Opinion
No. 32675-2-II.
Filed: April 25, 2006.
Appeal from Superior Court of Pierce County. Docket No: 03-1-05971-6. Judgment or order under review. Date filed: 12/17/2004. Judge signing: Hon. Thomas J. Felnagle.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St Box 135, Seattle, WA 98115-6655.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
UNPUBLISHED OPINION
A jury convicted Robert Vestal of first degree robbery, residential burglary, and first degree kidnapping. On appeal, Vestal maintains that (1) the evidence was insufficient to support the residential burglary conviction; (2) the prosecutor committed misconduct; (3) he received ineffective assistance of counsel; (4) the State failed to submit sufficient evidence establishing his criminal history; and (5) his life sentences imposed pursuant to the Persistent Offender Accountability Act (POAA) constitute cruel punishment. We affirm.
FACTS
On December 20, 2003, Vestal robbed a gas station in the presence of several customers. He displayed what appeared to be a firearm and told the cashier, '[I]t's almost Christmastime, don't make me bust a cap in your ass.' 2 (Morning Session) Report of Proceedings (RP) at 32. Vestal appeared weary and his eyes were 'red rimmed,' like he had been up all night. 2 (Morning Session) RP at 42.
Vestal drove away but was followed by two witnesses. At some point, he got out of the car, gestured at his pursuers, and ran into an apartment complex.
Vestal knocked on an apartment door and Douglas Bushaw answered. Vestal told Bushaw that he needed to use the phone because his wife was having a baby. When Bushaw went to retrieve the phone, Vestal came inside and shut the door behind him. He ordered Bushaw to sit on the floor. When Bushaw initially refused, Vestal stated, '[N]o, get on the floor; I just did a heist, and I have a gun, and I don't have anything to lose by shooting you; sit on the floor.' 2 (Morning Session) RP at 60-61. Bushaw sat on the floor.
The two talked for awhile. Vestal told Bushaw to whisper and to keep looking out the window to see if anyone was coming. Vestal asked for and drank a beer. Vestal indicated that Bushaw was a 'con's friend' because he was so cooperative. 2 (Morning Session) RP at 65. He told Bushaw about his children and how he had previously been to jail. He took $400 from his waistband, put it in Bushaw's couch, and stated that the money was for his children's Christmas. He wrote a number on the wall and told Bushaw to call it so someone could retrieve the money.
At some point there was a knock at the door. Vestal directed Bushaw to answer the door but to be careful about what he said. Two men at the door asked Bushaw if he had seen anyone running in the complex. Bushaw said no and shut the door.
A second knock at the door came a few minutes later. Vestal told Bushaw not to answer it, but Bushaw convinced him that it would look suspicious not to respond this time. Bushaw opened the door to a patrol officer, pointed inside, and then ran out of the apartment. Police apprehended Vestal in the apartment.
The State charged Vestal with first degree robbery, residential burglary, and first degree kidnapping. At trial, Vestal presented a diminished capacity defense. He testified that his alcohol and cocaine consumption had caused him to black out during the crimes.
The jury found Vestal guilty as charged. At sentencing, Vestal stipulated to his criminal history, which included a 1988 second degree rape conviction and a 1993 attempted first degree robbery conviction. Each qualified as a strike under the POAA. Vestal's current robbery and kidnapping offenses each qualified as a third strike. Vestal was sentenced to life without the possibility of early release on each count. The court imposed a standard range sentence on the residential burglary conviction.
This appeal followed.
ANALYSIS Sufficiency of the Evidence
A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle. RCW 9A.52.025(1). Here, Vestal argues, not that he lacked the capacity to form the required specific intent for residential burglary, but that the evidence was insufficient to find that he entered or remained unlawfully in Bushaw's apartment with intent to commit a crime against a person or property therein. We disagree.
A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn therefrom. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We will affirm a jury's guilty verdict if the evidence, when viewed in the light most favorable to the State, permits any rational trier of fact to find all the elements of the crime beyond a reasonable doubt. Goodman, 150 Wn.2d at 781.
The evidence was sufficient to find that Vestal entered Bushaw's apartment intending to commit a crime against Bushaw. Fleeing from the robbery, Vestal entered Bushaw's apartment without permission after telling him that he needed to use a phone because his wife was in labor. Vestal then told Bushaw that he would shoot him if Bushaw did not do as he ordered. Vestal told Bushaw to be quiet, to keep a lookout, and to make sure no one knew he was inside when Bushaw answered the door. The jury could conclude from this evidence that Vestal entered the apartment to abduct Bushaw and use him as an aid in escaping capture for the robbery. See RCW 9A.40.010(1)-(2) (defining 'abduction'), .020 (first degree kidnapping). Sufficient evidence supports the jury's verdict finding Vestal guilty of residential burglary.
Citing only a portion of the prosecutor's closing, Vestal asserts that the State's theory was that Vestal entered Bushaw's apartment solely to elude his pursuers; thus, he did not enter with an intent to commit a crime against a person or property therein. But a review of the prosecutor's entire argument reflects the theory that Vestal entered the apartment to take Bushaw hostage as a means of furthering his escape.
Prosecutorial Misconduct
Vestal maintains that the prosecutor committed misconduct by commenting on his exercise of the marital privilege. Spousal communications are privileged during and after the marriage and may not be revealed by either spouse without the consent of the other. Former RCW 5.60.060(1) (2001). It is misconduct to draw an inference of guilt from the assertion of the marital privilege. State v. Smith, 82 Wn. App. 327, 336-37, 917 P.2d 1108 (1996), review denied, 130 Wn.2d 1023 (1997), overruled by State v. Miller, 110 Wn. App. 283, 284-85, 40 P.3d 692, review denied, 147 Wn.2d 1011 (2002). But Vestal's argument is not well taken.
Vestal testified that on the day of the robbery, he went to an employment agency to find work to pay for presents that he and his ex-wife put on layaway for their children. According to Vestal, he then went to a friend's home and smoked cocaine and drank alcohol. The prosecutor asked the following in cross-examination:
Q. And if it were true — or, in fact, if you went to put toys on layaway at some store — and I think your words were, we went and put toys on layaway — your wife would be able to corroborate that fact, correct?
A. Yes, sir.
Q. Don't have her here, do you?
[DEFENSE COUNSEL]: Objection, Your Honor; form of the question.
THE COURT: Sustained.
4 RP at 362. The prosecutor raised the issue of layaway presents in closing argument: '[T]here's no — his ex-wife is not here to testify and corroborate that that was going on.' 4 RP at 382.
Vestal's prosecutorial misconduct claim fails for three reasons. First, the fact that Vestal and his ex-wife had put presents on layaway was not a 'communication' subject to privilege. State v. Hermes, 71 Wn.2d 56, 58-59, 426 P.2d 494 (1967); State v. Americk, 42 Wn.2d 504, 506-07, 256 P.2d 278 (1953). Second, Vestal and his ex-wife were divorced at the time of the allegedly privileged communication; the marital privilege does not apply to communications between ex-spouses. Third, Vestal's failure to make a marital privilege objection at trial waived this issue. See RAP 2.5(a) (nonconstitutional error waived if not raised at trial); State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (failure to object generally waives alleged prosecutorial misconduct); State v. Roberts, 73 Wn. App. 141, 145, 867 P.2d 697 (appellate court does not consider specific objections raised for the first time on appeal), review denied, 124 Wn.2d 1022 (1994).
Vestal also contends that the prosecutor's remarks improperly suggested that Vestal had a duty to present a case. But under the missing witness rule, '[t]he prosecutor may comment on the defendant's failure to call a witness so long as it is clear the defendant was able to produce the witness and the defendant's testimony unequivocally implies the uncalled witness's ability to corroborate his theory of the case.' State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114, review denied, 115 Wn.2d 1014 (1990); see also Smith, 82 Wn. App. at 336 (missing witness rule does not apply if testimony is privileged). Here, Vestal offered testimony that he claimed could be corroborated by his ex-wife; the prosecutor did not commit misconduct by commenting on Vestal's failure to call his ex-wife to provide that corroboration.
Ineffective Assistance of Counsel
The State impeached Vestal's credibility with a prior conviction for attempted first degree robbery. Defense counsel stipulated that the conviction was admissible under ER 609(a)(2) as a crime of dishonesty. Vestal now maintains that defense counsel was constitutionally ineffective for not seeking to have the crime sanitized, i.e., admitted as an 'unnamed crime of dishonesty.' We disagree.
An ineffective assistance of counsel claim requires the defendant to show that (1) counsel's performance was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) the deficient performance was prejudicial, i.e., that there is a reasonable probability that the outcome would have been different but for the deficient representation. In re Pers. Restraint of Davis, 152 Wn.2d 647, 672-73, 101 P.3d 1 (2004). Deficient performance is not shown by matters that go to a reasonable trial strategy or tactic. Davis, 152 Wn.2d at 673. Where the issue is counsel's failure to bring a motion, the defendant can establish prejudice only if the motion would have been granted and the outcome of the proceeding would have been different. State v. Price, 127 Wn. App. 193, 203, 110 P.3d 1171 (2005), review granted in part, 156 Wn.2d 1005 (2006).
ER 609 governs the admission of a prior conviction for impeachment purposes. A conviction is admissible per se under ER 609(a)(2) if it is for a crime of dishonesty. Under ER 609(a)(1), a conviction is admissible if the crime was punishable by death or imprisonment in excess of one year and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered. A trial court has broad discretion in its ER 609 rulings. State v. Rivers, 129 Wn.2d 697, 704-05, 921 P.2d 495 (1996); see also Davis, 152 Wn.2d at 691 (trial court abuses its discretion only if its decision is manifestly unreasonable or based on untenable grounds).
The Washington Supreme Court has stated that if a conviction is admitted under ER 609(a)(1), 'it is anomalous to unname the felony as it is generally the nature of the prior felony which renders it probative of veracity.' State v. Hardy, 133 Wn.2d 701, 712, 946 P.2d 1175 (1997). 'The same comment logically applies under ER 609(a)(2).' State v. Teal, 117 Wn. App. 831, 844, 73 P.3d 402 (2003), aff'd, 152 Wn.2d 333 (2004). However, a trial court retains the discretion to sanitize a prior conviction under ER 609 if the similarity between the conviction and the current charge raises a concern that the conviction might be used for improper propensity purposes. State v. Gonzales, 83 Wn. App. 587, 594-95, 922 P.2d 210 (1996); State v. King, 75 Wn. App. 899, 907-09, 878 P.2d 466 (1994), review denied, 125 Wn.2d 1021 (1995); State v. Gomez, 75 Wn. App. 648, 655-56, 880 P.2d 65 (1994).
This rule differs from that where a prior conviction is an element of the charged offense, for example, to establish a defendant's status as a convicted felon in a prosecution for unlawful possession of a firearm. In Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), the Court held that when the only purpose for admitting a prior conviction is to prove the defendant's status as a felon, and details of the conviction are more prejudicial than probative, the trial court must accept the defendant's generic stipulation. The Court limited its holding to cases where the details of the conviction are otherwise inadmissible. Old Chief, 519 U.S. at 190. When a prior conviction is admitted under ER 609, specific details are admissible to establish the probative value of the conviction as a measure of the defendant's credibility. Hardy, 133 Wn.2d at 712; Teal, 117 Wn. App. at 843-44.
In Teal, like here, the defendant was charged with first degree robbery and the trial court admitted a prior conviction under ER 609(a)(2) for attempted robbery. On appeal, Division One rejected the defendant's claim that the trial court abused its discretion in refusing to sanitize the prior conviction:
In view of Hardy's observation that it is generally the nature of the felony that makes it probative, we are not prepared to hold that a trial court must approve such a request. Teal's prior convictions were admitted in accordance with the rule, solely for their bearing on his credibility and with a limiting instruction in that regard. We conclude the court did not abuse its discretion by allowing them to come in as named felonies.
Teal, 117 Wn. App. at 844-45.
Here, defense counsel correctly stipulated that Vestal's prior attempted first degree robbery conviction was admissible under ER 609(a)(2) as a crime of dishonesty. Rivers, 129 Wn.2d at 705. Whether defense counsel reasonably chose not to ask that the conviction be sanitized is debatable. See King, 75 Wn. App. at 909 ('Some defendants may perceive that withholding the nature of the felony from the jury will lessen the prejudice, particularly where the prior felony is similar to the current charge. Other defendants may prefer that the felony be named so that the jury does not speculate that the prior conviction is something even worse.'); Gomez, 75 Wn. App. at 655 n. 10 ('[T]here are circumstances in which counsel may decide that jury speculation about the nature of the prior conviction is more prejudicial than naming the crime.').
But, even assuming deficient performance, Vestal cannot show prejudice. It cannot be said as a matter of law that the trial court would have granted a motion to sanitize the prior conviction. Hardy, 133 Wn.2d at 712; Teal, 117 Wn. App. at 844-45. Further, the jury was instructed to consider the prior conviction only in assessing Vestal's credibility. See State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001) (jury presumed to follow instructions). And even assuming the jury disregarded the limiting instruction, there is no reasonable possibility that the jury convicted Vestal based on his prior robbery conviction. The record does not support Vestal's claim that he received ineffective assistance of counsel.
Sentencing and Proof of Criminal History
Under the POAA, a court must sentence a persistent offender to life imprisonment without the possibility of early release. RCW 9.94A.570. A 'persistent offender' is someone who is convicted of a 'most serious offense' and who has previously been convicted on at least two separate occasions of felonies that would be considered most serious offenses under former RCW 9.94A.030(28) (2002). Former RCW 9.94A.030(32)(a). The State must prove by a preponderance of the evidence prior convictions used as predicate strike offenses for purposes of the POAA. In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 123 P.3d 456 (2005).
Vestal challenges his sentencing on several grounds. He first maintains that his stipulation to the prior convictions was insufficient to satisfy the POAA. Vestal cites State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002), where the court stated: "The best evidence of a prior conviction is a certified copy of the judgment.' The State may introduce other comparable evidence only if it is shown that the writing is unavailable for some reason other than the serious fault of the proponent' (citation omitted) (quoting State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999)). But this passage concerns attempts to prove criminal history during sentencing by using 'other comparable documents of record or transcripts of prior proceedings.' Ford, 137 Wn.2d at 480. It is well established that '[a] sentencing court may rely on a stipulation or acknowledgment of prior convictions without further proof.' Cadwallader, 155 Wn.2d at 873.
Vestal next contends that his stipulation was ineffective because it was conditioned on entry of a guilty plea. Vestal's stipulation was made on a standard form entitled, 'STIPULATION ON PRIOR RECORD AND OFFENDER SCORE (Plea of Guilty).' Clerk's Papers (CP) at 109. The form continued:
Upon the entry of a plea of guilty in the above cause number, charge ROBBERY IN THE FIRST DEGREE; RESIDENTAL BURGLARY; KIDNAPPING IN THE FIRST DEGREE, the defendant ROBERT WILLIAM VESTAL, hereby stipulates that the following prior convictions are his complete criminal history, are correct and that he is the person named in the convictions. CP at 109.
Despite the erroneous plea language in the stipulation form, Vestal's stipulation was effective. The form was filed and signed by Vestal, defense counsel, and the prosecutor at sentencing. Defense counsel acknowledged the stipulation at sentencing: 'I have copies of all the judgment and sentences, and I've had them for a number of months, and we've reviewed them, and there is no dispute with regard to either the offender score or the counts which fall under the [POAA].' RP (Dec. 17, 2004) at 3. The plea language in the form reflects little more than a harmless scrivener's error.
Vestal further contends that defense counsel was constitutionally ineffective for not requiring the State to prove his prior strikes using certified copies of each judgment and sentence. The thrust of Vestal's argument is that a defendant facing a POAA sentence has nothing to lose, and possibly something to gain, by refusing to stipulate and forcing the State to prove his criminal history. We decline to hold that a defense attorney acts unreasonably by being conscious of the court's burdensome docket and stipulating to matters that may be serious but are undisputed. Moreover, even if we assume that encouraging a stipulation is deficient performance, Vestal has not shown prejudice. He does not claim that his sentences or criminal history are erroneous. Nor does he dispute that his counsel possessed copies of the proof he now says should have been handed to the sentencing court in lieu of the stipulation. Vestal's counsel was not ineffective.
Vestal also contends that he has a constitutional right to have a jury find his criminal history. But in Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court specifically excluded a defendant's prior convictions from those sentence-increasing facts that a jury must find. See also State v. Ball, 127 Wn. App. 956, 959-60, 113 P.3d 520 (2005) (no jury trial right under Blakely to finding of strikes under POAA), review denied, 156 Wn.2d 1018 (2006). Vestal's claim that the prior conviction exception in Blakely is dictum is incorrect. Further, we again reject Vestal's contention that the prior conviction exception is no longer good law due to Justice Thomas's concurring opinion in Shepard v. United States, 544 U.S. 13, 27-28, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (Thomas J., concurring). See State v. Rivers, 130 Wn. App. 689, 692-93 n. 3, 695-96, 128 P.3d 608 (2005); State v. Jackson, 129 Wn. App. 95, 105 n. 10, 117 P.3d 1182 (2005), review denied, No. 77669-5 (Apr. 4, 2006); State v. Hunt, 128 Wn. App. 535, 542, 116 P.3d 450 (2005); State v. Jones, 126 Wn. App. 136, 142, 107 P.3d 755, review granted in part, 124 P.3d 659 (2005); State v. Alkire, 124 Wn. App. 169, 176-77, 100 P.3d 837 (2004), review granted in part, remanded, 154 Wn.2d 1032 (2005).
Lastly, Vestal maintains in a Statement of Additional Grounds, RAP 10.10, that his POAA sentences are impermissible under the following passage from State v. Hughes, 154 Wn.2d 118, 135, 110 P.3d 192 (2005):
'Under Washington law, however, the court may not consider criminal history per se in issuing exceptional sentences because prior convictions are used to compute presumptive sentences. Therefore, prior convictions alone can never be enough to warrant an exceptional sentence under Washington law' (citation omitted). This passage does not apply to the POAA, because a life sentence imposed under the POAA is a standard sentence. See Ball, 127 Wn. App. at 959-60.
Compare this passage with the current version of the Sentencing Reform Act of 1981, chapter 9.94A RCW. See RCW 9.94A.535(2):
The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
(a) The defendant and the state both stipulate that justice is best served by the imposition of an exceptional sentence outside the standard range, and the court finds the exceptional sentence to be consistent with and in furtherance of the interests of justice and the purposes of the sentencing reform act.
(b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
(c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
(d) The failure to consider the defendant's prior criminal history which was omitted from the offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.
Cruel Punishment
Vestal also maintains that his sentences of life without the possibility of early release violate the federal and Washington constitutional prohibitions against cruel punishment. U.S. Const. amend. VIII; Wash. Const. art. I, sec. 14. We disagree.
The Washington constitutional provision barring cruel punishment provides more protection than the federal constitution's prohibition against cruel and unusual punishment. State v. Thorne, 129 Wn.2d 736, 772, 921 P.2d 514 (1996). Thus, a finding that Vestal's sentences pass muster under the Washington provision negates the need for a federal constitutional analysis. Thorne, 129 Wn.2d at 772-73. We consider the following factors in reviewing whether a defendant's punishment is cruel: the nature of the offense; the legislative purpose behind the POAA; the punishment the defendant would have received in other jurisdictions for the same offense; and the punishment meted out for other offenses in Washington. Thorne, 129 Wn.2d at 773.
Vestal's claim would have no merit under the Eighth Amendment. See Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) (rejecting challenge to two consecutively imposed sentences of 25 years to life under California's three strikes law; defendant received the sentences for shoplifting $85 in videotapes from one store and $69 in videotapes from another store, when he had previously been convicted of a misdemeanor theft offense, multiple counts of first degree residential burglary, transportation of marijuana, petty theft, and a felony offense of transportation of marijuana); Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (rejecting an Eighth Amendment challenge on a sentence of 25 years to life under California's three strikes law; defendant received the sentence after stealing $1,200 in golf clubs when he had previously been convicted of numerous theft, burglary, and robbery charges).
Vestal's sentences were based on his current offenses of first degree robbery and first degree kidnapping, and his prior convictions for second degree rape and attempted first degree robbery; Vestal's strikes include one serious violent offense and three violent offenses. Former RCW 9.94A.030(37), (45). Vestal's crimes are more egregious than the minimum required for a POAA sentence. Former RCW 9.94A.030(28), (32). Further, the Washington Supreme Court has consistently rejected constitutional claims that POAA sentences are cruel punishment when based on strikes comparable to Vestal's. See Thorne, 129 Wn.2d at 773-77 (strikes included two first degree robberies, one second degree robbery, and one first degree kidnapping); Rivers, 129 Wn.2d at 713-15 (strikes included two second degree robberies and one second degree assault); State v. Manussier, 129 Wn.2d 652, 676-79, 921 P.2d 473 (1996) (strikes included two first degree robberies and one second degree robbery), cert. denied, 520 U.S. 1201 (1997); see also State v. Cruz, 91 Wn. App. 389, 402-03, 959 P.2d 670 (1998) (three strikes included first degree rape of a child, rape, and attempted first degree burglary), reversed on other grounds, 139 Wn.2d 186 (1999); State v. Ames, 89 Wn. App. 702, 709-10, 950 P.2d 514 (strikes included second degree assault, first degree robbery, and second degree robbery), review denied, 136 Wn.2d 1009 (1998). Following these decisions, Vestal's sentences under the POAA are not unconstitutionally cruel.
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.
HUNT, J. and VAN DEREN, J., concur.