Opinion
No. 56195-2-I.
November 20, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-12992-0, Douglas D. McBroom, J., entered May 4, 2005.
Counsel for Appellant(s), Susan F Wilk, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), David M Seaver, King County Prosecuting Attorney's Offic, Seattle, WA.
Affirmed in part and remanded by unpublished per curiam opinion.
Carl Gentis challenges his conviction of second degree murder based on alternative theories of intentional murder and felony murder. Gentis's voluntary taped statements to police were properly admitted to impeach his trial testimony. The jury instructions on self-defense were adequate, and even if instructional error occurred, was preserved, and was not invited, it was harmless beyond a reasonable doubt. Gentis's pro se claims are without merit. Because the State correctly concedes that Gentis's judgment and sentence must be revised to clarify that Gentis was convicted of only one murder, we remand for that purpose and otherwise affirm.
FACTS
Firefighters stopped their fire engine when they saw two men, Grant Phillips and Carl Gentis, involved in an altercation in which Phillips was fending off Gentis with a golf club. The firefighters alerted police by radio, sounded their fire engine's siren and horn, and shouted at the men to separate. When Phillips responded to the firefighters, Gentis grabbed the golf club from him and struck Phillips in the torso several times with it, causing the club's head to break off the shaft. Phillips bent over and Gentis gripped the club's shaft with two hands and plunged it through Phillips's shoulder and more than a foot deep into his chest, where it fractured a rib, punctured a lung and sheared a major artery.
Phillips fell to the ground, ashen faced and apparently mortally wounded. Gentis taunted the firefighters, daring them to intervene, then walked to where Phillips lay on the ground, kicked his face repeatedly and stabbed him once more with the golf club shaft. Gentis left when police sirens became audible. The firefighters tried to save Phillips but he died at the scene.
Within a few minutes, a Kent police officer encountered Gentis nearby. He arrested Gentis and advised him of his constitutional rights. After saying he would talk, Gentis explained he was defending himself from Phillips who had attacked him with the golf club before the firefighters saw them. Gentis also led the officer to the golf club shaft. When the officer told Gentis he would be taken to jail so detectives could further interview him, Gentis responded that if he was going to jail, he would rather speak with an attorney. The officer consulted a superior and told Gentis they would not take him to jail, but to the detectives' office. Gentis said he was fine with that. At the detectives' office, Gentis was again advised of his constitutional rights, agreed to waive his rights, and provided a taped statement.
The State charged Gentis alternatively with intentional second degree murder and felony murder based on the predicate crime of second degree assault. Before trial, Gentis moved to suppress his statements to police. The court found Gentis's statements voluntary, his remarks about a lawyer an equivocal assertion of his rights and the police response a permissible clarification of that equivocal assertion. The court therefore denied the motion.
The jury rejected Gentis's claim of self-defense and found him guilty in separate verdicts of both alternative means of committing the crime. At sentencing, the court agreed with the State's proposal that the court find the two counts merged and sentenced Gentis for only one of the counts. Gentis appeals.
ANALYSIS
Gentis first challenges the court's admission of his statements to detectives after the officer told Gentis he was going to jail and he responded, "If I am going to jail, then I'd rather speak with an attorney." Gentis contends his response was either an unequivocal assertion of his right to counsel, which meant police were prohibited from any further questioning, or alternatively, was an equivocal assertion of his right, to which police responded improperly by failing to confine further questioning to resolving the ambiguity.
See State v. Grieb, 52 Wn. App. 573, 576, 761 P.2d 970 (1988).
State v. Robtoy, 98 Wn.2d 30, 39, 653 P.2d 284 (1982).
We do not reach this claim. Because Gentis did not challenge the trial court's finding that his statements were voluntary, that finding is a verity. The statements were therefore properly admitted regardless of compliance with Miranda because the State did not admit them in its case in chief, but used them only to impeach Gentis's trial testimony.
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); RAP 10.3(a)(3); RAP 10.3(g). We note that even if we overlooked the lack of the necessary assignment of error, Gentis has not argued that his statements were involuntary in his brief, and has not attempted to remedy either deficiency in his reply brief. See Puget Sound Water Quality Defense Fund v. Municipality of Metro. Seattle, 59 Wn. App. 613, 618, 800 P.2d 387 (1990) (assignments of error unsupported by argument need not be considered on appeal).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State v. Lopez, 74 Wn. App. 264, 270-71, 872 P.2d 1131, review denied, 125 Wn.2d 1004, 886 P.2d 1133 (1994) (statements made in the absence of a valid waiver of Miranda rights were admissible for impeachment purposes as the statements were not the product of police coercion); State v. Greve, 67 Wn. App. 166, 174-75, 834 P.2d 656 (1992), review denied, 121 Wn.2d 1005, 848 P.2d 1263 (1993) (police misconduct was adequately penalized where statements were allowed only for impeachment purposes, and the misconduct did not render the statements inherently unreliable).
Gentis next challenges the trial court's jury instructions defining self-defense as it applied to the alternative count of felony murder. Without assigning error to any one instruction, he argues that "[g]iven the volume of instructions, and a confusing, if not erroneous, reference therein, . . . the jury was improperly instructed on his felony murder charge[.]" We disagree.
Appellant's Brief at 19.
First, complexity of instructions, in itself, is not a "'manifest error affecting a constitutional right'" that may be raised for the first time on appeal. Second, to the extent Gentis's claim is based on the court's Instruction 18, defining the lawful use of force defense to felony murder, any error was invited because the instruction was identical in all material respects to the language in Gentis's proposed instruction. Third, to the extent Gentis's claim is based upon the reference to the defense of justifiable homicide in Instruction 8, the court's definitional instruction for felony murder, it would appear the only potential error from that reference would grant Gentis an extra defense to which he was not legally entitled. Finally, even if Gentis's claim could be considered for the first time on appeal, was not invited error, and had merit, any error was harmless beyond a reasonable doubt. The jury independently found Gentis guilty of the alternative means of intentional murder, for which the self-defense instructions are unchallenged.
See State v. Lord, 117 Wn.2d 829, 849, 822 P.2d 177 (1991) (quoting RAP 2.5(a)(3)).
In re Personal Restraint of Thompson, 141 Wn.2d 712, 723-724, 10 P.3d 380 (2000) (the rule of invited error prohibits a party from assigning error on appeal when that party has acted affirmatively in some way to set up the claimed error); see State v. Studd, 137 Wn.2d 533, 546-547, 973 P.2d 1049 (1999).
See State v. Dennison, 115 Wn.2d 609, 616, 801 P.2d 193 (1990) (because one who kills a victim in the course of felonious criminal activity is strictly liable under the felony murder rule, he is not entitled to justifiable homicide self-defense instructions, but must rely instead on self-defense as to the underlying felony).
C.f. State v. Stein, 144 Wn.2d 236, 27 P.3d 184 (2001) (absent a special verdict to enable the jury to clarify the basis of the conviction, instructional error not harmless when jury could have convicted on both valid and invalid theories).
Gentis also challenges his judgment and sentence as inaccurate and violative of double jeopardy for failing to make it clear that he was convicted of only one murder. We accept the State's concession that remand is required. When, as here, alternative theories of liability for an offense are presented, there is no double jeopardy error in allowing the jury to reach separate verdicts based on each theory. But the judgment and sentence must make it clear not only that the defendant receives only one sentence, but that he is convicted of only one crime. We remand for amendment of the judgment and sentence.
See State v. Johnson, 113 Wn. App. 482, 54 P.3d 155 (2002).
State v. Michielli, 132 Wn.2d 229, 238, 937 P.2d 587 (1997); State v. Trujillo, 112 Wn. App. 390, 409-10, 49 P.3d 935 (2002).
Johnson, 113 Wn. App. at 488. We note that the trial court was aware of the potential problem and was apparently misled by the State into believing the language it used sufficiently addressed the issue.
Gentis raises numerous pro se claims in a statement of additional grounds for review. All are without merit.
Gentis's challenge to the felony murder verdict under In re Personal Restraint of Andress fails because his crime occurred after the statutory amendment expressly authorizing felony murder based on assault. His double jeopardy complaint is answered by our resolution of his counsel's claim. Gentis's argument that the trial court did not complete the CrR 3.5 hearing is based on a misunderstanding of the court's proper reservation of an ER 404(b) issue during the CrR 3.5 hearing and limitation on the defense introduction of his statements because of the State's hearsay objection. Gentis's complaint that the court allowed the prosecution to use excluded evidence fails for the same reason. Gentis's contention that the court erroneously failed to stop the prosecutor from referring to the golf club as a murder weapon fails because that was a reasonable inference to draw from the evidence. And Gentis's complaint about hypothetical questions the prosecutor asked in voir dire fails because he does not establish any likelihood of an effect on the verdict.
Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), superseded by statute, RCW 9A.32.050 (2003), as recognized in State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005).
In 2003, the legislature responded to Andress by expressly including assault as a predicate felony for second degree felony murder, RCW 9A.32.050(1)(b). Laws of 2003, ch. 3, § 2.
Gentis's many pro se claims of ineffective assistance fail for want of the necessary showing of deficient performance and resulting prejudice. Failing to move for a change of venue was not deficient performance because the record did not show prejudicial publicity. Gentis's complaint that his attorney waived reading of amended charges contrary to his direction is based on facts outside the record and cannot be considered here. His allegations about his medication during trial and his attorney allowing him to testify fail for the same reason. The record belies Gentis's charges that his attorney failed to review discovery, investigate his case or move to suppress his statements. Gentis's claim that his counsel failed to inform him of a plea offer fails because he has not shown there was an offer to plead to a lesser charge. His contention that his counsel erred by failing to call certain witnesses is without merit because he has not made a sufficient showing of their testimony. Gentis's charge that his counsel failed to object to improper argument fails because he has not shown the argument improper. Finally, as for Gentis's complaint that his counsel did not request a lesser offense manslaughter instruction for the intentional murder charge, he has not shown he would have been entitled to the instruction on the facts, that foregoing such an instruction was an unreasonable tactic even if he were entitled, or a reasonable possibility the instruction would have changed the trial's outcome in any event.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Crudup, 11 Wn. App. 583, 586-87, 524 P.2d 479 (1974).
McFarland, 127 Wn.2d at 335.
State v. Stovall, 115 Wn. App. 650, 660, 63 P.3d 192 (2003); In re Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992).
See State v. Schaffer, 135 Wn.2d 355, 358, 957 P.2d 214 (1998) (defendant entitled to manslaughter instruction in self-defense case if evidence affirmatively shows he reasonably believed he was in imminent danger but recklessly or negligently used more force than necessary to repel the attack).
State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996); State v. King, 24 Wn. App. 495, 498-99, 601 P.2d 982 (1979).
Gentis's additional claims of prosecutor misconduct, to the extent not addressed above, also fail. Gentis misunderstands the record of the CrR 3.5 hearing, misinterprets legitimate appeals to common sense and disregards the wide latitude counsel has to argue inferences from the evidence.
The conviction of second degree murder is affirmed, and the case is remanded for correction of the judgment and sentence to clarify that Gentis was convicted of only one crime of second degree murder.