State v. Thornton

STATE OF WASHINGTON, Respondent, v. ROYALE TYRELL-SCOTT THORNTON, Appellant.

No. 77078-1-I

COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE

April 15, 2019

UNPUBLISHED OPINION

ANDRUS, J. — Royale Thornton appeals his convictions for the second degree murder of Rahman Karriem and first degree assault of Jahlil Ray on New Year's Eve, 2014. Because the prosecutor shifted the burden of proof on self-defense during closing argument, we reverse the murder conviction and remand that charge for a new trial. We affirm the assault conviction but remand it for resentencing as his offender score for that offense may be affected by the outcome of any new trial on the murder charge.¹

FACTS

On the evening of December 31, 2014, Royale Thornton shot and killed Rahman Karriem. Karriem's best friend, Jahlil Ray, stood next to him as Thornton fired gunshots from the passenger window of a blue Ford Expedition. Karriem'sgirlfriend, Maria Santos, who was walking nearby, saw the shooting occur. And Thornton's best friend, Carlos Pace, sat next to Thornton in the driver's seat of the SUV. Thornton and Pace fled the scene and police arrested them days later.

Initially, Thornton denied being involved in any shooting at the Victory Grocery Store in the Othello neighborhood of Seattle. Pace told police, however, that Thornton had shot Karriem. Santos and Ray identified Thornton as the shooter as well. And the shooting was captured on the store's surveillance video.

The State charged Thornton with second degree murder for the death of Karriem, first degree assault for allegedly shooting at Ray, and the unlawful possession of a firearm (UPFA). Pace was charged with rendering criminal assistance. Pace pleaded guilty to this charge and agreed to testify against Thornton.

At trial, Pace testified that he and Thornton drove to the Victory Grocery Store to purchase cigars before going to New Year's Eve parties. Pace drove the Expedition with Thornton in the front passenger seat. As they pulled up, they saw Ray and Karriem standing outside the store. Ray, Karriem, and Santos had walked to the store to purchase cigars as well.

Santos testified she went into the store leaving Ray and Karriem outside. When she came out a few minutes later, she saw Ray and Karriem talking to two men inside the blue SUV. She heard Ray ask "Are you trying to fight or not?" She then heard Karriem say "if you're not trying to fight, when I turn this corner, don't bust at me," meaning "don't shoot at me." She then saw Karriem take a step back,and saw the passenger, later identified as Thornton, bend down like he was opening the door. Thornton then pulled a gun and started shooting out the window.

Thornton knew both Ray and Karriem. Ray and Thornton have known each other for most of their lives because their fathers were friends. Ray described a dispute arose with Thornton after they committed a robbery of a T-Mobile store approximately a month before Karriem's death. Ray said Thornton was angry because Thornton felt he did not get his "cut" of the proceeds from the theft and blamed Ray for it.

Thornton denied any involvement in any robbery. Thornton testified Karriem, a man he knew from middle school, was angry at Thornton for ending a relationship with his sister. Thornton claimed Karriem called him in August or September 2014, shouting obscenities at him for "messing [with]" his sister. Thornton testified that in late October 2014, a vehicle driven by Karriem's sister, Karriem, and Ray pulled up next to him at a red light in Tukwila. Thornton testified Karriem got out of the car and knocked on his window with a firearm. According to Thornton, he sped off while the light was still red, and Karriem's vehicle chased after him. Thornton stated that as he sped away at a high rate of speed, Karriem fired gunshots into his car, eventually causing Thornton to flip the car on the Martin Luther King, Jr. Way exit in South Seattle. Thornton testified he called Pace while Karriem was shooting at him and left a voicemail on Pace's phone in which gunshots could be heard in the background. He also testified after flipping the car, he was rescued by a female passerby who drove him to Pace's mother's house, after which Pace drove him to Harborview to be treated for his injuries.

Pace partially corroborated Thornton's version of events. Pace testified Thornton told him that Karriem had shot at him during a car chase. Pace had no personal knowledge of the shooting, but confirmed Thornton had left him the voicemail in which he heard the gunshots. Pace did confirm that on the night of the shooting, Karriem made angry comments to Thornton about his relationship with his sister. Pace, however, testified Thornton never told him about a high-speed car chase, flipping his car on a public roadway, or being rescued by a Good Samaritan. Pace also denied that Thornton ever showed up injured at his mother's house or that he drove Thornton to Harborview.

On New Year's Eve, when Pace saw Karriem and Ray in the parking lot of the corner market, he decided to get out of the SUV to talk to them, leaving Thornton in the vehicle. Pace approached the men, told them that Thornton was in the SUV and Pace knew about the shooting. Pace suggested that Thornton and Karriem resolve their dispute by going "head up," meaning a fist fight, so that things did not get any further out of hand. Santos testified she overheard Pace say, "Fuck all that shooting shit. Let's fight."

Ray's version of events was slightly different. Ray testified that Pace spoke only to him, not to Karriem, about fighting it out with Thornton. Ray testified Karriem played no role in the robbery, and any conflict was between Thornton and Ray, not Thornton and Karriem.

According to Pace, Karriem agreed to fight. Pace returned to the SUV and told Thornton that Karriem was willing to fight to settle their differences. Pace testified that Thornton initially agreed to the fist fight. Pace did a U-turn and parkedthe SUV on the street behind the store with the front passenger side facing Karriem and Ray. Pace rolled down the passenger side window to enable Thornton to speak with Karriem and Ray.

Pace testified that Karriem was mad at Thornton that evening, and asked Thornton multiple times if they were going to fight. Thornton then refused to fight because he was dressed for partying, not for fighting. While they were talking, Santos joined the men. Ray testified, consistently with Santos, that Karriem said "when we leave, don't shoot." Pace also heard Karriem say something like "when I get around the corner, or anything like that, it's not going to be no funny ... shit, .... [Y]ou're not going to try to shoot me or nothing like that."

At that point, Pace told Thornton "you know, this could be deadly." Thornton said "Well, I'll go head up" and Pace, like Santos, thought Thornton was starting to get out of the SUV because Thornton reached out as if to open the door. But, according to Pace, Thornton instead reached his hand out the window and shot Karriem. Thornton fired five shots, one of which struck Karriem in the chest, killing him. Ray testified Thornton shot at him as well. Pace testified that as he drove the SUV away from the scene, he yelled at Thornton and demanded to know why he had shot Karriem. Pace stated Thornton said he did so because Karriem had "got over on him," confirming that Thornton felt shorted or slighted by Karriem.

Thornton admitted he intentionally shot Karriem but claimed he did so in self-defense. Thornton testified the earlier shooting incident led him to believe Karriem was carrying a gun. Thornton testified that Karriem kept his hands in his pockets, screamed obscenities at him, and moved back and forth towards the SUVin what he discerned to be a menacing manner. When Thornton refused to fight Karriem, Thornton heard Karriem say "if I see you in the south end, if we get around this corner and I see you again, I'm going to get off." Thornton understood Karriem to mean he intended "get[ing] off a couple shots" at him. Karriem's movements, from Thornton's perspective, indicated Karriem was going to pull a gun, "[s]o I pulled faster." "It was either my life or his life. I had no choice. It's either he's going to shoot me or I'm going to shoot him." A loaded firearm was later found in Karriem's front jacket pocket.

Pace, Ray and Santos disputed Thornton's self-defense testimony. Pace testified that Karriem did not make any sort of threatening gestures toward the vehicle or Thornton. Pace further testified that Karriem did not say anything threatening and did not brandish a weapon. Ray and Santos similarly testified that neither Karriem nor Ray said anything threatening or did anything that could have been perceived as threatening. Pace and Ray both testified that before Thornton pulled the trigger, Ray and Karriem had begun to retreat. Pace confirmed Thornton never told him he shot Karriem in self-defense.

Thornton testified he did not intend to shoot Ray. Thornton stated he had no beef with Ray, Ray did not threaten him, and he was not concerned Ray was going to pull a gun on him. Although Thornton admitted he emptied his gun, a .38-caliber revolver, and bullets may have flown in Ray's direction, he explained that his gun had been modified with a feature he called a "lemon squeeze," which turned his revolver into an automatic weapon and when he pulled the trigger, all of the available rounds fired within a millisecond of one another. He stated thekickback of the gun made his arm move uncontrollably. Police found a spent bullet embedded in a house near the Victory Grocery lot.

The State, however, presented direct and circumstantial evidence that Thornton intentionally shot at Ray. First, Ray testified Thornton shot at him that night. Thornton admitted Ray called him a week or two after the October 2014 shooting incident to apologize for having shot at him. Ray told him "they made me shoot at you." Thus, at least...