In the Matter of the Personal Restraint of Benjamin B. Brockie, No. 86241-9 (Sept. 26, 2013) (en banc)

Benjamin Brockie was charged by information for, among other things, first degree robbery.  Brockie’s charging information indicated that “in the commission of an immediate flight therefrom, the defendant displayed what appeared to be a firearm or other deadly weapon.”  (emphasis added).  Critically, the charging information did not provide for the alternative means of committing first degree robbery–being armed with a deadly weapon.  The jury instructions, however, did include this alternative charge.  After Brockie’s trial, a jury convicted Brockie of, among other things two counts of first degree robbery.  In response to these convictions and his subsequent sentencing, Brockie filed a pro se motion to vacate his judgment and sentence.  Brockie’s motion argued that his conviction should be vacated because the jury was improperly instructed on the alternative means of committing first degree robbery, which was not contained in the charging information.  The superior court where Brockie filed his motion considered it a personal restraint petition–a form of collateral attack–and transferred the motion to the Court of Appeals.  The Court of Appeals then transferred the motion to the Washington Supreme Court.

The Washington Supreme Court applied its line of cases, starting with State v. Severns, 12 Wn.2d 542, 548, 125 P.2d 659 (1942), which hold that it is error for a trial court to instruct the jury on uncharged alternative means.  In doing so, the Washington Supreme Court held that State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991), and its progeny, which address errors in a charging information that are first raised on appeal,  do not apply in a case where jury instructions are involved.  Thus, the Washington Supreme Court reaffirmed Severns and the cases following that decision.

After the court established what law controls, it found that Brockie’s charging information did not put him on notice of the alternative means for his robbery charge.  This, the court held, was error.  Nonetheless, the Washington Supreme Court affirmed Brockie’s conviction because it noted that in a collateral attack of a conviction the petitioner must show that more likely than not he was prejudiced by any error.  The court found that Brockie was not prejudiced “on the facts in this particular case, [because] any juror that found [Brockie] was armed with a deadly weapon would have found that [Brockie] displayed the weapon–the alternative means that was properly described in the charging information.