Opinion
No. 56275-4-I.
October 9, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-01060-4, Nicole Maclnnes, J., entered May 24, 2005.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA, 98122.
Floyd Barrow (info Only) (Appearing Pro Se), M.c.c., D.o.c. #926179, P.o. Box 7001, Monroe, WA, 98272.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
David M. Seaver, King County Prosecuting Attorney's Offic, 500 Fourth Ave., Room 840, Seattle, WA, 98104-2337.
Affirmed by unpublished per curiam opinion.
Floyd Barrow was charged with second-degree murder after he stabbed another person to death. Barrow appeals his conviction for manslaughter in the first degree, arguing that he was denied a fair trial because the trial court erroneously refused to give certain jury instructions, the trial court admitted improper opinion evidence, and he was denied his right to effective assistance of counsel. Finding no error, we affirm Barrow's conviction for manslaughter in the first degree.
FACTS
C.K. was stabbed during a fight with another man in a park in downtown Seattle and died as a result of the attack. Several eyewitnesses, including Joann McCarty and Loulear Whitfield, gave statements to police. They identified the assailant as a person named "Floyd" who was wearing a baseball jersey and white windbreaker.
Due to the sensitive nature of the circumstances surrounding this case, we shall refer to the homicide victim using only his first and last initials, C.K.
Several hours later, Floyd Barrow was detained by police because he matched the description of the assailant. When searched, the police found a rolled up white windbreaker underneath the coat Barrow was wearing and a baseball jersey stuffed inside the windbreaker. Barrow was charged with second-degree murder.
According to the testimony at trial, Whitfield agreed to have sex with C.K. in exchange for money. After C.K. gave her $20 in cash, she left without performing the sex act. When C.K. caught up with Whitfield, he grabbed her clothing to prevent her from leaving. A heated argument between C.K. and Whitfield ensued. At some point, Barrow intervened. The confrontation between Barrow and C.K. escalated into a fistfight. After C.K. head-butted Barrow, Barrow fell to the ground and was bleeding from the mouth. Returning to his feet, Barrow walked over to where Charmyn Rhodes was located and asked her for a knife. Barrow then attacked C.K. with the knife and swung at him in a "roundhouse motion." C.K. started bleeding from a wound to his chest. Barrow left the scene.
Contrary to what Whitfield and McCarty previously told police, at trial both of them denied seeing Barrow armed with a knife or stab C.K. The State questioned Whitfield and McCarty about the inconsistencies between their trial testimony and the earlier statements they gave to police. The State also questioned Detective Weklych about the statements Whitfield and McCarty made at the time of the incident.
At trial, Charmyn Rhodes positively identified Barrow as the person who took a knife from her and swung it in a roundhouse fashion at C.K. Rhodes also stated afterward that she saw Barrow throw the knife away and change his clothing. The medical examiner testified that C.K. suffered a single, but fatal, stab wound to the chest. The wound was at least two and a half inches deep and pierced his heart.
The trial court instructed the jury on self defense and the lesser included crime of first-degree manslaughter, but declined to give Barrow's proposed instructions on either defense of others or second-degree manslaughter. The jury could not reach a unanimous verdict on second-degree murder but found Barrow guilty of the lesser included offense of first-degree manslaughter.
ANALYSIS
Barrow contends the trial court erred when it refused to instruct the jury on second-degree manslaughter. Thus, Barrow argues, his conviction should be reversed and the case remanded for a new trial. We disagree.
An instruction on a lesser included offense is proper where: (1) each element of the lesser offense is a necessary element of the crime charged, and (2) the evidence supports an inference that only the lesser crime was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 454-55, 6 P.3d 1150 (2000). A trial court's refusal to give a lesser included offense instruction is reviewed for abuse of discretion when the decision is based on the facts of the case. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds, State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).
Barrow and the State both agree that the first prong of the test is satisfied and second-degree manslaughter is a lesser included offense of second-degree intentional murder. Berlin, 133 Wn.2d at 553. The question is whether the record supports the second prong. When determining if the evidence is sufficient to support giving an instruction, we view the evidence in the light most favorable to the party that requested the instruction. Fernandez-Medina, 141 Wn.2d at 455-56. But the party requesting the instruction must point to evidence that affirmatively supports the instruction, and may not rely on the possibility that the jury would disbelieve the opposing party's evidence. Fernandez-Medina, 141 Wn.2d at 456; State v. Ieremia, 78 Wn. App. 746, 755, 899 P.2d 16 (1995). An inference that only the lesser offense was committed is justified "?[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.'" Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)).
The State charged Barrow with second-degree intentional murder. The elements of murder in the second degree as charged here, include causing the death of another with the intent to kill. RCW 9A.32.050(1)(a). The court instructed the jury on first-degree manslaughter but refused to instruct on second-degree manslaughter. The elements of first-degree manslaughter are causing the death of another with recklessness. RCW 9A.32.060(1)(a). The elements of second-degree manslaughter are causing the death of another with criminal negligence. RCW 9A.32.070. "Criminal negligence occurs when a reasonable person would realize the presence of a substantial risk of harm." State v. Hughes, 106 Wn.2d 176, 190, 721 P.2d 902 (1986); RCW 9A.08.010(d).
Under RCW 9A.08.010(d) criminal negligence is defined as follows:
A person is criminally negligent or acts with criminal negligence when he fails to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man [or woman] would exercise in the same situation.
Barrow argues that the evidence supports an inference that he only acted with criminal negligence when he stabbed C.K. with the knife. In spite of the fact that stabbing C.K. was admittedly an intentional act, Barrow argues there was evidence from which a jury could reasonably conclude that he negligently used more force than was necessary to defend himself. We disagree.
Nothing in the record suggests that C.K. was stabbed accidentally while he and Barrow fought. Unlike the cases cited by Barrow, State v. Schaffer, 135 Wn.2d 355, 957 P.2d 214 (1998); State v. Warden, 133 Wn.2d 559, 947 P.2d 708 (1997), and State v. Guilliot, 106 Wn. App. 355, 22 P.3d 1266 (2001), there was no evidence to show Barrow's ability to form the requisite mental state was impaired. The record does not provide a rational basis to conclude that Barrow committed negligent homicide as opposed to the greater offenses of second-degree murder or first-degree manslaughter.
We conclude that on this record, the trial court did not abuse its discretion in refusing to instruct the jury on second-degree manslaughter.
Barrow also challenges the trial court's refusal to instruct the jury on the defense of others because he stabbed C.K. in defense of Whitfield. Although the trial court instructed the jury on self-defense, it refused to instruct the jury on the defense of others because there was no evidence Whitfield was in imminent danger of great personal injury at the time of the stabbing.
"Each side is entitled to have the trial court instruct upon its theory of the case if there is evidence to support the theory." Hughes, 106 Wn.2d at 191. The defense of self and others statute provides, that homicide is justifiable if:
In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or any such person, and there is imminent danger of such design being accomplished[.]
A criminal defendant is entitled to a justifiable homicide instruction only if he or she presents "some evidence" in support of the defense. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). "A trial court's refusal to give instructions to a jury, if based on a factual dispute, is reviewable only for abuse of discretion." Walker, 136 Wn.2d at 771-72. Discretion is abused when it is exercised in a manifestly unreasonable way or based on untenable grounds or reasons. State v. Valdobinos, 122 Wn.2d 270, 279, 858 P.2d 199 (1993).
According to the testimony at trial, Whitfield was never hit or threatened by C.K. While Whitfield testified that C.K. choked her before Barrow intervened, C.K. did not have his hands around her throat. Apparently C.K. was holding onto her clothing while she was attempting to break free. There was also no evidence that Barrow believed C.K. was going to commit a felony against Whitfield at the time of the stabbing. The record does not support Barrow's assertion that "some evidence" was presented that he was acting in defense of Whitfield when he stabbed C.K. The trial court's refusal to instruct the jury on defense of others was not a manifest abuse of discretion.
Barrow next argues the trial court denied him a fair trial because it allowed Officers Zieger, Johnson and Zurcher to express an opinion about Barrow's guilt. He complains that the police officers were improperly allowed to express an opinion about why Barrow might have placed his windbreaker and jersey under his outer clothing.
Barrow argues the officer's testimony amounted to an improper opinion as to his guilt.
Officer Ziegler was questioned as follows:
Q Can you characterize that for us at all did you make any determinations of why the jacket may have been where it was —
A Yes, I believe it was hidden intentionally inside his coat behind his pack.
Q What led you to that conclusion —
A Generally if some one has an extra jacket they would be wearing it, not stuffed up under another coat.
Officer Johnson was questioned as follows:
Q Did you develop any opinion about why the [FUBU] shirt was stuff in the windbreaker —
A Possibly to change appearance, not uncommon when somebody doesn't want to talk to the police. He also was wearing underneath his sweat pants a pair of dark denim long shorts or pants. I also packaged those
Officer Zurcher was questioned as follows:
Q Did you have an opinion about why it was in the back of his coat —
A I'd never seen that before, I only assumed he was hiding it. I never seen anyone carry an article of clothing like that there.
Barrow does not dispute that he failed to object to the admission of the testimony of the police witnesses at trial. As a general rule, "[t]he failure to make a timely objection to the admission of evidence at trial precludes appellate review." State v.
O'Neil, 91 Wn. App. 978, 993, 967 P.2d 985 (1998). While manifest error affecting a constitutional right may be raised for the first time on appeal under RAP 2.5(a), that narrow exception "is not intended to swallow the rule, so that all asserted constitutional error may be raised for the first time on appeal. Indeed, criminal law has become so largely constitutionalized that any error can easily be phrased in constitutional terms." State v. Warren, 134 Wn. App. 44, 57, ___ P.3d ___ (2006) (quoting State v. Trout, 125 Wn. App. 313, 317, 103 P.3d 1228 (2005). By failing to object at trial, Barrow has waived any claim that the evidence was admitted in error. ER 103(a)(1); Warren, 134 Wn. App. at 57-58; Heatley, 70 Wn. App. at 583-86.
In any event, "`testimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.'" Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). The determination of whether testimony constitutes an impermissible opinion as to the defendant's guilt depends on the particular circumstances of a given case. Heatley, 70 Wn. App. at 579. Here the officers testified about Barrow's clothing and why the extra jacket was inside the windbreaker. The officers' testimony was not an impermissible comment on Barrow's guilt or on the credibility of a witness.
Barrow next contends he was denied a fair trial based on ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, Barrow bears the burden of showing both that (1) his counsel's representation was deficient and (2) that he was prejudiced. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995). We presume that counsel's performance was effective, and this presumption is only overcome by a clear showing of incompetence. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). Barrow must also demonstrate that counsel's actions were not due to legitimate trial strategy or tactics. State v. Gallagher, 112 Wn. App. 601, 612, 51 P.3d 100 (2002).
Barrow argues his attorney was ineffective in failing to file a pretrial motion to exclude testimony that McCarty told police Barrow had robbed her some weeks before the charged incident. In response to a question about McCarty's emotional state at the time of the stabbing incident, Officer Johnson testified that she knew Barrow and mentioned that he "had robbed her several weeks prior but she didn't want to talk about that in much detail." The prosecutor immediately asked about another topic. On appeal, Barrow argues, "there was no reasonable trial strategy to have allowed this damaging statement to reach the jury, and it was deficient performance to have it ruled inadmissible." We disagree.
There was no indication that the State intended to introduce evidence that Barrow robbed McCarty. Officer Johnson's testimony was not solicited by the State and was unexpected. Barrow's attorney's representation cannot be considered constitutionally deficient for failing to anticipate Officer Johnson's unsolicited and nonresponsive testimony. Barrow fails to show that his attorney's representation was deficient, let alone that any deficiency actually prejudiced him.
Barrow also contends his attorney was ineffective in failing to exclude Whitfield and McCarty's out-of-court statements to the police in which they identified Barrow as the person who stabbed C.K. with a knife. However, the hearsay statements were clearly admissible as impeachment evidence. McCarty testified at trial that she never saw anyone armed with a knife and only heard from others that C.K. had been stabbed. Similarly, Whitfield testified that she did not see either man with a weapon and did not know that C.K. had been stabbed until she returned to the park later that night. The testimony at trial was inconsistent with the statements Whitfield and McCarty gave to police. The prior inconsistent statements were admissible under ER 613 for the limited purpose of attacking the credibility of the witnesses.
Barrow also claims his attorney was ineffective by failing to object or request a limited instruction to the evidence of the prior inconsistent statements. If no objection to the introduction of a prior inconsistent statement is made and no limiting instruction is sought, the jury may consider the prior statements as substantive evidence. State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997).
At trial, Whitfield and McCarty both minimized Barrow's role in the stabbing incident. In fact, their testimony pretty much mirrored the testimony given by the only defense witness. Under the circumstances, it would have made little tactical sense for the defense to object or request a limiting instruction aimed at attacking either Whitfield's or McCarty's credibility at trial. The defense had a vested interest in presenting both witnesses as credible. Attacking the prior inconsistent statements would only emphasize their conflicting accounts of what happened. See State v. Barber, 38 Wn. App. 758, 771, n. 4, 689 P.2d 1099 (1984) (not unusual for able attorney to not request a limiting instruction regarding evidence that counsel believes is damaging to his client).
Barrow has not carried his burden of showing his attorney's representation was deficient. And given the strength of the State's case, Barrow cannot establish prejudice.
Barrow contends that the cumulative error doctrine mandates reversal. The cumulative error doctrine only applies when there are numerous prejudicial and egregious errors during trial. See State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). Given that standard, the cumulative error doctrine does not apply here.
Affirmed.
APPELWICK and COX, JJ.