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State v. Eggleston9/14/2001
In this consolidated appeal, Brian Eggleston challenges the results of two trials. At the first trial, he was convicted of first degree assault, two counts of unlawful delivery of a controlled substance (marijuana), one count of unlawful possession of a controlled substance with intent to deliver (marijuana), and one count of unlawful possession of a controlled substance (mescaline). After a mistrial on the charge of first degree murder, the jury convicted Eggleston of second degree murder on retrial. We hold that the giving of an aggressor instruction at both trials, a provocation instruction in the second trial, and juror misconduct during the second trial require reversal of Eggleston's assault and murder convictions. We find additional error in the admission of some of the homicide evidence and some of the crime reconstruction testimony. We affirm the controlled substance convictions.
FACTS
In August 1995, Pierce County Sheriff Department (PCSD) Deputy Ben Benson met Steve McQueen, a convicted felon and an informant. McQueen told Benson that he had purchased marijuana from Eggleston. McQueen stated one of the sales occurred at Eggleston's home at a time when Eggleston's brother, Deputy Sheriff Brent Eggleston, was present. Benson checked police records and noted that Brent listed his brother's address as his own residence.
Benson asked McQueen to participate in a controlled buy from Eggleston. On October 5, 1995, Benson gave McQueen money and watched as McQueen entered the tavern where Eggleston worked. He then saw McQueen and Eggleston leave the tavern with two other people and drive off. A short time later, McQueen returned with marijuana. On October 7, 1995, McQueen bought marijuana from Eggleston in a parking lot near Eggleston's home.
On October 9, Benson secured a warrant to search Eggleston's home. He decided to execute it on Monday, October 16, believing that Eggleston would receive new marijuana over the weekend. Benson scheduled a pre-raid briefing for 7:00 a.m. that morning because he wanted to serve the warrant before Eggleston was fully awake and before children arrived at the elementary school directly across the street from the Eggleston residence.
Benson told the six other members of the raid team that the warrant authorized them to search for marijuana. He also told them that guns might be in the residence, and that Eggleston lived there along with his mother, his girlfriend, and an infant. (Benson had driven by the house earlier and had seen the Volvo Eggleston drove, but not a patrol car, parked outside.) Benson gave the officers a diagram of the general layout of the single-story, two-bedroom home and the surrounding neighborhood.
The raid team wore marked jackets. Deputy John Bananola wore a vest over his raid jacket similar to that worn by surveyors. It was black with fluorescent horizontal and vertical striping and said 'Sheriff' on the front and back. Bananola had long hair and a long moustache because of his undercover work. Deputy Warren Dogeagle wore a green raid jacket and vest, both of which said 'Sheriff' on the front, as well as a balaclava mask intended to offer protection and to conceal his identity. Dogeagle also wore a cap with a sheriff's emblem on the front. Deputy John Reding wore a heavy tactical vest with PCSD markings and a black ballistic helmet with a face shield because he was going to be the first to enter the house.
When the seven deputies arrived in a raid bus at 7:55 a.m. at the Eggleston residence, they noticed that the Volvo was gone. The sun rose at 7:29 a.m. that morning.
The deputies entered the unlocked residence pursuant to a knock and announc
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