Opinion
No. 54734-8-I.
May 14, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-10279-7, J. Wesley Saint Clair, J., entered July 9, 2004.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Ellington and Dwyer, JJ.
Michael Reese challenges the sentence imposed following his conviction for felony harassment-domestic violence, assault in the fourth degree-domestic violence, and six counts of misdemeanor violation of a no contact order. Reese claims the State failed to prove beyond a reasonable doubt that he was on community custody and the sentencing court erred in adding a point to his offender score based on community custody status. And even though Reese admitted that he was on community custody at the time of the crimes, he claims his admission is invalid because he did not knowingly, intelligently, or voluntarily waive his Sixth Amendment right to a jury determination of community custody status. Reese also contends the trial court erred in accepting the prosecutor's race-neutral reasons to exercise a peremptory challenge to an African-American member of the jury venire. In State v. Jones, 159 Wn.2d 231, 234, 149 P.3d 636 (2006), our supreme court held that because community custody status is "directly related to and follows from the fact of a prior conviction," there is no Sixth Amendment right to have a jury decide whether the defendant was on community custody at the time of the current offense. And because the record supports the trial court's ruling on Reese's Batson challenge, we affirm.
Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
FACTS
In the early evening of March 14, 2004, Kimberly Russell arrived at her neighbor's house crying and in pain. According to her neighbor, Dorena Hardeman, Russell was crying hysterically and appeared to have difficulty breathing. Hardeman said it also appeared that Russell had been drinking. Russell told Hardeman that her boyfriend, Michael Reese, "had jumped on her, beat her up again and that he had hit her in her ribs. . . ."
Approximately ten days before, Russell told Hardeman that Reese hit her with a golf club causing the three to four inch sutured cut on her forehead. In response to the March 14 assault, Hardeman asked Russell how much longer she was "going to let this go on?" and asked if she wanted Hardeman to call the police. At first, Russell did not want Hardeman to call. Russell said she was afraid of Reese and he "told her that she better not tell anybody." But after Hardeman persuaded Russell that it was the only way to stop the violence, she said Hardeman could decide whether to call the police. Russell then returned to her home. Hardeman called the police and reported the assault. Seattle Police Officers Jennifer Samson and Carl Anderson responded and went with Hardeman to check on Russell's welfare. Reese answered the door and let the police in to talk to Russell. Russell was asleep on the couch in the living room. On her way to the living room, Officer Samson noticed a golf club propped up against the wall in the entry. Russell told Officer Samson, "[e]verything is okay here. We are fine. He didn't do anything. We are not fighting now. You guys can go." According to Officer Samson, Russell's lips were swollen, she had dried blood on her chin and on her pants, and a lump on the left side of her forehead where the skin was scraped. Officer Samson also noted the sutured circular cut on her forehead.
While Officer Samson was with Russell, Officer Anderson placed Reese under arrest for an outstanding warrant. When Russell realized Reese was under arrest, she started crying, "ran over and was clutching at his pant legs and trying to hug him and grab him . . . and . . . sobbing, `sorry, sorry.'" As he left, Russell told Officer Samson, "?you don't know what you have just done. You've signed my death certificate, you know, I am dead. You killed me. He is going to kill me when he gets out.'"
After Reese was gone, Russell admitted that earlier that day he punched her in the ribs several times, and knocked her into the wall. Russell also told Officer Samson that the week before Reese struck her with a golf club, and told her she could explain the injury in one of two ways? "[o]ne was she was in a car accident. She hit the windshield and the other was she was drunk and fell into the TV stand. She then pointed to the TV stand, which was in the shape of like a tic, tac, toe, relatively thin wood. She said, `[y]ou can see that, you know, it's simply — it would be broken if I were to have fallen on it.'"
When Russell arrived at Harborview Medical Center that night, she was still in a great deal of pain. During Dr. Elizabeth Wako's examination, Russell said that Reese beat her, punching her multiple times in the ribs, and that he threatened to kill her. Russell also told Dr. Wako that the large sutured cut on her forehead was from Reese hitting her in the head with a golf club. In describing the sharp, stabbing pain in her ribs, "she rated the pain on a scale of zero to ten with ten being the worst pain you could ever imagine" and said the pain was a "[n]ine out of ten." Dr. Wako believed Russell's ribs were likely broken. Before discharging her from the hospital, Dr. Wako referred Russell to a social worker to address concerns related to domestic violence. Russell told the social worker that her boyfriend "beat the shit out of me" and admitted drinking that night. Russell also told the social worker that Reese caused the gash on her forehead.
The toxicology report later showed Russell tested positive for opiates and had an alcohol level of 0.40.
On March 17, the State charged Reese with assault in the second degree-domestic violence, felony harassment — domestic violence, and assault in the fourth degree — domestic violence. At arraignment, the court issued an order directing Reese to have no contact with Russell. Before trial, Reese telephoned Russell from jail approximately 520 times and talked to her approximately 380 times. By amended information, the State charged Reese with felony harassment — domestic violence, assault in the fourth degree — domestic violence, intimidating a witness, and six counts of misdemeanor violation of a no contact order.
The trial commenced in June. Four out of the thirty-one members of the jury venire were African-American. The prosecutor exercised peremptory challenges against two of the African-American members of the venire. Reese's attorney made a Batson challenge to the prosecutor's use of the peremptory challenges to excuse the two African-American members of the venire. The trial court accepted the prosecutor's reasons for challenging the jurors and rejected Reese's Batson challenge.
Batson, 476 U.S. 79 (1986).
At trial, Russell denied that Reese ever hit her or threatened to kill her. Russell said that she loved Reese, that she accidentally fell down the stairs, and that the officers lied to her. Reese also testified at trial. Reese said he did not hit Russell and denied hitting Russell with a golf club. Reese said the gash on Russell's forehead occurred when she fell down the stairs. The jury convicted Reese on all counts except intimidating a witness.
Based on an offender score of three, the State asked the court to impose the high end of the sentencing range for the felony harassment — domestic violence conviction and run the sentence on the misdemeanor assault and violation of a no contact order convictions consecutively, resulting in a sentence of 40 months. The State argued that a consecutive sentence was justified based on an ongoing pattern of abuse and Reese's repeated violation of the no contact order.
Reese admitted that he was on community custody under a Drug Offender Sentencing Alternative (DOSA) at the time of the crimes. In the presentence report, Reese acknowledged that he had an offender score of three, which included a point for committing a crime while on community custody. At sentencing, Reese's counsel again confirmed that Reese had an offender score of three, which included a point for committing a crime while on community custody. Reese asked the court to give him credit for the time served on the current offenses so he could begin serving his remaining 22.5-month DOSA sentence.
The court sentenced Reese to 12 months on the felony harassment — domestic violence conviction and imposed consecutive suspended sentences on the misdemeanor convictions for assault in the fourth degree and the six counts of violation of the no contact order. Reese appeals.
ANALYSIS
Community Custody Determination
For the first time on appeal, Reese argues that under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,147 L. Ed. 2d 435, (2000), the State must prove to a jury beyond a reasonable doubt that he was on community custody and the court erred in adding a point to his offender score. Reese also asserts that his admission that he was on community custody was not a knowing, voluntary, or intelligent waiver of his Sixth Amendment right to a jury determination of his community custody status.
Constitutional challenges are reviewed de novo. State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005). A defendant can also challenge an illegal or erroneous offender score for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).
Our supreme court squarely rejected Reese's argument in State v. Jones, 159 Wn.2d 231, 149 P.3d 636 (2006). In Jones, the court held that a defendant does not have a Sixth Amendment right to have a jury decide the defendant's community custody status. Because community custody is "directly related and follows from the fact of a prior conviction," the court concluded the community custody determination falls within the prior conviction exception of Almendarez-Torres, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). See also, Apprendi, 530 U.S. at 488; Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2351, 159 L. Ed. 2d 403 (2004).
In Almendarez-Torres, Almendarez-Torres was charged with illegal entry in violation of a statute that required a maximum sentence of two years, but authorized a prison term of up to 20 years if the defendant was previously deported for an aggravated felony conviction. Almendarez-Torres pleaded guilty and admitted he was previously convicted of three aggravated felonies prior to deportation. But because the indictment did not allege that he was previously convicted of an aggravated felony, Almendarez-Torres argued the sentencing court could only impose a two-year sentence. The Supreme Court rejected Almendarez-Torres' argument. The Court held that the statute did not establish a separate crime but rather was a sentencing factor because the statute "simply authorizes a court to increase the sentence for a recidivist." Almendarez-Torres, 523 U.S. at 226. According to the Court, the fact of a prior conviction is a "traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Id. at 243.
In Apprendi, the Court expressly acknowledged its prior decision in Almendarez-Torres in holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. And in Blakely, the Court again reiterated the prior conviction exception in applying Apprendi to an exceptional sentence based on facts that were neither admitted nor proved to a jury. Blakely, 542 U.S. at 303.
In Jones, our supreme court concluded that the Almendarez-Torres exception encompasses those "facts that follow necessarily or as a matter of law from the fact of a prior conviction" and includes the determination of whether a defendant is on community custody when committing a current offense. Consistent with Almendarez-Torres, the court held that community custody is "about a defendant's status as recidivist, [and] does not require the independent judgment of a fact finder about facts related to a defendant's commission of the current offense, and can be readily determined by a limited examination of the record flowing from the prior conviction." Jones, 159 Wn.2d at 247. The court also noted that like a prior conviction, the determination of community custody status is "(1) inherently reliable, (2) arises out of a prior conviction based upon a finding of guilt by a trier of fact or the defendant's guilty plea, and (3) is the type of inquiry traditionally performed by judges as part of the sentencing function." Id. at 245.
Because Reese does not have a Sixth Amendment right to have a jury decide whether he was on community custody, the sentencing court's determination about whether to add an additional point in calculating his offender score is governed by the Sentencing Reform Act (SRA), chapter 9.94A RCW.
The SRA requires the sentencing court to calculate a defendant's offender score based on the sum of the points accrued under RCW 9.94A.525. According to former RCW 9.94A.525(17), the sentencing court must add one point to a defendant's offender score "[i]f the present conviction is for an offense committed while the offender was under community placement." The SRA also states that the sentencing court shall "rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing." RCW 9.94A.530(2).
In 2006, the legislature did not change the language but redesigned the section as RCW 9.94A.525(18). Laws of 2006, ch. 128, § 6.
While a defendant's failure to object does not relieve the State of its burden to prove the necessary facts to support calculation of a defendant's offender score, an affirmative acknowledgment at the sentencing hearing can support the court's calculation. For example, in State v. Hunter, 116 Wn. App. 300, 302, 65 P.3d 371 (2003), we held that the sentencing court did not err by including out-of-state convictions in the offender score over the defendant's objection because his attorney affirmatively acknowledged that the State's calculation was correct. See also State v. Nitsch, 100 Wn. App. 512, 522, 997 P.2d 1000 (2000) (a defendant's explicit statement of his standard range in his presentence report is inescapably an implicit assertion of his offender score); State v. Wakefield, 130 Wn.2d 464, 476, 925 P.2d 183 (1996) ("In determining the appropriate sentence, the trial court can consider the presentencing reports unless the defendant objects [and] . . . the defendant's admissions at the time of sentencing."). Here, Reese admitted in his presentence report that he was on community custody for a DOSA sentence and as a result, his offender score should include an additional point.
Mr. Reese was on community custody for a DOSA sentence when these events occurred. The convictions in this case will certainly revoke his DOSA suspended sentence, putting him in prison for another 22.5 months. His community custody status added a point to his offender score on the felony harassment. It would be to Mr. Reese [sic] advantage to ask this Court for another DOSA sentence, to run concurrently with his prior DOSA sentence, and not revoke the prior DOSA.
Defendant's Sentencing Memorandum.
At the sentencing hearing, Reese's attorney reiterated that Reese was on community custody at the time of the current offenses and agreed the offender score was three: "two priors and being on community custody status." On this record, we conclude the sentencing court correctly added one point to Reese's offender score for committing the current offenses while on community custody.
Batson Challenge
Reese also contends the trial court erred in accepting the prosecutor's reasons for exercising a peremptory challenge against an African-American member of the jury venire. Based on responses from other jurors, Reese argues the prosecutor's race-neutral explanation was pretextual.
A prosecutor's use of a peremptory challenge on the basis of race violates a defendant's right to equal protection. Batson, 476 U.S. at 89; State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995). If the defendant makes out a prima facie case of racial motivation, the burden shifts to the State to articulate a race-neutral explanation for the peremptory challenge. Luvene, 127 Wn.2d at 699; Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2324, 162 L. Ed. 2d 196 (2005). Here, the parties agree that if the prosecutor offers a race-neutral explanation and the trial court has ruled on the question of racial motivation, a prima facie case is unnecessary. Luvene, 127 Wn.2d at 699. But the prosecutor must still provide a clear and specific explanation of the reasons for exercising the peremptory challenge. Miller-El, 545 U.S. at 238. To determine "whether a prosecutor's explanation is based on discriminatory intent, courts consider whether the prosecutor has stated a reasonably specific basis for the challenge, such as specific responses or the demeanor of the juror during voir dire, or a particular identifiable incident in that juror's life." Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149 (1996) (citing Burch, 65 Wn. App. 828, 840, 830 P.2d 357 (1992). The trial court's determination of a Batson challenge is "`accorded great deference on appeal'" and will be upheld unless clearly erroneous. Luvene, 127 Wn.2d at 699 (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)). And when the prosecutor's explanation depends on an evaluation of demeanor and credibility, the trial court's determination is entitled to great deference on appeal. Luvene, 127 Wn. 2d at 699.
The defendant establishes a prima facie case first "by showing that the peremptory challenge was exercised against a member of a constitutionally cognizable group" and second, "demonstrate that this fact `and any other relevant circumstances raise an inference' that the prosecutor's challenge of a venire person was based on group membership." Burch, 65 Wn. App. at 840 (quoting Batson, 476 U.S. at 96).
Reese challenges the court's decision to accept the prosecutor's explanation for exercising a peremptory challenge against Juror 36. During voir dire, defense counsel asked each person whether "the average police officer [is] more or less or about the same in honesty as yourself if you take the number of police officers and take an average, are they going to be more or less honest than you are?"
Below, Reese also objected to the prosecutor's use of a peremptory challenge to another African-American member of the jury venire.
In response, Juror 36 said, "I believe that some of them are honest; that they are not ruled out for error. I would hope that they would be as honest as I am." The prosecutor explained that he used a peremptory challenge because Juror 36 emphasized the words "some of them" when answering the question. The prosecutor also stated Juror 36 gave the impression that she felt "most cops are dishonest" and had "at least a significant amount of distrust on the part of some cops."
The court accepted the prosecutor's explanation for why a peremptory challenge was exercised against Juror 36. The court expressly evaluated the demeanor of Juror 36 and stated that although the record did not show body language and voice inflection, "there was certainly an inference from what she was saying that some cops are honest . . . as well that . . . some . . . are not."
Citing the responses of some of the other jurors, Jurors 11, 15, 19, 34, and 37, Reese claims the prosecutor's race-neutral explanation was pretextual because the opinion expressed by Juror 36 concerning officer honesty is comparable to responses given by other jurors who were not challenged. The record does not support Reese's claim. While the other jurors stated that most officers are honest or that they hope that the officers are honest, no similar concerns were expressed concerning demeanor and bias. We conclude the record supports the trial court's ruling on Reese's Batson challenge.
Juror 11: I consider myself an honest person. And I would hope that they are as honest because I too know that they are human.
Juror 15: Well, I too feel like I am a very honest person and I wouldn't say that I would think that they would be more honest that I. But you know, I just think that, you know, we are all human.
Juror 19: I consider myself an honest person and I would expect most police officers to be honest as well.
Juror 34: I believe most police officers are honest. I think that there are some that get persuaded to be dishonest by their own prejudice, but on the other hand I think they are often evaluated.
Juror 37: I think they try to be honest. I think their perception is subjective, is relative to them and about their lives and I think they have honorable intentions. But in some cases they are wrong. But they believe they are right or it's colored by their perception.
Reese also cites the responses of Juror 4 and 35. While Jurors 4 and 35 talked about unfavorable encounters with law enforcement, when asked about their opinions about officer honesty, Juror 4 responded, "I think they are as honest as I am." And Juror 35 responded, "I agree that even they can be wrong; that for an individual to be in their line of work as a career that they are willing to put their own lives on the line. And so, they must feel pretty strongly about what they are doing in service to the community to be doing what they do."
We affirm.
DENY J., concur.