State v. Green

79 P.3d 460
Court of Appeals of Washington·Decided November 3, 2003·No. 45177-4-I·Published·Cited by 8 cases

Opinion

79 P.3d 460 (2003)
119 Wash.App. 15

STATE of Washington, Respondent,
v.
Greg GREEN, Appellant.

No. 45177-4-I.

Court of Appeals of Washington, Division 1.

November 3, 2003.

David L. Donnan, Washington Appellate Project, Seattle, WA, for Appellant.

Lee D. Yates, King County Prosecutor's Office, Seattle, WA, for Respondent.

*461 OPINION PUBLISHED IN PART

SCHINDLER, J.

Greg Green appeals his conviction for attempted murder in the first degree. He contends that the trial court abused its discretion in admitting an immunity agreement between the State and the victim, the court erred by refusing to give a cautionary instruction regarding accomplice testimony and by giving an erroneous instruction on accomplice liability, and the prosecutor engaged in misconduct. We conclude that although the State should not have been permitted to introduce the immunity agreement in direct examination, the error was harmless. A cautionary accomplice instruction was not necessary because the testimony was substantially corroborated, the erroneous jury instruction on accomplice liability was harmless error and there was no prosecutorial misconduct. We affirm.

FACTS

On October 25, 1997, Rio Cole, a marijuana dealer, was shot and robbed. Cole testified that Greg Green and James Elliott robbed him and Green shot him.

For several years, Cole had supplied marijuana to his friends Will King and Andre Brown. During the summer prior to the shooting, Cole also supplied marijuana to their friends: Donte Perry, Wassell Grissom and Elliott.[1] Cole saw Green, Perry's cousin, at least once during that summer when he sold some marijuana to Brown. Both Brown and Cole testified that on that occasion, Green looked at Cole in a menacing manner.

On October 23, 1997, two days before Cole was shot and robbed, Perry called Cole, on behalf of Grissom and Elliott, and asked if he would sell them a pound of marijuana. Cole agreed to sell a pound for $4,000 and brought the marijuana to Perry's, Grissom's, and Elliott's apartment. Perry, Grissom, and Elliott were present during the transaction with Cole.[2]

Cole testified that two days later, on October 25, 1997, Perry called to negotiate another sale, this time for two pounds of marijuana. Cole agreed to sell Perry two pounds for $8,000. Perry and Elliott agreed to split the purchase. Perry told Cole he would send two people over to Cole's apartment with the money. Elliott testified that Perry said his cousin, Green, would bring his half of the money and go with Elliott to Cole's apartment.

That afternoon, Elliott and Green drove in a van to buy the marijuana.[3] Elliott called Cole from a payphone near the apartment complex to get further directions. Cole walked up the street and met Elliott and Green. He got in the van and directed Elliott, who was driving, to his apartment.

They arrived at Cole's apartment in Tukwila a few minutes later. Cole's girlfriend, Erika Sampson, and their two young children were also there. Cole's two-year old son was sleeping on the floor in the living room. Green and Elliott sat on the couch and Cole went to get the marijuana. When Cole returned, he placed a duffel bag containing two pounds of marijuana by Elliott's feet and sat down. The three watched a football game while Elliott examined the marijuana. Green then asked to use the restroom and Cole directed him to the bathroom down the hall. When Green returned, he was holding a gun with a laser site pointed at Cole. Cole said "I didn't know it was like this...."[4] Cole looked at Elliott, who appeared shocked, and told him to take the marijuana.

Green ordered Cole to get down on the floor. Cole got on his knees and Green told him to lie flat. Green then directed Elliott to *462 take the marijuana and leave. Elliott grabbed the duffel bag, but had difficulty opening the front door. He dropped the duffle bag, eventually opened the door, and left. Cole looked up at Green. As Green backed out of the apartment, he shot Cole. The first shot hit Cole in the mouth and face and the second hit him in the arm. Green picked up the duffel bag of marijuana and joined Elliott in the van.

Erika Sampson testified that she saw two African-American men arrive at the apartment in a van with Cole. She was in the kitchen when she heard Cole exclaim they "didn't have to do this."[5] Sampson moved towards the living room and saw Cole lying on the floor and one of the men pointing a gun at him.[6] Frightened, she backed into the kitchen. She then heard the shooter fire two shots and leave. Sampson immediately called 911. Police and medics arrived shortly thereafter. Cole was bleeding profusely from his mouth, neck, and arm. He had lost teeth and had difficulty speaking. When asked, he told the police that "two men" shot him. An ambulance took Cole to Harborview Medical Center for treatment.

Elliott testified that after leaving Cole's apartment, he drove to a house where he knew some people and got a ride from them back to the apartment he shared with Perry and Grissom. When he arrived at the apartment, several people were there, including Green and Grissom.

Grissom testified that he was taking a nap when he heard people talking loudly. As he came out of his room, Elliott said that he and Green had "hit a lick," meaning that they had robbed someone.[7] Green displayed a 9 millimeter (mm) handgun with a laser site and put it on the counter. Green said he shot Cole, but did not know if he was dead. He then put ziplock bags of marijuana on the counter.

By the following day, Green, Elliott, Grissom and Perry had all fled the state.

In a statement to the police after the shooting, Sampson said she thought the person who shot Cole was driving the van. She could not positively identify either Green or Elliott from photo montages. She could not identify who shot Cole when she testified at trial.

During their search of Cole's apartment, the police found a half-pound of marijuana and approximately $8,000 in a safe. In the living room, they recovered two shell casings and bullet fragments from a 9 mm gun.

Two days after the shooting, Tukwila police detective William Bales interviewed Cole at Harborview. Cole told him that Elliott and Green were the two men who came to purchase marijuana and Green was the one who shot him.[8] In January 1998, Cole selected and identified both Green and Elliott from photo montages.

In February 1998, the State entered into a written agreement with Cole. The State agreed not to prosecute or file charges for the drugs found in his apartment if he agreed to testify at trial.

In March 1998, the State charged Green with first degree assault. In March or April 1999, Green was arrested in California. Green admitted that he knew Cole, but said he did not know Cole had been shot. Green asked if Elliott was in custody and if Elliott had said he shot Cole.

After Green's arrest the State filed an amended information and charged Green and Elliott with first degree attempted murder. Elliott eventually turned himself in and pleaded guilty to second degree robbery. As a part of the plea agreement, Elliott agreed to testify in the trial against Green, cooperate with the police in their investigation of the case, give a statement and be interviewed about the case.

At trial, the State charged Green with first degree attempted murder and, in the alternative, first degree assault. The sole issue at trial was the identity of who shot Cole.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Green, 79 P.3d 460 (Wash. Ct. App. 2003).

79 P.3d 460 (State v. Green) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Ish
170 Wash. 2d 189 (Washington Supreme Court, 2010)
State v. Coleman
231 P.3d 212 (Court of Appeals of Washington, 2010)
State v. Ish
150 Wash. App. 775 (Court of Appeals of Washington, 2009)