Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,342 Cases and Articles on TJV!
 
Washington State Categories







In Matter of Personal Restraint of Benjamin B. Brockie

Case No. 86241-9 (WA S.Ct., Sep. 26, 2013)

Based on the robberies of a Pizza Hut and two banks, Benjamin Brockie was convicted of 2 counts of :first degree robbery, 15 counts of first degree kidnapping, and 2 counts of making bomb threats. Brockie asks us to vacate those convictions because the jury was instructed on a means of committing first degree robbery that was not included in the charging information. Since Brockie fails to show actual and substantial prejudice resulting from the erroneous instruction, we deny his request for relief.

FACTS



In 2002, Brockie was accused of robbing a Pizza Hut, an Inland Northwest Bank, and a Safeway Federal Credit Union and of kidnapping the staff and patrons of those establishments in the course of the robberies. During his trial, the evidence showed that the robber displayed what appeared to be a gun throughout the robberies. During closing arguments, the prosecutor made references to the gun when he referred to the robber as a "gumnan" and described how the employees were forced "at gunpoint" to remove money from a vault. See Mot. to Vacate J. and Sentence (treated as a personal restraint petition), Ex. D at 807. Throughout the trial, Brockie maintained that he was not involved in the robberies.

By law, there are distinct ways-or means-to commit first degree robbery. At issue in this case is the fact that the means in Brockie's charging information did not match the means described in the jury instructions. Brockie's charging information for the robberies indicated that "in the commission of and immediate flight therefrom, the defendant displayed what appeared to be a firearm or other deadly weapon," which is one of the alternative means of committing first degree robbery. See Mot. to Vacate J. and Sentence, Ex. Bat 1-2; former RCW 9A.56.200(1)(b) (1975). However, the jury instructions described two alternative means for first degree robbery: "A person commits the crime of robbery in the first degree when in the commission of a robbery he or she is armed with a deadly weapon or displays what appears to be a firearm or other deadly weapon." Resp. toPers. Restraint Pet., Attach. I, Instruction 8 (emphasis added); former RCW 9A.56.200(l)(a)-(b).
 

 

Judge(s): Susan Owens
Jurisdiction: Washington Supreme Court
Supreme Court Judge(s)
Mary Fairhurst
Steven Gonzalez
Charles Johnson
James Johnson
Barbara Madsen
Sheryl McCloud
Susan Owens
Debra Stephens
Charlie Wiggins

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
means. nothing in the charging information put brockie on notice that he might be on errors in ~harging information. as described below, we continue to apply the rules which is one of the alternative means of committing first degree robbery. see mot. to should be vacated because the jury was instructed on an uncharged alternative means 1 i, instruction 8 (emphasis added); former rcw 9a.56.200(l)(a)-(b). shown to be harmless. in re pers. restraint ofst. pierre, 118 wn.2d 321, 328-29, 823 petitioner. ) commission of a robbery he or she is armed with a deadly weapon or displays what kjorsvik charging document test applies when a defendant claims for the first time on no. 86241-9 in re pers. restraint ofbrockie in re pers. restraint ofbrockie 6 and aggravated murder charges, for which there were no jury instructions on uncharged robbery that was not included in the charging information. since brockie fails to because structural errors are not subject to a harmless error standard on direct appeal. see degree robbery through an uncharged alternative means. thus, the question is: based kidnapping, and 2 counts of making bomb threats. brockie asks us to vacate those of litigation, degrades the prominence ofthe trial, and sometimes costs society the benjamin b. brockie, ) and were not reviewed by this court. see kosewicz, 174 wn.2d at 690-91; state v. wn. app. at 34-36. for the same reason, this case does not involve a structural error manner of committing the crime. state v. bray, 52 wn. app. 30, 34, 756 p.2d 1332 as doing so would require overturning the severns line of cases and pocket). the legislature clearly intended to treat the two alternative means of degree robbery jury instruction on uncharged alternative means? by law, there are distinct ways-or means-to commit first degree robbery. at shown to have caused actual and substantial prejudice in order for the petitioner to the state asserts that the charging document's phrase "the defendant displayed in the matter of the personal restraint of ) no. 86241-9 in re pers. restraint ofbrockie const. art. i, ยง 22; state v. kjorsvik, 117 wn.2d 93, 97, 812 p.2d 86 (1991). to of committing first degree robbery. the superior court transferred the motion to the instruction cases,1 based on our rule that "[e]rroneous instructions given on behalf ofthe party in whose no. 86241-9 ronald r. carpenter party in whose favor the verdict was returned is presumed prejudicial unless it charging information. petition, like a petition for a writ of habeas corpus, is not a substitute for an appeal." 9 the jury instruction on the alternative means in brockie's case was error. the parties on uncharged alternative means in relation to the separate kidnapping charges in has brockie shown actual and substantial prejudice resulting from the first appears to be a firearm or other deadly weapon." resp. topers. restraint pet., attach. kosewicz, id. at 690, those instructions were analyzed by the court of appeals under our no. 86241-9 as a personal restraint petition), ex. d at 807. throughout the trial, brockie what appears to be a deadly weapon without being armed with an actual deadly thl~ oplnlon"'was filed for record severns, 13 wn.2d 542, 548, 125 p.2d 659 (1942). on direct appeal, it is the state's uncharged alternative means cases on direct appeal and in a prp implicate cert. denied, 133 s. ct. 485 (2012), did not apply akjorsvik analysis to a jury instruction jury instructions case law (including severns), not the kjorsvik charging information test, wn.2d 802, 810,792 p.2d 506 (1990). accordingly, we must first determine whether by specifying the means of displaying what appeared to be a firearm or other challenge. a careful reading ofkosewicz shows that we reviewed the defendants' felony deny his request for relief. convictions, we do not reach that issue. favor the verdict was returned are presumed prejudicial unless it affirmatively appears armed with, but not display, a deadly weapon (such as a gun hidden in a person's weapon (such as when a person displays a realistic-looking toy gun). see, e.g., state 10 2 gun throughout the robberies. there is no indication that the trial included any of a criminal charge is a constitutional violation. u.s. const. amend. vi; wash. we see no reason to do so. or being armed with a deadly weapon, since one has to be armed with a weapon in to the robber as a "gumnan" and described how the employees were forced "at developed through our jury instruction cases. applying these rules, we must display it. thus, based on the facts in this particular case, any juror that found the counts of first degree kidnapping, and 2 counts of making bomb threats. brockie filed what appears to be a deadly weapon? in this case, the answer is no. throughout the jury instructions given, the arguments of counsel, weight of evidence of guilt, and means, brockie has not shown actual and substantial prejudice the jury ultimately found brockie guilty of 2 counts of first degree robbery, 15 thus kjorsvik should apply). thus, a threshold issue in this case is whether the no. 86241-9 8 the defendant actually received notice. id. at 105. if so, the court proceeds to a analysis gunpoint" to remove money from a vault. see mot. to vacate j. and sentence (treated music, 104 wn.2d 189, 191,704 p.2d 144 (1985). those circumstances include "the in this case, the parties dispute whether brockie's claim is an error injury of first degree robbery for being armed with a deadly weapon rather than displaying bank, and a safeway federal credit union and of kidnapping the staff and patrons of no. 86241-9 see bray, 52 wn. app. at 34-36 ("an erroneous instruction given on behalf ofthe different burdens of proof. in uncharged alternative means cases on direct appeal, match the means described in the jury instructions. brockie's charging information that are first raised in appeal. kjorsvik, 117 wn.2d at 105-06. the two-prong defendants must be informed of the charges against them, including the substantial prejudice. in this case, brockie has failed to make such a showing and we ) en bane in re pers. restraint ofbrockie we now clarify that the two-prong kjorsvik test does not apply to such jury order to display a weapon. but the state's argument fails because one may display obtain relief. in re pers. restraint ofhagler, 97 wn.2d 818, 825-26, 650 p.2d 1103 mounted a different defense if he had been charged with being armed during the conclusion no. 86241-9 affirmatively appears that the error was harmless."). 7 in re pers. restraint ofbrockie ______________) filed sep 26 2013 vacate j. and sentence, ex. bat 1-2; former rcw 9a.56.200(1)(b) (1975). in re pers. restraint ofbrockie brockie also argues that if his robbery convictions are vacated, his related 5 during closing arguments, the prosecutor made references to the gun when he referred determine whether the jury instruction was error. if so, we then determine whether no. 86241-9 we note that this case does not involve a constitutional error that is per se prejudicial on failing to properly notify a defendant ofthe nature and cause ofthe accusation in 2002, brockie was accused ofrobbing a pizza hut, an inland northwest supreme ccufep 26 2013 those establishments in the course of the robberies. during his trial, the evidence in contrast to the state's assertion, state v. kosewicz, 174 wn.2d 683, 278 p.3d 184, in a separate line of cases, we have addressed errors in charging information 2. brockie's charging information did not put him on notice ofthe alternative ) 3. although it was error to instruct the jury on the uncharged alternative issue in this case is the fact that the means in brockie's charging information did not facts alternative means case, the state has the opportunity to show harmlessness. see bray, 52 displayed the weapon-the alternative means that was properly described in the ~uprerne court clerk maintained that he was not involved in the robberies. improperly collapse the two. owens, j. -- based on the robberies of a pizza hut and two banks, benjamin committing robbery in the first degree as distinct, and the state's reading would dispute whether this determination should be based on our long-standing case law on moreover, brockie's defense at trial was complete denial of any involvement in on collateral review the burden shifts. if a constitutional error is subject to prejudice analysis. id. at 106. if not, the court does not proceed to a prejudice appeal or in a prp that the jury was instructed on an uncharged alternative means. "[i]n order to prevail in a collateral attack, a petitioner must show that more id. at 824. collateral relief is limited because it "undermines the principles of finality standards for both prejudice and burden ofproof. under the two-prong kjorsvik rule, for the robberies indicated that "in the commission of and immediate flight therefrom, alternative means. 174 wn.2d at 688-92. although this court discussed jury instructions a prp is an extraordinary remedy that requires a petitioner to show actual and jury instructions on uncharged alternative means or our more recently developed test obtain relief through a prp, a petitioner alleging a constitutional error must was armed with a weapon. and brockie does not argue here that he would have the defendant displayed what appeared to be a firearm or other deadly weapon," analysis. state v. mccarty, 140 wn.2d 420, 425-26, 998 p.2d 296 (2000). instructions (and thus severns should apply) or an error in the charging document (and wn. app. 1035, 2010 wl 2403353. deadly weapon, the charging information limited brockie's notice to that particular they were harmless." state v. rice, 102 wn.2d 120, 123, 683 p.2d 199 (1984). on the evidence brockie has presented, is it more likely than not that he was convicted error that is per se prejudicial because harm is presumed). in contrast, in an uncharged in re pers. restraint ofbrockie convictions because the jury was instructed on a means of committing first degree likely than not he was prejudiced by the error." id. at 826. the court determines the reviewing court first liberally construes the charging information to determine if the robberies. he did not make any arguments about whether or not he displayed or kjorsvik rule differs from the jury instruction test described above in terms ofthe a trial court to instruct the jury on uncharged alternative means. see, e.g., state v. what appeared to be a firearm or other deadly weapon" could mean either displaying discussion or claim that the robber was armed with a deadly weapon but did not prejudice." !d. therefore deny his petition. convictions should also be vacated. because we are not vacating his robbery weapon. brockie was convicted of2 counts of :first degree robbery, 15 counts of first degree in re pers. restraint ofbrockie 2


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise