State v. Ibrahim

Decision Date21 August 2017
Docket NumberNo. 72753-2-I,72753-2-I
CourtWashington Court of Appeals
PartiesSTATE OF WASHINGTON, Respondent, v. MOHAMED IBRAHIM, Appellant.
ORDER DENYING MOTION FOR RECONSIDERATION AND WITHDRAWING AND SUBSTITUTING OPINION

Appellant Mohamed Ibrahim filed a motion to reconsider the opinion filed on January 30, 2017. Respondent State of Washington filed an answer to the motion. The panel has determined that the motion should be denied, but the opinion filed on January 30, 2017 shall be withdrawn and a substitute opinion filed. Now, therefore, it is hereby

ORDERED that appellant's motion for reconsideration is denied and the opinion filed on January 30, 2017 shall be withdrawn and a substitute opinion shall be filed.

DATED this 21st day of August, 2017.

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UNPUBLISHED OPINION

SCHINDLER, J. — A jury convicted Mohamed Ibrahim of three counts of assault in the first degree while armed with a firearm and unlawful possession of a firearm in the first degree. Ibrahim contends he is entitled to dismissal with prejudice because the court erred in declaring a mistrial and the retrial violated double jeopardy. In the alternative, Ibrahim seeks reversal on the grounds that (1) the court abused its discretion by allowing the State to amend the information to add a third count of assault in the first degree, (2) the amended information did not inform him of the essential elements of the crime, (3) the court erred in denying the defense request for a material witness warrant, and (4) insufficient evidence supports one of the convictions for assault in the first degree. Ibrahim also claims the court erred by sentencing him to serve the sentence for the three assault convictions consecutively under RCW 9.94A.589(1)(b). We affirm the convictions and the judgment and sentence.

May 2013 Shooting

Vincent Williams Jr., his good friend Mardillo "Mardy" Barnes, and Barnes' friend "Ket" spent the evening of May 17, 2013 together. Williams, Barnes, and Ket went to a bar to drink and shoot pool. Afterward, they smoked marijuana and stopped to get food. At approximately 1:00 a.m., they parked on Fremont Avenue North near North 85th Street. Williams and Barnes lived next to each other about a block away from where they parked the car. Before walking home, Williams, Barnes, and Ket stood next to each other "shoulder to shoulder" on the sidewalk talking.

Williams testified that while they were talking, two "light skinned . . . African American . . . guys" walked toward them. The man walking in front, later identified as Yusuf Haise Shire, was short and wearing "dark clothing." The taller man, later identified as Mohamed Ibrahim, was wearing a blue and white striped zip-up sweatshirt, a baseball cap, and dark gloves. Williams recognized the shorter man as someone he had seen one or two times before and knew as "Louie." Williams did not recognize the taller man.

Shire approached Ket and engaged in a brief and friendly conversation. But when Shire and Ibrahim talked to Barnes, Williams said it was "kind of weird." Barnes acted like he "didn't want to have this conversation" and "just wanted to go home." Williams said the two men were "pretty intoxicated," it seemed "like they were going to go home too," and there were "no threats or . . . intimidation."

But after Shire and Ibrahim started walking away, Shire said, " 'I do this.' " Shire pulled out a revolver, "pointed it in the air," fired a shot, and then pointed the gun at Barnes, Williams, and Ket and fired four more shots. Ibrahim then turned around facing Barnes, Williams, and Ket. Ibrahim pulled out a 9mm semiautomatic pistol from his waistband; pointed the gun at Barnes, Williams, and Ket; and fired at least six shots.

Williams, Barnes, and Ket were standing "right next to" each another within an "arm's length" and were "in the line of fire." Williams saw Ket "run across the street and dive behind a car. So he was kind of like out of the way when Mr. Ibrahim began to fire." After "[b]ullets . . . passed [his] head," Williams hid behind a car. As Barnes "began to run across the street," Ibrahim continued shooting and Williams "saw blood." Williams testified:

I don't know what their intentions were, but I just know that I think that — like from the gist I got from it and from my own mind is that they were aiming for [Barnes]. . . . Like I said, like it's like a trail of bullets following him like where he ran.

Shire and Ibrahim turned and ran away toward a housing complex.

Williams tried to find Barnes. Williams screamed his name while he followed the direction of the blood on the street. Williams heard Barnes groaning "in agony" and found him in a backyard in a "puddle of blood." Barnes was "holding his hand," blood "dripping out his sleeve."

The Barnes family lived in a housing complex located at 8521 Fremont Avenue North. Barnes' father Mardillo Arnold was awakened by a "loud bang" followed by a pause and several more shots. Arnold ran outside and saw Williams down the street. Arnold ran down the street and asked Williams what happened. Williams looked scared and said, " 'They just shot Mardy.' " Arnold "was really scared" and "ran into the middle of the street . . . screaming, 'Mardy, Mardy, Mardy.' " Barnes "came running from behind a house." Arnold, Barnes, Williams, and someone Arnold "vaguely" knew as "Kip" headed back to their house.

Meanwhile, Barnes' mother Carolyn Barnes-Arnold looked out the window and saw someone run by wearing a black shirt or "hoodie." The man ran along a walkway that leads into the courtyard of the housing complex. When Barnes-Arnold ran outside, she saw Williams and Barnes' friend, who she knew as "Ket," standing on the front porch looking scared. Williams was screaming that Barnes had been shot. Barnes was bleeding heavily from his hand. Arnold used his belt to make a tourniquet around Barnes' arm and called 911. Williams told Barnes-Arnold that "Louie" was one of the two shooters.

Thomas English lived in the same housing complex at 8549 Fremont Avenue North. English was smoking a cigarette on his patio around 1:00 a.m. when he saw two black men run through the well-lit courtyard toward Fremont Avenue North. One of the men was "pretty short" and the other was taller. Within minutes, English heard 9 or 10 gunshots. The gunshots were "[v]ery quick" and separated by a "real brief hesitation." The gunshots were "very close[,] . . . [n]ot even a block away."

After hearing the gunshots, English saw two black men, "[o]ne was short and one was tall," run through the courtyard. The shorter man ran by first and was wearing a dark hoodie and dark pants. He was "crouching down" and holding a gun in his hand. The taller man was 10 to 15 seconds behind "running clumsily with [his] hands down in his pants." He was wearing a blue and white striped hoodie and baggie pants. English "couldn't tell" if they were the same two men he saw run by earlier. English went to see if anyone needed "assistance" and saw an "African American" man in shock with a hand injury.

David Bentler lived near the intersection of North 85th Street and Fremont Avenue North. Bentler heard two series of gunshots that were very close. When Bentler looked out the widow, he saw a white late-1990s-model Toyota Camry parked in a driveway. Less than a minute later, Bentler saw two men get into the car. A "very tall African American male" wearing "dark colored clothing" got into the back seat behind the driver. As soon as the two men got in the Camry, the car "sped off" heading west on North 85th Street. Bentler called 911 at 1:18 a.m. and provided a description of the vehicle.

At 1:24 a.m., Seattle Police Department Officer Collin Carpenter stopped a white 1996 Toyota Camry in the 7700 block of 3rd Avenue Northwest. There were five people in the car—two in the front and three in the back. Officer Carpenter called for backup. The passenger in the back seat behind the driver, later identified as Ibrahim, did not put his hands up as directed and kept "moving around" and "bending down." The passenger in the back seat of the car on the passenger side, later identified as Shire, was also reaching down.

The police removed the five individuals from the car and conducted a showup identification. Ibrahim is over six feet tall. He was wearing a blue and white striped zip-up sweatshirt and a blue baseball hat. Shire is five feet three inches tall. He was wearing a black T-shirt and jeans. English identified Ibrahim and Shire with "100 percent" certainty as the two men he saw run through the courtyard of the housing complex. Bentler identified the white 1996 Toyota Camry as the car he saw parked in a driveway near the intersection of North 85th Street and Fremont Avenue North.

The police found a 9mm semiautomatic pistol under the driver's seat directly in front of where Ibrahim was sitting. The gun has a 16-cartridge capacity. Only 1 bullet remained in the gun. The police found a black and white glove on the floorboard near where Ibrahim was sitting. The police found a .38 caliber revolver under the front passenger seat directly in front of where Shire was sitting. The .38 caliber revolver has a 5-round capacity. The revolver contained 3 unfired rounds and 1 spent shell casing.

Detective Robert Sevaaetasi searched the area where the shooting occurred. Detective Sevaaetasi recovered six 9mm shell casings and a "deformed bullet fragment." Detective Sevaaetasi found bullet "strike marks in the planting strip" near the street.

Detective Thomas Janes interviewed Williams the next day. Detective Janes prepared two six-person photomontages, one with a photo of Shire and the other with a photo of Ibrahim. Williams identified Ibrahim and Shire as the shooters with "100 percent" certainty.

Williams told the police he knew the third victim only as "Barkett" and did not know where to find him. Barnes refused to provide any information to the police. Barnes' father told the police h...

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