State v. Mee

• Decision Date: 08 May 2012
• Docket Number: No. 40344–7–II.,40344–7–II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michael Anthony MEE, Appellant.

275 P.3d 1192

STATE of Washington, Respondent,

v.Michael Anthony MEE, Appellant.

No. 40344–7–II.

Court of Appeals of Washington, Division 2.

May 8, 2012.

Steven Witchley, Ellis Holmes & Witchley PLLC, Seattle, WA, for Appellant.

Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

VAN DEREN, J.

¶ 1 Michael Anthony Mee appeals his convictions for first degree murder by extreme indifference¹ and unlawful possession of a firearm. In the published portion of this opinion we discuss Mee's argument that the trial court abused its discretion by denying his motion to exclude evidence of his gang affiliation. In the unpublished portion, we address Mee's argument that the trial court abused its discretion by (1) instructing the jury that it had to be unanimous in order to answer “no” to the question on the firearm enhancement special verdict form, (2) denying defense counsel's request to question the jury about alleged juror misconduct, and (3) denying his motion for a mistrial based on the alleged juror misconduct. We hold that the trial court abused its discretion in finding the gang-related evidence more probative than prejudicial under ER 403 and in admitting it as evidence of motive but, because the error was harmless in the context of overwhelming untainted evidence that Mee fired toward Crystal Roberts' home when he knew that people were present both inside and outside the house at a birthday party, and that a bullet struck Tracy Steele, killing him, we affirm Mee's convictions.

BACKGROUND

¶ 2 On May 9, 2008, Tracy Steele celebrated his 32nd birthday with his fiancee, at his fiancee's home in Tacoma, Washington. Steele left his fiancee's home that evening with his fiancee's aunt, Crystal Roberts, to attend another party at Roberts' home in Tacoma. Roberts invited only family members to her party. D'Andre Sullivan, father of Roberts' children, also lived in the home. Roberts described the party's atmosphere as normal with “[m]usic, food, [and] everybody ... just having a good time.” Report of Proceedings (RP) at 506. The atmosphere changed, however, when uninvited guests Charles Pitts and Jason Greer arrived.² Pitts and Sullivan had known each other since they performed music together when they were younger. According to Roberts, Pitts was a “troublemaker” and a member of the Lakewood Hustler Crips gang. RP at 507.

¶ 3 Roberts believed that Greer left the party after a couple of minutes but that Pitts stayed.³ Pitts' behavior toward the party guests was disrespectful, calling Roberts' sister a “tall A–S–A–B–I–T–C–H,” and telling Roberts that one of her children did not look like the father. RP at 509. Roberts told Pitts to leave, and Pitts asked Sullivan if he could use Sullivan's telephone to call for a ride.

¶ 4 Mee, who referred to himself as “Little Shotty,” showed up at Roberts' house driving Tanya Satack's car. A teenage male who went by the name “Little Shotty Deuce” and three females, including Satack, were in the car with Mee. Mee stopped the car in a manner that caused Sullivan to confront Mee and tell him not to disrespect the neighborhood. Mee responded that he “wasn't scared of anyone,” and he uttered the terms “ ‘cuz’ ” and “ ‘loc.’ ” ⁴ RP at 517.

¶ 5 About 15 minutes after Mee appeared at Roberts' house, four women in a second vehicle drove up. The women in the second car asked Mee why he was there with those “white bitches.” RP at 879–80. Mee argued with the women in the second car and told them to leave; Sullivan also told them to leave.

¶ 6 While Mee and Sullivan were talking, Mee put his hands on Sullivan's chest. Upon seeing this, Sullivan's stepbrother, DeShawn Henry, ran out of the house and hit Mee. A fight broke out and at some point Steele hit Mee. Pitts did not become physically involved in the fight but repeatedly told everyone, “[T]hose are my little homeboys.” RP at 529. As the fight ended, Mee yelled at the top of his voice that he was going to come back. He left with the people who had come with him but Pitts stayed at Roberts' house. Shortly after Mee left the party, he called Greer and told him that someone had “jumped” him and that “Shotty just let him do it and didn't do anything.” RP at 951.

¶ 7 That same evening, Marjorie Morales was drinking liquor in the garage of Hokeshina Tolbert's house in Tacoma with Tolbert, Dan Bluehorse, Jose Cota Ancheta, and Jesus Cota Ancheta.⁵ When they started drinking, they were looking at and passing around a rifle. Mee came to Tolbert's house later that evening with the others who had been in the vehicle at Roberts' home. Mee was the only one who got out of the car. Mee told the people in the garage that he “got jumped by some people.” RP at 723. Mee and the drinking group then discussed how they would retaliate; some wanted to go to Roberts' party and fight, but Mee indicated that he wanted to go and shoot. Bluehorse told Tolbert to get the rifle. According to Tolbert, he grabbed the rifle from the garage, set it down in the yard, and Mee picked it up. According to Jose and Morales, Tolbert or Bluehorse handed the rifle to Mee.

¶ 8 Mee, Jesus, Bluehorse, and Morales got into Morales' car with Jesus driving. Jose sensed that something bad was going to happen and began to walk away down an alley but Morales' car quickly caught up to him, and Jesus told him to get in. Tolbert got into Satack's car and told Satack to follow Morales' car. Both cars headed toward Roberts' home.

¶ 9 As they approached Roberts' home in the vehicle, Jesus turned the car lights off. Jesus stopped the car in front of Roberts' home, and Mee leaned out the window with the rifle and shot two or three times. After the last shot, Jesus drove back to Tolbert's house. Satack lost sight of Morales' car before it got to Roberts' home and, after hearing gunshots nearby, turned her car around and drove away. Moments later, Satack saw Morales' car and followed it back to Tolbert's home.

¶ 10 Steele, Sullivan, Pitts, and others were outside Roberts' house when Mee fired the rifle. When he heard the gunshots, Sullivan ran into the house and yelled for everyone to get down. Everyone in the house took cover and Roberts shoved her children under a bed. A little while later, Sullivan heard a knock at the door. When he answered the door, he saw Steele. Steele ran into the house, shook his head, went to the bathroom, and collapsed. Roberts could see that Steele had been shot.

¶ 11 Steele died from internal bleeding as a result of the gunshot wound. The State charged Mee with first degree murder by extreme indifference and unlawful possession of a firearm.

¶ 12 Before trial, the State filed a motion for an order allowing it to admit gang-related evidence under ER 404(b). Specifically, the State sought to introduce evidence that Mee was a member of the Lakewood Hustler Crips and that other individuals involved in the shooting were members of the Native Gangster Crips. The State also sought to admit evidence of the gang names of various individuals involved in the shooting incident, gang-related slang terminology, typical gang-member behaviors and expectations, and the culture of not cooperating with the police because of gang membership or fear of retaliation from gang members.

¶ 13 The State argued that the gang-related evidence was admissible at trial to prove motive, res gestae, knowledge, and identity. Specifically, the State indicated that it sought to introduce the gang-related evidence for the following reasons: (1) some witnesses only knew Mee and other individuals involved in the shooting by their “street names” or nicknames; (2) Mee may have intended to shoot fellow Lakewood Hustler Crips gang member Pitts because Pitts did not come to Mee's aid when Mee was beaten at the party; (3) some people in the vehicle with Mee were wearing gang-related bandanas when the shooting occurred; (4) some witnesses were reluctant to cooperate with police because they did not want to be a “snitch[ ],” and because Pitts threatened a witness about testifying at trial; (5) to explain how Mee knew where to obtain a gun; (6) to explain why the shooting was a group effort as opposed to Mee acting alone; (7) to “present the accurate truthful story to the jury”; (8) to “dispel some sort of misunderstanding that the Crips are all on the same side”; and (9) to show Mee's possible motive in targeting Pitts for failing to assist him at Roberts' house, as gang rules required. RP at 82–85, 90. Mee objected to the admission of gang-related evidence, arguing that the evidence was not relevant and was unduly prejudicial.

¶ 14 The trial court ruled that the gang-related evidence was admissible to establish Mee's motive. The trial court noted that the State's offer of proof, if supported by the evidence at trial, would establish Mee's gang status and other gang evidence by a preponderance of the evidence, thus supporting its admission. The trial court concluded that it was unnecessary to conduct an evidentiary hearing at that time, but it noted that if the evidence at trial did not conform to the State's offer of proof, it would entertain the possibility of a mistrial.

¶ 15 Several witnesses testified that they knew Mee only by his nickname “Little Shotty” and that they knew other individuals involved in the shooting only by their nicknames. Tolbert testified about gang nicknames, indicating that “Big A would be—the person who started the name. Little A would be the person that is under them ... and then it keeps going smaller and smaller, baby, deuce.” RP (Dec. 10, 2009) at 75. Tolbert also testified that gang members are expected to assist a fellow gang member in a fight and that failing to assist a fellow gang member results in a loss of respect. Jose testified that a gang member's failure to assist a fellow gang member in a fight would result in the member having to fight members of their own gang. Jose further testified that a gang...