State v. Smith

162 Wash.App. 833

262 P.3d 72

STATE of Washington, Respondent,

v.Tyreek Deanthony SMITH, Appellant.State of Washington, Respondent,

v.Darrel Kantreal Jackson, Appellant.

Nos. 39077–9–II

39081–7–II.

Court of Appeals of Washington, Division 2.

July 26, 2011.

Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, Andrew Peter Zinner, Nielsen, Broman & Koch, PLLC, Seattle, WA, for Appellant.Melody M. Crick, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

PUBLISHED IN PART OPINION

HUNT, J.

[162 Wash.App. 835] ¶ 1 Darrel Kantreal Jackson and Tyreek Deanthony Smith appeal their joint jury trial convictions and weapon-enhanced sentences for two counts of aggravated first degree murder, first degree robbery, and first degree burglary. Jackson argues that the trial court violated his constitutional rights to (1) a public trial, by sealing juror questionnaires without first applying the five-factor Bone–Club ¹ test; (2) due process and a fair trial, by allowing the prosecutor to vouch for a State witness's credibility on direct examination; and (3) freedom from double jeopardy, by imposing firearm and deadly weapon enhancements for first degree robbery and first degree burglary, which crimes include weapons as elements. Smith argues that the trial court violated his constitutional rights (1) to confront his accusers, by denying his motion to sever trials when his redacted codefendant's confession referenced him without satisfying CrR 4.4(c) or the Bruton ² rule; and (2) to be free from double jeopardy, by imposing firearm and deadly weapon enhancements for first degree burglary, which included these weapons as elements of the crime. We affirm.

FACTS

I. Murders, Robbery, and Burglary

¶ 2 On September 23, 2007, police found Ruben Doria and Abraham Warren Abrazado ³ stabbed to death in their apartment. Doria's body had duct tape over his mouth and around his hands and feet.

¶ 3 Doria, who had a medical marijuana license to grow marijuana for personal medicinal use, had also engaged in the illegal sale of marijuana to friends and acquaintances. He generally required everyone to telephone before arriving at his apartment. He kept the money from his sales, large amounts of marijuana, and prescription pills in a safe, which caused his friends concern for his safety. About two to three months before his murder, Doria had begun selling marijuana to Darrel Jackson almost daily. Instead of requiring payment for each transaction, Doria “front[ed]” marijuana to Jackson, who, consequently, owed Doria money. 6 Verbatim Report of Proceedings (VRP) at 691.

¶ 4 Jackson lived with Tyreek Smith, who had previously sold cigars to Doria. Smith knew Pierre Spencer, from whom he purchased a .357 revolver some time before the murders.

¶ 5 The night before the murders, Jackson, Smith, and Spencer met to discuss robbing Doria, whom, they believed, would not call the police because of his drug dealings. They planned that Jackson would call Doria under the pretext of purchasing marijuana, but in reality, they would be seeking an opportunity to gain entrance to Doria's apartment. They did not discuss murder or using masks or duct tape. Spencer offered an inactive cell phone to aid during the robbery. Jackson, Smith, and Spencer purchased a phone card to activate service on the phone, which Smith generally possessed.

¶ 6 That same night, the three men drove to Doria's apartment, Jackson phoned Doria with the newly activated cell phone, and Jackson went inside and purchased marijuana from Doria. Because several others were present inside Doria's apartment, Jackson, Smith, and Spencer abandoned the robbery plan and decided to try again the next day. The next morning, Spencer picked up Smith and drove him to an acquaintance's apartment, which Smith entered briefly; Smith returned with a rifle wrapped in a blanket.

¶ 7 Spencer and Smith picked up Jackson, and they returned to Doria's apartment to commit the planned robbery. After they saw Doria's roommate, Warren Abrazado, drive away, Jackson called Doria from the newly activated cell phone,⁴ and Doria let Spencer, Smith, and Jackson inside his apartment. Jackson had the .357 revolver that Smith had previously purchased from Spencer; Smith had a four to six inch serrated knife attached on his belt and the rifle. Brandishing the revolver at Doria, Jackson instructed Spencer to bind Doria's hands, legs, and mouth with duct tape. Jackson, Smith, and Spencer then put on gloves. Smith bound Doria as instructed. Smith turned up the stereo volume, pointed the rifle at Doria, and helped Spencer gather marijuana plants. Jackson instructed Spencer to look for “a little safe” in the bedroom. 11 VRP at 1447. When Spencer could not locate Doria's safe, Jackson began looking for it. Smith pointed the revolver at Doria and hit him on the head with it, causing Doria to bleed.

¶ 8 When Jackson returned to the front room with the safe, Smith said they had to “get rid of” Doria because he could potentially identify them. 11 VRP at 1450. Someone knocked on the door, and Doria's phone began to ring. After the person at the door left, Spencer resumed carrying marijuana plants to the front room. When Spencer next returned, he saw Smith stabbing Doria. Because they “were in this all together,” Smith handed the knife to Jackson, who stabbed Doria once; Jackson then handed the knife to Spencer, who also stabbed Doria once. 11 VRP at 1458. After checking Doria's pulse, Smith slit Doria's throat.

¶ 9 Jackson, Smith, and Spencer were about to load the plants into their vehicle when they heard keys unlocking Doria's apartment door. Abrazado entered, saw Doria's body, and said, “Oh, my God, please don't kill me!” 11 VRP at 1464. Jackson and Smith grabbed Abrazado and pulled him into the apartment; Jackson slit Abrazado's throat. Jackson, Smith, and Spencer loaded into Doria's vehicle the marijuana plants, a video-game console, a laptop computer, and the safe; after unloading at Jackson's apartment, Jackson then drove Doria's vehicle to a local casino, with Spencer following him in his vehicle, where Jackson and Spencer abandoned the stolen vehicle.

¶ 10 On returning to Jackson's apartment, Smith told Jackson and Spencer that he realized they had left their used latex gloves in Doria's apartment. All three men returned to Doria's apartment; Smith went inside, retrieved the gloves, and took another marijuana plant and a bag of marijuana. About four months later, police arrested Jackson and Smith on suspicion of the crimes. Jackson and Smith made incriminating statements against each other. Police also arrested and charged Spencer, who confessed and gave a statement implicating all three men.

II. Procedure

¶ 11 The State charged Jackson, Smith, and Spencer with two counts of aggravated first degree murder, one count of first degree robbery, and one count of first degree burglary, with deadly weapon enhancements on each count. The State later amended the information to add two counts of felony murder against Jackson and Smith and a firearm sentencing enhancement to all counts.

A. Spencer's Plea Agreement with the State

¶ 12 Spencer entered into a plea agreement with the State, under which he would “immediately enter guilty pleas” to the original charges but if he testified truthfully at Jackson and Smith's trial he may withdraw his guilty pleas and instead plead guilty to first degree murder and first degree manslaughter, for which, instead of life imprisonment without parole, he would receive a sentence between 240 and 320 months (20–26 years) for first degree murder with his sentence for first degree manslaughter running consecutively by law, and with the further understanding that his term of confinement may not be reduced by “good time” credit. Ex. 263. Jackson and Smith moved in limine for permission to cross-examine Spencer about collateral matters to impeach his credibility. The trial court ruled that Jackson and Smith could ask Spencer initial questions about collateral matters to show prior inconsistent statements for the purpose of attacking his credibility.

B. Joinder and Redaction of Codefendants' Statements

¶ 13 After conducting separate CrR 3.5 hearings for Jackson, Smith, and Spencer, the trial court ruled their statements admissible. Smith and Jackson moved for separate trials under CrR 4.4(c)(1) and Bruton,⁵ arguing that their heavily-intertwined statements violated their confrontation rights. The trial court denied the motions to sever and asked for all parties' cooperation in redacting problematic portions of Smith's and Jackson's statements to protect them from testifying against each other and to let “a fair trial triumph.” VRP (Dec. 30, 2008) at 30.

¶ 14 The parties and the trial court worked cooperatively to redact the statements. Despite maintaining that redaction would be insufficient and that only severance would cure the constitutional violation, Smith participated in these efforts to redact the statements. Based on Smith's expressed preference, the trial court redacted Spencer's name, in addition to Jackson's name; the other parties deferred to Smith's preference.

C. Juror Selection

¶ 15 The parties agreed to the use and to the content of the juror questionnaires, including the following language telling the jurors that the court clerk would seal their information:

The information obtained through this questionnaire will be used solely for the purpose of selecting a jury. The questionnaire will become part of the court's permanent record and will not be distributed to anyone except the lawyers and the judge. The original will be filed under seal and no one will be allowed access except by court order.

Jackson Clerk's Papers (JCP) at 296 (emphasis added).

¶ 16 When the State asked about sealing the juror questionnaires, the trial court explained its normal procedure: After completing jury selection, the parties return their copies of the juror questionnaires to the court...