Opinion
No. 61337-5-I.
February 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-08411-4, Richard D. Eadie, J., entered February 19, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Becker and Lau, J J.
Mark Hays appeals his judgment and sentence for one count of third degree assault and one count of obstructing a law enforcement officer. There was substantial evidence of multiple acts for each charge, but the facts in this case show a continuing course of conduct for each of the two charges. Accordingly, we hold that neither conviction violates Hays's constitutional right to a unanimous jury verdict. There is nothing in the statement of additional grounds that merits relief in this appeal. We affirm.
On the Friday after Thanksgiving, 2007, Hays was spending time in Seattle's University District. At some point during the day, he became acquainted with a man named Michael Lujan. According to Lujan, he and Hays shared a pitcher of beer at a tavern on University Way NE ("the Ave").
Hays and Lujan left the tavern and walked north on the Ave on the west side of the street. As the two men jaywalked at the crosswalk at the intersection of NE 45th Street and the Ave, a black Lincoln Navigator stopped in front of them, blocking their path. Lujan threw his hands up and said something to the effect of "[w]hat the f___, are you trying to kill me?"
The Navigator was occupied by four Seattle Police Department officers. The vehicle did not have lights, sirens, or police markings. The officers wore plainclothes but were also wearing vests with police badges affixed to the front and patches on the front and back reading "Police."
The parties dispute the details of what happened next. But they agree that some of the police officers exited their vehicle and approached Lujan to discuss the jaywalking the officers just witnessed. This escalated to the point where a physical fight erupted, involving some of the officers, Lujan, and Hays. At the end of the fight, the officers arrested Hays and took him into custody.
The State charged Hays with one count of third degree assault and one count of obstructing a law enforcement officer. A jury convicted him as charged.
Hays appeals.
JURY UNANIMITY
Hays argues that his constitutional right to a unanimous jury verdict was violated on both counts of his conviction because there were multiple acts to support each charge, no Petrich instruction was given by the judge, and the State did not elect which of the multiple acts on which it relied for conviction for each charge. We hold that the evidence of each charge constituted a continuing course of conduct. Thus, there was no violation of Hays's constitutional right to a unanimous jury.
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984) ("[A] defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed.").
"A fundamental protection accorded to a criminal defendant is that a jury of his peers must unanimously agree on guilt." Where multiple acts are alleged, each of which could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, either the state must elect the particular criminal act upon which it will rely for conviction or the trial court must instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007) (citing Const. art. I, § 21; State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980)).
State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988).
Id. (citing State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984)).
The Petrich rule "applies only where the State presents evidence of `several distinct acts.'" It does not apply where the evidence indicates a "continuing course of conduct." To determine whether criminal conduct constitutes one continuing act, the facts must be evaluated in a common-sense manner. For example, where the evidence involves conduct at different times and places, then the evidence tends to show several distinct acts rather than a continuing course of conduct.
State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (quotingPetrich, 101 Wn.2d at 571).
Id.
Id.
Id.
In State v. Crane, the court found that the continuing course of conduct exception applied where a victim died of injuries inflicted during a specific two-hour period. The court said that Petrich did not apply because the evidence supported "only a small time frame in which the fatal assault could have occurred." Similarly, in State v. Handran, the court found that the continuing course of conduct exception applied because the defendant, who was charged only with burglary, broke into his ex-wife's residence and repeatedly assaulted her at the same place during a short period and for the same purpose (to obtain sex).
116 Wn.2d 315, 804 P.2d 10 (1991).
Crane, 116 Wn.2d at 326-30.
Id. at 330.
113 Wn.2d 11, 775 P.2d 453 (1989).
Handran, 113 Wn.2d at 17-18.
Assault in the Third Degree
Here, the State charged Hays with assault in the third degree in violation of RCW 9A.36.031(1)(g). Neither the State nor Hays requested aPetrich instruction, and the court did not give one.
Under the statute, a person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree, assaults a law enforcement officer who was performing his or her official duties at the time of the assault. The term "assault" is defined by the common law. The court instructed the jury using a pattern instruction: "An assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person." Thus, for the purposes of this case, the State needed to prove that Hays intentionally touched or struck Officer Hanley in a way that was either harmful or offensive.
State v. Wilson, 125 Wn.2d 212, 217-18, 883 P.2d 320 (1994).
In determining what the evidence disclosed, "it is necessary to discern whether the evidence is such that jurors could find more than one event sufficient to convict." With respect to the assault charge, evidence showed that Hays tackled Officer Hanley from behind and that Hays struggled with Officer Hanley once the two were on the ground. In particular, two officers testified that they needed to use physical force to free Officer Hanley from Hays's grasp. Officer Huber testified that Hays was "holding on really tight" and that he initially could not "pry [Hays] off of [Hanley]." Officer Hanley testified that Hays was "on top of" him, and that "I initially tried to push [Hays] off of me, but that didn't work. It wasn't something I was immediately able to extricate myself from, so I began fighting him."
State v. Hanson, 59 Wn. App. 651, 657 n. 6, 800 P.2d 1124 (1990) (additional emphasis added).
There was also evidence characterizing the events on the ground. For example, Officer Hanley testified that upon freeing himself from Hays's grip, he observed that "[Hays] was on the ground, struggling with Officer Huber." He further testified that "[t]here was obviously a fight going on there."
Report of Proceedings (Feb. 5, 2008) at 205 (emphasis added).
Id. (emphasis added).
We note that the jury instructions expressly identified Officer Hanley as the person against whom the alleged assault occurred. Based on the evidence we discussed above, a rational juror could find that all of the acts of assault against Officer Hanley occurred at the same place and over a short period of time. In short, the acts of assault against Officer Hanley fell within the continuing course of conduct rule exemplified in Crane and Handran. No unanimity instruction was required.
Hays also argues, without citation to authority, that the continuing course of conduct principle does not apply here because there were different "criminal objectives" in tackling Officer Hanley and resisting his own arrest. But the criminal objective in both instances was assault. That Hays may have had different motivations for the multiple assaults against Officer Hanley is irrelevant.
State v. Garman does not require a different result. There, the court concluded that multiple thefts constituted a continuing course of conduct where, among other things, the defendants' actions involved a single victim and the defendants had the single objective of stealing revenue from their employer. Similarly, here, Hays's multiple actions were directed toward a single victim and he had the continuing objective of assaulting Officer Hanley.
100 Wn. App. 307, 984 P.2d 453 (1999).
Garman, 100 Wn. App. at 313-17.
In any event, there was substantial evidence of each offensive touching in this case. As the supreme court noted in Handran, even if the acts are distinct, "the error is harmless if a rational trier of fact could have found each incident proved beyond a reasonable doubt." Therefore, where the record shows substantial evidence of each act, "the lack of jury unanimity does not violate a defendant's right to a unanimous jury verdict."
Handran, 113 Wn.2d at 17-18 (citing Petrich, 101 Wn.2d at 573).
Id. (citing State v. Whitney, 108 Wn.2d 506, 511, 739 P.2d 1150 (1987)).
Obstructing a Law Enforcement Officer
The State concedes that there was evidence of multiple acts of obstruction in this case. Nevertheless, it argues that no Petrich instruction was required for the obstruction charge because Hays's efforts to obstruct the officers in their duties were part of a continuing course of conduct. We agree.
The principles of Crane and Handran control here. As discussed above, the evidence presented at trial included evidence that Hays tackled Officer Hanley, struggled with the officers on the ground, conducted offensive touching against Officer Hanley while on the ground, and refused to obey commands to cease resisting.
A person commits obstruction by willfully hindering, delaying, or obstructing officers in the discharge of their official powers or duties. Here, Hays's acts occurred within a very short time frame and against the same officer. And from the time that Hays allegedly tackled Officer Hanley to the time that the officers had him physically restrained, he was engaged in a continuing, uninterrupted effort to prevent the officers from performing their duties — namely, to investigate the pedestrian interference and the assault against Officer Hanley, and to gain control of Lujan and Hays.
Clerk's Papers at 22 (Jury Instruction No. 8); RCW 9A.76.020(1).
Hays argues that the acts, assuming they happened, were distinct because his "criminal objective" in tackling the officer would have been to hinder Lujan's arrest, while his objective in struggling on the ground would have been to prevent his own arrest. We are unpersuaded by this argument largely for the same reasons we rejected it for the third degree assault conviction.
STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds, Hays asks us to consider arguments and evidence that he claims to advance in a personal restraint petition. He also argues that the prosecutor committed misconduct during closing argument when he stated that the jury should "not . . . search for reasonable doubt." Lastly, he claims his counsel was ineffective. We decline to address the first argument and find the second and third arguments unpersuasive.
First, a personal restraint petition is a separate proceeding from an appeal. We decline to address matters he raises in the former proceeding in this appeal.
Second, he claims prosecutorial misconduct based on a statement by the prosecutor during closing argument.
A defendant claiming prosecutorial misconduct bears the burden to establish that the prosecutor's conduct was both improper and prejudicial. "Any allegedly improper statements should be viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions."
State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006).
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
"Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request." The absence of a contemporaneous objection strongly suggests that the comments did not appear critically prejudicial to the defendant in the context of trial. Failure to object to a prosecutor's improper remark constitutes waiver unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.
State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995).
State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Id.
During closing rebuttal arguments, the prosecutor stated:
Your job is not to search for reasonable doubt. You will see in the instructions that if you have an abiding belief in the charge, then the state has met its burden. I ask you not to search for reasonable doubt, but to search for the truth in this matter and render a truthful verdict.
Report of Proceedings (Feb. 11, 2008) at 386.
Report of Proceedings (Feb. 11, 2008) at 386.
Hays's failure to object to the prosecutor's statements strongly suggests that the comments did not appear critically prejudicial in the context of trial. Hays has not met his burden to prove that the prosecutor's statement was so flagrant and ill-intentioned that it could not have been cured by a prompt instruction to the jury. Accordingly, we do not address his argument any further.
Hays next argues that he was denied effective assistance of counsel because his counsel failed to object to the alleged prosecutorial misconduct. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the verdict would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. If one of the two prongs of the test is absent, we need not inquire further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336.
Matter of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Here, Hays argues that his trial counsel should have objected to the prosecutor's statement during her closing argument that the jury should "not . . . search for reasonable doubt."
Hays contends that there is no conceivable tactical advantage in allowing jurors to begin deliberations immediately after being told that it is not the their job to search for reasonable doubt.
But even assuming that counsel's failure to object was deficient, Hays has not shown that the remarks prejudiced the outcome of his trial. As discussed above, the court instructed the jury on the proper burden of proof and the proper source of the law. The prosecutor's improper remarks were brief in the context of her entire closing argument. And the State presented sufficient evidence of Hays's guilt at trial that there is no reasonable probability that the outcome of the trial would have been different had counsel objected to the remark and a curative instruction had been given.
Because of the manner of our resolution of this case, we need not address whether the State made an election during closing argument. Moreover, we need not address whether the election here, if any, was sufficient to meet constitutional standards.
See State v. Kier, 164 Wn.2d 798, 811-14, 194 P.3d 212 (2008) (suggesting that closing argument alone cannot constitute a "clear election" that satisfies the constitutional right to juror unanimity in a verdict).
We affirm the judgment and sentence.
WE CONCUR: