Opinion
Nos. 28476-6-II; 29156-8-II.
June 20, 2006.
Appeals from judgments of the Superior Court for Pierce County, No. 01-1-03444-0, Bryan E. Chushcoff, J., entered February 22 and July 29, 2002.
Counsel for Appellant(s), Kevin Anthony McCann, Pierce Co Prosecutor, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Counsel for Respondent/Cross-Appellant, Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.
Affirmed in part and remanded by unpublished opinion per Hunt, J., concurred in by Quinn-Brintnall, C.J., and Houghton, J.
The Supreme Court has reversed and remanded our decision filed in State v. Wingate, 123 Wn. App. 415, 98 P.3d 111 (2004) (reversed in State v. Wingate, 155 Wn.2d 817, 122 P.3d 908 (2005)). On remand, we address issues we did not consider when we previously reversed Joshua Wingate's assault convictions based on first-aggressor instruction error.
The State appeals Wingate's exceptional sentence downward, arguing that the trial court did not support this sentence with facts or law. Wingate cross-appeals that his trial counsel rendered ineffective assistance, and the prosecutor committed misconduct by arguing facts outside the record. We affirm Wingate's convictions and remand for clarification of the trial court's reasons for Wingate's exceptional sentence downward.
FACTS
We previously described the facts underlying Wingate's convictions in Wingate, 123 Wn. App. at 417-20. Thus, we do not repeat them here.
We originally reversed Wingate's convictions, holding that he did not receive a fair trial because the trial court erroneously gave a first-aggressor instruction, thus precluding the jury's consideration of his self-defense claim. Wingate, 123 Wn. App. at 424. We also noted that sufficient evidence supported Wingate's convictions; thus, we did not reverse based on insufficient evidence. Wingate, 123 Wn. App. at 421.
Anticipating a retrial, we did not address the following other issues presented on appeal, which a retrial would have rendered moot: (1) ineffective assistance of counsel, (2) prosecutorial misconduct, and (3) Wingate's exceptional sentence downward. Wingate, 123 Wn. App. at 424. We now address each remaining argument in turn.
ANALYSIS
I. Ineffective Assistance of Counsel
Wingate argues that he received ineffective assistance of counsel because his trial attorney failed to propose an `actual danger' jury instruction. We disagree.
A. Standard of Review
To demonstrate ineffective assistance of counsel, a defendant must show that (1) his counsel performed deficiently, and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Counsel's performance prejudices a defendant when, but for counsel's unprofessional errors, the outcome of the trial would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Appellate courts afford great judicial deference to counsel's performance. We begin our analysis with a strong presumption that trial counsel was effective. Strickland, 466 U.S. at 689-90; McFarland, 127 Wn.2d at 335. If Wingate fails to satisfy either prong of the ineffective assistance of counsel test, we need not address the other prong. Hendrickson, 129 Wn.2d at 78. Wingate fails to satisfy the prejudice prong; thus, we need not address the deficient performance prong.
B. No Prejudice
Wingate contends that his trial counsel was ineffective in failing to propose an `actual danger' instruction, which would have informed the jury that a defendant can `act on appearances' when defending another, even if there is no actual danger. 11 Washington Pattern Jury Instructions: Criminal 17.04, at 203 (2d ed. 1994) (WPIC). Wingate acknowledges that the trial court gave Instruction 14, which stated it was a defense to the charges if Wingate was `lawfully aiding a person who he reasonably believes is about to be injured.' Clerk's Papers (CP) at 22.
Even assuming, without deciding, that trial counsel's failure to propose an `actual danger' instruction was deficient performance, Wingate does not show prejudice. Instruction 14 essentially instructed the jury in the same manner as WPIC 17.04 would have instructed, similarly emphasizing Wingate's `act on appearances' theory. Instruction 14 did not require proof of actual danger to another; rather, it required only that Wingate `reasonably believe[d]' that Koo or Kim, the third parties here, were about to be injured. Further, Wingate does not show how the outcome of the trial would have differed if the court had given the instruction he now asserts his trial counsel failed to request.
Having failed to meet the prejudice prong of the test, McFarland, 127 Wn.2d at 335, Wingate's ineffective assistance of counsel argument fails. Hendrickson, 129 Wn.2d at 78.
II. Prosecutorial Misconduct
Wingate next argues that the State committed prosecutorial misconduct when it improperly argued facts outside the record during closing argument. Again, we disagree.
A. Standard of Review
A defendant claiming prosecutorial misconduct must establish the impropriety of the prosecutor's comments and their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Wingate failed to object to any of the prosecutor's allegedly improper statements at trial. Therefore, he carries a heavy burden of showing that the prosecutor's comments were `so flagrant and ill-intentioned that [they] cause[d] an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.' Brown, 132 Wn.2d at 561. As with his ineffective assistance of counsel claim, Wingate fails to satisfy his burden here.
B. No Prejudice
In closing argument, the prosecutor referenced a conversation with a friend who teaches firearm safety, in which the friend taught the prosecutor a rhyme to help him understand the legal concept of self-defense. The prosecutor did not, as Wingate claims, argue that Wingate's use of force was unreasonable based on this conversation with the friend. Neither Wingate nor the record shows that these comments were `flagrant and ill-intentioned' or that the comments prejudiced Wingate's case.
Wingate also challenges the prosecutor's closing argument about Feist's and Scott's failure to testify. In rebuttal, the prosecutor argued that Feist had not testified because he was in the military and that Scott had not testified because he had moved to Louisiana. Both facts were in already in the record, introduced through Park's testimony without objection by Wingate. There was nothing improper about these statements.
Thus, Wingate's prosecutorial misconduct argument fails.
III. Exceptional Sentence Downward
In its appeal, the State asks us to reverse Wingate's exceptional sentence downward, challenging all four reasons the trial court listed when it sentenced Wingate below the standard range. Two of the trial court's stated reasons for imposing the exceptional sentence downward are legally and factually sufficient; two are not supported by the record. Because the trial court did not state on the record whether any of its four reasons, standing alone, would be sufficient to justify the lower sentence, we remand for clarification.
A. Standard of Review
RCW 9.94A.585(4) governs our review of an exceptional sentence. We determine the appropriateness of an exceptional sentence by answering a three-pronged question: (1) Does the evidence in the record support the trial court's stated reasons for the exceptional sentence, under the clearly erroneous standard of review? (2) Do those reasons justify departure from the standard range as a matter of law? And (3), was the sentence clearly too excessive or too lenient, under the abuse of discretion standard of review? State v. Ferguson, 142 Wn.2d 631, 646, 15 P.3d 1271 (2001); RCW 9.94A.585(4).
If a trial court has given valid reasons for imposing an exceptional sentence, and if the evidence supports those reasons, the court need not justify the length of the exceptional sentence. See State v. Ritchie, 126 Wn.2d 388, 392, 894 P.2d 1308 (1995).
Under the first prong, we reverse an exceptional sentence only if the trial court's reason is clearly erroneous, meaning that there is not Sevidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises.' State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997) (quoting Olmstead v. Dep't of Health, 61 Wn. App. 888, 893, 812 P.2d 527 (1991)). Under the second prong, mitigating factors listed in RCW 9.94A.535 are valid as a matter of law to justify an exceptional sentence. State v. Whitfield, 99 Wn. App. 331, 335, 994 P.2d 222 (1999).
When a trial court enters multiple reasons for imposing an exceptional sentence, we may affirm even if we uphold only one of the trial court's reasons. State v. Hughes, 154 Wn.2d 118, 134, 110 P.3d 192 (2005). We do not remand for resentencing if we are satisfied that the trial court would have imposed the same sentence based upon a factor or factors that we uphold. Id. Such is not the case here.
B. Mitigating Factors
Here, the trial court listed the following four reasons in support of its exceptional sentence downward: (1) Wingate committed the crimes under duress, coercion, threat, or compulsion; (2) Wingate manifested extreme caution or concern for the victim, Park; (3) the victim, Park, initiated or willingly participated in the incident; and (4) operation of the Sentencing Reform Act's multiple-offense policy resulted in a clearly excessive presumptive sentence. The trial court did not, however, specify that it would have imposed the same exceptional sentence downward based on only one of these four reasons.
Although each of these four reasons is valid as a matter of law under RCW 9.94A.535, two are not supported by sufficient evidence.
1. Duress, coercion, threat or compulsion
The trial court's finding of duress, coercion, threat, or compulsion is not supported by the evidence. Analysis of this mitigating factor closely tracks analysis of the duress defense established by RCW 9A.16.060. State v. Rogers, 112 Wn.2d 180, 183-84, 770 P.2d 180 (1989). This statute creates a defense when `[t]he actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury. . . .' RCW 9A.16.060(1)(a). The duress defense differs from self-defense in that it involves harm to an innocent third party, not harm to the person applying the duress to the defendant. State v. Riker, 123 Wn.2d 351, 365, 869 P.2d 43 (1994).
There is no evidence in the record that anyone pressured, coerced, or otherwise compelled Wingate to shoot Park. Rather it was Park himself who triggered Wingate's response as Park advanced toward Wingate in a threatening manner. But Park's actions toward Wingate relate to Wingate's claim of self-defense, not to a claim of duress. Therefore, the trial court could not base its exceptional sentence downward on this reason.
2. Extreme caution
Similarly, the record does not support extreme caution as a reason for Wingate's exceptional sentence downward. Under RCW 9.94A.535(1)(f), a mitigating factor can be established where `[t]he offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.' But this mitigating factor is stated in the conjunctive, requiring both that the offense be accomplished by another person and that the defendant manifest extreme caution or concern for the victim. State v. Nelson, 43 Wn. App. 871, 876, 719 P.2d 961 (1986), reversed on other grounds, 108 Wn.2d 491 (1987). Either condition on its own is not a legally sufficient reason to justify a sentencing departure downward. Id.
Here, as the trial court acknowledged, `[T]he offense was, of course, principally accomplished by Mr. Wingate.' Report of Proceedings (RP) (1/25/02) at 13. Standing alone, Wingate's apparent concern for Park's welfare, as evinced in part by Wingate's shooting Park in the leg rather than the torso, is, therefore, not a legally sufficient reason for a sentencing departure downward absent a finding that another person principally committed the crime.
3. Victim's initiation and willing participation
A trial court may also impose an exceptional sentence downward when, `[t]o a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.' RCW 9.94A.535(1)(a). Here, the trial court concluded, `The victim for count I, Stephen Park, was the initiator or a willing participant in the altercation that resulted in the defendant assaulting him with a firearm.' CP at 111 (Conclusion of Law I. 1). The record supports this conclusion.
Park went to James Koo's house for the express purpose of confronting Koo, the new boyfriend of Park's former girlfriend, Elizabeth Kim. Three of Park's friends, including Joseph Feist and Chad Scott, followed Park to join the confrontation. When he arrived, Park pulled a sawed-off shotgun out of his car's trunk, cocked it, and returned it to the trunk. Park chased Koo around a truck, pushing Kim in the process.
Wingate, who had arrived separately, saw Park's three friends standing by Park's car; Wingate believed the three were guarding Park's shotgun in the trunk. Wingate pulled out his own gun, for which he had a concealed weapon permit, and instructed the three men to move away from the car. When the three men moved away from Park's car, Wingate removed the shotgun from the trunk.
Park heard someone mention a gun and saw Wingate pointing a gun at Park's three friends. Park went over to the car to `see what was going on.' RP (11/27/01) at 22. Wingate pointed the gun at Park's chest, telling Park that he and the others were `acting like a bunch of little kids' and that Koo did not want to fight. RP (11/27/01) at 28. Park retorted that the matter was none of Wingate's business.
At this point, Park's friend, Feist, produced a gun. When Wingate threatened to shoot if Feist did not drop the gun, Feist placed the gun in the trunk of Park's car. Park then took a step toward Wingate, who was pointing his gun at Park's chest, and asked, `What are you going to do? You going to shoot me?' RP (11/27/01) at 28. Believing that Park was armed and was pulling a weapon from the back of his waistband, Wingate lowered his gun away from Park's torso and shot Park in the leg.
Although the jury apparently rejected Wingate's claim of self-defense, the record includes ample evidence to persuade a fair-minded person that Park either initiated or was at least a willing participant in the assault. Because Park was, `to a significant degree, an initiator, willing participant, aggressor, or provoker of the incident,' we hold that the trial court appropriately relied on this factor to justify Wingate's exceptional sentence downward.
4. Clearly excessive sentence
The Sentencing Reform Act (SRA) requires a sentencing court to include other current and past convictions when computing a defendant's offender score, used to determine the standard sentencing range. RCW 9.94A.589. A sentencing court may depart downward from the standard range if, as here, this method of computing the offender score `results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.' RCW 9.94A.535(1)(g). Among the purposes listed for the SRA are (1) to `[e]nsure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history; [and] (2) [to p]romote respect for the law by providing punishment which is just.' RCW 9.94A.010.
Here, the trial court noted:
Well, I do think this was a more tragic case than one commonly finds. . . . The standard range sentence here . . . is 129 to 171 months, which is pretty much the equivalent of second degree murder. . . . And this for someone of a young age, with no prior criminal history, who really was in a situation where he could have killed Mr. Park if he wanted to, and as far as I can tell intentionally did not do so. . . . .
[G]iving him the equivalent of first degree murder for somebody who was shot in the leg seems to me excessive.
RP (1/25/01) at 12, 14. The trial court found that the standard sentencing range, which was equivalent to that for second degree murder, was clearly excessive in light of the SRA's purposes of proportionality and providing just punishment.
We hold that the trial court's finding was not clearly erroneous in light of the extraordinary circumstances in this case. Accordingly, we affirm the trial court's use of this mitigating factor to justify Wingate's exceptional sentence downward.
C. Not Clearly Too Lenient
Lastly we address whether the trial court, based on its stated reasons, abused its discretion by imposing a sentence that is clearly too lenient. State v. Pascal, 108 Wn.2d 125, 138, 736 P.2d 1065 (1987). We may find that a sentence is clearly too lenient `only if the trial court's action was one that no reasonable person would have taken.' Jeannotte, 133 Wn.2d at 858. The State provides no argument on this point.
We do not find that no reasonable person would have imposed an exceptional sentence downward in light of the facts of this case. Moreover, in light of the exceptional circumstances of this case, there is ample basis to support the trial court's exceptional sentence downward to further the purposes of the SRA. Thus, we hold that the trial court did not abuse its discretion in imposing an exceptional sentence downward, which was not clearly too lenient.
Nonetheless, we must remand for clarification. As we explain above, the trial court based Wingate's exceptional sentence downward on two factors not supported by the record. Because the trial court did not articulate that it would have imposed the same exceptional sentence based on any one of its four stated reasons, we cannot discern on the record before us whether the sentence is clearly authorized by law.
Accordingly, we affirm Wingate's convictions and remand for reconsideration of the trial court's reasons for Wingate's exceptional sentence downward and for possible resentencing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and QUINN-BRINTNALL, C.J., concur.