Opinion
No. 58779-0-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for Ring County, No. 00-1-05900-7, Brian D. Gain, J., entered September 1, 2006.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
UNPUBLISHED OPINION
Jess Smith was convicted by a jury of felony murder in the first degree and manslaughter in the first degree. On appeal, Smith challenges the sufficiency of the evidence to support his felony murder conviction. We reject this contention, but accept the State's concession that Smith's sentencings on both charges violate the prohibition against double jeopardy. We affirm Smith's conviction for felony murder in the first degree, strike the manslaughter conviction, and remand.
In the early morning hours of September 9, 2000, Dale Bateman was viciously attacked by a group of men in the parking lot of a motel in Federal Way. Bateman was transported to a nearby hospital, where he was treated for injuries to his face and head. Among the assailants was Shane Accetturo, who believed that Bateman had stolen approximately $20,000 in cash and marijuana from his residence. After leaving the hospital, Bateman was contacted by his drug dealer, Matt Stoemmer, who offered to set up a drug deal between Bateman and Calvin Wilson at a restaurant in Federal Way. Unbeknownst to Bateman, the meeting was arranged so that Wilson and Smith could "question" him about Accetturo's money and drugs. Upon arriving at the restaurant later that night, Bateman, who was there with several friends, got into the back seat of Wilson's car and they drove off. And, while Wilson was supposed to return Bateman in several minutes after the drug transaction was completed, he never did.
After a missing person report was filed several days later, authorities commenced an investigation into Bateman's disappearance. Police interviewed a number of individuals, including Stoemmer, and learned that Smith and Wilson had planned to physically intimidate Bateman so that he would disclose the whereabouts of the missing drugs and money. A "BOLO" or "be on the lookout" warning for Wilson's car was entered into a police database. The vehicle was later stopped by police and impounded. The vehicle was searched after authorities obtained a search warrant. The search revealed blood in the back seat and on the inside of the passenger door window of the vehicle. Two bullet holes were also located under the rear seat cushions.
During subsequent questioning, Smith and Wilson both admitted that Bateman had been shot and killed. Upon leaving the restaurant, Wilson drove several blocks to a residential side street, where he parked the car near a vacant lot.
During the trip, Bateman took a Tec 9 pistol out of his backpack and said he was ready if Accetturo decided to come after him again. Bateman then put the gun back in his backpack and zipped it shut. When Bateman asked to see the marijuana he thought he would be purchasing, Smith grabbed Bateman's backpack with the gun, pointed his own gun in Bateman's direction and shot him four times. Bateman died shortly thereafter. After the shooting, Smith and Wilson drove to a remote area, removed Bateman's wallet, and other personal items, and dumped the body in a ravine. They also drove to a park in Auburn, where they burned Bateman's possessions, except for Bateman's gun, which Smith kept.
In February 2001, Smith pleaded guilty to the crime of second degree felony murder predicated on assault. This court reversed Smith's felony murder conviction in 2005 based on the holdings in In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), and In re Pers. Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004).
In Andress, the supreme court held that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976).
On April 7, 2005, after the trial court entered an order vacating his second degree felony murder conviction, Smith was arraigned on amended charges of one count of felony murder in the first degree with robbery and kidnapping as the underlying predicates and one count of intentional murder in the second degree. Attorney David Trieweiller appeared on behalf of Smith at Smith's arraignment on April 7, 2005.
Four days later, attorney Donald Wackerman of The Defender Agency submitted a formal notice of appearance on Smith's behalf. After Wackerman was subsequently allowed to withdraw from the case, Smith sought to represent himself on June 6, 2005. Convinced that Smith knew what he was doing, the court granted the request. The court nonetheless appointed attorney Andrew Stanton as standby counsel to assist Smith. A defense investigator was also hired to assist Smith. The case was set for trial in July 2005.
The State thereafter moved to continue the trial due to the scheduled vacations of the lead detective, the prosecutor, and defense counsel. Over Smith's objection, the court granted the motion and reset the trial date for September 1, 2005. Attorney Michael Danko was allowed to substitute as standby counsel on August 17, 2005.
The case was called on September 1, 2005. The court granted the State's motion to exclude witnesses and then recessed the case indefinitely. Over the next eight months or so, Smith, along with his defense investigator, interviewed dozens of prospective witnesses. Throughout this period, numerous hearings were held to monitor the case and address various motions filed by Smith.
In March 2006, Smith hired attorney Peter Connick as standby counsel. At some later date, Connick informed the court that when the jury trial began he would be in charge and Smith would no longer be representing himself.
Although Connick had previously represented codefendant Accetturo, Smith waived any possible conflict of interest.
In August 2006, the jury found Smith guilty in separate verdicts of felony murder in the first degree as charged in count I and the lesser included offense of manslaughter in the first degree in count 2. By way of special interrogatories, the jury also found that Smith caused Bateman's death "in the course of and in furtherance of or in the immediate flight from committing or attempting to commit" both kidnapping in the first degree and robbery in the second degree. At sentencing, the court, although agreeing with the parties that the two counts merged, sentenced Smith on both counts — 384 months on the felony murder with firearm enhancement and 207 months on the manslaughter with firearm enhancement. Smith appeals.
SUFFICIENCY OF THE EVIDENCE
Smith challenges the sufficiency of the evidence to support his conviction of felony murder in the first degree. Specifically, he contends there was insufficient evidence to show that the force used to take away the victim's backpack and gun constitutes robbery. He also claims there was no evidence of intent to steal. Finally, he contends not all elements of kidnapping were proven. We disagree.
Due process requires the State to prove all elements of the crime beyond a reasonable doubt. In reviewing a challenge to the sufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Ayer, 109 Wn.2d 303, 310, 745 P.2d 479 (1987).
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
In order for a person to be found guilty of felony murder, the State must prove that he or she committed or attempted to commit the named predicate felony. To convict Smith of first degree murder under RCW 9A.32.030(1)(c) as it did, the jury had to find that he committed or attempted to commit either second degree robbery or first degree kidnapping and that Bateman died in the course of or in furtherance of or in immediate flight from those crimes. To establish that a killing occurred in the course of, in furtherance of, or in immediate flight from a felony,
there must be an `intimate connection' between the killing and the felony. . . . The killing must be part of the `res gestae' of the felony, that is, `close proximity in terms of time and distance.' . . . A `causal connection' must clearly be established between the two. . . . In other words, `more than a mere coincidence of time and place is necessary.'[]
State v. Brown, 132 Wn.2d 529, 608, 940 P.2d 546 (1997).
Smith contends that the State failed to prove beyond a reasonable doubt the force and intent to steal when Bateman died. Smith argues that, since no robbery was either committed or contemplated, the evidence is not sufficient to support a conviction for first degree felony murder. When the sufficiency of the evidence is challenged in a criminal case, however, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant."
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A person is guilty of robbery in the second degree "when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of another."
Direct evidence and circumstantial evidence are equally reliable. A defendant's criminal intent "may be inferred from circumstantial evidence . . . or from conduct, where the intent is plainly indicated as a matter of logical probability."
State v. Liden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007).
State v. Billups, 62 Wn. App. 122, 126, 813 P.2d 149 (1991).
Smith's reliance on State v. Golladay, 78 Wn.2d 121, 470 P.2d 191 (1970), to support his argument is misplaced. In Golladay, the murder victim left her shoes and purse in the defendant's car, and the defendant later raped and killed her. The defendant was then involved in an unrelated automobile accident, after which he disposed of the victim's belongings. In holding that the evidence was insufficient to support a charge of felony murder based on the former felony of larceny, the court observed that there was no larceny because there was no intentional taking of the victim's belongings:
A review of the record discloses nothing to indicate that the defendant intentionally took the purse and shoes from the victim either before or after the attack. The more logical inference from the evidence is that they were left in the car and their presence not discovered by the defendant until after the accident. . . . The evidence is not sufficient to show a `taking' of either the shoes or the purse.[]
Golladay, 78 Wn.2d at 129.
Here, unlike the situation in Golladay, the evidence shows that Smith unlawfully and forcefully took Bateman's backpack and gun before Bateman was killed. Smith admitted in his taped statements to the police that he and Wilson had planned to meet with Bateman to find out what had happened to Accetturo's money and drugs, and to "rough [Bateman] up some more if we had to" in order to extract that information from him. Despite those goals, Smith took Bateman's backpack away from him, knowing full well that it contained a gun, and then shot and killed him without ever learning where Accetturo's drugs and money were located. Thus, the two crimes were committed in close proximity of time and distance. After disposing of Bateman's body, Smith kept the gun. This confirms the intent to steal. A rational trier of fact could have deemed the shooting sufficiently connected with the robbery. There was ample evidence in the record to support Smith's conviction of first degree felony murder predicated on robbery.
Smith also contends the State failed to present sufficient evidence to support his conviction for first degree felony murder predicated on kidnapping. He is mistaken.
To prove that Smith committed first degree kidnapping as charged in this case, the state was required to prove that he abducted Bateman. In this context, "abduct" means "to restraint a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force." The restraint and/or movement of the alleged kidnapping victim are not sufficient to prove kidnapping if they are merely incidental to the commission another separately charged crime. To determine whether a kidnapping is incidental to another offense, courts consider the surrounding facts and circumstances and the relevant statutory definitions.
Green, 94 Wn.2d at 227; State v. Brett, 126 Wn.2d 136, 166, 892 P.2d 29 (1995).
State v. Harris, 36 Wn. App. 746, 752-53, 677 P.2d 202 (1984); Green, 94 Wn.2d at 224-28.
Here, the kidnapping began as soon as Smith and Wilson deceived Bateman into believing they would be completing a drug deal and he was whisked away in Wilson's car. At that point, Bateman was being held in a place where he was not likely to be found, particularly at night — the car. This restraint was not merely incidental to the commission of the homicide. We conclude the restraint and movement preceding the murder were not merely incidental to it, and, when viewed in the light most favorable to the State, were sufficient to support the felony murder charge.
Harris, 36 Wn. App. at 754 (restraint of victim in car was a place where victim likely would not be found); State v. Whitney, 44 Wn. App. 17, 21, 720 P.2d 853 (1986) (abduction occurred where defendant forced victim into his car, "a place where [she was] not likely to be found"); Billups, 62 Wn. App. at 127 (children lured into van were in a place where they were not likely to be found).
DOUBLE JEOPARDY
Smith also contends his convictions for both first degree murder and first degree manslaughter violate double jeopardy. We accept the State's concession of error.
See State v. Schwab, 98 Wn. App. 179, 180, 988 P.2d 1045 (1999) (convictions for second degree felony murder and first degree manslaughter for a single homicide violate the state and federal guarantees against double jeopardy).
When, as here, alternative theories of liability for an alleged criminal act are presented, there is no double jeopardy concern in allowing the jury to reach separate verdicts based on each theory. But to avoid a double jeopardy problem, the judgment and sentence must reflect that the defendant is convicted of only one crime and receives only one sentence. Here, the question is the proper remedy. Smith seeks resentencing. The State claims that the conviction should remain in place, but should play no part in the sentencing. We conclude that vacation of the manslaughter conviction is the proper remedy.
State v. Michielli, 132 Wn.2d 229, 238, 937 P.2d 587 (1997); State v. Trujillo, 112 Wn. App. 390, 409-10, 49 P.3d 935 (2002).
State v. Johnson, 113 Wn. App. 482, 488, 54 P.3d 155 (2002).
State v. Womac, 160 Wn.2d 643, 651, 160 P.3d 40 (2007).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Smith raises numerous pro se claims in a statement of additional grounds for review. The claims all lack merit.
Smith contends that his right to counsel was violated when attorney Trielweiller was removed from the case. He relies on Superior Court Criminal Rule (CrR) 3.1(b)(2), which provides:
A lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review. A lawyer initially appointed shall continue to represent the defendant through all stages of the proceedings unless a new appointment is made by the court following withdrawal of the original lawyer pursuant to section (e) because geographical considerations or other factors make it necessary.
Smith argues the court rule requires an initial court appointed attorney to remain on the case until withdrawal and subsequent appointment by the trial court. According to Smith, "the removal of initial court appointed counsel was completely arbitrary and done without the required court order." Smith also argues the severance undermined his ability to receive discovery.
The premise underlying these arguments is flawed. Two employees of the King County Office of Public Defense (OPD) testified that Trielweiller was never appointed to represent Smith. Moreover, the chief purpose of the right to counsel as guaranteed under the federal and state constitutions is to provide all defendants with a fair trial. "Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."
State v. Roberts, 142 Wn.2d 471, 515, 14 P.3d 713 (2000).
Roberts, 142 Wn.2d at 515 (quoting Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)).
Here the record shows that Smith always had access to competent representation and his right to counsel was, therefore, not violated.
Smith also contends that the State failed to provide discovery for 56 days in violation of his speedy trial rights. Thus, Smith argues the court erred in denying his motion to dismiss under CrR 8.3(b). But before dismissal is appropriate under this court rule, the defendant must show both "arbitrary action or governmental misconduct" and prejudice affecting the defendant's right to a fair trial. The defendant bears the heavy burden of showing actual prejudice, not merely speculative prejudice, affecting his or her fight to a fair trial. We review the trial court's decision for abuse of discretion.
Michielli, 132 Wn.2d at 239-40.
State v. Rohrich, 149 Wn.2d 647, 657, 71 P.3d 638 (2003).
Michielli, 132 Wn.2d at 240.
Here the trial court did not abuse its discretion in denying Smith's motion to dismiss. The record supports the trial court's determination that the State was not responsible for Smith's delay in obtaining discovery.
Smith argues that the trial court abused its discretion in granting several continuances, and that the decisions violated his speedy trial rights. We disagree.
Here, Smith's speedy trial period had not expired on September 1, 2005, when the case was called for trial. Pursuant to CrR 3.3, dismissal is necessary only when the applicable speedy trial period has expired. There is no error. In any event, CrR 3.3(g)(3) excludes from the speedy trial period a valid continuance. The trial court's decision to grant a continuance "`will not be disturbed absent a showing of manifest abuse of discretion.'" Here, the trial court properly granted the July continuance to accommodate the vacation plans of the prosecutor, lead detective, and standby counsel. Nor is there any showing that the court abused its discretion in granting any other continuance.
State v. Hall, 55 Wn. App. 834, 840-41, 780 P.2d 1337 (1989).
State v. Williams, 104 Wn. App. 516, 520-21, 17 P.3d 648 (2001) (quoting State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996)).
Contrary to Smith's argument, the fact the detective may not have gone on his vacation as planned is irrelevant.
Smith contends his trial was not commenced in a timely manner as required under CrR 3.3. "As a general matter, commencement of a trial satisfies the purposes of a rule to secure a speedy trial." The hearing and disposition of a preliminary motion to exclude witnesses by the trial court after a case is assigned or called for trial is considered a customary and practical phase of the trial. Nor has Smith established that the delay of the remainder of his trial violated his constitutional speedy trial right. While at first blush the length of the recess seems problematic, the delay was not due to State inaction or misconduct. Proceedings were delayed so that Smith could complete the face-to-face interviews he requested and manage the more than 1,400 pages of discovery he received from the State. Perhaps more importantly, Smith's refusal to work with his standby counsel exacerbated the problem. There is no constitutional error.
State v. Andrews, 66 Wn. App. 804, 810, 832 P.2d 1373 (1992).
Andrews, 66 Wn. App. at 810-11.
Whenever possible, Smith wanted to conduct, or at least attend, the witness interviews. As a consequence, the interviews were often delayed due to the jail's safety concerns.
Smith's contention that he was denied a fair trial based on prosecutorial vindictiveness also fails. The term "prosecutorial vindictiveness" describes the actions of the government when it "acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights." Here, Smith is the one primarily responsible for his change in position. He successfully overturned his plea-based conviction for second degree murder. During the original plea negotiations, Smith was well aware that if he had elected to go to trial and not enter a plea, he would have faced more serious charges. There is no showing that Smith is entitled to the dismissal of his murder conviction on the basis of prosecutorial vindictiveness.
State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (1987)).
Smith also argues that the trial court erred in denying his motion to suppress evidence seized pursuant to the search warrant, because the affidavit upon which the search warrant was issued was deficient. This claim fails.
We generally review the issuance of a search warrant only for abuse of discretion. A reviewing court "generally gives great deference to the magistrate's determination of probable cause and view[s] the supporting affidavit for a search warrant in a commonsense manner rather than hypertechnically."
State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004).
State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007).
Here, Smith seeks to invalidate the search warrant by interpreting the affidavit in a hypertechnical rather than a commonsense manner. We find no abuse of discretion. Nor are Smith's other grounds for suppression adequately supported by the record.
Smith's additional claim of prosecutorial misconduct also fails. Smith misinterprets legitimate appeals to common sense and ignores the wide latitude counsel has to argue inferences from the evidence during closing argument.
Smith also argues that the trial court improperly ruled that self-defense was not a valid defense to the felony murder charge. The purpose of the felony murder rule is to deter felons from killing negligently or accidentally by holding them strictly liable for any murders they commit in the course and in furtherance of any felony. Because felony murder is a "strict liability" offense, an instruction on the lawful use of force in self-defense is generally inappropriate. Smith cites several cases for the proposition that defendants are entitled to self-defense instructions in felony murder cases where the predicate felony involves the use of unlawful force. Even assuming second degree robbery is such a felony (personal property must be unlawfully taken "by the use or threatened use of immediate force, violence, or fear of injury", any error was harmless. The jury found that Smith also committed another predicate crime, first degree kidnapping. Only one predicate crime was required to support the verdict on felony murder. The lack of a lawful use of force instruction therefore does not entitle Smith to a new trial.
State v. Dennison, 115 Wn.2d 609, 616, 801 P.2d 193 (1990).
Smith also contends the State submitted an improper brief on appeal. We disagree.
We have carefully considered the other arguments that Smith makes. They are not persuasive and we reject all of them.
We affirm Smith's conviction and sentence for felony murder in the first degree. We accept the State's concession, strike the manslaughter conviction, and remand to the trial court for any further proceedings that are necessary.