August 25, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
KAAI JOSEPH WILLIAMS AND WILLARD JIMERSON, AND EACH OF THEM, APPELLANTS.

Appeal from Superior Court of King County. Docket No: 94-1-03582-3. Date filed: 11/28/94. Judge signing: Hon. Norma S. Huggins.

Authored by Susan R. Agid. Concurring: C. Kenneth Grosse, Ann L. Ellington.

The opinion of the court was delivered by: Agid

AGID, J. -- Kaai Williams and Willard Jimerson appeal their convictions for the first degree murder of 14-year-old Jamie Wilson. Williams argues that the trial court erred in granting the State's motion to join his trial with Jimerson's and in denying his motion to sever. He also contends that his right to a speedy trial was violated and that the court erroneously admitted hearsay statements under the excited utterance exception to the hearsay rule. Jimerson contends that the juvenile court abused its discretion when it declined jurisdiction. He also argues that there is insufficient evidence to support either premeditation or accomplice liability. We reject both Williams's and Jimerson's arguments and affirm.

FACTS

Just after midnight on March 11, 1994, 14-year-old Jamie Wilson was shot to death on a street near Garfield High School. Earlier that evening, a group of about eight young people, most of them teenagers, gathered at an arcade on Yesler Street to play video games. The group included both Williams and 13-year-old Jimerson. Sometime after 10:30 p.m., the group left and walked to nearby Spruce Park. While they were at the park, Williams fired gunshots into the ground at April Winfrey's feet to make her "dance." The gun was one 14-year-old April had given Williams at the arcade. After Williams fired the gun, April retrieved it from a yard where it was thrown.

The group left the park to walk to a mini-market about six blocks away. As they neared the mini-market, 15-year-old Adrienne Smith saw Jamie across the street. Led by April, the group crossed the street and began hitting and kicking Jamie. Jamie broke free and ran down the street toward Garfield High School. April chased her and caught her. When the others caught up, they again began to hit and kick Jamie. Jamie lay on the ground asking them to stop. Several women in a nearby apartment building also yelled at them to stop and threatened to call police. During a pause in the fighting, Jamie pulled herself up to a seated position at the edge of the curb. As she did so, Jimerson walked up behind her and shot her twice from a distance of two or three feet. The gun he used was the gun Williams had fired in Spruce Park. He then handed the gun to Williams. Jamie lay on the ground calling for help and appeared to be having trouble breathing. Williams then walked up, said, "Rest in peace, bitch," and shot Jamie with the same gun from about four feet away. After Williams shot her, Jamie slumped over. The group gathered by a log barrier a short distance away. Williams and Jimerson were laughing about what had just happened. Jimerson then ran off through Garfield High School and the rest of the group walked up Jefferson Street together.

After the group left, the women in the nearby apartment building who had called police ran over and tried to help Jamie. When police arrived, they obtained a description of an individual who had shot Jamie from one of the women. Based on that description, they stopped the group as they walked up Jefferson. Williams, who matched the description, was with the group.

Jamie was pronounced dead at the hospital. The medical examiner later determined that Jamie had three gunshot wounds: one to the left arm and one to the chest had entered from the back; one to the left pelvic region had entered from the front. The cause of death was the gunshot wound to the chest which had perforated Jamie's heart, lung, liver and stomach. The medical examiner opined that Jamie would have experienced difficulty in breathing and gone into irreversible shock 5 to 15 minutes after the shot.

Jimerson and Williams were each charged with first degree murder in complicity with another. On June 2, 1994, the juvenile court declined jurisdiction over 13-year-old Jimerson and remanded his case to adult court. On June 7, the trial court joined the defendants for trial. Jimerson requested a trial date past Williams's speedy trial expiration date of June 10 to prepare for trial. The trial court granted his request and set trial for July 25 over Williams's objection. On July 6, Williams requested an additional extension to give him more time to investigate witnesses who had come to light since the defendants were joined. Trial began on August 23. At the Conclusion of trial, the jury found both Jimerson and Williams guilty of first degree murder. The trial court sentenced both within the standard range and ordered that Jimerson be detained by the Department of Youth Services until his 18th birthday.

Discussion

I. Joinder

Williams first argues that the trial court abused its discretion when it granted the State's motion to join his trial with Jimerson's. CrR 4.3(b) provides that the trials of two defendants may be joined under the following circumstances:

(1) When each of the defendants is charged with accountability for each offense included; . . . or (3) When, even if conspiracy is not charged and all of the defendants are not charged in each count, it is alleged that the several offenses charged:

(i) were part of a common scheme or plan; or (ii) were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the others. The charge against both Williams and Jimerson--first degree murder of Jamie Wilson in complicity with another or, in the alternative, second degree murder--alone is sufficient to permit joinder under CrR 4.3(b). Even if Williams and Jimerson had not been charged with the same offense, joinder would have been permissible. Because each was accused of shooting Jamie within minutes of the other and in the course of the same incident with the same gun, it would have been virtually impossible to separate proof of one charge from proof of the other. For both reasons, joinder was proper.

Williams argues nevertheless that the trial court erred in denying his motion to sever his trial from Jimerson's. See CrR 4.4(c); State v. Hoffman, 116 Wash. 2d 51, 74, 804 P.2d 577 (1991) (order denying motion to sever will not be disturbed on appeal absent a manifest abuse of the trial court's discretion). Separate trials are not favored in Washington, and the defendant seeking severance has the burden of coming forward with sufficient facts to show that a joint trial would be so manifestly prejudicial as to outweigh the concern for judicial economy. Hoffman, 116 Wash. 2d at 74.

Williams argues that he was prejudiced by the trial court's refusal to sever his trial from Jimerson's because (1) Shaulaun Banks, another member of the group of young people present on the night of the shooting who left the state after Jimerson's decline hearing, i.e., at about the time the defendants were joined for trial, might have been available as a witness had the trial been held earlier, and (2) there was additional time for more evidence of threats made against witnesses to accumulate. First, Shaulaun Banks did leave the state after Jimerson's decline hearing, but she had returned to Seattle by the time of trial. While the record reflects that she appeared to be trying to avoid police after her return, she was presumably as available as she would have been had Williams's case gone to trial in early June. Second, there was nothing about the threat evidence that resulted in any significant prejudice to Williams. Tequila Wilson did testify that she was threatened, but she did not implicate Williams as the source of those threats. In any event, her testimony about the threats she had received was stricken and the jury was instructed to disregard it entirely. See State v. Russell, 125 Wash. 2d 24, 84, 882 P.2d 747 (1994) (courts presume jurors follow instructions to disregard improper evidence), cert. denied, 131 L. Ed. 2d 1005, 115 S. Ct. 2004 (1995). Similarly, while Jimerson testified that he heard from others that Williams had threatened him, he also testified that Williams did not threaten him directly. To the extent that there was any evidence of threats against witnesses by Jimerson, it is unlikely that evidence prejudiced Williams. Cf. Hoffman, 116 Wash. 2d at 74-75 (rejecting the argument that one defendant's objectionable reputation might rub off on the other). Williams was convicted based on the testimony of several witnesses who saw him shoot Jamie. Given the strength of this evidence, there is no reasonable likelihood that the threat evidence affected the jury's verdict.

Williams also contends that the joinder order prejudiced him because he was incarcerated for more than the 60 days provided for in CrR 3.3(c)(1) while awaiting trial. Trial within 60 days is not a constitutional mandate. Hoffman, 116 Wash. 2d at 77. Unless the defendant can demonstrate actual prejudice from the delay, a trial court's decision to continue a joint trial past one defendant's speedy trial date to provide counsel for a codefendant adequate time to prepare for trial is not an abuse of discretion. State v. Dent, 123 Wash. 2d 467, 484, 869 P.2d 392 (1994) (delay of just over two months). Williams himself requested the second continuance and signed a speedy trial waiver to August 16, in part to accommodate his own attorney's schedule. The trial court properly weighed Williams's interest in a speedy trial against the considerable burden separate trials would have placed on the court, jurors and witnesses. See Dent, 123 Wash. 2d at 484. The trial court did not abuse its discretion in denying Williams's motion to sever.

II. Excited Utterance

Williams also argues that the trial court abused its discretion when it denied his motion to exclude testimony by several officers about statements made by a woman known as "Punkin" at the scene of the crime. He is particularly concerned about the officers' testimony that "Punkin" told them "the person that did the shooting was a black male, juvenile or early twenties, wearing a plaid shirt or jacket and wearing a black cap." The trial court admitted the officers' testimony under the excited utterance exception to the hearsay rule. See ER 803(a)(2) (an excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition"). Williams argues that, because "Punkin" was unidentified and not under the influence of any traumatic event, the testimony was not admissible. We will not reverse the admission of evidence under the excited utterance exception to the hearsay rule absent an abuse of discretion and, for that reason, decline to do so here. State v. Strauss, 119 Wash. 2d 401, 417, 832 P.2d 78 (1992).

First, "Punkin" was not, as Williams contends, unidentified. While her identity had not been positively established at the time the issue was first raised during the pretrial hearings, the testimony at trial identifying her as Evelyn Kelly was uncontroverted. Williams's own attorney, moreover, conceded that Kelly and "Punkin" were the same person.

Second, Kelly was clearly under the stress of a traumatic event when she made the statement. Three conditions must be met for the excited utterance exception to apply: (1) a startling event or condition; (2) a statement made while the declarant was under the stress of excitement caused by that event or condition; and (3) a statement relating to the startling event or condition. State v. Chapin, 118 Wash. 2d 681, 686, 826 P.2d 194 (1992). The key question is whether the declarant was still under the stress of the startling event such that the statement could not be the result of fabrication, intervening actions, choice or judgment. Strauss, 119 Wash. 2d at 416; Chapin, 118 Wash. 2d at 687-88. Here, the officers contacted the witness when they arrived at the scene minutes after the shooting as Jamie lay dying in the street. When they arrived, Kelly approached them in great distress asking over and over what they were going to do to help Jamie. Even after Officer Gerloff assured Kelly that an ambulance was on its way, she remained agitated, repeatedly asking the officers why help had not yet come. Officers testified that she was yelling, cursing, crying, "jittering with her hands," "very, very upset," "very agitated," and "talking fast." Even though as many as 10-12 minutes may have passed after Jamie was shot before Kelly gave police a description of the people she had seen, the ambulance had not yet arrived and Kelly was clearly agitated and under the stress of the event still unfolding before her eyes. While Kelly hesitated to give her real name and apartment number, she did not waver in her description of the shooter as wearing a plaid shirt and a black cap. Williams was wearing a plaid shirt and a black cap when police spotted him just three blocks away in the direction Kelly said they had gone with a group that otherwise resembled the group that had left the scene just a few minutes earlier. Kelly's statement was clearly an excited utterance and properly admitted under that exception to the hearsay rule.

III. Juvenile Court Jurisdiction

Jimerson first contends that the juvenile court abused its discretion when it declined jurisdiction over his case. Jimerson was 13 years old at the time he was charged with the first degree murder of Jamie Wilson. See State v. Oreiro, 73 Wash. App. 868, 872, 871 P.2d 666 (1994) (jurisdiction over an offense committed by a juvenile is determined at the time proceedings are initiated against the alleged offender). RCW 13.40.110(2) permits a juvenile court to decline jurisdiction if it determines that declination would be in the best interest of the juvenile or the public. In making that determination, a juvenile court should consider: (1) the seriousness of the alleged offense and whether the protection of the community requires declination; (2) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether it was against persons or against property; (4) the prosecutive merit of the complaint; (5) where the defendant's alleged accomplices are adults, the desirability of trial and Disposition of the entire case in one court; (6) the juvenile's sophistication and maturity; (7) the juvenile's criminal history; and (8) the prospects for adequate protection of the public and rehabilitation of the juvenile through services available in the juvenile system. State v. Furman, 122 Wash. 2d 440, 447, 858 P.2d 1092 (1993) (citing Kent v. United States, 383 U.S. 541, 566-67, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966)). All eight of these factors need not be proven; their purpose is only to focus and guide the juvenile court's discretion. Furman, 122 Wash. 2d at 447. The court's decision will be reversed only for abuse of discretion. Furman, 122 Wash. 2d at 447.

Here, the juvenile court reluctantly concluded that, even though Jimerson was only 13 years old, declination was necessary to protect the community and the public. After carefully weighing all eight factors on the record, the court found that only one, Jimerson's immaturity and apparent vulnerability to peer pressure, weighed in favor of retaining jurisdiction. Each of the others, in its view, weighed in favor of declination. Jimerson concedes that the court properly evaluated two of those factors; i.e., the offense was against a person and the complaint had prosecutive merit. He argues, however, that the juvenile court erred in concluding that any of the other factors weighed in favor of declination. Two weighed neither for nor against declination, i.e., the seriousness of the alleged offense and whether the protection of the community required declination, and whether the offense was committed in an aggressive, violent, premeditated or willful manner. The other three, he argues, weighed against declination, i.e., his criminal history, the desirability of trial and Disposition of the entire case in one court given that his alleged accomplice was an adult, and the prospect for adequate protection of the public and rehabilitation through services available in the juvenile system.

The juvenile court properly found that the first two of these factors weighed in favor of declination. As Jimerson himself concedes, first degree murder is a serious offense. See RCW 13.40.0354 (offenses are assigned varying levels of seriousness); RCW 13.40.0357 (first degree murder has a seriousness level of A+, i.e., the highest level). It was also committed in a willful, aggressive, violent and premeditated manner. Jimerson's argument that it was not "particularly hideous" ignores that he shot Jamie while she was lying in the street being beaten and kicked by other teenagers. The court also did not err in treating this factor as one that weighs in favor of declination.

The other three factors that Jimerson disputes, i.e., the desirability of trial and disposing of the entire case in one court, his criminal history, and the prospect for adequate protection of the public and rehabilitation through services available in the juvenile system, also weigh in favor of declination. It was not entirely clear at the time of the decline hearing that it would in fact be possible to try the two defendants together because Williams's speedy trial date was fast approaching. But there is no question that, given the burden both on the witnesses and the judicial system of trying them separately when they were both charged with the same crime, it was desirable to try both in the same court and proceeding. The juvenile court properly found that this factor weighed in favor of declination.

Jimerson's criminal history also weighed in favor of declination. Jimerson does not dispute the juvenile court's finding that, at age 13, he had three prior Dispositions, two for fourth degree assault and one for first degree theft. Nor does he dispute that he had been referred to the juvenile court for five further felony offenses over the course of the previous 10 months. Jimerson's father had also told Frank Trujillo, Jimerson's probation counselor, that he was unable to control his son and was afraid he was headed for trouble. Given this evidence, the juvenile court was justifiably concerned that Jimerson's criminal behavior was escalating.

The court correctly noted that Jimerson's contact with the juvenile system appeared to have had little effect in deterring him from committing further offenses. This reason, taken together with Jimerson's escalating criminal behavior, support the trial court's Conclusion that the adult system would be better able to assure that the public would be protected. The court also properly considered the need to provide Jimerson such rehabilitative services as might be available. It noted that, because Jimerson would likely be detained by the Department of Juvenile Rehabilitation for a period of seven or eight years after any conviction, he would get counseling and educational and vocational skills training through that department during that time.

The juvenile court did find that Jimerson was immature and appeared to be vulnerable to peer pressure, a factor it treated as weighing against declination. When this one factor is weighed against the other factors each of which weigh in favor of declination, however, there is no reasonable basis for concluding that the juvenile court abused its discretion in concluding that, overall, the factors weighed in favor of declining jurisdiction.

IV. Sufficiency of the Evidence

Finally, Jimerson contends that there was insufficient evidence of premeditation and/or accomplice liability to support his conviction for first degree murder. A conviction is supported by substantial evidence if, viewing the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Gentry, 125 Wash. 2d 570, 596-97, 888 P.2d 1105, cert. denied, 133 L. Ed. 2d 79, 116 S. Ct. 131 (1995). A claim of insufficiency in a criminal case admits the truth of the State's evidence and requires that all reasonable inferences be drawn in its favor. Gentry, 125 Wash. 2d at 597. A trier of fact may rely on circumstantial evidence alone even if it is also consistent with innocence. State v. Kovac, 50 Wash. App. 117, 119, 747 P.2d 484 (1987).

A person is guilty of first degree murder when he causes the death of another person with a premeditated intent to cause the death of that person. RCW 9A.32.030(1)(a). The premeditation required to support a conviction of first degree murder must involve more than a moment in point of time. RCW 9A.32.020(1). Premeditation is "'the deliberate formation of and reflection upon the intent to take a human life' and involves 'the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" State v. Pirtle, 127 Wash. 2d 628, 644, 904 P.2d 245 (1995), cert. denied, 135 L. Ed. 2d 1084, 116 S. Ct. 2568 (1996) (quoting Gentry, 125 Wash. 2d at 597-98). The State may prove premeditation by circumstantial evidence where the inferences drawn by the jury are reasonable and the evidence supporting the jury's finding is substantial. Pirtle, 127 Wash. 2d at 643; Gentry, 125 Wash. 2d at 598 (a wide range of facts will support premeditation). Jimerson argues, in essence, that there is insufficient evidence of premeditation because (1) he did not fire the fatal shot, and (2) even if he did, it was an impulsive, spontaneous act.

First, the evidence supports a very strong inference that it was Jimerson who fired the fatal shot. Dr. Reay, the medical examiner, testified that the cause of death was the shot to the chest which perforated Jamie's lung, heart, liver and stomach. That shot was one of two that entered from the back. He further testified that a wound of that nature would have caused the victim to experience difficulty in breathing and go into irreversible shock about 5 to 15 minutes after the injury was inflicted. Witnesses testified both that Jimerson was standing behind Jamie when he shot her two times and that she was having difficulty breathing even before Williams fired the third shot. This suggests that her lung had already been perforated before Williams's shot. The fact that Jamie did not slump over until after Williams shot her does not detract from this likelihood since Williams shot Jamie within seconds or minutes after Jimerson did. Although Dr. Reay could not determine the order in which the wounds were inflicted, the location and number of Jamie's wounds was consistent with the testimony of other witnesses that Jimerson shot Jamie twice from the back and Williams shot Jamie once from the front. The same witnesses testified that April Winfrey had the gun in her possession as they were walking toward the mini-market. That testimony permitted the jury to infer that Jimerson needed to get the gun from April prior to shooting Jamie. See Gentry, 125 Wash. 2d at 598 (evidence that the defendant took steps to obtain a weapon may support a finding of premeditation). After he got the gun, Jimerson shot Jamie not just once but twice from the back as she was sitting crouched on the curb. See State v. Rehak, 67 Wash. App. 157, 164, 834 P.2d 651 (1992) (evidence that defendant prepared the gun, approached the victim while he was sitting quietly in his chair and was not in a confrontational stance, and shot him three separate times was sufficient evidence of premeditation), review denied, 120 Wash. 2d 1022, 844 P.2d 1018, cert. denied, 508 U.S. 953, 124 L. Ed. 2d 665, 113 S. Ct. 2449 (1993). This evidence was sufficient to permit a rational trier of fact to conclude that Jimerson inflicted the fatal wound and that he acted with deliberation and premeditation in doing so.

But even if Williams fired the fatal shot, Jimerson's conviction was supported by substantial evidence. RCW 9A.08.020(3) provides:

A person is an accomplice of another person in the commission of the crime if:

(a) With knowledge that it will promote or facilitate the commission of a crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it[.] Because accomplice liability is not an alternative means of committing a crime, a jury need not be unanimous about whether a defendant acted as a principal or accomplice in committing a crime. State v. Hoffman, 116 Wash. 2d 51, 105, 804 P.2d 577 (1991) ("'it matters not that some jurors may have believed that the petitioner fired the gun, while others may have believed that his only role was in aiding and abetting [the other participant], so long as all twelve agreed that he did participate'") (quoting State v. Carothers, 84 Wash. 2d 256, 265, 525 P.2d 731 (1974)); State v. Munden, 81 Wash. App. 192, 197, 913 P.2d 421 (1996). A defendant need not participate in each element of the crime nor need he share the same mental state that is required of the principal. State v. Galisia, 63 Wash. App. 833, 840, 822 P.2d 303, review denied, 119 Wash. 2d 1003, 832 P.2d 487 (1992).

Here, the evidence reflects that Jimerson handed the gun to Williams immediately after shooting Jamie himself. He contends that there was no way he could have known that Williams would use the gun to shoot Jamie. But his handing the gun to Williams was sufficient to permit a rational juror to conclude, especially in light of Williams's earlier shots at April's feet in the park, that Jimerson acted with the knowledge that it would encourage Williams to shoot at Jamie. Regardless whether the jury believed Jimerson or Williams fired the fatal shot, Jimerson's conviction for first degree murder was supported by sufficient evidence.

Affirmed.

WE CONCUR:

C. Kenneth Grosse

Ann L. Ellington