DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 24098-0-II
Title of Case: State of Washington, Respondent
v.
Valdez Vernon Stewart, Appellant
File Date: 08/04/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Pierce County
Docket No: 97-1-03310-3
Judgment or order under review
Date filed: 10/28/1998
Judge signing: Hon. Thomas J. Felnagle
JUDGES
------
Authored by Elaine M. Houghton
Concurring: J. Dean Morgan
Karen G. Seinfeld
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Kevin R. Cole
Griffith & Cole Pllc
1305 NE 45th St Ste 205
Seattle, WA 98105
Counsel for Respondent(s)
John C. Hillman
Pierce County Deputy Pros Attny
930 Tacoma Ave S Rm 946
Tacoma, WA 98402
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 24098-0-II
Respondent,
v.
VALDEZ VERNON STEWART, UNPUBLISHED OPINION
Appellant. Filed:
HOUGHTON, J. -- Valdez Vernon Stewart appeals his conviction of
second degree felony murder, vehicular homicide, first degree possession of
stolen property, felony hit and run, resisting arrest, and third degree
driving while license suspended. Stewart raises numerous assignments of
error based upon trial court rulings, prosecutorial misconduct, and
insufficiency of the evidence. We affirm.
FACTS
Underlying Incident
On August 8, 1997, about 7:30 a.m., Stewart drove a stolen Suburban
through a red light, at the intersection of North 21st and Union Avenue in
Tacoma, crashing into another vehicle and killing its driver, Paula Joyce.
Stewart immediately fled the accident scene without leaving any personal
information or assisting the victim. He was apprehended shortly thereafter
by off-duty police officers.
Minutes before the accident, several witnesses observed Stewart
traveling northbound on Union Avenue at a high rate of speed, swerving
around traffic, and running through red lights. Police officers at the
scene observed that there were no keys in the ignition of the vehicle
driven by Stewart, that the ignition had been tampered with, and that the
vehicle had been hot-wired. From the vehicle's registration, police
officers determined that the vehicle belonged to David and Vicki Miltun,
who did not know their vehicle was missing until contacted by the police
the morning of August 8, 1997. The Miltuns testified that only they had
permission to drive the vehicle.
Pretrial Proceedings
The State charged Stewart with second degree felony murder, vehicular
homicide, first degree possession of stolen property and alternatively with
taking a motor vehicle without permission, hit and run, resisting arrest,
failure to remain at injury accident, and third degree driving while
license suspended. Stewart pleaded not guilty by reason of insanity.
During pretrial proceedings, the State moved to exclude the mental health
defenses. The trial court excluded the defense of diminished capacity, but
allowed the defense of insanity.
The court suggested that a mini-trial be held, before the trial, on
the 'issue of whether or not there is sufficient evidence of insanity.'
Report of Proceedings at 229. Defense counsel indicated that a mini-trial
would not be in the interest of judicial economy, taking as much time and
causing as much delay to do as it would at trial. The trial court agreed
and instead allowed counsel to present evidence to meet its burden of proof
showing substantial evidence of insanity. The court, however, cautioned
defense counsel about the risks of proceeding with an insanity defense.
Specifically, the court noted: 'One of the risks the defense runs if they
choose to proceed with this defense of insanity is that the Court may
strike it in the end, and if it does, we've heard a lot of things that then
we wouldn't have otherwise heard{.}' Report of Proceedings at 231.
State Case in Chief
In addition to calling several witnesses who observed the events on
the morning of August 8, 1997, the State called several police officers and
medical professionals to testify about Stewart's behavior on the day of the
accident. Off-duty police officers, Ron Tennyson and Patrick O'Neill,
apprehended Stewart and described the difficulty they had in trying to
arrest him because of his combativeness, kicking, fighting, and thrashing.
They also testified that the contact with Stewart was not different from
other pursuits and arrests. They further testified that Stewart did not
ramble or speak incoherently while in their custody. Officers Tennyson and
O'Neill turned Stewart over to Officer James Lewis, who testified that
Stewart pulled away and was kicking as the officers attempted to place him
in a squad car.
Firefighters Albert Frank and John Diedrich were dispatched to the
location where the officers had arrested Stewart. Frank and Diedrich
performed a first aid evaluation of Stewart. Frank testified that Stewart
did not seem disoriented or delusional. Frank and Diedrich testified that
sometimes they are called to situations where a person is acting
incoherent, psychotic, or delusional. In such situations, they have a
number of options, including contacting mental health professionals.
Neither Frank nor Diedrich requested mental health assistance for Stewart.
Officer Fred Dryer was present at Tacoma General Hospital when Stewart
arrived following his arrest. Dryer testified that Stewart's demeanor was
strange and that his speech rambled. But Dryer observed that once Stewart
was aware the police were present, he became mute and passive. Officer
Michael Hickman, also present at the hospital, characterized Stewart's
behavior as 'plain combative,' even while in wrist and ankle restraints.
Report of Proceedings at 1282. Officer James Smith testified that Stewart
did not 'act in any way out of the ordinary' when viewed at the hospital.
Report of Proceedings at 909. Officer Daniel Grant testified to Stewart's
behavior during transportation to the jail and the booking process. He
indicated that Stewart complied with simple directions, talked in a calm
manner, and was very cooperative.
Defense Case in Chief
Defense counsel called family members and medical professionals.
Karla Gordon, Stewart's mother, described Stewart's past behavior in 1996
and 1997. Specifically, on August 7, 1997 -- the day before the accident -
- Gordon testified that she went to Harborview Medical Center to talk to
mental health professionals about Stewart. The mental health professionals
talked with Stewart and subsequently told Gordon that Stewart was fine and
there was nothing wrong with him. She also testified, based upon an
incident between Stewart and his sister on August 7, 1997, that he
'understood right from wrong.' Report of Proceedings at 1414-15.
Richard Stewart, Stewart's father, testified that he saw Stewart the
morning of the accident between 6:30 a.m. and 6:45 a.m. at his residence in
Seattle. He indicated that Stewart 'seemed okay' to him. Report of
Proceedings at 1432. He testified that Stewart was coherent and not
confused, dazed, or disoriented. He also testified about Stewart's past
behavior. Mia Stewart, Stewart's sister, testified as well about Stewart's
behavior in days past. At the time of the accident, she had been living
with her father for about two weeks.
Dr. Margaret Jolly, a psychiatrist, testified about Stewart's
condition in April 1996. At that time, Stewart had been admitted to the
hospital, and Dr. Jolly treated him with medication and released him two
weeks later. On cross-examination, Dr. Jolly indicated that the majority
of people with some type of mental problem remain law-abiding citizens.
She had no further contact with Stewart after his release in April 1996.
Consequently, she could provide no opinion as to Stewart's mental status
after his release. Dr. John Sindorf, who provides psychiatric services to
the jail, testified that he prescribed medication to Stewart but did not
diagnosis him.
Withdrawal of Insanity Defense
Following the defense case in chief, the State again moved to exclude
the defense of insanity. Defense counsel agreed that there was not enough
evidence on insanity and withdrew the issue. The court then instructed the
jury to 'disregard the testimony of Dr. Margaret Jolly, Dr. John Sindorf,
Karla Gordon, and Mia Stewart in its entirety. You are further instructed
to disregard the testimony of Richard Stewart as it pertains to the
defendant's mental state.' Report of Proceedings at 1540.
The jury found Stewart guilty of second degree felony murder,
vehicular homicide, first degree possession of stolen property, taking a
motor vehicle without permission, felony hit and run, resisting arrest, and
third degree driving while license suspended.
Stewart appeals, arguing that (1) he was denied his right to a jury by
impartial jurors when the trial court instructed the venire on what it
means to be a fair and impartial juror; (2) the trial court commented on
the evidence and denied him his right to a defense when it instructed the
jury to disregard the testimony of the defense witnesses; (3) the
prosecutor committed misconduct when he elicited lay opinion testimony from
witnesses about Stewart's mental condition; (4) the trial court erred when
it instructed the jury that it could convict Stewart of felony murder if it
found he caused a person's death 'in immediate flight from' or 'in the
course and furtherance of' possession of stolen property/taking a motor
vehicle without permission; and, (5) the evidence was insufficient to
sustain his conviction for second degree felony murder.
ANALYSIS
Trial Court's Discussion of Impartiality
Stewart contends he was denied his constitutional right to a jury
trial by impartial jurors when the trial court 'erroneously instruct{ed}
the venire on what it means to be a fair and impartial juror.' Br. of
Appellant at 36. Stewart did not object at trial to the court's
instruction.1
Before voir dire began, the trial court described to prospective
jurors how the trial would be conducted and what the duties and
responsibilities of a juror would be. The court indicated that jurors
would be asked several questions to determine if each juror could be fair
and impartial and to determine which jurors would be excused from the case.
The court described what fair and impartial means.
As an example, the trial court talked about a contract case where one party
was suing another over the sale of a home. The court used the example to
illustrate how feelings, experience or attitudes may or may not disqualify
a juror, but the court ultimately emphasized that the juror is 'going to
have to make the decision for {himself/herself} whether or not things
{he/she} may know about this case, attitudes {he/she} may have formed,
thoughts that {he/she} have about it are such that {he/she} couldn't be
fair and impartial.' Report of Proceedings at 266.
Stewart asserts that the trial court's comments told jurors how to
answer questions about their fairness and impartiality and what types of
opinions would render them impartial. But the record does not support
Stewart's assertions. Prospective jurors did not simply answer 'yes' or
'no' in response to whether they could be fair and impartial, as Stewart
suggested they would based upon the court's discussion on fairness and
impartiality. Stewart has failed to show actual prejudice, specifically,
how jurors were prejudiced against him by the court's comments.2
Trial Court's Instruction to Disregard Testimony
Stewart next contends the trial court's instruction to disregard the
testimony of the defense witnesses denied him his constitutional right to
present a defense and was a comment on the evidence. He argues that the
excluded testimony was relevant to 'the question of whether the homicide
was caused 'in the course of and in furtherance of' or 'in immediate
flight' from a felony for purposes of the felony murder charge,
notwithstanding the withdrawal of the insanity defense.'3 Br. of Appellant
at 20. He also argues that the excluded testimony was 'relevant rebuttal
to prosecution witnesses' repeated assertions that {he} was feigning
symptoms of mental illness.' Br. of Appellant at 20. Stewart did not
object to the trial court's instruction.4
Right to Defense
After the defendant withdrew the defense of insanity, the trial court
instructed the jury to disregard the testimony of Karla Gordon, Mia
Stewart, Dr. Margaret Jolly, and Dr. John Sindorf, and the testimony of
Richard Stewart concerning the defendant's mental state. Stewart argues
that the excluded testimony was relevant to the felony murder charge, even
in the absence of the insanity defense. He asserts that the evidence would
make it less probable that he had the specific intent to further the
commission of the unlawful taking and possession of the Suburban at the
time of the accident.
To support Stewart's assertions, the defense witnesses' testimony
would have to describe, at the very least, Stewart's behavior the day of
the accident. But all of the witnesses called by the defense testified
about Stewart's past mental history and behavior. For example, Dr. Jolly,
a psychiatrist who had treated Stewart in the past for mental problems,
last saw Stewart in April 1996 and would not provide an opinion as to
Stewart's condition on August 8, 1997 or since April 1996. Dr. Sindorf, a
psychiatrist providing services to the jail, prescribed medication for
Stewart but did not diagnosis him. Stewart's mother, Karla Gordon, asked
mental health professionals from Harborview Medical Center to evaluate
Stewart, one day before the accident. They talked with Stewart and told
Gordon that he was fine. Stewart's sister, Mia, had not seen him for two
weeks and could only testify about Stewart's past behavior. Stewart's
father, Richard Stewart, also testified about the defendant's past behavior
and that he saw the defendant about an hour before the accident. He said
his son seemed okay and was not incoherent, dazed, disoriented, or
confused.
In contrast, the State called several witnesses who testified about
Stewart's behavior the day of the accident. None of the defense witnesses,
however, except Richard Stewart, described Stewart's behavior the day of
the accident. The defense witnesses testifed only as to Stewart's past
behavior and mental health history. Excluding his father, none of the
defense witnesses could testify to Stewart's intent the day of the
accident, his actions the day of the accident, or his whereabouts the
morning of the accident.5
Moreover, some of the testimony that was excluded supports the State's
position that Stewart was not insane the day of the accident rather than
Stewart's assertions that the testimony would make it less probable that he
had the specific intent to further the commission of the crimes. For
instance, Dr. Jolly testified that a majority of people with some type of
mental problem remain law-abiding citizens. Mental health professionals,
one day before the accident, told Gordon that Stewart was fine. Gordon
also testified that based upon an incident between Stewart and his sister
on August 7, 1997, he 'understood right from wrong.' Report of Proceedings
at 1414-15. None of the defense witnesses provided relevant testimony that
established a lack of purpose or motive or specific intent at the time of
the accident. None of the defense witnesses provided relevant testimony
that disputed Stewart's intent to further the commission of the unlawful
taking and possession of the Suburban at the time of the accident.
Furthermore, defense counsel was warned by the trial court and
informed of the consequences in the event the defense did not meet its
burden of proof showing substantial evidence for the defense of insanity.
Specifically, the court noted: 'One of the risks the defense runs if they
choose to proceed with this defense of insanity is that the Court may
strike it in the end, and if it does, we've heard a lot of things that then
we wouldn't have otherwise heard{.}' Report of Proceedings at 231.
Defense counsel voluntarily withdrew the defense of insanity, conceding
there was insufficient evidence to present the defense. The defendant was
given the opportunity to present a defense and did so; he cannot now claim
that he was denied his right to present a defense. Further, Stewart fails
to show actual prejudice. Thus, the trial court did not err when it
instructed the jury to disregard the testimony.
Relevant Rebuttal Evidence
Stewart also argues that the excluded testimony was relevant rebuttal
to testimony by the State's witnesses about his mental condition. He
argues that because the State first inquired about his mental health
condition, as a matter of fundamental fairness he must be given an
opportunity to inquire further on the subject.
But the State presented evidence about Stewart's behavior on the day
of the accident only because Stewart raised the defense of insanity.
Evidence of his behavior on the day of the accident was relevant to show
that Stewart was sane on the day of the accident. In addition, defense
counsel had the opportunity to cross-examine each of the State's witnesses
and to rebut and defend against the State's evidence when it presented its
case in chief. Thus, the trial court did not err when it instructed the
jury to disregard the testimony.
Comment on Evidence
Stewart further argues that the trial court commented on the evidence
when it instructed the jury to disregard all of the testimony of the
defense witnesses, except for statements from Stewart's father that did not
pertain to Stewart's mental state. The trial court gave the following
instruction to the jury after the defense of insanity was withdrawn by
defense counsel: 'Ladies and gentlemen of the jury, I am going to instruct
you now that the defendant has withdrawn the defense of insanity.
Accordingly, you are instructed to disregard the testimony of Dr. Margaret
Jolly, Dr. John Sindorf, Karla Gordon, and Mia Stewart in its entirety.
You are further instructed to disregard the testimony of Richard Stewart as
it pertains to the defendant's mental state.' Report of Proceedings at
1540.
Stewart asserts that the instruction by the trial court implied to the
jury that 'the court found no merit in the defense case whatsoever . . .
The instruction implied that the court disapproved of the credibility of
defense witnesses, their testimony, and the theory that the defendant was
mentally ill at the time of the traffic accident.' Br. of Appellant at 33-
34.
A judge is prohibited from conveying to the jury his opinion
concerning the merits of the case. State v. Becker, 132 Wn.2d 54, 64, 935
P.2d 1321 (1997). 'Article IV, section 16 of the Washington Constitution
prevents judges from commenting to the jury on matters of fact.' State v.
Dewey, 93 Wn. App. 50, 58-59, 966 P.2d 414 (1998), review denied, 137 Wn.2d
1024 (1999). A trial court's instruction to a jury is an improper comment
on the evidence when the comment conveys to the jury the court's attitude
toward the merits of the case or allows the jury to infer the court's
assessment of witness credibility. State v. Deal, 128 Wn.2d 693, 703, 911
P.2d 996 (1996). But a trial court's explanation or statement of reasons
for its rulings on the admission or exclusion of evidence does not
constitute impermissible comment on the evidence. State v. Cerny, 78 Wn.2d
845, 855-56, 480 P.2d 199 (1971), modified on other grounds, 408 U.S. 939
(1972); State v. Richard, 4 Wn. App. 415, 423-24, 482 P.2d 343 (1971).
Here, the State moved to exclude the defense of insanity, arguing that
defense counsel failed to provide substantial evidence to sustain the issue
of insanity. Defense counsel agreed and withdrew the defense of insanity.
'If the record is devoid of substantial evidence in support of the plea of
insanity or mental irresponsibility, it is error to submit that issue to
the jury.' State v. Tyler, 77 Wn.2d 726, 739, 466 P.2d 120 (1970) (citing
State v. Piche, 71 Wn.2d 583, 430 P.2d 522 (1967), cert. denied, 390 U.S.
912 (1968); State v. Rio, 38 Wn.2d 446, 230 P.2d 308, cert. denied, 342
U.S. 867 (1951)), modified on other grounds, 408 U.S. 937 (1972).
Accordingly, the trial court instructed the jury that the defense of
insanity had been withdrawn, which then required it to exclude testimony
pertaining to Stewart's mental condition. The trial court's instruction
did not convey the court's attitude about the merits of the case or imply
that the court disapproved of the credibility of defense witnesses.
Stewart's argument is without merit.
Prosecutorial Misconduct
Stewart also contends he was denied a fair trial when the prosecutor
elicited lay opinions 'that Mr. Stewart was not mentally ill and was merely
feigning symptoms of a mental illness.' Br. of Appellant at 49. Stewart
asserts that the 'testimony was prejudicial because it impugned Mr.
Stewart's character, making it reasonably likely that some jurors convicted
him . . . because he was perceived to have such a bad character that he
would feign a mental illness after causing a fatal traffic accident.'
Reply Br. of Appellant at 18. Defense counsel did not object at trial to
the prosecutor's allegedly improper conduct, did not request a curative
instruction, and did not move for a mistrial.
In reviewing allegations of prosecutorial misconduct, we first
determine whether the comments are improper. If they are, we next
determine whether there was a substantial likelihood the comments affected
the jury's verdict. State v. Echevarria, 71 Wn. App. 595, 597, 860 P.2d
420 (1993) (citing State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984)).
The defendant bears the burden of establishing that the challenged conduct
was both improper and prejudicial. Echevarria, 71 Wn. App. at 597.
Prosecutorial misconduct requires a new trial only when there is a
substantial likelihood that the misconduct affected the jury's verdict.
State v. Copeland, 89 Wn. App. 492, 496, 949 P.2d 458 (1998). Absent a
proper objection to the comments at trial, a request for a curative
instruction or a motion for mistrial, misconduct cannot be raised on appeal
unless the misconduct was so flagrant or ill intentioned that the prejudice
could not have been obviated by a curative instruction. State v. Ziegler,
114 Wn.2d 533, 540, 789 P.2d 79 (1990).
Here, the State presented testimony about Stewart's behavior the day
of the accident only after defense counsel raised the defense of insanity.
It was proper for the State to question witnesses about Stewart's mental
condition -- in anticipation of defense witness testimony regarding his
mental condition. The State's witnesses testified as to what they observed
the day of the accident and rarely provided an opinion on Stewart's mental
condition. Witnesses were asked to describe what they observed the day of
the accident, what actions they did or did not take, what contact they had
with Stewart, and what behavior they observed. Testimony was elicited to
show Stewart's mental condition the day of the accident to refute testimony
by defense counsel that Stewart was insane at the time of the accident.
Stewart fails to show that the conduct was improper or prejudicial.
Moreover, Stewart fails to show that the conduct was flagrant or ill
intentioned.
Jury Unanimity
Stewart further contends that he was denied his right to a unanimous
jury when the trial court instructed the jury that it could convict him of
felony murder if it found he caused a person's death 'in immediate flight
from' or 'in the course and furtherance of' possession of stolen property
and/or taking a motor vehicle without permission. In other words, Stewart
asserts the jury could have concluded that he caused the death of the
victim in the course and in furtherance of possession of stolen
property/taking a motor vehicle without permission or that he caused the
death of the victim in immediate flight from possession of stolen
property/taking a motor vehicle without permission.6
Under article I, section 21 of the Washington Constitution, Stewart is
entitled to a unanimous jury verdict, which includes the right to express
jury unanimity on the means by which he is found to have committed the
crime. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994).
When an offense may be committed by alternative means, the jury must be
unanimous as to guilt, but need not be unanimous on the means by which the
defendant committed the crime if substantial evidence supports each of the
alternative means. State v. Millante, 80 Wn. App. 237, 247, 908 P.2d 374
(1995), review denied, 129 Wn.2d 1012 (1996). On the other hand, a
conviction will be overturned if 'the evidence is insufficient to present a
jury question as to whether the defendant committed the crime by any one of
the means submitted to the jury{.}' Ortega-Martinez, 124 Wn.2d at 708.
Stewart's assertions, however, defeat the purpose of the felony murder
rule, which is to 'deter felons from killing negligently or accidentally by
holding them strictly responsible for killings they commit.' State v.
Leech, 114 Wn.2d 700, 708, 790 P.2d 160 (1990) (citations omitted). The
legislative intent of the felony murder statute is to 'punish those who
commit a homicide in the course of a felony murder{.}' Leech, 114 Wn.2d at
708. '{S}tatutes should be construed to effect their purpose, and
strained, unlikely, or absurd consequences resulting from a literal reading
are to be avoided.' State v. Neher, 112 Wn.2d 347, 351, 771 P.2d 330
(1989) (citations omitted). In many cases, determining whether the felony
occurred 'in the course and furtherance of' or 'in immediate flight from'
could be difficult if not impossible, forcing the State to forfeit the
conviction and failing to punish those who commit a homicide in the course
of a felony. See State v. Whitfield, 129 Wash. 134, 224 P. 559 (1924).
The State cites the reasoning in Whitfield, 129 Wash. 134, to support
its position that it does not have to determine whether the homicide
occurred 'in the course and furtherance of' or 'in immediate flight from'
the predicate crimes. In Whitfield, the defendant asserted that he was not
apprised of the exact charge against him because the information charged
him with 'having committed murder while committing a rape, attempting to
commit a rape, or in withdrawing from the scene of a rape{.}' Whitfield,
129 Wash. at 138. The Supreme Court held that 'proof of the killing,
together with the fact that it was committed in connection with a rape, is
sufficient to constitute murder in the first degree.' Whitfield, 129 Wash.
at 138. Whether the defendant was committing the rape, attempting to
commit the rape, or withdrawing from the scene of the rape is immaterial as
long as the murder took place while he was concerned in a rape. Whitfield,
129 Wash. at 139.
Although the issue here does not concern the information, the real
charge against Stewart, like in Whitfield, is the killing; the possession
of stolen property and/or taking a motor vehicle without permission, like
the rape in Whitfield, were incidents qualifying the homicide as a felony
murder.7 Stewart was charged with one count of felony murder, and if the
killing took place while he was involved in taking a motor vehicle without
permission or possession of stolen property, it makes no difference whether
it was 'in immediate flight from' or 'in the course and furtherance of.'
See Whitfield, 129 Wash. at 139. Case law does not support Stewart's
assertions; nor does case law suggest that the State must elect between 'in
the course or furtherance of' or 'in immediate flight from.'
Thus, the trial court did not err when it instructed the jury that it
could convict Stewart of felony murder if it found he caused a person's
death 'in immediate flight from' or 'in the course and furtherance of'
possession of stolen property/taking a motor vehicle without permission.
Sufficiency of Evidence
Finally, Stewart contends the State failed to prove beyond a
reasonable doubt that he caused the victim's death in the course and
furtherance of or immediate flight from first degree possession of stolen
property and taking a motor vehicle without the owner's permission.
The crimes of first degree possession of stolen property and taking a
motor vehicle without the owner's permission were charged by information in
the alternative; however, the State failed to elect the means by which it
relied upon for conviction, and the jury was not given a unanimity
instruction. When an offense may be committed by alternative means, the
jury must be unanimous as to guilt but need not be unanimous on the means
by which the defendant committed the crime if substantial evidence supports
each of the alternative means. Millante, 80 Wn. App. at 247; State v.
Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). Therefore, substantial
evidence must exist in the record to support each of the alternative means
presented to the jury.
Evidence is sufficient to support a conviction if, viewed in the light
most favorable to the State, it permits any rational trier of fact to find
the essential elements of the crime beyond a reasonable doubt. State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 'A claim of
insufficiency admits the truth of the State's evidence and all inferences
that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201
(citation omitted). Circumstantial evidence and direct evidence are
equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980). We must defer to the trier of fact on issues of conflicting
testimony, credibility of witnesses, and the persuasiveness of the
evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review
denied, 119 Wn.2d 1011 (1992).
To convict the defendant of felony murder, the State, here, must prove
beyond a reasonable doubt that Stewart caused the death of Paula Joyce in
the course and in furtherance of or in immediate flight from possession of
stolen property in the first degree8 and taking a motor vehicle without the
owner's permission.9 See RCW 9A.32.050.
Stewart asserts that the record does not support an inference beyond a
reasonable doubt that he was furthering the possession and taking of the
Suburban when he drove it further away from Seattle. He maintains the
evidence does not show that he was the person who took the Suburban or that
he was intending to drive the vehicle away from its point of origin at the
time of the accident. Under RCW 9A.56.070, the State need only prove that
the vehicle 'did not belong to the appropriator and that it was
intentionally taken without permission of the person entitled to possession
at the time of the taking{.}' State v. Hudson, 56 Wn. App. 490, 494, 784
P.2d 533 (quoting State v. Solomon, 5 Wn. App. 412, 421, 487 P.2d 643,
review denied, 80 Wn.2d 1001 (1971)), review denied, 114 Wn.2d 1016 (1990).
The State does not have to prove that the defendant intentionally took the
vehicle from the owners, but only that the defendant intentionally used it
without permission. Hudson, 56 Wn. App. at 494. 'A person is just as
guilty when, without permission, he drives a vehicle belonging to another
after it has been taken by someone else, as he is when he personally takes
the vehicle directly from the rightful owner or possessor.' Hudson, 56 Wn.
App. at 493-94 (citing State v. Medley, 11 Wn. App. 491, 496, 524 P.2d 466,
review denied, 84 Wn.2d 1006 (1974)).
A review of the record shows the Suburban belonged to the Miltuns, not
to Stewart. Police officers at the scene observed that there were no keys
in the ignition of the Suburban, that the ignition had been tampered with,
and that the vehicle had been hot-wired. The record also shows Stewart had
stolen a car in a similar manner in the past. The Miltuns testified that
only they had permission to drive the Suburban and had never given anyone
permission to drive the vehicle. The Miltuns lived in Seattle, but the
accident occurred in Tacoma.
Several witnesses identified Stewart as the driver of the Suburban.
Several witnesses observed the Suburban traveling at a high rate of speed,
northbound on Union Avenue in Tacoma about 7:30 a.m. on August 8, 1997,
swerving around traffic and running red lights. The record does not
suggest the participation of another. The evidence establishes the
Suburban did not belong to Stewart, that Stewart knew the Suburban was
stolen, and that Stewart possessed the stolen Suburban. The evidence also
establishes that Stewart was intentionally driving the Suburban without the
owner's permission and that Stewart withheld the stolen Suburban from the
true owners. Thus, there is substantial evidence to support the predicate
felonies: possession of stolen property and taking a motor vehicle without
permission.
Stewart also asserts that the homicide was not within the res gestae
of the felonies. A homicide is 'deemed committed during the perpetration
of a felony, for the purpose of felony murder, if the homicide is within
the 'res gestae' of the felony, i.e., if there was a close proximity in
terms of time and distance between the felony and the homicide.' Leech,
114 Wn.2d at 706. In other words, the homicide and the predicate felonies
-- possession of stolen property, and taking a motor vehicle without
permission -- must be part of the same transaction. See State v. Temple, 5
Wn. App. 1, 7, 485 P.2d 93 (1971).
Here, the record supports beyond a reasonable doubt the inference that
Stewart committed the predicate felonies in the course of and in
furtherance of such crimes or in immediate flight from such crimes, when he
caused the death of Paula Joyce. Stewart relies upon State v. Diebold,10
and State v. Golladay11 to support his argument that the victim's death did
not occur in the course or furtherance of a felony. In Diebold, the
Supreme Court held that the defendant was not withdrawing from the scene of
a felony (taking a vehicle without permission) when the homicide occurred
because the defendant had changed his mind and was returning the vehicle to
the place where the defendant had stolen it, thus establishing that the
underlying felony had been completed at the time the homicide occurred.
Diebold, 152 Wn. at 74. In Golladay, the Supreme Court held that the
homicide was not within the 'res gestae' of the underlying felony (larceny)
when the felony took place after the homicide. Golladay, 78 Wn.2d at 130-
31.
Unlike the defendant in Diebold, Stewart cannot point to clear and
undisputed evidence indicating that the felonies had been completed or that
he had changed his mind and was in the process of returning the vehicle
when the homicide took place. The record does not reflect the presence of
an intervening act as in Diebold. Also, unlike the defendant in Golladay,
Stewart cannot point to evidence indicating the felonies occurred only
after the homicide. Here, the evidence clearly indicates that Stewart was
driving a stolen vehicle, was in possession of stolen property, was
intentionally driving the vehicle without the owner's permission, and was
withholding the vehicle from the true owners when he collided with the
victim. Substantial evidence exists in the record to support the inference
that the homicide was within the 'res gestae' of the felonies.
Viewed in the light most favorable to the State, a rational trier of
fact could have found the State proved beyond a reasonable doubt that
Stewart caused the victim's death in the course and furtherance of or
immediate flight from possession of stolen property and taking a motor
vehicle without permission.
Affirmed.
A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, J.
We concur:
Morgan, P.J.
Seinfeld, J.
1 Under RAP 2.5(a)(3), a 'manifest error affecting a constitutional right'
may be raised for the first time on appeal. RAP 2.5(a); see also State v.
Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). The defendant must show
how the alleged error actually affected the defendant's rights -- actual
prejudice must be shown. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d
1251 (1995).
2 Stewart also argues that the court's instruction to the venire was a
comment on the evidence. This argument, too, is without merit. The
court's instruction had nothing to do with the merits of the case or
credibility of witnesses or attitude toward the defendant. See State v.
Carothers, 84 Wn.2d 256, 267, 525 P.2d 731 (1974) ('To constitute a comment
on the evidence, it must appear that the court's attitude toward the merits
of the cause are reasonably inferable from the nature or manner of the
court's statements.')
3 A person is guilty of felony murder in the second degree when '{h}e
commits or attempts to commit any felony other than those enumerated in RCW
9A.32.030(1)(c), and, in the course of and in furtherance of such crime or
in immediate flight therefrom, he or another participant, causes the death
of a person other than one of the participants {.}' RCW 9A.32.050.
4 See footnote number one.
5 Richard Stewart can only testify to Stewart's whereabouts between 6:30
a.m. and 6:45 a.m. the day of the accident.
6 At trial, Stewart failed to request an instruction requiring the jury to
return unanimous verdicts. However, '{a}n appellate court will consider
error raised for the first time on appeal when the giving or failure to
give an instruction invades a fundamental constitutional right of the
accused, such as the right to a jury trial.' State v. Green, 94 Wn.2d 216,
231, 616 P.2d 628 (1980).
7 The jury agreed that the homicide was committed during the course of
either or both predicate crimes; it returned verdict forms, marked guilty,
for both predicate crimes.
8 First degree possession of stolen property in the first degree means the
defendant knowingly received, retained, possessed, concealed, or disposed
of stolen property valued in excess of $1,500 with the knowledge that it
has been stolen and withheld the stolen property to the use of someone
other than the true owner. Clerk's Papers at 3; see RCW 9A.56.150.
9 Taking a motor vehicle without the owner's permission means the defendant
intentionally took or drove away a motor vehicle without permission of the
owner. Clerk's Papers at 3; see RCW 9A.56.070.
10 152 Wash. 68, 277 P. 394 (1929).
11 78 Wn.2d 121, 470 P.2d 191 (1970), overruled on other grounds, State v.
Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976) (overruled Golladay dictum
insofar as it is inconsistent with unanimity issue).