State v. Kosewicz, s. 83682–5

• Decision Date: 07 June 2012
• Docket Number: Nos. 83682–5,84836–0.,s. 83682–5
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Theodore M. KOSEWICZ, Petitioner. State of Washington, Respondent, v. Robert A. Brown, Petitioner.

174 Wash.2d 683

278 P.3d 184

STATE of Washington, Respondent,

v.Theodore M. KOSEWICZ, Petitioner.

State of Washington, Respondent,

v.Robert A. Brown, Petitioner.

Nos. 83682–5, 84836–0.

Supreme Court of Washington,

En Banc.

Argued Feb. 8, 2011.

Decided June 7, 2012.

Janet G. Gemberling, Janet Gemberling PS, Spokane, WA, Dennis W. Morgan, Attorney at Law, Republic, WA, for Petitioners.

Mark Erik Lindsey, Spokane County Prosecutor's Office, Spokane, WA, for Respondent.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.

Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, amicus counsel for Washington Association of Prosecuting Attorneys.

FAIRHURST, J.

[174 Wash.2d 686]¶ 1 Before the court are two consolidated cases based on the same facts. Robert A. Brown and Theodore M. Kosewicz were both involved in the kidnapping, torture, and killing of Sebastian Esquibel. At trial, Brown was convicted of first degree kidnapping and felony murder with the predicate felony being the first degree kidnapping. At a separate trial, Kosewicz was convicted of first degree kidnapping and first degree aggravated murder with the aggravating factor being the first degree kidnapping. On appeal, both Brown's and Kosewicz's first degree kidnapping convictions were overturned because of a charging defect. The Court of Appeals did not overturn Brown's felony murder conviction or Kosewicz's aggravating factor verdict. Brown and Kosewicz argue that reversal of the first degree kidnapping convictions requires reversal of the felony murder and aggravating factor verdict that were based in part on the first degree kidnapping. We affirm Brown's felony murder conviction and Kosewicz's aggravating factor verdict.

FACTS

¶ 2 On January 16, 2006, Sebastian Esquibel's body was found buried beneath a woodpile with his hands and feet bound in jumper cables and a gunshot wound to the back of his head. The facts leading up to this murder were testified to as follows. Levoy Burnham was living in a fifth wheel trailer located on Brown's property. Burnham had given Esquibel $800 for a scheduled drug deal with Carlton Hritsco. Esquibel failed to deliver the drugs to Burnham or to return Burnham's money. Burnham brought Esquibel to his trailer, stripped him down to his underwear, and tied him up. Esquibel was intimidated and beaten over the course of two days by various people in an attempt to recover the missing money. Kosewicz and Brown were both involved at various times in this ordeal.

¶ 3 Brown admitted to detectives that while he was at the trailer, he guarded Esquibel with a gun, struck him in the head, and yelled at him. He also admitted checking on Esquibel's claimed connections with a local gang and advised Burnham and the other captors that Esquibel, in fact, had no such connections. Brown eventually distanced himself from the situation, although he continued to monitor it from his house.

¶ 4 Burnham's wife, Shannon Burnham, testified that Kosewicz arrived at the trailer for a short time. Ms. Burnham testified that Kosewicz interrogated Esquibel about the money and joined in the punching and kicking of Esquibel. Kosewicz consistently disputed this testimony, claiming that he never harmed Esquibel. Kosewicz left the trailer with Esquibel still restrained inside.

¶ 5 The next day, Burnham and two others took Esquibel by van to various places where Esquibel unsuccessfully tried to get the money. Brown did not go in the van with Esquibel, but Burnham picked up Kosewicz on the way. At some point, Esquibel's captors lost patience and drove the van far out into the countryside. Burnham and Kosewicz exited the van with Esquibel and shot him in the head. Whether Kosewicz actually pulled the trigger is not clear, but Kosewicz, Burnham, and Esquibel walked away from the vehicle, a shot was fired, and only Kosewicz and Burnham returned.

[174 Wash.2d 688]¶ 6 The State charged Brown with several crimes, only two of which are relevant in this appeal—felony murder and first degree kidnapping. The felony murder charge was predicated on the felony of kidnapping in the first degree. The information expressly limited Brown's first degree kidnapping charge by specifying that Brown, as an actor or accomplice, kidnapped Esquibel “with intent to inflict bodily harm.” ¹ Clerk's Papers (CP) (Brown) at 148. However, Brown's felony murder charge did not include the same limitation; the information alleged that Brown, as an actor or accomplice, murdered Esquibel in the course of “First Degree Kidnapping.” CP (Brown) at 148. At trial, Brown's defense centered on disputing his accomplice liability. Although Brown admitted to detectives that he had hit, yelled at, and held Esquibel at gun point, his attorney summed up Brown's defense as follows:

The things you are going to hear from the evidence today are that Mr. Brown was not part of this group. That is so very, very important. I hope I can have your detailed attention to that, to watch his individual actions in comparison with the group. The evidence is going to show that the group is Mr. Levoy Burnham, Carlton Hritsco, Theodore Kosewicz, Shannon Burnham to some degree, Amber Johnson, David Collins. This is the group. The evidence will show that these are the people that actually acted as accomplices, that aided in some way toward this goal that the state is here to prove today, the goal of kidnapping, the goal of murder. Their actions you will see. Mr. Brown's actions on the outside. The evidence is going to show that.

III Verbatim Report of Proceedings (VRP) (Brown) at 383.

¶ 7 In a separate trial, the State also charged Kosewicz with several crimes, including premeditated murder in the first degree with aggravating circumstances and kidnapping in the first degree. The aggravating circumstance was that the murder was committed during the first degree kidnapping. Similar to Brown, the State expressly limited the charge of kidnapping in the first degree, whether as an actor or accomplice, to kidnapping “with intent to inflict bodily injury.” CP (Kosewicz) at 36. However, in the charge of premeditated murder in the first degree with aggravating circumstances, the State did not include the same limitation, stating only that the murder was alleged to have occurred in the course of “kidnapping in the first degree.” CP (Kosewicz) at 36. Kosewicz's defense also centered on disputing his accomplice liability. Kosewicz admitted to detectives that he knew Burnham wanted to scare Esquibel but that he had no knowledge of any intent to physically harm Esquibel. At trial, Kosewicz clarified that the purpose for his presence in the van was “[j]ust to have [Burnham's] back, to make sure that nobody gets [Burnham] while he's trying to get [Esquibel] back.” VRP (Kosewicz) (Jan. 28, 2008) at 35–36. Kosewicz disputed the prosecution's assertion that he intended to scare Esquibel, or that he had ever told detectives that was his intent. Kosewicz consistently maintained throughout the trial that he neither physically harmed Esquibel nor knew of anyone else's intent to kill Esquibel. Thus, Kosewicz's defense appears to be that his mere presence was insufficient for him to be found guilty of kidnapping and murder.

¶ 8 The jury instructions in both Brown's and Kosewicz's trial defined kidnapping in the first degree as “[a] person commits the crime of kidnapping in the first degree when he or she intentionally abducts anotherperson with intent to inflict bodily injury on the person or to inflict extreme mental distress on that person or on a third person.” CP (Brown) at 358; CP (Kosewicz) at 97. Neither Brown nor Kosewicz objected to this instruction on the ground that it included the alternative means of intent to inflict extreme mental distress in addition to intent to inflict bodily injury. Brown was convicted of kidnapping in the first degree, and felony murder, with the predicate felony being kidnapping in the first degree. Kosewicz was convicted of kidnapping in the first degree and premeditated murder in the first degree. In connection with the premeditated murder charge, the jury returned a special verdict finding the aggravating circumstance that Kosewicz's murder was committed in the course of kidnapping in the first degree.

¶ 9 In unpublished opinions, the Court of Appeals reversed both Brown's and Kosewicz's kidnapping convictions. State v. Kosewicz, noted at 150 Wash.App. 1055, 2009 WL 1765941; State v. Brown, noted at 156 Wash.App. 1035, 2010 WL 2403353. The Court of Appeals held that the trial court's instructions violated Brown's and Kosewicz's right to adequate notice of the charges against them because the instructions made it possible for the jury to convict Brown and Kosewicz of kidnapping in the first degree under an alternative means that was not included in their informations. Kosewicz, 2009 WL 1765941, at *4–5;Brown, 2010 WL 2403353, at *2–3. Despite reversing the kidnapping convictions, the Court of Appeals upheld Brown's felony murder conviction and Kosewicz's premeditated murder with aggravating circumstances conviction. Kosewicz, 2009 WL 1765941, at *5;Brown, 2010 WL 2403353, at *5. Brown and Kosewicz appealed, and we consolidated their cases and granted review solely on the issues of whether the validity of the felony murder and aggravated murder convictions was affected by the reversal of the kidnapping convictions. State v. Brown, 170 Wash.2d 1002, 245 P.3d 226 (2010); State v. Kosewicz, 168 Wash.2d 1026, 230 P.3d 1060 (2010). ²

ANALYSIS

¶ 10 Because both Brown's and Kosewicz's first degree kidnapping convictions were reversed on the ground that the defendants were provided insufficient notice, we must decide whether that inadequate notice permeated the informations, requiring reversal of Brown's felony murder conviction and Kosewicz's aggravating factor verdict. The accused in a criminal case has a...