State v. Stovall
| Decision Date | 18 February 2003 |
| Docket Number | No. 43741-1-I., No. 44247-3-I |
| Citation | 63 P.3d 192,115 Wash.App. 650 |
| Parties | STATE of Washington, Respondent, v. Salathiel STOVALL, Appellant. State of Washington, Respondent, v. Roxanne Elizabeth Roberts, Appellant. |
| Court | Washington Court of Appeals |
Eric Nielsen, Nielsen Broman & Koch, PLLC, Seattle, for Appellant, Stovall.
David L. Donnan and Shannon B. Marsh (of Washington Appellate Project), for Appellant Roberts.
Erin E. Ehlert, King County Pros. Attorney Office, Seattle, for Respondent.
In these appeals we are called upon to determine under what circumstances an erroneous jury instruction that allowed the jury to convict a defendant of accomplice liability based on his participation in a crime other than the charged crime, is harmless.1 We conclude that, if evidence of an uncharged crime is before the jury, and the State argues that the defendant's participation in such crime triggered liability for the specific crime charged, reversal is required.
Roxanne Roberts also argues that under the Washington Constitution, harmless error analysis cannot apply to jury instructions which relieve the State of its burden to prove an element of the crime charged. Based upon our Supreme Court's recent decision in State v. Brown,2 an independent state constitutional analysis is not required.
During an undercover buy/bust operation in which Officer Darren Chinn posed as a prospective buyer, Chinn asked Salathiel Stovall if he knew anyone who would sell him a "forty", a slang term for $40 worth of rock cocaine. Stovall said he did not have any, but his friend Mark up the street had some.
Stovall directed Chinn to pull forward and park, while Stovall ran ahead on foot. Chinn testified that at this point, a second person, Irbey Sankey, suddenly appeared.
Sankey and Stovall spoke briefly, then Sankey approached Chinn and sold him $40 worth of cocaine. Stovall stood on the sidewalk about 15 feet away from Chinn's car during the transaction. Immediately after Sankey left, Stovall went to Chinn and asked if he could have a small piece of the cocaine Chinn had just purchased. Chinn refused, but gave Stovall a five dollar bill. Both Sankey and Stovall were arrested shortly thereafter.
Stovall testified that Sankey was unknown to him before the incident, and that Sankey had interrupted his attempt to have Chinn buy from his friend, Mark. Instead, when Sankey learned from Stovall that Chinn was interested in purchasing cocaine, he ran to the car and made the transaction with Chinn himself.
The State charged Stovall with delivering cocaine. Although Stovall admitted he had attempted to secure cocaine for Chinn, he steadfastly denied any involvement in the actual cocaine transaction between Sankey and Chinn. In closing, the prosecutor argued that Stovall was guilty as an accomplice to the actual transaction, but also because Stovall had admitted that he tried to arrange a drug transaction between Chinn and Stovall's friend, Mark. The prosecutor argued that because Stovall was assisting in "a" crime, it did not matter that someone other than the intended seller actually sold the cocaine.
Stovall was convicted as an accomplice to delivery of a controlled substance, and now appeals.
Seattle police officer Todd Brothers was working undercover as part of a buy/bust operation in downtown Seattle. He approached Carmen Creamer and asked her if she could get him some crack cocaine. Carmen agreed, and told Brothers to follow her to the St. Regis hotel, where she would procure the cocaine. As the two were walking to the hotel, Roxanne Roberts approached Creamer and asked her for $20 to get a room for the night. The officer then asked Roberts if she could "set [him] up." Roberts allegedly agreed that she would help him find cocaine in return for $20, and all three continued walking to the hotel.
Roberts and Creamer instructed Brothers to wait outside while they entered the hotel. According to the State's witnesses, once inside the hotel, the two women split up to try to find cocaine. Roberts asked the desk clerk to call one of the rooms for her. When there was no answer, Roberts approached a man in the lobby and asked him if he could "set [her] up." The man told Roberts that he would not help her because she still owed him money from previous drug transactions. Roberts then left the lobby and waited outside with Brothers. Roberts reentered the hotel but again returned alone and empty handed. While waiting with Brothers, Roberts confirmed that she would receive $20 for her assistance if Brothers obtained cocaine.
Creamer emerged from the hotel, and gave Brothers two pieces of crack cocaine. Brothers then handed $50 to Creamer stating, "There's $30 for the dope and $20 for [Roberts]." Creamer and Roberts walked away together and Creamer handed Roberts $20. The two were arrested soon thereafter. When the arresting officer told Roberts she was under arrest, Roberts exclaimed, "I didn't sell drugs to anybody." A search of Roberts' jacket yielded a crack pipe with cocaine residue.
Roberts was charged and convicted of the crime of delivery of a controlled substance. She appeals.
In each trial, the court instructed the jury using the standard accomplice liability instruction, Washington Pattern Jury Instruction 10.51 (WPIC).3 Stovall and Roberts argue that this instruction relieved the State of its burden of proving every element of the crime of delivery of a controlled substance, because it did not specify that an accomplice has to have knowledge that his or her acts will promote the specific crime charged. In State v. Cronin4 and State v. Roberts,5 the Supreme Court held that a defendant may not be convicted on the basis of accomplice liability unless the defendant had specific knowledge of the crime charged. In so holding, the court invalidated WPIC 10.51.6
The State concedes that the accomplice liability instruction contains the same language held to be defective in Cronin, but argues that giving the instruction in these cases was harmless error.7 The State asserts that there was no evidence or argument that the defendants may have committed another, uncharged offense. Thus, the fact that the words "a crime" were used in the instructions did not affect the outcome of the trial because the jury was only concerned with whether the evidence was sufficient to convict the defendants for the crime that was charged.
The Washington Supreme Court recently explained that an erroneous accomplice liability instruction may constitute harmless error in State v. Brown.8 Under Brown, "[a]n erroneous instruction is harmless if, from the record in a given case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."9 The court explained that where evidence shows that a defendant facing multiple charges acted as a principal in any of the crimes charged, the difference between "a crime" and "the crime" in the accomplice instruction is harmless with respect to those charges.10 But if the evidence pertaining to one or more of the charges shows no direct participation by the defendant as a principal, and the jury may have found the defendant guilty as an accomplice based on his involvement in some crime other than the specific crime charged, the erroneous accomplice liability instruction is not harmless error.11
This analysis applies equally to situations where the jury may have found the defendant guilty as an accomplice based upon his involvement in an uncharged crime. In State v. Bui,12 consolidated with Cronin, Bui drove his car into the path of an opposing gang's car in order to block its path. Bui's passenger then exited the car and began shooting at the opposing gang members.13 Bui was later arrested and charged with three counts of assault in the first degree as an accomplice.14 The prosecutor argued in closing that it was not necessary that Bui knew that his passengers were going to open fire on another car's occupants. By chasing the opposing gang member's car, and blocking its path, and letting his passengers get out, he knew that he was facilitating "harrassment, physical assault, any crime."15 The court concluded that under those circumstances the incorrect instruction on accomplice liability was not harmless error.16 Thus, if evidence of an uncharged crime is before the jury, and the State argues that the defendant's participation in "any" crime triggered liability for the specific crime charged, reversal is appropriate.
Stovall did not act as a principal in delivering the cocaine from Sankey to Chinn. In closing argument, the prosecutor argued that Stovall was guilty as an accomplice because he facilitated the actual transaction that occurred. However, he also argued that Stovall was guilty as an accomplice even if he had not aided in the actual drug sale that occurred, because Stovall admitted he attempted to arrange a drug transaction between Chinn and Mark. The prosecutor asserted that because Stovall was assisting in "a crime," namely attempting to facilitate a delivery between Chinn and Mark, it did not matter that it was Sankey, and not the intended Mark, who delivered the cocaine. Thus, the jury could have believed Stovall had nothing to do with the delivery between Chinn and Sankey, yet could have reasonably concluded under the erroneous instruction and the prosecutor's closing argument, that Stovall's participation in the uncharged crime of attempted delivery between Chinn and Mark ("a crime") triggered his liability for the actual delivery of cocaine ("the crime"). The instruction was therefore not harmless.
We therefore reverse, and remand for a new trial with a proper accomplice instruction.
Roberts argues similarly that she did not participate in the crime charged, i.e., Creamer's delivery of...
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...117 Wash.App. 831, 843-44, 73 P.3d 402 (2003), aff'd on other grounds, 152 Wash.2d 333, 96 P.3d 974 (2004); State v. Stovall, 115 Wash. App. 650, 652, 657, 63 P.3d 192 (2003), review denied sub nom. State v. Roberts, 150 Wash.2d 1021, 81 P.3d 119 (2003); State v. Grendahl, 110 Wash.App. 905......
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