Opinion
68333-1-I
07-02-2012
STATE OF WASHINGTON, Respondent, v. CHRISTOPHER EUGENE SIMMS, Appellant. STATE OF WASHINGTON, Respondent, v. ADRIAN TUBIS BROUSSARD Appellants
UNPUBLISHED OPINION
Appelwick, Judge
Adrian Broussard appeals his conviction for attempted first degree robbery with a firearm enhancement, arguing there was insufficient evidence to support the conviction. Christopher Simms appeals his conviction for attempted first degree robbery, with a firearm enhancement, and conspiracy to commit first degree robbery. Simms argues he was deprived of his right to a fair trial by the lack of a cautionary jury instruction regarding accomplice testimony, prosecutorial misconduct, and ineffective assistance of counsel. Alternatively, he argues that his sentencing enhancement must be reversed, based on an erroneous unanimity instruction, and that his conditions of community must be stricken. Finding no error, we affirm.
FACTS
Ashley Jones looked out her apartment window and saw Kevin McField and Adrian Broussard looking up at her. McField is married to Kendra Keith, Jones's cousin and close friend. Keith and McField live next door to Jones. Broussard and Jones had a romantic relationship in 2003 or 2004, but it did not end well and they rarely saw each other after that time. When they did see each other, they normally did not speak. McField and Broussard wanted to speak to Jones, and she told them out the window to wait for a minute. She went downstairs and opened the front door.
After Broussard said he was hungry, Jones offered him a sandwich. He came inside and sat on the couch, and McField left. While Jones was in the kitchen making sandwiches, she could see Broussard's phone "glowing up." She heard her three year old daughter tell Broussard, "My Uncle Martin's stuff is upstairs." Martin Jones is Jones's brother. He did not live in Jones's apartment, but kept some things there.
Jones also heard Broussard take one phone call. The conversation was short, and she heard Broussard say something to the effect of, "I'll call you back." After the call, Broussard went upstairs to use the bathroom. Jones was close enough to hear what was going on in the bathroom, but did not hear the toilet flush. Broussard asked if he could stay and watch a movie, but Jones said, "No."
Around that time, Jones saw a shadow outside her back door. McField was outside and said he wanted to speak to Broussard. Jones told McField to go around to the front. She told Broussard that McField wanted to talk to him and that he should meet McField at the front door. Nevertheless, Broussard exited through the back door. The back door was already open when Broussard left, and he did not close it as he left.
One or two minutes after Broussard left, Jones walked toward the back door to close and lock it. Then, a man came in that door with a gun. He demanded to know where the money was. The man was wearing black pants, a black hooded sweatshirt, black shoes, and a blue bandana over his face. Jones told a responding police officer that the man had corn rows underneath the hood and that he was African-American with a medium complexion. At trial, she described the man as African-American with a light complexion.
She also told the responding officer that the perpetrator was holding a semiautomatic pistol in his right hand and a loaded clip in his left hand. Despite holding the clip in his hand, he indicated that there was a bullet in the chamber. At trial, Jones stated that the gun was loaded when he entered, and then he turned around, took the clip out, and came toward her with the gun.
Jones did not know what money the man was talking about and defensively picked up her daughter. Eventually, the gunman left the apartment without taking anything.
At the time, Jones did not recognize the perpetrator. She ran next door, where McField and Keith lived, and yelled for someone to call the police. When she saw Broussard in the apartment, she accused him of setting her up. Jones called the police, and Broussard left.
At the grocery store week later, Jones saw Anthony Smith, Broussards' younger brother, and a man she recognized as Chris Simms. Sims was wearing the same pants and shoes as the perpetrator. It registered in her mind that he was the gunman. She notified the police. At trial, she was positive it was Simms that had come into her apartment, but admitted she had already heard rumors that he was involved.
Smith was subsequently arrested and charged with a robbery. He made a plea deal with the State and agreed to testify against Broussard and Simms in this trial. Smith testified that he, Simms, Broussard, and Martin Jones were all involved with a local gang. A few days before the attempted robbery, Smith, Simms, and another gang member decided they would rob Martin. They considered Martin a weak link and saw him as an easy target. They thought he had money, because he was selling crack in the neighborhood.
The day of the robbery, Simms and Smith drove around in Smith's car and chose places for Smith to wait for Simms while he committed the robbery. They parked about two blocks away from Jones's apartment. Simms called Broussard and told Broussard he needed him to do something. According to Smith, Simms told Broussard to leave the door open because he was about to rob the place. After the phone call, Simms told Smith that his "'brother [was] going to leave the back door open.'"
Simms got out of the car. Smith reported that Simms was wearing black pants, a heavy duty black coat with a hood, and had a blue bandana tied over his face. Smith also testified that Simms had a semiautomatic nine-millimeter gun with him. When Smith had fired the gun a month earlier, it jammed, and he had to take the clip out to get it to work.
Instead of waiting for Simms, Smith got scared and left. Smith saw Broussard later that night. Broussard was angry and said Smith should not be hanging around Simms because Simms got him in bad situations. Broussard said that what had just happened was stupid.
Simms was charged with conspiracy to commit first degree robbery, attempted first degree robbery with a firearm enhancement, and an aggravator alleging the offense was committed to maintain or advance membership or position in a gang. Broussard was charged with attempted first degree robbery with a firearm enhancement with an aggravator that the offense was committed to maintain or advance membership or position in a gang.
The two cases were joined for trial. After trial, a jury found both Simms and Broussard guilty of attempted first degree robbery with a firearm enhancement. The jury found Simms guilty of conspiracy to commit first degree robbery. But, the jury determined that neither defendant committed the crimes to maintain or advance membership or position in a gang.
DISCUSSION
Broussard argues that insufficient evidence supports his conviction. Simms argues that he was entitled to a cautionary instruction regarding accomplice testimony, and that he was prejudiced by prosecutorial misconduct. Alternatively, he argues that his firearm enhancement must be vacated, because the trial court gave an improper unanimity instruction and that his conditions of community custody must be stricken.
I. Sufficiency of the Evidence
Sufficient evidence supports a conviction when, viewing the evidence in the light most favorable to the State, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
An accomplice bears the same criminal responsibility as a principal. State v. Silva-Baltazar, 125 Wn.2d 472, 480, 886 P.2d 138 (1994). A person is an accomplice if, with knowledge that it will promote or facilitate the commission of the crime, he solicits, commands, encourages, or requests another person to commit the crime, or he aids or agrees to aid another person in planning or committing the crime. RCW 9A.08.020(3)(a)(i), (ii). Presence at the commission of a crime, even coupled with knowledge that the presence will aid in the commission of the crime, is not sufficient to show accomplice liability. State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981). It must be established that the defendant was ready to assist in the commission of the crime. Id. at 933.
Broussard argues that there is insufficient evidence to support his conviction as an accomplice to attempted first degree robbery, because the evidence shows, at best, that he listened to Simms's plan and stood by while Simms implemented it. He claims that he merely left through the back door, which was already open. He indicates that, although he did not close the door behind him, Jones did not immediately close it herself.
But, Smith testified that Simms called Broussard, told Broussard he needed him to do something, and directed him to leave the back door open because he was "making a move" and about to rob the apartment. After the phone call, Simms told Smith, "'Your brother is going to leave the back door open.'" That account is consistent with Jones's testimony. Jones testified that it was unusual for Broussard to show up at her apartment, and that he accepted a phone call while in the apartment. And, she heard her three year old daughter tell Broussard, "My Uncle Martin's stuff is upstairs." Further, Broussard exited through the back door even though Jones told him that McField was going to meet him at the front door. That the back door was already open when Broussard left does not change the fact that he agreed to leave the back door open, or that he left through the back door when he was told to meet somebody at the front door.
The State's evidence that Broussard explicitly agreed to help Simms and acted consistently with that agreement by exiting through the back door is sufficient to support Broussard's conviction.
Broussard also argues in a statement of additional grounds that the firearm enhancement was improper because there was no weapon presented at trial. But, there was sufficient evidence to support the firearm enhancement. It is immaterial that the gun itself was not introduced.
II. Cautionary Accomplice Jury Instruction
Simms argues that he was entitled to a cautionary instruction telling the jury how to evaluate Smith's testimony. Failure to give such a cautionary instruction regarding accomplice testimony is always reversible error when the prosecution relies solely on the accomplice testimony. State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 157, 761 P.2d 588 (1988), superseded on other grounds on reh'g, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989). When accomplice testimony is corroborated by independent evidence, whether a failure to give the instruction is reversible depends upon the extent of the corroboration. Id. If the testimony is substantially corroborated by testimonial, documentary, or circumstantial evidence, then it is not reversible error to not give the instruction. Id. The testimony is sufficiently corroborated if it fairly tends to connect the accused with the commission of the crime charged, and it is not necessary that the accomplice be corroborated in every part of his testimony. State v. Calhoun, 13 Wn.App. 644, 648, 536 P.2d 668 (1975).
For instance, in Calhoun, the only evidence other than accomplice testimony was the fact that the appellant had a gun and holster in a paper sack in the witness's bedroom during the time period within which the crimes were committed. Id. That was insufficient corroboration, and it was error to refuse to give a cautionary instruction, because without the accomplice testimony "there is no connection between the defendant and the crime charged." Id. at 648.
Simms claims that, aside from Smith's testimony, the only evidence that Simms was the perpetrator was Jones's identification. He argues that Jones's identification was not substantial corroboration, because at the time of the identification she had already heard rumors that Simms was the perpetrator. Simms further argues that the identification is discredited, because the gunman's face was obscured by a bandana and hood, and Jones said she was focused on the gun, not his face. And, Jones told a responding officer that the offender was an African-American with a medium complexion, but testified that he had a light complexion.
But, Jones's identification was not the only evidence that corroborated Smith's testimony. For instance, Smith testified that Simms was carrying a semiautomatic gun that had a tendency to jam, which required that the gunman take the clip out. Jones's description of a man holding a gun in one hand and a clip in the other matches the unique description given by Smith. Likewise, Smith testified that Simms was wearing black pants, black shoes, a black top with a hood, and a blue bandana over his face. Jones testified that the man who entered her apartment was wearing black pants, a black hooded sweatshirt, black shoes, and a blue bandana over his face. Smith also testified that Broussard agreed to leave the back door open. Broussard did, in fact, leave out the back door, even though he was directed to leave out the front door. This evidence, in addition to Jones's identification, substantially corroborates Smith's testimony.
Simms argues that there is even less corroboration regarding the conspiracy charge. But, there is no legal requirement that every part of an accomplice's testimony be corroborated and Simms has not articulated why the elements of each charged crime, as opposed to the testimony as a whole, must be corroborated. Because Smith's testimony was corroborated, the cautionary instruction was not mandatory, it was discretionary. State v. Buzzell, 148 Wn.App. 592, 602, 200 P.3d 287 (2009). The failure to give such an instruction was not an abuse of discretion.
Further, Simms did not propose a cautionary instruction below and error cannot be "predicated on the failure of the trial court to give an instruction where no request for such an instruction was ever made." State v. Kroll, 87 Wn.2d 829, 843, 558 P.2d 173 (1976). Thus, Simms can only succeed on appeal if he shows that failure to request a cautionary instruction was ineffective assistance of counsel. Ineffective assistance exists only when counsel's representation was deficient, and the deficiency caused prejudice. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990). Because Simms was not entitled to a cautionary instruction, failure to request such an instruction was not ineffective assistance. See, e.g., State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001).
III. Prosecutorial Misconduct
Simms argues the prosecutor committed misconduct by vouching for Smith's credibility, making an improper false choice argument, and asking the jury to declare the truth of the case. Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). The appellant bears the burden of establishing the impropriety of the statements and their prejudicial effect. State v. Anderson, 153 Wn.App. 417, 427, 220 P.3d 1273 (2009), review denied, 170 Wn.2d 1002, 245 P.3d 226 (2010). In general, prosecutors are afforded wide latitude in making arguments to the jury and are allowed to draw reasonable inferences from the evidence. Id. at 427-28. Further, they are entitled make a fair response to the arguments of defense counsel. State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994).
The prosecutor's improper statements are prejudicial only where there is a substantial likelihood that the misconduct affected the jury's verdict. State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007). When raised for the first time on appeal, reversal is only required if the conduct was so flagrant and ill-intentioned that no curative jury instruction could have corrected the prejudice. State v. Curtiss, 161 Wn.App. 673, 698, 250 P.3d 496, review denied, 172 Wn.2d 1012, 259 P.3d 1109 (2011).
Simms did not object to any of the prosecutor's allegedly improper comments. Thus, in addition to showing that the prosecutor's statements were improper and prejudiced him, Simms must show that the misconduct was so flagrant and ill-intentioned that it could not have been cured with a curative instruction.
A. False Choice
"[I]t is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken." State v. Fleming, 83 Wn.App. 209, 213, 921 P.3d 1076 (1996). Such an argument misrepresents both the role of the jury and the burden of proof by telling jurors they have to decide who is telling the truth and who is lying in order to render a verdict. State v. Wright, 76 Wn.App. 811, 826, 888 P.2d 1214 (1995).
Simms argues that a number of the prosecutor's statements presented this type of false choice argument. Taken in their proper context, the statements were not improper.
First, the prosecutor stated in closing arguments that "this case very clearly is a case where you have to decide who is telling the truth" and you must "determine whether someone is telling the truth." In their proper context, those statements were a permissible explanation of jury instruction one, which provides, "You are the sole judges of the credibility of each witness."
Second, the prosecutor argued, "If you believe [Jones] is telling the truth, if you believe that she is accurate, . . . then he is guilty." This statement was not improper. It acknowledged that the case turned on a credibility determination and contemplated determining not just Jones's honesty, but also the accuracy of her identification.
Third, referring to a slide presented for the jury, the prosecutor argued, "I put up here the motive, the opportunity, the bias, the manner while testifying and the reasonableness of testimony in light of all the facts. And again, this is a credibility contest. This is who is telling the truth." The prosecutor's statements were not improper, because the prosecutor was merely discussing valid factors to consider when making credibility determinations, as explicitly listed in jury instruction 1.
Fourth, the prosecutor stated that "only one or the other is telling the truth." This statement concerned Simms's proffered alibi. There was an issue regarding whether the alleged alibi was really at the same time and on the same day as the robbery, and the prosecutor properly explained that the jury had to make that determination based on the witnesses' credibility.
Fifth, the prosecutor directed the jury to decide, "one, who is telling the truth; and two, whether the State has met its burden of proof beyond a reasonable doubt." This statement was not improper. It was an accurate restatement of the jury instructions to make credibility determinations and decide if the State had met its burden.
B. Declaring Truth
It is not misconduct to state that a trial's purpose is a search for truth and justice, and the prosecutor may urge the jury to render a just verdict that is supported by evidence. Curtiss, 161 Wn.App. at 701. But, the prosecutor may not request that the jury "declare the truth, " because it minimizes the State's burden to prove its allegations beyond a reasonable doubt. Anderson, 153 Wn.App. at 429.
Simms argues that the prosecutor improperly directed the jury to declare the truth of the case on three occasions.
First, the prosecutor argued,
So in conclusion, it is a credibility issue, and it's for you to decide, one, who is telling the truth; and two, whether the State has met its burden of proof beyond a reasonable doubt. The State is asking you to use your common sense and to render verdicts that represent your truth in this case.
The prosecutor did not tell the jury to declare the truth irrespective of the burden of proof and, in fact, explicitly directed the jury to make credibility determinations to decide if the State met its burden. Doing so was not improper.
Second, the prosecutor argued,
Now, the statements that the State disagrees with both counsel is that you are not here to figure out the truth. Truth doesn't matter, so to speak, and this fill-in-the-blank concept, and you are not to solve the case is what I heard. If there are any questions remaining, then you can't be convinced.
One other statement, in all aspects, they have to prove the case beyond a reasonable doubt. That's not accurate. The instructions tell you . . . "It's your duty to decide the facts in the case based on the evidence presented to you during this trial." And, of course, that's what our system is about. You obviously have to get to the truth; otherwise, none of this makes sense.
But the truth of everything is where I am going with this. You don't have to decide. And that same paragraph says, "You must apply the law that the Court gives, " so it says, "from my instructions on the facts that you decide have been proved and in this way decide the case." So you do have to decide the case, so to speak, in that regard.Immediately preceding this passage, the prosecutor explained that the State had a high burden of proof, and that the jury had to reach its decision to convict beyond a reasonable doubt. The passage was essentially an inartful response to one of defense counsel's arguments, and read as a whole it properly directed the jury to decide the necessary facts, and to apply the law to those facts.
Third, the prosecutor directed the jury "to render a verdict that represents the truth about what happened, " and explained that "this refines it." The "this" the prosecutor referred to is the jury instruction that defines reasonable doubt. The last sentence of that instruction provides, "If from such a consideration you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt." The prosecutor did not commit misconduct by asking the jury to render a verdict based on unchallenged jury instructions that explained the proper burden of proof.
C. Vouching
It is misconduct for a prosecutor to vouch for or bolster the credibility of a witness. See State v. Reed, 102 Wn.2d 140, 145, 684 P.3d 699 (1984). But, there is no prejudicial error unless it is clear and unmistakable that the prosecutor is expressing a personal opinion. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). And, the prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and may freely comment on witness credibility based on the evidence. State v. Lewis, 156 Wn.App. 230, 240, 233 P.3d 891 (2010). Evidence of an agreement between the State and a testifying witness for the witness to testify truthfully is not admissible in the State's case in chief. State v. Green, 119 Wn.App. 15, 23, 79 P.3d 460 (2003). Such evidence may bolster the credibility of the witness, but it is generally self-serving, irrelevant, and may amount to vouching. State v. Ish, 170 Wn.2d 189, 198, 241 P.3d 389 (2010). But, evidence of such an agreement is admissible on cross-examination to show bias. Id. If the witness is impeached, the State may then introduce the agreement as an exhibit to rebut a charge of bias as "'evidence of explanation.'" Green, 119 Wn.App. at 23 (internal quotation marks omitted) (quoting State v. Jessup, 31 Wn.App. 304, 316, 641 P.2d 1184 (1982)).
During the State's direct examination of Smith, the prosecutor asked if Smith pleaded guilty to anything. Smith responded, "I ple[a]d[ed] guilty to Robbery in the Second Degree and for five years and to tell the truth about everything and my involvement in [the gang]." That answer was nonresponsive to the prosecutor's question. Then, during cross-examination, defense counsel questioned Smith at length about his motivations at trial, pointing out that his testimony differed from his previous statements to police officers. On redirect, the prosecutor asked Smith if he had a solid understanding of his sentence, and Smith responded that he got the deal "if I am truthful, and yeah, if I am truthful about everything that I have done, even my involvement and everything." On recross, defense counsel established that a reasonable belief on the part of the prosecutor that the defendant was not completely truthful would result in a violation of the agreement.
During closing argument, the prosecutor said that Smith had "an interest in telling the truth, " that Smith gave information about the gang in exchange for a deal, that "he is obligated to tell the truth about everything that he is asked about, " and that he is looking at 10 years in prison if he doesn't tell the truth. Defense counsel argued that there was an issue about whether Smith had to tell the actual truth, or the right version of the truth as contemplated by the prosecutor.
Simms argues on appeal that the prosecutor committed misconduct by emphasizing the agreement to testify truthfully. The cases Simms cites, however, deal with the inherent problems of admitting evidence of an agreement to testify truthfully. See Green, 119 Wn.App. at 23; Ish, 170 Wn.2d at 198. In this case, there is no challenge to the admissibility of the agreement. The agreement was mentioned for the first time when Smith made a nonresponsive answer after the prosecutor asked him if he pleaded guilty to anything. Defense counsel then elicited more information about the agreement. Prosecutors have wide latitude to argue inferences from the evidence. Here, the prosecutor was permitted to argue reasonable inferences regarding the agreement, and Simms has not met his burden to show that the prosecutor's statements were a clear and unmistakable expression of personal opinion.
D. Alternative Arguments
Simms makes two alternative arguments. First, he argues he received ineffective assistance due to counsel's failure to object to the prosecutor's remarks below. Second, he argues that, even if individual instances of misconduct do not compel reversal, the cumulative effect of the prosecutor's misconduct does. Because we conclude the prosecutor's arguments were not improper, we reject these arguments.
IV. Special Verdict
Simms argues that even if his conviction is affirmed, the firearm enhancement should be vacated because the special verdict form contained an erroneous unanimity instruction under State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), overruled by State v. Nuñez, No. 85789-0, 85947-7, 2012 WL 2044377 (Wash. June 7, 2012). The instruction read, in relevant part:
Because this is a criminal case, all twelve of you must agree in order to answer the special verdict forms. In order to answer the special verdict forms "yes, " you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no."
In Nuñez, the Washington Supreme Court overruled the holding in Bashaw that this instruction is improper. 2012 WL2044377, at *6. Accordingly, the instruction was correct in this case.
IV. Conditions of Community Custody
Simms argues that the trial court was not authorized to impose his conditions of community custody, that the trial court improperly delegated its judicial power, and that the conditions are unconstitutionally vague.
The trial court has discretion to order a defendant to participate in crime-related treatment or counseling services, or to comply with crime-related prohibitions, as conditions of community custody. RCW 9.94A.703(3)(c), (f). But, the state and federal due process clauses prohibit imposition of over vague conditions. State v. Sansone, 127 Wn.App. 630, 638, 111 P.3d 1251 (2005). The due process vagueness doctrine "'serves two important purposes: first, to provide citizens with fair warning of what conduct they must avoid; and second, to protect them from arbitrary, ad hoc, or discriminatory law enforcement.'" Id. (quoting State v. Halstien, 122 Wn.2d 109, 116-17, 857 P.2d 270 (1993)). A prohibition is void for vagueness if either (1) it does not define the offense with sufficient definiteness such that ordinary people can understand what conduct is prohibited, or (2) it does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Id. at 638-39.
Here, the trial court entered the following conditions of community custody:
The defendant shall participate in the following crime-related treatment or counseling services: Per CCO [Community Custody Officer].
. . . The defendant shall comply with the following crime-related prohibitions: See Appendix F
The conditions in Appendix F provide:
The offender shall participate in crime-related treatment or counseling services: Per CCO.
. . . The offender shall comply with any crime-related prohibitions.
The trial court had authority to impose these conditions. RCW 9.94A.703(3)(c) permits the trial court to order an offender to participate in crime-related treatment or counseling services. RCW 9.94A.703(3)(f) permits the trial court to order an offender to comply with any crime-related prohibitions. The conditions here were authorized.
Further, the trial court did not improperly delegate its judicial power. The legislature expressly authorized the department of corrections to "establish and modify additional conditions of community custody." RCW 9.94A.704(2)(a). And, the department of corrections may require an offender to participate in rehabilitative programs, or otherwise perform affirmative conduct. RCW 9.94A.704(4).
Finally, Simms's argument that the conditions are unconstitutionally vague is not ripe for review. Simms relies on Sansone, in which this court determined that the term "pornography" was overly vague. 127 Wn.App. at 638. But, Simms does not challenge any conditions that are reviewable without further factual development.
We affirm.