State v. Miller, No. 28847-8-II (WA 8/17/2004)
| Decision Date | 17 August 2004 |
| Docket Number | Consolidated with No. 28935-1-II,No. 28964-4-II,No. 28847-8-II,28847-8-II,28964-4-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. SPENCER LEROY MILLER, Appellant. STATE OF WASHINGTON, Respondent v. ROBERT CHARLES BONDS, JR., Appellant. STATE OF WASHINGTON, Respondent, v. TONYA ROCHELLE WILSON, Appellant. |
Appeal from Superior Court of Pierce County. Docket No. 01-1-05476-9. Judgment or order under review. Date filed: 05/24/2002. Judge signing: Hon. Frank E Cuthbertson.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Spencer Miller, Robert Bonds, and Tonya Wilson appeal their convictions for attempted first degree murder. They raise issues concerning speedy trial, amending the charges, jury instructions, polygraph evidence, evidence of a prior bad act, gang affiliation evidence, expert testimony, closing arguments, sufficiency of the evidence, inconsistent verdicts, and cumulative error.1 We affirm.
Robert Bonds and his cousin, Andre Bonds, are two of the thirteen original members of a Tacoma street gang called the Hilltop Crips. Although Spencer Miller was not an original member, he had been a member since the early 1990's. Tonya Wilson was Robert's girlfriend and a Crips `associate.'2
In October 2001, Keith Harrell was living in Tacoma's Hilltop neighborhood. Daron Edwards had been living with him for about seven years. There was an AM/PM store in the same neighborhood. The Crips assert dominion over an area that includes the Harrells' residence and the AM/PM store.
A rival street gang, the Bloods, originated in Compton, California. Edwards grew up in Compton but never belonged to the Bloods.
During the afternoon of October 13, 2001, Andre Bonds and Edwards had a confrontation in front of Harrell's residence. While displaying a gun, Andre said that he was revoking Edwards's Hilltop privileges and that he would return with five of his `homeboys' to enforce the revocation.
Later that night, Edwards went to Browne's Star Grill, a nightclub that the Crips frequented. Andre and Robert Bonds were there, as was Cory Thomas, a friend of Edwards. Andre hit Thomas in the face with Edwards watching. Edwards responded by knocking Andre to the floor and hitting him several times. Robert punched Edwards in the face, and security guards ejected them all.
Outside, Edwards challenged Andre to continue the fight. The two exchanged more blows, with Edwards getting the better of Andre. Robert, Wilson, and Miller were among those watching. Edwards shouted, `This is Compton,' or `I'm Compton,'3 and Miller shouted back, `Fuck California, this is Hilltop.'4 Edwards replied, `{Fuck} the Hilltop.'5 As Edwards was preparing to leave, Robert took a gun from his waistband and said, `Fuck these niggers.'6 A witness named Neecie Brown considered warning Edwards that `they got a gun,'7 but Wilson told her to mind her own business.
Edwards, Thomas, Harrell, and several others returned to Harrell's residence. They had been back about ten minutes when the phone rang. Thomas answered and heard someone say that two of Harrell's friends were surrounded by Hilltop Crips at the AM/PM and feared for their safety.
Thomas, Edwards, and a man named Sinclair quickly drove to the AM/PM. Harrell and a person named Trent went also, but in a separate car. Thomas had a gun, and there was also a gun in Harrell's car. The time was about 2 a.m.
Andre, Robert, Wilson, Miller, and others were already at the AM/PM. Some of them were armed. Andre, Robert, and Miller conferred, then walked to different locations as the cars from Harrell's house arrived. Edwards got out and approached Andre, who was holding a gun. Edwards asked if Andre wanted `another ass whipping.'8 The two exchanged words, Andre got in his car and left. At about this same time, Wilson was slowly driving a station wagon out of the parking lot with Robert as her passenger.
Gunfire then erupted from more than one place. According to several witnesses, it came from the station wagon, from an alley behind the AM/PM, and from across the street near a business called the Absolute Auto Shop. Edwards was shot in the back, hip and arm. Harrell was shot in the head. Both survived, but Harrell remains impaired.
When police arrived, they found two pools of blood and eight shell casings. The guns were never recovered, and Miller later said they had been discarded in Seattle.
On October 22, 2001, Miller was charged with two counts of attempted first degree murder.9 On November 19, 2001, Robert Bonds and Wilson each was charged with two counts of attempted first degree murder, and Robert was charged with unlawful possession of a firearm in the first degree. All three were joined for a trial that lasted seven weeks. The jury convicted as charged and returned special verdicts finding that Robert, but not Miller or Wilson, had been armed with a firearm.
Robert Bonds and Wilson were arraigned on November 19, 2001. Their trial was initially set for December 13, 2001, because, about a month earlier, Miller's trial had been set for that same date. On December 7, 2001, they asked for a continuance, and the court reset trial for January 10, 2002. On January 10, 2002, they asked for another continuance, and the court reset trial for February 13, 2002. Trial began on February 20, 2002. Although Bonds and Wilson argue otherwise, the trial court's orders show that it granted the continuances under CrR 3.3(h)(2).10
Bonds and Wilson claim that the trial court erred by not commencing trial within the time prescribed by CrR 3.3. CrR 3.3(c)(1) provides that trial must begin within 60 days of arraignment. CrR 3.3(h)(2) provides that trial may be continued `when required in the administration of justice and the defendant will not be substantially prejudiced.' CrR 3.3(g)(3) provides that delay granted under (h)(2) shall be excluded from the 60-day period for trial. State v. Dent11 provides that a court may consider the need to maintain joinder with other defendants.
Applying these rules here, we hold that Bonds and Wilson were tried within 60 days, less time properly excluded under CrR 3.3(h)(2) and CrR 3.3 (g)(3). And, even if they were not so tried, any delay was required by the administration of justice because it maintained joinder and was not prejudicial.12
During its case-in-chief, the State moved to amend the charges against each defendant to allege that he or she, with premeditated intent to cause the death of another person, had caused the death of the other person `or of a third person.'13 Bonds and Wilson objected, but the trial court overruled, finding no substantial prejudice.
Bonds and Wilson claim that the trial court erred by granting the State's motion to amend. CrR 2.1(d) permits amendment at any time before verdict if the defendant is not substantially prejudiced. Prejudice exists if, because of the late amendment, the defendant did not receive adequate notice of the charges against him.14 We review only for abuse of discretion.15
The trial court did not abuse its discretion here. Each defendant was charged with attempted first degree murder. Before and after the amendments, each charge alleged each element of that crime. The only effect of the amendment was to manifest that the State was relying on transferred intent, a doctrine embodied in the underlying statute with or without the amendment. Intent was not at the core of either Bonds' or Wilson's defense, for each was claiming mistaken identity (i.e., that he or she was not a shooter). Miller, whose position was similar, expressly acknowledged that he was not prejudiced. The amendment did not significantly affect the charge or defense, and the trial court did not abuse its discretion by allowing it.
The trial court instructed the jury that in order to convict each defendant, it had to find beyond a reasonable doubt that he, she, or an accomplice took a substantial step toward committing first degree murder, with intent to commit first degree murder. The trial court instructed the jury, `The elements of the completed crime of Murder in the First Degree are: (1) with premeditated intent to cause the death of another person and (2) causes the death of such person or of a third person.'16 No one objected to any of these instructions.
Bonds, Wilson, and Miller now claim that these instructions erroneously failed to require the State to prove each essential element of the crime charged. `What was missing,' they say, `was an instruction requiring the jurors to find that {the defendant} or an accomplice, with the premeditated intent to cause the death of a named person, caused the death of that named person or a third person.'17 The State responds that they are attacking a definitional instruction, not a `to convict' instruction, and that a definitional instruction cannot be attacked for the first time on appeal.18
We know of no authority that requires a trial court in an attempt case to include the name of a particular person in its general definition of the underlying crime. Nor do the defendants cite any.19 As a general rule, jury instructions are adequate if they inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case.20 The instructions here did that, and they were not erroneous in the manner claimed.
In a statement made before trial, Wilson agreed to take a polygraph test that was never arranged. The State used some of her statements at trial but not...
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