State v. Israel
| Citation | 54 P.3d 1218,113 Wash.App. 243 |
| Decision Date | 09 September 2002 |
| Docket Number | No. 44731-9-I, No. 45051-4-I, No. 45956-2-I. |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. David R. ISRAEL, Defendant, and Willie James King, and each of them, Appellant. State of Washington, Appellant/Cross Respondent, v. David R. Israel, Respondent/Cross-Appellant, and Willie James King, and each of them, Defendant. |
Gregory Miller for William King, James E. Lobsenz, Carney Badley Smith & Spellman, Seattle, WA, for for David Israel.
Barbara Mack, King County Prosecutor's Office, Seattle, WA, for State of Washington.
David Israel and William King challenge their convictions arising out of a string of home invasion robberies that occurred in the early 1990s.1 King was tried alone and convicted in 1997 of one of the robberies, as well as for assaulting and taking indecent liberties with the robbery victim. King's 1997 conviction and certain testimony elicited during that trial were introduced as evidence in a subsequent joint trial of Israel and King for conspiracy, robbery, and kidnapping.
In the 1999 joint trial, the State alleged that King and two other men engaged in a number of home-invasion robberies and then sold jewelry taken from those homes to Israel at his pawnshop. The State alleged that Israel knew about the robberies, assured the robbers that the police would not be involved, asked for specific items from them, and gave them directions on one occasion to the house of family friends who he knew had expensive jewelry. At trial, Israel claimed that he did not know the jewelry was stolen until one of the robbers threatened to harm him and his family when he tried to refuse to buy the jewelry. According to Israel, he did not knowingly buy stolen jewelry after that, but he did eventually pay one of the men to leave him alone. The jury convicted Israel and King as charged.
After trial, Israel moved for a new trial based on newly discovered evidence. The trial court granted the motion as to several counts, but denied the motion as to the remaining counts. The State appeals the trial court's order granting the new trial, as well as the court's failure to order Israel to pay restitution to several of the victims. Israel cross-appeals, claiming the trial court should have granted a new trial on all counts. Israel also alleges that a number of trial errors require reversal. King appeals from alleged errors in both the 1997 and 1999 trials.
We affirm King's 1997 convictions and his 1999 conviction for conspiracy to commit robbery in the first degree. We also affirm Israel's convictions for money laundering and conspiracy to commit robbery in the first degree. But we reverse both defendants' 1999 convictions for the substantive crimes of first degree robbery and kidnapping. Both defendants were prejudiced by the court's erroneous jury instructions, which allowed the jury to convict them for the foreseeable actions of their co-conspirators, rather than requiring knowledge of the substantive crimes charged. Further, we remand for dismissal of Israel's first degree kidnapping conviction because we conclude that the evidence was insufficient to support his conviction as an accomplice on that charge. With regard to the State's appeal, we hold that the trial court should have ordered Israel to pay restitution to all the victims of the conspiracy.
The State charged David Israel, William King, Vince Bryant, and Jeffrey Dorman with a total of 41 counts arising out of a series of eight home-invasion robberies from October 15, 1993, through March 3, 1994. The robberies occurred in King, Cowlitz, Snohomish, and other counties. The State alleged that King, Bryant, and Dorman participated in the robberies, while Israel agreed to dispose of the proceeds through his pawnshop. Count 1 was the general conspiracy count, while the other counts represented the substantive crimes allegedly committed by Dorman, King, and Bryant, including first degree robbery, assault, indecent liberties, and kidnapping. King denied he was present or aware of the robberies. Israel admitted he bought some of the robbery proceeds at his pawn shop, but claimed he did not know the jewelry was stolen until Bryant told him and threatened to harm him if he did not continue to do business with Bryant.
Dorman pleaded guilty and agreed to testify, and Bryant provided police with information in exchange for his immunity. See State v. Bryant, 146 Wash.2d 90, 42 P.3d 1278 (2002). King and Israel moved for severance, each seeking to be tried individually. The court granted the motion in part and denied it in part. In 1997, King was tried separately for his role in the robbery of Mira Hwang, resulting in his conviction for first degree robbery, second degree assault, and indecent liberties, all committed with a deadly weapon. In 1999, Israel and King were tried together for the conspiracy, which included the Hwang robbery and seven other robberies committed between October 15, 1993, and March 3, 1994. In the 1999 trial, Israel was tried for one count of conspiracy to commit robbery in the first degree, two counts of robbery in the first degree with a deadly weapon, two counts of kidnapping in the first degree with a deadly weapon, and one count of money laundering. King was tried for the conspiracy charge and two counts each of first degree robbery and first degree kidnapping. The jury convicted them both as charged, and these appeals followed.
On March 3, 1994, Mira Hwang was house-sitting for family friends in a house in the Lake City neighborhood of Seattle when two masked men ran into the kitchen and attacked her. Hwang described the attackers as one being "shorter" and the other "taller and thinner." She testified that the two men threw her face down on the floor. The shorter man held her down while the other man emptied her purse onto the counter. Although the men wore ski masks, the masks did not cover their entire faces; Hwang could see portions of their skin and testified that they were both African-American.
Hwang testified that during the thirty minutes that she was being held down, the men interrogated her about how old she was, her address, and personal identification numbers for her bank accounts and credit cards. They also asked where valuables were kept in the house. Hwang testified that she believed there was a third person in the house because she could hear someone else going through the rest of the house, which was later found to be completely ransacked. The men threatened Hwang with rape, and the shorter man pulled down her pants, touched her genitals, and asked her why she had to have her period. The taller man grabbed a knife from the kitchen and held it to her throat, threatening to cut her throat if she did not give him more information.
After about thirty minutes, the men lifted Hwang to her feet and tied her with items they found in the house and put a pillowcase over her head. The men continued to ask her questions and threaten her with rape and mutilation until the room suddenly became quiet. Hwang's boyfriend was at the front door ringing the doorbell. When she realized the men had fled, she made it to the door to let him in, and they called the police.
Police responded and tracked the robbers with a police dog, but the dog lost the scent. The next day, Hwang found a folded piece of paper, about two inches by two inches in size, on the floor of the kitchen where she had been held down. Initially she thought it might be from her emptied purse or the property of a friend, but when she read it and realized it was neither, she gave it to Seattle police.
A detective investigated the information on the folded piece of paper. It contained directions to a business called Starving Student Movers. The detective contacted the manager of the business in Seattle. The manager provided the detective with copies of two job applications filled out on March 3, 1994. The applications were filled out in the names of the defendant, Willie King, and another man, King's roommate.
The Starving Students manager testified by stipulation that King called her on March 3, 1994, looking for work. She gave King directions over the phone on how to drive to the Seattle office. The manager did not think she could identify King, but recalled him as a well-groomed African-American male with a round face and short hair. A latent print examiner for the Seattle Police Department testified that she examined the piece of paper for fingerprints. She identified four areas on the note with potentially legible fingerprints, but only one area was actually legible. She further testified that the one identifiable print belonged to King.
Brian Vance also testified for the State. Vance had known King for about eight years. Vance recalled a conversation with King in about mid-1994 involving a home-invasion robbery King said he had committed. According to Vance, King told him that he was worried because he had lost a piece of paper somewhere during the commission of a robbery, and he did not know where the paper had been lost. Vance also testified that in January or February 1995, after King had been arrested and bailed out of jail, King talked to Vance again about the lost piece of paper. He told Vance that he was worried because while he was in jail, the police had talked to him and told him they had the piece of paper as evidence against him. On cross-examination, Vance said he was not exactly sure whether the paper King was talking about contained directions to a home-invasion robbery or to a job, but later speculated that it must have contained directions to a home-invasion robbery. During redirect examination by the State, Vance again said that the paper contained directions to a robbery, and he knew this because King had told him.
Vance was...
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