J. DEAN MORGAN, J.
Kimonti Dennis Carter appeals a conviction of aggravated murder in the first degree, four convictions of assault in the first degree, and a conviction of unlawful possession of a firearm. Terrance Terriel Powell appeals a conviction of murder in the first degree by extreme indifference, and four convictions of assault in the first degree.
We affirm Carter's convictions, but reverse Powell's convictions.
FACTS
About 1:00 a.m. on Saturday, May 24, 1997, Irshad Altheimer was driving four friends in his 1982 Chevrolet Caprice. Mashana Gee was in the front passenger seat. Corey Pittman, Neambi Thompson and Derek Berhard were in the back seat. None was affiliated with a gang. While heading north on South Grant Street, Altheimer stopped at its intersection with South 15th Street. Another car, a 1979 Oldsmobile, had already come to a stop directly across the intersection, facing south on South Grant Street. The intersection is located in Tacoma's Hilltop area. Powell was driving the Oldsmobile. His passengers were Carter, Abram Potts, Marcus Carter (Carter's younger brother), and James Cavil. Carter was in the front passenger seat. Potts, Marcus and Cavil were in the back seat. Powell, Carter, and Potts were members of the Pyru Bounty Hunters, a sect of the Bloods gang. Cavil was a member of the East Side Pyru, another sect of the Bloods gang. According to Cavil, a rival gang, the Hilltop Crips, dominates the Hilltop area.
A few minutes before arriving at the intersection, Powell and his passengers had been at Aletha Robinson's residence, 1214 South Ridgewood Street. When they left, Carter was carrying a loaded `Mak 90' rifle. While stopped at the intersection, Powell and his passengers noticed Altheimer and his passengers. Believing that Altheimer's Caprice belonged to a member of the Crips, Cavil said, `There go them n******.' Carter then told Powell, `Wait and let that car go first.' Powell waited for the Caprice to pass, then followed as it turned west on South 15th Street. Carter told Powell to `[g]et up behind' the Caprice and speed up, which Powell did. Then, as the Oldsmobile overtook the Caprice, Carter leaned out the front passenger window, raised the Mak 90 to his shoulder, and fired at least fifteen bullets. Carter fired for a significant period of time. According to Marcus, he fired `[f]or a while[,]' `[m]aybe a block[,]' with `like a little pause after every one.' According to Potts, he fired for `at least a minute it seemed like.' According to Cavil, he fired `[a] lot,' and about `as fast as you could pull the trigger.' When Carter stopped firing, he remarked that `[t]he Mak 90 kind of gets off.' Many bullets struck the Caprice. Pittman was killed, Gee was hit in the left shoulder, and Altheimer was hit in the right buttock and right wrist. Altheimer lost control of the Caprice, which crashed into a pole.
Report of Proceedings (RP) 2564; see also RP 2443-44. In gang parlance, this was a reference to the rival gang, the Crips. RP 2564.
RP 2444; see also RP 2563.
Id. at 2445.
Id. at 2318, 2319.
Id. at 2446.
Id. at 2571.
Id. at 2321.
Tacoma police officers recovered 15 spent 7.62 millimeter casings from the westbound lane of South 15th Street. They also found bullet holes in Altheimer's car and in a nearby apartment building. The pattern of bullet holes indicated that Carter had started to fire when the Oldsmobile was still behind the Caprice, then continued firing as the Oldsmobile passed the Caprice.
Detective Tom Davidson was assigned to identify and apprehend the perpetrators. He heard a street rumor that `some East Side Pyrus may have been involved.' Otherwise, he had no suspects.
Id. at 345.
On May 28, 1997, as part of an unrelated investigation, Tacoma police officer Rhoda Ramirez requested a warrant to search for drugs in Robinson's residence. In her supporting affidavit, Ramirez stated that within the past 72 hours a confidential informant had `witnessed Robinson in possession of crack cocaine at her residence'; that the informant had stated `there are several `Blood' gang members staying with Robinson and that they frequently sell narcotics from the residence'; and that the informant had `seen some of these gang members in possession of both narcotics and handguns.' Ramirez further stated that the informant had successfully made two previous controlled buys; that the informant had provided information leading to two narcotics search warrants and arrests; and that Robinson had a prior conviction for delivery of a controlled substance. Ramirez further stated that `within the past month' she had received a phone message from an anonymous tipster who claimed to know Robinson personally; who claimed to be concerned for the welfare of Robinson's children; and who claimed to know that Robinson and various gang members were distributing cocaine from Robinson's residence. Based on these facts, Ramirez concluded that controlled substances would probably be found in Robinson's South Ridgewood home.
Clerk's Papers (CP) (Carter) at 261.
Id. at 262.
Id.
Id. at 261.
The superior court issued a warrant the same day. It authorized the police to search Robinson's person, her South Ridgewood residence, and `all persons present at the residence at the time the warrant is served.'
Id. at 265.
Davidson learned of the warrant before it was served. Recalling the rumor about Bloods being involved in the May 24 shooting, he volunteered to participate in the warrant's execution. He had no evidence that Robinson's home was connected with the shooting, but he hoped `[t]o develop investigative leads[.]' About noon on May 29, members of the SWAT team, Violent Crimes Task Force and Special Investigation Division executed the warrant. They feared armed resistance from gang members who might be homicide suspects. Officer Steven Reapelle knocked and announced loudly, `Police, search warrant, open the door.' He listened for a reply for `about three seconds,' but did not hear anything. He then ordered that the door be breached.
RP 336; see also RP 291.
CP (Carter) 191; RP 309.
CP (Carter) 191.
Officer Ron Tennyson breached the door with three blows from a battering ram. He estimated that five to seven seconds elapsed between Reapelle's announcement and the first blow. He did not hear anything significant during that interval. Reapelle entered first, followed by Tennyson. Reapelle found Carter on a sofa in the living room, three to four feet from the door. He ordered Carter to the floor at gunpoint, and Tennyson placed Carter in handcuffs. Tennyson rolled Carter onto his side to `thoroughly check his waistband area' for weapons, and he saw a glass vial fall from Carter's pocket. Reapelle saw the vial on the floor as Tennyson rolled Carter off of it.
RP 313.
The vial contained cocaine, and it was seized as evidence. During the ensuing search of the house, narcotics were found in the living room, kitchen, a bathroom, and a bedroom. A handgun was found in the living room in a planter stand. A shotgun was found in a bedroom and a rifle was discovered in the basement. A large amount of money and a scale were also found. Carter was arrested for possession of a controlled substance with intent to deliver.
When the search was completed, Davidson interviewed Robinson. Based on that interview, he obtained a second search warrant, this one for a residence at 704 South Sprague Avenue in Tacoma. That residence was occupied by Carter's girlfriend, Delin R. Miller, and Carter sometimes spent the night there. Later on May 29, the police went to Miller's residence to execute the second search warrant. They found Cavil outside, and told him they were investigating a homicide. He said, `[W]hat you are looking for is upstairs.' Inside, they found a `Mak 90' assault rifle and 7.62 millimeter ammunition.
Id. at 1979.
The State charged Carter under cause number 97-1-2261-6. As later amended, Count I charged aggravated murder in the first degree or, in the alternative, murder in the first degree by extreme indifference. Counts II through V each charged first degree assault. Count VI charged unlawful possession of a firearm.
The State separately charged Powell under cause number 97-1-2259-4. As later amended, Count I charged aggravated murder in the first degree or, in the alternative, murder in the first degree by extreme indifference. Counts II through V each charged Carter, but not Powell, with first degree assault.
The two informations were consolidated for trial. Before trial started, Carter moved for severance. He argued that he would claim alibi; that Powell would claim he did not aid or encourage Carter's firing at the Caprice; and that the two defenses were mutually antagonistic. The trial court denied the motion. Before trial, Carter moved to suppress the evidence seized at the South Ridgewood residence and any statements he made to the police, as well as the evidence seized at the South Ridgewood residence. The trial court denied the motion. Near the beginning of trial, the trial court addressed courtroom security concerns on the record. It concluded that each defendant should wear shackles on his ankles during trial.
During trial, the State's witnesses included Cavil, Marcus, Potts and Robinson. They testified essentially as set forth above. Neither Carter nor Powell elected to testify. Based on all the evidence, Powell argued that he had not known Carter was going to fire the rifle, and that he had not aided or encouraged Carter to do that. Carter argued that he had fired without premeditation, although he conceded firing with extreme indifference to human life. The trial court gave jury instructions that included definitions of `premeditation,' `accomplice,' and `manifest.' Powell sought, but the trial court declined to give, lesser included instructions on first and second degree manslaughter. Jury deliberations lasted four days. On the morning of the last day, the foreman brought into the jury room, and posted on the jury room wall, his own definitions of `premeditation,' `accomplice,' and `manifest.' He explained, according to later affidavits, that he had gone to the law library and taken his definitions from a legal dictionary. The record does not show his definitions or the name of the dictionary that he used.
See RP 3489.
June 18, 19, 22 and 23. According to several jurors' affidavits, the jury resolved the charges against Carter on the first day, and used the remaining time to resolve the charges against Powell. Assuming without holding that this information inheres in the verdict, we omit it from the text.
The jury convicted Carter of first degree aggravated murder on Count I, and as charged on each other count. The jury convicted Powell of murder in the first degree by extreme indifference, and of first degree assault on each other count. Carter was sentenced to a life sentence without the possibility of parole, and Powell was sentenced to slightly more than 94 years. On appeal, Carter raises issues relating to the search of Robinson's house, severance of defendants, the use of shackles during trial, the sufficiency of evidence showing premeditation, inconsistent verdicts, and jury misconduct. Powell raises issues relating to the way he was charged in Counts II through V, jury misconduct, the sufficiency of evidence showing extreme indifference, and lesser included jury instructions. Powell also raises other issues that we need not reach. We take each issue separately, noting which defendant raises it.
I. SEARCH AND ARREST (CARTER)
Carter raises several issues concerning the search of Robinson's residence and his own arrest. We address each separately.
We omit the issue of Carter's standing, even though the State argues it on appeal. The issue was conceded by the State below, and in any event makes no difference to the case.
A.
The first issue is whether Ramirez' affidavit showed probable cause to believe drugs would be found in Robinson's house. It did. Washington uses the two-prong Aguilar-Spinelli test when determining whether an informant's tip establishes probable cause. That test requires facts showing (1) the informant's knowledge and (2) the informant's veracity. The `knowledge' prong is satisfied by evidence that the informant had personal knowledge. The `veracity' prong is satisfied by evidence that the informant had previously provided information verified as correct by controlled buys, seizures, or convictions. Ramirez' affidavit satisfies the knowledge prong. It states that the informant `witnessed Robinson in possession of crack cocaine at her residence.' After attributing to the informant statements that several gang members are staying with Robinson and that they frequently sell narcotics from the residence, it also states that the informant `has seen some of these gang members in possession of both narcotics and handguns.' Ramirez' affidavit also satisfies the veracity prong. It states that the informant had `provided information to the affiant which has resulted in at least two . . . search warrant[s] being executed, and those in possession of controlled substances being arrested.' It also states that the informant had performed two controlled buys. Carter claims that the anonymous tipster's information is insufficient to show probable cause. That is true, and also immaterial. The informant's information shows probable cause with or without the tip. Carter claims that the affidavit in support of the search warrant failed to show that the confidential information had `personal knowledge of who the gang members were, when and where the gang members were in possession of narcotics and handguns, and when they supposedly sold the drugs from the residence.' Again, the claim is both true and immaterial. The informant had `witnessed Robinson in possession of crack cocaine at her residence' `within the past 72 hours'; the informant had a `track record' of providing reliable information; and nothing more was needed to support issuance of the warrant.
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
State v. Cole, 128 Wn.2d 262, 287, 906 P.2d 925 (1995).
Cole, 128 Wn.2d at 287; State v. Ibarra, 61 Wn. App. 695, 698, 812 P.2d 114 (1991).
State v. Wolken, 103 Wn.2d 823, 827, 700 P.2d 319 (1985); State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984).
Jackson, 102 Wn.2d at 437; State v. Taylor, 74 Wn. App. 111, 116, 872 P.2d 53, review denied, 124 Wn.2d 1029 (1994); State v. Lane, 56 Wn. App. 286, 293, 786 P.2d 277 (1989) (quoting State v. Castro, 39 Wn. App. 229, 234, 692 P.2d 890 (1984), review denied, 103 Wn.2d 1020 (1985)).
CP (Carter) at 261 (emphasis added).
Id. at 262 (emphasis added).
Id. at 262.
See State v. Harrison, 5 Wn. App. 454, 460, 488 P.2d 532 (1971) (refusing to comment on other informant's allegations contained in an affidavit whether one informant's information was sufficient, standing alone, to establish probable cause).
Br. of Appellant (Carter) at 18.
CP (Carter) at 261.
Id. at 261.
B.
The second issue is whether the search warrant for Robinson's residence was unlawfully overbroad. Carter argues that even if the affidavit supporting the warrant showed facts justifying a search of the house, it did not show facts justifying a search of `all persons present at the residence at the time the warrant is served[.]' As a result, he concludes, the entire search warrant was invalid.
Id. at 265.
Even assuming that the affidavit lacked facts sufficient to justify a search of all present in the house when the warrant was served, the warrant was not wholly invalid. In State v. Halverson, a warrant authorized the search of a house for drugs, and the search of `all persons who may be present' at the time of the warrant's execution. Assuming the latter authorization was invalid, this court held that the warrant's valid portion was severable from its invalid portion, and that the warrant was lawful to the extent it authorized a search of the residence. Using the same reasoning, we hold that the warrant in issue here lawfully authorized a search of Robinson's house.
State v. Halverson, 21 Wn. App. 35, 584 P.2d 408 (1978).
Halverson, 21 Wn. App. at 36.
We distinguish State v. Carter, 79 Wn. App. 154, 901 P.2d 335 (1995). In that case, there was no reason to frisk except the warrant. In this case, there was reasonable suspicion to believe persons in the house were armed and dangerous, and thus reason to frisk independent of the warrant.
C.
The third issue is whether the police had probable cause to arrest Carter. Carter argues that the search warrant did not validly authorize his arrest, and we assume that is true. Nevertheless, we hold that his arrest was lawful.
`[A] valid warrant to search for drugs `implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted[.]" This being a specific application of Terry v. Ohio, officers executing a search warrant may frisk a detainee based on reasonable suspicion he is armed. Depending on the facts and circumstances, officers may also handcuff a detainee without transforming the detention into an arrest that lacks probable cause. When the officers in this case entered Robinson's house, they had reasonable suspicion that persons in the house were gang members who were likely to be armed. That was enough to justify a brief detention and frisk of Carter, as well as handcuffing him while the detention and frisk took place. As the detention and frisk were taking place, the officers observed that Carter was in possession of cocaine. That gave probable cause, and thus Carter's arrest was lawful.
State v. Flores-Moreno, 72 Wn. App. 733, 739, 866 P.2d 648, review denied, 124 Wn.2d 1009 (1994) (quoting Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)); see also State v. Broadnax, 98 Wn.2d 289, 300, 654 P.2d 96 (1982).
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Ybarra v. Illinois, 444 U.S. 85, 94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Broadnax, 98 Wn.2d at 294-95; State v. Lennon, 94 Wn. App. 573, 579-80, 976 P.2d 121, review denied, 138 Wn.2d 1014 (1999); State v. Douglas S., 42 Wn. App. 138, 140-41, 709 P.2d 817 (1985).
State v. Wheeler, 108 Wn.2d 230, 235, 737 P.2d 1005 (1987).
Carter implies that the testimony about a glass vial falling out of Carter's pants pocket is not believable. See Brief at 24 (`the glass vial containing rock cocaine somehow just fell out of Carter's front pants pocket'). The trial court accepted this testimony after hearing from the officers in person, and its acceptance is supported by substantial evidence. See State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (standard of review is substantial evidence).
D.
The fourth issue is whether the police properly knocked and waited before using force to enter Robinson's residence. Carter argues that three to seven seconds was too short a time to wait. We disagree.
The knock-and-wait rule requires that the police knock and announce their identity and purpose. It also requires that they wait a reasonable time after doing so. What constitutes a reasonable time depends on all the facts and circumstances, and is determined on a case by case basis. In this case, the officers had information that gang members would be at the residence, and that they would be armed. The officers still waited, though only for three to seven seconds. This was a reasonable period of time under these particular circumstances.
State v. Alldredge, 73 Wn. App. 171, 174-75, 868 P.2d 183 (1994); see State v. Richards, 136 Wn.2d 361, 370, 962 P.2d 118 (1998).
Richards, 136 Wn.2d at 370; State v. Schmidt, 48 Wn. App. 639, 644, 740 P.2d 351, review denied, 109 Wn.2d 1013 (1987).
State v. Amezola, 49 Wn. App. 78, 84, 741 P.2d 1024 (1987); State v. Woodall, 32 Wn. App. 407, 411, 647 P.2d 1051 (1982), rev'd on other grounds, 100 Wn.2d 74 (1983).
E.
A fifth issue is whether the search of Robinson's residence for drugs was really a pretext to search for evidence of the drive-by shooting. Carter suggests that it was. He relies on State v. Ladson and Detective Davidson's participation in the execution of the warrant.
See Br. of Appellant (Carter) at 25 n. 8.
State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999).
We doubt that the pretext rule applies after a warrant has been requested and issued. Assuming it does, however, Davidson's participation without more does not show pretext as a matter of law. The question of pretext is factual, the trial court made no finding of fact, and we decline to make a finding of fact in the first instance. We reject this argument.
See Ladson, 138 Wn.2d at 358-59 (`When determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior.').
II. SEVERANCE (CARTER)
Carter argues that the trial court was required to grant his motion to sever defendants. We disagree. CrR 4.3(b) provides that two defendants may be joined in a single charging document when each is charged with the same offense, or with offenses so closely connected that it would be difficult to separate proof of one offense from proof of the other offenses. CrR 4.3A(c) provides that a court may order consolidation for trial of two informations if, under CrR 4.3, the defendants could have been joined in a single charging document. CrR 4.4(c)(2)(i) allows a trial court to sever defendants when doing so will `promote a fair determination of . . . guilt or innocence[.]' Severance of defendants is discretionary with the trial court, and we review only for abuse of that discretion. When exercising its discretion, a trial court should consider whether the defendants will present mutually antagonistic defenses, but that one factor is not necessarily dispositive. The trial court should also consider any specific prejudice to which the moving defendant points.
State v. Canedo-Astorga, 79 Wn. App. 518, 527, 903 P.2d 500 (1995), review denied, 128 Wn.2d 1025 (1996).
State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991); State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211 (1983).
Hoffman, 116 Wn.2d at 74; Grisby, 97 Wn.2d at 506-08; Canedo-Astorga, 79 Wn. App. at 528; State v. McKinzy, 72 Wn. App. 88, [ 72 Wn. App. 85, 88-]89, 863 P.2d 594 (1993).
Grisby, 97 Wn.2d at 507; State v. Alsup, 75 Wn. App. 128, 131, 876 P.2d 935 (1994).
Carter argues that he was entitled to severance because he announced before trial that he and Powell would present inconsistent defenses. As it later turned out, however, their defenses were consistent; each acknowledged his presence at the scene, but argued that he had acted without any of the mental states needed for first degree murder. Thus, the trial court was not required to sever due to inconsistent defenses.
Carter further argues that Powell's trial counsel engaged in misconduct requiring severance. As the State correctly points out, however, the jurors were instructed to decide the case on the evidence, not on the remarks of counsel, and the jurors are presumed to have followed their instructions. The trial court did not abuse its discretion by not severing.
III. SHACKLING (CARTER)
At trial, Carter was required, over his objection, to wear shackles on his ankles. He claims error, but he does not show that the shackles were ever seen by the jury.
Although a defendant has a right to appear at trial without shackles, the right is not absolute. A trial court has discretion to consider and use security measures necessary to maintain order in the courtroom. Restraints may be used to `prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent escape.' If a court orders shackles during trial, it must show on the record the facts supporting its order. Relevant facts include:
State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999); In re Ross, 102 Wn. App. 108, 117, 6 P.3d 625 (2000).
Finch, 137 Wn.2d at 846 (quoting State v. Hartzog, 96 Wn.2d 383, 400, 635 P.2d 694 (1981)); Ross, 102 Wn. App. 117-18.
Hartzog, 96 Wn.2d at 398.
Ross, 102 Wn.2d at 117-18; Hartzog, 96 Wn.2d at 400.
[T]he seriousness of the present charge against the defendant; defendant's temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.
Here, the trial court considered a significant amount of information on the record. It knew that Carter had previous convictions for robbery and obstructing a police officer. It knew that Carter had previously escaped from juvenile custody. It had `information from the jail,' albeit unverified, that Carter might be planning to escape during the upcoming trial. It knew that while Carter was in jail awaiting trial, he had argued with, and in some cases threatened to kill, co-defendants and other gang members. It expected the courtroom to be `packed' with spectators whose emotions would be high, and it knew it would have only two security officers in the courtroom. It offered shock belts as an alternative to ankle shackles, and it tried to insure that the ankle shackles were not visible to the jury. It acted carefully and reasonably, and it did not abuse its discretion.
The record on appeal does not show that the jury ever became aware of the shackles.
IV. EVIDENCE OF PREMEDITATION (CARTER)
Carter argues that the evidence is insufficient to support a finding that he acted with premeditated intent to kill. We disagree. Premeditation is "the deliberate formation of and reflection upon the intent to take a human life." It involves `the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning' for any period that it is `more than a moment in point of time.' It is shown by sufficient evidence if, when the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found premeditation beyond a reasonable doubt. It may be proved by circumstantial evidence that meets this test.
State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995) (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982)).
State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987) (quoting State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217 (1982)).
RCW 9A.32.020(1).
State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996); Gentry, 125 Wn.2d at 596-97.
Finch, 137 Wn.2d at 831; Gentry, 125 Wn.2d at 597.
The evidence here is sufficient. Viewed in the light most favorable to the State, it shows that Carter, Powell, Potts, and Cavil were all members of a gang. When they left Robinson's house, they knew they would be driving in an area dominated by a rival gang. Before leaving Robinson's house, Carter armed himself with a `Mak 90' assault rifle. When the Oldsmobile was at the intersection of 15th and Grant, Cavil called attention to the Caprice, saying in effect that it might contain Crips. Carter directed Powell to follow and overtake the Caprice. As Powell complied, Carter leaned out the front passenger window, raised the rifle to his shoulder, and fired repeatedly into the other car. Based on this evidence, a rational trier could find beyond a reasonable doubt that Carter premeditated an intent to kill for more than a moment in time.
V. INCONSISTENT VERDICTS (CARTER)
Carter argues that the verdict finding him guilty of premeditated first-degree murder is irreconcilably inconsistent with the verdict finding Powell guilty of first-degree murder with extreme indifference. We disagree.
In State v. Ng, the Supreme Court held that `[w]here the jury's verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt, we will not reverse on grounds that the guilty verdict is inconsistent with an acquittal on another count.' Thus, the question here is not whether Carter's conviction is inconsistent with Powell's, but whether Carter's conviction is supported by sufficient evidence. It is, in part for the reasons set forth in the preceding section.
State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988).
Ng, 110 Wn.2d at 48 (citing United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)); see also State v. McNeal, 98 Wn. App. 585, 591, 991 P.2d 649 (1999), review granted in part, 140 Wn.2d 1013 (2000).
VI. DEFECTIVE ASSAULT CHARGES (POWELL)
Powell argues that in Counts II through V of cause number 97-1-2259-4, the State failed to allege against him each element of first degree assault. Instead, he says, it alleged each element only against Carter. We agree, as does the State. On remand, the trial court shall dismiss without prejudice the convictions based on Counts II through V in Cause 97-1-2259-4.
City of Auburn v. Brooke, 119 Wn.2d 623, 639, 836 P.2d 212 (1992).
VII. JURY MISCONDUCT (CARTER AND POWELL)
Carter and Powell each claims that his right to fair trial was reversibly violated when the jury consulted a legal dictionary for the definitions of `accomplice,' `premeditate,' and `manifest.' We agree with Powell, but not with Carter.
When the trial court instructed the jury, it used the terms `manifest,' `premeditation,' and `accomplice.' It did not further define `manifest.' It defined `premeditation' as follows:
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
It defined `accomplice' as follows:
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing a crime.
The word `aid' means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
Id. at 220.
The jury found these instructions confusing, so its foreman resorted to self-help. As one juror later declared:
The jury was deadlocked on Terrance Powell until the last day of deliberations. The foreman, Bill, came in early on the last day and hung large pieces of paper . . . with the definitions of the words `manifest,' `premeditate' and `accomplice' on the wall of the jury room. Bill explained that he went to the law library, looked in a legal dictionary, and wrote down these definitions. The jury was then able to break the deadlock.
Five other jurors declared similarly. As already noted, the record does not show what the foreman's definitions were, nor does it identify the dictionary from which the foreman obtained his definitions. When the foreman's conduct was discovered, Carter and Powell moved for a new trial. Stating that the definitions of `the things [the foreman] looked up are probably harmless error[,]' the trial court denied their motions.
Id. at 178-90.
The State assumes that the foreman's definitions came from Black's Law Dictionary. But no affidavit so states, see CP (Powell) 178-90, and the only colloquy was the following:
COURT: It appears that the jury foreman, on his own, if I understand your paper, at some point independently went down to the law library and looked up three words out of the Black's Law Dictionary.
DEFENSE COUNSEL: Legal dictionary, we don't know what dictionary.
RP 3632.
RP 3663-64. As the following paragraphs will make clear, the trial court used the wrong test for harmless error. Once it is known that jury misconduct occurred in a criminal case, the test is not whether the misconduct was `probably' harmless; instead, the test is whether the misconduct was harmless beyond a reasonable doubt. Because the trial court had the wrong test in mind, its decision is not entitled to the usual degree of deference.
If a defendant asserts juror misconduct, he or she has the burden of showing that the misconduct occurred. Once he or she does that, the State must show that the misconduct was harmless beyond a reasonable doubt. We apply these rules first to Carter, then to Powell.
State v. Hawkins, 72 Wn.2d 565, 568, 434 P.2d 584 (1967); State v. Kell, 101 Wn. App. 619, 621, 5 P.3d 47, review denied, 142 Wn.2d 1013 (2000); State v. Barnes, 85 Wn. App. 638, 668, 932 P.2d 669, review denied, 133 Wn.2d 1021 (1997).
State v. Lemieux, 75 Wn.2d 89, 91, 448 P.2d 943 (1968); Kell, 101 Wn. App. at 621; State v. Briggs, 55 Wn. App. 44, 55-56, 776 P.2d 1347 (1989); State v. Brenner, 53 Wn. App. 367, 372, 768 P.2d 509, review denied, 112 Wn.2d 1020 (1989); State v. Murphy, 44 Wn. App. 290, 296, 721 P.2d 30, review denied, 107 Wn.2d 1002 (1986).
A.
Nothing in the record shows that the foreman's definitions were used in Carter's case. Accordingly, Carter has not borne his burden of showing juror misconduct in his case.
Even assuming that Carter has shown juror misconduct in his case, the State has shown beyond a reasonable doubt that the foreman's definitions did not harm Carter. Carter was not harmed by inaccuracy in the definition of `manifest,' because he was not convicted of murder by extreme difference. He was not harmed by inaccuracy in the definition of `accomplice,' because all the evidence showed, and he essentially conceded, that he had been the shooter (i.e., the principal). He was not harmed by inaccuracy in the definition of `premeditation,' because Washington law defines that term so broadly as to encompass any mentation taking more than a moment in time. Whatever alternative definition the foreman may have used, it could not have been more broad (i.e., more favorable to the State), and thus it could not have been harmful to Carter.
As noted earlier, Carter conceded in closing argument that he was the one who had fired the rifle into the Caprice. He argued only that he had done so without premeditation. RP 3489.
B.
In contrast to Carter, Powell has shown that the foreman's definitions were used in his case. Accordingly, he has borne his burden of showing juror misconduct.
The State has shown beyond a reasonable doubt that the misconduct was harmless with respect to the definition of `premeditation.' Powell was not convicted of anything requiring premeditation, so he could not have been harmed by an improper definition of that term.
The State has not shown beyond a reasonable doubt that the misconduct was harmless with respect to the definition of `accomplice.' Washington's definition of accomplice is detailed and complex so much so that using the article `a' instead of the article `the' may be prejudicial. In one randomly selected legal dictionary we do not know whether the foreman used this one or some other one the word `accomplice' is defined in several ways, including but not limited to the following: (1) `A person who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime'; or (2) `[o]ne who is in some way concerned or associated in commission of crime; partaker of guilt; one who aids or assists, or is an accessory.' Particularly in light of State v. Roberts and State v. Cronin, we cannot say that these definitions satisfy Washington law, and thus we cannot say beyond a reasonable doubt that the foreman's definition did not harm Powell. Without reaching the foreman's definition of `manifest,' we conclude that Powell is entitled to a new trial on first degree murder.
See RCW 9A.08.020.
State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471, 513, 14 P.3d 713 (2000).
Black's Law Dictionary 33 (4th ed. 1968).
Cronin, 142 Wn.2d at 573.
Cronin, 142 Wn.2d at 579.
VIII. EVIDENCE OF EXTREME INDIFFERENCE (POWELL)
Powell claims that the evidence is insufficient to support findings of each element of murder by extreme indifference. If he is correct, he is entitled to dismissal of the murder count rather than new trial. In our view, however, he is not correct. The test, as already discussed above, is whether a rational trier of fact could find extreme indifference beyond a reasonable doubt if it chose to take the evidence in the light most favorable to the State. The evidence shows that Powell accelerated at Carter's direction, causing the Oldsmobile to pull abreast of the Caprice while Carter fired repeatedly. Taking this evidence in the light most favorable to the State, a rational trier could find beyond a reasonable doubt that Carter acted with extreme indifference to human life, and that Powell aided and encouraged Carter's conduct with knowledge that he was promoting or facilitating Carter's crime.
Smalis v. Pennsylvania, 476 U.S. 140, 142, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Crediford, 130 Wn.2d 747, 760-61, 927 P.2d 1129 (1996); State v. Allen S., 98 Wn. App. 452, 469, 989 P.2d 1222 (1999), review denied, 140 Wn.2d 1022 (2000).
IX. LESSER INCLUDED INSTRUCTIONS (POWELL)
Powell argues that the trial court was required to give lesser included jury instructions on first and second degree manslaughter. Preliminarily, we observe that manslaughter is not an inferior degree of murder. As the Supreme Court has said:
While manslaughter is sometimes loosely spoken of as a degree of murder, it is actually not so, and has never been so denominated by any statute of this state. Although it is an included offense within the crime of murder, it is nevertheless a distinct crime of itself.
Because manslaughter is not an inferior degree of murder, the propriety of the instructions not given here depends on the so-called Workman test. Under that test, a defendant is entitled to instructions on a lesser included offense if (1) each of the element of the lesser offense is necessary element of the charged offense (legal prong); and (2) the evidence supports an inference that the lesser crime was committed (factual prong).
State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
State v. Berlin, 133 Wn.2d 541, 545-46, 548, 947 P.2d 700 (1997); State v. Pastrana, 94 Wn. App. 463, 470-71, 972 P.2d 557, review denied, 138 Wn.2d 1007 (1999).
The State agrees that the legal test has been satisfied, but disputes whether the factual test has been satisfied. Thus, we focus on the factual prong.
See Pastrana, 94 Wn. App. at 470-71 and State v. Pettus, 89 Wn. App. 688, 700, 951 P.2d 284, review denied, 136 Wn.2d 1010 (1998).
Evidence meets the factual prong only if it supports a reasonable inference that the defendant committed the proposed lesser offense instead of the charged greater offense. `It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.'
State v. Ieremia, 78 Wn. App. 746, 755, 899 P.2d 16 (1995), review denied, 128 Wn.2d 1009 (1996); State v. Gallegos, 73 Wn. App. 644, 652-53, 871 P.2d 621 (1994); State v. Karp, 69 Wn. App. 369, 376, 848 P.2d 1304, review denied, 122 Wn.2d 1005 (1993); State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992).
State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990); State v. Rodriguez, 48 Wn. App. 815, 820, 740 P.2d 904 (1987), review denied, 109 Wn.2d 1016 (1987).
The evidence here does not satisfy the factual prong. Based on this record, no rational juror could find that Carter acted with recklessness or criminal negligence instead of extreme indifference. At Carter's direction, Powell waited until the Caprice turned, then he turned to follow it. He pulled up alongside it as Carter was repeatedly firing into it. Nothing shows that he attempted to brake or otherwise interrupt Carter's many shots, which went on for a significant period of time. If Powell was knowingly aiding or encouraging Carter's extreme indifference, he is guilty as an accomplice to murder in the first degree. If Powell was not knowingly aiding or encouraging Carter's extreme indifference, he is not guilty of murder or manslaughter. Powell could not be guilty of manslaughter instead of murder, and the trial court did not err by so ruling.
Powell's remaining issues are unlikely to recur. Thus, we do not address them.
Carter's convictions are affirmed. Powell's murder conviction is reversed and remanded for new trial. Powell's assault convictions are reversed and on remand shall be dismissed without prejudice.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: ARMSTRONG, C.J., HUNT, J.