Opinion
Nos. 63352-0-I; 64735-1-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05783-2, Michael J. Fox, J., entered April 14, 2009, together with a petition for relief from personal restraint.
Judgment affirmed in part, reversed in part, and remanded and petition denied by unpublished opinion per Appelwick, J., concurred in by Dwyer, C.J., and Grosse, J.
Muse Mohamud was found guilty of first degree kidnapping and second degree assault by strangulation. We reject Mohamud's claims that the trial court violated his speedy trial right by continuing the trial date and that defense counsel was constitutionally deficient. We also deny Mohamud's personal restraint petition raising similar claims. But, we agree that the trial court should have found that the assault and kidnapping convictions constituted the same criminal conduct. We therefore affirm Mohamud's convictions, but reverse his sentence and remand for resentencing based on the recalculated offender score.
FACTS
The State charged Mohamud with one count of first degree kidnapping, one count of second degree assault by strangulation, one count of felony harassment, and one count of unlawful imprisonment. At trial, 17 year old Khadra Jama testified that she moved to Seattle from Ohio in September 2007 and lived with her aunt while attending high school. Sometime in June 2008, Jama's aunt told her that she had to move out. Jama, who was not scheduled to fly back to Ohio until July 23, 2008, then lived primarily with a friend named Sean, but also with other acquaintances.
On July 22, 2008, Jama talked to a friend named Yahya and then spent the night in his Tukwila apartment. Yahya lived with Mohamud and Mohamud's uncle. The following day, Jama learned that her flight home had been postponed. She and Mohamud began "chilling" at the apartment, drinking cognac and an alcoholic beverage called Tilt.
During the evening, Yahya's friend drove by and picked up Yahya, Jama, and Mohamud. The car made several stops, including one to purchase beer, which Jama and Mohamud drank in the back seat. According to Jama, the driver and Mohamud smoked marijuana. Jama also believed that the driver was selling drugs. Jama denied that she was drunk, but conceded she was "tipsy."
At some point, Jama told the driver that she needed to urinate. According to Jama, Mohamud became angry, started "cussing," and told her not to waste his beer. Mohamud then started choking her by placing two fingers from one hand on her throat. Because she was unable to breathe, Jama hit Mohamud in the face with the beer bottle she was holding, chipping his tooth. Mohamud took the bottle away and resumed choking Jama until the car stopped in a parking lot near a South Seattle apartment building.
Fearing that Mohamud would beat her, Jama refused to go into the apartment building. Mohamud then pulled Jama's hair, resumed choking her, and dragged her into a vacant apartment. Once inside the apartment, Mohamud took her to a back room and then the bathroom, where he repeatedly hit her with a bottle and continued to choke her. Jama's pleas for help from Yahya went unanswered Ali Noor, who lived above the vacant apartment, arrived home from work at about 1:30 a.m. on July 24, 2008, and heard voices in the parking lot. Noor looked outside and saw "interactions" between two men and a woman. Noor told police one of the men said, "Don't beat her" and the other responded, "She broke my teeth." Noor could not tell if one of the men hit the woman or whether they were playing. At trial Noor denied telling the police that he heard the woman say, "Don't beat me."
Mahad Hasan, who lived next to the vacant apartment, testified that he awoke at about 2:00 a.m. and heard voices in the apartment next door and someone hitting or pushing against the wall. A woman was crying and begged someone in both Somali and English, "Please don't do this. There will be DNA [deoxyribonucleic acid]." After hearing one of the men say, "We're going to kill you," Hasan called the police.
Seattle Police Officers Darryl D'Ambrosio and Darryl Johnson responded to the reported disturbance shortly after 1:15 a.m. on July 24, 2008. Upon arriving, the officers listened at the apartment door and heard what sounded like an argument and a struggle inside, with things getting knocked over. A woman said, "Get off me, get off me." Concerned about the woman's safety, the officers drew their guns and kicked in the door. As Officer D'Ambrosio entered the apartment, he saw a woman's legs on the floor in another room and Mohamud standing over her, holding a green bottle. After arresting Mohamud, D'Ambrosio observed Jama on the floor. She appeared to be groggy and blood was trickling out of her mouth. Jama told the officers that she had been kidnapped, choked, and kicked in the head. Medics transported Jama to Harborview Medical Center for treatment.
On the day after his arrest, Mohamud gave a recorded statement to Detective Jeff Spong. Mohamud denied that he had hit or choked Jama. He explained that Jama repeatedly banged her head against the car window and the apartment wall because she was drunk, upset, and wanted to end her life. He maintained that even though she had chipped his tooth with a beer bottle, he had tried to be nice to her.
The jury found Mohamud guilty as charged of first degree kidnapping, second degree assault, and unlawful imprisonment, and not guilty of felony harassment. At sentencing, the court vacated the unlawful imprisonment conviction as a lesser included offense of kidnapping and imposed 72 month and 14 month concurrent terms for kidnapping and assault. The court rejected Mohamud's argument that the assault and kidnapping convictions constituted the same criminal conduct.
DECISION
I. Issues on Appeal
A. Speedy Trial
Mohamud contends that the trial court violated his right to a speedy trial when it granted a trial continuance over his objection. He argues that the trial court abused its discretion on December 5, 2008, when it continued the trial date to January 30, 2009.
The appellate record contains only the trial court's order continuing the trial date and its finding that the continuance was required in the administration of justice because of the unavailability of state and defense witnesses and the deputy prosecutor's vacation. The record does not include the arguments raised before the trial court or any other materials that would permit this court to determine whether the trial court's ruling was an abuse of discretion. Mohamud has therefore failed to satisfy his burden of providing a sufficient record to review the claimed error. See State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986) (appellant bears the burden of providing a sufficient record to review the issues raised on appeal).
Mohamud has provided additional information outside of the appellate record to support this alleged error as part of his personal restraint petition.
B. Ineffective Assistance of Counsel
Mohamud contends that defense counsel's performance was constitutionally deficient because he failed to have an investigator present when he interviewed Jama and because he failed to object to the improper admission of evidence or to prosecutorial misconduct during closing argument.
In order to establish ineffective assistance of counsel, Mohamud must demonstrate both (1) that his attorney's representation fell below an objective standard of reasonableness, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He also bears the burden of rebutting the strong presumption that counsel rendered effective assistance and made all significant tactical decisions in the exercise of reasonable professional judgment. See McFarland, 127 Wn.2d at 335. The failure to establish either prong of the test is fatal to a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697.
Mohamud contends that because defense counsel failed to have an investigator present when he interviewed Jama, he could not effectively impeach her when, during cross-examination, she denied making certain statements during the interview. Mohamud claims that defense counsel therefore acted "as an unsworn witness at trial" when he questioned Jama about what she said during the interview.
Defense counsel cross-examined Jama without objection about several statements she made during the interview, repeatedly suggesting that they were inconsistent with her trial testimony. But, defense counsel's failure to call a witness to impeach Jama's statements during the defense interview must be viewed in the context of defense counsel's actions during the entire trial.
Defense counsel focused impeachment efforts primarily on inconsistencies directly related to the charged offenses. Counsel thoroughly explored most of Jama's prior inconsistent statements through cross-examination and through defense witnesses.
The defense called Alexis Miller and Tammy Morill, Harborview social workers, who testified that Jama claimed she had been attacked by four men and that she had prevented them from sexually assaulting her. Safia Abdulle testified that Jama said she blacked out after drinking and knew only what police and medical providers had told her about the incident. Jama also told Abdulle that Mohamud had been trying to stop her from throwing bottles on the freeway and that her bruises were caused by an unrelated fight with other people. Jamal Isse testified that Jama told him she had blacked out after drinking and did not know what happened. Jama told both Abdulle and Isse that she needed $15,000 to cover her medical costs and a modeling career in order to drop the criminal case. Through the cross-examination of Detective Spong, defense counsel also brought out contradictions between Jama's trial testimony and the statement she gave to Spong shortly after the incident.
The apparent inconsistencies during the defense interview involved primarily the order and timing of certain events occurring well before the charged incident. They include whether Yahya and a third person or only Yahya had picked Jama up the day before the assault and brought her to Yahya's apartment, whether Jama knew the precise timing of various events leading up to the assault, and how much of the alleged drug deal Jama had seen from the back seat of the car. Because Jama acknowledged a significant level of inebriation and an inability to recall the precise timing and order of certain events, the impeachment value of these inconsistencies was minimal.
Given the extensive impeachment evidence that defense counsel brought out pertaining more directly to the charged incident, there is no reasonable likelihood that additional evidence confirming the relatively minor inconsistencies from the defense interview would have affected the outcome. The scope and significance of the impeachment evidence admitted at trial distinguish this case from State v. Horton, 116 Wn. App. 909, 916-17, 68 P.3d 1145 (2003), cited by Mohamud, in which defense counsel failed to impeach the complaining witness about a significant detail linking the defendant to the charged offense.
Mohamud next contends that defense counsel should have objected to the lack of a proper foundation for the admission of a beer bottle found in the car in which Mohamud and Jama were riding. "Counsel's decisions regarding whether and when to object fall firmly within the category of strategic or tactical decisions," and an appellate court presumes that a failure to object constituted a legitimate strategy or tactic. State v. Johnston, 143 Wn. App. 1, 19, 21, 177 P.3d 1127 (2007). Jama conceded that she and Mohamud were drinking beer in the car and that she struck Mohamud in the face with a bottle. Jama also claimed that Mohamud repeatedly struck her with a similar bottle when she was in the vacant apartment. Under the circumstances, the bottle was arguably relevant to the issues raised at trial, and Mohamud fails to make any showing that the bottle would not have been admitted had defense counsel raised an objection. And, in any event, Mohamud fails to identify any specific prejudice resulting from the admission of the bottle. He has therefore failed to demonstrate either deficient performance or resulting prejudice.
Mohamud next contends that defense counsel was constitutionally deficient when he failed to object to the following portion of the deputy prosecutor's closing argument:
Terror. Terror is a word that we have heard a lot in our society. Many would say it is a word that is overused and abused. When you think of the core of the meaning of the word terror, it means an intense overpowering fear.
You can step back and think of Khadra Jama in that apartment. Think of the terror that she felt at the hands of this man, the defendant, Muse Mohamud.
The terror she must have felt and she did feel, begging for him to stop, pleading, begging him over and over again, "don't kill me," begging for mercy, appealing to him, speaking in Somali, looking into his eyes, begging for mercy, and finding none. Nothing would stop him. That is what she felt. She thought that she was going to die.
Mohamud argues that the use of the term "terror" constituted an improper appeal to the jury's emotions and biases about Islamic terrorism. We disagree.
The deputy prosecutor expressly identified the "core" meaning of "terror" as "an intense overpowering fear" and suggested that other meanings were "overused and abused." The prosecutor then related the general meaning to Jama's testimony about her fears during the assault and kidnapping and to the specific elements of the charged offenses. The comments do not imply any association between Mohamud and Islamic terrorism or suggest an emotional appeal to the jury's biases. Defense counsel's failure to object was therefore not deficient performance.
C. Same Criminal Conduct
Mohamud contends the trial court abused its discretion when it determined that his second degree assault and first degree kidnapping convictions did not constitute the same criminal conduct. He argues that the assault and kidnapping offenses were too closely related to constitute separate criminal acts and that the assault furthered the kidnapping. The State maintains that, because the evidence established three sequential and independent criminal acts, each with a different objective intent, the trial court properly concluded that the convictions did not constitute the same criminal conduct. The trial court found, without further explanation, that the two offenses did not have the same intent.
When determining the defendant's offender score under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the trial court counts multiple current offenses separately unless it finds that the offenses encompass the "same criminal conduct." Same criminal conduct means "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). All three elements must be present for multiple offenses to encompass the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
Because RCW 9.94A.589(1)(a) is construed narrowly, most multiple crimes do not constitute the same criminal conduct. State v. Stockmyer, 136 Wn. App. 212, 218, 148 P.3d 1077 (2006). We defer to the trial court's determination of same criminal conduct unless the court clearly abused its discretion or misapplied the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990).
Offenses need not, however, occur simultaneously in order to constitute the same criminal conduct. State v. Porter, 133 Wn.2d 177, 183, 942 P.2d 974 (1997). The "same time" and "same intent" elements may be established if the individual acts were part of a continuing, uninterrupted sequence of conduct. Porter, 133 Wn.2d at 186. In determining whether two crimes share the same criminal intent, the court considers (1) whether the defendant's intent, viewed objectively, changed from one crime to the next, and (2) whether commission of one crime furthered the other. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994).
The parties dispute whether Mohamud had the same criminal intent while committing the assault and the kidnapping. In order to establish second degree assault as charged in this case, the State was required to prove that Mohamud assaulted Jama by strangulation. RCW 9A.36.021(g). Strangulation means "to compress a person's neck, thereby obstructing the person's blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood flow or ability to breathe." RCW 9A.04.110(26). To convict Mohamud of first degree kidnapping, the State had to prove he abducted Jama with the intent to inflict bodily injury. RCW 9A.40.020(1)(c). "Abduct" means to restrain a person's movements by secreting him or her in a place not likely to be found or through the use or threatened use of force.
The State contends that Mohamud's offenses involved sequential and independent criminal acts, each with a different intent. The State argues that the first assaultive act occurred in the car, when Mohamud began strangling Jama and ended when Jama got out of the car in the parking lot. Mohamud then formed a new criminal intent to restrain Jama by threat of bodily injury when he grabbed her by the hair and dragged her into the vacant apartment. The kidnapping was then complete by the time Mohamud forced Jama into the apartment, and he therefore formed a new criminal intent when he resumed strangling her inside the apartment.
But, the State's analysis rests on the assertion that Mohamud committed two separate and distinct assaults that were separated in time by the kidnapping. The State ignores Jama's testimony that Mohamud resumed choking her as he dragged her into the vacant apartment:
Right after I got out of the car, I was trying to go away, and then he dragged me and started choking me and took me to the house. That's all I remember, me going into the house getting dragged. That's all. Getting choked. And I ended up in the bathroom and he was still choking me.
Thus, contrary to the State's contention, the evidence established that a new assaultive incident began almost immediately after Jama got out of the car. The jury was instructed that it had to unanimously agree on which assaultive act constituted the assault. But, because the verdict did not specify the act, the verdict was ambiguous, and principles of lenity require the ambiguity to be construed in favor of a criminal defendant. State v. Taylor, 90 Wn. App. 312, 317, 950 P.2d 526 (1998). Any analysis of whether Mohamud's offenses constituted the same criminal conduct must therefore consider that the assault began shortly after Jama got out of the car. See id. at 321 (when determining whether assault and kidnapping constituted same criminal conduct, court assumed most favorable assault was the basis for the jury's verdict).
Here, the evidence established that the assault and kidnapping began at essentially the same time after Jama got out of the car. Mohamud choked Jama as he dragged her into the apartment and then restrained her in different rooms of the apartment while he continued to choke her. Both offenses continued uninterrupted until the police arrived. Under the circumstances, we cannot say that either the kidnapping or the assault was complete before the other offense commenced or that Mohamud had an opportunity to pause and reflect after completing one offense or to form a new intent before starting another. See State v. Grantham, 84 Wn. App. 854, 858-60, 932 P.2d 657 (1997) (multiple rapes of same victim did not constitute same criminal conduct where defendant had the opportunity to pause and reflect and form new criminal intent before committing next criminal act). Viewed objectively, Mohamud's intent, which was assault, did not change from one crime to the other, and the kidnapping clearly furthered the assault. See State v. Dunaway, 109 Wn.2d 207, 216-17, 743 P.2d 1237, 749 P.2d 160 (1987). For purposes of sentencing, the assault and kidnapping convictions constituted the same criminal conduct. The trial court abused its discretion in concluding otherwise. We therefore reverse Mohamud's sentence and remand for resentencing based on a recalculated offender score.
II. Personal Restraint Petition
In his personal restraint petition, Mohamud has submitted additional evidence to support his claim that the trial court violated his CrR 3.3 speedy trial rights by continuing the trial date. In order to obtain collateral relief by means of a personal restraint petition, Mohamud must demonstrate either an error of constitutional magnitude that gives rise to actual prejudice or a nonconstitutional error that "constitutes a fundamental defect which inherently results in a complete miscarriage of justice." In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). A personal restraint petition must set out the facts underlying the challenge and the evidence available to support the factual assertions. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). Unsupported assertions or vague allegations are not sufficient. Id. at 886.
CrR 3.3(f)(2) authorizes the trial court to grant a motion for a continuance if it "is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." We review the court's decision under this rule for an abuse of discretion. State v. Nguyen, 131 Wn. App. 815, 819, 129 P.3d 821 (2006).
On December 5, 2008, the State requested a continuance because of the deputy prosecutor's planned vacation and because one of the two police officers who responded to the reported disturbance had a scheduled medical procedure. Although Mohamud personally objected to a continuance, defense counsel conceded that a significant defense witness was out of the country and would not be available until February 2009. Noting the preplanned vacation and the unavailability of both State and defense witnesses, the court found that a continuance was required in the administration of justice and set the omnibus hearing for January 9, 2009, with a speedy trial expiration date of March 1, 2009. Trial commenced on February 5, 2009.
A preplanned vacation and the unavailability of State and defense witnesses constitute valid grounds to continue a trial date under CrR 3.3(f)(2). See, e.g., State v. Grilley, 67 Wn. App. 795, 799, 840 P.2d 903 (1992); State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993). Moreover, Mohamud fails to allege or demonstrate any prejudice resulting from the continuance, as required under CrR 3.3(f)(2). He has therefore failed to demonstrate any basis for relief by means of a personal restraint petition.
Mohamud next contends that defense counsel was constitutionally deficient because he failed to impeach Jama about a statement she gave to a victim advocate suggesting that she had been "duct taped" at the Tukwila apartment. In his declaration, defense counsel acknowledges that he was aware the prior statement.
When a petitioner's allegations are based on matters outside the record,
the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. If the petitioner's evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. The affidavits, in turn, must contain matters to which the affiants may competently testify. In short, the petitioner must present evidence showing that his factual allegations are based on more than speculation, conjecture, or inadmissible hearsay.
Rice, 118 Wn.2d at 886. The only evidence supporting Mohamud's claim is a police report relating a single hearsay statement by Janice Newton, a victim's advocate: "The victim further told Newton prior to our arrival that she was duct taped at the residence in Tukwila." Mohamud has provided no further details, including the context of the statement, whether Jama provided additional information, or precisely what Newton would have said had she been called as a witness. On this record, given the extensive evidence of prior inconsistent statements already before the jury, Mohamud has not sustained his burden of overcoming the strong presumption that defense counsel's decision not to pursue the duct taping incident was reasonable or of demonstrating any prejudice resulting from counsel's alleged omissions.
We deny Mohamud's personal restraint petition and affirm his convictions. We reverse his sentence and remand for resentencing based on a recalculated offender score.
WE CONCUR: