State v. Eggleston

Page 959

118 P.3d 959

129 Wn. App. 418

STATE of Washington, Respondent, v. Brian EGGLESTON, Appellant.

No. 29915-1-II.

Court of Appeals of Washington, Division 2.

August 31, 2005.

Sheryl Gordon McCloud, Attorney at Law, Seattle, WA, for Appellant.

John Michael Sheeran, Attorney at Law, Tacoma, WA, for Respondent.

PART-PUBLISHED OPINION

ARMSTRONG, J.

¶ 1 Brian Eggleston appeals his convictions of second degree murder and first degree assault following shootings that occurred during the execution of a search warrant at his residence on October 16, 1995. We affirm the convictions but vacate Eggleston's sentences and remand for resentencing.

FACTS

¶ 2 In August 1995, Pierce County Deputy Sheriff Ben Benson began investigating Eggleston's marijuana dealing based on information he received from Steve McQueen. McQueen said that Eggleston's brother was a deputy sheriff and was present during one buy at Eggleston's house. Benson confirmed that Deputy Sheriff Brent Eggleston shared his brother's address.

¶ 3 Benson then arranged for McQueen to buy marijuana from Eggleston. In early October 1995, McQueen bought marijuana from Eggleston twice. On October 9, Benson obtained a warrant to search Eggleston's home. He decided to serve the warrant early on October 16, before Eggleston was fully awake and before children arrived at the elementary school across the street from the Eggleston residence.

¶ 4 The entry team included Deputies John Bananola, Warren Dogeagle, Jeff Reigle, John Reding, Cynthia Fajardo, Martin Kapsh, and Bruce Larson. Benson was to provide perimeter surveillance. The team wore marked jackets that identified them as sheriff deputies. Bananola wore a reflective vest that had four inch letters stating "Sheriff" on the front and back. He also had long hair and facial hair because of his undercover work. Reding wore a vest with "Sheriff" on the front and back, a helmet with a face shield, and black pants. Dogeagle wore a hooded mask because he was working undercover on a case involving heroin dealers in the same neighborhood. He also wore a cap with a sheriff's insignia and a green raid jacket with "Sheriff" on the front and back. Fajardo wore a black uniform that said "Narcotics" and her name on the front, and Reigle wore a green raid jacket with "Sheriff" on the front and back.

¶ 5 The deputies entered the unlocked back door of the residence using the knock and announce procedure. Reding went in first and saw Thomas Eggleston, Eggleston's father, on the couch in the living room. Bananola followed and turned down a hallway. As Reigle prepared to follow Bananola, gunfire erupted. Reigle saw Bananola heading toward the front door of the residence in a low position. Reigle then saw Linda Eggleston open a door into the kitchen and look at him. He heard Thomas Eggleston tell her to put the gun down.

¶ 6 While covering Thomas Eggleston in the living room, Reding heard the shots and turned to see Bananola coming from the hallway in an upright position and then start to stumble. Reding retreated toward the back door and saw Eggleston move toward the living room with a gun in his hands. Reding fired three shots at him.

¶ 7 As the deputies withdrew, Dogeagle heard Bananola say, "Put the gun down. Police." Report of Proceedings (RP) at 4419-21. Dogeagle was still in the kitchen when Eggleston came through a door and started shooting at him. Dogeagle returned fire and Eggleston fell backward.

¶ 8 Reding returned to the van to retrieve a ballistic shield and entered the house with the other deputies behind him. They saw Bananola lying face down on the living room floor. He had been shot seven times, with three shots to the head and shots to the shoulder, arm, chest, and foot. Eggleston suffered five gunshot wounds, including wounds to his chest, lower right side, abdomen, groin and knee. Eggleston recovered; Bananola died.

¶ 9 In addition to evidence of the shootings, Tacoma police officers found drugs, drug paraphernalia and cash in Eggleston's bedroom.

¶ 10 The State charged Eggleston by amended information with aggravated murder in the first degree, alleging that he knew or should have known that Bananola was a law enforcement officer performing his duties at the time of his death; assault in the first degree based on his shooting at Dogeagle and/or Reding; unlawful delivery of a controlled substance (marijuana) on October 7, 1995; unlawful possession of a controlled substance with intent to deliver (marijuana) on October 16, 1995; unlawful delivery of a controlled substance (marijuana) on October 5, 1995; and unlawful possession of a controlled substance (mescaline) on October 16, 1995. Several of these counts included sentence enhancements.

¶ 11 These charges resulted in three trials. The first jury returned guilty verdicts on all counts except count I, murder in the first degree. The jury hung on the murder count and the court declared a mistrial. The trial judge sentenced Eggleston on the five counts for which he had been convicted.

¶ 12 The State tried Eggleston again on the first degree murder charge, and the jury found him guilty of the lesser included offense of murder in the second degree. The court had explicitly instructed that if the jury found Eggleston guilty of murder in the first degree, it was to fill out two special verdict forms: one on the aggravating factor (whether he knew or reasonably should have known that Bananola was an officer), and another on the weapons enhancement (whether he used a deadly weapon). In contrast, if the jury found Eggleston guilty of murder in the second degree, it was to fill out only the weapons enhancement special verdict form. Despite its acquittal of the first degree murder charge, the jury answered "no" to the aggravating circumstance special verdict. Clerk's Papers (CP) at 1495.

¶ 13 Further, the aggravating factor special verdict form expressly stated:

We, the jury, having found the defendant guilty of Murder in the First Degree, make the following answer to the question submitted by the court:

Question: Has the State proven the existence of the following aggravating circumstance beyond a reasonable doubt?

That Deputy John Bananola was a law enforcement officer who was performing his official duties at the time of the act resulting in death and that Deputy John Bananola was known or reasonably should have been known by the defendant to be such at the time of the killing.

Answer: No.

CP at 1495 (emphasis added).

¶ 14 On appeal, we reversed Eggleston's murder and assault convictions but affirmed his drug convictions. State v. Eggleston, No. 22085-7-II, No. 23499-8-II, 108 Wash.App. 1011, 2001 WL 1077846 (Wash.Ct.App. Sept.4, 2001) (unpublished). We found error in the aggressor and provocation instructions; we also found juror misconduct in the second trial and error in certain evidentiary rulings.

¶ 15 At Eggleston's third trial, the State's reconstruction expert, Rod Englert, opined that Eggleston fired into Bananola's head as Bananola lay on the living room floor. The defense reconstruction expert, Kay Sweeney, opined that Eggleston was in the hallway when he fired at and killed Bananola. In December 2002, the jury again convicted Eggleston of second degree murder and first degree assault.

¶ 16 In this appeal, Eggleston argues that the second jury's verdict and answer to the special verdict barred the State from presenting evidence in his third trial that he knew Bananola was a police officer or that he premeditated the murder. He also questions the self-defense instructions; various evidence rulings; the dismissal of three jurors; jury misconduct; resentencing on his drug convictions; and his exceptional sentence.

ANALYSIS

I. COLLATERAL ESTOPPEL

¶ 17 Eggleston argues that the collateral estoppel component of the double jeopardy clause precluded the State from introducing evidence that he knew Bananola was an officer performing official duties because previous juries acquitted him of first degree murder and the aggravating factor after being presented with that evidence.¹

A. Collateral Estoppel as a Component of Double Jeopardy Clause

¶ 18 The United States and Washington Constitutions' double jeopardy clauses are "identical in thought, substance, and purpose." State v. Schoel, 54 Wash.2d 388, 391, 341 P.2d 481 (1959); see WASH. CONST. art. I, § 9; U.S. CONST., amend. V. They both "`protect against multiple punishments for the same offense, as well as against a subsequent prosecution for the same offense after acquittal or conviction.'" State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005) (quoting In re Pers. Restraint of Orange, 152 Wash.2d 795, 815, 100 P.3d 291 (2004)). Where the language of the state constitution is similar to that of the federal constitution, we give the same interpretation to the state constitutional provision as the United States Supreme Court has given the federal constitution. State v. Linton, 122 Wash.App. 73, 76, 93 P.3d 183 (2004) (citing Schoel, 54 Wash.2d at 391, 341 P.2d 481), review granted, 153 Wash.2d 1017, 108 P.3d 1229 (2005).

¶ 19 The doctrine of collateral estoppel is embodied in the constitutional guaranty against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 442-43, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel means that when an issue of ultimate fact has once been determined by a "valid and final judgment," that issue cannot be litigated again between the same parties in any future lawsuit. Ashe, 397 U.S. at 443, 90 S.Ct. 1189. But it does not always bar the later use of evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted. See Dowling v. United States, 493 U.S. 342, 350, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).

¶ 20 Collateral estoppel in criminal cases is "not to be applied with a hypertechnical and archaic approach ... but with realism and rationality." Ashe, 397 U.S. at 444, 90 S.Ct. 1189. It exists where "`a fact...