State v. Longshore

STATE OF WASHINGTON, Respondent, v. CHARLES LONGSHORE, III, Appellant.

No. 47030-6-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

December 21, 2016

ORDER AMENDING OPINION AND DENYING MOTIONS FOR RECONSIDERATION

The appellant, Charles Longshore, III, and the respondent, the State of Washington, each filed a motion for reconsideration of our unpublished opinion filed on December 21, 2016. After consideration, we deny both motions for reconsideration but we amend the opinion as follows:

On page 11 of the slip opinion, insert a footnote at the end of the last sentence in the second paragraph. The footnote reads:

Because we reverse, we will address only the issues that may be dispositive of this case.

IT IS SO ORDERED.

DATED this 14 day of March, 2017.

/s/_________

Lee, P.J.

We concur:

/s/_________

Melnick, J.

/s/_________

Sutton, J.

UNPUBLISHED OPINION

LEE, P.J. — Charles Longshore III was convicted of two counts of aggravated first degree murder. He appeals, arguing that (1) the State committed prosecutorial misconduct by knowingly soliciting false testimony, and (2) the trial court erred by (a) giving an instruction that defined "accomplice" because there was no accomplice liability alleged, and (b) denying his motion to dismiss based on the State's failure to preserve evidence. Longshore also raises a number of arguments in a statement of additional grounds (SAG). We hold that the trial court improperly instructed the jury on accomplice liability and that the error was not harmless. With regard to issues raised in the SAG that may be dispositive or may arise on remand, we hold that sufficient evidence supports the jury's finding of premeditation and the aggravating circumstances; the trial court did not err in admitting Longshore's May 28 and June 4 statements; the trial court erred in admitting Longshore's statements made on June 1 after he unequivocally asserted his right to remain silent; and Longshore's claim that he was misadvised about his right to counsel fails. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

FACTS

A. THE CRIME

Robert "Bobby" Raphael and Kristina Selwyn lived at 211 West Harvard, which was separated by a dirt alley from a mobile home located at 213 West Harvard. Raphael had a camper trailer (the camper) parked in the alley next to the mobile home's driveway.

Raphael sold methamphetamine. Both Raphael and Selwyn were regular consumers of methamphetamine.

Longshore and Raphael first met in late May 2012. On May 27, Longshore arrived at Raphael's house hoping that Raphael could help him earn money. Raphael offered to have Longshore sell a gun for him, with Longshore keeping some of the proceeds. Longshore agreed and left Raphael's house with the gun.

Longshore was unable to sell the gun and returned later that day. When Longshore returned with the gun, it was loaded, and he and Raphael test fired it. Raphael and Longshore then went into the camper, and Raphael told Longshore he could put the gun in the camper's kitchen cupboard.

Someone in the mobile home called Raphael and asked him to come over to sell methamphetamine. Raphael and Longshore went to the mobile home. Someone told Raphael that Anitrea "Roxie" Taber was in the mobile home, and Raphael commented to Longshore that Taber owed him money.

Raphael and Longshore went into the mobile home to weigh the methamphetamine for the sale. Taber and Tyler Drake were seated at the kitchen table. Raphael quietly identified Taber toLongshore because "if [Longshore] was going to do any collecting for [him] that, you know, that would be the person to collect from." 11 Verbatim Report of Proceedings (VRP) at 1825.

Raphael asked Taber to pay him. Taber told Raphael that he was not a priority, and she would not pay him. Longshore and Raphael left the mobile home.

After Raphael and Longshore left the mobile home, Selwyn saw Longshore in the camper. Selwyn walked into the camper, saw Longshore holding Raphael's gun.

Selwyn then went to talk with Raphael. Raphael told Selwyn that Taber refused to pay him, and Selwyn threatened to beat up Taber. Selwyn and Raphael went to the mobile home to confront Taber. On the way, Selwyn saw Longshore standing outside the mobile home with Raphael's gun. Selwyn and Longshore stood nearby in the yard of the mobile home while Raphael went to the door of the mobile home.

Taber and Drake were in the kitchen of the mobile home, sitting at the table. Raphael again asked Taber for money, and she again refused to pay him. At that point, Longshore walked past Raphael into the kitchen and began yelling at Taber for payment. While yelling at her, Longshore drew the gun and struck Taber in the head. When Longshore struck Taber, the gun accidentally discharged. Taber did not react when she was struck in the head, and there was no indication that she was shot. Longshore then "took a little step back and pointed it at her and shot her" in the head. 11 VRP at 1836. After that, Longshore turned and shot Drake. Raphael asked Longshore what he was doing, and Longshore said, "[N]o witnesses." 11 VRP at 1839. Both men left the scene.

Around 1:00 a.m. on May 28, dispatch received a 911 call reporting gunshots heard near the mobile home. Law enforcement went to the scene and, as they approached the property,Sergeant Harry Heldreth encountered Raphael, who reported that he called 911. Both Raphael and Selwyn told Sergeant Heldreth that they did not see anyone leave the mobile home and no cars left the property. Officers found two deceased adults in the kitchen of the mobile home. Both died from gunshot wounds.

While talking to neighbors, police stopped a vehicle near the scene. Longshore was in the back seat of the vehicle. Longshore was considered a possible witness at that point by the police. After talking with Detective Calvin Moran, Longshore left the scene. Longshore gave statements to police on May 28, June 1, and June 4.

B. PROCEDURAL FACTS

After further investigation, Longshore was arrested and charged with two counts of aggravated first degree murder.¹ The State alleged that (1) there was more than one person murdered and the murders were part of a common scheme or plan or the result of a single act of the person, and (2) the murders were committed to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime.²

The State also charged Raphael with two counts of first degree murder with firearm enhancements, and one count of first degree rendering criminal assistance.³ In exchange for his testimony against Longshore, the State agreed to allow Raphael to plead guilty to second degreemurder, second degree manslaughter, first degree burglary, and first degree extortion, with a recommended sentence of approximately 295 months in prison.

Longshore and Raphael were not charged together, and they were not codefendants. When Raphael was taken to the Mason County Jail after his arrest, his clothing was not placed in evidence and was laundered by the jail.

During jury selection in Longshore's trial, the jury venire was sworn in on the record and in open court. The trial court, noting that the courtroom was not big enough to accommodate the entire jury pool, divided the jury pool into two groups. The trial court distributed juror questionnaires and instructed the jury to complete the questionnaires in the jury room.

Longshore moved to suppress his statements made to police on May 28, June 1, and June 4. The trial court ruled that Longshore's statements on May 28 were admissible because they were not made while in custody. The trial court also ruled that Longshore voluntarily waived his Miranda⁴ rights on June 1; that when he asked the conversation to be over and signed the final acknowledgment, the interview had terminated; and that he did not unequivocally reassert his right to remain silent.⁵ Finally, the trial court ruled that Longshore's June 4 statement was admissible because he had voluntarily waived his Miranda rights.

Longshore moved to dismiss because the State failed to preserve evidence that could be useful to the defense—Raphael's clothing.⁶ Longshore argued that the State failed to preserve and consumed material evidence that would either be exculpatory or potentially useful. The trial court ruled that the evidence was within the category of "potentially useful" evidence and that Raphael's clothing had no apparent exculpatory value before the State destroyed the evidence. 4 VRP at 568. And because the evidence was merely "potentially useful," the test was whether the State acted in bad faith. The trial court found that while the jail did not have protocol for preserving evidence for testing, the jail did not have a duty to preserve all evidence. The trial court denied Longshore's motion to dismiss.

C. TRIAL

The State offered a jury instruction on evaluating the credibility of a witness who is an accomplice, "geared toward" Raphael's testimony.⁷ 14 VRP at 2221. Longshore objected to the instruction.

The State argued that Raphael fit the definition of an accomplice because Raphael effectively solicited Longshore to intimidate the first victim to collect debts owed. The State contended that it proposed the instruction out of fairness to Longshore because the instruction "tells the jury almost to be hypercritical of [Raphael's] credibility." 14 VRP at 2221.

The trial court noted that the instruction was a cautionary instruction and was protective of the defendant. The trial court found that a jury could see Raphael as an accomplice based on the evidence in its entirety and gave the instruction.⁸ The trial court also instructed the jury on the definition of an accomplice.⁹

Longshore proposed the following instruction based on a Ninth Circuit model jury instruction:

Mere presence at the scene of a crime or mere knowledge that a crime is being committed is not sufficient to establish that the defendant committed the crimes of Aggravated Murder in

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