State v. Jackson

• Decision Date: 15 April 1999
• Docket Number: No. 66220-7,66220-7
• Citation: 137 Wn.2d 712,976 P.2d 1229
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Michael A. JACKSON and Laurinda J. Jackson, and each of them, Respondents.

Page 712

137 Wn.2d 712

976 P.2d 1229

STATE of Washington, Petitioner, v. Michael A. JACKSON and Laurinda J. Jackson, and each of them, Respondents.

No. 66220-7.

Supreme Court of Washington En Banc.

Argued Sept. 22, 1998.

Decided April 15, 1999.

Norm Maleng, King County Prosecutor, James S. Whisman, Deputy, Seattle, for Petitioner

Richard R. Tassano, Thomas M. Kummerow, Washington Appellate Project, Jeanette Brinster, Northwest Defenders Assoc., Mark V. Watanabe, Seattle, for Respondents.

ALEXANDER, J.

A jury in King County Superior Court found Michael and Laurinda Jackson guilty of the second degree felony murder of their foster child, Breighonna Moore. The Jacksons each appealed their convictions to Division One of the Court of Appeals, which held that the trial court committed reversible error by including a "duty exists for a parent to come to the aid of their small children" element in its instruction to the jury regarding accomplice liability. It also concluded that there was insufficient evidence to support the allegation that the Jacksons committed one of the two alleged predicate felonies, first degree criminal mistreatment. Accordingly, the Court of Appeals reversed the trial court and remanded for a new trial based only on the allegation that the Jacksons committed the predicate felony of second degree assault. See State v. Jackson, 87 Wash.App. 801, 804, 809-19, 944 P.2d

                403 (1997), review granted, 135 Wash.2d 1008, 959 P.2d 127 (1998).   The State petitioned this court for review and we granted it.  The issues presented by its petition are whether the Court of Appeals erred in concluding that:  (1) the trial court misstated the law in its jury instruction defining accomplice liability;  (2) the instructional error was not harmless;  and (3) the evidence produced at trial did not support the predicate felony of criminal mistreatment.  We also granted Laurinda Jackson's cross-petition for review in which she claims that the Court of Appeals erred in concluding that there was sufficient evidence to support her conviction.  We affirm the Court of Appeals in all respects
                

FACTS

In June of 1992, Michael and Laurinda Jackson began the process to become foster parents. In furtherance of that effort, the Jacksons agreed to abide by the policies of the Washington State Department of Social and Health Services (DSHS), including its requirement that foster parents refrain from inflicting corporal punishment upon foster children placed in their care. In November of 1992, the Jacksons received a foster child, two-year-old Breighonna Moore, from DSHS. Shortly thereafter, they received another foster child, an infant boy.

In the early morning hours of March 12, 1993, Michael Jackson drove Laurinda Jackson from their home to her place of employment. Michael, who was accompanied by Breighonna and the Jacksons' other foster child, then returned home. Michael spent the remainder of the morning with the children at their home and at a park. At about noon that day, Michael drove Breighonna to the Valley Medical Center in Renton, Washington. Upon his arrival at Valley Medical, Michael told an emergency medical technician that his "daughter" had been "swinging on a swing and had fallen and hit her head, and she wasn't breathing very well." Videotape Recorded Proceedings (VRP) at 68.

Breighonna was immediately taken to the emergency Bigler and other staff persons then questioned Michael about how Breighonna's injuries occurred. Michael indicated that while Breighonna was playing on a swing in the park, he turned his back for a moment, and when "he turned around [he] found her lying unconscious below the swing." VRP at 34. Dr. Bigler concluded that Michael's story about how Breighonna had fallen from a swing was inconsistent with the injuries he observed. He, therefore, asked the hospital's emergency intervention team to contact the Children's Protective Service.

room at Valley Medical where she was examined by Dr. Edward Bigler. His examination revealed that Breighonna exhibited the following signs of injury: a growing contusion on her forehead; bruises on both ears; a faint bluish mark in the lower abdomen; discoloration on her buttocks; and an abrasion on her vagina. Bigler also noticed that Breighonna's right pupil was enlarged, and that neither of her eyes responded to light. After completing his initial examination, Bigler concluded that Breighonna was in critical condition as a result of having suffered a "very serious injury" to the brain. VRP at 19.

The staff at Valley Medical eventually determined that Breighonna's condition necessitated her transfer to Harborview Hospital in Seattle. Before transferring the child to Harborview, Bigler advised personnel at that hospital that there was a possibility of child abuse.

Upon Breighonna's arrival at Harborview during the late afternoon of March 12, Dr. Valerie Newman evaluated the child. She noted that Breighonna was still unconscious and unresponsive. Newman consulted with several other staff physicians, and together they reached a consensus that surgical intervention would be futile and that Breighonna was going to die. At about midnight Newman met with the Jacksons and informed them that she did not expect Breighonna to live through the morning. She then inquired of them how Breighonna had suffered her injuries. In response, Michael Jackson reiterated what he had told Dr. Bigler at Valley Medical, but added that a "few days prior Breighonna died on March 13, 1993. An autopsy, performed by Dr. Michael Dobersen, revealed that Breighonna's death was caused by a bilateral subdural hematoma resulting from a blunt impact. ¹ Due to the severe nature of the injuries and the fact that the injuries were inconsistent with Michael's description as to how they occurred, Dobersen classified Breighonna's death as a "homicide." VRP at 340.

or possibly a week prior [Breighonna] had been getting her hair cut and had bumped her head on the sink" at the hair salon. VRP at 166.

The day following Breighonna's death, Michael gave a statement to Detective Mullinax of the King County Police. In his statement he described the incident at the hair salon at which Breighonna allegedly bumped her head on a sink. Michael also told Mullinax how Breighonna had fallen from a swing, but his account varied slightly from what he had previously told the various medical personnel.

Detective Hatch, of the King County Police, took a statement from Laurinda Jackson on the same day that Mullinax spoke to Michael. Laurinda confirmed Michael's account of how Breighonna had hit her head at the hair salon. In addition, she admitted to spanking Breighonna several times because the child was having trouble with her toilet training. In a later interview with Mullinax, Michael also admitted that "he had once spanked" Breighonna. ² VRP at 629.

The State subsequently filed an information charging Michael and Laurinda Jackson with second degree felony murder, alleging second degree assault and first degree Ausilene Griswold, testified that she had cut Breighonna's hair at a hair salon on February 26, 1993. Griswold indicated that Breighonna did not hit her head on a sink during the time she was having her hair cut.

                criminal mistreatment as the predicate felonies. 3  At trial, Drs. Bigler and Newman each testified that Breighonna's injuries were inconsistent with a fall from of a swing.  Dr. Roberta Winch, who had also examined Breighonna at Harborview, testified that "[t]he amount of bruising that she [Breighonna] had and the distribution of the bruising was not consistent with the history of falling from a swing."   VRP at 217.  In addition, Dr. Feldman, a pediatrician with a specialty in injuries related to child abuse, testified after reviewing Breighonna's medical file.  He concluded that Breighonna died of a head injury which stemmed from a blunt impact trauma which, he opined, occurred "in the morning" of March 12, 1993.  VRP at 973.  Moreover, Feldman agreed that a fall from a swing could not have caused Breighonna's injuries
                

Over the objection of both defendants, the trial court gave a jury instruction which stated, in relevant part, that "[u]nless there is a legal duty to act, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice; a legal duty exists for a parent to come to the aid of their small children if physically capable of doing so." Clerk's Papers (CP) at 57 (emphasis added).

The jury found both Michael and Laurinda Jackson guilty of murder in the second degree and indicated, in special interrogatories, that they each committed the crimes of assault in the second degree and criminal mistreatment in the first degree, "which resulted in the death of Breighonna Moore." CP at 76-77, 142-43.

The Jacksons appealed their convictions to Division One of the Court of Appeals. That court reversed the trial court

                and remanded for a new trial, concluding that the trial court committed reversible error by instructing the jury, in essence, that a parent is an accomplice in the commission of a crime if the parent fails to fulfill his or her "duty" to "aid" their child who is being assaulted or criminally mistreated by another.  The Court of Appeals also held that although there was sufficient evidence to support the jury's findings of the predicate felony of second degree assault and that Laurinda was a principal or an accomplice to second degree felony murder, there was insufficient evidence to support its finding of the predicate felony of first degree criminal mistreatment.  See Jackson, 87 Wash.App. at 804, 809-19, 944 P.2d 403.   The State petitioned for review and we granted it.  We also granted Laurinda Jackson's cross-petition for review of the Court of Appeals' determination that there was sufficient evidence to support her conviction for second degree felony murder
                

A. STATE'S CONTENTIONS

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