GROUNDS FOR RELIEF
THE ACCOMPLICE LIABILITY JURY INSTRUCTION GIVEN TO THE JURY IN THIS CASE RCW 9A.080.020 (3) (a) AND OTHER ACCOMPLICE LIABILITY INSTRUCTIONS ARE NOT APPLICABLE TO RCW 10.95.020 AND/OR RCW 9A.32.030 (1) (a) COMPOUNDED BY THE SEVERE LEGAL INSUFFICIENCY OF INSTRUCTING THE JURY AS TO THE VICARIOUS LIABILITY ENCOMPASSED IN RCW 9A.32.030 (1) (c) ALL OF WHICH RENDERS CONVICTION UNCONSTITUTIONAL AS WELL AS UNLAWFUL.
Under Washington State courts decisional law and the Constitution of the United States, accomplice liability is simply not applicable to RCW. 10.95.020 which inherently encompasses the element of a RCW 9A.32.030 (1) (a) premeditated murder, of which is repugnant to the underlying conviction of RCW 9A.32.030 (1) (c) Felony Murder in this case, see State v. Allen, 182 Wn.2d 364, 341 P.3d 268 (2015) (“A defendant may not be convicted as an accomplice on the basis of constructive knowledge of the principal’s intent to commit the crime. A finding of actual knowledge is required to convict a defendant as an accomplice”) ; State v. Thomas, 150 Wn. 2D 821, 83 P.3d 970 (2004) (“The court held that the aggravating factors instruction permitted the jury to impose a death sentence on defendant, even if it found that the aggravating factors applied only to his accomplice. Defendant’s “to convict” instruction did not require the jury to find he acted with premeditated intent. The accomplice liability instruction did not require that defendant had knowledge he was facilitating the crime for which he was charged. The errors in the accomplice liability and “to convict” instruction were harmless beyond a reasonable doubt, because defendant was so entrenched as a major participant in the murder that his culpability could not be lessened even if his accomplice pulled the trigger. However, the harmless analysis was not available to uphold defendant’s death sentence and conviction for aggravated first degree murder. Accomplice liability under RCW 9A.08.020 (3) (a) requires a mens rea of knowledge of the charged offenses. It is error to instruct that the defendant may be found guilty as an accomplice if the defendant, with knowledge that it will promote or facilitate the commission of a crime, either solicits, commands, encourages, or agrees to aid another person planning or committing a crime”).
Improperly giving accomplice liability jury instruction is structural error requiring automatic reversal of conviction, Hedgpeth v. Pulido, 55 U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008) ; Burrage v. United States, 571 U.S. _, 134 S.Ct. _, 187 L.Ed.2d 715 (2014) ; In re Pers.Restraint of Woods, 154 Wn.2d 400, 114 P.3d 607 (2005) (Counsel was not ineffective for failing to move to dismiss the aggravating factor of rape under RCW 10.95.02. (11) (b) because the process to dismiss prosecution is not applicable to aggravating factors alleged in murder prosecution).
ACCOMPLICE LIABILITY
State v. Allen, 182 Wn.2d 364, 341 P.3d 268 (2015):
To determine whether an aggravator applies to an accomplice, we first look to the statue providing the aggravator for express triggering language.
We first looked to Washington’s accomplice liability statute and noted that unlike the prior version of the accomplice liability statute, the new statute did not explicitly provide for punishment of an accomplice to the same extent as the principal. Thus, the new accomplice liability statute did not automatically apply sentencing enhancements to accomplices. Rather, because an accomplice was equally liable only for the substantive crime—any sentence enhancement must depend on the accused’s own misconduct.
Here, the court sentenced Allen to an exceptional sentence based on the aggravator found in RCW 9.94A.535 (3) (v). That statute contains no express triggering language automatically authorizing an exceptional sentence for accomplices. Therefore, Allen’s own misconduct must form the basis upon which the exceptional sentence applies. The operative language of the statute here allows the court to sentence Allen above the standard range if “the offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim’s status as a law enforcement officer is not an element of the offense.” RCW 9.94A.535 (3) (v) may be imposed on remand if the jury finds the required elements based on Allen’s own misconduct… Thus, “offender” as used in the present case refers to Allen, not Clemmons. This reflects the jury’s special verdict form, which states that “the defendant (knew) the victim was a law enforcement officer.”
State v. Roberts, 142 Wn.2d 471, 14 P.2d 713 (2000) :
Contrary to the State’s contentions, it is anything but apparent that the jury would interpret the wording of the jury instructions in this case to require some form of active participation by Roberts. The accomplice liability and “to convict” instructions obscured the meaning of what it meant to “commit” murder. The jury could easily have concluded from reading those instructions in conjunction with one another that Roberts “committed” murder simply by acting as a lookout or aiding in the planning of the offense.
State v. Roberts, 142 Wn.2d 471. 14 P.2d 713 (2000) :
The state charged Roberts and Cronin in a single count with aggravated murder in the first degree, or, in the alternative, felony murder in the first degree… During the State’s closing argument, the defense objected when the State suggested Roberts could be an accomplice to the aggravating factors. Defense counsel did not otherwise object to jury instructions 8 or 9.
Roberts argues the accomplice liability, “to convict,” and aggravating factors jury instructions 7 through 9, allowed the jury to improperly apply guilt phase accomplice liability principles to penalty phase aggravating factors. Roberts contends these instructions, therefore, violated our aggravated murder statutes, the Eighth and Fourteen Amendments to the United States Constitution, and the due process and cruel punishment clauses of the Washington Constitution.
Based upon the statutory language, it is debatable whether the aggravated murder statute as worded even allows for the execution of a defendant convicted as an accomplice to first degree murder. The statute narrowly specifies that only those who commit “first degree murder as defined by RCW 9A.32.030 (1) (a) “are subject to the death penalty. RCW 10.95.020. No mention is made of committing first degree murder b way of the accomplice liability statute, RCW 9A.08.020 Furthermore, RCW 9A.32.030 (1) (a) requires a mens rea of premeditated intent to kill and actus reus that causes the death of the victim. The accomplice liability statute requires only a mens rea of knowledge, and an actus reus of soliciting, commanding, encouraging, or requesting the commission of the crime, or aiding or agreeing to aid in the planning of the crime. RCW 9A.08.020 (3) (a).
The jury instructions herein allowed Roberts to be convicted of premeditated murder in the first degree solely as an accomplice… The “to convict’ instruction did not require the jury to find that Roberts acted with premeditated intent, although a special interrogatory addressed this issue and was answered in the affirmative. The “to convict” instruction also did not require any showing that Roberts personally caused the death of Cantru or actively participated in the events that led to Cantru’s death.
We therefore, hold that major participation by a defendant in the acts giving rise to the homicide is required…merely satisfying the minimal requirements of the accomplice liability statute is insufficient…
State v. Hacheney, 160 Wn.2d 503,_P.3d_(Wash.2007):
The jury found Nicholas Hacheney guilty of premeditated first degree murder. By special verdict, the jury also found that he committed the murder “in the course of” first degree arson, and aggravating g factor subjecting him to a life sentence without the possibility of release. Clerk’s Papers (CP) at 1362; RCW 10.95.020 (11) (e) …This court has held that in order for a death to have occurred in the course of a felony, there must be a causal connection such that the death was a probable consequence of the felony. State v. Golladay, 78 Wn.2d 121, 131, 470 P.2d 191 (1970). In this case, the urder was not a probable consequence of the arson. We conclude that, as a matter of law, Hacheney did not murder his wife in the course of arson…We affirm in part, reverse in part, and remand for resentencing absent the aggravating factor.
State v. Golladay, 78 Wn.2d 121, 470 P.2d 191 (1970):
As to when a homicide may be said to have been committed in the course of the perpetration of another crime, the rule is…it must appear that there was such actual legal relation between the killing and the crime committed or attempted, that the killing can be said to have occurred as part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it. In the usual terse legal phraseology, death must have been the probable consequence of the unlawful act.
Burrage v. United States, 571 U.S._,134 S.Ct._, 187 L.Ed.2d 715 (2014):
We consider whether the mandatory minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury.
The District Court denied Burrage’s motion for a judgment of acquittal, which argued that Banka’s death did not “result from” heroin use because there was no evidence that heroin was a but-for cause of death.
We granted certiorari on two questions: Whether the defendant may be convicted under the “death results” provision (1) when the use of the controlled substance was a “contributing cause” of death, and (2) without separately instructing the jury that it must decide whether the victim’s death by drug overdose was a foreseeable result of the defendant’s drug-trafficking offense.
Because the “death results” enhancement increased the minimum and maximum sentences to which Burrage was exposed, it is an element the must be submitted to the jury and found beyond a reasonable doubt. See Alleyne v. United States, 570 U.S._,_ (2013) (slip op. At 14-15) ; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision.
NO VALID TIME BAR OR OTHER RESTRICTION PLACED ON COLLATERAL ADJUDICATION STRUCTURAL DEFECTS AND SUBSTANTIVE VIOLATIONS OF CONSTITUTIONAL RIGHTS
Hedgpeth v. Pulido, 555 U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008):
Prison Inmate was convicted of felony murder but asserted that one of two alternative theories of guilt in a jury instruction was improper and thus required a new trial.
Overview: It was undisputed that the jury was improperly instructed that the inmate could be found guilty of felony murder even if he joined the felony after the murder was committed. Court determined structural error.
A conviction based on a general verdict is subject to challenge is the jury was instructed on alternative theories of guilt and may have relied on an invalid one. See Strongberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) ; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). In this case the Court of Appeals for the Ninth Circuit held that such an error is “structural error requiring the conviction to be set aside on collateral review without regard to whether the flaw in the instructions prejudiced the defendant.
In re Detention of Kisternmadier, 163 Wn.2d 166, 178 P.3d 949(2008):
“Structural errors…are not subject to harmless error review,” State v. Frost, 160 Wn.2d 765, 779, 161 P.3d 361 (2007) (Citing Fulminite, 499 U.S. 279, 310,_S.Ct._, 113 L.Ed.2d 302 (191)). Internal structural errors are “subject to automatic reversal,” Neder, 5278 U.S. at 8. In the criminal context, deprivation of “the presence of counsel at a critical state” constitutes structural error requiring reversal. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting United States Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
State v. Corrode, 78 Wn.App. 612, 898 P.2d 860 (1995):
Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel on the part of the accused.
An order entered without jurisdiction is void. Thus, if a superior court acts without subject matter jurisdiction, its acts are void.