No. 47937-7-IThe Court of Appeals of Washington, Division One.
Filed: July 21, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 99-1-50467-1 Judgment or order under review Date filed: 01/12/2001
Counsel for Appellant(s), James Robert Dixon, Attorney at Law, 900 4th Ave Ste 1470, Seattle, WA 98164-1079.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), David M Seaver, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
COLEMAN, J.
Yusuf Ali appeals his conviction of third degree assault. He contends that the trial court’s erroneous jury instruction on accomplice liability may have affected the verdict. We agree, reverse his conviction, and remand for a new trial.
On the night of September 26, 1999, Yuvraj Singh, Yusuf Ali, and Mustafa Assalafy were working at Budget car rental near the airport. Singh was a shuttle bus driver; Ali and Assalafy parked and retrieved cars and washed returned cars. At about 10:30 p.m., Ali stepped in front of Singh’s bus and began cursing at Singh. Singh stopped the bus, got out, and asked what he had done and what was Ali’s problem. He testified that Ali then grabbed him around the neck, and he grabbed Ali to try to push him away. Assalafy came up, and said `How dare you to put your hand on my brother, I will kill you, man, I will kill you.’ At this point, Ali grabbed Assalafy, said `Not over here, not now, not now,’ and he and Assalafy went into the car wash building.
Later that night, Singh went to the Budget office and told the customer service representatives on duty that he and Ali had had a problem. Singh then walked to the car wash building to talk to Ali and Assalafy. He stood in the car wash facing Assalafy with Ali standing behind him holding a broom used for washing cars. Singh asked Assalafy `What do you mean by saying that you will kill me?’ Assalafy removed his glasses, and the next thing Singh remembered he was on the floor with his head bleeding and his body numb.
Assalafy went to the office and told the representatives that Singh had been knocked out. One of the representatives went to the car wash and found Singh lying on the floor curled into a ball on his side; he was unconscious and not moving. She called Singh’s name but he did not respond. She testified that it was approximately one hour before Singh regained full consciousness. Police and emergency medical personnel were called, and Singh eventually went to the hospital, where he was treated for scalp and face contusions and a concussion.
Ali was charged with one count of third degree assault. The trial court instructed the jury on accomplice liability as well as principal liability. Defense counsel objected to the accomplice instruction on the basis that the evidence was insufficient to support accomplice liability. During deliberations, the jury sent a note to the trial court asking whether they must find that Ali had caused bodily harm to Singh and that he had acted with criminal negligence, two elements of third degree assault, if they found that he was an accomplice. The trial court responded by telling the jury to read the instructions, and the jury found Ali guilty as charged. Ali contends the trial court erred in giving an accomplice instruction that has been held invalid by the Washington Supreme Court.[1] In finding the instruction erroneous, the Court held that ‘[t]he fact that a purported accomplice knows that the principal intends to commit “a crime”‘ does not necessarily mean that accomplice liability attaches for any and all offenses ultimately committed by the principal.’ State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000) (citing State v. Roberts, 142 Wn.2d 471, 513, 14 P.3d 713 (2000)). While there is no requirement that an accomplice have specific knowledge of every element of the principal’s crime, he must have general knowledge of that crime. Roberts, 142 Wn.2d at 512-13.
In State v. Brown,[2] our Supreme Court considered whether the invalid accomplice liability instruction constitutes harmless error, and adopted the reasoning of the United States Supreme Court that, [u]nlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.
State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827,144 L.Ed.2d 35 (1999)).
In addition, the Court stated that, ‘[i]n order to hold the error harmless, we must `conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error,” State v. Brown, 147 Wn.2d at 341 (quoting Neder v. United States, 527 U.S. at 19), and noted that the appellate court `must thoroughly examine the record’ in making this determination. State v. Brown, 147 Wn.2d at 341.
After reviewing the record in this case, we conclude that the erroneous accomplice liability instruction may have affected the jury’s verdict. The testimony established that there were two incidents on the night of September 26; one where Ali allegedly grabbed Singh by the throat, and one where Singh was rendered unconscious. Although the State argued that Ali should be convicted as a principal, the prosecutor also said, `But really, wasn’t Mr. Ali the one who struck the first blow? Wasn’t Mr. Ali an accomplice from the get go?’ The jury’s question to the trial court shows that the jury may have relied on the erroneous instruction to find liability as an accomplice and then applied this finding to third degree assault. Because the jury apparently used it in making its determination as to guilt as a principal, we conclude that the erroneous accomplice liability instruction affected the verdict. We reverse Ali’s conviction and remand for a new trial.
ELLINGTON and APPELWICK, JJ., concur.