In re Knight

IN THE MATTER OF THE PERSONAL RESTRAINT PETITION OF: AMANDA CHRISTINE KNIGHT, Petitioner.

No. 49337-3-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

December 4, 2018

UNPUBLISHED OPINION

SUTTON, J. — Amanda Christine Knight seeks relief from personal restraint following her jury trial convictions for the first degree felony murder of James Sanders; the first degree robberies of James¹ and his wife Charlene Sanders; the second degree assaults of Charlene and one of James's children, JS; and the first degree burglary. We affirmed Knight's convictions on direct appeal. State v. Knight, 176 Wn. App. 936, 309 P.3d 776 (2013). In her personal restraint petition (PRP), Knight claims, for the first time, that because the jury instructions did not require the jury to specify which first degree robbery was the predicate offense for the felony murder conviction, her conviction for the first degree robbery of James merges with the felony murder conviction. She also claims that because State v. Whittaker² changed the way that courts analyze the merger doctrine, we should reconsider our prior decision rejecting her argument that the convictions forthe first degree robbery of Charlene and the second degree assault of Charlene did not merge. Alternatively, Knight claims that the evidence is insufficient to support the convictions for the first degree felony murder of James and the convictions for the second degree assaults of Charlene and JS based on accomplice liability. In addition, she asserts that she received ineffective assistance of appellate counsel because her appellate counsel failed to adequately address her merger arguments on direct appeal.

We hold that (1) the independent purpose or effect rule prevents the merger of the convictions for the first degree felony murder and the first degree robbery of James, (2) Whittaker did not change the merger analysis, so we decline to reconsider Knight's other merger argument, (3) the evidence is sufficient to support the convictions for the first degree felony murder and the second degree assaults of Charlene and JS, and (4) Knight's appellate counsel did not provide ineffective assistance of appellate counsel by failing to adequately address the merger arguments. Accordingly, we deny this PRP.

FACTS

I. BACKGROUND

In April 2010, Knight, Kyoshi Higashi, Joshua Reese, and Clabon Berniard jointly participated in a home invasion robbery in Lake Stevens. Knight, 176 Wn. App. at 941. Not long after, on April 28, Higashi contacted Knight and told her that he wanted to commit another robbery.

After Higashi found a Craigslist advertisement for a wedding ring posted by James Sanders, Knight contacted James and asked to see the ring. Wanting to arrive after dark, Knight arranged to meet James at the Sanderses' house at 9:00 PM.

Knight drove Higashi, Berniard, and Reese to the Sanderses' house and parked so they could make a quick getaway. Higashi was in possession of Knight's firearm; Reese and Berniard were also armed. Reese and Berniard remained in the car. Knight and Higashi met James outside the house. The three then entered the Sanderses' kitchen.

Once inside, James gave an old wedding ring to Knight and Higashi. James then called upstairs to his wife, Charlene, to help him answer the questions that Knight and Higashi were asking about the ring. The Sanderses' two children, JS and CK, remained upstairs.

Knight told James that she was interested in buying the ring. At first, Higashi revealed a large amount of cash, but he then drew a gun and threatened James and Charlene. "Charlene and James told Higashi and Knight to take whatever they wanted and to leave." Knight, 176 Wn. App. at 942.

Knight zip-tied Charlene's hands behind her back and removed Charlene's wedding ring from her finger. Higashi zip-tied James's hands behind his back. After Knight or Higashi removed James's wedding ring from his finger, they ordered James and Charlene to lie face down on the floor.

Through a Bluetooth headset, Knight signaled Reese and Berniard to enter. "Knight knew that Reese and Berniard possessed loaded guns and that using these guns was part of the group's plan to carry out the Sanderses' home invasion robbery." Knight, 176 Wn. App. at 942.

Once inside the house, Reese and Berniard went upstairs and returned with the two Sanders children. At gunpoint, Reese and Berniard forced the boys to lie face down near the kitchen entryway. Charlene and JS watched as Knight and Higashi gathered items from the house. Knight also searched the main upstairs bedroom for additional items to steal.

While Knight was upstairs, Berniard held a gun to Charlene's head and asked where their safe was. When Charlene responded that they did not own a safe, Berniard kicked her in the head and threatened to kill her and her children. Charlene believed she was going to die. She eventually admitted that there was a safe in the garage, and Berniard forced James into the garage to open the safe.

When Berniard forced James into the garage to open the safe, James broke free of his restraints and attacked Berniard. "Berniard shot James in the ear, knocking him unconscious." Knight, 176 Wn. App. at 943. JS then jumped on Berniard. Berniard "threw JS off and began hitting him with the butt of his firearm." Knight, 176 Wn. App. at 943.

Reese then dragged James through the kitchen and into the adjacent living room, where they were out of sight. "Either Reese or Berniard shot James multiple times, causing fatal internal bleeding." Knight, 176 Wn. App. at 943.

Immediately following the gunshots, the four intruders fled. After they left, Charlene found James on the living room floor and called 911.

James was declared dead at the scene. JS was treated at the hospital for bruising and bleeding around his left ear. JS's scars were still visible a year later. In addition to the rings, the intruders took a PlayStation, an iPod, and a cellular phone from the Sanderses' house.

The next morning, Knight, Higashi, and Reese drove to California. On their way, they sold the Sanderses' PlayStation and Knight's firearm. California police eventually arrested them on unrelated charges. After posting bail, Knight pawned James's wedding ring, returned to Washington, and turned herself into the police.

II. PROCEDURE

A. TRIAL

The State charged Knight with (1) first degree felony murder of James (Count I), (2) first degree robbery of James (Count II), (3) second degree assault of JS (Count III), (4) first degree robbery of Charlene (Count IV), (5) second degree assault of Charlene (Count V), and (6) first degree burglary (Count VI). The State alleged that Knight acted as an accomplice to all of these crimes and that one of the participants in the crime was armed with a firearm when each of the crimes occurred.

As to the first degree robbery charges, the jury instructions did not explicitly state that the robberies were based on the theft of James's and Charlene's wedding rings. The instructions stated that the jury had to find, "[t]hat in the commission of [the robbery] the defendant or an accomplice was armed with a deadly weapon," or "[t]hat in the commission of [the robbery] the defendant or an accomplice inflicted bodily injury." PRP, App. C (Jury Instruction 26).

As to the felony murder charge, the jury instructions provided that the State was required to prove that "the defendant or an accomplice committed Robbery in the First Degree." PRP, App. A (Instruction 9). The to convict jury instruction for the felony murder charge stated:

To convict the defendant of the crime of Murder in the First Degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about April 28, 2010, the defendant or an accomplice committed Robbery in the First Degree;

(2) That the defendant or an accomplice caused the death of James Sanders, Sr., in the course of or in furtherance of such crime;

(3) That James Sanders, Sr. was not a participant in the crime of Robbery in the First Degree; and

(4) That any of these acts occurred in the State of Washington.

PRP, App. A (Instruction 9).

During closing argument, the State discussed the elements of each charge as set out in the court's jury instructions and summarized the evidence supporting the elements of each charge. The State specifically argued that the first degree robberies of James and Charlene were based on the taking of James's and Charlene's wedding rings at gunpoint.

Specifically, the State argued,

I'm going to go through [the to convict jury instructions], briefly, the elements of these crimes have been admitted to by Ms. Knight and the evidence is clear that she committed each and every one of these crimes. The [S]tate has to prove on April [28], 2010, the defendant or an accomplice unlawfully took personal property from the person of James Sanders. You will recall this happened on April [28th] and the wedding ring was taken from Jim's hand, leading directly to [Knight] because she pawned that wedding ring in California.

The defendant intended to commit theft of property. She told the [S]tate that that was their intention was to rob the Sanders. It is against a person's will by use of force, violence, or fear. Kyoshi Higashi pointed a gun at James Sanders. He pointed it at Charlene as well. She was beaten profusely, badly. The force or fear was used by the defendant or an accomplice to obtain or retain possession of the property. This was accomplished when he pointed the gun. It was facilitated when Amanda zip-tied Charlene, put her on the ground, Higashi zip-tied Jim Sanders, and his wedding ring was stolen.

The [S]tate has to prove that either A or B, that the defendant or an accomplice was armed with a deadly weapon—and a firearm is a deadly weapon—or that the defendant or an accomplice inflicted bodily injury. And Jim Sanders was beaten. . . .

The same thing with respect to robbery in the first degree in Count IV. That's the robbery specific to

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