State v. Hobbs
| Decision Date | 11 October 1993 |
| Docket Number | 31052-6-I,Nos. 29672-8-,s. 29672-8- |
| Citation | 71 Wn.App. 419,859 P.2d 73 |
| Parties | STATE of Washington, Respondent, v. Martin G. HOBBS, Appellant. Division 1 |
| Court | Washington Court of Appeals |
Norm Maleng, Pros. Atty., Robert A. Knief, John L. Belatti, King County Deputy Pros. Attys., Seattle, for respondent.
Appellant Martin Hobbs appeals his conviction of second degree assault with a deadly weapon, claiming (1) insufficient evidence to prove that the assault took place in King County, and (2) error by the trial court in modifying the "to convict" jury instruction after jury deliberations had begun. Finding actual prejudice in the belated modification of the instruction, we reverse and remand for a new trial.
Hobbs was charged by information on April 24, 1991, with rape in the second degree, contrary to RCW 9A.44.050(1)(a) (count 1), and assault in the second degree with a deadly weapon, contrary to RCW 9A.36.021(1)(c) and RCW 9.94A.125 (count 2). Jury trial took place on October 10-18, 1991.
The State and Hobbs both submitted proposed "to convict" instructions which included as an element of the crime that the act charged in count 2 occurred in King County, Washington. Accordingly, the court instructed the jury that Jury deliberations began on October 16, 1991. On October 18, prior to any verdict, the State moved to amend the information and to modify the "to convict" instruction to delete "King County" and insert "State of Washington" as the place where the act occurred. Defense counsel objected. She stated that she became aware during trial that there was an issue concerning where the assault had allegedly occurred, and made a strategic choice not to pursue the inconsistency between what the victim said at trial and what she had earlier said to the defense investigator.
it would have to find that the act occurred in King County, in order to convict Hobbs. Neither party excepted to that instruction. After the jury had been instructed, and during closing argument, defense counsel argued that the State had failed to establish beyond a reasonable doubt that the assault occurred in King County
The court allowed the amendment to the information and modified the jury instruction to delete the reference to King County and include as an element that the act charged in count 2 occurred in the State of Washington. The court then granted defense counsel's request for reargument before the jury. The defendant's motion for a mistrial was denied.
On October 18, 1991, the jury found Hobbs guilty of second degree assault as charged in count 2. A mistrial was declared on the rape count, as the jury was unable to reach a verdict on that count. Hobbs filed a motion for a mistrial, to arrest judgment and for a new trial as to the assault charge. The court denied the motions. This appeal followed. 1
On or about March 30, 1991, the victim, K.R., went out drinking with Hobbs and his friend. Ms. R. testified that Hobbs was drinking and driving, and that he knocked over stop signs, a school sign and several other signs as he drove. Ms. R. testified that the three first drove to Tacoma and then drove down Highway 512 to Interstate 5, headed north and ended up in Federal Way. Ms. R. testified that immediately after they turned north on Interstate 5, Hobbs pulled a gun from underneath the seat and began waving it at another car on the highway. Hobbs attempted to take aim at the car in order to shoot out its tires. Ms. R. testified that she then told Hobbs to let her drive and that he "turned around and looked at me and put the gun right into my face, well, about two inches from my face, and said, 'Do you really want to drive that bad now?' " Ms. R. testified that the incident happened as Hobbs was driving from Spanaway to Federal Way, right after they had entered the freeway, and that Hobbs held the gun on her for 5 to 10 seconds. The defense attorney asked Ms. R. if she remembered telling a defense investigator that Hobbs held the gun on her all the way from Spanaway to Federal Way. Ms. R. answered no.
The trio went to the apartment of Hobbs' friend, located in Federal Way. Ms. R. testified that Hobbs assaulted her sexually and physically there.
1. Amendment of the Jury Instruction
The dispositive issue here is whether it was reversible error for the trial court to alter the "to convict" instruction after the jury deliberations had begun, to delete the "venue element" which the State undertook to prove. 2
Hobbs correctly points out that the State assumed the burden of proving that the crime occurred in King County because the State requested that the court include King County as a necessary element in the "to convict" instruction given to the jury.
Venue is not an element of the crime here. State v. McCorkell, 63 Wash.App. 798, 800, 822 P.2d 795, review denied, 119 Wash.2d 1004, 832 P.2d 487 (1992); State v. Hardamon, 29 Wash.2d 182, 188, 186 P.2d 634 (1947). But see State v. Marino, 100 Wash.2d 719, 727, 674 P.2d 171 (1984). However, where the trial court, "at the request of the State's attorney, proceeds to incorporate the unnecessary element in the instructional language ...", then the State assumes the burden of proving that element. State v. Worland, 20 Wash.App. 559, 566, 582 P.2d 539 (1978). See also State v. Hawthorne, 48 Wash.App. 23, 27, 737 P.2d 717 (1987).
The State argues that, when the trial court properly allowed amendment of the information pursuant to CrR 2.1(e), 3 it found it "necessary" to give further jury instructions. This does not necessarily follow. If there is surplusage in the information, that surplusage need not be carried over into the "to convict" instruction or proved beyond a reasonable doubt if there is a bench trial. See, e.g., Hawthorne, 48 Wash.App. at 27, 737 P.2d 717; and State v. Plano, 67 Wash.App. 674, 679, 838 P.2d 1145 (1992). 4
Next, the State begs the question by arguing that the defense did not challenge venue when it became apparent (for the first time during the testimony of the alleged victim, Ms. R.) that there was a venue issue. However, Hobbs was not seeking a change of venue. He was challenging theState's right to change the "law of the case" after jury deliberations were already under way.
Hobbs' counsel candidly admitted below and candidly admits on appeal that she became aware, during Ms. R.'s testimony, which was different from her pretrial statements to the defense investigator, that the State was not going to be able to prove King County venue beyond a reasonable doubt, even though it had submitted a proposed instruction saying it intended to do so. Defense counsel then made a strategical decision not to try to impeach Ms. R. on this venue issue. Instead, she asked one question on that issue during cross examination and then went on to other matters. During closing argument, the defense raised the issue again as its, by then, primary theory for dismissal of the assault charge. The State still had not recognized its venue problem and had submitted the "to convict" instruction as first proposed.
The State now characterizes this defense strategy as "lying in the weeds" on a "technicality". We disagree. This was a valid defense strategy under these circumstances. Defense counsel is an advocate for her client, not a "law clerk" for the prosecutor.
The State also argues that the fact that this strategy eventually backfired is not grounds for reversal. If the State had caught its error before its own proposed instruction became the law of the case we might possibly agree. At least, the State would have a stronger argument. Here, however, the jury had deliberated for more than a day before the State attempted to correct its error by asking the court to "correct" the law of the case.
Supplemental instructions "should not go beyond matters that either had been, or could have been, argued to the jury." State v. Ransom, 56 Wash.App. 712, 714, 785 P.2d 469 (1990). Although the defense was allowed to reargue, there was no opportunity, here, to re-think its cross examination strategy, a strategy based on the State's earlier error. We believe that the trial court had two permissible remedies here: (1) to hold the State to its own election or (2) to declare a mistrial.
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State v. Calvin
... ... The defendant was entitled to rely on the fact that the State chose not to pursue accomplice liability, which is a distinct theory of criminal culpability. Id. Accordingly, the trial court erred and a new trial was granted. Id. at 715, 785 P.2d 469. ¶ 43 In State v. Hobbs, the State acquiesced to an unnecessarily narrow venue element that required the jury to find that [316 P.3d 507] the defendant committed the crime in King County. 71 Wash.App. 419, 420–21, 859 P.2d 73 (1993). During jury deliberations, the trial court granted the State's motion ... ...
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State v. Calvin
... ... The defendant was entitled to rely on the fact that the State chose not to pursue accomplice liability, which is a distinct theory of criminal culpability. Id. Accordingly, the trial court erred and a new trial was granted. Id. at 715, 785 P.2d 469. 43 In State v. Hobbs, the State acquiesced to an unnecessarily narrow venue element that required the jury to find that the defendant committed the crime in King [176 Wash.App. 23]County. 71 Wash.App. 419, 42021, 859 P.2d 73 (1993). During jury deliberations, the trial court granted the State's motion to amend the ... ...
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