State v. Johnson, 60583-1

• Citation: 124 Wn.2d 57,873 P.2d 514
• Decision Date: 26 May 1994
• Docket Number: No. 60583-1,60583-1
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Antwon Lanell JOHNSON, Petitioner.

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124 Wn.2d 57 873 P.2d 514 STATE of Washington, Respondent,
v.
Antwon Lanell JOHNSON, Petitioner. No. 60583-1. Supreme Court of Washington. May 26, 1994.
Reconsideration Denied Aug. 23, 1994.

[873 P.2d 517]

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Washington Appellate Defender Ass'n, Andrew P. Stanton, Seattle, for petitioner.

Antwon Johnson, pro se.

Norm Maleng, King County Prosecutor, Denis A. O'Leary, Deputy, Theresa Fricke, Sr. Deputy, Seattle, for respondent.

SMITH, Justice.

Petitioner Antwon Lanell Johnson seeks review of a decision of the Court of Appeals, Division One, affirming the aggravated exceptional sentence imposed upon him by the King County Superior Court following his conviction of one count of assault in the first degree and one count of assault in the second degree. ¹ We affirm.

STATEMENT OF FACTS

On March 13, 1990, Petitioner Antwon Lanell Johnson fired from a handgun several shots at two automobiles driven by Marvin Jones and Taifa Griffith, members of a group called the "Crips", reported to be a rival "gang" to the "Black Gangster Disciples", another "gang" commonly known as "BGD". He fired at another automobile driven by Germaine Scott. The incident occurred in front of John Muir

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Elementary School in Seattle while school was in session. ² On March 16, 1990, the King County Prosecuting Attorney filed an information charging Petitioner Johnson with two counts of assault in the first degree, both with deadly weapon allegations. ³

The case proceeded to trial upon a second amended information in the King County Superior Court before a jury in the courtroom of the Honorable Frank J. Eberharter, judge pro tempore, on June 1 and 4, 1990.

Pertinent portions of the second amended information read:

COUNT I

[Accusing] Antwon Lanell Johnson of the crime of assault in the first degree, committed as follows:

That the defendant Antwon Lanell Johnson, in King County, Washington, on or about March 13, 1990 with intent to inflict great bodily harm, did assault Marvin Jones with a firearm and a deadly weapon and force and means likely to produce death, to-wit: handgun;

Contrary to RCW 9A.36.011(1)(a), and against the peace and dignity of the State of Washington.

COUNT II

[Accusing] Antwon Lanell Johnson of the crime of assault in the first degree, a crime based on the same conduct as another crime charged herein, which crimes were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the other, committed as follows:

That the defendant Antwon Lanell Johnson, in King County, Washington, on or about March 13, 1990 with intent to inflict great bodily harm, did assault Taifa Griffith with a firearm and a deadly weapon and force and means likely to produce death, to-wit: a handgun;

Contrary to RCW 9A.36.011(1)(a), and against the peace and dignity of the State of Washington.

The information in both counts indicated that assault in the first degree as charged included the lesser offense of assault in the second degree. It further accused Antwon Lanell Johnson "at said time of being armed [873 P.2d 518] with a deadly

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weapon, to-wit; a handgun, under the authority of RCW 9.94A.125."

At trial several eyewitnesses testified that Petitioner Johnson had fired at the automobiles and fled from the scene. These witnesses included William Robbins, a parent picking up his child from school at the time of the shooting; Roy Dunn, a crossing guard who observed the shooting and collected from the street several spent cartridges following the shooting; Germaine Scott, a member of the "Crips" and driver of a third automobile which escaped from the shooting; and Marvin Jones. ⁴

Marvin Jones testified that he and Taifi Griffith were members of the "Crips" gang; that they were on "Black Gangster Disciples" (BGD) "turf" on Horton Street near John Muir Elementary School talking to some girls; that four members of the BGD "gang" (Petitioner Johnson was not in the group) saw them and everyone "flashed" their respective "gang signs"; that one of the BGDs ran away from the group; that he and two other "Crips" got into their automobiles to follow the BGD because they believed he had gone to get a gun; that Petitioner Johnson jumped from some bushes and fired at two of the three automobiles driven by the "Crips" in front of John Muir Elementary School; and that all the "Crips" fled from the scene in their automobiles. ⁵ Germaine Scott testified that during the shooting he observed Petitioner Johnson near the BGD who had earlier run away from the group. ⁶

During closing argument by the State, there was a loud outburst in the courtroom by an unidentified woman in the audience. Petitioner referred to her several times in the

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jury's presence as "mom". In part, the woman exclaimed "it ain't fair! This is not fair. They are just a bunch of gang-bangers!" She then declared "[a]ll I want you jurors to know is that Martin, their [sic ] Cripps [sic ]. Their [sic ] crabs. Their [sic ] gang bangers. My son ain't no gang banger, honey ...". ⁷ The woman was removed from the courtroom. Defense counsel moved for a mistrial. The court denied the motion and instructed the jury "not to consider anything that was stated by the person who was sitting in the bench in the rear of the courtroom, as it has absolutely nothing to do with the charges made against the defendant here or of any verdict you may arrive at." ⁸

On June 5, 1990, the jury found Petitioner Johnson "guilty" of one count of assault in the first degree and one count of the lesser included offense of assault in the second degree. The jury also found on both counts that Petitioner was armed with a deadly weapon. ⁹

At the sentencing hearing on August 13, 1990, Seattle Police Officer Dale Williams related a prior encounter with Petitioner Johnson. He testified that on July 20, 1989 (approximately 9 months prior to the shooting in this case) he arrested two members of the "Crips" gang who were chasing Petitioner Johnson; that Petitioner had not committed any offense and was not arrested; that at the scene of the arrest Petitioner "flashed" what are characterized as "gang signs" at the "Crips", acted in a boastful manner, and told the two "Crips" they should not enter BGD "turf" in the future; and that later Petitioner told him in a proud manner that he was a member of the BGDs. ¹⁰

Detective Paul Pomerville, a member of the Seattle Police Gang Task Force and an [873 P.2d 519] "expert on street gangs", testified

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at the sentencing proceeding. ¹¹ He stated that in general a "street gang" is a subcultural group with distinct beliefs, values, behavior, art, dress, and written, verbal and nonverbal forms of communication; that the most important value is image or reputation; that reputation is gained by perpetrating acts of violence upon police and rival gangs or through suffering violence during initiation into a gang; and that status and leadership within the group is achieved by committing acts of violence. He also stated that criminal conduct is an integral part of street gang activity; and that its primary focus is to control a geographical area or "turf" where the group can exercise a monopoly control over drug traffic. He also mentioned that one theory explaining the reason for gang membership is breakdown of the family and that the gang becomes a surrogate family providing structure and values. ¹² He also testified that he was familiar with Seattle street gangs and that there had been recent violence among them over "turf". ¹³

On September 7, 1990, Judge Eberharter signed a judgment and sentence. Petitioner Johnson had an offender score of 3. After determining that "[s]ubstantial and compelling reasons exist which justify a sentence above/below [sic ] the Standard range for Count(s) I & II", the court imposed upon petitioner an exceptional sentence of 170 months' incarceration for assault in the first degree, to run concurrently with an exceptional sentence of 50 months' incarceration for assault in the second degree. ¹⁴ The court also entered findings of fact and conclusions of law as follows:

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FINDINGS OF FACT

1. Antwon Johnson is a known member of the Black Gangster Disciples (BGD's) street gang. His membership with this gang predated the assaults.

2. The named victims were members of the CRIPS street gang. The CRIPS and BGD's are rival organizations.

3. The purposes of these gangs are narcotics trafficking and the commission of violent offenses.

4. The BGD's are structured with a hierarchy among its members. A member elevates his position in this hierarchy and enhances his status by committing violent acts against rival gang members.

5. Antwon Johnson committed these assaults against rival gang members in an attempt to assert BGD dominance over the CRIPS and to advance his own position within the BGD organization.

6. The impact of the defendant's assaults went far beyond the intended victims.

7. The defendant opened fire on gang members immediately next to a public elementary school that was in session.

8. As a result of the defendant's actions, children have become frightened to go to school and parents fearful that their children are not safe while at the school.

9. The defendant invaded the community's zone of safety.

CONCLUSIONS OF LAW

1. Jurisdiction is properly before this court.

2. These crimes were gang-motivated. The court finds this to be an aggravating [873 P.2d 520] factor which justifies going beyond the presumptive standard range.

3. The invasion of the community's zone of safety is an aggravating factor which justifies going beyond the presumptive standard range.

4. As to Count I, the defendant is sentenced to 170 months. As to Count II, he is sentenced to 50 months. Count I & II are to run concurrently. ¹⁵

On October 4, 1990, Petitioner Johnson filed a Notice of Appeal to the Court of Appeals, Division One, claiming the trial...