, the trial court ruled that Cronin's statement "would be admissible if offered by the state in their case in chief" and that the statement could be used for "cross examination or rebuttal purposes." VRP at 39.
After the trial commenced, the State decided to introduce Cronin's statement in its case in chief. The State acknowledged that initially it had not intended to use Cronin's statement in its case in chief, but reconsidered its decision after Cronin's counsel suggested in his opening statement that Cronin "was not present with Roberts at the murder scene," and cross-examined a State's witness to "cast doubt upon his identification of Cronin at the crime scene." Br. of Resp't at 41. Over objection by Cronin's counsel, the trial court concluded that the statement would be admitted.
In his statement to the detectives, Cronin conceded that he had escaped from prison with Roberts and, that together with Roberts, he paid a visit to Cantu, a person whom Cronin described as Roberts's friend. Essentially,...
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