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State v. Gamble3/18/2003
A jury found Jacob Gamble guilty of first degree felony murder and second degree felony murder. He appeals, claiming numerous errors at trial, including insufficient evidence of his liability to robbery as an accomplice, and abuse of discretion by the trial court in excluding certain testimony and not granting a mistrial. We hold the evidence of Gamble's knowing participation in the robbery was insufficient. Thus, we reverse the robbery-based first degree felony murder conviction.
Although the evidence conclusively establishes that Gamble was a principal in the assault on Dan Carroll, and we would otherwise affirm the jury's verdict finding him guilty of second degree felony murder and remand with directions that the trial court enter a judgment and sentence Gamble on that charge, our Supreme Court's recent opinion in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) (motion for reconsideration pending), calls into question the viability of such a ruling. Thus, we direct the parties to provide additional briefing on the effects of Andress on the available remedies in this case.
FACTS
On March 26, 1999, a fight broke out at a party at the Young house in Vancouver, Washington. Kevin Phommahasay's friend, Derrek Durham, called Curtis Esteban on Carroll's cell phone, luring Esteban to the party. Phommahasay was angry with Esteban for saying derogatory things about Phommahasay's brother and had announced his intention to beat him.
Phommahasay began the fight by hitting Esteban in the head with a beer bottle as he and Carroll approach the front porch of the Young house where Phommahasay and Gamble stood. When Carroll went to assist Esteban, Gamble punched him with his fist. Carroll fell to the ground, hitting his head on the sidewalk. Several people, including Gamble, then kicked Carroll in the head as he lay on the ground. One of them, Ryan May, took Carroll's cell phone.
Although the partygoers gave conflicting stories about other details, every witness agreed on one thing: Carroll did not move once his head hit the sidewalk. Carroll died several days later from injuries received in the attack.
Phommahasay pleaded guilty to attempted assault of Esteban. May pleaded guilty to second degree felony murder. Gamble went to trial. A jury found Gamble guilty of first degree felony murder stemming from the robbery and second degree felony murder stemming from the assault. He was sentenced to 320 months for the first degree murder charge. The court did not enter a judgment and sentence on the jury's second degree murder verdict.
Gamble appeals, raising a number of issues. He argues that there was insufficient evidence to support the jury's verdict finding him guilty of robbery and his liability for the robbery as an accomplice. He also argues that there was error in the accomplice liability jury instruction, abuse of discretion for allowing the State to amend the Information prior to trial and in not granting a mistrial because of juror confusion, and error in excluding certain testimony. Gamble argues pro se that the judge should not have told the jury that his was not a death penalty case.
ANALYSIS
Insufficient Evidence of Gamble's Participation in the Robbery 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.
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