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Appellate panel hears argument in State v. Giosa over accomplice instruction and sentencing discretion
Summary
At oral argument in State v. Joseph Giosa, defense counsel argued an accomplice-liability jury instruction was internally inconsistent and confusing to jurors and that the trial court misunderstood its authority to impose concurrent sentences; the State urged affirmation, saying the instruction is supported by precedent and any error would be harmless.
Oliver Davis, attorney for Joseph Giosa, told the Division II panel he was asking the court to reverse his client’s convictions or, alternatively, remand for resentencing. Davis said the primary issues on appeal are whether a jury instruction on accomplice liability is confusing and whether the trial court misunderstood its authority to impose concurrent terms.
"The jury instructions must make the law manifestly apparent with a lay jury," Davis said, arguing that the instruction’s definitional sentence is acceptable but a following sentence—stating that a person "present at the scene and ready to assist by his or her presence is aiding"—is circular and could confuse jurors when read alongside a caveat that "more than mere presence" is required.
The contention over the instruction prompted several questions from the judges about how an average juror would reconcile the definitional language with the sentence Davis asked the court to excise. Davis cited precedents and urged the panel to view the instruction as "extraordinarily confusing," arguing that confusion at that level warrants reversal.
Christy Barham, arguing for the respondent State of Washington, urged the court to affirm. She said Giosa participated in a retaliatory gang shooting that killed a 17-year-old and that the record does not support the defense’s procedural claims. "This court should affirm his convictions and sentence," Barham said, adding that the defense never filed a motion specifically requesting appointment of a ballistics expert and that the trial court had granted a continuance when one was sought.
On the ballistics issue, Barham noted that the state’s expert testified about bullet angles and a higher point of origin consistent with shots coming from a BMW SUV; she said the defense’s strategy about expert testimony is reflected in the record and was not preserved as an error requiring relief. She also argued the accomplice‑instruction challenge lacks controlling authority demonstrating constitutional inadequacy and that, even if error existed, sufficient evidence supported a finding that Giosa was at least an aider or principal, rendering any instructional error harmless.
Davis also pressed a separate sentencing claim, arguing the trial court’s statements—echoing prosecutorial language that the sentences "have to run consecutively"—reflect an unawareness of the court’s discretion to impose concurrent terms by declaring a mitigated exceptional sentence. He cited McFarland and other cases he said support remand when a trial court appears to misunderstand its sentencing authority and the record shows a possibility it would have imposed a lower sentence.
Barham countered that the trial court reviewed the facts and victim impact and reasonably concluded a mitigated exceptional sentence was not warranted. She told the panel that absent a showing of "substantial and compelling reasons" and a request for an exceptional sentence, the court was not required to sua sponte search for mitigators.
Argument concluded with the panel asking follow-up questions and giving counsel time for rebuttal; the transcript contains no ruling. The court thanked counsel and indicated it would consider the arguments before issuing a decision.
