Opinion
Nos. 26394-1-III Consolidated with 26495-5-III
Filed: April 30, 2009 UNPUBLISHED OPINION
Jason S. Van Antwerp and Justin T. Clifton appeal their first degree robbery convictions. Mr. Van Antwerp also appeals his third degree assault conviction stemming from his arrest. We consolidated their appeals. Mr. Van Antwerp contends the trial court erred in denying his count-severance motion, making evidence rulings, and giving instructions. Additionally, he alleges prosecutorial misconduct. Pro se, Mr. Van Antwerp raises speedy trial and ineffective assistance of counsel concerns. Mr. Clifton joins in contending evidence and instructional errors. Rejecting all contentions, we affirm.
FACTS
When fellow inmates Russell Hawkinson and Carl Stränge were released from jail, Mr. Hawkinson first took Mr. Stränge to cash a check and then to an apartment where Mr. Van Antwerp and Mr. Clifton were located. Mr. Stränge later testified he decided to leave because he was concerned for his safety and his cash, but outside, Mr. Van Antwerp put him in a headlock, Mr. Hawkinson displayed a knife, and Mr. Clifton requested Mr. Stränge's wallet. Mr. Stränge threw cash at the men and ran to call the police. Mr. Stränge immediately identified Mr. Hawkinson, Mr. Clifton, and Mr. Van Antwerp as the assailants. At trial, the defense urged that Mr. Stränge was simply involved in a drug deal that had gone bad, while shifting the blame to Mr. Hawkinson.
The State initially charged the three assailants with first degree robbery, including a deadly weapon allegation. The State added a third degree assault charge against Mr. Van Antwerp because, after he was arrested and placed in a patrol car, he kicked the doors, screamed at the officers, and banged his head, causing it to bleed. He then began spitting bloody saliva toward police officers while threatening he was HIV-positive and infected with Hepatitis C. Eventually, the officers used pepper spray to remove him from the patrol car; most of the officers' uniforms were soiled with spit and blood. Mr. Van Antwerp unsuccessfully requested the counts be severed.
Mr. Hawkinson pleaded guilty and tried to take sole responsibility for the crime when he reluctantly testified at the consolidated trial of Mr. Van Antwerp and Mr. Clifton.
Later, Mr. Stränge went to see Mr. Hawkinson's father, Peter Carter, to inquire about getting his money back. Mr. Van Antwerp wanted to call Mr. Carter as a witness, offering that Mr. Stränge told Mr. Carter he would drop the charges for money. The court granted the State's motion to exclude Mr. Carter's testimony because he "[did] not have anything to add, as Mr. Stränge admitted all of those facts." Report of Proceedings (RP) at 199.
At trial, Mr. Stränge positively identified Mr. Van Antwerp, but was unsure of Mr. Clifton because he "looks different." RP at 93. Mr. Stränge could not "pinpoint him." RP at 94. Officer Tony Glasgow testified, over a defense objection, to Mr. Stränge's on-scene identification of Mr. Clifton. The court admitted Mr. Clifton's booking photograph. Officer Glasgow testified the photograph accurately depicted how Mr. Clifton looked when arrested, as compared to how he appeared groomed and dressed at trial.
Without objection, Mr. Van Antwerp testified in cross-examination:
Q. Let me make sure I've got it right. You're saying Mr. Stränge is wrong about everything?
A. He is lying.
Q. Mr. Hawkinson is wrong?
A. Mr. Hawkinson —
Q. The police officer, Officer Garcia, is wrong when he said you spit at him prior to getting pepper sprayed?
A. I could see where he may believe that I was spitting at him, alright? But I never spit upon him. I couldn't see. . . .
Q. You didn't answer my question. He said that you spit at him before getting peper [sic] sprayed. You're saying that's not correct?
A. That is not correct.
Q. Okay. Sergeant Berger said the same thing. That's also not correct; is that right?
A. That's correct. . . .
RP at 280.
During closing argument, the State commented, without objection, on two of Mr. Van Antwerp's witnesses; one who admitted he lied to police and another who initially refused to take the veracity oath. First, "Mr. Van Antwerp[] has called several people who were just flat out lying." RP at 308. Second, "how would any of you like to be spit upon by a person who says they've got HIV or Hepatitis C? Is that gonna scare you? . . . Well, of course, it does." RP at 312.
The court instructed the jury on the alternative means to commit first degree robbery. Then it instructed to convict the men, "the jury need not be unanimous as to which of alternatives [(5)(a),] [(5)(b),] or [(5)(c),] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt." Clerk's Papers (CP) (Van Antwerp) at 31, CP (Clifton) at 43.
The court instructed in the deadly weapon special verdict:
[F]ill in the blank with the answer "yes" or "no" according to the decision you reach. In order to answer the special verdict form[s] "yes," you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no."
CP (Van Antwerp) at 45, CP (Clifton) at 55 (emphasis added). The court denied Mr. Van Antwerp's request to offer an instruction on attempted third degree assault as a lesser-included offense.
The pair were found guilty as charged, and both men appealed.
ANALYSIS A. Severance
The issue is whether the trial court erred by abusing its discretion in denying Mr. Van Antwerp's motion to sever the charges.
We review a trial court's ruling on a motion to sever for an abuse of discretion. State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990). Discretion is abused if it is exercised without tenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
CrR 4.3(a) allows the State to join offenses in one charging document if the offenses: "(1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." CrR 4.4(b) allows the trial court to sever joined offenses if doing so "will promote a fair determination of the defendant's guilt or innocence of each offense." A defendant seeking severance has the burden to show that joinder is so manifestly prejudicial that it outweighs the interest in judicial economy. Bythrow, 114 Wn.2d at 718.
Considerations are "the jury's ability to compartmentalize the evidence, the strength of the State's evidence on each count, the issue of cross admissibility of the various counts, [and] whether the judge instructed the jury to decide each count separately," and this court weighs strongly the concern for judicial economy. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). We presume jurors follow the court's limiting instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
Mr. Van Antwerp contends he was prejudiced by the jury hearing evidence that supported the assault charge and the robbery charge. After considering the severance factors, the court noted the crimes occurred in sequence and the jury would be provided a limiting instruction; it instructed the jury to consider each count separately and not to allow its verdict on one count to control its verdict on any other count. Nothing here rebuts the presumption that the jury followed this instruction. Thus, Mr. Van Antwerp fails to show that joinder was so manifestly prejudicial that it outweighed judicial economy. Bythrow, 114 Wn.2d at 718. The trial court did not err.
Accordingly, we do not reach Mr. Van Antwerp's ineffective assistance of counsel contention based upon his trial counsel's failure to renew the severance motion. See Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (ineffective assistance requires deficient performance and prejudice).
B. Exclusion of Mr. Carter's Testimony
The next issue is whether the trial court erred by abusing its discretion in granting the State's motion in limine to exclude Mr. Carter's testimony. Mr. Van Antwerp contends Mr. Carter's testimony should have been admitted because it was directly related to Mr. Stränge's credibility.
Evidence rulings are left to the sound discretion of the trial court. State v. Atsbeha, 142 Wn.2d 904, 913, 16 P.3d 626 (2001). Moreover, we will not reverse a motion in limine ruling absent an abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
Mr. Stränge testified he went to Mr. Carter's home and asked about getting his money back. Mr. Stränge admitted he discussed the charge against Mr. Hawkinson and told Mr. Carter he would be willing to drop the charges if the money was repaid. While the amount of money and the motive for asking may have been disputed, Mr. Carter's testimony was cumulative and raised hearsay issues. Thus, the court had a tenable basis to exclude Mr. Carter's testimony. The trial court did not err.
C. Instructions
The next issue is whether Mr. Van Antwerp was denied a fair trial based on the instructions and the court's failure to give his attempted third degree assault instruction.
First, Mr. Van Antwerp contends he was denied his constitutional right to a unanimous jury verdict because the to-convict robbery instruction and the deadly weapon special verdict instruction were in conflict. He argues the to-convict instruction informed the jury it did not have to be unanimous regarding the means to commit robbery but the special verdict finding required unanimity.
The invited error doctrine precludes review of a jury instruction proposed by the defense. State v. Carter, 127 Wn. App. 713, 716, 112 P.3d 561 (2005). Both of the instructions were proposed by Mr. Van Antwerp. Thus, review is precluded. Even so, the special verdict shows the jurors were satisfied beyond a reasonable doubt that Mr. Van Antwerp or an accomplice was armed with a deadly weapon at the time of the commission of the robbery. See State v. Smith, 159 Wn.2d 778, 791-92, 154 P.3d 873 (2007) ("any underlying concerns that we may have had that Smith's jury avoided specific factual discussions about what unlawful conduct Smith may or may not have engaged in . . . have been put to rest . . . by the unanimous return on the deadly weapon special verdict.").
Second, Mr. Van Antwerp contends the court abused its discretion in refusing to instruct the jury on the lesser-included crime of attempted third degree assault. We review a trial court's decision to reject a jury instruction for abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998).
An assault at common law is "`(1) an attempt, with unlawful force, to inflict bodily injury on another; (2) an unlawful touching with criminal intent; and (3) intentionally putting another in reasonable apprehension of harm, whether or not the actor actually intends to inflict or is capable of inflicting that harm.'" State v. Madarash, 116 Wn. App. 500, 513-14, 66 P.3d 682 (2003) (quoting State v. Russell, 69 Wn. App. 237, 246-47, 848 P.2d 743 (1993)). When the assault is directed toward a law enforcement officer, it is considered third degree assault. RCW 9A.36.031(g).
Assault can be committed by intentionally attempting to inflict bodily injury on another, along with the apparent ability to inflict such an injury. State v. Hall, 104 Wn. App. 56, 62, 14 P.3d 884 (2000). In Hall, the defendant attempted to spit upon the arresting officer, but the officer moved to "avoid the majority of it." Id. at 59. The defendant attempted to head butt another officer, but the officer moved out of the way. Id. The Hall court reasoned a defendant can commit assault by taking "a substantial step to use unlawful force to intentionally cause fear and apprehension of imminent bodily injury in another person, but again could be prevented from carrying out that act." Id. at 65 (citing State v. Music, 40 Wn. App. 423, 432, 698 P.2d 1087 (1985)). Here, like Hall, an attempt instruction was unnecessary. The trial court did not abuse its discretion when refusing to instruct on attempt.
D. Prosecutorial Misconduct Allegations
The issue is whether Mr. Van Antwerp was denied a fair trial based on prosecutorial misconduct. Mr. Van Antwerp contends the prosecutor impermissibly asked him to comment on the veracity of the State's witnesses, expressed his personal belief that Mr. Van Antwerp's witnesses were lying, and applied to the passion and prejudice of the jury by asking the jurors to picture themselves in the place of the police officers when Mr. Van Antwerp was spitting.
To show prosecutor misconduct, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Absent a proper objection and a request for a curative instruction, the issue of misconduct is waived unless the comment was so flagrant or ill-intentioned that an instruction could not have cured the prejudice. State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978).
When a prosecutor attempts to compel a witness to give an opinion on another witness's veracity, misconduct occurs. State v. Jerrels, 83 Wn. App. 503, 507, 925 P.2d 209 (1996). Arguably, the State may have been clarifying Mr. Van Antwerp's testimony by asking about Mr. Stränge, Mr. Hawkinson, Officer Garcia, and Sergeant Berger's contradicting testimony or asking if Mr. Antwerp thought the other witnesses were lying; but his attorney's decision not to request a curative instruction or move for a mistrial suggests that the impropriety did not appear critically prejudicial. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
The prosecutor may draw reasonable inferences from the evidence. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005). The State commented on two of Mr. Van Antwerp's witnesses; one who admitted he lied to police, and another who initially refused to take the veracity oath. First, "the defendant here, Mr. Van Antwerp, has called several people who were just flat out lying." RP at 308. Because one witness admitted lying and another refused an oath, we cannot say the comment was flagrant or ill-intentioned. Next, the State commented, "how would any of you like to be spit upon by a person who says they've got HIV or Hepatitis C? Is that gonna scare you? . . . Well, of course, it does." RP at 312. This comment appealed to the jurors' common sense regarding apprehension, not passion or prejudices. Thus, the failure to object or request a curative instruction amounts to waiver. Charlton, 90 Wn.2d at 661.
Because Mr. Van Antwerp fails to show error, we do not reach his cumulative error contention. Cumulative error applies when several trial errors, when combined, deny the defendant a fair trial, although none of them alone would justify reversal. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
E. Mr. Van Antwerp's Additional Grounds
1. Speedy Trial. Mr. Van Antwerp argues he did not agree to continue his trial past the 60-day deadline. CrR 3.3(b) provides that a criminal defendant detained in jail must be brought to trial within 60 days of the filing of the information. Here, the information was filed on June 5, 2007 and trial began on August 13, 2007. The record shows conversations between the court and counsel regarding trial scheduling without reference to speedy trial issues. If Mr. Van Antwerp relies upon information to show a speedy trial violation, a personal restraint petition is the proper means for review. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
2. Ineffective Assistance. Mr. Van Antwerp next argues his defense counsel was deficient in not calling the arresting fourth officer to testify that he did not spit on her. A defendant alleging ineffective assistance must show deficient performance and resulting prejudice. Strickland, 466 U.S. at 697. The decision whether to call a witness is ordinarily a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995). Mr. Van Antwerp cannot establish deficient performance or resulting prejudice merely because three other officers testified about his acts toward them when a fourth officer did not claim to have been assaulted. Thus, he fails to show ineffective assistance.
F. Identification
The issue is whether, considering hearsay and confrontation principles, the trial court erred in allowing Officer Glasgow to testify to Mr. Stränge's on-scene identification of Mr. Clifton as an assailant.
Preliminarily, the State argues this issue is waived because no hearsay objection was made at trial. However, the State's argument to the trial court to admit the testimony was based on admissible hearsay. Because the trial court considered the hearsay argument and the record is sufficient for review, we proceed.
A trial court's decision to admit evidence is reviewed for abuse of discretion. Atsbeha, 142 Wn.2d at 913-14. A statement is not hearsay if "the declarant testifies at the trial . . . and is subject to cross examination concerning the statement, and the statement is . . . one of identification of a person made after perceiving the person." ER 801(d)(1)(iii).
Mr. Stränge testified Mr. Clifton "looks different." RP at 93. He did not say Mr. Clifton was not one of the assailants. Officer Glasgow then testified to Mr. Clifton's identification at the crime scene after perceiving the assailants. He further identified Mr. Clifton as one of the individuals arrested at the crime scene. Since this testimony is admissible under ER 801(d)(1), the trial court had a tenable basis to admit it.
Next, both the Washington and federal constitutions protect the defendant's right to confront the State's witnesses. U.S. Const. amend. VI; Wash. Const. art. I, § 22; Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We review Mr. Clifton's confrontation clause challenge de novo. State v. Mason, 160 Wn.2d 910, 922, 162 P.3d 396 (2007), cert. denied, 128 S. Ct. 2430 (2008).
"Prior statements must be excluded under the Crawford rule only if a witness is unavailable at trial." State v. Price, 158 Wn.2d 630, 639, 146 P.3d 1183 (2006). "The purposes of the confrontation clause are to ensure that the witness's statements are given under oath, to force the witness to submit to cross-examination, and to permit the jury to observe the witness's demeanor." Id. at 640. The confrontation clause guarantees only an opportunity for effective cross-examination; it does not guarantee that every State witness will have perfect memory. Id. at 641-42.
Because Mr. Stränge testified at trial, Mr. Clifton had a full opportunity to cross-examine him about his identification. As analyzed, Officer Glasgow properly testified to Mr. Stränge's prior identification. When a defendant changes his story at trial from an earlier statement, "[n]othing in the Confrontation Clause prohibited the State from also relying on his prior testimony to prove its case." California v. Green, 399 U.S. 149, 168, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). Similarly, in United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988), a prior identification was admissible even though the witness could no longer make the same identification at trial due to memory loss. Accordingly, Mr. Clifton was not denied confrontation.
Because we reject Mr. Clifton's identification arguments, we do not reach his contention that without the identification, insufficient evidence supports his conviction.
G. Special Verdict Unanimity
The next issue is whether the court wrongly instructed the jury regarding unanimity in the special verdict. Mr. Clifton contends the jury was not required to be unanimous in answering "no" to the special verdict finding of a deadly weapon.
The court instructed, "[i]n order to answer the special verdict form[s] `yes,' you must unanimously be satisfied beyond a reasonable doubt that `yes' is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer `no.'" CP (Clifton) at 55 (emphasis added).
Unanimity on a special verdict form is discussed in State v. Goldberg, 149 Wn.2d 888, 893, 72 P.3d 1083 (2003). In Goldberg, the trial court concluded the jury was deadlocked on the special verdict instruction and ordered continued deliberations toward unanimity. Our Supreme Court held unanimity was not required in that case and the trial court erred in sending the jury back. Id. at 894. Here, the trial court instructed Mr. Clifton's jury it had to "unanimously have a reasonable doubt" to answer "no." CP (Clifton) at 55. This instruction was harmless because unlike the Goldberg facts, the Clifton jury was unanimous in voting "yes" on the deadly weapon special finding without first returning a split vote.
A harmless error analysis is appropriate if the error affects the trial process but not its fundamental structure or framework. See State v. Frost, 160 Wn.2d 765, 779-831, 161 P.3d 361 (2007) (discussing when a harmless error analysis is appropriate). In State v. Bashaw, 144 Wn. App. 196, 203, 82 P.3d 451 (2008), this court held when the jury unanimously votes "yes" on a special verdict finding, "there is no basis for believing that telling the jurors that they had to be unanimous to return a negative finding could have harmed [the] appellant." Because Mr. Clifton received a unanimous jury verdict as guaranteed by Washington's constitution, he fails to show reversible error.
In sum, we reject Mr. Clifton's error contentions and, as reasoned in Mr. Van Antwerp's case, we do not reach cumulative error. Greiff, 141 Wn.2d at 929.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and KORSMO, J., Concur.