State v. Borrero

Chambers, J.

(concurring in part, dissenting in part) —

I agree with the majority that the information provided Aaron Borrero with adequate notice of the charges against him. However, I believe that the erroneous accomplice liability instruction relieved the State of its burden to prove every element of the charged crimes, namely, facilitating the commission of “the” crime charged. I would therefore reverse and remand for a new trial without the flawed instruction.

Leslie Lemieux entered Kyle Anderson’s house in South King County with a duffel bag containing 30 pounds of marijuana. Once inside Anderson’s house, Lemieux testified that Borrero and another man pointed guns at him. Lemieux was forced face down and his hands were tied behind him with speaker wire by Borrero. Lemieux was blindfolded, the marijuana was removed from his duffel bag, and he was then stuffed into the bag. Lemieux was then stuffed into a Jeep Cherokee and driven around for five hours. Throughout this time, Lemieux talked with the driver, Michael Vaughn, whom Lemieux erroneously believed to be Borrero. Lemieux called Vaughn “Aaron” and Vaughn responded to that name to protect his own identity. Finally, Lemieux was dumped from the duffel bag into the Yakima River in Kittitas County. Borrero denied any involvement at all in this sad course of events, including putting Lemieux into the Jeep, driving to Eastern Washington, or throwing Lemieux into the river.

*368Borrero was charged with kidnapping and attempted murder. The prosecution’s theory was that Borrero participated in the entire criminal course of conduct. Witnesses testified that he participated in assault and robbery, although he was not charged with either.

Under Washington law, a person is an accomplice only if he or she solicits, commands, encourages, or requests the commission of a crime “[w]ith knowledge that it will promote or facilitate the commission of the crime.” RCW 9A.08.020(3)(a) (emphasis added). Under an accomplice liability theory, a defendant may be charged as a principal in any crime that he or she facilitates. Accomplice liability must be proved for each crime.

Recently, this Court held that WPIC 10.513 erroneously instructed the jury to find a defendant guilty as an accomplice if he aids in the commission of “a” crime rather than “the” specific crime for which he is charged. State v. Roberts, 142 Wn.2d 471, 511, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000).

During Borrero’s trial, in response to an inquiry during jury deliberations, the judge informed the jury that jury instruction 20 (the erroneous accomplice liability instruction, WPIC 10.51) applied to both counts.

Whenever a jury is instructed on more than one crime, an instruction that enables the jury to find the defendant guilty on the basis of participation in “a” crime would enable a guilty finding on all the charged crimes even if the jury believed that the accused facilitated only one of them. This is a material departure from our jurisprudence. For example, jury instruction 20 given to Borrero’s jury stated in relevant part:

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, *369with knowledge that it will promote or facilitate the commission of a crime, he or she either:
(2) aids or agrees to aid another person in planning or committing a crime.

Clerk’s Papers at 55 (emphasis added).

In this case, the jury may have believed that Borrero seized and bound Lemieux, but ended his participation at that point and did not accompany the men who threw Lemieux into the river. Under the instructions given, the jury could have found that because Borrero aided in the commission of kidnapping, he was guilty as an accomplice in the attempted murder, even if he neither knew of that crime nor participated in it. Similarly, under the instructions given, if the jurors believed Borrero participated in the murder, they could have found him guilty as an accomplice to the kidnapping. This would not only enable the jury to return a guilty verdict on a crime that the defendant did not aid in any way, but might also lead jurors to the erroneous belief that if the defendant facilitates the commission of one of the charged crimes, they must find him guilty as an accomplice of both. It would thus defeat the objective of requiring the jury to deliberate on both counts individually, substituting a principle Washington has rejected—that a defendant who is guilty as an accomplice to one of the charged crimes is guilty as an accomplice to all. See, e.g., RCW 9A.08.020(3)(a) (requiring knowledge of “the crime” for accomplice liability); Roberts, 142 Wn.2d at 510 (finding that the legislative history of the accomplice liability statute requires the mens rea of knowledge of the particular crime); State v. Rice, 102 Wn.2d 120, 125, 683 P.2d 199 (1984) (holding that the State must prove “general knowledge of [the defendant’s] coparticipant’s substantive crime”).

The instructional error relieved the State of its burden of proving accomplice liability separately for each crime. That is an error of constitutional magnitude.

If the instructions allowed the jury to convict [the defendant] without finding an essential element of the crime charged, the *370State has been relieved of its burden of proving all elements of the crime(s) charged beyond a reasonable doubt, and thus the error affected his constitutional right to a fair trial.

State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001).

Most constitutional errors can be harmless. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). A jury instruction that omits an element of the offense is not a structural error infecting the whole trial process, and it therefore “does not necessarily render a criminal trial fundamentally unfair.” Id. at 9. However, an error of constitutional proportions is not harmless unless the appellate court is “£ “able to declare a belief that it was harmless beyond a reasonable doubt.” ’ ” State v. Stephens, 93 Wn.2d 186, 191, 607 P.2d 304 (1980) (quoting State v. Burri, 87 Wn.2d 175, 182, 550 P.2d 507 (1976) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967))). Therefore, I conclude that every time the erroneous accomplice liability instruction (WPIC 10.51) is given in connection with two or more charged crimes, the error cannot be harmless and per se reversal is required.

I disagree with the dissent, however, that the presence of the erroneous accomplice liability instruction requires automatic reversal of a conviction. In my view, when only one crime is charged and the jury is instructed on the elements of only one crime, the erroneous WPIC 10.51 instruction should be subject to a harmless error analysis. Where only one crime is charged, “a” crime may mean “the” crime. If Borrero had been charged only with attempted murder, and if the jury had been instructed only on the elements of attempted murder, and if there had been no evidence or argument concerning any other crime, then the erroneous accomplice instruction may have been harmless.4 However, I disagree with my colleagues in dissent that we should speculate that a jury will seize “any” uncharged crime to convict under accomplice liability. Unless a jury has been charged as to the elements of another crime, where there is *371specific testimony or argument concerning a crime other than the charged crime without specific facts leading to a contrary conclusion, the supposition the jury might seize upon some petty offense to support a conviction of the charged crime under an accomplice liability theory is not supported by logic, reason, or common experience.

On the other hand, when the jury is instructed on a single charged crime, but other crimes are discussed, the jury may consider “a” crime to refer to the other crimes. See, e.g., State v. Cronin, 142 Wn.2d at 581 (referring to a jury inquiry as to whether the defendant had to know “ ‘that he is assisting in a first degree assault or that he is promoting a crime of any kind’ ” (quoting Clerk’s Papers)). Here, from the evidence, the jury might easily have speculated about other crimes, and concluded that because Borrero facilitated “a” crime of robbery or assault, he was guilty as an accomplice in the kidnapping and attempted murder. Therefore, applying a harmless error analysis to the facts and evidence of this case, I conclude that the error cannot be said to be harmless to Borrero beyond reasonable doubt. When the jury is instructed that a guilty verdict can be based on participation in “a” crime and more than one crime is charged, the erroneous accomplice liability instruction will always permit the jury to conclude accomplice liability for all crimes charged if they believe the defendant was facilitating “a” or any crime charged. This contrasts sharply with the situation where only one crime is charged, which could well be harmless beyond a reasonable doubt.

I would therefore reverse and remand for a new trial.

11 Washington Pattern Jury Instructions: Criminal 10.51 (2d ed. 1994) (WPIC).

When only one crime is charged, instructing the jury on a lesser included offense of the charged crime may also be harmless.