Opinion
No. 56656-3-I.
March 19, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-06406-2, Helen Halpert, J., entered June 27, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Seattle, WA.
Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.
Lee Davis Yates, King County Prosecutor's Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
A jury found Kenneth Wyatt guilty of one count of attempted first degree murder and one count of first degree assault following a shooting at a Seattle nightclub. On appeal, we conclude that the evidence was sufficient to support Wyatt's convictions, that the "to convict" instruction for attempted first degree murder included all essential elements, that the deputy prosecutor's closing argument was not improper, and that the sentencing court did not err in imposing consecutive terms. Accordingly, we affirm.
FACTS
On the evening of July 2, 2004, Michael Westbrook and several acquaintances attended a promotional party for Prolific Records at the X-Factor Club on Capitol Hill.
Upon entry to the club, all patrons were frisked for weapons.
Inside the club, Westbrook socialized with friends, including Reggie Williams. At one point, Westbrook heard Williams say, "What's up, cous" to someone standing nearby. A man later identified as Kenneth Wyatt responded loudly, "I'm not your cous, blood." Fearing that Williams' comment might be misinterpreted as a gang-related provocation, Westbrook stepped in to "diffuse" the situation. But the confrontation escalated as Westbrook and Wyatt began arguing. Westbrook eventually pushed Wyatt away and the two wrestled briefly before security guards intervened. Westbrook was permitted to stay in the club, while Wyatt, protesting loudly, was escorted outside.
When the club started to close about 40 minutes later, Westbrook and a friend stepped outside and waited for the other members of their group. Wyatt approached Westbrook and indicated that he wanted Westbrook to move away from the club and talk. Recognizing Wyatt as the man from the confrontation inside the club, Westbrook became concerned, declined to talk, and backed away. Wyatt paced back and forth briefly and then disappeared behind a nearby vehicle. A short time later, Westbrook saw Wyatt approaching again. When Wyatt was about four feet away, he screamed something at Westbrook. Believing that Wyatt might have a weapon, Westbrook "lunged" at him and attempted to grab his arms. After a brief struggle, Westbrook was shot in the neck and fell to the ground. Westbrook, who did not see a gun at any point, felt several more shots as he fell and rolled around on the ground. Westbrook was shot a total of four times, suffering wounds in his arm, neck, and chest. One witness saw a man tuck a gun into his shirt and jog away shortly after the shooting.
David Burgess saw Wyatt approach Westbrook initially and then separate. As Wyatt walked around a nearby vehicle, Burgess saw a semi-automatic pistol in his right hand. Wyatt then approached Westbrook again and, after a brief conversation, shot Westbrook four or five times. Burgess did not see a struggle before the shooting. Burgess later reviewed police photographs and identified Wyatt as the shooter.
Jackie Gray was helping to clean up at the X-Factor Club at the time of the shooting. While picking up glasses from a table, she was struck in the back by a bullet that had gone through the wall of the club. At the time of trial, the bullet remained lodged near Gray's spine. Despite continuing pain, Gray had decided not to have the bullet removed because of the risk of spinal cord damage.
The gun used in the shooting was never found, but police recovered four shell casings at the scene of the shooting, as well as bullet fragments and a slug on the sidewalk. Evan Thompson, a ballistics expert, testified that all four casings were .40 caliber and had been fired from the same gun. Based on the design of the casings and bullets, Thompson determined that there were three possible weapons that might have been used in the shooting. Thompson described one of the weapons, a .40 caliber Charles Daly, as "very uncommon" in the Seattle area.
Wyatt was the registered owner of a .40 caliber Charles Daly, purchased March 17, 2004.
Kenneth Wyatt was charged with one count of attempted first degree murder and one count of first degree assault; each count included a firearm enhancement. The jury found Wyatt guilty as charged, and the court imposed a consecutive-term sentence totaling 393 months.
DECISION
Wyatt first contends that the evidence was insufficient to establish that he acted with premeditation. He argues that the scuffle in the club provided no motive for attempted murder and that the State's evidence established only that he acted impulsively or spontaneously. Evidence is sufficient to support a finding of guilt if, when viewed in the light most favorable to the State, a rational trier of fact could have found guilt beyond a reasonable doubt. State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (2001).
In order to establish attempted first degree murder, the State was required to prove that Wyatt, with premeditated intent to cause the death of another, took a substantial step towards the commission of that act. State v. Price, 103 Wn. App. 845, 851 — 52, 14 P.3d 841 (2000); RCW 9A.32.030(1)(a). Premeditation is "the deliberate formation of and reflection upon the intent to take a human life." State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982). It involves the mental process of deliberation and reasoning "`for a period of time, however short.'" State v. Gentry, 125 Wn.2d 570, 598, 888 P.2d 1105 (1995) (quoting State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987)); see also RCW 9A.32.020(1) (premeditation "must involve more than a moment in point of time"). Motive, procurement of a weapon, stealth, and method of killing are factors relevant to establishing premeditation. State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995).
Here, the evidence established that Wyatt became upset when he was ejected from the X-Factor Club after scuffling with Westbrook. Because all club patrons were frisked for weapons upon entry, the jury could reasonably infer that once outside, Wyatt retrieved a gun and waited for Westbrook to leave. Wyatt then approached Westbrook twice with the gun, unsuccessfully attempting to persuade him to move away from the club. Although the first shot apparently occurred while Wyatt and Westbrook were struggling, Wyatt shot Westbrook several more times after Westbrook had fallen to the ground. Viewed in the light most favorable to the State, the foregoing circumstances, including the procurement of a weapon and the firing of multiple shots, were sufficient to establish that Wyatt acted with reflection and deliberation rather than impulsively and that his actions were taken with premeditated intent. See State v. Rehak, 67 Wn. App. 157, 164, 834 P.2d 651 (1992) (evidence that victim shot twice after falling to the floor supported finding of premeditation); State v. Massey, 60 Wn. App. 131, 145, 803 P.2d 340 (1990) (planned presence of a weapon necessary to facilitate a killing is sufficient to support finding of premeditation).
Wyatt next contends that the evidence was insufficient to establish that he assaulted Westbrook with the intent to inflict great bodily harm. He argues that his conviction for first degree assault involving Jackie Gray must therefore be reversed. For purposes of first degree assault, once the defendant's specific intent to inflict great bodily harm is established, "the mens rea is transferred under RCW 9A.36.011 to any unintended victim." State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994).
The evidence that Wyatt deliberately shot Westbrook four times with a semi-automatic pistol was sufficient to establish both an intent to kill as well as an intent to inflict great bodily harm. See Price, 103 Wn. App. at 853. The evidence was therefore sufficient to support Wyatt's conviction for first degree assault.
Wyatt next contends that his due process rights were violated because the "to convict" instruction for attempted first degree murder failed to include all essential elements of the offense. He argues that in order to be constitutionally sufficient, the "to convict" instruction must include the element of premeditation.
Because it serves as a "yardstick" by which the jury measures the evidence in determining guilt or innocence, the "to convict" instruction must generally contain all elements of the charged crime. State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003); see also State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). The jury is not required to search other instructions for elements necessary for conviction. State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002).
"An attempt crime contains two elements: intent to commit a specific crime and taking a substantial step toward the commission of that crime." DeRyke, 149 Wn.2d at 910. The "to convict" instruction in this case correctly informed the jury that in order to convict Wyatt of attempted first degree murder, the State was required to prove that he committed an act that was a "substantial step" toward the commission of first degree murder and that the act was done with the intent to commit first degree murder.
Instruction 4. The elements of first degree murder, including premeditation, were accurately set forth in Instruction 6; additional instructions defined "premeditation" and "substantial step."
The instructions here followed the approach set forth in WPIC 100.02, which recommends a "to convict" instruction setting forth the essential elements of the attempt crime and a separate instruction delineating the elements of the attempted crime. See Note on Use, 11A Washington Practice, Washington Pattern Jury Instructions: Criminal 100.02, at 219 (2d ed. 1994 Supp. 1998). Our Supreme Court approved this approach in DeRyke, rejecting the defendant's claim that the "to convict" instruction for attempted first degree rape was deficient because it did not include all of the elements of the attempted crime. DeRyke, 149 Wn.2d at 911. Accordingly, the "to convict" instruction here correctly set forth all essential elements of attempted first degree murder and was not required to include premeditation. Wyatt next contends the deputy prosecutor committed reversible misconduct when she concluded her closing argument as follows:
I started my comments today talkig about tragedy. The only other tragedy left in this case is if the defendant is not held accountable for his conduct. The only proper ending to this story are the voices of 12 jurors coming back to hold the defendant accountable for what he's done, 12 voices saying, no, you cannot, because of pride or stupidity or revenge, shoot a man four times. You cannot, in your recklessness, unleash bullets that hit innocent people.
Verbatim Report of Proceedings (May 24, 2005 at 39 (emphasis added). Citing State v. Bautista-Caldera, 56 Wn. App. 186, 783 P.2d 116 (1989), Wyatt argues that the emphasized comment constituted an improper emotional appeal to the jury to "send a message" to society about senseless shootings.
A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). This court reviews allegedly improper comments in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Moreover, because Wyatt did not object to the challenged comments, he has waived any error unless the misconduct was so flagrant and ill-intentioned that no curative instruction could have obviated the resulting prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
In Bautista-Caldera, a prosecution for statutory rape and indecent liberties, the deputy prosecutor urged the jury, among other things, to `let [the child victim] and children know that you're ready to believe them and [e]nforce the law on their behalf.'" Bautista-Caldera, 56 Wn. App. at 195. On appeal, this court found the comments improper because they were not based solely on the evidence and in effect exhorted the jury to "send a message" to society about the general problem of child abuse. Bautista-Caldera, 56 Wn. App. at 195. Unlike Bautista-Caldera, the deputy prosecutor in this case did not urge the jury to look beyond the evidence when reaching its verdict. Rather, the challenged remarks, which occurred at the conclusion of a lengthy summary of the evidence supporting the State's case, focused solely on the defendant and his actions. Viewed in context, the deputy prosecutor's remarks were not improper and merely summarized the State's view that the evidence established Wyatt's guilt. See Brown, 132 Wn.2d at 566 (deputy prosecutor is afforded wide latitude during closing argument to express reasonable inferences from the evidence). Moreover, even if there were some impropriety in the argument, a curative instruction would have neutralized any resulting prejudice. See Bautista-Caldera, 56 Wn. App. at 195 (curative instruction would have neutralized any prejudice from improper argument). The fact that defense counsel did not object suggests strongly that the challenged comments did not appear prejudicial in the context of the trial. See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Finally, Wyatt challenges the imposition of consecutive sentences for the attempted first degree murder and first degree assault convictions. Under RCW 9.94A.589(1)(b), the sentencing court is required to impose consecutive sentences when the defendant commits two or more "serious violent offenses" that arise from "separate and distinct criminal conduct." Where, as here, offenses involve separate victims, they necessarily arise from separate and distinct criminal conduct. See In re Pers. Restraint of Orange, 152 Wn.2d 795, 821, 100 P.3d 291 (2004).
Wyatt argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the jury, rather than the sentencing judge, must determine whether his offenses constituted separate and distinct conduct. But our Supreme Court considered and rejected an identical challenge in State v. Cubias, 155 Wn.2d 549, 120 P.3d 929 (2005), concluding that neither Apprendi nor Blakely applies to the imposition of consecutive sentences under RCW 9.94A.589(1)(b). Cubias, 155 Wn.2d at 553-56. Cubias is controlling here. Wyatt's claim that Cubias was wrongly decided must be directed to our Supreme Court. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984).
Affirmed.