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rejecting systemic exclusion claim where claimant offered no evidence besides underrepresentation
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No. 23972-1-III.
February 26, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-01119-5, Robert G. Swisher, J., entered March 24, 2005.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, J., and Thompson, J. Pro Tem.
A jury found 16-year-old Robert Suarez guilty of first degree felony murder. He contends (1) the jury venire was flawed due to the near absence of Hispanics, (2) insufficient evidence exists for conviction, (3) the court gave flawed jury instructions by adding an attempt element not found in the charging document, (4) prosecutorial misconduct occurred, and (5) he received ineffective assistance of counsel. We affirm.
FACTS
On September 4, 2004, Robert Suarez and his friend, Jordan Castillo, traveled from Kennewick to Benton City to visit Mr. Suarez's girlfriend at a restaurant where she worked. Needing a ride home, the boys saw a truck in the Kiona-Benton middle school parking lot and decided to "jack" someone for it. Exhibit 58 at 17. Mr. Suarez and Mr. Castillo discussed in detail their plan. Mr. Suarez made Mr. Castillo promise he would not back down and they shook hands on it.
Mr. Suarez and Mr. Castillo approached the truck's owner, Robert Mars, a middle school teacher and coach, outside his portable classroom and asked for change to call for a ride home. Mr. Mars offered the use of his classroom phone. After using the phone and exiting the classroom, Mr. Castillo fatally stabbed Mr. Mars, but did not take the truck keys, apparently because Mr. Mars ran into the main school building where he died. Mr. Suarez broke a truck window. The boys entered the truck and took cash, a cellular phone, and crackers.
When questioned, Mr. Suarez repeatedly changed his story before he eventually admitted his involvement. Mr. Suarez was charged as an adult with first degree felony murder. The information stated, "while committing the crime of robbery in the first degree or robbery in the second degree, and in the course of, furtherance of or immediate flight from such crime, did or another participant in the crime did stab Robert Mars, a human being, causing the death of Robert Mars." Clerk's Papers (CP) at 1369.
Ninety-nine jurors were called for the jury panel, apparently from the master jury list. One juror was Hispanic and she was excused because she was a prosecution employee.
The jury was instructed, without objection, that a person commits first degree murder when he or an accomplice "commits or attempts to commit" first degree robbery or second degree robbery. CP at 30; Report of Proceedings (RP) at 283 (emphasis added). The court instructed on the elements of attempted first degree and attempted second degree robbery.
During closing argument, the prosecutor referred to Mr. Suarez as "a self-serving liar" in reference to his statement changes during police interrogation. RP at 297. Defense counsel did not object. The jury found Mr. Suarez guilty as charged. Mr. Suarez appealed.
ANALYSIS A. Jury Challenge
The issue is whether Mr. Suarez's trial was unfair because solely one Hispanic was on his jury master list. Mr. Suarez contends the population in Benton County is 12.5 percent Hispanic, thus the venire is facially unfair and discriminatory.
Under the sixth and fourteenth amendments to the United States Constitution and article I, section 22 of the Washington Constitution, a criminal defendant has a right to be tried by a jury that is representative of the community. State v. Hilliard, 89 Wn.2d 430, 440, 573 P.2d 22 (1977) (citing Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)). A jury panel lacking non-Caucasian members, however, is insufficient in itself to show discrimination. State v. Aleck, 10 Wn. App. 796, 799, 520 P.2d 645 (1974). In Taylor, the United States Supreme Court stated: "Defendants are not entitled to a jury of any particular composition; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor, 419 U.S. at 538 (internal citations omitted).
Selection procedures purposefully discriminating on the basis of race undermine the defendant's right to a jury composed of his peers or equals; the venire must be indifferently chosen. Batson v. Kentucky, 476 U.S. 79, 86-87, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The defendant bears the burden of proving that discrimination in the selection of the jury pool occurred. Id. at 93; Hilliard, 89 Wn.2d at 440. A general challenge to the venire is a challenge to the master list from which the particular panel is selected. State v. Langford, 67 Wn. App. 572, 582-83, 837 P.2d 1037 (1992). We presume each juror sworn to hear a case is impartial and the failure to challenge a specific juror for cause or exercise a peremptory challenge waives later claims of impartiality. State v. Reid, 40 Wn. App. 319, 322, 698 P.2d 588 (1985).
A jury list challenger under the federal constitution must show (1) the allegedly excluded group is a "distinctive group" in the community; (2) the representation of this group in the venires from which jurors are selected is not fair in relation to the number of such persons in the community; and (3) the under representation is due to systematic exclusion of the group. State v. Cienfuegos, 144 Wn.2d 222, 232, 25 P.3d 1011 (2001). Mr. Suarez offers no evidence showing the number of Hispanics on his jury panel was the result of systemic exclusion or that any defect existed in compiling the master jury list.
A jury source list is "compiled from a list of all registered voters and a list of licensed drivers and identicard holders residing in the county." RCW 2.36.055. It is the duty of the superior court judges "to ensure continued random selection of the master jury list and jury panels." RCW 2.36.065. Here, nothing in the record supports the assertion that the superior court judges failed to comply with these statutory requirements to systematically exclude Hispanics from the jury source list. Mr. Suarez contends the lack of supporting evidence is due to defense counsel's failure to object to the jury venire.
To show ineffective assistance of counsel, a defendant must show: (1) defense counsel's representation was deficient, and (2) defense counsel's deficient representation prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (applying the two-prong test in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We presume counsel's assistance was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Without any evidence of a defect in the process used to select the master jury list, no basis existed to justify an objection from Mr. Suarez's counsel. While the lack of Hispanics on the jury panel seems unusual given the Benton County Hispanic population, this fact alone is not prima facie proof of discrimination. Mr. Suarez is not constitutionally entitled to a jury of a particular composition. Taylor, 419 U.S. at 538. Mr. Suarez does not provide a statistical analysis of the master jury list. Given all, Mr. Suarez has not shown he was denied a fair trial based on the composition of his jury or his defense counsel's performance.
B. Evidence Sufficiency
The next issue is whether sufficient evidence supports Mr. Suarez's first degree felony murder conviction. Mr. Suarez contends the State failed to prove the murder occurred in the course of a robbery.
In reviewing an evidence sufficiency challenge, we ask whether, after viewing the evidence 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. Pirtle, 127 Wn.2d 628, 682, 904 P.2d 245 (1995). When the sufficiency of the evidence is challenged in a criminal case, 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 first degree murder if he or she commits or attempts to commit first or second degree robbery "and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants." RCW 9A.32.030(1)(c). The felony murder statute language does not limit its application to situations where a murder is committed for purposes of completing a felony act. The focus is that the killing must be committed "in the course of, in furtherance of, or in immediate flight from" robbery in the first or second degree. RCW 10.95.020(11)(a) (emphasis added). It is no defense to felony murder that the killing preceded the robbery, so long as the killing and the robbery are part of the "same transaction." State v. Temple, 5 Wn. App. 1, 7-8, 485 P.2d 93 (1971).
A person commits robbery 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." RCW 9A.56.190. "Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking." RCW 9A.56.190.
The Supreme Court upheld an aggravated first degree murder verdict where the robbery, used as an aggravating factor, took place after the defendant had inflicted the fatal injuries. State v. Allen, 159 Wn.2d 1, 147 P.3d 581 (2006). In Allen, an argument between the defendant and his mother escalated into a physical struggle and resulted in the mother's death. After leaving and then returning to the house, the defendant stole a cashbox containing about $1,500. According to the evidence at trial, Mr. Allen regularly had "financial difficulties," had "told a friend that his mother had a cashbox," and "the cashbox was taken shortly after the murder and found nearby." Allen, 159 Wn.2d at 9-10.
The defendant argued that taking the cashbox was an afterthought, a theft instead of a robbery. The Allen majority concluded the evidence was sufficient to support a robbery, including the element that force or fear was "'used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.'" Id. at 9 (quoting RCW 9A.56.190). Because the jury made reasonable inferences based on testimony and circumstantial evidence, the court affirmed Mr. Allen's conviction.
Our case is similar to Allen. A jury could have found that the items taken from Mr. Mars' truck were an afterthought, a crime of opportunity rather than robbery. But, this jury did not. Instead, it found that the items taken occurred in connection with the robbery. Mr. Castillo and Mr. Suarez first decided to steal the truck. Mr. Castillo assured Mr. Suarez he would not back down and then the boys shook hands to confirm their plan. After Mr. Castillo stabbed Mr. Mars, the boys took items from the truck instead of taking the truck itself, most likely because the keys were not located. As in Allen, reasonable inferences based on testimony and circumstantial evidence support the verdict.
Citing State v. Chamroeum Nam, 136 Wn. App. 698, 150 P.3d 617 (2007), Mr. Suarez argues the State failed to prove a physical relationship between the location of the stabbing and the location of the theft. The State charged Mr. Nam with first degree robbery for taking his estranged wife's purse from the passenger seat of her car while she was in the driver's seat. The charging document, however, based the robbery solely on the item being stolen from her "person." Id. at 704. The court held, since the State voluntarily elected to charge the defendant in this manner, sufficient evidence did not exist to support the robbery conviction because the purse was on the car seat and not on the victim's person. Id. at 707.
Here, the State charged Mr. Suarez with first degree robbery as the predicate offense to felony murder. The State, therefore, had to prove Mr. Suarez unlawfully took personal property from Mr. Mars' person; in his presence; or, if not in his presence, then by "'force or fear . . . to prevent [Mr. Mars] from being present when the robbery occurred.'" State v. Manchester, 57 Wn. App. 765, 768, 790 P.2d 217 (1990) (quoting State v. McDonald, 74 Wn.2d 141, 443 P.2d 651 (1968)). The State provided evidence to satisfy its burden.
Mr. Mars parked his truck at the school and then walked to his portable classroom. He was stabbed outside the classroom. A jury could find that Mr. Suarez and Mr. Castillo used force to prevent Mr. Mars from being present when the robbery occurred. Under Manchester and McDonald, these facts are sufficient to establish first degree robbery. After viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of first degree felony murder beyond a reasonable doubt.
C. Instructions
The issue is whether the trial court improperly instructed the jury on attempted robbery when attempted robbery was not listed on the charging document as a predicate to felony murder.
"Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law." Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996). For the first time on appeal, Mr. Suarez challenges the trial court's instruction that attempted first or second degree robbery may be predicate offenses to felony murder. Generally, the failure to object precludes appellate review of jury instructions. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988).
Nevertheless, as a matter of constitutional due process, a charging document must allege all essential elements of the crime charged, whether statutory or not. State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992). This "essential elements" rule ensures constitutional notice of the charges that a defendant will have to defend against. State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). In a felony murder charge, the predicate felony substitutes for the missing or uncertain intent to kill; it is not actually the charged crime. State v. Medlock, 86 Wn. App. 89, 935 P.2d 693 (1997). Therefore, the predicate felony's elements are not elements of the crime of felony murder. State v. Bryant, 65 Wn. App. 428, 438, 828 P.2d 1121 (1992). But, the State must prove, beyond a reasonable doubt, all of the predicate felony's elements. State v. Quillin, 49 Wn. App. 155, 164, 741 P.2d 589 (1987).
Because the predicate crime is not the charged crime, it is not reversible error to instruct the jury on attempted robbery even though attempted robbery was omitted from the information. Such omission would not be reversible since the State satisfied its burden of proving actual robbery, not just attempted robbery, as discussed above.
Mr. Suarez also argues defense counsel rendered ineffective assistance of counsel in failing to object to the attempted robbery jury instructions. This argument, however, fails since no basis existed for objecting. It cannot be said, then, that counsel's performance fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
D. Prosecutorial Misconduct
The issue is whether prosecutorial misconduct denied Mr. Suarez a fair trial. Mr. Suarez contends the prosecutor wrongly commented on his veracity during closing remarks.
To establish prosecutorial misconduct, Mr. Suarez must prove the prosecuting attorney's conduct was both improper and prejudicial. Stenson, 132 Wn.2d at 719. A new trial will be ordered when a substantial likelihood exists that the misconduct affected the jury's verdict. Id. If the defendant does not object to the alleged misconduct at trial, the issue of prosecutorial misconduct is waived unless the Page 12 misconduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Id. Failure to request a curative instruction or move for a mistrial "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Mr. Suarez did not object to the prosecutor's closing remarks.
The prosecutor's comments were based on the trial evidence. We afford counsel latitude during closing remarks to argue the facts in evidence and the reasonable inferences therefrom. State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985). The evidence shows Mr. Suarez repeatedly changed his story to the investigating officers. These interviews were played for the jury. Thus, the comments were not so flagrant and ill-intentioned that any resulting prejudice would not have been neutralized by an admonition to the jury.
Mr. Suarez argues defense counsel rendered ineffective assistance of counsel in failing to object to the prosecutor's comments. If trial counsel's conduct can be categorized as trial tactics or strategy, it cannot be the basis of an ineffective assistance of counsel claim. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Failure to object is a classic example of trial tactic. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Defense counsel may have chosen not to object so as not to re-emphasize the evidence the prosecutor was commenting on. This does not amount to ineffective assistance of counsel.
Affirmed.
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. We concur: Kulik, J.
Kulik, J., Thompson, J. Pro Tem., concur.