State v. Stein
| Decision Date | 12 July 2001 |
| Docket Number | No. 68112-1.,68112-1. |
| Citation | 144 Wash.2d 236,27 P.3d 184 |
| Parties | STATE of Washington, Petitioner, v. John Kenneth STEIN, a/k/a Jack Stein, Respondent. |
| Court | Washington Supreme Court |
Arthur Curtis, Clark County Prosecutor, Dennis Hunter, Deputy, Vancouver, for Petitioner.
Carney, Badley, Smith & Spellman, James Elliot Lobsenz, Seattle, for Respondent.
Jeffrey Sullivan, Yakima County Prosecutor, Lauri McIntire Boyd, Deputy, Yakima, Amicus Curiae on Behalf of Washington Association of Prosecuting Attorneys.
We are presented with a question of the relationship between conspiracy and accomplice liability, and are required to determine whether Washington State law on complicity is consistent with federal law. We conclude that it is not.
John Kenneth Stein (Stein) was charged with various criminal activities including and relating to murder, attempted murder, and conspiracy to commit same. Following trial, the jury found Stein not guilty of conspiracy to commit murder, but guilty of burglary and three counts of attempted murder, all based on vicarious liability. The Court of Appeals reversed the convictions on the grounds that the trial 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. For its decision, the court relied on the Pinkerton doctrine,1 which holds that a defendant cannot be held liable for the foreseeable acts of coconspirators without being found guilty of the underlying conspiracy.2 While we agree with the Court of Appeals that the jury instructions here impermissibly allowed the jury to convict without finding all the elements of accomplice liability, we hold that the Pinkerton doctrine is not applicable under Washington law. We therefore affirm the Court of Appeals, but on different grounds, and remand the case to the trial court for further proceedings consistent with this opinion.
Stein is a highly intelligent man who suffered serious head trauma in 1976, leaving him with severe paranoid delusions. His father Nicholas Stein owned assets worth over $3 million. In 1982, after Nicholas suffered a stroke, attorney Ned Hall was appointed as guardian of the estate. In that capacity, Hall filed a successful suit to set aside a real estate transaction in which Stein had acquired some of his father's property. Hall also helped draft a will leaving 10 percent of the estate to Nicholas Stein's long-time companion Thelma Lund and leaving only one third of the residue to Stein.
In 1983, Stein asked his stepson Michael Norberg to arrange "accidents" for people that Stein believed were depriving him of his inheritance. He offered $10,000 for each person eliminated. Nothing came of the plan until April 1987, when Lund, one of those targeted, was brutally beaten and then strangled to death in her own home.
In June 1987, Norberg and others made three unsuccessful attempts to kill or intimidate Hall, as a result of which Hall resigned as Nicholas Stein's guardian. When Norberg's friend Bailey claimed to have succeeded in murdering Hall, Stein gave Norberg $2,000 to pass on to Bailey. However, Norberg returned the money after discovering that Hall was not dead. Stein said that, although he had achieved the objective of removing Hall as guardian, he still wanted to see Hall dead.
Stein was arrested on July 28, 1988. He was charged with seven counts: conspiracy to commit first degree murder, felony murder of Lund, aggravated first degree murder of Lund, three counts of attempting to commit first degree murder of Hall, and one count of first degree burglary. The case ended in a mistrial.
On retrial, Stein filed a motion to remove his counsel on the grounds of conflict of interest and irreconcilable differences. On June 8, 1989, the trial court denied the motion, finding that Stein had consented to the representation, no conflict of interest existed, and there were no irreconcilable differences. The case proceeded to trial. The jury acquitted Stein of conspiracy and the murder charges related to Lund, but convicted him of four counts related to Hall, all based on vicarious liability. Stein had not excepted to any of the vicarious liability instructions.
After Stein was sentenced to a total of 540 months, he filed a timely notice of appeal. His appellate counsel, Darrell Lee, was sanctioned three times for failure to perfect the appeal. On August 8, 1991, the appeal was dismissed. But on May 15, 1996, the Federal District Court, Bryan J., ordered the appeal reinstated, holding that with minimally effective assistance of counsel on appeal, no reasonable fact finder would have concluded that the defendant was responsible for failure to perfect the appeal. The court also held that the excessive delay in appeal had denied the defendant his due process rights.
Stein later filed a motion for habeas corpus, which was converted to a personal restraint petition and consolidated with the appeal. The Court of Appeals, Division Two, reversed and remanded on the grounds that the court's instructions allowed the jury to convict Stein of vicarious liability for the substantive crimes committed by his alleged coconspirators without finding him guilty of the underlying conspiracy. The State filed a petition for review by this court, and Stein cross-petitioned. We granted review.
The threshold question presented is a procedural one, i.e., whether the trial court's instructions to the jury contained a manifest error affecting a constitutional right, allowing the defendant to challenge the instructions on appeal without having taken exception to them at trial. See State v. Stearns, 119 Wash.2d 247, 250, 830 P.2d 355 (1992); RAP 2.5(a)(3).
An error is manifest when it has practical and identifiable consequences in the trial of the case. State v. Green, 80 Wash. App. 692, 694, 906 P.2d 990 (1995) (citing State v. Lynn, 67 Wash.App. 339, 345, 835 P.2d 251 (1992)). If the instructions allowed the jury to convict Stein without finding an essential element of the crime charged, the State has been relieved of its burden of proving all elements of the crime(s) charged beyond a reasonable doubt, and thus the error affected his constitutional right to a fair trial. A defendant cannot be said to have a fair trial "if the jury might assume that an essential element need not be proved." State v. Smith, 131 Wash.2d 258, 263, 930 P.2d 917 (1997) (citing State v. Johnson, 100 Wash.2d 607, 623, 674 P.2d 145 (1983)). Failure to instruct on an element of the offense is thus error of constitutional magnitude. Id. Here the instructions to the jury may be so construed. Therefore, the error was manifest and of constitutional magnitude. We thus turn to the substantive issue.
The jury was instructed under two alternative theories: conspiracy and accomplice liability. The Washington accomplice liability statute provides that:
RCW 9A.08.020. In contrast, the conspiracy statute provides that:
A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.
RCW 9A.28.040(1). Accomplice liability requires knowledge and a completed crime; conspiracy requires intent and a substantial step towards completion.
The court gave the following vicarious liability instructions, to which the defense made no objection:
Instruction 16
Clerk's Papers (CP) at 957-60.
Instruction 17
Instruction 18
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.
Instruction 19
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...
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