State v. Levy
| Decision Date | 13 April 2006 |
| Docket Number | No. 75913-8.,75913-8. |
| Citation | 156 Wn.2d 709,132 P.3d 1076 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Percy A. LEVY, Petitioner. |
Peter B. Tiller, The Tiller Law Firm, Centralia, for Petitioner/Appellant.
Constance Mary Crawley, Snohomish Co. Prosecutors Office, Everett, for Appellee/Respondent.
¶ 1 Percy A. Levy seeks reversal of his convictions for first degree burglary, first degree robbery, and unlawful possession of a firearm in the second degree stemming from a home invasion robbery. His primary claim is that several jury instructions constituted judicial comments on the evidence and should be deemed prejudicial per se. He also makes various pro se claims of error by the trial court and the Court of Appeals. We hold that some of the references in the jury instructions were judicial comments on the evidence but that no prejudice resulted. We also hold that the trial court erred in allowing a codefendant's attorney to assert her Fifth Amendment privilege for her, but the error was harmless. The remaining issues are without merit. We affirm the Court of Appeals.
¶ 2 This case involves a home invasion robbery that took place in an apartment described at trial as a "drug house." At the time of the robbery, there were four people in the apartment: Kenya White, the renter, Jerry Mitchell, Mike Montemayor, and Brianna Thorne. Breena Martin entered the apartment, followed a few minutes later by Denise Bowers. Martin took Bowers into a bathroom, gave her a gun, and told her to take it out to a Chevrolet Suburban owned by John Cox in which Levy had just arrived. When Bowers got out to the Suburban, she asked Levy to come back into the house with her.
¶ 3 Although White allowed Bowers back into the apartment, she tried to keep Levy from entering. Levy, however, forced his way in with a cocked gun in his hand. He waved the gun directing White, Thorne, and Mitchell into a bedroom occupied by Montemayor, pointed the gun at Montemayor, and threatened him with a crowbar. Levy told White, Thorne, Mitchell, and Montemayor to give him their money and jewelry. Montemayor tried to protect himself by lifting up the mattress on the bed, thereby revealing some cash under the mattress, which Levy took. When Thorne refused Levy's demand, he hit her on the "side of the head" and took some jewelry from her. Verbatim Report of Proceedings (VRP) at 61. Levy, Bowers and Martin left the apartment and drove away in the Suburban.
¶ 4 White called 911 immediately after Levy, Bowers, and Martin left. Levy was arrested later that day near a Chevrolet Suburban that matched the description of the vehicle in which he had been observed driving away with Bowers and Martin. Police officers found a loaded handgun and tire iron inside the vehicle and found cash and jewelry on Levy.1
¶ 5 Levy was charged with one count of first degree burglary, three counts of first degree robbery, and one count of unlawful possession of a firearm in the second degree. Bowers testified against Levy, but Martin told her attorney she intended to assert her Fifth Amendment right not to testify, and Levy's attorney elected not to call her to assert the privilege in court. The State called Everett Police Officer Jeanne Innes, the police officer who responded to the 911 call and conducted the search of the Suburban. White, Montemayor, Thorne, and Mitchell also testified against Levy for the State.
¶ 6 Cox, the owner of the Suburban, did not testify and Levy did not take the stand. Levy's attorney conducted cross-examinations of all the State's witnesses and elicited testimony of drug use and discrepancies in their statements. Levy did not object to any of the jury instructions. By special verdict, the jury found Levy guilty on all charges except count IV (robbery of Kenya White) and found that he was armed with a revolver, but not a crowbar.
¶ 7 Levy appealed his convictions to the Court of Appeals, Division One. Levy's primary challenge involved five of the jury instructions. He claimed that the instructions constituted judicial comments on the evidence that cannot be subject to harmless error analysis.
¶ 8 Instruction 10 stated, in pertinent part:
To convict the defendant of the crime of burglary in the first degree, as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 24th day of October, 2002, the defendant, or an accomplice, entered or remained unlawfully in a building, to-wit: the building of Kenya White, located at 711 W. Casino Rd., Everett, WA;
....
(3) That in so entering or while in the dwelling or in immediate flight from the dwelling the defendant or an accomplice in the crime charged was armed with a deadly weapon, to-wit: a .38 revolver or a crowbar; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 59 (emphasis added). Instruction 15 stated, in pertinent part:
To convict the defendant of the crime of robbery in the first degree, as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 24th day of October, 2002, the defendant, or an accomplice, unlawfully took personal property to-wit: jewelry, from the person or in the presence of another, to-wit: Michael Montemayor;
....
(5) That in the commission of these acts the defendant or an accomplice was armed with a deadly weapon, to-wit: a .38 revolver or crowbar; and
(6) That the acts occurred in the State of Washington.
CP at 64 (emphasis added). Instructions 16 and 17 contained the same language but named Brianna Thorne (a/k/a April Ames) and Kenya White and referred to Counts III and IV, respectively. Instruction 20 stated:
In regard to Counts I, II, III, and IV, it is alleged that the defendant, or an accomplice, possessed one or more deadly weapons, to-wit: a .38 revolver or a crowbar. To convict the defendant in Counts I, II, III, and IV, the State must prove beyond a reasonable doubt that the defendant possessed one or more deadly weapons. Further, you must unanimously agree as to which deadly weapon or deadly weapons, (a .38 revolver or a crowbar), he possessed.
CP at 72 (emphasis added).
¶ 9 Levy also raised various pro se claims on appeal. In addition, he contended that the trial court violated his right to compel a codefendant to testify in his behalf and that the trial court erred in admitting Cox's consent to search the Suburban.
¶ 10 The Court of Appeals held that some of the "to-wit" references were not judicial comments on the evidence. In particular, it found that the reference to jewelry did not convey an opinion that jewelry was personal property. Likewise, the court stated that references to specific individuals did not impermissibly suggest that the individual qualified as another person. The court concluded, however, that references in other instructions, such as the reference to a revolver or crowbar as a deadly weapon and the reference to White's apartment as a building, arguably were improper comments, but they were harmless. The court denied the pro se claims, ruled that Levy's right to compel witnesses to testify was not denied when the court allowed the codefendant's counsel to assert the codefendant's Fifth Amendment privilege on her behalf, and held that the trial court did not err in admitting evidence of the consent to search.
¶ 11 Levy petitioned for review of the judicial comment issue, several pro se claims of error by the Court of Appeals, the claim that the trial court violated his right to compel a codefendant to testify in his behalf, and the claim that the trial court erred in admitting Cox's consent to search the Suburban. We granted review on all four issues. State v. Levy, 154 Wash.2d 1011, 111 P.3d 263 (2005).
A. Is a reference in a jury instruction to a fact that must be proved by the State a judicial comment on the evidence? If so, what is the effect?
B. Did the Court of Appeals err in declaring the record to be insufficient to examine several pro se issues on appeal?
C. Did the trial court violate Levy's right to compel witnesses to testify by allowing Martin's attorney to make a blanket assertion of Martin's Fifth Amendment privilege on her behalf?
D. Did the trial court err in admitting evidence obtained from the Suburban based on the vehicle owner's signed consent to search?
A. Is a reference in a jury instruction to a fact that must be proved by the State a judicial comment on the evidence? If so, what is the effect?
¶ 12 Levy argues that five jury instructions included judicial comments on the evidence that removed several elements from the jury's consideration at trial and must be considered structural errors that are not subject to harmless error analysis. Alternatively, he argues that even if the errors were not structural, and prejudicial per se, they cannot survive harmless error analysis. The State makes two primary arguments in response. First, it contends that Levy has not shown that the instructions were manifest errors affecting a constitutional right and, because he failed to object to the instructions at trial, he may not raise the issue for the first time on appeal. Alternatively, the State argues that the elements at issue in the instructions were not in dispute at trial, and, thus, any reference to them was harmless.
¶ 13 Levy did not assert that the error was a manifest constitutional error in his petition for review. However, in his brief on the merits, he argued that this court has historically accepted review of challenges to instructions on the grounds that they are judicial comments. The State argues that because Levy did not object to the instruction at trial, in order to establish...
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