Opinion
No. 56176-6-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-10583-4, Mary Yu, J., entered April 29, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dwayne Th Houston (info Only) (Appearing Pro Se), 19305 55th Ave NE Apt 223, Seattle, WA 98155.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Michael Paul Mohandeson, King Co Pros Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Affirmed by unpublished per curiam opinion.
Dwayne Houston was charged with robbery in the first degree. According to evidence adduced at trial, Houston drove himself, Paul Stephens, Anthony Ramos, and a fourth person to a bank. Stephens handed Ramos a gun. Ramos took money from a bank teller at gunpoint. Ramos rejoined the others in the vehicle, and Houston drove away. During closing arguments, Houston's counsel told the jury that Stephens `got away with it' and asked jurors not to `let Mr. Houston take the fall for Mr. Paul Stephens.' Report of Proceedings (RP) (Mar. 2, 2005) at 466. The prosecutor objected, and the court gave a curative instruction. Houston was convicted.
Houston appeals and argues that the trial court improperly commented on the evidence in the course of giving its curative instruction. We affirm. The context of the statements indicates that the court correctly informed the jury that no evidence had been adduced regarding proceedings against Stephens for his role in the bank robbery.
FACTS
Dwayne Houston was charged with robbery in the first degree in connection with the robbery of a Bank of America branch in Bellevue in March 2004. According to trial testimony, Houston drove himself, Alicia Tennyson, Paul Stephens, and Anthony Ramos in Tennyson's Honda hatchback to the bank on the day of the robbery. Stephens handed Ramos a firearm. Ramos exited the vehicle, took about $2,000 from a bank teller at gunpoint, and rejoined the others inside the vehicle. Houston then drove away from the bank.
Police quickly apprehended all four people. Ramos entered into a plea agreement with the State and testified against Houston. Tennyson, who was arraigned but not charged, also testified for the State. Houston did not testify, and Stephens was not called to testify.
During closing arguments, Houston's counsel made this statement:
Only one person had control of the events that occurred on March 11th. And that was Mr. Paul Stephens. He used poor Anthony. He used Mr. Houston and Alicia as the fall guys. And he succeeded. He didn't have to come in and testify the way Ms. Tennyson did. He didn't have to come in and testify the way Alicia did. He got away with it. . . . Mr. Stephens manipulated those three people like puppets. They were taken to the cleaners, as it were. . . . Don't, members of the jury, don't let Mr. Houston take the fall for Mr. Paul Stephens. He's the one who should be in this courtroom where Mr. Houston sits alone. [Houston is] not guilty of any crime.
RP (Mar. 2, 2005) at 465-66. The prosecutor requested a sidebar conference, and the court then read a curative instruction to the jury:
I just want to provide some additional instruction to you at this time. There [were] some comments from counsel made in regard to Mr. Stephens. And at this time I'm just instructing you that there has been no evidence in regards to Mr. Stephens. So I'm directing you that you are to draw no conclusions one way or another as to what you have heard argued by counsel. I want to point out in Instruction No. 1 and it's on page 2 of that instruction and it's the second to the last paragraph. And it's just simply to remind you that the attorney's remarks, statements and arguments are intended to help you understand the evidence and apply the law, but they are not evidence. So you have also been previously instructed to disregard any statement or argument that is not supported by the law. And I just simply remind you at this point there really has been nothing in regard to a subsequent or previous proceeding regarding these proceedings.
RP (Mar. 2, 2005) at 466-67. Houston's counsel finished her closing argument, and the jury retired. The prosecutor then placed on the record her objection to defense counsel's argument that Houston was `taking the fall' for Stephens. RP (Mar. 2, 2005) at 472. The prosecutor stated that there was no evidence presented at trial about the disposition of Stephens's case and that Stephens had pleaded guilty and that his guilty plea would not have been admissible into evidence. Houston's counsel stated that she was `in full agreement' with the curative instruction, but added that `there was some preamble that the court used that I don't think we had talked about. And I was somewhat disturbed about that preamble.' RP (Mar. 2, 2005) at 473. Later that day, Houston's counsel told the court that she agreed to the necessity of the curative instruction, but argued that the court incorrectly prohibited the jury from considering her argument that Stephens was a `dangerous man' who had manipulated other people. RP (Mar. 2, 2005) at 479.
The jury found Houston guilty of robbery in the first degree. The jury also returned a special verdict that Houston or an accomplice was armed with a firearm at the time of the commission of the crime. The court sentenced Houston to 162 months of confinement, including a 60-month enhancement for the firearm special verdict. Houston appeals. ANALYSIS Article IV, section 16, of the Washington Constitution provides that `[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' The purpose of this provision "is to prevent the jury from being influenced by knowledge conveyed to it by the court as to the court's opinion of the evidence submitted." State v. Lampshire, 74 Wn.2d 888, 892, 447 P.2d 727 (1968) (quoting Heitfeld v. Benevolent Protective Order of Keglers, 36 Wn.2d 685, 699, 220 P.2d 655 (1950)). This constitutional prohibition `forbids only those words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial.' State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). If a court makes a comment violative of this constitutional prohibition, `the burden rests on the state to show that no prejudice resulted to the defendant unless it affirmatively appears from the record that no prejudice could have resulted from the court's comment.' Lampshire, 74 Wn.2d at 892.
Houston contends that the trial court made an impermissible comment on the evidence when it told jurors that `[t]here was some comments from counsel made in regard to Mr. Stephens' and that it was `instructing you that there has been no evidence in regards to Mr. Stephens' and that `you are to draw no conclusions one way or another as to what you have heard argued by counsel.' RP (Mar. 2, 2005) at 466. He argues that the trial court's statement casts doubt on the credibility, weight, and sufficiency of evidence that Stephens orchestrated the bank robbery, that Stephens was an accomplice to the actual commission of the robbery by Ramos, and that Houston was simply unfortunate enough to be in the vehicle. We disagree.
We first note that the State presented Ramos and Tennyson as witnesses against Houston and that Ramos and Tennyson testified under questioning by the prosecutor that Stephens directed Ramos and Houston. The prosecutor also contended during closing arguments that Stephens planned the bank robbery and directed Ramos and Houston. We find it unlikely that the jury would interpret the court's statement to mean that no evidence adduced at trial concerned Stephens. But more importantly, Houston presents the court's remarks out of context.
The record of the court's statement as a whole indicates that the court was instructing the jury that no evidence had been adduced concerning criminal proceedings against Stephens and that Houston's counsel lacked an evidentiary basis for its claim that Stephens `got away with it' and that the State was asking the jury to make Houston `take the fall.' RP (Mar. 2, 2005) at 465-66. The meaning of the court's statement made clear in the last sentence of the statement, that `I just simply remind you at this point there really has been nothing in regard to a subsequent or previous proceeding regarding these proceedings.' RP (Mar. 2, 2005) at 467. While the court's statement that `there has been no evidence in regards to Mr. Stephens' (RP (Mar. 2, 2005) at 466) might have been inartful, in context it did not have the effect described by Houston. We conclude that the court did not impermissibly comment on the evidence.
In a statement of additional grounds for review, Houston contends that jurors observed him in handcuffs while he was in a hallway and grounds therefore existed for a mistrial. A trial court should grant a mistrial only when a defendant `has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.' State v. Early, 70 Wn. App. 452, 462, 853 P.2d 964 (1993) (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). The record indicates that when Houston's counsel alerted the trial court to the fact that two jurors might have observed Houston in handcuffs, the court properly and discreetly questioned the two jurors. One juror said she had no recollection of seeing Houston in the hallway. The other juror acknowledged that she saw Houston in the hallway with another person, who she assumed was a guard. But upon inquiry by the court, the juror stated that she did not form any opinions as a result of her observation and that she didn't think her role as a juror would be affected. The record therefore indicates that Houston did not suffer unfair prejudice. The observation of Houston by the juror did not give rise to grounds for a mistrial.
Houston also argues that he was falsely charged with possession of a handgun that he never possessed. The Sentencing Reform Act of 1981 provides, however, that the jury may return a special verdict that a defendant was armed with a deadly weapon if it finds that an accomplice of the defendant was armed with a deadly weapon at the time of the commission of the crime. RCW 9.94A.602. Here, the evidence establishes that Ramos was armed with a firearm when he took money from a bank teller. Because the evidence was sufficient to establish that Ramos and Houston were accomplices, the jury had sufficient evidence to return the special verdict against Houston.
Affirmed.
COLEMAN, SCHINDLER and BECKER, JJ.