State Of Washington, . v. Jerry Brand Bogart ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 78057-3-I
Respondent,
DIVISION ONE
V.
JERRY BRAND BOGART, UNPUBLISHED OPINION
Appellant. FILED: September 16, 2019
SMITH, J. — Jerry Bogart challenges the judgment and sentence imposed
pursuant to his jury conviction for first degree assault with a deadly weapon and
unlawful possession of a firearm. He contends that the trial court erred when it
declined to give a cautionary instruction regarding the testimony of a prison
informant. But the trial court’s general instruction on witness credibility instructed
the jury to consider “any personal interest that the witness might have in the
outcome or the issues.” This instruction was sufficient to allow Bogart to argue
that the witness had a motivation to lie. Moreover, we have previously held that
an instruction to view a particular witness’s testimony with caution is improper
because it constitutes an impermissible comment on the evidence.
However, we agree with the parties that the trial court erroneously
imposed a firearm enhancement despite the jury returning a special verdict that
Bogart was armed with a deadly weapon. The criminal filing fee and DNA
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(deoxyribonucleic acid) collection fee must also be stricken. We remand for
resentencing consistent with this opinion. In all other respects, we affirm.
FACTS
Kelly LeMoigne and his wife, Vicki Ecklund, were long-time users of
methamphetamine.1 Ecklund had worked off and on as a paid informant for law
enforcement dating back to 1996. At some point in 2015 or 2016, both Ecklund
and LeMoigne provided information to the police about a drug dealer named
James Stevens, resulting in Stevens’ arrest.
In the early morning hours of March 23, 2016, Ecklund contacted Bogart,
from whom she and LeMoigne had bought methamphetamine in the past.
Ecklund told Bogart that LeMoigne would contact him to arrange a time and
meeting place to buy methamphetamine. However, Bogart was friends with
Stevens and “[h]omicidely” angry that Ecklund and LeMoigne “were rats.”
When LeMoigne arrived at the meeting place, Bogart was already there,
standing in front of his car. LeMoigne parked so his car was facing Bogart’s car,
nose to nose. Without getting out of his car, LeMoigne handed Bogart money. In
exchange, LeMoigne received a cigarette pack that he believed contained
methamphetamine. He later discovered it contained only salt.
LeMoigne turned to put the cigarette pack in his center console. When he
turned back around, he “got sucker punched.” Bogart called LeMoigne a “rat” and
said, “This is for James’s niece.” Bogart drew back his hand a second time.
1 At the time of trial, LeMoigne was suffering from advanced esophageal cancer
and testified by way of a perpetuation deposition.
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Believing Bogart was going to hit him again, LeMoigne sped off, hitting Bogart’s
car. Bogart fired several shots at LeMoigne as he drove off.
While driving back to his house, LeMoigne received a voice mail message
from Bogart. In the message, Bogart asked, in a friendly tone of voice, where
LeMoigne went and stated he was concerned about him. Apparently believing
that he had terminated the call with LeMoigne, Bogart then proceeded to have a
separate conversation with someone on his end of the phone. In a threatening
tone, Bogart stated that LeMoigne and Ecklund were “rats.” He stated that he
had tried to kill LeMoigne and that if he saw him again he was ‘“[gjoing to kill
him.” Bogart’s conversation was recorded on LeMoigne’s voice mail.
The State charged Bogart with first degree assault with a firearm and two
counts of first degree unlawful possession of a firearm. Prior to trial, Bogart
shared a jail cell with Tyler Vorderstrasse for approximately four to six weeks.
Vorderstrasse had known Bogart for several years, and they shared many mutual
friends. Vorderstrasse also knew LeMoigne, Ecklund, and Stevens.
Vorderstrasse testified at trial. He stated that while they were cellmates,
Bogart told him that he punched LeMoigne and called him a “rat” because
LeMoigne and Ecklund had done a “controlled buy” involving Stevens. Bogart
also said he fired shots as LeMoigne drove away, hitting LeMoigne’s car. Bogart
told Vorderstrasse that after he shot at LeMoigne, he took a shower, washed his
clothes to remove any gunshot residue, and cleaned his gun. He also detailed
plans to hide his own car, which had been struck by his bullets.
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Vorderstrasse testified that he voluntarily provided this information to law
enforcement “with no offer of anything in return.” But Vorderstrasse
acknowledged that the State ultimately agreed to reduce a pending charge
against him in exchange for his testimony against Bogart. And Vorderstrasse
testified that he had previously cooperated with law enforcement in a different
matter and knew that if he “gave information [he] would get a deal.”
Bogart requested that the jury be instructed to consider the testimony of
an informant “with greater caution than that of other witnesses.” Bogart proposed
the following jury instruction, based on a Ninth Circuit model jury instruction:
You have heard testimony from Tyler Vorderstrasse. That
testimony was given in exchange for a promise by the government
that the witness receive beneficial treatment from the government
in connection with this case.
For this reason, in evaluating the testimony of Tyler Vorderstrasse,
you should consider the extent to which or whether his testimony
may have been influenced by this beneficial treatment.
In addition, you should examine the testimony of Tyler
Vorderstrasse with greater caution than that of other witnesses.
The trial court declined to give the instruction.
Bogart testified in his own defense. He admitted that he planned to give
LeMoigne a package containing salt instead of methamphetamine and then to
punch LeMoigne. But he denied that he intended to cause LeMoigne great bodily
harm by shooting at him. Instead, he claimed he did so in self-defense, believing
that LeMoigne was going to hit him with his car.
A jury convicted Bogart as charged. Bogart appeals.
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DISCUSSION
Bogart contends that the trial court violated his right to present a defense
when it refused to give the instruction regarding Vorderstrasse’s testimony. Citing
federal case law and academic studies, he argues that “the testimony of a prison
informant is inherently untrustworthy” and “is strongly correlated to wrongful
convictions.”
Instructions are adequate if they allow a party to argue its theory of the
case and do not mislead the jury or misstate the law. State v. Barnes, 153 Wn.2d
378, 382, 103 P.3d 1219 (2005). We review a trial court’s decision to give a jury
instruction for abuse of discretion if the decision was based on a determination of
fact. State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015). If the
decision was based on a legal conclusion, it is reviewed de novo. Condon, 182
Wn.2d at 316.
Here, Bogart’s proposed instruction was not necessary in order for him to
argue that Vorderstrasse’s testimony was inherently untrustworthy. Bogart
extensively cross-examined Vorderstrasse on what benefit he received for his
testimony and at what point he received it. And the jury was already instructed on
how to evaluate the credibility of witnesses. The trial court’s first instruction to the
jury provided as follows:
You are the sole judges of the credibility of each witness.
You are also the sole judges of the value or weight to be given to
the testimony of each witness. In considering a witness’s testimony,
you may consider these things: the opportunity of the witness to
observe or know the things he or she testifies about; the ability of
the witness to observe accurately; the quality of a witness’s
memory while testifying; the manner of the witness while testifying;
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any personal interest that the witness might have in the outcome or
the issues; any bias or prejudice that the witness may have shown;
the reasonableness of the witness’s statements in the context of all
of the other evidence; and any other factors that affect your
evaluation or belief of a witness or your evaluation of his or her
testimony.
(Emphasis added.) It is not error for a trial court to refuse to give a specific
instruction when a more general instruction adequately explains the law and
allows each party to argue its theory of the case. State v. Hathaway, 161 Wn.
App. 634, 647, 251 P.3d 253 (2011). Because Bogart was able to argue his
theory of the case under the instructions given, the trial court did not abuse its
discretion in declining to give it.
Relying on State v. Carothers, 84 Wn.2d 256, 267-68, 525 P.2d 731(1974), Bogart contends that the informant instruction is “no different from the
pattern instruction on accomplice testimony in WPIC 6.05, which the Supreme
Court has ruled is not a comment on the evidence.” But in Carothers, the
Washington Supreme Court held that such an instruction is proper only if it
instructs the jury to view any accomplice testimony with caution. It noted that an
instruction to view the testimony of a particular witness with caution would be an
improper comment on the testimony of that witness. Carothers, 84 Wn.2d at 267-
68.
Instead, this court has previously held that a trial court does not abuse its
discretion in declining to give an informant instruction. In State v. Hummel, 165
Wn. App. 749, 266 P.3d 269 (2012), we noted that no Washington case requires
a jury to be instructed as to the potential untrustworthiness of informant
testimony. We also concluded that the informant instruction was more similar to
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an instruction cautioning the jury about the untrustworthiness of cross-racial
eyewitness testimony—which was held to be a comment on the evidence in
State v. Allen, 161 Wn. App. 727, 255 P.3d 784, affd, 176 Wn.2d 611 294 P.3d
679 (2013)—than it was to the accomplice instruction suggested by Bogart.2
“Any instruction that could lead the jury to infer that the trial court believed or
disbelieved a witness constitutes a judicial comment on the evidence.” Allen, 161
Wn. App. at 742 (citing State v. Faucett, 22 Wn. App. 869, 876, 593 P.2d 559(1979)). Bogart has not convinced us to depart from our earlier rationale in
Hummel.
Bogart next contends, and the State concedes, that the trial court
erroneously imposed a firearm enhancement when the jury returned a special
verdict finding that Bogart was armed with a deadly weapon. We accept the
State’s concession, vacate the firearm enhancement, and remand for
resentencing consistent with the jury’s special verdict.3
Finally, Bogart challenges the criminal filing fee and DNA collection fee
imposed as part of his sentence. Bogart contends, and the State concedes, that
both fees must be stricken because he is indigent and because his DNA was
2 We note, as we did in Allen, that such an instruction might be appropriate in a
federal case, “where there is no constitutional prohibition from the judge commenting on
matters of fact,” but not in Washington, where our constitution contains such a prohibition.
Allen, 161 Wn. App. at 740.
~ Bogart also contends that because the jury did not find he was armed with a
firearm, the trial court must vacate the order to register as a felony firearm offender. But
ROW 9.41.330 provides: “[Wjhenever a defendant in this state is convicted of a felony
firearm offense . . the court must consider whether to impose a requirement that the
.
person comply with the registration requirements of ROW 9.41.333 and may, in its
discretion, impose such a requirement.” Bogart was convicted of unlawful possession of
a firearm, which is a “felony firearm offense.” RCW 9.41 .010(1 0)(a). Thus, the trial court
had the authority to impose the registration requirement.
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collected following a prior felony conviction. Although these fees were mandatory
when imposed, the Washington Supreme Court has since held in State v.
Ramirez, 191 Wn.2d 732, 746-50, 426 P.3d 714 (2018), that courts may not
impose discretionary legal financial obligations on an indigent criminal defendant.
We accept the State’s concession and remand for the trial court to strike these
fees from the judgment and sentence.
We affirm Bogart’s convictions. We remand to the trial court to vacate the
firearm enhancement, resentence Bogart based on the deadly weapon
enhancement, and strike the criminal filing fee and DNA collection fee from the
judgment and sentence.
/
WE CONCUR: