Opinion
No. 52031-8-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-07705-4. Judgment or order under review. Date filed: 02/21/2003. Judge signing: Hon. Gain Brian D.
Counsel for Appellant(s), William Douglas Barber (Appearing Pro Se), 11314 SE 162nd, Renton, WA 98055.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Andrea Ruth Vitalich, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
William Douglas Barber appeals his conviction for the murder of Carrie Colello and the attempted murder of their children, S.B. and K.B. Barber contends the trial court violated his constitutional rights by allowing the State to introduce testimony that he refused to give a written statement to the police. Barber also claims the prosecutor committed misconduct during closing argument to the jury. Pro se, Barber challenges several of the trial court's rulings and raises several issues including ineffective assistance of counsel and prosecutorial misconduct. Assuming admission of the evidence that Barber refused to give a written statement to the police was constitutional error, we conclude the error was harmless. We also conclude the prosecutor did not commit misconduct in closing argument, and none of the arguments Barber raises pro se warrant reversal. We affirm Barber's conviction for murder in the first degree and two counts of attempted murder in the first degree.
FACTS
Barber and Colello lived together for approximately six years and had two daughters. S.B. was born in June 1996 and K.B. was born in May 1999. Barber worked in construction and Colello stayed home with the children. Barber was also an active member in the Army Reserves and a trained phlebotomist. In late 2000, Colello decided to return to work. She got a job and met new friends. Collelo's interests drifted away from her relationship with Barber. In spring 2001, Colello started dating someone else.
Barber and Colello continued to live together in Renton with their daughters until the end of May 2001. In late May, Colello went away for the weekend and Barber took care of the two girls. When Colello returned, she and Barber fought. Barber broke two kitchen chairs, and a piece of the debris hit Colello. Colello called the police the next morning and obtained a temporary restraining order against Barber. Barber moved out of the house in Renton and moved to his parents' house in Tacoma.
Colello allowed the restraining order to lapse and let Barber spend time with their daughters on weekends. Nonetheless, the State filed a malicious mischief misdemeanor charge against Barber. Barber was concerned about his relationship with Colello and the criminal charge against him. Barber told a friend he `beat up' Colello and he was afraid he would lose her. He was worried he would not be able to see his children. Barber was also worried that the criminal charge would end his career in the Army Reserves. He said, `he would do anything to have the case dropped so he can [sic] stay in the Army Reserve.'
RP (1/15/03) at 817.
Barber began to check up on Colello, calling her friends and driving past her workplace. Barber repeatedly called Colello's friend Will Robertson demanding to know whether he was dating Colello and whether they had a sexual relationship. Barber also called Colello's friend Chris Favre because Barber saw Favre's telephone number on Colello's caller ID. He demanded to know if Favre was having sex with Colello. Barber told Colello's friend Kimberly Ewalt he was having a difficult time believing his relationship with Colello was over and he was jealous. Barber told Ewalt he wanted to reconcile with Colello.
On Friday August 3, Barber picked the girls up at daycare so he could spend the weekend with them at his parents' house. Barber told the daycare provider, Julie Rowley, that he knew Colello had a boyfriend and that she had spent the day with him instead of going to work. During his conversation with Rowley, Barber started to cry. After Barber left, Rowley tried to call Colello to tell her about the conversation.
Barber spent that weekend with his daughters at his parents' house in Tacoma. On Sunday, he left at approximately 5:15 p.m. to return the girls to Colello's house in Renton. He drove his father's pickup truck because he planned to bring a portable carport from the Renton house back to Tacoma. After Barber left, Barber's mother called to remind him that the headlights on the truck were faulty and he could not drive after dark. Mrs. Barber said she would pick up Barber at Colello's house that night if Colello did not return home before dark.
Colello was supposed to return home at 6:00 p.m., but she stayed out with her friend Ewalt until 7:00 p.m. Colello called Barber from Ewalt's house to let him know she was running late. Barber was upset that she was late. Colello told Barber they would talk when she got home. Colello left Ewalt's at approximately 7:20 p.m.
By the time Colello returned home, Barber had fed and bathed the girls and put them to bed. He had also dismantled the carport and put it in the truck. Barber told Colello he wanted to talk about their relationship. Colello said she did not want to discuss their relationship and told Barber to leave. Barber insisted on talking and refused to leave. Colello said she would call the police if he did not leave. When Colello went to the telephone, Barber pulled it out of the wall.
Barber and Colello fought. Barber beat Colello and stabbed her repeatedly with two knives in the face, the back of the head, the heart, one lung, and the liver. He also slit her throat, severing her jugular vein. In an attempt to kill S.B. and K.B., Barber slit their throats.
Meanwhile, Barber's mother was driving Barber's sister, Jessica Barber, and Jessica's boyfriend, Kenneth Wilson, from Tacoma to their apartment in Seattle. Because it was dark and she did not want Barber to drive the truck with faulty headlights, Mrs. Barber decided to stop at Colello's house and get him before dropping off Jessica and Wilson. Mrs. Barber tried to call her son on his cell phone but there was no answer. Mrs. Barber, Jessica and Wilson arrived at Colello's house at approximately 9:00 p.m.
Jessica went to the door and knocked. Barber asked through the door who was there. Jessica told Barber they were there to take him home. Barber opened the door halfway. He was naked and covered in blood. Barber told Jessica he could not go with her because everybody was going to die and he had to kill himself.
Jessica followed Barber into the house and saw two-year-old K.B. lying on the couch, bleeding from the cut in her neck. Jessica found Colello's body on the kitchen floor in a pool of blood. Colello was naked except for her socks. Colello's neck had been slashed, and her right jugular vein severed. Colello had extensive bruising and stab wounds all over her body. The telephone was located near her hand.
Jessica told Wilson to call 911, and went to check on the girls. Jessica thought K.B. looked like she was doing `okay.' Five-year-old S.B. was in her upper bunk bed bleeding from a wound to her neck. After checking on S.B., Jessica talked to the 911 operator. When the operator asked for the address, Jessica asked Barber for it. He responded but she was unable to hear him because "[h]e said it really low and fast." She found the address on a piece of mail and gave it to the operator.
RP (1/22/03) at 1398.
When Mrs. Barber went into the house, she found Barber sitting in a chair near Colello's body, talking to Colello and saying, "If you never loved me, why did you have my kids?" When Mrs. Barber said, "Oh no, Doug, what did you do?" Barber responded, "I've got to die, Mom, I'm going to die." Mrs. Barber then asked, "Did you hurt the babies?" and Barber responded, "I killed their mother, and I've got to die, too. Because the kids need a mother and a father. They don't have a mother, they don't have a father, they don't have anybody." Mrs. Barber followed Barber into the bathroom. Barber told her he had to kill himself. He then tried to stab himself in the neck and cut his wrists. Mrs. Barber convinced Barber to give her the knife, clean himself up and put some clothes on. When Mrs. Barber told Barber he was going to go to jail, he responded, "I know." Mrs. Barber said her son was not acting `really crazy,' but rather he seemed `[r]eal, real down.'
RP (1/16/03) at 1013.
RP (1/16/03) at 957.
RP (1/16/03) at 958.
RP (1/16/03) at 959, 973. Mrs. Barber testified that although she told the police that Barber said he killed Colello, he did not use the word killed, but said, `I did this.' RP (1/16/03) at 960.
RP (1/16/03) at 974.
RP (1/16/03) at 1021-22.
After the police arrived, they took Barber into custody. Barber had cuts on his wrists and neck. Colello was pronounced dead at the scene, and the girls were immediately transported to the hospital. S.B.'s neck wound was so deep that her carotid sheath and her trachea were exposed. K.B.'s wound was similar, but not as deep. Both girls had lost a great deal of blood and probably would have died if they had not received prompt medical attention.
Barber was given Miranda warnings after he was arrested at the house and again in the ambulance on the way to the hospital. While he was at the house and en route to the hospital, Barber made a number of statements to the police and the medics. When Barber was first placed in a patrol car, he complained that his handcuffs were too tight. An officer loosened them. As the cuffs were loosened, Barber said, "Just let me die. It's not worth living." A medic who treated Barber asked him if he knew where he was. Barber responded, "At the house where I used to live with my family." Barber also said, "I love them so much. I missed them so much. I can't believe she threw me out, like trash." Deputy Shannon Green accompanied Barber to Harborview hospital. While he was in the ambulance, Barber responded to questions from the medics about his injuries and said, "I wish I did a better job on myself." When Barber saw Deputy Green he said, "Oh, I probably shouldn't say anything else." But Barber continued talking, saying, "The pain hurts so bad. . . . I did not want to live without my family."
Miranda v. Arizona, 384 U.S. 436, 88 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
RP (1/14/03) at 525.
RP (1/14/03) at 526.
RP (1/14/03) at 527.
RP (1/14/03) at 556.
RP (1/14/03) at 558.
RP (1/14/03) at 556.
At the hospital, Barber was treated for superficial wounds to his wrists and neck. Deputy Green then asked Barber if he wanted to make a written statement. Barber said he did not. Later, Deputy Green transferred Barber to Detective Denny Gulla's custody. Detective Gulla again read Miranda warnings to Barber, and took him to police headquarters. Detective Gulla questioned Barber until he requested an attorney.
Barber was charged with first-degree murder of Colello with a deadly weapon, and two counts of attempted first-degree murder of S.B. and K.B. with a deadly weapon. Barber pleaded not guilty by reason of insanity. After a CrR 3.5 hearing, the trial court ruled all Barber's statements to the police and medics were voluntary and admissible, except Barber's request for an attorney.
Whether Barber was insane and unable to perceive the nature and quality of his acts and tell right from wrong was the focus of the testimony and evidence at trial. Barber's psychiatric expert Dr. Sean M. Killoran diagnosed Barber with major depression, disassociative disorder, and narcissistic personality disorder. In Dr. Killoran's opinion, Barber was in a `narcissistic rage' when he committed the crimes. According to Dr. Killoran, during the narcissistic rage Barber was unable to perceive the nature and quality of his acts and his ability to distinguish right from wrong was impaired.
The State's expert psychiatrist Dr. Mark McClung testified there was no evidence Barber suffered from a mental illness that would render him unable to distinguish right from wrong or perceive the nature and quality of his acts. Dr. McClung also testified that `narcissistic rage' is a theory, not a diagnosis, and cannot ever rise to the level where a person would be unable to distinguish right from wrong. Dr. Thomas Danner, a psychologist from Western State Hospital, testified there was nothing to indicate Barber was acting under a delusion or mental disorder that made him unable to perceive the nature and quality of his acts or to prevent him from knowing right from wrong, and his behavior before, during and after the crimes was `deliberate and purposeful.'
RP (1/29/03) at 59.
After a three-week trial, the jury rejected Barber's insanity defense and found him guilty on all three counts. The court imposed a standard-range sentence of 872 months. Barber appeals.
ANALYSIS Due Process
Barber contends the trial court violated his right to due process by allowing the State to present testimony of Barber's post-Miranda refusal to give a written statement. Post-Miranda silence cannot be used against the defendant at trial and is inadmissible to rebut a claim of insanity. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S. Ct. 634, 88 L. Ed.2d 623 (1986).
The use of the post-Miranda silence to impeach a defendant at trial and to rebut a claim of insanity violates the Due Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. at 618; see also Greenfield, 474 U.S. at 291-93.
Deputy Green accompanied Barber to the hospital. After Barber was treated for the cuts on his wrists and neck, Deputy Green asked Barber if he wanted to make a written statement. Barber said he did not want to give a written statement. Deputy Green had no further conversation with Barber. Later, Detective Gulla took custody of Barber, read him the Miranda warnings again, and took him to police headquarters. Detective Gulla questioned Barber for about 45 minutes until he requested an attorney. Pre-trial, the trial court ruled Deputy Green's testimony that Barber refused to provide a written statement was admissible.
Barber relies on Connecticut v. Barrett, 479 U.S.523, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987), Crosby v. State, 784 A.2d 1102 (Md. 2001), and State v. Heller, 58 Wn. App. 414, 793 P.2d 461 (1990), to argue that his refusal to give a written statement was an invocation of his right to remain silent. The State relies on Barrett and several out-of-state cases to support its contention that Barber did not invoke his right to remain silent. See State v. Lowe, 715 P.2d 404 (Kan. 1986); Crosby, 784 A.2d 1102; State v. Moorehead, 811 S.W.2d 425 (Mo. 1991); State v. Adams, 605 A.2d 1097 (N.J. 1992); and State v. Hendricks, 646 N.Y.S.2d 845 (N.Y.App.Div. 1996). But we need not resolve the question of whether Barber's refusal to give a written statement was an invocation of his right to remain silent, because even if we assume Deputy Green's testimony that Barber refused to give a written statement violated Barber's constitutional right to remain silent, the error was harmless.
A reviewing court should not pass on constitutional matters unless absolutely necessary to a determination of the case. State v. Claborn, 95 Wn.2d 629, 632, 628 P.2d 467 (1981). When the reviewing court determines that the claimed error is harmless by the constitutional harmless error test, then affirmance on that issue is in order and the court need not address the constitutional issue. Id.
A violation of a defendant's constitutional rights is presumed to be prejudicial, but constitutional error may be harmless. State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002). Constitutional error is harmless if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). The State bears the burden of showing a constitutional error was harmless. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).
State v. Stephens, 93 Wn.2d 186, 191, 607 P.2d 304 (1980).
Barber urges us not to apply the constitutional error standard stated in State v. Anderson, 44. Wn. App. 644, 723 P.2d 464 (1986). Under either Guloy or Anderson, any error here was harmless beyond a reasonable doubt.
Here, there was overwhelming untainted evidence that established beyond a reasonable doubt that Barber knew right from wrong and was not insane when he murdered Colello and attempted to murder S.B. and K.B. Mrs. Barber talked to Barber immediately after he killed Colello and attempted to kill S.B. and K.B. Mrs. Barber said her son was not acting `really crazy,' but rather seemed `[r]eal, real down.' When she asked Barber why he hurt the kids, he told her he hurt them because they did not have a mother or a father. When Mrs. Barber told Barber he was going to go to jail, he responded, `I know.' Barber told the medics and the police that he loved his family and he missed them, and he couldn't believe Colello `threw [him] out, like trash.' While he was going to the hospital in the ambulance, Barber said, "She gotta new job and a boyfriend I wanted my family back so bad. I could not live without them. The kids are mine and hers.
S.B. told child interview expert Nicole Farrell that when she woke up, Barber was cutting her neck, and after she saw Barber cutting her neck, `[h]e ran out of the room, because Grandma and Jessica were there.' RP (1/16/03) at 1075.
RP (1/16/03) at 1021-22.
RP (1/16/03) at 974.
RP (1/14/03) at 527.
She did not want to go to counseling. She has no heart. She has a cold heart." When Barber saw the deputy riding in the ambulance he said, "Oh, I probably shouldn't say anything else."
RP (1/14/03) at 554-56.
RP (1/14/03) at 558.
The evidence about how Barber acted and his comments shortly after committing the crimes was consistent with Dr. Danner's testimony that Barber's actions at the time of the crimes were deliberate and purposeful. Even Barber's expert, Dr. Killoran, testified that when Barber and Colello were fighting and she reached for the phone to call 911, Barber realized it was over, the police would come, there would be another restraining order, and he would not see his children anymore. According to Dr. Killoran, it was at that point Barber decided he had to `annihilate' Colello and his daughters. While Dr. Killoran testified that Barber was in a narcissistic rage and was unable to perceive the nature and quality of his acts, both Dr. McClung and Dr. Danner testified that Barber was able to perceive the nature and quality of his acts and to tell right from wrong. Dr. McClung and Dr. Danner both testified that neither a personality disorder nor major depression affected Barber's ability to understand the nature and quality of his actions. Neither Dr. McClung nor Dr. Danner testified that they relied on Barber's refusal to give a written statement to the police as a basis for their opinions regarding his mental state at the time of the crimes.
RP (1/27/03) at 87.
The State only mentioned the testimony that Barber refused to give a written statement once in rebuttal argument. The State argued Barber's statement that he did not want to give a written statement was one factor of many that proved he was able to perceive the nature and quality of his acts.
The defendant, at the scene, when told by his mother, `You're going to jail,' said, `I know.' That alone, that alone, ladies and gentlemen, should convince you beyond any doubt that he knew exactly what he did was wrong. When one of the officers talked to him, the officer said, `Hey, you want to give a statement?' He declined to give a statement, declined to give a written statement, and continued talking about other things. Then he also said, `Well, maybe, maybe I shouldn't say anything more.' Why? Because that, ladies and gentlemen, indicates he knew he was in trouble, he knew he was facing incarceration. Here is a police officer in uniform, cuffs on the defendant, and he knew life as he knew it was over, he was caught. And now he comes before you and want you to wash his hands for him of all of the blood and of all of the actions that he committed on the simple theory, the unsupported theory that he had narcissistic rage. A theory proposed by Dr. Killoran, who we have already told you is simply uncredible and unbelievable.
RP (1/30/03) at 89-90.
We conclude beyond a reasonable doubt that the jury would have reached the same result absent the testimony that Barber refused to give a written statement. Any error in admitting evidence of Barber's refusal to give a written statement was harmless and does not require reversal.
Prosecutorial Misconduct
Barber contends the prosecutor committed misconduct during closing and rebuttal argument to the jury. A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. In re Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998). In determining whether a prosecutor's remarks require a new trial, this court must view them in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). If the defendant did not object, the issue of prosecutorial misconduct is waived unless the misconduct was 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. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
First, Barber contends the prosecutor improperly suggested Barber's daughters may have witnessed the attack on Colello or might have been attacked first as revenge against Colello. Barber did not object to this argument but claims the prosecutor improperly appealed to the jurors' emotions and the argument was contrary to the evidence.
After describing the struggle that must have taken place between Barber and Colello, and the neighbor's testimony that he heard yelling and screaming coming from the house, the prosecutor said, `Do you think it's possible that [S.B.] or [K.B.] or both woke up to see their father, knives in hand, attacking their mother, slashing her throat several times, stabbing her in the abdomen and chest several times, and just pummeling her, beating her and killing her?' RP (1/30/03) at 20. The prosecutor also said that while Dr. Killoran assumed Colello was killed before Barber attacked the girls, we don't know if that's how the sequence of events took place. We don't know that, perhaps, the defendant, in an attempt to get back at Ms. Colello, to get revenge, and to teach her a lesson, and to take away the two most dearest things to her, that perhaps the defendant first wanted actually to take the lives of his two girls. It is possible. We don't know if that happened or not, or maybe even, as I stated, [S.B.] or [K.B.] or both were awakened to the cries and screams for help from their mother, woke up and wandered over to the kitchen and saw something they shouldn't see.
RP (1/30/03) at 25.
The prosecutor has a duty to `seek a verdict free of prejudice and based on reason.' State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1984). In closing argument, the prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-5, 804 P.2d 577 (1991). But it is improper to present argument not based on the evidence that appeals to the jury's passion and prejudice. State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993). Barber relies on the testimony of child interview expert Nicole Farrell to show the argument was contrary to the evidence. Farrell testified five-year-old S.B. told her she woke up when Barber started cutting her neck, and he `ran out of the room, because Grandma and Jessica were there.' But the evidence presented at trial established that a neighbor standing several houses away heard loud screaming from Colello's house. The evidence also established that K.B.'s blood was in her bed, she was found on the couch in the living room in a second pool of blood, and the couch where she was found was visible from the kitchen where Colello was killed. It is reasonable to infer from the evidence that the children witnessed their mother's murder. The prosecutor's statements did not impermissibly appeal to the jury's emotions and were based on reasonable inferences from the evidence.
RP (1/16/03) at 1075.
Next, Barber relies on State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984), to argue the prosecutor impermissibly attacked his insanity defense by disparaging his expert's reliance on Barber's self-report. In Reed, the State repeatedly called the defendant a liar, said the defense did not have a case, the defendant was `clearly a `murder two',' and implied the defense experts should not be believed because they were from out of town and drove fancy cars. Reed, 102 Wn.2d at 146. The Court concluded these statements were improper and not harmless error. Reed, 102 Wn.2d at 147. In Reed State's evidence of intent was not overwhelming and the State's comments attacked the evidence supporting the defendant's theory that he could not form the requisite intent.
Here, the prosecutor argued in closing that Dr. Killoran's testimony was not credible because he relied exclusively on Barber's own statements and did not obtain information about Barber from anyone else. In closing statement, defense counsel pointed out that the State's experts also relied on Barber's self-reporting to form their opinions and also argued the State's expert testimony required the jury to speculate. Defense counsel then reiterated that the jury could not base its decision on speculation or conjecture. In rebuttal, the State responded that all the experts were to a certain extent relying on speculation because they relied on Barber's statements.
Speculation? You want to know who is doing the speculating here? The witnesses who are doing the speculation are the doctors. And with all due respect to psychologists and psychiatrists, Dr. Killoran, I think even Dr. Killoran admitted that this work, their profession, is part art and part science. You have a perfect example here, that most of what goes on in here is speculative. You have three people, three people, educated, went to medical school, have credentials, did a lot of stuff, who cannot come to an agreement as to what type of mental disorder the defendant was experiencing. What does that tell you? That tells you that to some extent, this claim of insanity is speculative, unreliable, because you can never — no one can ever really, really know what goes on in the mind and heart of someone else. You can look at history, you can look at patterns, you can read medical journals, you can read literature, but for everyone who says A, you probably can find at least one person who will say B.
RP (1/30/03) at 84-5.
[Defense counsel] comments about how our experts also rely on the defendant's self-reporting. That's the point, ladies and gentlemen, these experts are at the mercy of the defendant. They have own [sic] his words to take, there is nothing else they can do. He is claiming amnesia and he under reports things. He hides things, he lies about the violence in his past relationships, and if he is gong to do that when he is being evaluated by his own expert, how can you believe anything he has to say? How can you believe the amnesia when he tells us that in a case like this, it is faked, and if that is faked and he lies about how he abused Michelle Johnson? How can anyone — how can anyone trust a report that's generated based on the defendant's self reporting. Two of our experts against one of their experts, that alone, mathematically negates their claim of insanity. But their expert, their expert told you that he regards everything the defendant told him with a high level of suspicion, and that's exactly how you must view the report.
RP (1/30/03) at 90-91.
Here, the prosecutor was responding to defense counsel's argument. The prosecutor referred not only to Dr. Killoran's testimony that he relied on Barber's statement but also to the testimony of the State's experts who also relied on Barber's statements. Unlike the statements in Reed, the State's argument, when viewed in context, is not so flagrant and ill-intentioned that any prejudice could not have been neutralized by an instruction to the jury. In addition, the remarks of the prosecutor, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective. Russell, 125 Wn.2d at 86.
Barber also contends the prosecutor committed misconduct by arguing that a finding that Barber was insane would render the entire proceeding meaningless. The prosecutor said:
their expert told you that he regards everything the defendant told him with a high level of suspicion, and that's exactly how you must view the report. That a diagnosis of narcissistic rage, based on a high level of suspicion, ladies and gentlemen, that's not evidence, that's not evidence by a preponderance of the evidence, that's not even any kind of evidence. It is simply unreliable and can't be considered by you. If you do, if you accept that report, then all of this, this courtroom, the judge, my role, [defense counsel's] role, this courtroom is meaningless. If you ignore the simple fact that Dr. Killoran's report is unreliable and unsupported, then you have voted purely on sympathy.
RP (1/30/03) at 91-2.
To support his argument that these statements were misconduct, Barber relies on State v. Coleman, 74 Wn. App. 835, 876 P.2d 458 (1994). In Coleman, this court held it is improper for a prosecutor to argue that jurors violate their oath if they disagree with the State's theory. But the court concluded that while the prosecutor's argument in Coleman was improper, the error was harmless because there was no substantial likelihood that the misconduct affected the verdict. Here, to the extent the prosecutor's statements can be interpreted as arguing that the trial was meaningless if the jurors find Barber was insane, the statements were improper. But when the prosecutor's remark read in context, it is clear that the prosecutor was merely insisting that the jurors rely on the evidence presented and not allow themselves to be swayed by sympathy. The prosecutor's remark was not so flagrant or ill-intentioned and any prejudice could have been neutralized by an admonition to the jury.
The court's jury instructions also told the jury to `permit neither sympathy nor prejudice to influence [its] verdict.' CP at 96.
Finally, Barber contends the prosecutor improperly asked the jury to remember Colello and argued that a finding of insanity would discourage other women from leaving abusive relationships. Barber objected to this argument, and the State concedes the argument was improper, but claims there is no substantial likelihood the remarks affected the jury's verdict. In determining whether a prosecutor's remarks require a new trial, this court must view them in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. Russell, 125 Wn.2d at 85-86. The primary issue was whether Barber was insane when he murdered Colello and attempted to murder their two children. On this record there is no substantial likelihood that these improper comments affected the jury's verdict.
The prosecutor said:
The next time you hear about a domestic violence case and you say to yourselves, `Geez, why didn't you just get out of that situation? `Why didn't you just call the police? Why didn't you do something, get out? Get out for the kids?' The next time those types of thoughts cross your mind, I hope you will remember [Colello], because this case — this case is exactly the reason why it makes it so difficult for people to get out from under those situations. Ladies and gentlemen, I ask again that you take your common sense with you into that jury room and return a verdict of guilty on all three counts.
RP (1/30/03) at 92.
Additional Grounds for Review
Barber contends he was prejudiced by the court's decision to require him to be examined by a state psychologist. Whenever a defendant has pleaded not guilty by reason of insanity, the court can appoint qualified experts or professional persons to examine and report on the mental condition of the defendant. RCW 10.77.060(1)(a); see also State v. Pawlyk, 115 Wn.2d 457, 466, 800 P.2d 338 (1990).
Barber claims the trial court violated his constitutional rights in admitting statements he made to the police officers and to the paramedics because his statements were involuntary under Miranda and private. Substantial evidence supports the trial court's finding that Barber's statements were spontaneous and voluntary. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997) (Findings of fact entered following a CrR 3.5 hearing are verities on appeal if supported by substantial evidence.). Statements made to paramedics are not protected by physician-patient privilege. State v. Ross, 89 Wn. App. 302, 308, 947 P.2d 1290 (1997). Barber argues he was denied the right to present evidence because his mother's testimony was impermissibly restricted. Barber submits an affidavit from his mother alleging that the police prevented her from including details in her taped statement by asking only questions that would incriminate her son, the prosecutor tricked her by asking her whether her memory was better on the night of the crimes or at trial, and the prosecutor improperly suggested she would lie to protect her son. Mrs. Barber testified for nearly a full day at trial and was subject to direct and cross examination by Barber's attorney. The State's questions that sought to establish Mrs. Barber's bias were not improper. ER 607. Barber has not shown his right to present evidence was violated.
Mrs. Barber's affidavit also alleges that when the police arrived at the crime scene they knocked a curtain down and then put it back up, leaving blood on the curtain, and they failed to prevent Colello's dog from transferring blood throughout the house. But there is no evidence that supports Mrs. Barber's allegations.
Barber also argues the prosecutor committed misconduct by instructing Mrs. Barber not to use the word `depressed.' But Mrs. Barber testified about her observations of her son's sadness, and she testified he was `very depressed,' on cross-examination. RP (1/16/03) at 1042.
Barber contends the State presented perjured testimony that there was more than one restraining order. The record does not support Barber's contention. Barber does not dispute that in May 2001, Colello obtained a restraining order against him. Colello's father, Jerry Colello, testified that he helped her obtain the restraining order in July, but was unsure about the exact date. In addition, the State did not argue there was more than one restraining order.
Barber also argues he was prejudiced by repeated references to previous domestic violence convictions. But although there were references to previous instances of domestic violence, the record does not support Barber's argument that there were references to convictions.
Barber claims the court erred in denying his motion for a mistrial in response to testimony that Barber told a friend he `beat up' Colello. But the trial court ruled that evidence was admissible under ER 404(b). The trial court did not err in denying Barber's motion.
Barber argues defense counsel was ineffective for failing to pursue a diminished capacity defense, failing to request jury instructions on lesser-included offenses, and failing to object or request a mistrial based on evidence concerning Barber's former girlfriend, Michelle Johnson. To establish ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). A strong presumption exists that counsel provided effective assistance. State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003). If defense counsel's trial conduct can be characterized as legitimate trial strategy or tactics, it cannot provide a basis for a claim of ineffective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
Deficient performance is shown if counsel's conduct fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). To satisfy the prejudice prong, a defendant must show a `reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. West, 139 Wn.2d 37, 42, 983 P.2d 617 (1999). `A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, 466 U.S. at 694. If the defendant fails to satisfy either part of the test, the inquiry goes no further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Here, the decision to not pursue a diminished capacity defense was a legitimate trial strategy. Diminished capacity is a defense when either specific intent or knowledge is an element of the crime charged. Evidence of diminished capacity can then be considered in determining whether the defendant had the capacity for the requisite mental state. State v. Thomas, 123 Wn. App. 771, 779, 98 P.3d 1258 (2004). A diminished capacity defense is inconsistent with Barber's insanity defense. The issue raised by the insanity defense was whether Barber perceived the nature and quality of his acts and was able to tell right from wrong; not whether Barber acted intentionally. Barber's statements to his mother, the police and the paramedics about what he did to Colello and his daughters indicated his intent to kill Colello and his daughters. According to the medical examiner and crime scene investigator, Colello's wounds may have been caused by two different knives, and her blood was on two different knives at the scene. This evidence, together with evidence that Barber separately attacked Colello, S.B. and K.B, also supports the State's theory that Barber acted intentionally.
The decision to not request jury instructions on lesser included offenses can also be characterized as a legitimate trial strategy. Lesser included offense instructions would have undermined Barber's insanity defense. Without lesser included offense instructions, the jury had to decide the case based solely on Barber's insanity defense.
Finally, the failure to request a mistrial in response to testimony regarding Barber's alleged abuse of his former girlfriend Michelle Johnson can also be characterized as a legitimate trial tactic. The evidence was properly introduced during the cross examination of Barber's expert witness, Dr. Killoran, to impeach his testimony that Barber did not exhibit abusive behavior in prior relationships. ER 703.
Barber contends jury instruction No. 6 was improper because it instructed the jury to give equal weight to direct and circumstantial evidence. This instruction was not improper. See State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999) ('[W]hether the evidence be direct, circumstantial, or a combination of the two, the jury need be instructed that it need only be convinced of the defendant's guilt beyond a reasonable doubt.') (citing State v. Gosby, 85 Wn.2d 758, 767, 539 P.2d 680 (1975)).
See also WPIC 5.01 (Law makes no distinction between direct and circumstantial evidence.).
Barber contends the prosecutor committed misconduct by arguing that Barber assaulted Colello in the past, suggesting that Barber told his expert, Dr. Killoran, that he decided to `annihilate' Colello, S.B. and K.B., and arguing that the bloodstained curtain at the crime scene was evidence Barber had re-hung the curtain with blood on his hands. These arguments were based on the evidence presented at trial and were therefore permissible. Hoffman, 116 Wn.2d at 95. According to Dr. Killoran, Barber admitted assaulting Colello in the past and Dr. Killoran used the word `annihilate' to describe Barber's decision during his narcissistic rage. Photos taken at the house showed a bloodstained curtain partially covering the window in the kitchen.
Barber also argues the prosecutor committed misconduct when he referred to the domestic violence incident in May 2001 when Barber `smashed two chairs, got arrested, and that's what caused the first restraining order to be issued.' While Barber is correct that there is no evidence he was arrested, Barber does not dispute that he broke two chairs or that Colello got a temporary restraining order in response to the incident. The mistaken reference to an arrest was not flagrant and ill-intentioned and any prejudice could have been neutralized by an admonition to the jury. Barber also contends his right to trial by a fair and impartial jury was violated because of concerns about a juror. But the parties agreed to designate that juror as an alternate and the juror did not participate in deliberations. Barber's right to trial by a fair and impartial jury was not violated.
RP (1/30/03) at 15.
Barber contends the trial court erred in denying his post-trial motion to arrest the judgment. Barber argued the State failed to present sufficient evidence to support a finding that he acted with premeditation. When viewed in the light most favorable to the State, the evidence supports the jury's finding of premeditation. See State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990) (Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.). The State presented evidence that Barber had a motive to kill Colello. Barber did not want to lose Colello or jeopardize his Army career. They had an argument and Colello went to call 911. They struggled in more than one room and Barber used two knives to kill Colello. The State also presented evidence that Barber said he tried to kill his daughters because they were not going to have parents, and carried a knife into their room and cut each girl's neck. The evidence supports the jury's finding of premeditation.
Barber contends the court improperly imposed consecutive, instead of concurrent sentences for his convictions on murder and attempted murder. The State requested an exceptional sentence up and Barber requested an exceptional sentence down. The court imposed a standard range sentence. A sentence within the standard range cannot be appealed. RCW 9.94A.585; see also State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002) (When a sentencing court concludes there is no basis for an exceptional sentence, it has exercised its discretion and the defendant cannot appeal that ruling.).
The presumptive sentence for the three offenses of which Barber was convicted is that the three sentences will run consecutively. RCW 9.94A.589(1)(b) (All sentences imposed for serious violent offenses arising from separate and distinct criminal conduct `shall be served consecutively to each other.'). Although there was only one crime scene, because there were three victims, the three offenses arose from separate and distinct criminal conduct. RCW 9.94A.589(1)(a).
Finally, Barber contends the Report of Proceedings is incomplete and inaccurate. He claims the record does not contain the prosecutor's argument that `if you don't find Mr. Barber guilty then we have wasted all of your time as well as of the courts.' Barber presents no evidence that the transcription is inaccurate.
App. Pro Se Brief at 35.
CONCLUSION
Even if it the trial court violated Barber's constitutional rights by admitting evidence that he refused to give a written statement to the police, the error was harmless. The prosecutor did not commit misconduct in closing argument, and we reject the additional arguments Barber raises pro se. We affirm the jury's conviction of Barber for the murder of Colello and the attempted murder of his two children.
GROSSE and BAKER, JJ., Concur.