State v. Pierce, 74363-5-I

STATE OF WASHINGTON, Respondent, v. KARL EMERSON PIERCE,^† Appellant.

No. 74363-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 27, 2018

STATE OF WASHINGTON, Respondent,

v.

KARL EMERSON PIERCE, Appellant.

ORDER WITHDRAWING OPINION AND SUBSTITUTING OPINION

The court has determined that the opinion filed on June 11, 2018, should be withdrawn and a substitute opinion be filed. Now, therefore, it is hereby

ORDERED that the opinion filed on June 11, 2018, be withdrawn and a substitute opinion be filed.

FOR THE COURT:

/s/_________

/s/_________

UNPUBLISHED OPINION

TRICKEY, J. — Karl Pierce and Michael Bienhoff claimed that they were involved in a marijuana deal with Precious Reed and Demetrious Bibb. During the transaction, an altercation occurred between Bienhoff and Reed. A handgun discharged and killed Reed.

The State ultimately charged codefendants Pierce and Bienhoff with first degree felony murder predicated on robbery in the first degree, with a deadly weapon allegation. The State's theory at trial was that Pierce and Bienhoff intended to rob Reed, rather than to sell him marijuana. The jury convicted Pierce as charged. He appeals. Because the prosecutor committed misconduct during voir dire that prejudiced Pierce, we reverse Pierce's conviction and remand for a new trial.

FACTS

Reed and Bienhoff had known each other for several years. In February 2012, Reed asked Bienhoff to sell him a couple of pounds of marijuana. On February 20, 2012, Bienhoff told Reed that he would sell Reed two pounds of marijuana for $2,200 per pound. Reed replied that he still wanted the marijuana but needed to raise money. Bienhoff claimed that he picked up two and a half pounds of marijuana from his supplier for $1,800 per pound.

Bienhoff planned to meet Reed near Green Lake, an area of North Seattle, to conduct the transaction. Bienhoff went to Ramon Lyons's home in the Bitter Lake community. Lyons helped Bienhoff arrange for Scott Barnes to provide a ride.

When Barnes arrived at Lyons's home, Lyons was on the front porch cleaning a revolver. After meeting with Barnes, Bienhoff asked Lyons to accompany them as "insurance."¹ Lyons agreed, and the group went to pick up Lyons's friend, Pierce. Bienhoff and Pierce had not previously met. Bienhoff claimed to have separated the two pounds of marijuana he planned to sell to Reed and the extra half pound into two backpacks.²

Barnes drove the group back to Lyons's house. Lyons testified that Bienhoff said that he did not feel safe and asked to borrow a gun. Lyons and Pierce got out of the car, and Lyons entered the house. Lyons retrieved two handguns. One was a gray or chrome colored .45 caliber semiautomatic pistol. The other was therevolver Lyons had been cleaning earlier. After Lyons and Pierce returned to the car, Barnes drove the group toward Green Lake.

While en route, Lyons gave the revolver to Bienhoff.³ When the group stopped at a gas station, Bienhoff and Barnes left the car. While alone in the car, Lyons warned Pierce to watch Bienhoff, and gave him the semiautomatic pistol.⁴

After leaving the gas station, Barnes drove to Green Lake. He parked the car near the lake in an upper parking lot of Woodland Park. Bienhoff got out of the car. He hid the backpack in a bush. After asking Barnes to move the car away from the lot, Bienhoff asked Lyons to stay out of sight but within earshot of where Bienhoff was going to meet Reed. Lyons told Pierce to "back up" Bienhoff to ensure that he was not robbed.⁵

Reed arrived driving a gray van. A white Cadillac followed Reed's van into the parking lot. Reed parked, and the white Cadillac stopped further down the lot. Pierce was outside of Barnes's car. He found a vantage point from which he could see Reed's van and the white Cadillac. Pierce observed that Reed and the driver of the Cadillac were both black males.

Reed and the driver of the Cadillac, later identified as Bibb, exited their vehicles and greeted Bienhoff. Bibb had agreed to pay half the cost of the marijuana, and thought the deal was $2,000 for two pounds. Bibb planned to"front" the marijuana, or pay part of the purchase price at the transaction, sell some of the purchased marijuana, and then pay the seller the outstanding balance.⁶ Bibb denied having a gun that day, and did not think that Reed was armed.

Bienhoff recovered the backpack and Bibb returned to the Cadillac. Reed got into his van and sat in the driver's seat. Bienhoff also entered the van and sat in the front passenger's seat. Bienhoff claimed that he showed Reed the marijuana. Reed told Bienhoff that he did not have the full amount of money to buy the marijuana. Reed asked Bienhoff to front the marijuana, but Bienhoff declined.

Bienhoff testified that he began to exit Reed's van. He claimed that he saw Reed reaching to his left for the butt of a handgun. He claimed that he and Reed wrestled for the handgun. The handgun, a revolver with a 10-inch barrel, discharged into Reed's shoulder. The bullet travelled upwards into Reed's brain and caused his death.

The shot temporarily deafened Bienhoff. He grabbed the backpack, exited Reed's van, and ran to Barnes's car. While running, Bienhoff saw Bibb standing between Reed's van and the Cadillac. He did not notice whether Bibb was armed or had fired any shots.

Pierce had seen Reed's van start to rock and assumed there was a struggle. Pierce moved closer to the van. Bienhoff ran past Pierce, who heard Bienhoff say that Reed had attempted to rob him. Pierce saw a black male come around the front of Reed's van, and heard a boom. Pierce thought the man was shooting athim. He ran toward Barnes's car without drawing his gun.

Lyons had initially moved toward the lake but had begun to head back to the upper parking lot. On his way, he heard gunfire and "hit the ground."⁷ Once he got up, he saw Pierce running toward the parking lot without a gun in his hand. Lyons heard multiple gunshots. He ran back toward Barnes's car, and heard tires squeal after the gunfire ended.

Barnes remained in his car. Barnes heard five gunshots in rapid succession and thought he could hear them striking metal.

Bibb testified that he remained in the Cadillac. He observed Reed's van while Reed and Bienhoff were inside. Bibb did not hear raised voices, see a struggle, or hear a gunshot.

Bibb saw another individual, who he later described as 5 feet 8 inches tall or 5 feet 9 inches tall, run between the Cadillac and the van, turn towards Bibb, and began firing at him with a dark-colored gun. Bibb ducked down, put his car in gear, and rapidly left the parking lot. Bibb heard and felt bullets strike the Cadillac. He later found bullet holes in its side.

There were two eyewitnesses who observed the incident. The first, Earl Cadaret, watched through the kitchen window of his recreational vehicle, which was parked in the same lot as Reed's van and Bibb's Cadillac. Cadaret observed two black males, one of whom was substantially taller than the other, walking toward the van and the Cadillac.

Cadaret saw the taller man enter the driver's side of the Cadillac. He later noticed the same man standing outside of the Cadillac looking at the van, and then saw him in front of the van with his arm extended. Cadaret heard several loud noises that may have been "bangs, pops, or rattle[s]."⁸

Cadaret saw the Cadillac drive away, and did not see anyone shooting at it. He watched the shorter man fall out of the van. After the Cadillac was gone, Cadaret went to the man on the ground and called 911. When the police interviewed him later, Cadaret stated that the man in the Cadillac looked like he had a gun and had shot the man in the other car.

The second eyewitness was Mark Howard. He was sitting in his truck, which was in the parking lot where the incident occurred. He saw a minivan and light-colored sedan park in the lot. He viewed two black males and one white male standing in the lot before the white man retrieved a backpack from some bushes.

Howard watched the two black males head toward the minivan and the sedan. Shortly thereafter, Howard heard "popping" sounds.⁹ He saw a man he later identified as Pierce running and holding a silver-colored automatic gun.

Howard thought Pierce was shooting at the minivan and the sedan, although he did not see any muzzle flashes or discharged shell casings. Howard testified that he might have seen another armed man behind the shooter. Howard fled the parking lot in his truck. He returned later to give police a recorded statement after he saw a report of the incident on the news.

Once Bienhoff, Pierce, Lyons, and Barnes were in Barnes's car, Pierce said that he thought the driver of the Cadillac had shot at them. Barnes testified that Pierce told the group that he saw Reed "slumped" in the van.¹⁰ Barnes also testified that Pierce said that he had been "busting at the caddy" and that he would dispose of the weapons.¹¹ Barnes testified that Lyons said, "'Nobody say anything, or we're all screwed.'"¹²

Pierce testified that he put the gun Lyons had given him on the floor of Barnes's car. Lyons did not see any guns in Barnes's car after the incident. Bienhoff later claimed that he gave the marijuana to someone he knew.

Police officers found Reed face down on the ground next to his van. The van's doors were open. Reed had approximately $1,200 in cash on his person, and no gun was found at the scene. Several .45 caliber shell casings were found in the parking lot. A crime laboratory concluded that a .38 caliber gun and a .45 caliber gun had been discharged during the incident.

While watching the news that night, Pierce heard that someone had been shot at Green Lake, and went into hiding for about a month. Bibb learned that Reed had died later that evening or early the next morning. When police interviewed Bibb the next day, he gave them permission to confiscate the Cadillac. When Bibb was shown photomontages, he identified Bienhoff and tentatively identified Pierce as the person who had...