In the Matter of the Personal Restraint of Benjamin B. Brockie, Petitioner
Argued June 11, 2013.
Appeal from Spokane County Superior Court. 02-1-00790-3.
Kenneth H. Kato, for petitioner.
Steven J. Tucker, Prosecuting Attorney, and Mark E. Lindsey and Andrew J. Metts III, Deputies, for respondent.
AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez, Justice Sheryl Gordon McCloud.
[178 Wn.2d 534] Owens, J. --
¶ 1 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.
¶ 2 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 " gunman" and described how the employees were forced " at gunpoint" to [178 Wn.2d 535] 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.
¶ 3 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. B at 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. to Pers. Restraint Pet., Attach. I, ...