State v. Korum
| Decision Date | 15 March 2004 |
| Docket Number | No. 27482-5-II.,27482-5-II. |
| Parties | STATE of Washington, Respondent, v. Jacob Melvin KORUM, Appellant. |
| Court | Washington Court of Appeals |
Paul Douglas Weisser, Olympia, WA, Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondents.
Montell E. Hester, Wayne Clark Fricke, Attorney at Law, Tacoma, WA, for Appellant.
PUBLISHED IN PART OPINION
Jacob Melvin Korum appeals his convictions for multiple counts of burglary, assault, robbery, and kidnapping, with multiple firearm sentencing enhancements, arising from a conspiracy with friends to rob drug dealers in a series of non-injury home invasions. Korum argues that we should reverse his convictions because (1) his right to speedy trial was violated; (2) the trial court improperly denied his motions to sever the firearms charge and to grant a continuance; (3) prosecutorial misconduct violated his right to due process; (4) the kidnapping evidence was insufficient and incidental to the robberies; (5) the trial court made evidentiary errors; and (6) the trial court misstated the law in its accomplice-liability jury instruction. Korum also challenges his 1,208-month sentence as excessive, alleging prosecutorial vindictiveness in retaliation for withdrawing his guilty plea and exercising his right to jury trial.
We find no reversible error in the jury's verdict. Nonetheless, we dismiss the kidnapping convictions as incidental to the robberies as a matter of law.
We also hold as a matter of law that the prosecutor acted vindictively in adding charges following Korum's exercise of his right to trial. These charges, together with the original charges, resulted in a sentence ten times longer than the sentence imposed following Korum's earlier guilty plea, and five times greater than the longest sentence given to a codefendant. Accordingly, we dismiss the 15 new counts that the State added after Korum withdrew his plea (Counts 17-22, 24-32); and we remand to the trial court to determine any additional remedy for prosecutorial vindictiveness, including dismissal of other charges, and for resentencing commensurate with Korum's role in the home invasions and proportionate to the sentences of the other perpetrators.
During the summer of 1997, several young men, some of whom had been friends since childhood, frequently gathered in Ethan Durden's garage and used drugs. They planned a series of night time, armed home invasions to rob known Pierce County dealers of money and drugs, presuming that these victims would not call police. The young men planned to disguise themselves, to invade the homes after midnight, and to bind anyone they encountered inside to facilitate their gathering of items to steal.
Durden, Brian Mellick, and 19-year-old Korum, armed and wearing ski masks, invaded John McDonnell and Gregory Smith's condominium. At gunpoint, the robbers (1) restrained Smith with duct tape; (2) dragged him across the floor; and (3) stole methamphetamine, which they divided among themselves. Korum searched the home for money and more drugs, coming close enough that Smith could smell alcohol on Korum's breath and recognize his voice, body style, and "signature" work boots. Smith also recognized Durden's voice.
Marcos Apodaca was inside the residence he shared with Tami Tegge when he saw a group of men outside. He opened the door. An armed man in camouflage clothing appeared and said, "[G]overnment agent, get on the ground." Report of Proceedings (RP) at 1328-31. Apodaca slammed the door shut, and the men left.
Michael Bybee, Durden, Mellick, Zack Phillips, and Korum then attempted to invade the home of Aldrich Fox and Angela Campbell. Their initial effort was unsuccessful.
The group met at Durden's garage and returned to the Fox/Campbell home, this time bringing walkie-talkies so that they could communicate during the robbery. Three dressed in camouflage clothing and the other two, one of whom was Korum, wore masks to conceal their appearances. Approaching the house, they (1) identified themselves as police officers as they broke through the front and rear doors; (2) used duct tape to restrain Fox, Campbell, and Campbell's two-year-old child at gunpoint; and (3) stole drugs, money, jewelry, and Campbell's car.
At 3:00 A.M. on August 30, 1997, Mellick, Korum, Phillips, Durden, and Bybee drove together in Mellick's car to burglarize and to rob Judy Beaty's home and Tonya Molina's trailer at the same address. Again identifying themselves as police officers, Bybee, Durden, and Mellick (1) entered the dwellings armed; (2) used duct tape and slip ties to restrain seven people (including children) at gunpoint; and (3) stole drugs, money, a car, and other valuables. The robbers yelled at, kicked, hit, and threatened to burn Judy Beaty with acid if she did not say where the money and drugs were. Beaty remained bound for about 20-30 minutes during the robbery and was inadvertently cut when one of the robbers used a knife to remove the zip ties and release her.
The robbers initially tied Beaty's friend Jennifer McDonald to a chair, and taped her mouth and eyes. They then took her outside, removed the duct tape from her eyes at her request, and led her into the Molina trailer behind the Beaty residence, where she observed Sherrita Vernon-Thompson, Tonya Molina, and Brandon Vernon-Thompson on their knees on the floor. When Sherrita Vernon-Thompson had yelled at the intruders to produce a search warrant, they had taped her head, except for her nose. The robbers took McDonald to a room and left her there with two unbound children, Miguel Lopez and Robert Warner.
During this time, Korum remained outside in the car, communicating by walkie-talkie with the others inside the residences. He was to drive by while Bybee shot a loud, barking dog; but the dog ran off unharmed when Bybee fired.
In response to a neighbor's 911 call, police arrived, at which point the robbers stopped freeing the victims and fled. The police arrested Mellick, Durden, and Bybee, who had firearms, ski masks, duct tape, and two-way radios in their possession. Korum and Phillips escaped arrest: Korum drove away in the car, and Phillips apparently fled on foot.
Hoping for a reduced sentence, Mellick offered the police information about several other home invasions, about which police had been unaware, and the other participants. Mellick explained the group's plan—to enter drug dealers' homes, to bind anyone inside, and to rob them of drugs and money. On October 15, 1997, Mellick implicated Korum in three of these other home invasions, in addition to the Beaty/Molina home invasion, where Mellick had been arrested and Korum had fled.
The State developed a theory that the home-invaders comprised a core conspiracy of several friends, including Korum, with one or two entering and leaving the conspiracy at different times. According to Mellick, Korum had been involved in all of the group's home invasions.
Based on this conspiracy theory, on November 13, 1997, the State charged Korum with 16 counts of burglary, kidnapping, robbery, and assault of Judy Beaty, Jennifer McDonald, Sherrita Vernon-Thompson, Tonya Molina, Robert Lee Warner, Brandon Vernon-Thompson, and Miguel Lopez. All 16 counts arose from the Beaty/Molina home invasions. The potential maximum sentence for all counts combined was confinement from 122 to 150 years.1
By this time, Korum was out of the country. After attending a drug rehabilitation clinic in California, he had left for Mexico, allegedly in response to anonymous threats on his life in Pierce County. A Pierce County warrant for Korum's arrest issued on November 13, 1997. A federal warrant issued on January 9, 1998.
Korum remained in Mexico, even after his father told him about the Pierce County arrest warrant in December 1997 or January 1998. Korum did not return to Pierce County until late January 1998, after his mother told him about the federal arrest warrant. After returning home, Korum waited ten days before he turned himself in to authorities in February 1998.
On March 20, 1998, Korum filed a motion to dismiss the kidnapping counts because they were incidental to the robberies.2
In June 1998, the prosecutor offered Korum an opportunity to plead guilty to "enough substantive charges to allow for 15 years within standard-range," plus a five-year deadly weapon enhancement. Clerk's Papers (CP) at 186-87. The prosecutor told Korum that if the currently charged cases were resolved by guilty plea, then the State would not file additional charges for other home invasions newly-confirmed by ongoing investigations. The prosecutor refined the plea offer in a letter dated July 22, 1998, which said, in essence: If Korum did not plead guilty, the State would file an amended information containing 32 counts, yielding a potential sentence of 221 to 261 years in prison. The prosecutor attached a copy of this threatened 32-count information to the plea offer.
On July 31, 1998, Korum pleaded guilty to an amended information charging only second degree unlawful firearm possession and one count of first degree kidnapping while armed, in connection with the Beaty/Molina home invasions. In return, the State dismissed the other sixteen counts, agreed "not to file any additional charges," and promised to recommend a sentence of 132 months incarceration. Korum acknowledged that, in pleading guilty, he was "receiving benefit of State's reduction of charges." CP at 92.
Korum's father was present when Korum entered his guilty plea, during which time Korum admitted to having been the driver during the August 30 Beaty/Molina home invasions. Korum had previously told his father that he had...
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State v. Korum
...Appeals dismissed Korum's kidnapping charges, counts 2, 3, 8-12, 18, 19, and 25, as incidental to the robberies. State v. Korum, 120 Wash. App. 686, 719, 86 P.3d 166 (2004). The court also dismissed the charges added after Korum withdrew his guilty plea, counts 17, 20-22, 24, and 26-32, on ......
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