Opinion
No. 28390-9-III.
Filed: March 8, 2011.
Appeal from a judgment of the Superior Court for Asotin County, No. 09-1-00082-6, William D. Acey, J., entered August 21, 2009.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Korsmo, A.C.J., and Sweeney, J.
Ryan Yarborough appeals his convictions for first and second degree assault with a deadly weapon as well as his conviction for fourth degree assault on the grounds of insufficient evidence, prosecutorial misconduct, errors resulting from setting the sentencing hearing for the day after trial, and improper jury instructions. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In May 2009, a small gathering took place at Stacey Laib's apartment in Clarkston, Washington. Among those in attendance were Laib's daughter, Crista Ansel, and Ansel's boyfriend, Dustin Billings, who also lived in the apartment. Four guests attended, including Mr. Yarborough and his good friend, Robert Dittemore.
Mr. Yarborough brought his dog, a pit bull, to the Laib home and shortly after their arrival, Mr. Yarborough's dog began to fight with Ms. Laib's golden retriever and Mr. Billings' pit bull. Mr. Yarborough and Mr. Billings tried to separate the dogs, but scrapping between the pets led to argument and a fistfight between the two men. After the fighting stopped Ms. Laib asked Mr. Yarborough to leave, which he did; before leaving, he shook hands with Mr. Billings. During the evening quite a bit of beer was consumed by everyone except Ms. Ansel, who was pregnant and was not drinking, and before long most of the guests left or went to bed. Mr. Dittemore and another guest Lance Shingleton remained, visiting on the back porch.
Late in the evening, while Mr. Dittemore and Mr. Shingleton were still around, Mr. Yarborough returned with his dog. He rushed the back entrance, yelling that he was going to kill Billings. Mr. Dittemore tackled Mr. Yarborough to prevent him from entering and Mr. Billings, hearing the commotion, came outside with his dog, at which point the pit bulls began to fight again. As Mr. Billings tried to separate the dogs, Mr. Yarborough wielded a knife and attempted to stab Mr. Billings in the back. Mr. Dittemore jumped in and tried to grab the knife but he missed and caught Mr. Yarborough's blow with the knife in his own chest. Mr. Dittemore took Mr. Yarborough to the ground and Mr. Yarborough stabbed him a second time, this time in the thigh. Mr. Shingleton joined the attempt to disarm Mr. Yarborough and was stabbed in the knee. Mr. Yarborough then ran from the apartment.
The police were called and upon arriving were told which direction Mr. Yarborough had fled; they found and arrested him in an alley. When officers approached him, Mr. Yarborough appeared to toss something away. Mr. Yarborough was carrying a retractable blade box knife at the time of arrest. The next morning a neighbor discovered a sportsman's fillet knife with a three-and-three-quarters-inch folding blade, in two pieces, in her yard.
On the first day of trial, the prosecutor notified the court that he had received information about possible witness tampering by Mr. Yarborough's mother and sister and explained why he wanted the mother, Sherry Yarborough, excluded from the proceedings:
I've been provided with information that Mr. Yarborough through his mother and sister have been in contact with several of the State's witnesses. I've [sic] told them that they didn't have to testify and encouraged them not to testify. In fact I have information that one of the witnesses received a present, a gift, a dog from the defendant's mother in exchange for good feelings and a promise not to testify. We're investigating that and I believe that we will probably be taking legal action against the defendant's mother but in the meantime based on that information we're going to ask that she be excluded from the courtroom.
I Report of Proceedings (RP) at 73. The court ruled that if and when Ms. Yarborough was arrested, it would issue an order prohibiting her contact with witnesses, but not untilthen. Ms. Yarborough was arrested later that afternoon. Following her arrest, the prosecutor asked outside the presence of the jury whether he could question witnesses about inducements made by Ms. Yarborough for helpful testimony. The court ruled that he could not. II RP at 106. No evidence of inducements or tampering was introduced.
During trial, the prosecutor questioned one of the investigating officers, Sergeant Dan Combs, about a photograph he had taken of the knife found near the scene and interviews of witnesses to whom the sergeant had shown the picture. The following preliminary questioning occurred:
[Prosecutor]: Okay. Did you have an opportunity to show the knife to any of the other witnesses in the case?
[Sergeant Combs]: I showed a photograph of the knife.
[Prosecutor]: A black and white photograph or a color photograph?
[Sergeant Combs]: A color photograph that I had with me, the actual photograph.
[Prosecutor]: So you never showed anyone a black and white picture of the knife?
[Sergeant Combs]: No.
[Prosecutor]: So if somebody saw a black and white picture of the knife, that didn't come from you?
[Sergeant Combs]: No.
[Defense counsel]: Objection Your Honor. Calls for speculation.
Judge: Overruled.
[Prosecutor]: If someone was looking at a black and white picture it didn't come from you did it?
[Sergeant Combs]: No.
RP (Aug. 20, 2009) at 76. The sergeant testified without objection that several witnesses he interviewed identified the knife in the photograph as the one used by Mr. Yarborough. Following that questioning, the following exchange occurred:
[Prosecutor]: So of all the witnesses you showed the knife to, there was no hesitation on any of them in making an identification, is that accurate?
[Defense counsel]: Objection Your Honor, that's a mischaracterization of Mr. Combs' testimony.
Judge: Overruled.
[Prosecutor]: Is that an accurate statement?
[Sergeant Combs]: Absolutely, I had no doubt that they, what they told me was the truth, that they believed that was the knife that was used.
Id. at 77. No objection was made to Sergeant Combs' last statement.
During the prosecutor's closing argument, he made the following statements suggesting that something had tainted Ms. Ansel's testimony:
At some point he pushed or punched [Crista] Ansel. Now [ Crista] Ansel, and I can't tell you why she testified the way she did, why she minimized everything, but she testified yes in fact Mr. Yarborough pushed her. She said yeah, but I pushed him first. Ladies and gentlemen that's not self-defense. That's retaliation. No one eve [sic] testified that the defendant pushed [ Crista] Ansel in self-defense. In retaliation is what she said. But it's interesting because Justin Billings said that's not the way it happened. He punched her. Punched her in the stomach and she was pregnant. Again I can't tell you why [ Crista] Ansel testified the way she did. . . . You heard during opening arguments something about an invitation to come back, some sort of, he was invited. Did you hear anyone testify, [ Crista] Ansel said something strange about the fact that he said he was coming back and no one told him he couldn't. But no one else could do that, and she isn't even the one who said it. I don't know why she testified the way she did but you have got to make up your own mind on that.
Id. at 100-01 (emphasis added).
When the witnesses were shown the knife they all confirmed that this was the knife they saw in the defendant's hand at the time of the stabbing.
Okay, that was the timeline they gave you. What about, what didn't prove true? What wasn't confirmed by evidence? [ Crista] Ansel says no when, when I saw the black and white picture of the knife I wasn't sure. Who showed [ Crista] Ansel the black and white picture? It wasn't the officer. Where is she, who is working on her?
Id. at 103-04 (emphasis added).
When it was defense counsel's turn to close, she argued that
the State glossed over a whole lot of inconsistencies. Chiefly, did not, discounted [Crista] Ansel's testimony probably because [Crista] Ansel's testimony was the most shall we say friendly to Mr. Yarborough. But she was also the one who was sober. Of all the folks who testified Lance Shingleton, Robert Dittemore, Dustin Billings, and Joe Farance, every single one of them had been drinking. And some were more intoxicated than others. She had not been drinking.
Id. at 111, and:
Now again the State points out quite a bit about [Crista] Ansel's testimony, don't know why she testified the way she did and basically minimized, horribly minimized what she had to say. And perhaps that's because what she had to say didn't meet what the State wanted. But that will be up to you to judge her credibility.
Id. at 114-15. In rebuttal, the prosecutor argued:
[Defense counsel] tells you that [Crista] Ansel was friendly to the defense. I told you I couldn't say why she did what she did, maybe [defense counsel] just told you why.
Id. at 117. The prosecutor also stated during rebuttal that "[s]omebody else is showing black and white pictures." Id. at 119-20.
Defense counsel never objected to any of these statements.
The jury convicted Mr. Yarborough of first degree assault on Mr. Dittemore, second degree assault on Mr. Shingleton, and fourth degree assault on Mr. Billings. It answered "yes" to special interrogatories asking whether Mr. Yarborough had been armed with a deadly weapon at the time of the assaults on Mr. Dittemore and Mr. Shingleton. Jurors had been instructed they must answer the special verdict form unanimously. Clerk's Papers (CP) at 52.
The court scheduled sentencing to occur the following morning. Defense counsel did not object. At sentencing, the prosecutor reported that the victims were unable to attend due to the limited notice, but informed the court that they would have asked for leniency if able to be present. The court sentenced Mr. Yarborough to a midrange sentence of 243 months. This appeal followed.
After the appeal had been fully briefed, Mr. Yarborough requested leave to submit a supplemental brief raising an issue of instructional error based on an intervening decision of the Washington Supreme Court in State v. Bashaw, 169 Wn.2d 133, 145-48, 234 P.3d 195 (2010). We grant Mr. Yarborough's motion and address the supplemental issue in this opinion.
ANALYSIS
I. Insufficient Evidence
Mr. Yarborough argues that the prosecution failed to prove the elements required for his first degree assault conviction beyond a reasonable doubt. He challenges only the sufficiency of the evidence to prove that he intended to cause great bodily harm.
In reviewing a defendant's challenge to the sufficiency of the evidence we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Substantial evidence means evidence in the record of a sufficient quantity to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The State's theory was one of transferred intent: that Mr. Yarborough intended to inflict great bodily harm on Mr. Billings when he stabbed Mr. Dittemore in the chest. The jury was instructed that to convict Mr. Yarborough of the first degree assault count, one of the elements that the State must prove beyond a reasonable doubt was that "the Defendant acted with intent to inflict great bodily harm." CP at 41 (Instruction 12). It was instructed that "[a] person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime." CP at 36 (Instruction 7). It was given the following instruction on transferred intent:
If a person acts with intent to kill or assault another, but the act harms a third person, the actor is also deemed to have acted with intent to kill or assault the third person.
CP at 37 (Instruction 8). It was provided with the following definition of "great bodily harm":
Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
CP at 39 (Instruction 10). The defense had no objection to these instructions, RP (Aug. 20, 2009) at 2-3, which became law of the case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).
Mr. Yarborough argues that even viewed in the light most favorable to the State, the evidence is insufficient to establish an intent to cause great bodily harm in light of the superficial nature of Mr. Dittemore's wounds; the manner in which he wielded the knife, which Mr. Yarborough characterizes as "swinging the knife around" rather than "lunging"; and the relationship between the parties, which was friendly, even the initial fight with Mr. Billings having concluded with a handshake. Br. of Appellant at 10-11. He argues that the more serious of Mr. Dittemore's wounds, the chest wound, was only a little more than an inch deep and required only two stitches; the thigh wound was treated with a Band-Aid. He discounts Mr. Dittemore's testimony that Mr. Yarborough was threatening to kill Mr. Billings as uncorroborated by any other witness.
But the jury was entitled to credit the evidence it found credible and substantial evidence was presented from which the jury could find Mr. Yarborough guilty of the charge. There was testimony that a short while before the stabbing, Mr. Yarborough got into an argument and fistfight with Billings; that after being asked to leave, Mr. Yarborough returned armed with two knives; that on his return, Mr. Yarborough was screaming that he was going to kill Billings; that when Mr. Billings came out to the back porch, Mr. Yarborough had the fillet knife in his hand with the blade open; and that Mr. Yarborough tried to stab Mr. Billings in the back but instead stabbed Mr. Dittemore when Mr. Dittemore intervened.
Given the events leading up to Mr. Dittemore's injury and the fact that even with his lunge deflected, Mr. Yarborough landed a blow to Mr. Dittemore's chest that left a wound over an inch deep, there was sufficient evidence for a rational jury to find that Mr. Yarborough was acting with the intent to cause great bodily harm to Mr. Billings when he stabbed Mr. Dittemore.
II. Prosecutorial Misconduct
Mr. Yarborough argues that he is entitled to a new trial because of two instances of prosecutorial misconduct: that the prosecutor (1) disparaged defense counsel during closing by implying that defense counsel tampered with a State's witness and (2) elicited the opinion of a police sergeant that the State's witnesses were telling the truth when they identified the sportsman's knife as the weapon used by Mr. Yarborough.
A defendant claiming prosecutorial misconduct must establish both the impropriety of the prosecution's comments and their prejudicial effect. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Comments are prejudicial only where "there is a substantial likelihood the misconduct affected the jury's verdict." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). A defendant who fails to object to an improper comment waives the error unless the comment is "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice" that a curative instruction could not have neutralized. Id. Disparaging Counsel. During closing argument, the prosecutor repeatedly suggested that there was something suspect about Ms. Ansel's testimony and that he could not tell the jury why she was minimizing Mr. Yarborough's conduct. He insinuated an explanation by reminding the jury of Sergeant Combs' testimony that the police photograph of the sportsman's knife was a color photograph and then arguing that someone showed Ms. Ansel a black and white picture — and if it was not Sergeant Combs, then "Where is she, who is working on her?" RP (Aug. 20, 2009) at 104.
The State defends the prosecutor's argument about Ms. Ansel's testimony as suggesting only that "there appeared to be a bias." Br. of Resp't at 12. An inference of bias would have been fair, and in a case that involved witnesses who had testified to their history and friendship with Mr. Yarborough could have been argued straight up. The prosecutor's argument, on the other hand, was veiled and implied impropriety.
The State also argues on appeal that since the prosecutor did not say who might have influenced Ms. Ansel's testimony, he might have had Sherry Yarborough in mind. That might be. But the prosecutor had asked the court if he could question witnesses about any inducements by Ms. Yarborough and had been told that he could not, so the jury had no reason to understand the prosecutor to be referring to Ms. Yarborough. If the jurors understood "Where is she, who is working on her?" to mean someone had "worked on" Ms. Ansel, they might well have understood the "she" to be Mr. Yarborough's female defense attorney.
When the State argues in a manner that disparages defense counsel, it is misconduct because it impacts the defendant's constitutional right to counsel. State v. Reed, 102 Wn.2d 140, 146-47, 684 P.2d 699 (1984); State v. Neslund, 50 Wn. App. 531, 561-62, 749 P.2d 725, review denied, 110 Wn.2d 1025 (1988). The prosecutor may not disparage defense counsel's performance of her legitimate function. Reed, 102 Wn.2d at 145-46; State v. Case, 49 Wn.2d 66, 70, 298 P.2d 500 (1965). And prosecuting attorneys are quasi-judicial officers who have a duty to subdue their courtroom zeal for the sake of fairness to a criminal defendant. State v. Fisher, 165 Wn.2d 727, 746, 202 P.3d 937 (2009).
A comment by the State implying that the defense tampered with a witness without evidentiary support is improper, as is alluding to evidence outside the record. But no objection was made by the defense. So the issue on appeal is whether the comments in this case were so "flagrant and ill-intentioned" as to cause "an enduring and resulting prejudice" that a curative instruction could not have neutralized. They were not.
Viewing the record as a whole, we do not believe the prosecutor intended to imply wrongdoing on the part of defense counsel; it is more likely he had Ms. Yarborough in mind. Inferences still should not have been drawn from suspected jury tampering that was not in evidence, but the prosecutor's references were brief and oblique. And since Mr. Yarborough was acquitted of the assault charged for his allegedly punching Ms. Ansel — something Ms. Ansel denied — the jury was evidently not deterred from crediting her testimony.
Vouching. The prosecutor may not elicit testimony from one witness as to whether another witness is telling the truth. State v. Stevens, 127 Wn. App. 269, 275, 110 P.3d 1179 (2005), aff'd, 158 Wn.2d 304, 143 P.3d 817 (2006). Mr. Yarborough argues that the prosecutor improperly elicited the following testimony bolstering the truthfulness of other witnesses:
[Prosecutor]: So of all the witnesses you showed the knife to, there was no hesitation on any of them in making an identification, is that accurate?
. . . .
[Prosecutor]: Is that an accurate statement?
[Sergeant Combs]: Absolutely, I had no doubt that they, what they told me was the truth, that they believed that was the knife that was used.
RP (Aug. 20, 2009) at 77 (emphasis added). The prosecutor did not ask the sergeant to express an opinion on the witnesses' truthfulness; the sergeant volunteered it. While Mr. Yarborough argues that Sergeant Combs' statement was not spontaneous but was the culmination of preparatory questions, the preceding questions dealt only with the witnesses' response to the photograph, not the sergeant's opinion as to their truthfulness.
Nonetheless, an improper opinion was expressed. But the defense did not object to the question other than on grounds that it mischaracterized the sergeant's testimony and did not move to strike the answer as nonresponsive. Under RAP 2.5(a), the issue cannot be raised for the first time on appeal unless it constitutes manifest constitutional error. With respect to opinion testimony, "manifest error" requires a nearly explicit statement by a witness that he or she believes an accusing victim on an ultimate issue of fact. State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007). Kirkman also establishes that jury instructions that "[y]ou are the sole judges of the credibility of each witness" and of "the value or weight to be given to the testimony of each" — instructions given in this case, CP at 29 (Instruction 1) — can be relevant and curative in considering actual prejudice. 159 Wn.2d at 937. As pointed out by the State, Sergeant Combs was not characterized as having any special expertise in witness credibility and the identification of the sportsman's knife was not essential to a finding of guilt. Since the improper opinion does not raise an issue of manifest constitutional error it is not reviewable.
III. Sentencing Irregularities
Mr. Yarborough also argues that deficiencies in his sentencing hearing require resentencing. He argues that holding the sentencing the day after the conclusion of the trial (1) resulted in the sentencing judge failing to consider presentencing reports, (2) denied the victims of the crime their opportunity to ask for leniency prior to sentencing, and (3) prevented defense counsel from presenting mitigating information.
Presentencing Reports. RCW 9.94A.500(1) addresses a variety of presentencing procedures that are required depending upon the crime and provides, in pertinent part, that "the court shall, at the time of plea or conviction, order the department to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense" and that "[t]he court shall consider the risk assessment report and presentence reports, if any." (Emphasis added.) Mr. Yarborough argues that the court was required to order a presentence report in this case but clearly it was not, since Mr. Yarborough was not charged with a crime that mandated ordering such a report. The sentencing judge did not err by proceeding without ordering a presentencing report.
Victim Statements. A victim's right to be heard by a sentencing court is recognized not only by statute but also by the Washington Constitution, RCW 9.94A.500(1); Wash. Const. art. I, § 35. These provisions vest rights in the victims, not the defendant. Nothing in the Sentencing Reform Act of 1981, chapter 9.94A RCW, or constitution grants a defendant the right to have victims present at the sentencing hearing to address the court. In this case, the judge ordered the prosecutor to give the victims notice and it appears that the prosecutor did so. The prosecutor informed the court that the victims would have requested leniency for Mr. Yarborough had they been available to attend. The sentencing judge solicited the gallery for comments prior to sentencing. Nothing in the record indicates that the victims objected or requested that the hearing be continued so that they could give a statement. In light of these facts, the sentencing judge did not err by proceeding with the sentencing hearing without the participation of the victims.
Deprivation of Opportunity To Provide Mitigating Information. Mr. Yarborough argues that the prompt conduct of the sentencing prevented him from providing additional mitigating information to the sentencing judge. But defense counsel agreed to the timing when it was proposed by the judge (answering, "Yes, Your Honor" when asked, "Is that okay with defense counsel?" RP (Aug. 20, 2009) at 125) and never objected to the timing of the hearing thereafter. Defense counsel could have asked for a continuance even beyond the 40-day statutory time period for sentencing if she needed more time, but never did. RCW 9.94A.500(1). Defense counsel spoke on Mr. Yarborough's behalf at the sentencing and Mr. Yarborough waived his right to allocution. Mr. Yarborough has failed to demonstrate error justifying resentencing.
IV. Instructional Error
Mr. Yarborough argues that pursuant to Bashaw, 169 Wn.2d 133, his two deadly weapon sentencing enhancements must be vacated because the jury was incorrectly instructed that it had to be unanimous to answer the special verdict form in the negative. The instruction provided in part, "Because this is a criminal case, all twelve of you must agree in order to answer the special verdict forms" and, "If you unanimously have a reasonable doubt as to this question, you must answer 'no.'" CP at 52 (Instruction 21). Under Bashaw, this instruction is an incorrect statement of law. 169 Wn.2d at 147 (holding that juror unanimity "is not required to find the absence of such a special finding"). Mr. Yarborough did not object to the instruction.
We recently held that instructional error that a jury must deliberate to unanimity to answer "no" to a special interrogatory finding an aggravating factor for a sentencing enhancement is not manifest constitutional error, and cannot be raised for the first time on appeal. State v. Nunez, No. 28259-7-III, 2011 WL 505335 (Wash. Ct. App. Feb. 15, 2011).
Additionally, and even if the challenged instruction constituted manifest constitutional error, the error is harmless, even under the constitutional harmless error standard. Manifest constitutional error is harmless if we "'conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.'" State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). We assume that juries follow instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Mr. Yarborough argues that the error created by the instruction was not harmless based upon the Supreme Court's reasoning in Bashaw, which held that on the facts of that case there was no way to know how the jury would have answered the special verdict form had it received proper instructions. 169 Wn.2d at 147-48.
In this case, the "to convict" jury instructions required the jury to find that the assaults against Mr. Dittemore and Mr. Shingleton were committed with a deadly weapon in order to convict. CP at 41, 43 (Instructions 12, 14). Assuming, as we must, that the jury followed its instructions, it would have considered the deadly weapon special verdict forms only after it had unanimously determined that Mr. Yarborough used a deadly weapon to commit the assaults.
While it is conceivable that a juror would vote to convict Mr. Yarborough of assault with a deadly weapon in order to achieve unanimity on the general verdict but refuse to answer "yes" on the special verdict form, the standard of review asks whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error. There is no reasonable doubt that a juror, having agreed that Mr. Yarborough had used a deadly weapon in committing the assaults for purposes of the general verdict form, would provide the same answer to the same question posed by the special verdict form. Therefore, regardless of whether an error under Bashaw is manifest constitutional error, it was harmless beyond a reasonable doubt.
See, e.g., State v. McNeal, 145 Wn.2d 352, 358-61, 37 P.3d 280 (2002) (upholding logically inconsistent convictions where the general verdict implied that the defendant was operating a vehicle under the influence of drugs for purposes of a vehicular assault conviction, but at the same time by special verdict found the defendant was not under the influence of drugs for purposes of a vehicular homicide conviction arising out of the same facts); State v. Goins, 113 Wn. App. 723, 732, 54 P.3d 723 (2002) (affirming convictions where there was an inconsistency between a guilty verdict on one charge and a special finding on the same charge), aff'd, 151 Wn.2d 728, 92 P.3d 181 (2004).
The State additionally argues that any error was invited error. For the invited error doctrine to apply, the defendant must materially contribute to the error challenged on appeal by engaging in some type of affirmative action through which he knowingly and voluntarily sets up the error. In re Pers. Restraint of Call, 144 Wn.2d 315, 326-28, 28 P.3d 709 (2001); State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996). Based upon the record provided for appeal, Mr. Yarborough did not knowingly and voluntarily set up the error, as he simply failed to object. The invited error doctrine therefore does not apply.
STATEMENT OF ADDITIONAL GROUNDS
Mr. Yarborough filed a statement of additional grounds (SAG) raising the following issues:
Perjury Claims. Mr. Yarborough argues that the prosecution knowingly offered and the court knowingly permitted perjured testimony, thereby violating his civil rights and denying him a fair trial. He cites numerous examples of alleged perjured testimony. Although witnesses testified differently, Mr. Yarborough has not shown, nor does the record support a contention, that any witness knowingly offered false testimony as required to commit perjury. RCW 9A.72.020(1) ("A person is guilty of perjury in the first degree if in any official proceeding he makes a materially false statement which he knows to be false under an oath required or authorized by law."). If Mr. Yarborough wishes a reviewing court to consider matters outside the record, a personal restraint petition is the appropriate means to raise such issues. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
Conflict of Interest Claim. Mr. Yarborough's argument that chapter 36.26 RCW, chapter 43.101 RCW, and WAC 139-15-110 create a conflict between public defenders and law enforcement due to their compensation and training originating from a common source is clearly without merit. RCW 36.26.080 clearly specifies that a public defender's loyalties are to his or her client, not the State.
Ineffective Assistance. Mr. Yarborough contends that he was denied effective assistance of counsel, including through counsel's decision not to call witnesses. A decision not to call witnesses is generally one of trial strategy. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981) (decisions of whether to call witnesses will generally not support claim of ineffective assistance). For failure to call witnesses to amount to ineffective assistance of counsel, that failure must have been unreasonable and must result in prejudice or create a reasonable probability that, had the lawyer presented witnesses, the outcome of trial would differ. State v. Sherwood, 71 Wn. App. 481, 484, 860 P.2d 407 (1993), review denied, 123 Wn.2d 1022 (1994). Mr. Yarborough has not shown prejudice that any such testimony would have changed the trial's outcome here. The evidence of guilt was substantial. Defense counsel's decision not to call witnesses was reasonable given her opportunity to cross-examine nine state witnesses.
Weapon Enhancements. Mr. Yarborough argues that imposition of multiple deadly weapon enhancements violates his rights against double jeopardy and cruel and unusual punishment. Our Supreme Court recently reaffirmed that no double jeopardy violation occurs when the trial court imposes additional punishment based upon the defendant's use of a deadly weapon during a crime. State v. Kelley, 168 Wn.2d 72, 78, 226 P.3d 773 (2010) (citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); State v. Harris, 102 Wn.2d 148, 158-60, 685 P.2d 584 (1984), overruled on other grounds by State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991)). Washington courts also recognize that deadly weapon sentencing enhancements do not amount to cruel and unusual punishment. State v. Portnoy, 43 Wn. App. 455, 464, 718 P.2d 805, review denied, 106 Wn.2d 1013 (1986).
Ineffective Assistance on Appeal. Mr. Yarborough contends that his attorney on appeal committed misconduct by filing a "Standard attorney Meritless and Frivolous Brief," thus denying him his right to an appeal. SAG at 49. Mr. Yarborough has demonstrated neither deficient representation, nor prejudice.
Affirmed.
A majority of the panel has determined that 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.
KORSMO, A.C.J. and SWEENEY, J., concur.