Opinion
No. 42865-9-I.
Filed: August 23, 1999.
David B. Koch, Nielsen Broman Associates P.L.L.C., for appellant.
Norm Maleng, Prosecuting Attorney, and Lee D. Yates, Senior Deputy, for respondent.
Aaron Borrero appeals his conviction for attempted murder in the first degree. He claims that the omission from the information of a definition of "attempt" renders the information constitutionally infirm. Because, under the strict construction standard, the information set forth the essential elements of the crime, it was constitutionally sufficient. We affirm.
In March 1997, Leslie Lemieux delivered a duffel bag filled with 30 pounds of marijuana to Kyle Anderson's house. When Lemieux walked into Anderson's house, Borrero and Michael Vaughn put guns to his chest and head. After forcing Lemieux to the ground, Borrero tied his hands and feet, bound his hands and feet together, and blindfolded him. Borrero and Vaughn then stuffed Lemieux in a duffel bag and carried him out to his vehicle.
Anderson, Borrero, and Vaughn drove off in three separate vehicles. Vaughn drove Lemieux's car with Lemieux stuffed in the back. After several hours of driving, Borrero and Vaughn stopped near the Yakima River. They took Lemieux out of his car and dumped him into the river. After watching him float away, Vaughn and Borrero left. Lemieux eventually managed to get out of the river and find safety. The police arrested Borrero in California two months later.
The State initially charged Borrero, Anderson, and Vaughn with kidnapping in the first degree and assault in the first degree. Vaughn negotiated a plea agreement with the State. Under the terms of that agreement, he pleaded guilty to one count of first degree kidnapping in exchange for testifying truthfully against Borrero and Anderson. By amended information filed more than four months before trial, the State increased the first degree assault charge against Borrero and Anderson to first degree attempted murder.
Borrero and Anderson were tried separately. The jury convicted Borrero of first degree kidnapping and first degree attempted murder.
Borrero appeals.
Sufficiency of Information
Borrero contends that the trial court deprived him of a fair trial when it denied his motion to dismiss based on the alleged inadequacy of the information. His focus in the briefs is on the omission of a definition of "attempt" in the amended information. We reject this argument.
Both the state and federal constitutions guarantee a criminal defendant the right to know the charge against him. To be constitutionally adequate, a charging document must identify the crime charged and allege facts supporting every element of that crime. A charging document that is challenged before entry of the verdict is strictly construed to ensure that it sets forth all of the "essential elements," statutory and nonstatutory, of the crime charged. "Merely citing to the proper statute and naming the offense {are} insufficient to charge a crime unless the name of the offense apprises the defendant of all of the essential elements of the crime." The remedy for an insufficient charging document is dismissal without prejudice to the State's refiling a constitutionally adequate information.
U.S. Const. amend. VI; Const. art. I, sec. 22 (amend. 10).
State v. Leach, 113 Wn.2d 679, 689-90, 782 P.2d 552 (1989).
State v. Johnson, 119 Wn.2d 143, 150, 829 P.2d 1078 (1992).
State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995).
Vangerpen, 125 Wn.2d at 792-93.
Both parties agree that the controlling standard here requires us to strictly construe the information. There can be no other conclusion because Borrero challenged the amended information before the jury verdict. Applying the strict construction standard, our Supreme Court in Johnson found an information constitutionally deficient because it failed to state the knowledge element of unlawful delivery of a controlled substance. The court rejected the State's argument that the word "unlawfully" had the same meaning as "knowingly." Applying the same strict standard in Vangerpen, our Supreme Court determined that an information charging first degree murder was deficient because it failed to set forth the essential element of premeditation.
Johnson, 119 Wn.2d at 150.
Johnson, 119 Wn.2d at 150.
Johnson, 119 Wn.2d at 147, 150.
125 Wn.2d at 790; see also State v. Ralph, 85 Wn. App. 82, 86, 930 P.2d 1235 (1997); State v. Bacani, 79 Wn. App. 701, 705, 902 P.2d 184 (1995) (applying strict construction and reluctantly concluding that, under the rule of a 1903 Supreme Court case, the word "steal" was insufficient to convey an essential element of the theft charge, i.e., "property of another"), review denied, 129 Wn.2d 1001 (1996).
Borrero challenges the portion of the information dealing with the first degree attempted murder charge. It states:
That the defendants . . . in King County, Washington on or about March 19, 1997, with premeditated intent to cause the death of another person did attempt to cause the death of Leslie Lemieux, a human being:
Contrary to RCW 9A.28.030 (sic), 9A.32.030(1)(a), and against the peace and dignity of the State of Washington.
Borrero argues that the information was constitutionally inadequate because it failed to state that "attempt" requires a "substantial step" toward committing the charged crime. Thus, the question we must decide is whether the word "attempt," as commonly understood, meets constitutional muster.
See RCW 9A.28.020.
Two dictionaries set forth the commonly understood meanings of "attempt": "{t}o make an effort; endeavor
. . .{t}o try to perform, make, or achieve" and "to make an effort to do, accomplish, solve, or effect." These definitions give notice of the meaning of attempt without the necessity of also stating the statutory term "substantial step."
American Heritage Dictionary of the English Language 119 (3d ed. 1992).
Webster's Third New International Dictionary 140 (1993).
State v. Chaten is also instructive. There, we applied a strict construction standard and held that the term "assault," standing alone, conveyed the essential element of intent. In reaching that conclusion, we stated:
84 Wn. App. 85, 86, 925 P.2d 631 (1996).
Because an assault is commonly understood as an intentional act, we hold that the information, which charged assault, did not omit the element of intent.
Chaten, 84 Wn. App. at 87; but see State v. Taylor, 91 Wn. App. 606, 610-11, 958 P.2d 1032 (1998) (criticizing Chaten and holding that, strictly construed, "assault" does not convey the essential element of "intent"), review granted, 137 Wn.2d 1007 (1999).
The Chaten approach is equally applicable here. Just as the word assault, standing alone, adequately conveys the element of intent, so too does the word "attempt," standing alone, convey the element of "substantial step." The use of the word "attempt" in the information gave Borrero the constitutionally required notice of the crime charged.
Our conclusion is also buttressed by this court's ruling in State v. Rhode. That case involved a post-verdict challenge and, thus, required us to apply a liberal rather than a strict construction. Nonetheless, we conclude that the rationale of Rhode applies here because our focus there, as here, was solely on the meaning of the word "attempt." In Rhode, we concluded that the word "attempt" as used in the first degree felony murder statute sufficiently apprised the defendant of the "substantial step" element. Specifically, we stated that the term "attempt" "encompasses the statutory definition including the substantial step element."
63 Wn. App. 630, 636, 821 P.2d 492 (1991), review denied, 118 Wn.2d 1022 (1992).
Rhode, 63 Wn. App. at 636.
In State v. Moavenzadeh, our Supreme Court referred to Rhode, stating, "Unlike the term "attempt," however, "conspiracy" does not, by itself, suggest that there must be conduct which would constitute a substantial step toward the completion of a crime." We conclude that our Supreme Court's reference to Rhode tacitly approves the approach we take here.
135 Wn.2d 359, 956 P.2d 1097 (1998).
Moavenzadeh, 135 Wn.2d at 363 (citing Rhode, 63 Wn. App. at 636).
At oral argument, Borrero first invited our attention to State v. Dent. He cites that case for the proposition that the "substantial step" requirement for attempt is different than the "substantial step" requirement for conspiracy. But that case dealt with the language of a jury instruction, not an information. The purpose of a jury instruction is to provide the jury with the applicable law to be applied in the case. On the other hand, the purpose of an information is to give a defendant notice of the crime with which he or she is charged. Because of these different purposes, jury instructions must necessarily contain more complete and precise statements of the law than are required in an information. Therefore, Dent's holding has no relevance here.
123 Wn.2d 467, 869 P.2d 392 (1994).
Borrero also contends that the information was constitutionally deficient because it contained an error in a numerical statutory citation. A scrivener's error in an information is not a basis for reversal absent a showing of prejudice to the defendant.
Vangerpen, 125 Wn.2d at 787-88; CrR 2.1(a)(1) (error in the citation not grounds for dismissal of an information or reversal of a conviction if the error did not mislead the defendant to the defendant's prejudice).
Here, the information improperly cited RCW 9A.28.030, which defines criminal solicitation, rather than RCW 9A.28.020, which defines criminal attempt. But because the information properly apprised Borrero of the essential elements of the crime charged, there is no prejudice from this typographical error.
The information is constitutionally adequate.
We affirm the judgment and sentence.
The remainder of this opinion has no precedential value and will not be published.
RCW 2.06.040.
Prosecutorial Misconduct
Borrero next contends that prosecutorial misconduct deprived him of a fair trial. We cannot agree.
A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. We view the prosecutor's allegedly improper remarks in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. We presume that the jury follows the court's instructions. Failure to object to an improper remark constitutes a waiver of the claimed error unless the remark is so "flagrant and ill-intentioned" that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 118 S.Ct. 1192 (1998).
Brown, 132 Wn.2d at 561.
Brown, 132 Wn.2d at 561.
State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976).
Brown, 132 Wn.2d at 561 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)).
Borrero claims two instances of prosecutorial misconduct. Both involve the prosecutor's alleged vouching for one of the State's witnesses. Specifically, Borrero contends that the prosecutor improperly vouched for the credibility of Borrero's codefendant, Vaughn. He testified for the State pursuant to a plea agreement.
During the State's opening statement, the prosecutor stated: "Michael Vaughn agreed to testify in this case, and the circumstance behind that was he was to plead to kidnapping in the first degree and serve 66 months. In exchange he would testify truthfully in this case." Borrero did not object to this statement.
Because Borrero failed to object to the statement, he has the burden of showing that the alleged error could not have been remedied by a curative instruction. He fails to meet this burden. Thus, we do not consider this argument further.
The second instance of alleged misconduct was during the State's redirect examination of Vaughn. During cross examination, Borrero had the court admit the plea agreement, then asked Vaughn to read certain of its provisions aloud. And the cross examination concluded:
{Defense Counsel:} And who is the person who signed for the state as the deputy prosecuting attorney?
{Vaughn:} That would be Tod Bergstrom.
{Defense Counsel:} This gentleman right here?
{Vaughn:} Yes, sir.
{Defense Counsel:} The one who asked you on redirect couldn't there have been just one bag?
{Vaughn:} Yes, sir.
{Defense Counsel:} And now the fact that you have a deal, Mr. Vaughn, and that allows you, if you testify in accordance with your proffer, not to be charged with a drug offense, not to be charged with attempted murder, and not to have a deadly weapon enhancement, that deal is still your deal whether or not you snitch against Aaron Borrero or whoever the third person is, you just have to give up somebody, don't you?
{Prosecutor}: I object. That is argumentative.
THE COURT: Sustained. The jury will disregard the last question.
{Defense Counsel}: No further questions.
On redirect, the prosecutor also asked Vaughn to read aloud a portion of the plea agreement:
{Prosecutor:} Mr. Vaughn, do you still have the exhibit in front of you that you just read from?
{Vaughn:} Yes.
{Prosecutor:} Will you read the final paragraph, paragraph seven, to the jury.
{Vaughn:} The parties agree that the Supreme {sic} Court Judge Michael J. Fox may enforce any aspect of this —
{Defense counsel}: Excuse me. Your Honor, that is grossly improper to use that and to try to buttress this by reading that paragraph.
THE COURT: Let me see the exhibit, please. I was glad to see I just got a promotion though.
{Defense counsel}: The court has nothing to do with whether he is {truthful} or not at all.
{Prosecutor}: The exhibit has been admitted.
{Defense counsel}: Sure it has. But the court has not judged whether this man is telling the truth or not.
THE COURT: A portion of the preceding paragraph was read by the witness in the presence of the jury. The document has been admitted. The prosecutor may ask him to read the subsequent paragraph.
{Prosecutor:} Just read paragraph seven?
{Vaughn:} The parties agree the Supreme {sic} Court Judge Michael J. Fox may enforce any aspect of this agreement.
The court denied Borrero's motion for a mistrial. But the court agreed to give a curative instruction proposed by Borrero, which stated:
Whenever a defendant enters into an agreement with the prosecution to enter a plea of guilty, the court must approve the agreement by signing the written agreement between the state and the defendant. By so approving any such agreement, the court does not in any way comment on the defendant's credibility or lack thereof.
Because the court gave this curative instruction, we need not decide whether the prosecutor's question was misconduct. Even if we assume that there was misconduct, the curative instruction avoided any prejudice because jurors are presumed to follow the court's instructions. Borrero has failed to overcome this presumption.
The federal "vouching" cases on which Borrero relies are distinguishable. In United States v. Roberts, the prosecutor referred to facts not in evidence in an attempt to bolster the witness's testimony. By doing so, reasoned the court, the prosecutor suggested that another witness could have been called to support the original witness' testimony. In United States v. Smith, the prosecutor emphasized that if a State witness who was testifying pursuant to a plea agreement lied at trial, he would be prosecuted for perjury. He also emphasized that he, as a prosecutor, was a servant of the government, whose role was "not to seek a conviction but rather to guarantee a fair trial and turn over any favorable evidence to the defense" and to "lead {the jury} to the truth.'" Finally, the prosecutor invoked the backing of the court, stating, "if I did anything wrong in this trial, I wouldn't be here. The court wouldn't allow that to happen." The court concluded that through these statements, the prosecutor improperly vouched for the State on behalf of the government and the court.
618 F.2d 530, 533 (9th Cir. 1980).
962 F.2d 923 (9th Cir. 1992).
Smith, 962 F.2d at 933-34.
Smith, 962 F.2d at 936.
Here, in contrast, the prosecutor had Vaughn read aloud a paragraph of a document that the defense had offered for admission. The prosecutor did not engage in the type of impermissible argument at issue in the federal cases. Moreover, unlike this case, in neither of the federal cases did the trial court give a curative instruction.
The alleged prosecutorial misconduct did not deprive Borrero of a fair trial.
Jury Instruction
Borrero contends that the jury instruction on accomplice liability was improper. We disagree.
Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied.
Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995).
Borrero challenges the final sentence of instruction No. 20. In its entirety, the instruction provides:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing a crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
An accomplice may be tried for the crime, even though another person is not prosecuted.
(Italics ours.)
Because the italicized sentence is a paraphrase of a portion of the accomplice liability statute, RCW 9A.08.020(6), Borrero properly does not challenge it as an incorrect statement of the law. Instead, he contends that it confused the jury and improperly commented on the evidence.
Neither argument withstands scrutiny.
First, nothing about the final sentence of the instruction suggests that it would confuse or mislead the jury. It properly states the law of accomplice liability. From our review of the record, we cannot agree with Borrero's contention that this proper statement of the law "confused the issue of credibility with the basis of liability."
Brief of Appellant at 39.
Second, that sentence was not a comment on the evidence. An impermissible comment on the evidence occurs when the judge conveys to the jury his or her impression of the merits of the case. "An instruction which does no more than accurately state the law pertaining to an issue in the case does not constitute an impermissible comment on the evidence." Here, the judge did not convey his impression of the merits of the case or the credibility of any witness.
City of Seattle v. Smiley, 41 Wn. App. 189, 192, 702 P.2d 1206, review denied, 104 Wn.2d 1017 (1985).
Smiley, 41 Wn. App. at 192.
State v. Carothers, on which Borrero relies, supports our conclusion that the instruction here did not amount to a comment on the evidence.
84 Wn.2d 256, 525 P.2d 731 (1974).
There, the court gave the then standard instruction on accomplice liability. The instruction cautioned the jury to carefully examine the testimony of an accomplice who testifies on behalf of the State. Our Supreme Court concluded that such an instruction did not amount to a comment on the credibility of a witness. Instead, the cautionary instruction merely stated a "rule of law applicable to the class to which the witness belongs." Here too, the court properly stated the applicable law regarding accomplice liability. It did not comment on Vaughn's credibility.
Carothers, 84 Wn.2d at 266.
Carothers, 84 Wn.2d at 269.
The remainder of Borrero's argument about the instruction focuses on the fact that the prosecutor used the final sentence to argue that the jury could convict Borrero, although Vaughn was not subject to prosecution under the terms of his plea agreement. But a jury instruction is not improper simply because it allows a party to effectively argue its theory of the case. Instead, a jury instruction is improper if it precludes a party from arguing its theory of the case. Borrero does not contend, nor could he, that the instruction prevented him from arguing that Vaughn was not a credible witness because of his motivation to gain the favorable terms of his plea agreement.
Hue, 127 Wn.2d at 92.
Finally, Borrero contends that cumulative error robbed him of a fair trial. Because of our resolution of the foregoing issues, we hold that there was no cumulative error.
We affirm the judgment and sentence.
KENNEDY, C.J. and AGID, J., concur.