State v. Stein
| Decision Date | 26 February 1999 |
| Docket Number | 21767-8-II,Nos. 20813-0-I,s. 20813-0-I |
| Citation | 94 Wn.App. 616,972 P.2d 505 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. John Kenneth STEIN aka Jack Stein, Appellant. In re the Personal Restraint Petition of: Jack K. Stein, Petitioner. |
William D. Hutcheson Jr., Olympia, for Appellant.
Dennis Hunter, Clark Co Deputy Pros Atty, Vancouver, for Respondent.
Jack Stein appeals his convictions of three counts of attempted murder and one count of burglary. We conclude that the court's instructions erroneously allowed the jury to convict Stein on the basis of vicarious liability without finding that he was legally accountable as an accomplice. 1 Because this is prejudicial error, we reverse.
Jack Stein believed that a group of people, including his father's appointed guardian, Ned Hall, and his father's long-term companion, Thelma Lund, were conspiring to control and deprive him of the substantial assets in his father's estate. As a result, in 1983, he asked his stepson, Michael Norberg, if he could find someone who "could arrange an accident for these people that were involved." Stein said that he would pay $10,000 for each person eliminated.
The relationship between Stein and attorney Hall continued to deteriorate and in the spring of 1987, Stein gave Norberg "flash cash" to use in enticing one of his friends to help. After Norberg "flashed" a large amount of cash, Richard Bailey agreed to do a "job."
Stein provided Norberg a key to Lund's home and in April 1987, Lund was severely beaten and strangled to death in her home. Norberg later testified that Bailey went into Lund's trailer to threaten her, but killed her instead. But Bailey said that Norberg killed Lund in her trailer while he hid in the bushes.
After Lund's murder, Stein took Norberg to Hall's hunting cabin in Oregon and discussed it as a potential spot for an isolated confrontation. Norberg said that he gave Bailey the "exclusive rights" for the "hit" of Hall to satisfy Bailey's demands for payment for the Lund killing.
In June 1987, Bailey, Norberg, and others participated in three separate unsuccessful attempts to kill or intimidate Hall. The first involved Bailey, Norberg, Gordon Smith, and Steve Conley. The foursome went to Hall's house armed with bottles filled with a Naptha soap-gasoline mixture. They intended to "scare Ned Hall" by igniting the bottles. Bailey testified that he and Smith carried the bottles to the edge of Hall's back yard, but then ran away leaving the bottles behind.
The second attempt was three to five days later. Bailey testified that he and Smith went to Hall's house after Norberg provided them each with a handgun and promised to pay Bailey if he killed Hall. Hall said a man rang his doorbell at 4:30 a.m. and asked to use the telephone; Hall did not open the door. Later, another man rang Hall's doorbell. Hall spoke to the man briefly through an open window. Norberg testified that he was unaware of this second occurrence until after it happened.
The third attempt on Hall occurred on June 14, 1987, when Smith, Norberg, Bailey, and Bailey's brother went to Hall's house armed with weapons. Norberg remained at the corner of the yard to watch the road while Smith climbed into the house through the bathroom window. When Hall started to enter the bathroom, Smith fired a shot through the door, dove out the window and ran with the Baileys, leaving Norberg behind.
Norberg testified that he had told the others before leaving that night that "they weren't to do any more activity over at Ned Later in the summer, Stein expressed his satisfaction to Norberg and Bailey that the attempts on Hall's life had led to Hall's resignation. According to Bailey, Stein told him that payment for his services would soon be forthcoming, but that first he wanted Bailey to blow up the Clark County Courthouse and kill a judge. Stein also indicated that "he still wanted Ned Hall done in."
Hall's house." He also claimed that "[t]hey weren't attempting to kill Ned Hall, they were attempting to persuade him[ ]" and that he had gone along to observe the "persuasion" and verify that it was completed. After this third attempt, Ned Hall resigned as Nicholas Stein's limited guardian
Following an investigation, the State charged Stein with the following criminal counts:
I. conspiracy with Michael Norberg, Gordon Smith, and Richard Bailey to commit first degree murder, RCW 9A.28.040(1) and (3)(a);
II. felony first degree murder of Thelma Lund, RCW 9A.32.030(1)(c);
III. aggravated first degree murder of Thelma Lund, RCW 9A.32.030(1)(a), based upon the aggravating factors of solicitation, RCW 10.95.020(5), and commission of the murder during the course of burglary, former RCW 10.95.020(9)(c) (1981);
IV.-VI. criminal attempts to commit the first degree murder of Charles (Ned) Hall on June 1, 1987, between June 2 and June 13, 1987, and June 14, 1987, RCW 9A.28.020(1) and (3)(a);
VII. burglary in the first degree, RCW 9A.52.020.
Ultimately, the State based Counts II through VII upon vicarious liability. RCW 9A.08.020.
The jury acquitted Stein of Counts I through III but convicted him of Counts IV through VII, the three attempts to murder Ned Hall and the burglary. The trial court sentenced Stein to 180 months for each count of attempted first degree murder and ordered that he serve the sentences consecutively.
In this appeal, 2 Stein claims that the trial court erred in (1) instructing the jury on vicarious liability; (2) denying his motion to remove trial counsel and trial counsels' motion to withdraw; and (3) allowing another judge to testify about earlier civil proceedings involving Stein. Stein also claims that (4) the prosecuting attorney's pre-charging bias violated the appearance of fairness doctrine; (5) the State knowingly presented perjured testimony; (6) cumulative evidentiary errors denied him a fair trial; and (7) the State's evidence was insufficient as a matter of law to prove accomplice liability. (8) Stein also appeals his consecutive sentences for the three attempted murder counts, contending that they should be concurrent.
Pro se, Stein argues that: (1) the court violated his speedy trial rights; (2) recantation affidavits by key State witnesses require reversal or a new trial; (3) professional misconduct by various officials violated due process; (4) the trial court improperly denied Stein's request for appointed counsel on appeal; and (5) appellate counsel's deficient performance on his first appeal resulted in unconstitutional delay of his direct appeal. Stein raises identical issues in his Petition for Habeas Relief, which we have consolidated with his direct appeal. 3
I. VICARIOUS LIABILITY INSTRUCTIONS
The trial court gave the following vicarious liability instructions:
Instruction 16
A person is legally accountable for the conduct of another person when the defendant is an accomplice of such other person in the commission of the crime.
A defendant who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A defendant is an accomplice in the commission of a crime, if, with knowledge that it will promote or facilitate the commission of the crime, he either:
(1) solicits, encourages, or requests another person to commit the crime [;] or
(2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support or presence.
A person is guilty of a crime if it is committed by the conduct of an accomplice for which he is legally accountable.
A person legally accountable for the conduct of an accomplice may be convicted on proof of the commission of the crime and of his complicity therein, though the person claimed to have committed the crime has not been prosecuted or convicted or has been convicted of a different crime or degree of crime.
A person is also legally accountable for the conduct of another person when the defendant is a co-conspirator of such other person, and the acts or conduct of the other person are a reasonably foreseeable consequence of the unlawful agreement.
When a defendant, with intent that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause the performance of such conduct, he becomes a member of a conspiracy, and continues to be a member of such conspiracy, and is responsible for all the acts of all members of the conspiracy regardless of whether or not he met or conversed with all the other members of the conspiracy, and regardless of whether or not he had knowledge of the commission of such acts by other members of the conspiracy, so long as the acts of the other members of the conspiracy were reasonably forseeable as acts done in furtherance of the agreement.
We refer to instructions 16 and 17 as the "accomplice liability" instructions and instructions 18 and 19 as the "Pinkerton" instructions. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The trial court also instructed the jury, in instruction 8, that:
A separate crime is charged in each count. You should decide each count separately as if it were a separate trial. Your verdict on one count should not control your verdict on any other count.
Stein argues that it was reversible error to give the Pinkerton instructions because the Pinkerton doctrine is not the law in Washington and the Pinkerton instructions improperly allowed the jury to hold him vicariously liable without finding him guilty of all the elements of accomplice liability. He argues, alternatively, that even if the Pinkerton doctrine was the law in this State, the trial court's instructions are defective because they do not include all the necessary elements. Finally, Stein contends that defense co...
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