Opinion
No. 35359-8-II.
March 11, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 00-1-00372-4, Frederick W. Fleming, J., entered September 15, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Believing that Rodney Klum had stolen property belonging to a friend of theirs, Russell Pearson and James Davis entered Klum's house and had an altercation with Klum. Davis shot Klum in the head, and Klum died instantly. Pearson's 2000 conviction of felony murder predicated on assault was overturned by the Supreme Court's decision in Andress, and the State filed new charges in 2006. A jury convicted Pearson of second degree felony murder predicated on residential burglary, and Pearson now appeals. None of Pearson's arguments has merit, and we affirm his conviction and sentence.
In re the Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981
(2002).
FACTS
The following facts are taken from this court's unpublished decision in State v. Pearson, noted at 112 Wn. App. 1019, 2002 Wash. App. LEXIS 1455:
On January 8, 2000, Pearson and James Davis arrived at Rodney Klum's apartment. Davis had a shotgun and Pearson had a handgun. Earlier that evening, Klum had punched Pearson in the mouth and taken a pair of night-vision goggles. Pearson, determined to get the goggles back, went to Davis for help and told Davis to bring his shotgun.
When Pearson and Davis knocked on the door at Klum's apartment, another man, Matthew Carr, opened the door. Also at Klum's apartment were Jerry Kohl, Tamie Bruland, and Bruland's five-year-old son, Michael. Pearson and Davis asked for Klum. Klum was in the back of the home, talking on the telephone.
When Klum emerged from a back room, Davis confronted Klum and pulled the shotgun out of his pants, released the safety, and pointed it at Klum. Davis and Pearson declared that they had come to shoot Klum in the foot or leg. Davis saw that Klum had a paintball pistol in his waistband and told Klum to drop the pistol or he would shoot Klum's foot off.
After a brief exchange, Davis raised the shotgun to Klum's head and shoved it into Klum's face. Davis testified that Klum reached for the shotgun and a "tug of war" ensued. 11 Report of Proceedings (RP) at 1417. The shotgun fired into Klum's head, killing him instantly.
In May 2000, the State charged Pearson with first degree murder, or, in the alternative, second degree felony murder during the commission or attempted commission of either an assault or a robbery (each with a firearm enhancement) and one count of first degree unlawful possession of a firearm. A jury acquitted him on the first degree murder charge, but it convicted him of second degree murder by means of assault (with a firearm enhancement) and unlawful possession of a firearm. Pearson was sentenced to a total of 314 months in prison.
This court granted Pearson's personal restraint petition in April 2005, ordering vacation of his felony murder conviction and sentence under In re the Pers. Restraint of Andress, 147 Wn.2d 602, 606, 56 P.3d 981 (2002), which held that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976). Finding that the mandatory joinder issue raised was a factual one, we remanded to the trial court for further proceedings.
In September 2005, after Pearson's murder conviction was vacated, the State charged Pearson with second degree murder (count I), first degree unlawful possession of a firearm (count II), second degree felony murder during the commission or attempted commission of a residential or second degree burglary (count III), and first degree assault (count IV). Pearson filed a motion to dismiss counts I, III, and IV on the grounds of double jeopardy and mandatory joinder. The trial court held that double jeopardy only acted as a bar to count IV (first degree assault). It therefore dismissed count IV, but denied Pearson's motion to dismiss counts I and III.
The trial court entered an order clarifying its earlier order vacating Pearson's sentence, which stated that the vacation applied only to Pearson's second degree murder conviction, not to his first degree unlawful possession of a firearm conviction. The trial court therefore severed count II from counts I and III (as count II was already adjudicated) and ordered that trial proceed on counts I and III.
At trial, Kohl testified that he was at Klum's apartment on January 8, 2000, to work on a car. Kohl stated that Carr answered the door that night, and "when [he] looked, [he] noticed Matt was standing at the door, kind of looking dumbfounded at [him], and [they] had two people standing in the . . . hallway." 4 Report of Proceedings (RP) at 135-36. He identified Pearson as one of those people. Kohl also testified that, when Davis and Pearson realized Klum was not readily available (he was in a back bedroom), Pearson stated that "somebody was gonna get shot . . . in the leg or in the foot." 4 RP at 144.
Kohl then heard the bedroom door open and heard Pearson state: "`That's him.' . . . and that's when the pistol appeared in [Pearson's] hand." 4 RP at 140. Kohl identified the gun as a snub-nosed revolver, "either a .38 or a .357," and stated that it belonged to Tim Knight. 4 RP at 142-43. Davis, on the other hand, was holding a short, pump-action shotgun. Klum was armed with a paintball gun. Klum and Davis confronted each other, told each other to drop their guns, and then Davis shot Klum in the head with the shotgun. Klum died instantly. Davis and Pearson then fled the scene.
Before cross-examining Kohl, defense counsel requested again (outside the presence of the jury) that the trial court permit questioning regarding drug activity at Klum's residence. The trial court questioned the relevance of such testimony, unless Pearson and Davis knew that the residence was a drug house; without that knowledge, the court would not permit that line of questioning. Defense counsel also sought to question Kohl regarding the fact that police recovered a methamphetamine lab in Klum's residence but never charged Kohl, arguing that it went to Kohl's bias as a witness and state of mind at the time of Klum's death. Again, the trial court stated that this evidence was irrelevant unless Pearson and Davis knew of it. The court specifically stated, however, that defense counsel could address the issue again as necessary after more testimony.
Defense counsel attacked Kohl's credibility by pointing out inconsistencies between his current testimony and his testimony from the 2000 trial and by stressing that Kohl was more focused on Davis than Pearson during the altercation. He also emphasized the fact that Kohl did not see the exchange at the front door between Pearson (and Davis) and Carr. Carr testified that he answered the door when Pearson and Davis knocked. When he leaned back to call for Klum, Davis and Pearson walked past him, and Pearson then shut the door and leaned against it. Carr specifically stated that he did not invite them in; "[t]hey just walked in." 5 RP at 409. Carr attempted to approach Davis after Davis pulled out his shotgun, but Pearson stopped him by pointing a revolver at him.
At trial, Pearson filed a motion to suppress all statements made to Trooper Armstrong after Pearson was seized and placed in Trooper Armstrong's patrol car. Pearson argued that the Trooper's interrogation violated his Miranda rights and that his seizure and eventual arrest were not based on a reasonable suspicion or probable cause. The trial court disagreed, finding that the interrogation was administered after Miranda warnings and that the trooper had probable cause to stop Pearson. The trial court denied Pearson's motion to suppress.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A jury found Pearson guilty of felony murder and found by special verdict that he was armed with a firearm. The trial court sentenced Pearson to 215 months (in the middle of the standard range) with a 60-month firearm enhancement, and it ordered that Pearson serve this sentence consecutive to a custodial assault conviction he received in 2000 following the 2000 murder conviction. Pearson now appeals.
ANALYSIS I. Mandatory Joinder
Generally, the mandatory joinder rule contained in CrR 4.3.1(b) requires the State to charge all related offenses in a single information. Under the rule, the trial court must grant a defendant's motion to dismiss charges for (originally uncharged) related offenses unless it determines that the "ends of justice" would be defeated if the motion were granted. CrR 4.3.1(b)(3).
Courts have applied the mandatory joinder rule to prevent the State from adding a new alternative means of committing a crime after the defendant has been tried on a different alternative means. See e.g., State v. Anderson, 96 Wn.2d 739, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982); State v. Russell, 101 Wn.2d 349, 678 P.2d 332 (1984). These cases do not address the "ends of justice" exception to CrR 4.3.1(b)(3), which allows the State to try a defendant on a related offense, not filed before the first trial, where "the ends of justice would be defeated" if the trial court granted the defendant's motion to dismiss the related offense. CrR 4.3.1(b)(3).
After noting that Andress, which disallowed assault as a predicate felony for felony murder, overruled 25 years of law to the contrary, Division One of this court observed:
For the court to abandon an unbroken line of precedent on a question of statutory construction after more than 25 years is highly unusual, and the decision to do so was certainly extraneous to the prosecutions [here]. This is not a case in which the State negligently failed to charge a related crime or engaged in harassment tactics. Rather, the State filed charges and sought instructions in accordance with long-standing interpretations of state criminal statutes. The fact that the convictions thus obtained must now be vacated is the result of extraordinary circumstances outside the State's control.State v. Ramos, 124 Wn. App. 334, 342, 101 P.3d 872 (2004). Accordingly, the court held that the ends of justice exception to the mandatory joinder rule permitted the State to file related manslaughter charges where the defendant's original felony murder convictions were vacated under Andress. Ramos, 124 Wn. App. at 342-43.
This court recently agreed with Division One, noting that:
In Andress, the Supreme Court made the extraordinary decision to go behind a facially valid judgment and sentence in a collateral attack and then beyond the plain language of the statute to interpret the legislature's intent 30 years ago when it enacted the second degree felony murder statute. Accordingly, we, like Division One, also hold that this nearly unprecedented procedure triggered the "ends of justice" exception to another procedural rule — the mandatory joinder rule set out in CrR 4.3.1.State v. Gamble, 137 Wn. App. 892, 903, 155 P.3d 962 (2007). The Gamble court also stated that, while a trial on related charges may result in a second or third trial for the defendant, "it is not a `retrial' because the original charge [was] ruled . . . legally defective and, at the defendant's request, [was] vacated and the matter remanded to the trial court." Gamble, 137 Wn. App. at 904.
A Petition for Review was filed with the Supreme Court of Washington on May 16, 2007 and is currently set for consideration on March 4, 2008.
Pearson argues that both Gamble and Ramos were wrongly decided. Specifically, he claims that Andress was not an about-face repudiation of earlier decisions, and therefore it did not create extraordinary circumstances warranting the ends of justice exception.
The State responds that the interests of justice exception to the mandatory joinder rule is properly applied to this situation, and it urges this court to apply that exception and uphold the trial courts' decision to permit the State to file second degree murder and felony murder charges in the second trial. The State asserts that it would be an unjust decision to allow Andress to prohibit the State from charging crimes it could have charged at the time of the crime, but chose not to, in reliance on the law at the time. It also points out that strict application of the mandatory joinder rule would bar further prosecution, as there are no lesser included offenses of second degree felony murder, and because Russell, 101 Wn.2d 349, and State v. Anderson, 94 Wn.2d 176, 616 P.2d 612 (1980), only permit a second trial on original charges or lesser included offenses of those original charges. The State further contends that Pearson's claim that Andress did not create an extraordinary circumstance is without merit.
While Gamble has filed a petition for review with the Washington Supreme Court, the court has not granted that petition and therefore does not diminish Gamble's precedential value. Ramos and Gamble are directly on point. Here, as in Ramos and Gamble, the State "relied on nearly three decades of cases interpreting the statutes defining murder when death occurs in the course of a felony" when it sought a conviction for felony-murder with assault as the predicate crime. Ramos, 124 Wn. App. at 341. The Supreme Court's overruling of that longstanding precedent in Andress was an extraordinary circumstance that the prosecutor could not have predicted. The trial court was correct to apply the ends of justice exception and allow Pearson's 2006 prosecution for felony murder.
II. Exclusion of Evidence — Unlawful Entry
Pearson argues that the trial court's exclusion of any evidence that Kohl was involved in methamphetamine manufacturing denied him of his right to present a defense. Specifically, Pearson claims that because the felony murder charge was predicated on residential burglary, evidence of methamphetamine manufacturing would have supported the defense's theory that Pearson's entry was based on an implied invitation and therefore not unlawful. The trial court's exclusion of this evidence, according to Pearson, hindered his right to present evidence in his own defense.
The State responds that the trial court acted within its discretion in excluding the evidence, and it contends that even if the residence was a "drug house," neither Pearson nor Davis knew that, and therefore neither knew that drug users or buyers might expect to be allowed entry without permission. Resp't's Br. at 25-26. The State further asserts that there was no implied invitation to enter the house because Carr testified that he did not invite Pearson or Davis inside.
We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). "An abuse of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007).
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401.
Pearson argues that drug dealing evidence was relevant to prove Carr's actions when he met Pearson and Davis at the door. The jury heard direct testimony regarding Carr's actions, and any evidence of how Pearson may have interpreted those actions if he knew he was in a "drug house" was speculative at best. Additionally, Pearson argues that persons coming to a "drug house" would know they could come in without permission. While drug activity may have provided an implied invitation to people who went to the residence for drug transactions, the defense could not establish that Pearson and Davis knew about any such activities at the house. Any implied invitation did not extend to them. Thus, the excluded evidence did not influence the likelihood of any fact material to this case, and the trial court was correct to conclude that it was not relevant.
Even if the evidence were relevant, any error was harmless, as Pearson was still able to assert his implied invitation argument without it. After the trial court's original ruling excluding drug-related evidence, defense counsel raised the issue again, first while cross-examining Tamie Hotchkiss (ne Bruland), Klum's girlfriend at the time of his death, and again while cross-examining Carr. The trial court again sustained the State's objection that such evidence was irrelevant, but the following testimony was allowed:
[Defense counsel]: When you opened the door, you didn't ask who — it's correct that you didn't ask "Who is it?". . .
[Carr]: No. When I was walking to the door I said, "Knocking like that, it better be the police," Then I opened up the door and I [saw] Mr. Pearson and his friend.
[Defense counsel]: . . .[i]t's not an unusual thing for you to have opened Mr. Klum's door and see someone you didn't know; is that right? [Carr]: On occasion.
[Defense counsel]: Okay. And it wasn't — it's not unusual for people to just come in, in and out?
That's not unusual, is it?
[Carr]: No.
[Defense counsel]: And often times when you open a door for someone and holler and pull the door back, that indicates that you're inviting them in, doesn't it?
[Carr]: No.
[Defense counsel]: But you yourself had opened the door for complete strangers and let them in?
[Carr]: A couple of times.
5 RP at 426-27.
Pearson also included his implied invitation argument in his closing arguments. Thus, the trial court's decision to exclude such evidence did not preclude him from arguing his theory of the case. Pearson's argument is not persuasive.
III. Exclusion of Evidence — Witness Impeachment
Pearson also argues that his right to confront witnesses was violated when the trial court excluded evidence of the State's decision not to prosecute Kohl for methamphetamine-related crimes in exchange for his cooperation in the murder investigation. Further, he claims that, because a defendant's right to impeach witnesses is guaranteed by the constitutional right to confront witnesses, any error in excluding impeachment evidence is presumed prejudicial and requires reversal unless the error was harmless beyond a reasonable doubt.
The State first responds that Pearson failed to properly preserve this claim for review. It asserts that the trial court issued a tentative ruling excluding the evidence unless Pearson could show how it was relevant to impeach Kohl, and Pearson never made an effort to establish that bias. In the alternative, the State claims that the trial court acted within its discretion in excluding the evidence, emphasizing that the evidence showed that the recovered methamphetamine lab was inactive and dismantled.
While the State is correct that Pearson never attempted to establish how evidence of Kohl's methamphetamine manufacturing impeached Kohl, Pearson did repeatedly try to get methamphetamine-related evidence in to impeach other witnesses, including Carr. Thus, it is not entirely accurate to say that he did not preserve the issue for review.
As stated above, we review the trial court's admission of evidence for abuse of discretion. Pirtle, 127 Wn.2d at 648. A defendant's right to impeach a prosecution witness with evidence of bias or a prior inconsistent statement is guaranteed by the constitutional right to confront witnesses. Davis v. Alaska, 415 U.S. 308, 316-18, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Dickenson, 48 Wn. App. 457, 469, 740 P.2d 312 (1987). Pearson is incorrect that any error in excluding impeachment evidence is presumed prejudicial and requires reversal unless the error was harmless beyond a reasonable doubt:
[I]t is well-established under federal and state law that a violation of the confrontation clause is subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) ("The constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to . . . harmless-error analysis.")[;] State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002) ("constitutional error that violates a defendant's rights under the confrontation clause may be so inconsequential that it is rendered harmless"); State v. Hieb, 107 Wn.2d 97, 109, 727 P.2d 239 (1986) ("We take this opportunity to reaffirm our decision that a violation of the confrontation clause by the admission of hearsay evidence may constitute harmless error."); Guloy, 104 Wn.2d at 425 ("violations of a defendant's rights under the confrontation clause, may be so insignificant as to be harmless").State v. Watt, 160 Wn.2d 626, 633, 160 P.3d 640 (2007).
A defendant has a constitutional right to establish a witness's bias, but there is no evidence in the record here that Pearson could show any bias. The State never filed charges against Kohl or Carr for their involvement in this methamphetamine manufacturing operation, and Pearson offered no evidence of any deal between the witnesses and the prosecutor's office. Moreover, as both Kohl and Carr stated that they were good friends with Klum, neither of them likely needed any incentive from the prosecutor's office to testify against Pearson.
Thus, any evidence of Kohl and Carr's methamphetamine manufacturing had very low probative value. Without any actual evidence of bias, the trial court acted well within its discretion to exclude such prejudicial evidence. Pearson's argument is without merit.
IV. Ineffective Assistance of Counsel A. Pearson's Testimony
Defense counsel structured his opening statement by telling the jury what various people would testify. In the midst of his statement, he stated as follows:
So, when we're talking about intent, you heard a lot about there's an intent to retaliate and all that. Mr. Pearson's story is markedly different. Mr. Pearson will testify and he will tell you that he was offended by the fact that he was staying at Tim Knight's house and that Tim Knight's property got taken while he was in control of [the] house, and his goal was to get that property back; that he spoke to Tim Knight about that, they got the directions. . . . By the time they get to the house . . . Mr. Pearson doesn't do anything, just . . . stands in the doorway. He's not threatening anyone. He's not brandishing weapons at people. He is not saying violent or aggressive things.
4 RP at 117-18. Defense counsel later added:
Mr. Pearson will explain to you his actions afterwards and why he behaved furtively. He was there and his friend just went off and shot somebody in the head, and he was freaked out by that. And he will explain to you why that happened.
4 RP at 119-20.
During trial, Pearson alleges that his attorney advised him not to testify, and that Pearson agreed. Pearson now contends that this constituted a denial of effective assistance of counsel, arguing that this change in strategy "cannot be considered part of a reasoned trial strategy." Appellant's Br. at 33-35. Citing In re the Pers. Restraint of Benn, 134 Wn.2d 868, 897-98, 952 P.2d 116 (1998), the State responds that it is not per se ineffective assistance of counsel to fail to call a promised witness. The State asserts that defense counsel changed its strategy in the middle of the trial and that this change in strategy is "virtually unchallengeable." Resp't's Br. at 42 (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
To demonstrate ineffective assistance of counsel, a defendant must make two showings: (1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying the two-prong test in Strickland, 466 U.S. at 687). Competency of counsel is determined based upon the entire record below. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972) (citing State v. Gilmore, 76 Wn.2d 293, 297, 456 P.2d 344 (1969)).
Because the presumption runs in favor of effective representation, the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Here, the record illustrates several instances where defense counsel elicited testimony that Pearson was nervous or anxious after the shooting (that he "freaked out"). 4 RP at 120. For example, while cross-examining Kohl, defense counsel repeatedly questioned him about Pearson's demeanor after the shooting.
[Defense counsel]: [I]sn't it true that Mr. Pearson turned as white as a ghost and took off?
[Kohl]: No, he didn't take off right away. He stood there for a second. Davis bent over [Klum]. . . . And he just stood there for a second, like he was waiting for Davis to stand up so they could both go, then he took off and Davis was still staring at me.
[Defense counsel]: Okay. Is it safe to say that Mr. Pearson left pretty darn
quickly? I mean, we're only just talking a matter of seconds . . . after Mr. Klum was shot[,] right?
[Kohl]: Yeah.
[Defense counsel]: Is it safe to say that my client, Mr. Pearson, turned white as a ghost and looked scared?
[Kohl]: I don't know if he was scared. He probably was in shock just like I was.
[Defense counsel]: Did he appear that way to you? Did he appear to become white as a ghost and then take off?
[Kohl]: He didn't look actually scared from being there, no, but he did turn white.
[Defense counsel]: Okay. And he left his partner standing there? . . .
[Kohl]: Davis was pretty much right behind him.
4 RP at 203-04.
Tamara Whitman, Pearson's girlfriend at the time, testified as to Pearson's state of mind after Klum's murder, stating that when Pearson and Davis returned to Davis' parents' house, they went to a back room with Davis' parents and there was "a lot of screaming." 5 RP at 377, 380.
Defense counsel also elicited testimony from Carr regarding Pearson's general demeanor:
[Defense counsel]: And as far as demeanor, did Mr. Pearson appear nervous, like he didn't want to be there?
[Carr]: Yes, sir. [Defense counsel]: And he was acting different than the other guy?
[Carr]: Yep.
[Defense counsel]: And isn't it true that when the shotgun eventually came out, Mr. Pearson became more nervous; is that right, like he wanted to get the hell out of there?
[Carr]: Pretty much.
5 RP at 429. Carr also testified that Pearson never made an aggressive move against anyone.
As the State contends, in light of this evidence from other witnesses, defense counsel could feasibly have decided that it was unnecessary for Pearson to testify. This is not an unreasonable strategy, and Pearson has failed to offer any other argument to establish the absence of legitimate strategic or tactical reasons. Nor has Pearson shown how this decision prejudiced him. This argument fails.
B. Manslaughter Instruction
Pearson also argues that he received ineffective assistance of counsel because he was entitled to instruct the jury on the lesser included offenses of first and second degree manslaughter. He claims that his attorney took an unreasonable risk in failing to request those instructions.
The Supreme Court has held that first and second degree manslaughter are not lesser degrees of first or second degree felony murder. State v. Tamalini, 134 Wn.2d 725, 733, 953 P.2d 450 (1998).
[A]though the second degree felony murder statute and the manslaughter statutes proscribe the killing of another human being generally, the particular statutes are directed to significantly differing conduct of defendants. On the one hand, an individual commits second degree felony murder when, in "the course of . . . or in immediate flight" from any felony not listed in RCW 9A.32.030, that individual or another participant to the crime "causes the death of a person other than one of the participants." RCW 9A.32.050(1)(b). On the other hand, a person commits first degree manslaughter when he or she recklessly causes death or intentionally and unlawfully kills an unborn child by inflicting injury on the mother. RCW 9A.32.060. A person commits second degree manslaughter where, with criminal negligence, the person causes a death. RCW 9A.32.070. Plainly, the second degree felony murder statute and the two statutes defining the degrees of manslaughter proscribe separate and distinct offenses. They do not proscribe just one offense.
Tamalini, 134 Wn.2d at 733.
First and second degree manslaughter may, though, be considered lesser included charges of intentional murder.
Defense counsel's decision not to request manslaughter instructions was likely trial strategy. To find a defendant guilty of first or second degree manslaughter as an accomplice, the jury had to find that Pearson was the accomplice to another (Davis) who caused death by reckless or criminally negligent actions. Davis was convicted of intentional murder, and his mental state was not properly before this jury. Therefore, the facts here only support either a conviction of Pearson as an accomplice to Davis's intentional murder or a conviction of Pearson as a principal actor in a felony murder. The jury was instructed on both.
Because the facts do not support a first or second degree manslaughter conviction, Pearson's defense counsel did not err by failing to request jury instructions on those crimes. Pearson was not denied his right to effective assistance of counsel. Additionally, it is worth noting that the trial court actually complimented defense counsel during Pearson's sentencing, stating that his representation was "professional, efficient, [and] capable." RP (Sep. 15, 2006) at 881.
V. Cumulative Error
Pearson also claims that cumulative errors — the trial court's exclusion of evidence of Kohl's methamphetamine manufacturing, the trial court's blocking Pearson's attempts to impeach Kohl as a witness, and defense counsel's ineffective assistance — denied Pearson a fair trial and require reversal. The State responds that Pearson has failed to establish any prejudicial error, and therefore his argument fails. The State is correct — because Pearson has failed to establish any error, his cumulative error argument fails as well.
VI. Sentencing
Pearson was convicted of custodial assault after his original murder conviction in 2000. The State included this conviction in his offender score calculation, which Pearson objected to, but the trial court ultimately agreed with the State. The State also requested that the trial court impose Pearson's assault sentence consecutive to his murder sentence, rather than concurrently as the 2000 sentencing court ordered. Pearson objected, arguing that since he was originally serving the assault conviction concurrently, he had already served his time for that crime in the five years between the 2000 murder conviction and its vacation. The trial court sided with the State and ordered that this 2006 murder sentence be served consecutive to the custodial assault.
Pearson argues that double jeopardy should have prevented the trial court from imposing a consecutive sentence due to his 2000 custodial assault sentence when he had already fully served the custodial assault sentence by 2006. He contends that the trial court "modified a final, valid, and fully served sentence" when it ordered that the custodial assault sentence run consecutively to the felony murder sentence. Appellant's Br. at 44.
The State responds that it is completely within the trial court's discretion whether to impose a consecutive sentence; it contends that the trial court did not abuse its discretion in Pearson's sentencing.
The guaranty against double jeopardy protects against multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995) (citing Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980)). Here, however, Pearson was not resentenced or "repunished" for his assault conviction; that sentence remains unchanged. Pearson was simply sentenced for his murder conviction following the second trial. It was within the trial court's discretion to order that sentence to be served either concurrently or consecutively under RCW 9.94A.589(3), which provides:
[W]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court . . . subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.
The language of RCW 9.94A.589(3) is clear and unambiguous and plainly allows the trial court to impose a consecutive sentence in this situation. No additional fact finding is necessary. State v. Champion, 134 Wn. App. 483, 487, 140 P.3d 633 (2006).
VII. Statement of Additional Grounds (SAG) Issues
In his SAG, Pearson argues that the prosecutor misled the jury by first claiming that its theory to support the case was about Pearson's intent to commit a theft, but then presenting evidence "of going to the victim's apartment to assault him out of anger and retaliation." SAG at 4. Pearson contends that the State thereby used assault as the predicate crime. However, the jury was instructed that, in order to convict Pearson of felony murder, it had to find that Klum's murder occurred in the course of Pearson's residential burglary, not in the course of an assault. We presume that the jury followed instructions. State v. Brunson, 128 Wn.2d 98, 109, 905 P.2d 346 (1995). Pearson's argument has no merit.
Pearson also claims that he was prejudiced by juror misconduct where a juror told the rest of the jury that Pearson's mother waved at her near the elevator of the courthouse. It is well settled that a litigant is entitled to a fair trial but not a perfect one, for there are no perfect trials. Brown v. United States, 411 U.S. 223, 231-32, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973). "One touchstone of a fair trial is an impartial trier of fact — `a jury capable and willing to decide the case solely on the evidence before it.'" McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982)). "A strong, affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury." State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 301 (1994). While the juror should have perhaps informed the court of the waving before informing other jurors, Pearson has not established how this may have affected the fairness of his trial, and this argument therefore fails.
Finally, Pearson re-argues in his SAG that he was denied effective assistance of counsel when counsel informed the jury that he would testify and then advised Pearson against it. As stated above, this argument is not persuasive.
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.
Van Deren, A.C.J. and Bridgewater, J., concur.