Opinion
No. 25598-1-III.
March 4, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-00682-9, Kathleen M. O'Connor, J., entered October 17, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Schultheis, J.
Paul F. Garner appeals his conviction for first degree murder for the death of Steven Sleizer. In addition to convicting Mr. Garner of murder, the jury returned two special verdicts, finding that Mr. Garner was armed with a firearm and a knife at the time he committed the murder. We conclude there was sufficient evidence to support the element of premeditation; the prosecutor did not commit misconduct during closing argument; the trial court erred by instructing the jury that the case did not involve the death penalty, but the error was harmless beyond a reasonable doubt; and the sentencing court did not exceed its authority by imposing firearm enhancements. Therefore, we affirm the conviction and sentence including the enhancements.
FACTS
Mr. Garner was charged with first degree murder for the death of Steven Jay Sleizer in February 2006. The information alleged that at the time of the murder, Mr. Garner was armed with a firearm under the provisions of RCW 9.94A.602 and RCW 9.94A.533(3). The information was later amended to add a deadly weapon enhancement. At trial, the following evidence was presented.
Events of February 18, 2006. Mr. Sleizer and his girl friend, Makaily, had been involved in a romantic relationship, off and on, for approximately 12 years. Most recently, Mr. Sleizer had been living with Ms. Makaily at her Spokane apartment.
On the afternoon of February 18, 2006, Ms. Makaily and Mr. Sleizer were helping a friend move and loaded a trailer with items to be taken to the dump. Ms. Makaily, an admitted drug addict, had been drinking throughout the day. The couple returned to the apartment to do drugs.
At the apartment, Ms. Makaily and Mr. Sleizer drank alcohol and smoked crack cocaine. An argument first began between Ms. Makaily and Mr. Sleizer at the apartment after they were unable to back the trailer in off of the street. Various people called and stopped by the apartment. The argument between Ms. Makaily and Mr. Sleizer continued after Mr. Sleizer asked out a friend of Ms. Makaily's who briefly came by to get some cigarettes.
Next, Scott Walls, a friend of Ms. Makaily's, arrived. The day before, Mr. Walls had purchased an eight ball of crack cocaine from Ms. Makaily, which he had smoked. Mr. Walls testified that he was on a two-or three-day drug binge at the time. Mr. Walls further testified that on the night of the incident, he was coming down off of a high, and he returned to Ms. Makaily's apartment to buy more crack cocaine. After he arrived, Mr. Walls had a conversation with Mr. Sleizer and stayed at the apartment.
At some point, Mr. Sleizer took some crack cocaine from Ms. Makaily's purse without her permission and smoked it. Ms. Makaily testified that Mr. Sleizer smoked the crack with Mr. Walls. However, Mr. Walls testified that he had only done drugs with Mr. Sleizer the night before. Ms. Makaily felt Mr. Sleizer was being rude to her and was "being a jerk." Report of Proceedings (RP) at 43. Consequently, Ms. Makaily asked Mr. Sleizer to leave multiple times. He refused.
During the evening, Ms. Makaily began making calls to her friends asking them to assist her in getting Mr. Sleizer to leave, which included her mother, Cheryl Larson. Ms. Makaily also asked Mr. Walls for assistance.
In addition, Ms. Makaily called Mr. Garner, whom she also knew as "Chronic." RP at 44. Ms. Makaily had known Mr. Garner for four to five years. She testified that she bought drugs from Mr. Garner three or four times a week, and occasionally sold drugs for him. Ms. Makaily further testified she and Mr. Garner had a physical relationship "once in a while." RP at 42. Ms. Makaily had called Mr. Garner on prior occasions when she was having problems with other people in her apartment, and he would come over and talk them into leaving. On those occasions, Mr. Garner resolved the situations peacefully.
That evening, Ms. Larson, Ms. Makaily's mother, received a telephone call from Mr. Garner approximately 30 minutes before the incident. Ms. Larson was acquainted with Mr. Walls, Mr. Sleizer, and Mr. Garner. Mr. Garner told her that Ms. Makaily had called him because there was trouble at her apartment and Mr. Sleizer needed to leave. Ms. Larson also testified that Mr. Garner "wanted me to go there to get [Mr. Sleizer] out of there because if [Mr. Garner] was going there, the police would be called." RP at 78.
Ms. Larson arrived at Ms. Makaily's apartment but left after only a few minutes. As she left, she told Mr. Sleizer that he needed to leave. As Ms. Larson was backing out of the driveway in her car, she observed Mr. Garner getting out of his vehicle and walking hastily toward the apartment. She also observed him tucking something in his pants. This appeared suspicious to Ms. Larson and she called Ms. Makaily to tell her that she thought Mr. Garner had a gun. When her call went through, however, Ms. Makaily told her, "'Mom, Chronic shot Steve.'" RP at 83.
Mr. Walls testified that as he and Mr. Sleizer were sitting in the living room, Mr. Garner burst through the front door. Mr. Sleizer was seated in a sofa chair and Mr. Walls was sitting on a couch. Ms. Makaily had gone into her bedroom to get money for Mr. Walls. Mr. Walls testified that he heard Mr. Garner holler something to the effect of, "'I told you,'" or, "'I warned you'" and Mr. Garner started moving rapidly toward Mr. Sleizer, who was still seated. RP at 188. As Mr. Garner came across the room, Mr. Walls saw that Mr. Garner had a gun. Mr. Walls testified that Mr. Sleizer said: "'You don't have to cap me for it.'" RP at 190.
Mr. Walls testified that "Chronic went at [Mr. Sleizer]" and Mr. Sleizer attempted to defend himself. RP at 190. Ms. Makaily returned from her bedroom in time to see Mr. Garner standing over Mr. Sleizer, hitting him as he was still sitting in the chair. Next, Mr. Walls testified that "Steve [Sleizer] jumped up, there was shots and grappling all at the same time." RP at 200. Because it happened so fast, Mr. Walls could not remember whether Mr. Sleizer and Mr. Garner were in physical contact prior to any shot being fired. He was also unsure whether Mr. Sleizer was still sitting in the chair when the first shot was fired.
After the first gunshot, Mr. Sleizer and Mr. Garner were standing up, grappling with each other. Mr. Walls then heard another shot. The two men went down to the floor together near the kitchen and there Mr. Garner was seen stabbing Mr. Sleizer with a knife. Mr. Walls testified that the whole event unfolded quickly, taking place in no more than one minute.
Mr. Garner fled from the apartment, ran across the street to where his vehicle was parked and drove off. Mr. Garner was apprehended two days later, on February 20, near Medina, North Dakota.
Mr. Sleizer was transported to a hospital, where he was later pronounced dead. An autopsy performed on Mr. Sleizer revealed that Mr. Sleizer died as a result of two gunshot wounds, one to the upper chest and one to the lower abdomen. The shot to the chest area was determined to be a contact gunshot wound, meaning that the muzzle of the gun was in contact with Mr. Sleizer's chest at the time it was fired. The other gunshot wound was to Mr. Sleizer's lower abdomen. The bullet that entered Mr. Sleizer's left lower abdomen traveled at a "very slight downward projection" and exited his right buttock. RP at 231. The autopsy also revealed four sharp implement wounds which were nonlethal wounds.
During the course of the investigation, police recovered two bullets. One bullet was extracted from Mr. Sleizer's body during the autopsy. The other bullet was retrieved from the headrest of a sofa chair where Mr. Sleizer had been sitting. In addition, a steak knife with a bent blade was found in the street in the area where Mr. Garner's vehicle had been parked. The DNA obtained from the blood stains on the blade of the knife matched Mr. Sleizer's DNA.
Deoxyribonucleic acid.
Detective Donald Giese, who was in charge of the crime scene investigation, found that the apartment was orderly, and testified that there did not appear to have been a major struggle inside. The detective found no weapons, or anything that could be used as a weapon in the apartment. Detective Kip Hollenbeck testified that the initial attack began when Mr. Sleizer was sitting in the chair. Detective Giese stated that in his opinion, Mr. Sleizer was in the process of standing up at the time he was shot.
Based on the bullet recovered from the chair, police determined that a .38 caliber revolver was used in the shooting. As part of the investigation, patrol officers were sent to the apartment where Mr. Garner and his girl friend, Alicia Murillo, resided. Ms. Murillo admitted that she possessed a .38 caliber revolver; however, ballistic tests performed on that weapon showed that it was not the weapon used in the crime. In fact, the gun used in this crime was never found. Pursuant to a search warrant, the police also seized a box of .38 caliber Semi-Wadcutter ammunition from the apartment. The report of the firearms expert stated that the bullets that killed Mr. Sleizer and the bullet retrieved from the chair were matched with the bullets in the box.
Opening Instruction. At the outset of jury selection, the trial court, sua sponte, informed the panel of potential jurors that this case did not involve the death penalty. Specifically, the trial court stated: "And ladies and gentlemen, I will also add for those of you who may have a question, this it not a death penalty case, so you understand that." Clerk's Papers (CP) at 164 (emphasis added). Defense counsel made no objection.
Jury Instructions. Prior to closing arguments, the trial court provided the jury with instructions. Instruction 1 provided, in part, that:
You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law. You may not consider the fact that punishment may follow conviction except insofar as it may tend to make you careful.
CP at 63.
Prosecutor's Closing Argument. During closing arguments, the prosecutor discussed the premeditation element of first degree murder, Ms. Larson's testimony, the relationship between Ms. Makaily and Mr. Garner, the aggressor instruction, and the instructions on second degree murder. Defense counsel did not object to these comments at trial.
On September 21, 2006, a jury found Mr. Garner guilty of first degree murder, as charged in count 1. The jury also returned the two special verdicts, finding that Mr. Garner was armed with a firearm and a knife at the time he committed the murder.
Posttrial. On September 25, 2006, Mr. Garner filed a motion for arrest of judgment. The court denied the motion. The court imposed a minimum sentence of 324 months, which included the 60-month firearm and 24-month deadly weapon enhancements. This appeal followed.
ANALYSIS
Mr. Garner contends that there was insufficient evidence to support his conviction for first degree murder, and that the evidence presented at trial does not support the jury's finding of premeditation. Consequently, Mr. Garner asserts the trial court erred by denying his motion for arrest of judgment, relief from judgment, and request for a new trial.
Sufficiency of the Evidence. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, Page 1099 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). This standard also applies to determine whether circumstantial evidence of premeditation is sufficient. State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).
When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Importantly, "[a] challenge to the sufficiency of the evidence admits the truth of the State's evidence." State v. Luther, 157 Wn.2d 63, 77-78, 134 P.3d 205, cert. denied, 127 S. Ct. 440 (2006).
Circumstantial evidence and direct evidence carry equal weight and are considered equally reliable. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004); State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). "In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt but only that substantial evidence supports the State's case." State v. Summers, 107 Wn. App. 373, 388, 28 P.3d 780 (2001).
Premeditation. A person is guilty of first degree murder when he or she causes the death of another person with a premeditated intent to kill. RCW 9A.32.030(1)(a). The additional element of premeditation distinguishes first degree murder and second degree murder. State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217 (1982).
Premeditation has been defined as "'the deliberate formation of and reflection upon the intent to take a human life and involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999) (internal quotation marks omitted) (quoting State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995)). Premeditation must involve more than a moment in time. RCW 9A.32.020(1).
Premeditation may be shown by circumstantial evidence where the jury's inferences are reasonable and substantial evidence supports the jury's verdict. Finch, 137 Wn.2d at 831. Where the sufficiency of the evidence has been challenged with respect to the element of premeditation, Washington cases have held that a wide range of factors can support an inference of premeditation. Id. Motive, procurement of a weapon, stealth, and method of killing are "particularly relevant" factors in establishing premeditation. Pirtle, 127 Wn.2d at 644. The second and third factors, procurement of a weapon and stealth, may be further combined as evidence of planning. Id.
Significant here, an important factor is whether the defendant brought a gun to the murder scene. State v. Massey, 60 Wn. App. 131, 145, 803 P.2d 340 (1990) (quoting State v. Bingham, 105 Wn.2d 820, 827, 719 P.2d 109 (1986)). In Massey, the court found that evidence that the defendant brought a gun to the location of the murder was sufficient evidence to support a finding of premeditation. Massey, 60 Wn. App. at 145. Our Supreme Court held that "[t]he planned presence of a weapon necessary to facilitate a killing has been held to be adequate evidence to allow the issue of premeditation to go to the jury." Bingham, 105 Wn.2d at 827.
Here, sufficient evidence exists to support the jury's determination that the murder of Mr. Sleizer was premeditated. Mr. Garner told Ms. Larson that if he went to the apartment "the police would be called." RP at 78. The court in Hoffman held that a defendant's statements made prior to the crime may be considered when determining whether the defendant acted with premeditation. State v. Hoffman, 116 Wn.2d 51, 83, 804 P.2d 577 (1991).
In addition, circumstantial evidence shows that Mr. Garner armed himself with a loaded gun and brought it to the apartment. After bursting through the front door, Mr. Garner moved rapidly toward Mr. Sleizer with the gun visible. Mr. Sleizer was heard telling Mr. Garner: "'[Y]ou don't have to cap me for it.'" RP at 190. At that point, and without provocation, Mr. Garner proceeded to attack Mr. Sleizer. Evidence that the defendant brought a weapon to the scene and fired multiple shots supports the reasonable inference of premeditation. Id. Even where a knife used in the commission of a murder was procured on the premises, "the jury could have found that the act of obtaining the knife involved deliberation." State v. Ortiz, 119 Wn.2d 294, 313, 831 P.2d 1060 (1992); see State v. Allen, 159 Wn.2d 1, 8, 147 P.3d 581 (2006) (Sufficient evidence of premeditation may also be found where the weapon used was not available.).
Moreover, the record shows that Mr. Garner used "various means" of injury — first shooting Mr. Sleizer and then stabbing him with a steak knife. "[I]njuries inflicted by various means over a period of time can support a finding of premeditation." Allen, 159 Wn.2d at 8. The record further shows that Mr. Garner inflicted multiple blows with each weapon. The infliction of multiple blows is strong evidence of premeditation. State v. Cross, 156 Wn.2d 580, 627, 132 P.3d 80 (citing State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (2001)), cert. denied, 127 S. Ct. 559 (2006).
There was substantial evidence before the jury from which a rational trier of fact could determine, beyond a reasonable doubt, that the murder was premeditated. Accordingly, Mr. Garner's sufficiency of the evidence challenge is without merit.
Prosecutorial Misconduct. Mr. Garner argues that the prosecutor committed prejudicial misconduct when he: (1) provided an incorrect statement of law when he argued that the mere fact that Mr. Garner was armed with a gun supported a finding of premeditation; (2) misstated Mr. Garner's remark to Ms. Larson that Mr. Sleizer had to leave or "the police would be called," as "'or someone's going to jail,'" and impermissibly argued that the statement was evidence that Mr. Garner was planning to kill Mr. Sleizer; (3) fabricated a story to create a motive for the murder and improperly argued that Ms. Makaily's apartment was a drug house that Mr. Garner was trying to protect; and (4) argued facts not in evidence regarding a second motive.
RP at 78.
RP at 306.
Prosecutorial misconduct may violate a defendant's constitutional right to a fair trial. State v. Charlton, 90 Wn.2d 657, 664-65, 585 P.2d 142 (1978). To prevail on a claim of prosecutorial misconduct, the defendant must establish both the impropriety of the prosecuting attorney's comments and their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). The defendant bears the burden of proof on both issues. State v. Munguia, 107 Wn. App. 328, 336, 26 P.3d 1017 (2001) (quoting State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993)).
Prosecutorial misconduct requires a new trial only if the misconduct was prejudicial to the defendant. State v. Stith, 71 Wn. App. 14, 19, 856 P.2d 415 (1993). Misconduct is prejudicial when there is a substantial likelihood that the improper argument affected the jury's verdict. State v. Barrow, 60 Wn. App. 869, 876, 809 P.2d 209 (1991). Reversal is not required if the error could have been obviated by a curative instruction which defense counsel did not request. Brown, 132 Wn.2d at 561 (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)).
At trial, Mr. Garner failed to object to the prosecutor's closing argument. "[I]n order for an appellate court to consider an alleged error in the State's closing argument, the defendant must ordinarily move for a mistrial or request a curative instruction." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). When no objection is made at trial, the error is preserved for appeal only if the comment is "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." Brown, 132 Wn.2d at 561. Importantly, the absence of a motion for mistrial at the time of the State's closing argument strongly suggests to the reviewing court that the argument did not appear critically prejudicial to the defendant in the context of the trial. Swan, 114 Wn.2d at 661.
On appeal, Mr. Garner argues the prosecutor committed misconduct by stating facts not in evidence during closing argument, in violation of his right to an impartial jury and fair trial. This court finds no merit in Mr. Garner's contention because it mischaracterizes the prosecutor's argument.
"In closing argument, a prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence, including commenting on the credibility of witnesses and arguing inferences about credibility based on evidence in the record." State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995). In addition, a prosecutor may properly draw the jury's attention to any fact in evidence that diminishes or increases the trustworthiness of the witness. State v. Robideau, 70 Wn.2d 994, 998, 425 P.2d 880 (1967); State v. Jefferson, 11 Wn. App. 566, 569, 524 P.2d 248 (1974). A prosecutor's remarks are reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions provided. Brown, 132 Wn.2d at 561.
First, Mr. Garner argues "it is not a correct statement of the law to say that the [sic] merely carrying a loaded gun proves premeditation." Br. of Appellant at 19. The prosecutor made no such statement of law. The prosecutor stated: "[W]hen you pick up a gun and think about using it on another human being, you at that point have premeditated intent to kill someone." RP at 306. As discussed above, evidence that Mr. Garner brought a gun to the apartment where Mr. Sleizer was ultimately murdered is sufficient to support a finding of premeditation. Massey, 60 Wn. App. at 145 (quoting Bingham, 105 Wn.2d at 827). Mr. Garner also argues that it would not be unusual for a drug dealer, such as himself, to routinely carry a gun. However, there was no evidence presented at trial that Mr. Garner ever routinely carried a gun.
Second, Mr. Garner contends the prosecutor impermissibly argued that the statement he made to Ms. Larson during their telephone call was evidence that Mr. Garner was planning to kill Mr. Sleizer. He argues that the prosecutor misstated his remark, telling the jury that he said, "'[y]ou get him out of there or someone's going to jail,'" when Ms. Larson's actual testimony shows Mr. Garner said " the police would be called." RP at 78 (emphasis added).
RP at 306 (emphasis added).
Here, the prosecutor's argument was not meant to be a literal restatement of Ms. Larson's testimony. Rather, the prosecutor expressed a reasonable inference from the testimony presented. "Prosecutors are given reasonable latitude to draw, and express, inferences and deductions from the evidence." Manguia, 107 Wn. App. at 337. Moreover, the prosecutor properly argued that Mr. Garner's comment supported an inference that he had a premeditated intent to kill Mr. Sleizer. See Hoffman, 116 Wn.2d at 83.
Third, Mr. Garner contends the prosecutor fabricated a story in order to create a motive for the murder by improperly arguing that Ms. Makaily's apartment was a drug house that he was trying to protect. Here, Ms. Makaily admitted that she occasionally sold drugs for Mr. Garner. The record shows that Ms. Makaily sold drugs from her apartment, and was in fact selling drugs from the apartment on the night of the murder. Further, Ms. Makaily testified that on prior occasions when she was having problems with people in her apartment, she would call Mr. Garner and he would come over and talk her unwanted guests into leaving. The State's suggestion that Mr. Garner and Ms. Makaily had an "intimate relationship" and that Mr. Garner had "removed people from his drug dealing spot" and "protected that location" was derived from the evidence produced at trial. RP at 312.
During closing arguments, the prosecutor stated:
I think it's important to remember when you talk about wanting to leave, Ms. Makaily gets drugs from Mr. Garner. Ms. Makaily deals drugs for Mr. Garner. They have a very intimate relationship. They've had prior intimate relationships. It's a very intricate relationship, actually. But he's come over in [sic] numerous occasions and removed people from his drug dealing spot because Ms. Makaily has asked him to, without any violence. He's protected that location, as you would truly expect any drug dealer to do.
RP at 312.
Furthermore, comments challenged by Mr. Garner were taken out of context. The State discussed the relationship between Ms. Makaily and Mr. Garner, not in the context of arguing a motive, but in the context of the aggressor instruction.
The prosecutor went on to tell the jury:
But it's important to remember in that relationship, he's not in control of that situation legally or in any other way. He has no right to harm anyone in that location unless he has a reasonable belief that Ms. Makaily is being injured or in harm's way.
RP at 312-13.
Fourth, and finally, Mr. Garner argues that the prosecutor committed misconduct by arguing facts not in evidence when he created a second motive for the murder — the relationship between Mr. Garner and Ms. Makaily. He asserts that there was no evidence of his mental state or that rivalry for affection or jealousy were factors in the shooting. Mr. Garner claims the prosecutor's remarks were "pure conjecture and clearly improper." Br. of Appellant at 21. This argument is without merit. The record shows that Mr. Garner and Ms. Makaily had a physical relationship on occasion. The prosecutor's statement was a proper argument about possible explanations for the murder implicated by the evidence.
Here, the prosecutor's actual statement was as follows:
You need to look at . . . [t]hat Steven Sleizer . . . was in his sites [sic] and [Mr. Garner] could not stand by and let this go on any further. Mr. Sleizer is taking drugs from Ms. Makaily, he's living there. . . . You have to remember all these things as you go through this. These are all important things, but it's about the relationship and why would he want that person out of there.
RP at 313.
Finally, even if this court accepts Mr. Garner's assertion that the prosecutor's argument was improper, we find no evidence that it was prejudicial. There is no indication that without the challenged comments, the jury's verdict would have been different. "[T]he absence of an objection by defense counsel ' strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of trial.'" State v. McKenzie, 157 Wn.2d 44, 53 n. 2, 134 P.3d 221 (2006) (quoting Swan, 114 Wn.2d at 661).
The comments by the prosecutor were proper comments on the evidence. Accordingly, Mr. Garner's argument that he was denied a fair trial as a result of prosecutorial misconduct is without merit. Because the prosecutor's argument was proper, defense counsel was not ineffective by failing to object. Consequently, his related claim of ineffective assistance of counsel likewise fails.
Opening Instruction. The United States Supreme Court has held that a jury in a noncapital case cannot be informed about the defendant's possible sentence. Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994); Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975). "The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury." Shannon, 512 U.S. at 579. Juries are the fact finders whose function is to decide the defendant's guilt or innocence, on the basis of those facts. Id. In contrast, the judge's duty is to determine the sentence. Id. Therefore, providing jurors with sentencing information is irrelevant to their task and "invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion." Id.
Washington law is consistent with Shannon. In Bowman, our Supreme Court held "[t]he question of the sentence to be imposed by the court is never a proper issue for the jury's deliberation, except in capital cases." State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960). In Townsend, the court more specifically held that in a noncapital case it was error for the trial court to inform prospective jurors during voir dire that the case does not involve the death penalty. State v. Townsend, 142 Wn.2d 838, 840, 15 P.3d 145 (2001).
"This strict prohibition against informing the jury of sentencing considerations ensures impartial juries and prevents unfair influence on a jury's deliberations." Id. at 846. The fundamental right to a fair trial and an impartial jury is guaranteed by the United States and Washington constitutions. U.S. Const. amends. VI, XIV; Const. art. I, § 22. In Townsend, the court observed that "if jurors know that the death penalty is not involved, they may be less attentive during trial, less deliberative in their assessment of the evidence, and less inclined to hold out if they know that execution is not a possibility." Townsend, 142 Wn.2d at 847. In Townsend, the court also found that "[c]onsidering the long-standing rule that no mention may be made of sentencing in noncapital cases" counsel's failure to object to the erroneous instruction satisfied the first prong of the Strickland test for ineffective assistance of counsel — deficient performance. Townsend, 142 Wn.2d at 847. However, the court ultimately concluded that the second prong of the Strickland test, prejudice, was not met because the error "in no way affected the outcome" and was harmless because there was ample evidence of premeditation in the case. Townsend, 142 Wn.2d at 849; see State v. Mason, 160 Wn.2d 910, 930-31, 162 P.3d 396 (2007).
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Here, the trial court erred by telling the prospective jurors, during voir dire, that this was not a death penalty case. This court must determine whether the error requires reversal.
Instructional errors in a criminal case are subject to a harmless error analysis. Hoffman, 116 Wn.2d at 97. An error infringing upon the defendant's constitutional rights is presumed prejudicial, and the State bears the burden of proving that the error was harmless. State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997) (citing State v. Caldwell, 94 Wn.2d 614, 618, 618 P.2d 508 (1980)).
Under Washington law, an instructional error in a criminal trial is harmless only if the error (1) is trivial, formal, or merely academic; (2) did not prejudice the substantial rights of the defendant; and (3) in no way affected the final outcome of the case. State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977) (quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970), overruled on other grounds by State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976)).
Here, Mr. Garner argues that the trial court committed an instructional error which requires reversal under the constitutional harmless error standard because he was denied the right to an impartial jury and a fair trial. Even constitutional errors may be so insignificant as to be considered harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). In order for this court to declare that the trial court's error in issuing the instruction was harmless, we must conclude beyond a reasonable doubt that the error did not contribute to the ultimate verdict. State v. Berube, 150 Wn.2d 498, 505, 79 P.3d 1144 (2003).
In this case, while the trial court committed error by informing the jury that the case was not a death penalty case, the error was harmless beyond a reasonable doubt and does not constitute grounds for reversal. From the evidence and testimony presented at trial, this court concludes that any reasonable jury would reach the same result in absence of the error. Id. at 506.
Here, the jury found Mr. Garner guilty of first degree murder and, as shown in the analysis above, ample evidence supports that conviction. The record shows that Mr. Garner brought a loaded gun to Ms. Makaily's apartment. Immediately after bursting through the front door, Mr. Garner proceeded to attack Mr. Sleizer without provocation and without allowing Mr. Sleizer the opportunity to leave the apartment or otherwise avoid a confrontation. The jury was presented with testimony that the initial attack against Mr. Sleizer began as he was sitting in a chair. Throughout the course of the attack, Mr. Sleizer attempted to defend himself. Further, the evidence shows that Mr. Sleizer had been shot two times and stabbed four times.
Finally, the court's instruction was a single statement at the outset of a multiple day trial. Moreover, the trial court properly and specifically instructed the jury in instruction 1 that it had nothing to do with any punishment that may be imposed and that it may not consider any punishment except as it may make them careful. The jury is presumed to have followed these instructions. State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135 (1994).
Here, as in Townsend, there is no reasonable probability that an objection would have affected the final outcome in this case. Thus, because defense counsel's failure to object to the instruction did not affect the jury's verdict, Mr. Garner has failed to show on appeal that his attorney's allegedly deficient performance prejudiced him. Accordingly, Mr. Garner's ineffective assistance of counsel claim is without merit.
Sentencing Enhancements. Washington's sentence enhancement statute, RCW 9.94A.533, mandates additional punishment for crimes committed with a firearm or with a deadly weapon other than a firearm. RCW 9.94A.533(3), (4). Importantly, the statute applies to all felonies except possession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony. RCW 9.94A.533(3)(f), (4)(f).
The special firearm enhancement provision in RCW 9.94A.533(3) provides for additional time to be added to the standard sentence range for felony crimes in which the offender or an accomplice is armed with a firearm. "Firearm" is defined as "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." RCW 9.41.010(1). Specifically, RCW 9.94A.533(3)(a) adds five years of additional time when the completed crime is a class A felony or any felony with a statutory maximum sentence of at least 20 years, which includes first degree murder. The subsection also provides that, notwithstanding any other provision of law, any and all firearm enhancements are mandatory, shall be served in total confinement, and must run consecutively with any other sentencing provisions, including other firearm or deadly weapon enhancements. RCW 9.94A.533(3)(e).
Additionally, RCW 9.94A.533(4) governs enhancements for deadly weapons other than a firearm. Subsection (4)(a) provides that two years of additional time must be added to the standard sentence range for any class A felony or any felony with a statutory maximum sentence of at least 20 years. RCW 9.94A.533(4)(a).
Here, the jury returned two special verdicts, finding that Mr. Garner was armed with both a firearm and a knife at the time of the commission of first degree murder. Pursuant to RCW 9.94A.602 and RCW 9.94A.533, the trial court was required to sentence Mr. Garner to an additional term of confinement based on the jury's findings.
On appeal, Mr. Garner contends that the trial court was without authority to impose the firearm enhancement because, although the Washington legislature created a statutory procedure for the imposition of a deadly weapon enhancement in RCW 9.94A.602, it created no corresponding procedure for submitting a firearm special verdict question to the jury. An identical argument was recently rejected by Division One of this court in State v. Nguyen, 134 Wn. App. 863, 142 P.3d 1117 (2006). However, this court need not reach the merits of this issue in the present case.
At trial, Mr. Garner failed to object to the jury instructions and the special verdict forms. Arguments not raised in the trial court will not be considered on appeal unless they concern a manifest error affecting a constitutional right. RAP 2.5(a); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). Accordingly, Mr. Garner has not properly preserved this issue for appeal.
Conclusion. We affirm the conviction and the sentence including the firearm and deadly weapon enhancements.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and SWEENEY, C.J., CONCUR.