Opinion
No. 32104-1-II
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 04-1-00688-4. Judgment or order under review. Date filed: 07/28/2004. Judge signing: Hon. Christine A. Pomeroy.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Jimmy D. McCown appeals his jury conviction for second degree assault while armed with a deadly weapon. He argues that (1) prosecutorial misconduct and ineffective assistance of counsel violated his 5th Amendment right against self-incrimination and 14th Amendment right to due process; (2) the trial court erroneously denied his request for a jury instruction on the lesser included offense of fourth degree assault; and (3) cumulative error warrants reversal. Finding no reversible error, we affirm.
U.S. Const. amend. V.
U.S. Const. amend. XIV.
FACTS I. The Crime A. Assault
Jimmy D. McCown had a violent argument with Brandy Lee Loveland. After McCown made inappropriate and vulgar statements to Loveland, she slapped him, decided to leave, picked up her daughter, and went outside to make a phone call for someone pick her up from McCown's house. McCown tossed Loveland's daughter's playpen and car seat out the door. Loveland went back into the house to get the rest of her belongings and to finish her phone call. McCown grabbed her with one hand and placed a gun next to her head with the other.
B. Investigation
In response to a phone call reporting domestic violence, Officer Frank Frawley arrived at McCown's residence, and spoke with Loveland, who was crying, shaking, and 'appeared to be still under the duress of what had just happened to her.' Report of Proceedings (RP) 7/12/04 at 28. She had red finger marks on her throat, her hair was in disarray, and she looked 'a little like she had been in a struggle.' RP 7/12/04 at 29-30.
Meanwhile, inside his residence, McCown was speaking on the telephone with the 911 dispatcher; McCown told the dispatcher he did not own a gun. McCown initially refused to step outside. When Officer Barnes Michael Ware arrived, he attempted to persuade McCown to step outside and talk. Eventually, McCown exited the house.
McCown told Ware about his argument with Loveland, denied possessing a gun, agreed to give a taped statement, and signed a consent form to allow police to search his residence. After Ware read McCown his Miranda rights, McCown told Ware he no longer consented to giving a taped statement or a search of his residence. Ware handcuffed McCown and took him into custody.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
C. Search Warrant
Officers obtained and executed a search warrant for McCown's residence. Inside, they seized a loaded handgun from under a sofa cushion. Loveland identified this weapon as the gun McCown had used to threaten her.
II. Procedure
The State charged McCown with second degree assault while armed with a deadly weapon.
During the jury trial, McCown's defense counsel cross-examined Officer Ware about his conversation with McCown and reading McCown his Miranda rights. Defense counsel implied, but did not elicit, that Ware had conversed with McCown before advising him of his rights. Defense counsel also asked Ware why he had needed to obtain a search warrant to enter the residence when McCown had signed a release and consent to search form. Ware replied that McCown later decided to revoke his consent, saying he did not want officers entering his house.
To rehabilitate Ware in response to this line of questioning, the prosecutor questioned Ware to show that Ware had given McCown his Miranda rights before McCown gave a statement to police and to explain why the police had needed a search warrant to enter the residence after McCown revoked his consent. McCown did not object to this line of questioning.
The jury found McCown guilty, returning a special finding that he had been armed with a deadly weapon during his assault on Loveland.
McCown appeals.
ANALYSIS I. Redirect Examination of Officer Ware
McCown argues for the first time on appeal that the State committed misconduct and violated his Fifth Amendment right to remain silent and his Due Process right to a fair trial, when it elicited from Officer Ware on redirect examination that McCown decided not to speak further with Ware after Ware gave McCown his Miranda warnings. McCown also argues that his trial counsel's failure to object to this redirect testimony constituted ineffective assistance of counsel. We disagree on both points.
A. Standard of Review
We do not review on appeal an alleged error appellant failed to raise at trial unless it is a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). The error McCown asserts for the first time on appeal references constitutional rights. He argues the State's comment on and use of his post-arrest silence were used for impeachment purposes and violated his Fifth Amendment right to remain silent and the Due Process Clause of the Fourteenth Amendment, and deprived him of his constitutional right to effective assistance of counsel. Because these alleged errors of constitutional magnitude have the potential to have affected McCown's right to a fair trial, we consider his argument for the first time on appeal.
Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996).
The burden is on McCown, however, to show actual prejudice in order to establish that the error is manifest. State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992).
B. Prosecutorial Misconduct
The State may not use witnesses' comments or make closing arguments relating to the defendant's post-arrest silence in order to imply guilt. State v. Belgarde, 110 Wn.2d 504, 510-12, 755 P.2d 174 (1988). But when the testimony does not 'highlight or call attention to defendant's post-arrest silence in such a fashion or to such a degree as to penalize defendant,' it fails to violate due process and the right to a fair trial. State v. Johnson, 42 Wn. App. 425, 431-32, 712 P.2d 301 (1985), review denied, 105 Wn.2d 1016 (1986).
McCown argues that prosecutorial misconduct violated his 5th and 14th amendment rights. The State elicited the following redirect testimony from Officer Ware in an attempt to rehabilitate him after cross examination by McCown had created misimpressions:
On cross-examination of Officer Ware about his conversation with McCown and reading McCown his Miranda rights, McCown's counsel implied that Ware had conversed with McCown before advising him of his rights, and asked why Ware had needed a search warrant when McCown had signed a release and consent to search form. Specifically, defense counsel asked Ware, (1) 'But you didn't read him his Miranda rights prior to questioning him in the yard, did you?' RP 7/13/04 at 25-26; and (2) '[W]hy was it that you sought out a search warrant if you'd obtained a signed agreement from Mr. McCown to search the residence?' RP 7/13/04 at 28. After McCown came outside and began conversing with Ware, and that McCown later decided to revoke his consent to search his residence, saying he did not want officers entering his house.
Q. Once [McCown] came out of the house, you allowed him to tell his side of the story, correct?
A. Exactly.
Q. He was not under arrest, right?
A. Not under physical arrest.
Q. Is that why at that point in time you didn't read him his Miranda rights?
A. No. There wasn't any requirement. I was not interviewing him. He came forward and told me.
Q. After you placed him under arrest did you read him his Miranda rights?
A. Actually, he was advised of his Miranda rights prior to the arrest.
Q. So just prior to the time of arrest.
A. After he stated that he would give me a taped statement we walked over to another part of the yard. We sat down, and the initial phase of a taped statement is a reading of the Miranda rights from a card that's read right on to the statement and checked to make sure he understands it.
Q. And after you read him those rights, he decided to not give you a statement, correct?
A. At that point he decided no, he did not want to continue.
Q. And he has that right, correct?
A. Absolutely.
Q. Now, with regard to the search warrant issue, he had initially consented to have — to a search of that residence, correct?
A. Yes, we have a consent form that we present. The form includes an advisory of his rights with regards to that search. It tells that if — he does not have to allow a search. If he allows us to search, he can limit the scope of this search, meaning he can tell us what rooms to search and what we cannot search. He voluntarily — he indicated he understood that form and he signed it.
Q Okay. But then later, prior to you searching the residence, he said no. I don't want to agree to that any more, correct?
A. Right.
Q. And he has the right to do that, correct?
A. Exactly.
RP 7/13/04 at 30-32.
The prosecutor questioned Ware on redirect to rebut defense counsel's cross examination insinuation that Ware had not properly given McCown his Miranda rights before eliciting a statement. Ware mentioned in passing that, after receiving his Miranda rights, McCown decided 'he did not want to continue.' RP 7/13/04 at 31. The prosecutor did not elicit Ware's passing comment in order to imply McCown's guilt, nor did it have that effect. Furthermore, the prosecutor did not mention McCown's silence during closing argument or otherwise draw attention to Ware's passing comment.
Prosecutorial misconduct requires a showing that the prosecutor's action was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003), review denied, 151 Wn.2d 1039 (2004). The defendant bears the burden of showing both prongs of prosecutorial misconduct. Hughes, 118 Wn. App. at 727. Where the defendant fails to object to the comment at trial, the prosecutorial misconduct must be so flagrant and ill intentioned that a curative instruction would not obviate any resulting prejudice. State v. Ziegler, 114 Wn.2d 533, 540, 189 P.2d 79 (1990) (citing Belgarde, 110 Wn.2d 504 at 507).
Here, the prosecutor's conduct was neither ill intentioned nor prejudicial. The prosecutor elicited the testimony to rehabilitate the witness, not to impeach the defendant or to imply guilt.
Moreover, even if the prosecutor's conduct could be characterized as improper, it did not prejudice McCown. The record contains strong evidence that McCown grabbed Loveland by the throat and held a gun to her head. Ware's passing mention that McCown said nothing more after being given his Miranda rights likely had little, if any, effect on the outcome of the trial.
In light of the record and circumstances at trial, we conclude that there was no prosecutorial misconduct. McCown having failed to show prejudice, we hold that the prosecutor's redirect examination of Ware was not reversible error.
C. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when but for the deficient performance, the outcome would have been different. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). There is great judicial deference to counsel's performance and the analysis begins with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
McCown contends that his trial counsel's ineffective failure to object to Officer Ware's testimony on redirect denied him a fair trial because it allowed the jury to hear an improper reference to the exercise of his right to remain silent. Because, as we have just held, Ware's testimony was neither prejudicial nor reversible error, counsel's failure to object does not show deficient performance. We find, therefore, no ineffective assistance of counsel.
II. Jury Instruction on Lesser Included or Inferior Degree Offense A. Standard of Review
It is reversible error for the trial court to refuse a proposed instruction only where the instruction states the proper law and is supported by the evidence. State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995); State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994). To determine whether a defendant is entitled to an instruction on a lesser included offense, '[f]irst, each of the elements of the lesser offense must be a necessary element of the offense charged [, and] [s]econd, the evidence in the case must support an inference that the lesser crime was committed.' State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).
The test to determine whether a defendant is entitled to an inferior degree offense instruction differs from an instruction for a lesser included offense only with respect to the legal component. This test requires that (1) the statute for the charged offense and the proposed inferior degree offense proscribe one offense, (2) the information charges an offense divided into degrees, of which the proposed offense is an inferior degree of the one charged, and (3) there is evidence that the defendant committed only the inferior offense. State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998). To warrant giving both inferior degree and lesser included offense instructions, the evidence must raise the inference that 'only the lesser included/inferior degree offense was committed to the exclusion of the charged offense.' Fernandez-Medina, 141 Wn.2d at 455.
The second requirement of the test references the legal component: the information must charge an offense divided into degrees, of which the proposed offense is an inferior degree of the one charged. Fernandez-Medina, 141 Wn.2d at 454.
B. Lack of Evidence to Support Lesser Included or Inferior Degree Offense Instruction
A person commits assault in the second degree when he or she assaults another person with a deadly weapon. RCW 9A.36.021(1)(c). Fourth degree assault occurs when a person assaults another under circumstances not amounting to first, second, or third degree or custodial assault. RCW 9A.36.041(1). The evidence here did not support the giving of a lesser included or inferior degree offense jury instruction for fourth degree assault. McCown was charged with second degree assault with a deadly weapon. In order to merit a lesser included offense instruction, the evidence must permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense. Beck v. Alabama, 447 U.S. 625, 635, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980); State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997).
For an inferior degree offense instruction, either party must produce enough affirmative evidence that the defendant was guilty of only the less serious degree of the crime. State v. Ieremia, 78 Wn. App. 746, 754-55, 899 P.2d 16 (1995), review denied, 128 Wn.2d 1009 (1996). The evidence must support the inference that the defendant committed the lesser offense instead of the greater one. State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992).
The only evidence McCown presented to support his claim of assault in the fourth degree was (1) the transcript of his phone call with the 911 dispatcher, in which he denied owning or possessing a gun, and (2) his very limited testimony at trial to establish self defense based on his fear of Loveland, who he knew had assaulted others.
The State, however, presented evidence that Loveland tried to leave the house after her altercation with McCown. She gathered her infant daughter and the phone and went outside to call someone to take her home. When the call was cut off, Loveland reentered the house, her daughter and phone in hand, to resume the call and to collect the rest of her belongings. At that point, McCown grabbed her throat from behind and held a gun to her head. Although he denied owning a gun when questioned by the 911 dispatcher, officers found a gun hidden under sofa cushions in his residence. And Loveland identified this as the same gun McCown had held to her head. The record contains no evidence controverting these facts.
McCown presented a theory that he committed only fourth degree assault. He points to no evidence that would lead a jury to acquit him of the greater crime and to infer that he had committed only the lesser or inferior degree offense.
We hold, therefore, the trial court did not err in denying McCown's request for a lesser included or inferior degree offense instruction on fourth degree assault.
Even if McCown were entitled to a lesser included or inferior degree offense, any error in the trial court's denial of such instruction would be harmless in light of the overwhelming evidence of McCown's use of a gun when he assaulted Loveland.
III. Cumulative Error
Where no prejudicial error is shown to have occurred, cumulative error cannot be said to have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Having found no error here, prejudicial or otherwise, we similarly find no cumulative error.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J.