Opinion
No. 24268-4-III.
November 16, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-1-03436-4, Robert D. Austin, J., entered June 17, 2005.
Counsel for Appellant(s), David L. Donnan, Washington Appellate Project, Seattle, WA.
Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Kulik, J.
Brandon Martin was convicted of two counts of aggravated first degree murder, one count of attempted first degree murder, and second degree unlawful possession of a firearm. Claiming the court improperly excused two jurors for cause, the information was defective, in-life photos of the victims and hearsay were improperly admitted, the jury was improperly instructed, and the evidence was insufficient to establish premeditation, Mr. Martin appeals. We affirm.
On October 3, 2004, Mr. Martin and several of his friends were at a party at Ross Baulne's house in Mead, Washington. Mr. Martin drank alcohol, smoked marijuana, and took Oxycontin. During the party, he got angry and had a confrontation with Shane Housam. Afterwards, Mr. Martin again got upset because he thought someone had stolen his marijuana pipe. Angry, he left the party and went home.
Mr. Martin went to his house, got a rifle, and returned to the party. On his way back, he told his passenger, "I'm going to prison tonight." Report of Proceedings (RP) at 745. He was also mumbling something like "they'll get theirs." Id. Mr. Martin's mother made a call to 911 with a warning that Mr. Martin was headed to a party in Mead, possibly with a gun.
Back at the party, Mr. Martin took the rifle, kicked in the front door, and shot Thomas Morris. He then went through the home and shot Donald Corey. Mr. Baulne charged Mr. Martin, wrestling the gun away from him. Mr. Martin shot at him but missed. Mr. Baulne and Mr. Housam tackled and subdued Mr. Martin. Mr. Morris and Mr. Corey died of gunshot wounds.
The State charged Mr. Martin with two counts of aggravated first degree murder, one count of attempted first degree murder, and one count of second degree unlawful possession of a firearm. He raised a diminished capacity defense. A jury convicted him on all counts, with the court imposing a mandatory life sentence without possibility of parole. This appeal follows.
Mr. Martin first contends the court erred by improperly excusing two jurors for cause. Juror 18 was a retired registered nurse and counselor for substance abusers. She said she might have difficulty being objective. But she later indicated she could be fair. The juror also said the State would have a difficult time proving its case. The court granted the State's challenge for cause over defense objection, noting it was difficult to determine whether she could be objective.
Juror 19 had a son with bipolar disorder. She had extensive experience with the mental health system and was very emotional about it. She admitted the difficulty of remaining objective and not thinking about her own son. The court again granted the State's challenge for cause over defense objection, noting it would be too emotional for this juror to serve.
A decision to excuse members of the jury venire is reviewed for abuse of discretion. State v. Brett, 126 Wn.2d 136, 158, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). The judge is in the best position to assess whether a potential juror is able to be fair and impartial, based on observation of mannerisms and conduct. State v. Noltie, 116 Wn.2d 831, 839-40, 809 P.2d 190 (1991). The judge has wide discretion in granting or denying a particular challenge for cause. State v. Witherspoon, 82 Wn. App. 634, 637, 919 P.2d 99 (1996), review denied, 130 Wn.2d 1022 (1997).
"A prospective juror must be excused for cause if the trial court determines the juror is actually or impliedly biased." RCW 4.44.170; State v. Gosser, 33 Wn. App. 428, 433, 656 P.2d 514 (1982). Implied bias is presumed from the factual circumstances, but actual bias must be established by proof. RCW 4.44.180, .190; Noltie, 116 Wn.2d at 838. The appropriate question is "whether a juror with preconceived ideas can set them aside" and decide the case on an impartial basis. Noltie, 116 Wn.2d at 839; Gosser, 33 Wn. App. at 433.
Juror 18 and 19 exhibited signs of bias. Although both said they could be fair, the court was not convinced. It was in the best position to make such an evaluation based not only on the answers to questions, but on observing their body language and demeanor. The court did not abuse its discretion by granting the challenges for cause.
Moreover, Mr. Martin does not have a right to be tried by a jury that includes a particular juror. State v. Gentry, 125 Wn.2d 570, 615, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995); State v. Nemitz, 105 Wn. App. 205, 210, 19 P.3d 480 (2001). Since he cannot show unqualified jurors were seated as a result of the removal of jurors 18 and 19, any error in removing the jurors is harmless. See State v. Killen, 39 Wn. App. 416, 419, 693 P.2d 731 (1985).
Mr. Martin next claims the information was defective because it did not properly define the elements of the crime of aggravated first degree murder. A charging document must contain all essential facts and elements of the crime charged. State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991). The goal of this rule is to give notice to defendants of the nature of the charges so that they can prepare an adequate defense. Id. at 101.
Because Mr. Martin did not challenge the information until appeal, we liberally construe it in favor of validity. Id. at 102. A two-prong analysis is used to determine the sufficiency of a charging document when challenged for the first time on appeal: "(1) [D]o the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Id. at 105-06.
The State charged Mr. Martin with first degree premeditated murder with aggravating circumstances. The information stated:
COUNT I: PREMEDITATED MURDER IN THE FIRST DEGREE WITH AGGRAVATING CIRCUMSTANCES, committed as follows: That the defendant, BRANDON W. MARTIN, in the State of Washington on or about October 04, 2003, with premeditated intent to cause the death of another person, did cause the death of THOMAS N. MORRIS, a human being, said death occurring on or about October 4, 2003, and there was more than one victim, THOMAS N. MORRIS and DONALD W. COREY, and the murders were part of a common scheme or plan as that contained in Count II, the result of a single act, and the defendant being at said time armed with a firearm under the provisions of RCW 9.94A.602 and 9.94A.510(3),
COUNT II: PREMEDITATED MURDER IN THE FIRST DEGREE, WITH AGGRAVATING CIRCUMSTANCES, committed as follows: That the defendant, BRANDON W. MARTIN, in the State of Washington on or about October 04, 2003, with premeditated intent to cause the death of another person, did cause the death of DONALD W. COREY, a human being, said death occurring on or about October 4, 2003, and there was more than one victim, DONALD W. COREY and THOMAS N. MORRIS, and the murders were part of a common scheme or plan as that contained in Count I, the result of a single act, and the defendant being at said time armed with a firearm under the provisions of RCW 9.94A.602 and 9.94A.510(3).
Clerk's Papers (CP) at 121-22.
Mr. Martin takes issue with the information because it neither defined common scheme or plan nor alleged any facts supporting a common scheme or plan. But the fact that the information does not define the elements of a crime does not render it constitutionally defective. State v. Rhode, 63 Wn. App. 630, 635, 821 P.2d 492 (1991), review denied, 118 Wn.2d 1022 (1992).
The information contained sufficient facts for Mr. Martin to be apprised of the charges against him and permit him to prepare a defense. He has failed to show prejudice. The information was not defective.
Mr. Martin also contests the admission of in-life photographs of the victims. The admission of in-life photographs lies within the discretion of the trial court. State v. Finch, 137 Wn.2d 792, 811, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). Such photographs are relevant to establish the victim's identity. Id.
Mr. Martin argues the photos were irrelevant because he did not challenge the identity of the victims. But the State is not required to accept a stipulation as to identity and may insist on proving the issue in the manner it wishes. State v. Rice, 110 Wn.2d 577, 599, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989). If the evidence is relevant, the court must decide if the probative value is substantially outweighed by unfair prejudice to the defendant. Finch, 137 Wn.2d at 811.
The court admitted one in-life photo of each victim. There is nothing inherently prejudicial about the photos. State v. Furman, 122 Wn.2d 440, 452, 858 P.2d 1092 (1993). Mr. Martin has failed to establish unfair prejudice. The court did not abuse its discretion by admitting the photos.
Mr. Martin next claims the court erred by permitting Deputy Whapels to testify regarding statements made to him by Mr. Housam, a witness to the crime. The court permitted the testimony, finding the statements were excited utterances. We review this decision for abuse of discretion. State v. Woods, 143 Wn.2d 561, 597-98, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).
ER 803(a)(2) provides an exception to the hearsay rule for "[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." See State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997). A statement "qualifies as an excited utterance . . . if (1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition." State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000).
The shooting was a startling event. The statements by Mr. Housam were made immediately after the shooting, while he was still affected by the incident. The statements related to the incident. The statements thus qualify as excited utterances.
Mr. Martin claims the statements were not excited utterances because they were made in response to questions and were not spontaneous. While spontaneity is a crucial aspect of an excited utterance, "[t]he statement need not be completely spontaneous and may be in response to a question." State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000) (citing Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)). The circumstances at the time Mr. Housam's statements were made to the deputy adequately support the court's finding of an excited utterance and do not constitute an abuse of discretion.
Even if the statements were inadmissible hearsay, Mr. Martin must still demonstrate a reasonable probability that these statements affected the jury's verdict. See State v. Owens, 128 Wn.2d 908, 914, 913 P.2d 366 (1996). Mr. Housam did testify and his testimony mirrored the deputy's. Any error was therefore harmless.
Mr. Martin also took exception to Instruction 25, the "to convict" instruction for Count III, attempted first degree murder:
To convict the defendant of the crime of attempted murder in the first degree as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 4th day of October, 2003, the defendant did an act which was a substantial step toward the commission of murder in the first degree;
(2) That the act was done with the intent to commit murder in the first degree; and
(3) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 73. He claims this instruction improperly omitted premeditation as an element of the crime.
The failure to instruct the jury as to every element of the crime is constitutional error. State v. Eastmond, 129 Wn.2d 497, 502, 919 P.2d 577 (1996). A reviewing court may not rely on other instructions to supply the element missing from the "to convict" instruction. State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003). A "to convict" instruction that omits an element of a crime is per se reversible error. State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999); Eastmond, 129 Wn.2d at 503.
"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 (citing RCW 9A.28.020(1)). A person commits the crime of first degree murder when, with premeditated intent to cause the death of another person, he causes the death of such person. RCW 9A.32.030(1)(a).
Instruction 25 is based on 11A Washington Practice, Washington Pattern Jury Instructions: Criminal 100.02, at 219 (2d ed. 1994) (WPIC). The Note on Use states in relevant part:
If attempt to commit the crime is being submitted to the jury along with the crime charged, the jury will be receiving instructions defining and setting out the elements of the crime charged. If the basic charge is an attempt to commit a crime, a separate elements instruction must be given delineating the elements of that crime. This may require a modification of the instruction in WPIC that defines that particular crime so that the elements of that crime are delineated as separate elements necessary to constitute that crime.
WPIC 100.02, at 219. The court complied with the Note on Use. The charge was attempted first degree murder and the jury received a separate elements instruction for first degree murder listing the elements of that crime. See DeRyke, 149 Wn.2d at 910.
The challenged instruction set forth the essential elements of an attempt crime. Although the instruction could have specified that premeditated intent was required, the instructions properly informed the jury of the crime with which Mr. Martin was charged and the essential elements and definitions of the crime of attempted first degree murder.
Mr. Martin next asserts the evidence was insufficient to support his convictions for first degree murder and attempted first degree murder because there was no evidence of premeditation. When reviewing a challenge to the sufficiency of the evidence as to premeditation, we review the facts presented at trial drawing all reasonable inferences from those facts in favor of the State and interpreting the evidence most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). We defer to the jury on the credibility of witnesses and the persuasiveness of the evidence. State v. Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999). Our inquiry must include whether any rational trier of fact could have found the elements of premeditation beyond a reasonable doubt. Gentry, 125 Wn.2d at 597.
Under RCW 9A.32.020, "the premeditation required in order to support a conviction of the crime of murder in the first degree must involve more than a moment in point of time." Premeditation is "`the deliberate formation of and reflection upon the intent to take a human life.'" Gentry, 125 Wn.2d at 597 (quoting State v. Robtoy, 98 Wn.2d 30, 43, 653 P.2d 284 (1982)). It is "`the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" Id. at 597-98 (quoting State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987)).
Premeditation may be proved by circumstantial evidence, such as the existence of a motive or the use of a weapon. State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (citing Gentry, 125 Wn.2d at 599), cert. denied, 534 U.S. 1000 (2001). An inference of premeditation can be established by a wide range of proven facts. Finch, 137 Wn.2d at 831. "[M]otive, 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), cert. denied, 518 U.S. 1026 (1996). The planned presence of a weapon used to facilitate a killing has also been held to be evidence adequate to allow the issue of premeditation to go to the jury. State v. Hoffman, 116 Wn.2d 51, 83, 804 P.2d 577 (1991); State v. Tikka, 8 Wn. App. 736, 742, 509 P.2d 101, review denied, 82 Wn.2d 1007 (1973).
The evidence here supports a finding of premeditation. Mr. Martin argued with Mr. Housam at the party. He became angry when he thought someone had stolen his marijuana pipe. He left the party very angry and drove home at high speeds. Mr. Martin got a gun from his house. On the drive back to the party, he told his passenger "they'll get theirs" and "I'm going to prison tonight." RP at 745. Back at the party, Mr. Martin took the gun and kicked in the front door. He pointed the gun at Mr. Morris, who had his hands up, and fired. The evidence was sufficient to find premeditation.
Mr. Martin nevertheless argues he was unable to form premeditated intent because of the amount of drugs and alcohol in his system at the time of the murders. In order to support his diminished capacity defense, Mr. Martin had two experts testify that he was not able to form premeditated intent that evening. The State presented testimony to the contrary. The jury was instructed on the defense. This is a credibility determination with the jury entitled to believe the State's witnesses over the defense witnesses. Bonisisio, 92 Wn. App. at 794; see also State v. Putzell, 40 Wn.2d 174, 179, 242 P.2d 180 (1952); State v. Skinner, 1 Wn. App. 493, 500, 463 P.2d 193 (1969) (a jury is not bound by unanimous expert testimony that a defendant lacked capacity to commit the crime because of insanity; the ultimate decision regarding sanity is the responsibility of the jury after considering all the evidence and the law as given by the court).
Pro se, Mr. Martin argues the evidence did not establish that he procured the murder weapon. But several witnesses saw him holding the gun.
Mr. Martin further asserts the court erred by giving the reasonable doubt instruction approved in State v. Castle, 86 Wn. App. 48, 52 n. 1, 53-58, 935 P.2d 656, review denied, 133 Wn.2d 1014 (1997), over the WPIC instruction. "In a criminal case, the trial court must instruct the jury that the State has the burden to prove each essential element of the crime beyond a reasonable doubt." State v. Bennett, 131 Wn. App. 319, 324, 126 P.3d 836 (2006). "It is reversible error if the instructions relieve the State of that burden." Id. The court's instruction on reasonable doubt provided:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find that it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
CP at 51. This instruction was modeled after the federal pattern instruction and is identical to the instruction approved by Division One of this court in Castle, 86 Wn. App. at 52 n. 1, 53-58. With modifications suggested in Castle, it is included in the Washington pattern jury instructions as an alternative to the standard reasonable doubt instruction. WPIC 4.01, at 65; WPIC 4.01A, cmt. at 68-69. Several federal appellate courts have also concluded the pattern federal instruction is proper. See United States v. Taylor, 302 U.S. App. D.C. 349, 997 F.2d 1551, 1557 (D.C. Cir. 1993) (listing decisions in other circuits).
Mr. Martin claims this instruction was unfair and gave the jury the impression that reasonable doubt was not important. But this instruction properly defined reasonable doubt and is no basis for reversal.
Mr. Martin also claims the judge confused the jury by misstating the instruction. He refers to the portion of the record containing voir dire. But the statements mirror the instruction given at the close of evidence.
Mr. Martin also claims the Castle instruction is not appropriate in serious criminal cases. Reasonable doubt, however, does not change based upon the seriousness of a crime. The Castle instruction properly instructs the jury on reasonable doubt and was proper.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J. and KULIK, J., concur.