Opinion
No. 63757-6-I.
Filed: May 2, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-00857-2, Catherine D. Shaffer, J., entered July 6, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Becker and Appelwick, JJ.
Damario Dillard appeals his convictions for murder in the second degree and two counts of assault in the second degree. On appeal, Dillard argues that (1) the trial court abused its discretion in admitting evidence about his possession and handling of a gun on the day before the shooting; (2) the court erred in denying his motion for a new trial because the jury inadvertently heard testimony regarding his admission that he stole the gun he used in the shooting; and (3) application of the felony murder rule in this case violates his right to equal protection and due process. We affirm.
I
The charges in this case arise from a gang-related shooting that took place in the parking lot of a South Seattle apartment complex in the early morning hours on August 28, 2007. According to numerous witnesses who testified at trial, Damario Dillard was a member of a street gang known as Deuce 8. Deuce 8 is based in the Central District of Seattle where Dillard grew up. In the summer of 2007, there was an ongoing feud between Deuce 8 and an offshoot gang called Low Profile, or LP.
For several days leading up to the shooting, Dillard was staying at the apartment of his friend Amber Corner. Corner shared a two-bedroom apartment with a roommate, Raquael Grace. On the evening of August 27, Dillard was with Corner at the apartment with another friend, Laura Jeffries, and a man known as B.G. Dillard had spent much of the day drinking. Corner's roommate, Grace, came home. Two sisters who also lived at the complex came over to visit Grace.
Later in the evening, Grace received a call from her cousin Henry "Jay" Harris. Harris had been sprayed with mace and asked Grace if he could come over to wash it off and charge up his cell phone. Harris told Grace that two friends, Antwon Horton and Kevin "Little Calvin" Rogers, were with him. Horton and Rogers were members of the LP gang. Although Grace knew about the gang rivalry, she agreed.
Grace told Corner that her cousin and his two friends were coming over. She asked Corner what her friends were going to do because Dillard and her guests that were soon to arrive were from "different hoods" and Grace did not want any "drama." Report of Proceedings (RP) (April 22, 2009) at 56, 59. Corner agreed that she and her friends would move out of the living room area and stay in her room.
Harris, Horton, and Rogers arrived at the apartment at 11:30 p.m. Harris washed up and plugged in his telephone. The group was eating and watching music videos in the living room. This was an "uncomfortable situation" for Dillard. RP (April 22, 2009) at 137. He sat with his gun on his lap in Corner's room and behaved "[l]ike his nerves were on edge." RP (April 22, 2009) at 138. Jefferies decided to call Dillard's friend, another Deuce 8 member, to summon his assistance. Jeffries told Dillard what she intended to do, and he agreed. Jefferies did not ask to borrow a telephone from anyone in the living room. Instead, she left the apartment at about midnight and walked to a nearby Safeway to use the pay phone. She called Dillard's friend and returned about ten minutes later.
When Jeffries came back, she told Dillard that his friend was on his way. Dillard said he was going to shoot out the window to "scare these niggas out of here." RP (April 22, 2009) at 145. He proceeded to fire three shots out of Corner's bedroom window. The people in the living room were startled and disconcerted because they did not know where the shots came from.
Jeffries and Dillard looked out the window and saw two men who resembled Dillard's friends walking toward the complex. Dillard remarked that they had come to get him and walked out of the bedroom. As he walked through the apartment, he passed Harris who was on his way back in to the apartment after moving his car. Harris was surprised to see him, because he had been unaware of Dillard's presence. Dillard left without saying anything.
Grace indicated it was time for Harris and his friends to leave. Unbeknownst to the others, Grace had arranged a secret romantic tryst with Dion "Chicago" Macklin, who was also affiliated with Deuce 8. Macklin had called Grace to tell her he had arrived at the apartment complex. Harris, Horton, and Rogers got ready to leave. Just before 1:00 a.m. on August 28, Grace and her two female friends walked the three guests to the elevator. Simultaneously, Grace received another call from Macklin who was waiting to be let in. During that call, Dillard got on Macklin's telephone and asked Grace why she had "all them niggas up there." RP (April 22, 2009) at 71. Grace responded that they were cousins and in any case, they were leaving. Dillard exclaimed, "They're leaving. They're leaving," and hung up. RP (April 22, 2009) at 72.
When Grace and her friends walked back inside the apartment, Corner was agitated. She jumped on the couch and exclaimed that the Deuce 8s were outside and "[s]omebody is about to die tonight." RP (April 22, 2009) at 75. Grace frantically tried to call Harris's cell phone to warn him.
Meanwhile, Harris, Horton, and Rogers left the building. As they rounded the corner and walked toward Harris's car, they encountered a group of seven Deuce 8 members. Four, including Dillard, were armed. Harris heard one say, "[w]hat's up nigga. What's up with it now." RP (April 15, 2009) at 104. The group collectively fired approximately 30 rounds of ammunition at the three men as they turned and fled. Harris and Rogers were both struck from behind by bullets in the lower legs. Horton was shot in the back of the head and fell face down on the sidewalk.
The shooters scattered and fled in at least two different vehicles. As they were leaving, an onlooker overheard one say, "Did you get him?" RP (April 17, 2009) at 106. Before he left the scene, Dillard discarded his gun behind the tire of an RV in the parking lot.
As Harris hid behind some dumpsters, his telephone was vibrating because Grace was repeatedly trying to call him. Once he thought the shooters had left, Harris retrieved his car keys and limped to his car. As he drove, he answered his telephone and told Grace he had been shot. He stayed on the line with Grace for a few blocks and then pulled into a gas station. He got out of the car and fell to the ground. Medical assistance arrived and Harris was taken to Harborview Medical Center and treated for bone and vascular damage.
Rogers tried to flee on foot and collapsed on a major roadway. He was also treated for his leg injuries at Harborview. Horton suffered massive brain damage. He was pronounced dead later that day at the hospital.
The police were not able to find Dillard for several months, but finally arrested him in January 2008. When the police interviewed him, Dillard admitted that he shot a 40-caliber pistol out of Corner's window, and later fired with the others in the parking lot. Dillard denied these actions were the result of gang rivalry. He said he fired his gun out of the window because he had never fired the gun before. He said that when he fired again in the parking lot he was firing in the direction of the LP members, but not at them. He said he was "caught up in the moment" and "just shooting just to be shooting." State's Ex. at 10, 14.
The State charged Dillard with alternate charges of second degree intentional murder and felony murder for the death of Horton. The State also charged Dillard with two counts of assault in the first degree for the assaults on Harris and Rogers.
Dillard testified at trial. He denied being a gang member and denied that he felt trapped in Corner's room when the LPs were in the apartment. Dillard said he coincidentally ran into Macklin and some other people who he did not really know after leaving the apartment. He said he was standing in the parking lot when he heard shots and fired his gun in the air in response because he did not know if the shots were being fired at him. Dillard claimed self-defense, and argued that some of the evidence suggested that the LP members may have also been armed or may have provoked the conflict.
Following a four-week long trial, the jury convicted Dillard of murder in the second degree and two lesser-included charges of assault in the second degree. With respect to each count, the jury found that Dillard was armed with a firearm. The trial court imposed a standard-range sentence. Dillard appeals.
II
Dillard first claims that the trial court erred in admitting Jeffries' testimony that a day or two prior to the shooting, she saw Dillard cleaning a gun. She said he wiped the bullets with a gang flag and then reloaded them. Dillard argues this was prejudicial evidence showing only a general propensity to commit crimes. But assuming this was evidence of a prior "bad act" within the ambit of ER 404(b), and further assuming the trial court erred in ruling that the evidence was probative of Dillard's intent to commit the charged crimes, the erroneous admission of ER 404(b) evidence is harmless unless there is a reasonable probability that the error materially affected the outcome of the case. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). "Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole." State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).
In this case, it was undisputed that Dillard possessed a gun and used that gun twice on the night the three victims were shot. Dillard admitted that he fired three shots out the window and later fired the remaining six shots in the parking lot. Dillard testified that he knew how much ammunition he had because the day before the shooting, he took the bullets out of the gun, counted, and reloaded them. The only thing Jeffries' testimony added was that while doing this, Dillard also wiped the bullets with a gang flag. This testimony was relevant because it was evidence of Dillard's gang affiliation, which he denied. As Dillard concedes, there was a significant amount of evidence about Dillard's gang association and possession of gang flags, so the admission of this piece of information in Jeffries' testimony was merely cumulative and not prejudicial. And while Jeffries said she assumed the purpose of wiping the bullets was to erase any fingerprints, she admitted that this was merely an assumption and that she did not actually know anything about guns.
We conclude that the significance of this evidence was minor. Given these circumstances, Dillard cannot establish a reasonable probability that Jeffries' testimony that Dillard loaded his gun and wiped the bullets the day before the encounter materially affected the outcome of the case.
III
Dillard next argues that the trial court erred in denying his motion for a new trial. Pretrial, the parties redacted Dillard's interview with the police. Most of the redacted material pertained to police questioning of Dillard about other unrelated crimes. But the parties also agreed to redact Dillard's volunteered admission that he stole the gun the day before the shooting. The parties omitted this statement in the written transcript of the interview. And during the trial, when the recorded interview was played for the jury, the prosecutor turned down the volume and muted this statement. Nevertheless, during deliberations, the jury asked to view the recording of Dillard's police interview and was inadvertently allowed to hear Dillard's statement that he stole the gun.
At a later point during the same interview, Dillard recounted some details about how he stole the gun, explaining that he beat up someone who he thought was a Mexican, took the person's backpack, and found the gun. This portion was physically redacted from the recording and, contrary to the assertion in Dillard's brief, was not heard by the jury.
After the jury reached its verdict, Dillard moved for a new trial. The trial court denied Dillard's motion, noting that Dillard's statement about stealing the gun was redacted by agreement, not pursuant to a court ruling. The court also pointed out that Dillard's statement, "I stole it from somebody," was possibly inaudible, and that even if the jury heard it, it was "extraordinarily unlikely that it had any prejudicial impact." State's Ex. at 14; RP (May 7, 2009) at 13. Dillard maintains, however, that this was a serious trial irregularity that warrants reversal of his convictions.
Although the transcript refers to a motion for a mistrial, the motion was actually one for a new trial under CR 59(a)(1) based on a prejudicial irregularity in the proceedings.
The granting or denial of a new trial is a matter primarily within the discretion of the trial court, and the decision will not be disturbed in the absence of a clear abuse of that discretion. State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997). We accord deference to the trial court because it is in the best position to discern prejudice. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). "In a criminal proceeding, a new trial is necessitated only when the defendant `has been so prejudiced that nothing short of a new trial can insure that the defendant will be treated fairly.'" Bourgeois, 133 Wn.2d at 406 (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)).
In the context of all the evidence presented in the case, the brief reference to stealing the gun did not deprive Dillard of a fair trial, particularly since the reference heard by the jury did not include any of the more inflammatory details about the stealing, which actually involved a robbery. As noted by the trial court, no evidence was presented in violation of a court order or pretrial ruling. The irregularity, if any, was not so serious or prejudicial as to require a new trial and the court did not abuse its discretion by denying the motion for a new trial.
IV
Finally, Dillard contends that the State's decision to charge him with felony murder in violation of RCW 9A.32.050(1)(b) as an alternative means of committing second degree murder violates his right to equal protection and due process. The felony murder statute, RCW 9A.32.050(1)(b) provides, in relevant part: "A person is guilty of murder in the second degree when: He or she commits or attempts to commit any felony, including assault, other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants." In this case, the jury was instructed that to convict Dillard of felony murder it had to conclude that Dillard was committing assault in either the first or second degree and that Horton died in the course of and in furtherance of that crime.
As an initial matter, Dillard claims that even though the State charged him with both intentional and felony murder, it relied solely on the theory of felony murder. He, therefore, maintains that he is in the same position as a person charged only with felony murder. But although felony murder was the State's primary theory, the State also asserted that the evidence was sufficient to establish that Dillard committed intentional murder. We reject the premise of Dillard's argument.
See RCW 9A.32.050(1)(a) (a person is guilty of intentional second degree murder if, with "intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person").
Nevertheless, even if Dillard had been charged solely with felony murder, we have previously rejected the various challenges he raises to the constitutionality of the felony murder statute and we decline the invitation to reconsider those decisions. Specifically, Dillard contends that the felony murder statute is unconstitutional when based on the underlying crime of assault because the elements of felony murder are indistinguishable from those of manslaughter and the prosecutor has unlimited discretion to charge either crime. To the contrary, our courts have held that felony murder and manslaughter do not share the element of intent. Manslaughter requires intent with respect to the death, whereas felony murder requires intent to commit the felony that proximately caused a death. State v. Gamble, 154 Wn.2d 457, 467-68, 114 P.3d 646 (2005); State v. Armstrong, 143 Wn. App. 333, 341-42, 178 P.3d 1048, (2008). Prosecutorial discretion is therefore constrained because the crimes require proof of different elements. State v. Wanrow, 91 Wn.2d 301, 312, 588 P.2d 1320 (1978) (rejecting the argument that felony murder based on assault violates equal protection because the same acts could give rise to charges of assault, manslaughter, or felony murder; the crimes have different elements and therefore the amount of discretion vested in the prosecutor is not unconstitutional).
Dillard also claims that when a person assaults another resulting in death the statutory scheme arbitrarily allows the State to charge either intentional or felony murder. Dillard points out that this unfettered discretion allows the State to be relieved of the burden of proving intent to kill and results in some offenders being treated differently because those charged with felony murder are not entitled to lesser-included instructions on manslaughter. Dillard's argument is merely theoretical in this case because he was charged with both intentional and felony murder and the instructions included those for the lesser-included crime of manslaughter. Moreover, this argument is foreclosed by our previous decisions in Armstrong, 143 Wn. App. at 340, and State v. Gordon, 153 Wn. App. 516, 527, 223 P.3d 519 (2009), review denied, 169 Wn.2d 1011 (2010).
Many of Dillard's arguments reflect disagreement with the legislature's 2003 amendment of the felony murder statute to explicitly include the crime of assault as a predicate felony. He argues that the amendment does not resolve the central problems identified by the court in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), and the statute as amended is unconstitutionally vague. But the Supreme Court's interpretation of the former statute in Andress, rejected by the legislature, does not guide our interpretation of the current statute. Armstrong, 143 Wn. App. at 344. And, as we recently noted, the statute's res gestae issue is "no longer problematic" because the discussion in Andress about the "in furtherance of" language of the statute was an attempt to derive the legislature's intent. Gordon, 153 Wn. App. at 529. The legislature's amendment makes its intent clear. Felony murder may be premised on the crime of assault. We have further concluded that the statute as amended satisfies rational basis review. Armstrong, 143 Wn. App. at 340; Gordon, 153 Wn. App. at 527.
Affirmed.