Opinion
No. 60947-5-I.
April 13, 2009.
Appeal from a judgment of the Superior Court for King County, No. 02-1-07940-3, Gregory P. Canova, J., entered December 5, 2007.
Affirmed by unpublished opinion per Cox, J., concurred in by Grosse and Appelwick, JJ.
Bobby Joe Lyons appeals his conviction for first degree murder. We conclude that the trial court did not abuse its discretion in admitting evidence that fulfilled the requirements of ER 404(b). Additionally, the testimony of a police detective at trial did not constitute improper opinion testimony. Lyons's claim of ineffective assistance of counsel fails because Lyons fails in his burden to show that his trial counsel's actions fell below an objective standard of reasonableness. Lyons also fails to show that the State committed misconduct either in connection with allegedly failing to advise a witness of the court's ruling on a motion in limine or in allegedly disparaging defense counsel during rebuttal argument. Cumulative error is not at issue in this case. Finally, by failing to challenge his offender score below, Lyons waived any challenges to his sentence based on the trial court's alleged failure to consider whether his prior convictions constituted the same criminal conduct. We affirm.
A homeless man discovered Sam Brown's body in an area of dense foliage near downtown Seattle on September 13, 2002. The police investigation led to the arrest of the defendant, Bobby Joe Lyons. The State charged Lyons with murder in the first degree. A jury convicted him as charged.
Lyons appeals.
404(b) EVIDENCE
Lyons argues that the trial court abused its discretion in admitting evidence of his prior bad acts, violating his right to a fair trial. He argues that the admitted evidence that he had threatened two people to whom he sold drugs other than the victim was not relevant. We disagree.
ER 404(b) provides that evidence of prior crimes, wrongs, or acts is not admissible if it is offered to establish a person's character or to show he acted in conformity with that character. Relevant evidence may be admitted, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 404(b); State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
ER 404(b).
"Evidence is relevant and necessary if the purpose of admitting the evidence is of consequence to the action and makes the existence of the identified fact more probable." Premeditation and intent are essential elements of murder in the first degree. Though motive is not an element of the crime of murder, it is still a permissible area of inquiry. "It is generally held to be proper for the prosecution to offer evidence of motive for the commission of [a] crime, even when the evidence of motive may reveal the commission of another crime by the defendant." Evidence of motive may be admissible even where the state is not required to prove motive as an element of the offense.
Powell, 126 Wn.2d at 259.
RCW 9A.32.030; see Clerk's Papers at 198 (Jury Instruction 10) ("A person commits the crime of murder in the first degree when, with a premeditated intent to cause the death of another person, he causes the death of such person.").
State v. Matthews, 75 Wn. App. 278, 284-85, 877 P.2d 252 (1994).
State v. Terrovona, 105 Wn.2d 632, 650, 716 P.2d 295 (1986).
Powell, 126 Wn.2d at 260.
Before admitting evidence of prior bad acts under 404(b), the trial court must find by a preponderance of the evidence that the misconduct occurred, identify the purpose for which the evidence is sought to be admitted, determine whether the evidence is relevant to prove an element of the crime charged, and weigh the probative value against the prejudicial effect. This analysis must be conducted on the record. If the court admits the evidence, a limiting instruction must be given. A trial court's admission of evidence is reviewed for abuse of discretion.
State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007) (citing State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)).
Foxhoven, 161 Wn.2d at 175.
Id.
State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
Before trial, the parties extensively briefed the question of admissibility of Lyons's prior bad acts in a motion in limine. The evidence was that Lyons had told Roosevelt Franklin, in reference to unpaid drug debts, "if we were in the dark" he would shoot Franklin. Lyons also told Franklin that he carried a gun. Morgan Blevins-Pouncy indicated that Lyons once told her he would cut her on the face with a knife if she did not pay him $20 that she owed him. McClay Morgan stated that he had been present when Lyons threatened Pouncy over an unpaid debt and that Lyons had displayed a gun at the same time.
After hearing arguments on the issue, the court made a detailed oral ruling. The court found that the State had established by a preponderance of the evidence that the incidents had occurred. The court determined that the evidence relating to Lyons's threats against Franklin and Pouncy was relevant to prove motive, intent, and premeditation in the killing of Brown. The court found that the relevance of the threats was not outweighed by the risk of undue prejudice.
In its written instructions to the jury, the court gave a specific limiting instruction regarding this evidence:
Evidence regarding alleged threats to others and drug dealing by the defendant has been admitted for the purpose of proving motive, premeditation, and intent regarding the circumstances surrounding the crime charged in this case. You must not consider the evidence for any other purpose.
Clerk's Papers at 197 (Jury Instruction 9).
Lyons only challenges the admitted evidence on grounds that it was not relevant. This argument fails because it is generally proper for the prosecution to offer evidence of motive for the commission of a crime. The challenged evidence was highly probative of the State's theory — that Lyons was a drug dealer who sustained an ongoing drug operation through fear and intimidation. The evidence that Lyons threatened other drug users is also relevant to show premeditation and intent with respect to the crime of first degree murder.
Terrovona, 105 Wn.2d at 650.
The trial court did not abuse its discretion in admitting the evidence.
OPINION TESTIMONY
Lyons argues that Detective Ramirez improperly commented on witness Pouncy's credibility and that the trial court erred in overruling his timely objection and motion to strike. We disagree.
It is improper for a witness to testify in opinion form regarding the guilt or veracity of a defendant. A lay person's testimony as to another's credibility is not helpful because the jury is better able to assess credibility, and an expert may not opine as to another's credibility because there is no scientific basis for such an opinion.
State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995).
But testimony that is not a direct comment on the defendant's guilt or veracity, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper. This is true even if that testimony reaches ultimate issues of fact. Likewise, a witness may testify about his direct knowledge of facts and inferences therefrom, even if those facts support a finding of guilt.
City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).
Id.; ER 704.
State v. Saunders, 120 Wn. App. 800, 812-13, 86 P.3d 232 (2004), review denied, 156 Wn.2d 1034 (2006).
To determine whether testimony constitutes an impermissible opinion on guilt or veracity, or a permissible opinion on an ultimate issue, a court should consider the totality of the circumstances, including the type of witness, the nature of the testimony and charges against the accused, the type of defense, and the other evidence. The jury may especially be influenced by opinion testimony from a police officer, whose opinion may carry a special aura of reliability. We review a trial court's decision to admit opinion testimony for abuse of discretion.
Demery, 144 Wn.2d at 759.
Id. at 762.
State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992).
Lyons argues that Detective Ramirez gave improper opinion testimony during the prosecutor's re-direct examination. The prosecutor's questions focused on the detective's interview with Pouncy approximately five months after Brown's death:
Q. [Prosecutor]: Going back to [of Pouncy's Feb. 10, 2003 statement] again, on the bottom, during your interview with [Pouncy], how would you describe her ability to recall the timing of events, just in general?
A. [Ramirez]: Her timing was horrible. She had no sense of time at all in —
MR. CONNICK [Defense Counsel]: Your Honor, objection to this witness's characterization of another witness's testimony, ask that it be stricken.
THE COURT: Overruled. He can testify to his observations during his interview with the witness.
Report of Proceedings (September 24, 2007) at 156.
Most basically, we do not see the detective's statement as a comment on the defendant's guilt or credibility. Nor did it constitute an opinion on Pouncy's credibility. It was, as the trial court recognized, the detective's observation of Pouncy during his interview of her.
We also note that the detective's testimony was entirely consistent with Pouncy's own testimony, which the jury heard earlier in the trial. Pouncy testified that in September 2002, she was using cocaine on a daily basis, including the day she found Sam Brown's body. She testified that at that time she did not own a watch and was guessing about the specific timing of events. When asked by defense counsel about the timing of specific events, she said, "I have a bad time concept already.
When you do drugs, you have a really bad time concept, so everybody keeps asking me for times that I can't give you. I'm just — I know that it was just in a period of a time."
Report of Proceedings (September 24, 2007) at 93.
The trial court did not abuse its discretion in allowing the detective's testimony.
INEFFECTIVE ASSISTANCE OF COUNSEL
Lyons argues that he was denied effective assistance of counsel because his counsel failed to warn him that his testimony would open the door to previously excluded evidence. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To establish deficient performance, the defendant must show that counsel made errors so serious that "counsel" was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. The constitution does not guarantee successful assistance of counsel.
McFarland, 127 Wn.2d at 336.
State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986) (quoting Strickland, 466 U.S. at 687).
State v. Carpenter, 52 Wn. App. 680, 685, 763 P.2d 455 (1988) (quoting State v. Slemmer, 48 Wn. App. 48, 58, 738 P.2d 281 (1987) (internal citations omitted), abrogated on other grounds by State v. Frohs, 83 Wn. App. 803, 924 P.2d 384 (1996)) (holding that alleged invited error in jury instructions did not constitute deficient performance).
If one of the two prongs of the test for ineffective assistance is absent, we need not inquire further.
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Here, the trial court granted Lyons's motion in limine to exclude evidence that he had dropped a plastic bag containing cocaine out of his window just prior to his arrest for Brown's murder. The court had previously granted Lyons's motion to sever the trial of the resulting drug charge from his murder trial.
Lyons chose to testify at trial. On direct examination he testified that he had sold drugs in Seattle, specifically crack cocaine, in the early 1990s. He further testified that he stopped selling crack and instead started working as a "money changer" or "loan shark" prior to moving back to Seattle in 2001. He claimed that he was no longer selling drugs in 2002 at the time of Brown's death.
During a break in Lyon's testimony, the State moved to introduce the previously excluded cocaine evidence. The State argued that this rebuttal evidence should be allowed because Lyons had made material assertions that he was not involved in cocaine sales at the time of Brown's murder. According to the State, Lyons's testimony on direct examination opened the door to this rebuttal evidence.
Lyons argued that the evidence should not be admitted because it had already been excluded as part of the severed charge. The court agreed with the State and concluded that Lyons had "opened wide the door" to let in evidence on rebuttal that police observed Lyons throwing out of a window, just before his arrest, what was later determined to be cocaine.
Report of Proceedings (September 26, 2007) at 102.
Lyons moved to discharge his defense attorney based on the claim that his attorney had advised him that the drug evidence would not come in if he testified. Defense counsel argued that, during his direct examination of Lyons, he had avoided discussing Lyons's drug activity subsequent to Brown's death and relied on the pre-trial rulings to preclude any reference to the drugs found during the arrest. After hearing arguments and considering in camera further comments from Lyons and his counsel, the trial court ruled that defense counsel had not been ineffective and that there was no basis to replace him as the attorney of record or for a mistrial.
In its ruling, the court cited State v. Gallagher, a case in which the appeals court upheld a trial court's decision to allow the State to introduce previously excluded evidence to rebut the "false image" the defense had made through questioning that "took advantage" of an order in limine excluding drug evidence. Similarly, here, the trial court did not want Lyons to take advantage of the exclusion order to convey a false impression to the jury that he was no longer involved in drugs at the time of Brown's death. The court ruled:
112 Wn. App. 601, 51 P.3d 100 (2002).
Gallagher, 112 Wn. App. at 610.
The fact is that Mr. Lyons was not simply responding to questions posed by defense counsel. Mr. Lyons, both partly in response to questions and on his own on several occasions during the course of his direct [testimony] up to this point testified unequivocally that after he returned to Seattle in, I believe, early 2002, late 2001, he never dealt crack cocaine
The testimony from the State's witnesses is obviously — from certainly the lay witnesses, it's directly in conflict with that. Mr. Lyons' testimony was designed to directly refute their testimony and to contradict it. His testimony was designed to directly contradict any motivation he may have had for trying to collect a drug debt from Mr. Brown as well as obviously directly contradicting Mr. Denet's testimony on a number of grounds relating to his drug dealing activity, both before the 12th and 13th of September 2002 and after that.
Report of Proceedings (September 26, 2007) at 111.
The court said that it understood Lyons's "desire to get on the witness stand finally and be able to tell his story," but that in doing so, Lyons placed the previously excluded drug evidence directly at issue.
Id.
Lyons claims that he merely relied on his attorney's advice in testifying and that it was therefore his attorney's mistake that opened the door to the previously excluded evidence. The record does not support this argument. During direct examination, Lyons's answers frequently went beyond the scope of his counsel's questions.
For example, early in the examination, counsel asked, "[H]ow was it that you met [Brown]?" Lyons responded, "Well, just on the streets. One time I was selling drugs, back at that time , drugs was crack cocaine." Lyons went on to explain that he had met Brown in the early 1990s. Counsel then asked, "And as of September 2002, what was the nature of your relationship [with Brown]?" Lyons replied, "Well, the nature of my relationship, since I had stopped selling crack cocaine , was that I start[ed] . . . being a money changer. What you would call a money changer now is what you would know as a loan shark, loaning money."
Id. at 67.
Id. (emphasis added).
Id. at 68.
Id. (emphasis added).
Defense counsel asked appropriate, tactical questions seeking to explain to the jury the nature of the Lyons's relationship with the victim. Lyons answered these questions with more information than was necessary. The constitutional right to counsel does not guarantee successful assistance of counsel. Thus, counsel's tactical choice to question Lyons in the manner we have discussed does not show performance below an objective standard. The answers exceeded the scope of the questions asked, and the judge then decided that this testimony opened the door for the State's rebuttal evidence. This discretionary decision by the judge was proper under the circumstances. Lyons fails in his burden to show deficient performance of counsel.
Carpenter, 52 Wn. App. at 685.
Lyons has not argued that he was prejudiced by this series of events. Instead, relying on State v. Robinson, Lyons asks for a remand hearing so that he can make an offer of proof as to whether he was prejudiced.
138 Wn.2d 753, 982 P.2d 590 (1999).
Robinson involved a situation in which defense counsel prevented a defendant from testifying. Robinson produced substantial factual evidence to support his claim that his trial counsel actually prevented him from testifying. The court held that Robinson was therefore entitled to an evidentiary hearing on the issue of whether the waiver of his constitutional right to testify was knowing and voluntary. If, at the remand hearing, Robinson could establish that his attorney prevented him from testifying, the court would next consider whether Robinson was prejudiced by the deficient performance.
Robinson, 138 Wn.2d at 760-61.
Id. at 761.
Id. at 769-70.
Robinson does nothing to alter our conclusion that the trial court's ruling was entirely proper here. Lyons's counsel did not prevent him from exercising his constitutional right to testify. Instead, Lyons chose to run the risk that his decision to testify would have the consequence of allowing in evidence that the court had initially excluded. Robinson is inapplicable to this case. There is no basis for remand.
PROSECUTORIAL MISCONDUCT
Lyons argues that the State committed misconduct at two points in the trial. First, Lyons asserts that Morgan's testimony that he had been threatened that he should not testify involved prosecutorial misconduct. Second, Lyons argues that the prosecutor disparaged defense counsel during rebuttal argument. We disagree.
A defendant claiming prosecutorial misconduct bears the burden to establish that the prosecutor's conduct was both improper and prejudicial.
State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006).
A prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence in closing argument. There is no misconduct where the prosecutor does no more than argue based on the facts in evidence or suggest reasonable inferences from the evidence. "Any allegedly improper statements should be viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." In addition, prosecutorial remarks, even if improper, are not grounds for reversal if they were invited or provoked by defense counsel, are a pertinent reply to his or her arguments, and are not so prejudicial that a curative instruction would be ineffective.
State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).
See State v. Smith, 104 Wn.2d 497, 510-11, 707 P.2d 1306 (1985).
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004) (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).
A prosecutor should refrain from personally attacking defense counsel, impugning the character of the defendant's lawyer, or disparaging defense lawyers in general as a means of imputing guilt to the defendant. Comments that permit the jury "to nurture suspicions about defense counsel's integrity" can Page 15 deny a defendant's right to effective representation.
See State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984); United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980).
State v. Neslund, 50 Wn. App. 531, 562, 749 P.2d 725 (1988).
Prejudice is established only if the defendant demonstrates that there is a substantial likelihood that the misconduct affected the jury's verdict.
State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
"Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request." The absence of a contemporaneous objection strongly suggests that the comments did not appear critically prejudicial to the defendant in the context of trial. Failure to object to a prosecutor's improper remark constitutes waiver unless the remark is deemed to be 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. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995).
State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Id.
Witness Morgan's Testimony
The trial court granted Lyons's motion in limine to exclude testimony that witness McClay Morgan was afraid of Lyons. Shortly before Morgan's testimony, the court asked the prosecutor, "Mr. Morgan is similarly not going to be examined regarding any threats from any unknown individuals that may have been related to him on — at least in his view on behalf of the defendant; is that correct Mr. Lee?" The prosecutor agreed that was correct.
Report of Proceedings (September 24, 2007) at 4.
The State did not raise the issue during its direct examination of Morgan. During cross-examination, however, defense counsel initiated the following exchange:
Q. [Defense counsel]: Now, in addition, Bobby Joe Lyons never threatened you, correct?
A. [Morgan]: What?
Q. Bobby Joe Lyons —
A. You've got to be kidding me, man.
Q. Do you remember saying in the defense —
A. Yes, I was threatened, that if I ever showed up to this courthouse I'd be dead on the steps before I ever got in here, yeah, I was threatened, several times.
Id. at 41-42.
Defense counsel continued to ask questions along these lines, emphasizing that Morgan never stated in a defense interview that he had been threatened.
Morgan's response to defense counsel's questioning does not constitute prosecutorial misconduct. The line of questioning was not initiated by the prosecutor. And there is nothing in the record to support Lyons's argument that the prosecutor failed to inform Morgan of the court's ruling on the motion in limine.
Comments During Rebuttal Argument
Lyons argues that the State committed misconduct when the prosecutor accused defense counsel of misleading the jury, characterized counsel as desperate, and characterized the defense case as nothing more than "smoke and mirrors." The record does not support these assertions.
The scope of Lyons's prosecutorial misconduct claim here is somewhat unclear. He appears to challenge the following portions of the prosecutor's statements during rebuttal argument:
[Prosecutor]:
One thing we should all know is that when — that desperate people do desperate things. They get even more desperate and do even more desperate things, when backed into a corner, and you saw an example of that during the defense counsel's cross-examination — or closing argument.
. . . .
[W]hat the defense does, and this is their spin, they accuse us of bait and switch — well, ladies and gentlemen, here are the smoke and mirrors of the defense.
. . . .
Mr. Denet never testified that he was in Occidental Park at midnight. At one point he testified [it was] around 11:00 p.m., and then during cross-examination by counsel, again in a misleading manner, taking things out of context again, which was borne out on redirect —
MR. CONNICK [defense counsel]: I'll object, your Honor. Am I on trial now?
THE COURT: Sustain the objection to the form of the argument.
Report of Proceedings (October 1, 2007) at 175-79.
A review of the defendant's closing argument and the State's rebuttal argument up to the defense objection shows that the prosecutor was responding to claims the defense had made during its closing argument that the State had misrepresented the evidence. In this context, it is unclear whether the prosecutor's comments were directed at defense counsel, individually, or if he was referring to the defense attorney by name as a means of responding to substantive assertions. This is particularly true of the prosecutor's remark regarding the defense's desperation. Though the prosecutor did point to defense counsel's closing argument as an example of desperation and of coming from someone "backed into a corner," in context, it does not appear that the prosecutor was disparaging counsel. And even if this remark was improper, Lyons did not object or request a curative instruction.
The prosecutor's comment that the defense was using "smoke and mirrors" was plainly in response to the defense's statement in closing, that the defense counsel's "greatest fear" was that the jury would "go for this misdirection, this bait and switch, where the prosecutor says let's not talk about the scientific evidence, just consider whether Bobby Joe Lyons was a bad guy." Even if this comment was improper, Lyons did not object or request a curative instruction in response.
Id. at 140.
In the context of the issues of the case, defense counsel's closing argument, and the prosecutor's entire argument, Lyons has not shown that these comments were so flagrant and ill-intentioned that a prompt instruction to the jury could not have cured any prejudice they may have caused.
Finally, because the trial court sustained Lyons's objection to the prosecutor's statement that counsel had conducted cross-examination in a misleading manner, we need not address this comment.
CUMULATIVE ERROR
Lyons argues that cumulative error denied him a fair trial. This doctrine does not apply to his case.
Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal when the combined effects of the errors denied the defendant a fair trial.
State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
Here, there was no cumulative error because none of the issues Lyons raises has merit. Viewing the trial as a whole, it is clear that Lyons received a fair trial.
SENTENCING ERROR
Lyons argues that the trial court erred in failing to consider whether his prior VUCSA convictions constituted the same criminal conduct for purposes of calculating his offender score. We conclude that he has waived his right to raise this issue.
While the doctrine of waiver does not apply to an alleged sentencing error that is a legal error leading to an excessive sentence, "waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion." The application of the same criminal conduct inquiry involves both factual determinations and the exercise of discretion.
In re Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).
State v. Nitsch, 100 Wn. App. 512, 520-21, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000).
In State v. Nitsch, the court held that the defendant's failure to identify a factual dispute for the sentencing court's resolution and failure to request an exercise the court's discretion waived the challenge to his offender score. Similarly, here, Lyons failed to challenge the calculation of his offender score below. Lyons has therefore waived his right to raise this issue on appeal.
Id. at 520-23.
Lyons argues that, unlike the defendant in Nitsch, he did not "affirmatively acknowledge" the offender score. But his presentence memorandum shows that he acknowledged and did not dispute the State's calculation.
We affirm the judgment and sentence.
WE CONCUR: