State v. Embry

• Decision Date: 30 October 2012
• Docket Number: Nos. 40984–4–II, 41004–4–II, 41026–5–II.,s. 40984–4–II, 41004–4–II, 41026–5–II.
• Citation: 171 Wash.App. 714,287 P.3d 648
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Randall Marquise EMBRY, Appellant. State of Washington, Respondent, v. Bryant Deshean Morgan, Appellant. State of Washington, Respondent, v. Andre Terrell Parker, Appellant.

171 Wash.App. 714
287 P.3d 648

STATE of Washington, Respondent,
v.
Randall Marquise EMBRY, Appellant.
State of Washington, Respondent,
v.
Bryant Deshean Morgan, Appellant.
State of Washington, Respondent,
v.
Andre Terrell Parker, Appellant.

Nos. 40984–4–II, 41004–4–II, 41026–5–II.

Court of Appeals of Washington,
Division 2.

Oct. 30, 2012.

[287 P.3d 654]

Sheri Lynn Arnold, Barbara L. Corey, Attorney at Law, Tacoma, WA, Lise Ellner, Attorney at Law, Vashon, WA, for Appellants.

Kimberley Ann Demarco, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

JOHANSON, A.C.J.

[171 Wash.App. 723]¶ 1 A jury convicted Randall Marquise Embry, Bryant Deshean Morgan, and Andre Terrell Parker of attempted first degree murder, with firearm sentencing enhancements, and first degree unlawful possession of a firearm. The jury also convicted Embry of conspiracy to commit first degree murder. On appeal, they raise various claims related to: (1) joinder and consolidation; (2) admission of gang-related evidence; (3) improper witness testimony and conduct; (4) insufficient evidence; (5) prosecutorial misconduct;[171 Wash.App. 724](6) improper jury instructions; (7) ineffective assistance of counsel; (8) sentencing errors; and (9) cumulative error. We reverse Parker and Morgan's convictions for first degree unlawful firearm possession for insufficient evidence, but we affirm all other counts.

FACTS

¶ 2 In the early morning of New Year's Day 2009, at the 54th Street Bar and Grill in Tacoma, a fight broke out between Andre Parker and Michael Nelson, Tyrick Clark's friend. Clark and another friend, “Cornelius,” observed the fight; and, according to Clark, Parker swung at Cornelius. Clark then retaliated, hitting Parker in the mouth. Parker was a member of the Hilltop Crips, a Tacoma street gang; Clark was a member of the Young Gangster Crips (YGC).

¶ 3 On February 23, 2009, Clark and Nicole Crimmins went to McCabe's, a Tacoma nightclub. Clark saw Parker at McCabe's that night, and although he did not interact with Parker that night, Clark's impression was that the two had not resolved their issues stemming from their New Year's morning fight.¹ Curtis Hudson, a McCabe's patron, confirmed that he understood Parker and Clark had a “beef” with one another stemming from their earlier fight. 6 Verbatim Report of Proceedings (VRP) at 908.

¶ 4 Embry and Morgan, two Hoover Crip gang members, also visited McCabe's that night. Clark did not know Embry or Morgan. While at McCabe's, Clark visited with an acquaintance about the New Year's morning fight with Parker, and Embry briefly approached and tried to interject himself into Clark's conversation. Later that night, as he descended a McCabe's stairwell, Clark inadvertently kicked Embry's shoe as Embry visited on the stairs with Morgan.

¶ 5 Just before closing, Clark and Crimmins left McCabe's and walked toward their vehicle, which was parked along [171 Wash.App. 725]an adjacent street. As they neared their vehicle, a man wearing a hoody—later identified by Crimmins and Clark as Embry—approached them from behind another car parked along the same street. As Clark and Crimmins were about to pass Embry, Embry pulled out a gun and shot Clark several times. As Clark fell to the ground, Embry went to a nearby car. Embry entered the car's backseat. Crimmins followed Embry, called 911, and relayed the car's description and license plate number to the dispatcher.

¶ 6 As Embry departed, off-duty Tacoma police officers Scott Stanley and David Fischer,

[287 P.3d 655]

both moonlighting at McCabe's, arrived at the scene.² An emotional Crimmins initially told the officers that the shooter got into a white Caprice with license plate number 698–YNT. After she calmed down, she described the car as a “silver Ford Escort-type vehicle.” 2 VRP at 268.

¶ 7 Other witnesses also heard the gunshots. Telon Walker, Clark's cousin, was standing outside McCabe's when he heard the gunshots. He turned toward the gunshots, saw Crimmins and a body on the ground, and ran in that direction. Walker witnessed a 2006 to 2008 four-door “grayish, light mauve, tan color” Impala drive away from the scene. 5 VRP at 768. Before the car departed, he saw two men get into the car: one wearing a red hoody climbed into the rear, passenger side, and one wearing a dark hoody climbed into the rear, driver side. Walker added that earlier he had seen Morgan wearing the red hoody at McCabe's. Following the gunshots, Hudson witnessed a man in a “red sweatshirt, hoody sweatshirt” running away from the shooting. 6 VRP at 913. He recognized the red sweatshirt as that which Morgan wore that evening. Manuel Hernandez also turned toward the gunfire immediately after hearing shots. He saw a man [171 Wash.App. 726]with a “five-point star” tattoo on his neck, ³ EMBRY, RUNNING FRom the shooting scene with another man. 6 vrp at 974. Embry carried a gun in his right hand.

Security Video Footage

¶ 8 McCabe's surveillance cameras partially captured the events in and around McCabe's. At 11:36 p.m. Embry entered McCabe's. Shortly after midnight, Morgan and Parker entered together. Parker wore a gray, blue, and white jacket with a hood; blue jeans; and white shoes. Morgan wore a red hoody. Embry wore a black and white hoody and a Houston Astros baseball cap. Video footage depicts Parker, Embry, and Morgan interacting with each other, as well as with others. Between 1:48 and 1:52 a.m., the three left McCabe's and visited in front of McCabe's. Clark exited the club at 1:51 a.m.

¶ 9 Embry and Morgan then jogged out of the picture toward Clark's parked van. Parker followed, walking in the same general direction. Then, at 1:53 a.m., Clark and Crimmins walked together in that same direction toward Clark's vehicle. Almost two minutes after Clark and Crimmins left, walking toward their vehicle, everyone in front of McCabe's turned their heads toward the direction that Parker, Embry, Morgan, Crimmins, and Clark had all gone. The cameras did not capture the shooting.

Stolen Vehicle Report

¶ 10 Within seconds of the shooting, Crimmins had provided officers the license plate number on the getaway car, 698–YNT; and, authorities alerted officers to watch for this vehicle. Less than two hours after the shooting, Tacoma Police Officer Mikael Johnson received a stolen vehicle report filed by Parker for a rented, dark gray or silver 2009 [171 Wash.App. 727]Chevy Impala with license plate number 648–YNT. Officer Johnson noted that this vehicle appeared “ similar in description and license plate number to a vehicle from the McCabe shooting.” 5 VRP at 851.

¶ 11 Parker told Officer Johnson that he had parked the rented vehicle in front of his girlfriend's apartment at 1:15 a.m. and left it running while he went upstairs. When he returned to the parking lot, the vehicle was gone. Parker claimed he had not reported it stolen until after 3:00 a.m. because it was a rental, and he needed to contact the rental company to obtain the vehicle's license plate and VIN numbers.

¶ 12 Parker's story, however, differed from that of his girlfriend, Christine Borland, who testified that in the early morning on February 24, while she slept at her apartment, Parker called and asked her to pick him up “from Chevron or McDonald's off 512.” 6 VRP at 1036. Borland picked up Parker,

[287 P.3d 656]

and, while returning to the apartment, Parker told her “[s]omething bad happened” at McCabe's and that someone stole his car. 6 VRP at 1041. After returning to Borland's apartment, Borland went to sleep, and Parker reported his rental car stolen.

¶ 13 Borland testified that she had initially lied during the investigation when she said one of Parker's friends drove him back to Borland's apartment after McCabe's. But feeling guilty about lying to detectives, Borland corrected her story to reflect that she had “picked him up off 512.” 6 VRP at 1060. According to Detective John Ringer, though, even Borland's testimony differed from what she told him during an investigative interview. Borland told Detective Ringer during an interview that Parker told her to tell police that he had been at her apartment at 1:00 a.m. and that the car was stolen there. Detective Ringer confirmed, however, that Borland corrected her story to reflect that Parker requested she pick him up at McDonald's off Highway 512. On March 10, 2009, Kent police located Parker's rented four-door Chevrolet Impala, license number 648–YNT, in the Green River.

[171 Wash.App. 728]Procedure

¶ 14 The State charged Embry, Parker, and Morgan with attempted first degree murder ⁴ with a firearm sentencing enhancement,⁵ as well as unlawful possession of a firearm.⁶ It also charged Embry with conspiracy to commit first degree murder.⁷

¶ 15 Before trial, the defendants sought to exclude evidence of their gang affiliations. In an offer of proof, the State asserted that the defendants knew each other and had associated for some time. The State asserted that the gang evidence linked Embry, Parker, and Morgan because their gangs were known to associate and work in concert. Specifically, the State offered that Parker, a Hilltop Crip, was still upset about the New Year's morning fight between YGCs and Hilltop Crips. The State argued that its evidence would show that Parker was still angry at Clark and sought members of King County's Hoover Crips, an allied gang, to retaliate against Clark, a YGC. The State also asserted that the video footage would show the defendants associating at McCabe's and in front of the club before Embry and Morgan ran ahead of Clark in the direction of the shooting, and that Embry and Morgan had to run ahead because Embry had to retrieve the gun from Parker's car.⁸ The offer of proof also detailed that Parker reported his car stolen just hours after the shooting. The State reasoned that the gang evidence was the “glue that holds [the State's theory] together.” 1 VRP at 39.

¶ 16 The trial court initially determined that, although the State's offer connected...