STATE v. BRADY (2003)

PART PUBLISHED OPINION

Henry Brady, Darrell Jones, and Alandis Jones ¹ appeal their jury convictions for first degree burglary, arguing that the trial judge unreasonably limited their voir dire jury questioning by altering each party's allotted time part way through questioning.   We agree and, accordingly, reverse and remand for a new trial.   The defendants raise a number of other issues, including whether the court (1) should have dismissed the charges because of the State's discovery violations, (2) should have severed the cases for trial, (3) improperly excluded potentially exculpatory hearsay statements, and (4) should have dismissed for insufficient evidence.   Of these, we discuss only those issues that are likely to arise on retrial or that would require us to dismiss a charge.

FACTS

One night, Darrell Jones got into a fight with another young man at a house occupied by several young people.   Darrell Jones had come to the house with Henry Brady and Alandis Jones.   After Brady encouraged Darrell Jones to break up the fight, the group (including Brady, Alandis Jones, and Darrell Jones) left.   As they left, one member of the group yelled back to the house, “Anybody that doesn't want to die needs to leave because I'm going to come back with my Mac 10 and shoot up the place.” ²  Report of Proceedings (RP)-Brady at 1706.   One witness said that Brady yelled the threat.

After a while, a car pulled up outside the house with its lights off and all four doors opened.   Someone pounded on the front door.   When no one responded, someone kicked the door open, and one person came in through a window.   The lights in the house were out, but several witnesses believed there were at least two intruders.   One intruder had a gun and pointed it around the room, yelling at everyone to get down.   Witnesses identified Brady and Alandis Jones as two of the intruders.   Someone in the house called the police.

When the police arrived, they saw three people run from the house to a waiting car.   Police caught and handcuffed the runners-Brady, Darrell Jones, and Alandis Jones.   One officer saw Darrell Jones run to a nearby bush;  the police later recovered a gun from near the bush.

Brady told police that he returned to the house to say goodbye to his girlfriend, Katrina.   He did not see a gun, nor did he see anyone kick in a door.   Katrina and her close friend both testified that Katrina was not Brady's girlfriend.   Alandis Jones also denied being involved in the incident.

The State charged Brady, Alandis Jones, Darrell Jones, and the driver of the car with first degree burglary.   The State also charged Darrell Jones, the alleged gunman, with unlawful possession of a firearm.   The jury could not reach a verdict as to the driver, but found the other three guilty as charged.

ANALYSIS

I. Voir Dire

The trial court told counsel that it would allow the State and each of the four defense attorneys two chances to ask all the prospective jurors questions during voir dire.   The court gave 45 minutes to the State to ask questions and allowed 30 minutes for each defense attorney during his or her initial questioning of the panel.

By the middle of the second day of voir dire, the judge warned the parties that they would begin selecting the jury at 11:00 A.M. the next day.   At the beginning of the third day, the judge noted that the remaining two defense attorneys would have 30 minutes to ask questions that morning, and any time left would be split equally among all the attorneys.   He warned that “there may not be a lot of it.”   RP-Brady at 732.   Brady's attorney objected, noting that he had reserved some topics because he believed he would have another chance to talk to the potential jurors.

Near the end of the third day, all of the attorneys finished their first questioning session.³  The court decided there was not enough time for the attorneys to have a second chance to ask questions, deemed that it had allowed adequate time and that all the “appropriate bases” had been covered, and ordered the attorneys to begin making their challenges.   RP-Brady at 796.

All parties objected.   Brady's attorney said that he had intentionally saved four or five topics to cover during the extra time he believed he was entitled to.   He argued that the local rules allow each attorney two questioning sessions.   Darrell Jones's attorney complained that the court said she would have another chance to speak to the jury.   She had six areas she planned to discuss, some new and some she wanted to revisit.   The State also objected because it expected more time to talk to the jurors as the court's original plan had allowed.   The defendants concede that if the court had ruled from the beginning that each attorney would have only an initial 30 minutes to question jurors, the ruling would not be subject to attack.   But they argue that the court abused its discretion by changing the procedure in the middle of voir dire.   And when the court first mentioned a possible change in the procedure, two of the defense attorneys had completed their first questioning session and were unable to adjust to the court's warning of a change.

 The trial court has broad discretion in determining the scope and extent of voir dire.   CrR 6.4(b);  State v. Frederiksen, 40 Wash.App. 749, 752-53, 700 P.2d 369 (1985).  “The trial court is vested with discretion (1) to see that the voir dire is effective in obtaining an impartial jury and (2) to see that this result is obtained with reasonable expedition.”   Frederiksen, 40 Wash.App. at 753, 700 P.2d 369.   Its discretion is limited only by the need to assure a fair trial by an impartial jury.  Frederiksen, 40 Wash.App. at 752, 700 P.2d 369.   We reverse the trial court's ruling on the scope of voir dire only for an abuse of discretion;  and if the defendant shows the abuse substantially prejudiced him.  State v. Davis, 141 Wash.2d 798, 825-26, 10 P.3d 977 (2000).

In Davis, the court found no abuse of discretion where the trial judge did not sua sponte question jurors about potential racial bias, even though the State and defense did not.   Davis, 141 Wash.2d 798, 10 P.3d 977.   In Frederiksen, the court found no abuse of discretion where the trial court refused to allow questions about potential jurors' attitudes toward self-defense.  Frederiksen, 40 Wash.App. at 751-53, 700 P.2d 369.

 But both Davis and Frederiksen dealt with specific questions or a specific line of questioning.   Here, the issue is whether the court abused its discretion by changing the planned questioning during the middle of voir dire-after two of the attorneys had completed what was intended to be their opening session but turned out to be their only session.   Although the judge warned the parties that it might not give them as much time as it had intended, this warning was ambiguous and came after two defense attorneys had already completed their first questioning period.   The judge's discretion includes assuring that an impartial jury is selected “with reasonable expedition.”  Frederiksen, 40 Wash.App. at 753, 700 P.2d 369.   And certainly the court would not have abused its discretion by reasonably reducing the amount of time it had promised in the second questioning session.   But here the court eliminated entirely the second questioning period, a decision the parties had no opportunity to adjust to.   And the State does not dispute that defense counsel had the right to rely on getting at least some time for a second questioning of the panel.   Indeed, the State also objected to the court's ruling.   We hold that the court abused its discretion by altering the planned time for juror questioning without allowing the attorneys an opportunity to adjust to the change.

 But the defendants must also show that the trial court's abuse of discretion prejudiced them.   They point to an incident involving Juror 11, who was empanelled after answering only one question during voir dire.   Later, during deliberations, the presiding juror sent the court a note raising a concern about Juror 11's possible short-term memory loss.   The court briefly questioned the presiding juror but did not question or allow the attorneys to question Juror 11.   The defendants argue that if they had been allowed a second questioning session, they would likely have discovered any problems with Juror 11's competence.   The State counters that the defendants can not show that they would have asked any questions of Juror 11 in the second session.   We agree.   Without some showing that Juror 11 would have been questioned in a second session, the incident with Juror 11 does not demonstrate prejudice.

 But defense counsel represented to the court at the time of its ruling that they had saved some topics to discuss with the jurors during their second session.   The State does not dispute this.   And the case involved at least one issue that requires “specific voir dire questions because of a real possibility of prejudice”-racial overtones.  Frederiksen, 40 Wash.App. at 753, 700 P.2d 369.   Three of the four defendants in this case are black.   In addition, the case involved other issues that “the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact,” such as firearms, and underage drinking and drug use.  Frederiksen, 40 Wash.App. at 753, 700 P.2d 369.

The trial court has broad discretion over voir dire;  it could vary the time allowed to each party, as it did here.   But the problem is the way the court changed the rules.   After designating the time it would allow each party, and after two parties had used the first part of their time, the court eliminated the promised second opportunity to talk with the jurors.   And at least two defense attorneys had no chance to adjust to the change.   In a complex case with these overarching issues and where it is undisputed that counsel reserved issues to discuss later, we find that the court's altered time allowance prejudiced the defendants.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Brady's Claims

A. Sufficiency of the Evidence

Brady argues that the State presented insufficient evidence for the jury to find him guilty of first degree burglary as an accomplice.   Evidence is sufficient to support a conviction if, taken in the light most favorable to the State, it allows any rational trier of fact to find the essential elements of the case beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   Circumstantial and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).   We draw all reasonable inferences in favor of the State.   Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

Brady contends that the State has not shown that he entered or remained unlawfully in the house.   No one identified him visually or by voice, he claims, and, in any event, he was invited to the house.   He further argues that the State did not prove he was ready to assist in burglarizing the house.

First degree burglary involves (1) entering or remaining unlawfully in a building, (2) an intent to commit a crime against a person or property therein, and (3) being armed with a deadly weapon or assaulting someone.   RCW 9A.52.020. A person is an accomplice if, “[w]ith knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it;  or (ii) aids or agrees to aid such other person in planning or committing it[.]”  RCW 9A.08.020(3)(a).   Mere presence at the scene of a crime or even assent to the crime does not establish accomplice liability.  State v. Luna, 71 Wash.App. 755, 759, 862 P.2d 620 (1993).   The State must show that the defendant was ready to assist in the crime.  Luna, 71 Wash.App. at 759, 862 P.2d 620.

Viewing the evidence most favorably to the State, Brady appeared at the house earlier in the evening with at least one person identified as a later intruder.   After a fight broke out, Brady urged Darrell Jones, who was involved in the fight, to break up the fight and leave.   While they were leaving, one member of the group warned people in the house that the group planned to return with a gun and “shoot up the place.”   RP-Brady at 1706.   One witness believed that Brady made the threat.   Later, at least two people returned to the house and broke in.   One had a gun.   A witness saw someone of the same height, build, dress, and voice as Brady with the gunman.   When the police arrived, Brady was one of three people running from the house.

And although some witnesses thought Brady was not one of the intruders, we “must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence.”   State v. Hernandez, 85 Wash.App. 672, 675, 935 P.2d 623 (1997).   The State's evidence sufficiently supports a finding that Brady was in the house as an intruder.

Brady next argues that the State did not show that he was in the house unlawfully, because someone invited him.   But the people who allegedly invited him were not residents.  “License to enter a premises may be granted only by the person who resides in or otherwise has authority over the property.”   State v. Grimes, 92 Wash.App. 973, 978, 966 P.2d 394 (1998).   At least one resident said he did not invite Brady to return, and another resident told Brady and the group to leave.   When a resident tells a non-resident to leave, this revokes any license to enter the home.  State v. Davis, 90 Wash.App. 776, 781, 954 P.2d 325 (1998).

Finally, Brady argues that the State did not prove his complicity beyond a reasonable doubt.   But the evidence showed that Brady either made or heard the threat to return to the house with a gun;  that he did return with the group of intruders;  that he was with the gunman in the house;  and that he fled the house with the group of intruders, including the gunman.   This evidence sufficiently supports first degree burglary as an accomplice;  Brady was ready to assist and, in fact, did assist in the commission of the crime.  Luna, 71 Wash.App. at 759, 862 P.2d 620.

B. Discovery

The State knew that the police were interviewing some witnesses and had discovered the names of other potential witnesses.   The State waited until the police transcribed the interviews to tell the defense about the interviews.   Brady contends that the trial court should have dealt with the discovery violations by dismissing the charges rather than continuing the case.   We disagree.

Possible sanctions for discovery violations include discovery of undisclosed information, a continuance, dismissal, or other action the court deems necessary.   CrR 4.7(h)(7).   The trial court has discretion in handling discovery violations;  we review such decisions for manifest abuse of discretion.  State v. Smith, 67 Wash.App. 847, 851, 841 P.2d 65 (1992).   Dismissal for a discovery violation is an extraordinary remedy.  Smith, 67 Wash.App. at 852, 841 P.2d 65.   The trial court may instead grant a continuance “when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense.”   CrR 3.3(h)(2);  Smith, 67 Wash.App. at 852, 841 P.2d 65.

In arguing his motion to dismiss, Brady contended that the State knew about several witness interviews the police had conducted and knew what information they gathered in the interviews.   Some interviews revealed names of new potential witnesses.   Although the police were not able to transcribe the interview tapes quickly, Brady contended that CrR 4.7 required the State to inform the defense what it knew of the interviews and that new witnesses had been named.   The State countered that it sent the defense the transcribed interviews shortly after it received them, that it acted in good faith, and that the defense suffered no prejudice.

The court ruled that, while the State should have told the defense about the interviews, the defense was not prejudiced.   The court noted that the defense knew who was at the house, and likely had better access to witnesses than the State.   Dismissal for discovery violations is an extraordinary remedy;  the trial court did not abuse its discretion by suppressing evidence the State provided late, rather than dismissing the entire case.

III. Darrell Jones's Claims

A. Witness Testimony

Jones sought to admit the testimony of Rosemary Figueroa.   Figueroa would have testified that a man named Carlos, whom she knew through friends, woke her up at 2 or 3:00 a.m. on the night of the burglaries.   He was “hysterical,” anxious to get in the house, and breathing hard.   RP-Brady at 2170.   Figueroa varied her reports of what Carlos said:  “He was running from the cops” (RP-Brady at 2165);  “they had [come] in there with a gun and he was able to get away from them,” (when Figueroa asked, he said “they” were Brady, Alandis Jones, and other names she did not recognize) (RP-Brady at 2166);  “him and a couple of his friends went in there with a gun” and later threw the gun behind the house (RP-Brady at 2171);  and, “You got to let me in.   They're after me.   They-They got a gun, and I just-I just-I was able to get away.”   RP-Brady at 2179.

Shortly after arriving at her door, Carlos calmed down and Figueroa asked him questions about the event.   Most of the information Figueroa learned came from statements Carlos made after he calmed down.   Figueroa did not know Carlos's last name or where he lived.

The court refused to allow Figueroa to testify, ruling that the statements were inadmissible because they were exculpatory to Carlos. The court also found the statements unreliable because Figueroa was not consistent in reporting the statements and the statements were unclear.   The statements could mean several things:  that Carlos was running from the intruders, that Carlos was an intruder himself, or just that “there were people running all over the place.”   RP-Brady at 2200.

On appeal, Jones contends that the court should have admitted the statement as an excited utterance and that its inconsistency goes to its weight, not to its admissibility.   The State responds that the statement is hearsay, is irrelevant, and is inadmissible under the “ ‘other suspect’ rule.”   Br. of Resp at 33.

An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” and is admissible.   ER 803(a)(2).   As a “firmly rooted” exception to the rule against hearsay, the admission of an excited utterance does not violate the confrontation clause.  State v. Woods, 143 Wash.2d 561, 595, 23 P.3d 1046, cert. denied, 534 U.S. 964, 122 S.Ct. 374, 151 L.Ed.2d 285 (2001).   We examine the trial court's decision on excited utterances for abuse of discretion. State v. Chapin, 118 Wash.2d 681, 688-89, 826 P.2d 194 (1992).

Spontaneity is the key to admissibility.  Chapin, 118 Wash.2d at 688, 826 P.2d 194.   A statement can be spontaneous even if given in response to questions.  State v. Smith, 74 Wash.2d 744, 762, 446 P.2d 571 (1968).   The question is whether the declarant was still under the influence of the event to the extent that his statement “could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.”  State v. Strauss, 119 Wash.2d 401, 416, 832 P.2d 78 (1992) (citations omitted).

The court did not abuse its discretion in ruling that only part of Carlos's alleged statement was an excited utterance.   Figueroa reported that Carlos calmed down shortly after they began talking, and that she “chewed him out” and then asked him questions.   RP-Brady at 2172.   Thus, only Carlos's initial statement was admissible under ER 803(a)(2).   And we agree with the trial court, this statement is “riddled with inconsistencies and subject to many interpretations.”   RP-Brady at 2213.   But Jones argues that the consistency of the statement goes to its weight, not its admissibility.   Evidence is relevant, however, only if it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable[.]”  ER 401.   Carlos's excited utterance sheds no light on who entered the house, who had the gun, and what the intruders intended;  thus, it did not tend to make any material fact more or less probable.   The trial court did not abuse its discretion in rejecting the testimony.

B. Prosecutorial Misconduct/Severance

Jones next claims that he did not move to sever the trial because the State threatened him with additional charges if he did.   He says this misconduct denied him a fair trial.

The State wrote Jones's attorney a month before trial began, outlining its “best offer” for a plea agreement.   Clerk's Papers (CP)-D. Jones at 233-34.   The State noted, “[a]s a final matter,” that a co-defendant was interested in moving to sever.   CP-D. Jones at 234.   The State cautioned that if the court granted such a motion, “the State will amend the information again to add a minimum of two additional felony counts:  Possession of an unlawful firearm (sawed-off shotgun) and assault 2 regarding Ecklund's broken jaw.”   RP-Brady at 234.   No defendant moved to sever.

After the jury found Jones guilty as charged, he moved for a new trial.   His counsel's affidavit claimed that the State's letter compelled her to avoid asking for severance, and that absent the letter, she would have sought to sever the trial.

“ ‘Prosecutorial vindictiveness is [the] intentional filing of a more serious crime in retaliation for a defendant's lawful exercise of a procedural right.’ ”  State v. Bonisisio, 92 Wash.App. 783, 790, 964 P.2d 1222 (1998) (citations omitted).   The defendant must prove either actual vindictiveness or “a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.”  Bonisisio, 92 Wash.App. at 791, 964 P.2d 1222.   The prosecutor acts vindictively if his charging decision is “motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.”  Bonisisio, 92 Wash.App. at 790-91, 964 P.2d 1222.

The prosecutor's letter does not reveal a desire to punish Jones for trying to sever.   The State explains that it left the additional charges out of the joined trial to avoid further complicating the case and that it merely wanted to give Jones notice of all potential charges if he did not accept the plea offer.  “[A] prosecutor may offer ‘hardball’ choices to a defendant ․ so long as the choices are realistically based upon evidence and options known to both sides.”  State v. Lee, 69 Wash.App. 31, 36, 847 P.2d 25 (1993).   And the State had evidence to support the additional charges against Jones.   Moreover, the State did not threaten the additional charges in response to a severance motion.   Neither Jones nor any other defendant moved to sever.   Thus, the State did not write Jones about the additional charges in retaliation for a procedural right he had exercised.

Finally, Jones has not shown that the trial court would have granted his motion had he made it.  Bonisisio, 92 Wash.App. at 791, 964 P.2d 1222.   The court should not sever a defendant during the trial unless it is necessary for a fair determination of the defendant's guilt or innocence.   CrR 4.4(c)(2).   Jones implies that the trial court would have severed the case based on Figueroa's testimony.   But the court had valid reasons to exclude her testimony.   Most of Figueroa's testimony was inadmissible hearsay.   And the portion that could have been admissible as an excited utterance was so unclear that it was irrelevant.   Absent the admission of Figueroa's testimony, Jones gives no reason that a separate case was necessary for a fair trial.

IV. Alandis Jones's Claims

Alandis Jones challenges the sufficiency of the evidence to find him guilty as an accomplice.   He contends that although the State showed he was in the house, he was invited.   And his mere presence at the scene, he argues, is not enough to show that he was an accomplice.

We have already discussed the elements of first degree burglary.   Viewing the evidence most favorably to the State, Jones appeared at the house earlier in the evening with at least one person identified as a later intruder.   After a fight broke out, the group, including Jones, left.   While they were leaving, one member of the group warned people in the house that the group planned to return with a gun and “shoot up the place.”   RP-Brady at 1706.   Later, several people returned to the house and broke in.   One intruder had a gun.   One witness heard Jones's voice and laugh during the intrusion.   When the police arrived, Jones was running from the house with two other people.

Jones points out that some witnesses thought he was not one of the intruders.   And the defense tried to show that the witness who heard Jones in the house could not recognize his voice and was under the influence of drugs during the incident.   But we “must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence.” Hernandez, 85 Wash.App. at 675, 935 P.2d 623.   The State's evidence supports a finding that Alandis Jones was in the house as an intruder, and this was sufficient to show that he assisted in the burglary.

In conclusion, we reverse all three cases and remand for a new trial because of the voir dire error.   Otherwise, we find no error.

FOOTNOTES

1.   For the purposes of this opinion, we consolidate State v. Alandis Jones, No. 26712-8-II, with the consolidated case of State v. Henry Brady and State v. Darrell Jones, No. 26620-6-II.

2.   A Mac 10 is a semi-automatic gun.

3.   Voir dire spanned three days because, in addition to allowing the attorneys to conduct general voir dire, the court heard motions and scheduling conflicts, allowed extensive individual questioning of some jurors, questioned jurors on its own, and ended court early on at least one day.

MSTRONG, J.