State v. McCreven

• Decision Date: 05 September 2012
• Docket Number: No. 39598–3–II, 39705–6–II, 40105–3–II, 39688–2–II.,39598–3–II, 39705–6–II, 40105–3–II, 39688–2–II.
• Citation: 284 P.3d 793
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mike Robert MCCREVEN, Appellant. State of Washington, Respondent, v. Barry Ford, Appellant. State of Washington, Respondent, v. Terry Nolan, Appellant. State of Washington, Respondent, v. Carl Lee Smith, Appellant.

284 P.3d 793

STATE of Washington, Respondent,

v.Mike Robert MCCREVEN, Appellant.

State of Washington, Respondent,

v.Barry Ford, Appellant.

State of Washington, Respondent,

v.Terry Nolan, Appellant.

State of Washington, Respondent,

v.Carl Lee Smith, Appellant.

No. 39598–3–II, 39705–6–II, 40105–3–II, 39688–2–II.

Court of Appeals of Washington,

Division 2.

Sept. 5, 2012.

Jennifer M Winkler, Nielson, Broman & Koch, PLLC, Seattle, WA, Mary Katherine Young High, Attorney at Law, Tacoma, WA, Lise Ellner, Attorney at Law, Vashon, WA, Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellants.

Melody M. Crick, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondents.

QUINN–BRINTNALL, J.

¶ 1 A jury found appellants Terry Nolan, Mike McCreven, Barry Ford, and Carl Smith guilty of second degree felony murder by assault for the death of Dana Beaudine. The same jury also found that Nolan assaulted Vincent James with a deadly weapon, a sap,¹ when James tried to come to Beaudine's aid. In this consolidated appeal, the codefendants ² challenge their convictions, asserting 62 assignments of error.³ Smith and McCreven filed statements of additional grounds (SAG).⁴

¶ 2 In the 574 pages of briefing, the parties present a number of legal issues for our review, including challenges to (1) the trial court's ruling admitting Bandidos motorcycle gang evidence, (2) the prosecution's closing argument, (3) the jury instructions defining self-defense, and (4) the sufficiency of the evidence supporting the jury's verdicts. In this opinion, we focus primarily on the issues dispositive of the appeal. Our review of the record of this protracted trial reveals that the Bandidos evidence was inadmissible and unduly prejudicial, that the challenged portions of the prosecution's closing argument were improper, and that the jury instructions defining self-defense were also improper. These errors require that we reverse the codefendants' convictions, vacate their sentences, and remand for a new trial.

FACTS

¶ 3 On April 5, 2008, Beaudine died after being stabbed with a knife several times during a fight in the Bull's Eye Sports Lounge parking lot in Spanaway, Washington. A Pierce County Sheriff's Department investigation led to the arrest of the four codefendants the following morning. Investigating officers recovered a knife and a sap from the Bull's Eye's parking lot.

¶ 4 On April 9, the State charged the codefendants with second degree murder by second degree assault while armed with a deadly weapon, a knife. RCW 9A.32.050(1)(b); RCW 9A.36.021(1)(c); RCW 9.94A.510, .535(3)(w); former RCW 9.94A.533 (2007); former RCW 9.94A.602 (1983). The State also charged the codefendants with second degree assault with a deadly weapon, a sap, for an assault on James, whom the State alleged was struck on the head with the sap while attempting to come to Beaudine's rescue. RCW 9A.36.021(1)(c). On January 30 and March 13, 2009, the State filed amended informations alleging an aggravating circumstance: that James was acting as a good Samaritan. RCW 9.94A.510; former RCW 9.94A.533; former RCW 9.94A.602. The codefendants pleaded not guilty to both charges.

¶ 5 A jury trial began on April 9, and proceeded for two months.⁵ The State called 24 witnesses, Nolan called 1 witness, and Smith and McCreven each called 3 witnesses. The parties gave their closing arguments to the jury on June 9. On June 15, the jury found all four codefendants guilty of second degree murder while armed with a deadly weapon. The jury also entered a verdict finding only Nolan guilty of second degree assault while armed with a deadly weapon for the assault on James. The codefendants timely appeal.

DISCUSSION

Motorcycle Club Evidence

¶ 6 The codefendants assert that the trial court erred by admitting irrelevant, prejudicial motorcycle club evidence. Specifically, the codefendants argue they were denied their rights to a fair trial by the State's introduction of prejudicial Hidalgos motorcycle riding club membership evidence and irrelevant Bandidos motorcycle gang evidence. The codefendants further argue that the trial court did not conduct the required ER 404(b) analysis on the record and that the trial court's limiting instructions were inadequate to cure the prejudice from the erroneous admission of the evidence.

¶ 7 For its part, the State asserts it offered the evidence to prove identity as permitted by the trial court's order in limine. In its brief, the State argues that the evidence was also admissible as res gestae or under the ER 404(b) motive exception. As to proving accomplice liability, the State argues that the associational evidence showing an existing friendship amongst the codefendants was necessary and relevant. We hold that the trial court erred by admitting the Bandidos-related evidence because it failed to conduct the required ER 404(b) analysis on the record. In addition, on this record, the State failed to meet the prima facie case for admission of the Bandidos evidence for any proper purpose. Last, although the State asserts it offered the evidence to prove identity, our review of the record reveals that it used the evidence improperly as character evidence.

A. Motions in Limine

¶ 8 The codefendants moved in limine to exclude evidence of motorcycle club membership, paraphernalia, jackets, and t-shirts on First Amendment rights to association and relevancy grounds. The trial court denied the motion in part, allowing the State to offer evidence of the codefendants' clothing alleged to have been worn on the night of the incident to prove identity. The trial court granted the portion of the codefendants' motion to prohibit the State from offering membership evidence to prove association and from offering other motorcycle club paraphernalia found in the codefendants' homes unrelated to the events on the night in question.

B. Bandidos Motorcycle Gang Evidence

¶ 9 In addition to the Hidalgos clothing which the State alleged the assailants wore on the night of Beaudine's death, the State also offered photographs depicting Ford wearing a motorcycle riding vest with a button that read, “I support the Bandidos,” Smith wearing a Bandidos t-shirt, McCreven's motorcycle with a Bandidos decal, and McCreven's disorderly bedroom and closet showing several motorcycle riding vests and chaps. 7 Report of Proceedings (RP) at 947. The codefendants objected repeatedly to the photographs on the grounds that their admission violated the trial court's ruling in limine, and that they were prejudicial, irrelevant, and duplicative. The codefendants asked that the photographs be cropped such that the Bandidos insignia would not be shown. The trial court denied the request.

¶ 10 After hearing extensive argument, the trial court admitted the photographs, stating, “The issue in this case is the identity of the persons who were involved in this fight.” 7 RP at 899. The trial court reasoned that because the codefendants pleaded not guilty, identity was “a big issue” and found that the photographs “simply go to the issues of identity.” 7 RP at 899. The trial court stated that it would be willing to give “some sort of a limiting instruction on the constitutional protected rights of association, if it's crafted correctly.” 7 RP at 899.

C. Limiting Instructions

¶ 11 The codefendants proposed a limiting instruction that the photographs of clothing were “offered for the limited purposes the defendants may own clothing similar to that depicted and they may not be considered for any other purpose.” 7 RP at 890. The State objected, arguing that the photographs showed the codefendants knew each other, which was relevant because the State had charged them as accomplices. The codefendants countered that the trial court had already ruled that evidence showing mere association or membership would not be admitted. Ultimately, defense counsel argued that a limiting instruction could not cure the prosecutor's improper use of the photographs to establish guilt by association with the Bandidos.

¶ 12 The trial court declined to give the codefendants' proposed limiting jury instructions. Instead, the trial court instructed the jury that “[e]vidence has been introduced in this case on the subject of defendant's association with The Hidalgos motorcycle club. The mere association with a motorcycle club is a protected constitutional right. Any discussion of the evidence during your deliberations must be consistent with this limitation.” Clerk's Papers (CP) at 1189. The trial court also instructed the jury that “[c]ertain evidence has been admitted in this case for only a limited purpose. This evidence consists of photographs depicting motorcycle garb and/or club affiliation and maybe considered by you for the purpose of identification. Any discussion of the evidence during your deliberations must be consistent with this limitation.” CP at 1190.

D. Standard Of Review

¶ 13 We review a trial court's decision to admit or exclude evidence under ER 404(b) for abuse of discretion. State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995); State v. Campbell, 78 Wash.App. 813, 821, 901 P.2d 1050 (citing State v. Dennison, 115 Wash.2d 609, 628, 801 P.2d 193 (1990)), review denied,128 Wash.2d 1004, 907 P.2d 296 (1995). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Powell, 126 Wash.2d at 258, 893 P.2d 615. We will not disturb a trial court's ruling on the admissibility of evidence if it is sustainable on alternative grounds. State v. St. Pierre, 111 Wash.2d 105, 119, 759 P.2d 383 (1988).

E. ER 404(b)Analysis

¶ 14 Evidence is relevant if it has any tendency to make the existence of any material fact more or less probable. ER 401. Even relevant evidence may be inadmissible if the danger of unfair prejudice substantially outweighs its probative value. ER 403. The danger of unfair prejudice exists when evidence is likely to stimulate an...