Opinion
No. 46217-2-I.
Filed: June 4, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County, No. 99-1-02211-9, Hon. George Bowden, March 13, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David B. Koch, Nielsen Broman Associates Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Walter J. Sowa, Mail Stop 504, 3000 Rockefeller Ave, Everett, WA 98201-3980.
Seth A. Fine, Snohomish Co. Prosecutor's Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
A jury convicted Duane DeValkeneer of first-degree rape. The trial court imposed a high-end standard range sentence. DeValkeneer appeals arguing that the jury instruction on duress misstated the law and that the court erred in imposing a sentence based on his exercise of his right to stand trial. We affirm because he failed to raise the instructional error below and because his sentence is proper.
FACTS
While Duane DeValkeneer and Liz Jordan were at the apartment of Natausha Summers in the middle of the night, they witnessed Thomas Daniels assaulting Summers and her friend Teresa Hutsell for money they owed him. After about 15 minutes of observing Daniel's threats and assaults, DeValkeneer and Jordan left the apartment. According to Summers, Daniels did not threaten DeValkeneer. Hutsell, however, said that Daniels was irritated with DeValkeneer and may have threatened him. Nevertheless, DeValkeneer and Jordan returned to the apartment to find Summers and Hutsell stripped of their clothes. Summers testified that the two just stood there and laughed while Daniels was screaming and hitting Hutsell and her.
Then, Jordan and Daniels physically forced Summers and Hutsell to engage in oral sex with each other while DeValkeneer continued to watch and laugh. Later, Daniels told Summers to perform oral sex on DeValkeneer. When Summers refused, Daniels hit her. Despite Summers' begging him not to do it, DeValkeneer pulled his pants down and just laughed. While Daniels hit Summers, DeValkeneer grabbed Summers by the hair and forced oral sex until she gagged. DeValkeneer then slipped a condom on and performed vaginal intercourse on Summers. Afterwards, he told her to bend over for anal intercourse. Summers emphatically refused and became hysterical. Despite being struck by a mahogany cane, she told them that she could not do it anymore and that they would have to kill her. They finally stopped and left the apartment. During the entire episode, Summers recalls being struck by the cane between 15-20 times. Immediately after Daniels called her later that day about the money she owed him, she left her apartment and never returned except once with the police.
At trial, DeValkeneer testified that when he arrived at the apartment that night, he thought Daniels, Summers and Hutsell were having a domestic dispute. After leaving and then returning to the apartment, DeValkeneer saw Daniels hitting the two women with a cane as they lay naked on a bed. He witnessed Jordan and Daniels forcing the two women to have oral sex with one another but thought it was a sex game. He said that he realized later that it was not a game by how hard Daniels hit them. When he inquired, Daniels swung the cane around and yelled at him. He felt threatened and afraid to leave. Yet, Daniels never actually struck him with the cane. Out of fear of getting struck, however, he walked towards Summers, unzipped his fly and had her perform oral sex on him as Daniels demanded. He testified that Daniels then swung his cane around, threw a condom at him and commanded him to have vaginal intercourse with Summers.
According to DeValkeneer, he did not have intercourse for very long and just pretended to, so that Daniels would not hit anybody. When he stopped, Daniels left the apartment. At some point, Jordan asked Summers whether she wanted to go to the hospital, but Summers told them both to leave. Upon hearing testimony from Summers, Hutsell, DeValkeneer and others, the jury found DeValkeneer guilty of rape in the first degree. The trial court imposed a 120-month sentence within the standard range. DeValkeneer appeals.
DISCUSSION I. Instructional Error
DeValkeneer argues that the jury instruction on duress misstated the burden of proof, thereby denying him his constitutional right to present a defense and a fair trial. Yet, he did not make this objection below. A party may raise an issue for the first time on appeal if it constitutes a manifest constitutional error. RAP 2.5(a)(3). An appellate court must make a cursory determination as to whether the alleged error presents a constitutional issue at all. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). In asserting his right to present a defense, DeValkeneer cites the Sixth and Fourteenth Amendments to the United States Constitution and article I, § 21 of the Washington Constitution. He maintains that due process requires 'a fair opportunity to defend against the State's accusations,' Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and to present his version of the facts. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
The Sixth Amendment provides the right to speedy trial, witnesses, counsel, etc.:
In all criminal prosecutions, the accused shall enjoy the right to a speedy trial and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
The Fourteenth Amendment establishes due process rights: '[N]or shall any state deprive any person of life, liberty, or property, without due process of law.' Finally, article I, § 21 of the Washington Constitution declares that the right to trial by jury is inviolate.
Accordingly, he argues that this right includes proper jury instructions on the asserted defense — whether duress, self-defense, entrapment, etc. Conversely, the State contends that only instructional errors on self-defense raise constitutional issues because that defense negates the mental element of the offense. State v. McCullum, 98 Wn.2d 484, 494-96, 656 P.2d 1064 (1983). As we are well aware, due process requires the State to prove every element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988). Proof of self-defense, however, may negate an element of the crime. McCullum, 98 Wn.2d at 496. Therefore, if a jury instruction misstates the law of self-defense, it is an error of constitutional magnitude. State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996).
In contrast, proof of duress does not negate any element of the crime. State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994). As a result, any inadequacy in instructions on duress has no bearing on the State's proof of those elements. Any error on those grounds is not a constitutional one. Although it seems that the right to present a defense generally would include proper instructions on the burden of proving duress, Devalkeneer has failed to point to any compelling authority to support that proposition. Richmond v. Thompson, 79 Wn. App. 327, 342, 901 P.2d 371 (1995) (compelling legal authority necessary to raise constitutional issue for the first time on appeal), aff'd, 130 Wn.2d 368, 922 P.2d 1343 (1996); see also City of Spokane v. Taxpayers of Spokane, 111 Wn.2d 91, 96, 758 P.2d 480 (1988) (constitutional argument not addressed on appeal without adequate briefing). He was given a fair opportunity to present a duress defense, his version of the facts, and supporting evidence. Chambers, 410 U.S. at 294; Washington, 388 U.S. at 19; Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
His counsel, however, failed to object to the erroneous jury instruction on duress. Generally, failure to object to an instruction precludes challenge on appeal. State v. Bailey, 114 Wn.2d 340, 345, 787 P.2d 1378 (1990). Because Devalkeneer has failed to demonstrate a constitutional right to a proper duress instruction, we are unable to ascertain a constitutional issue here. Consequently, we do not address the issue for the first time on appeal.
II. Sentencing Remarks
Next, DeValkeneer contends that the court improperly imposed a high-end standard range sentence for exercising his right to trial instead of pleading guilty. The State maintains that the sentence is not a constitutional violation because it is within the standard range. This Court has held that a court may not subject a defendant to more severe punishment solely for exercising his constitutional right to trial. State v. Sandefer, 79 Wn. App. 178, 181, 900 P.2d 1132 (1995) (record did not show that court improperly considered defendant's decision to stand trial instead of pleading guilty); see also State v. Montgomery, ___ Wn. App. ___, 17 P.3d 1237, 1239-40 (2001) (court erred by denying Sex Offender Sentencing Alternatives to the defendant because he caused his victim to go to trial); State v. Richardson, ___ Wn. App. ___, 19 P.3d 431, 432-33 (2001) (court violated due process by imposing attorney fees and court costs on defendant solely because he declined to plead guilty).
Along these lines, the Second Circuit decided that a 60-month increase above the standard minimum sentence (but within the standard range) constituted unconstitutional punishment when based on the defendant's refusal to assist the government in its investigations following his conviction. United States v. Rivera, 201 F.3d 99, 102 (2nd Cir. 1999), cert. denied, Walden v. United States, 121 S.Ct. 237, 148 L.Ed.2d 170 (2000). On the other hand, the Seventh Circuit has ruled that such a basis for increasing a sentence is not a penalty so long as it is within the standard range. United States v. Klotz, 943 F.2d 707, 711 (7th Cir. 1991). Distinguishing that case, the Rivera Court found that Klotz's character influenced the sentencing decision, whereas the judge in Rivera unambiguously attributed the increase in sentence to the defendant's failure to cooperate. Rivera, 201 F.3d at 102.
Here, the court imposed a sentence of 120 months based upon a number of different factors and not solely because Devalkeneer forced his victims to stand trial:
In imposing that sentence . . . I did consider in part in the defendant's favor that he either offered or was present when an offer was made to take the victim to the hospital. . . . I also have considered that he did not himself directly threaten or inflict bodily harm upon the victim apart from the sexual assault and the sexual activity itself. I also considered the incident was at least precipitated initially by Mr. Daniels and some of the harm done to the victims was certainly at the hands of Mr. Daniels. On the other hand, the defendant had an opportunity to take advantage of an offer to a plea to a less serious charge and chose to reject that opportunity and put the victims on trial or at least require that they go through trial. I also thought from hearing the evidence that the defense was particularly lame, and Mr. Devalkeneer's testimony that he felt he himself was a victim as much as Ms. Summers was even more lame than a duress defense under the circumstances here. This is a case where the victim was beaten with a cane, and in part, the defendant observed that behavior to a point where he believed that she was being seriously beaten before then taking advantage of the situation himself. Although he raised as a defense that of duress, I frankly found that the evidence of duress in this case lacked any credibility at all. . . . And I note parenthetically that when he was testifying himself to some of those claims, it was impossible at least for one of the jurors to refrain from laughing. That seemed to be a testament to the credibility that Mr. Devalkeneer brought to the witness stand in trying to explain a duress defense and his participation that evening as a victim. Having said that, it strikes me that a sentence toward the high end of the sentencing range is appropriate.
Report of Proceedings 3/3/2000 at 16-18. Because the trial court considered many different factors in determining the length of the sentence, we find that it did not rely solely on Devalkeneer's decision to go to trial. We conclude that the trial court imposed a proper sentence.
III. Crime-Free Requirement
Finally, Devalkeneer challenges the trial court's authority to require him to remain crime free as a condition of community custody. The State concedes that the court lacked this authority. Both parties agree that courts may require convicted criminals to 'obey all laws' as a condition of community placement for crimes committed on or after July 1, 2000. RCW 9.94A.120(15)(b). Because the crime in question occurred before this date, RCW 9.94A.120(15)(b) does not apply. We conclude that the trial court did not have authority to require Devalkeneer to remain crime free as a condition of community custody. Consequently, we strike the crime free requirement from the sentence.
CONCLUSION
Devalkeneer failed to object to the duress instruction below and has not raised a constitutional issue warranting review. The trial court properly imposed a sentence at the high-end of the standard range but erred in imposing a crime-free requirement for community placement.
We affirm.
WE CONCUR: SUSAN R. AGID, MARLIN J. APPELWICK.