Opinion
No. 29542-3-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No. 00-1-00235-9. Judgment or order under review. Date filed: 10/30/2002. Judge signing: Hon. James Edgar F. Xavier Warme.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Susan Irene Baur, Cowlitz Co. Prosecutor's Office, 312 SW 1st Ave, Kelso, WA 98632.
Barbara L. Corey, Attorney at Law, 707 Pacific Ave, Tacoma, WA 98402-5207.
Donovan Allen challenges his aggravated first degree murder conviction for killing his mother, Sharon Cox. He asserts that (1) the evidence was insufficient to show that the murder was premeditated or occurred during the course of a robbery; (2) the trial court committed numerous evidentiary errors and erred when it denied his motions for a mistrial and for a new trial; (3) his right to counsel was violated; and (4) prosecutorial misconduct and cumulative error denied him a fair trial. Finding no error, we affirm.
FACTS I. February 7
On February 7, 2000, Donovan Allen called 911 to report that his mother, Sharon Cox, was lying on her bedroom floor, bleeding from her mouth and ears. Allen told the 911 dispatcher that he thought Cox still had a pulse, and that he `heard her breathe.' Report of Proceedings (Trial) at 96.
When Officer Monge arrived at Cox's home, Allen was still talking to the 911 dispatcher. The paramedics arrived immediately after Monge, and Monge escorted Allen out of the bedroom. Allen then walked outside, near the front door.
Monge found signs of a struggle throughout the living room, and noticed that Cox had a broken piece of telephone cord `intertwined between her fingers and her hands.' RP at 122. Police also discovered that a cashbox containing approximately $1,500 was missing from Cox's bedside table.
Officer Rabideau approached Allen, and asked him to sit in the front seat of the patrol car and tell him what happened. Allen told Rabideau that he arrived at Cox's residence to help her with a project. He found the apartment unlocked, entered the apartment, and found Cox lying on the bedroom floor. Rabideau then left Allen with the county chaplin so Rabideau could talk with other officers and determine whether Cox was dead.
Upon returning a few minutes later, Rabideau informed Allen that Cox was dead. Rabideau then asked Allen to go to the police station to provide a written statement. Allen agreed.
At the station, Allen had difficulty writing a statement, so Detective Hartley took him to his office so Hartley could write down the statement as Allen dictated. Allen did not receive Miranda warnings at that time because Allen was neither a suspect nor in custody. The officers repeatedly told Allen he was free to leave at any time.
Miranda v. Arizona, 386 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Detectives Hartley and Milosevich then interviewed Allen from approximately 5:10 p.m. to 6:20 p.m. Based on Allen's version of the events leading up to Cox's death, Hartley and Milosevich `started developing suspicions' that Allen was `either involved or knowing more than he was telling [them] about the homicide.' RP (April 9, 2001) at 59-60.
At 6:28 p.m., Milosevich advised Allen of his Miranda rights, which Allen waived. Hartley indicated, however, that Allen was still free to leave, as there was not enough evidence to hold him.
Allen then agreed to take a Computerized Voice Stress Analyzer (CVSA) which police told him would be inadmissible in court. After Allen took the CVSA, he left the police station.
II. February 8 and 10
On February 8, Detective Mauck asked Allen if he would take another CVSA. Allen asked if he needed an attorney, and Mauck replied that he was not in the position to give him advice about that. Allen made no further request for an attorney, and arranged to take a second CVSA on February 10, 2000.
Before the second CVSA, police again informed Allen that he was not under arrest. After the second CVSA, officers told Allen that the results indicated deception. Allen stated that he thought he needed a lawyer. Mauck told Allen that if he wanted a lawyer, he would be provided with one but the police would no longer be able to speak with him. Allen responded that he wanted to continue talking to the police, but Mauck ended the interview and took Allen home.
III. March 8 and 9
On the evening of March 8, 2000, police arrested Allen for intimidating a witness in relation to the investigation of Cox's murder. While they waited for a patrol car, Allen asked Officer Reeves when he could see an attorney. Reeves did not respond, but he told Detectives Mauck and Davis about Allen's inquiry when they arrived shortly thereafter. Allen then asked Davis if he would be able to contact his attorney. Davis asked Allen if he wanted an attorney right away or if he was asking whether he could contact an attorney in the future. Allen replied that he wanted to know if he would have time later to talk to an attorney. Davis explained that Allen could have `all the time he wanted' to talk to an attorney whenever he wanted, he just needed to ask. RP (Trial) at 151.
Davis again read Allen his Miranda rights, and Allen again signed a waiver form. Throughout the ensuing eight hour interview, Allen stated that he did not want an attorney.
On March 9, 2000, Allen was booked on intimidation and harassment charges. He did not ask for an attorney. That afternoon, police resumed interviewing Allen and again advised him of his Miranda rights, which he again waived. He then stated, `I am done. I want to give up' and `get it over with.' RP (April 10-11, 2001) at 40-41.
Allen was arrested on these charges before his arrest for murder, but the intimidation and harassment charges are not at issue on appeal.
Allen then admitted, in detail, to killing Cox and stealing the cashbox. Allen stated that a fight escalated between he and Cox, and he followed her into her bedroom. There he strangled her with a telephone cord until it broke. At that point, `[s]he tried to take off again' but she fell back to the ground. RP at 1039. Allen then retrieved a rifle from the gun cabinet and swung the rifle twice at Cox's head. The rifle broke in two, and he recalled picking up the pieces, washing them in the bathroom, and then hiding them in a box in the garage. He stated that he then returned to the bedroom and took a cashbox from the nightstand. As he walked out of the bedroom he realized he still had part of the telephone cord wrapped in his hand, which he then dropped on the floor on his way out of the house. Allen stated that he took a walk and threw the cash box in a slough. He then returned to the apartment and sat down by the fireplace. After a few minutes he heard a sound from the bedroom. He entered the bedroom, and because he thought Cox could still be alive, he called 911. Allen provided a taped statement describing these events.
IV. March 10, 13 and 15
On March 10, 2000, the police took Allen out of jail so he could show them where he discarded the cashbox. They again advised him of his Miranda rights. Allen indicated that he had been assigned an attorney who had instructed him not to talk to police. But Allen told Davis, `[F]uck him, I want to talk to you.' RP (April 9, 2001) at 177. Allen then dictated another statement to police in which he admitted killing Cox. The police then allowed Allen to see his fianc`, which Allen had previously requested.
On two other occasions Allen asked to speak with police. On both occasions, the officers obtained Miranda waivers before speaking with Allen.
On March 13, 2000, the State charged Allen with first degree murder.
On March 15, Davis and Mauck took Allen out of jail so he could help locate the cashbox, but police did not find it. Allen again asked to see his fianc`, and was allowed a brief visit.
V. CrR 3.5
At the CrR 3.5 hearing, Allen testified that police were unresponsive to his requests for an attorney. Allen also testified that the police told him that if he cooperated in finding the cashbox, they would allow him to see his fianc`. Allen acknowledged signing the rights waiver forms and he admitted that he never told the police that he did not want to talk to them. Allen further testified that he did not feel coerced and that he freely gave the taped confession. The court ruled that Allen's statements to the police were admissible.
Prior to trial, Allen also moved to exclude testimony related to his turbulent relationship with Cox and his prior threats against her. The court ruled that the testimony could come in if the behavior had occurred within a nine-month period before the murder. Allen further moved to suppress testimony from a friend, Christopher Smith, that after the crime Allen told him, `he had killed before and he could kill again.' RP (Trial) at 911. The court granted the motion based on ER 404(b), so long as the defense did not open the door.
V. Trial
The jury did not reach a verdict in the first trial. At the second trial, the court retained its prior evidentiary rulings. But before the second trial, the court ruled on Allen's new motions as follows: (1) Allen's statements to witnesses that he was hostile toward Cox were relevant to motive; (2) the court's ruling on the police officers' testimony about Allen's demeanor was reserved; and (3) Allen could present evidence that Brian Kitts committed the murder, but the State could respond with evidence showing that Kitts and Cox had a good relationship and that Cox got along well with other people.
Contrary to the court's pretrial ruling, Smith testified that Allen said that `he had killed before and he could kill again.' RP at 911. Allen objected and moved for a mistrial. The court agreed that this testimony violated its prior order, but the court also ruled that the statement was admissible as Allen's declaration against penal interest or as an admission.
The trial court admitted both the tape of Allen's 911 call and the tape of Allen's confession. Allen objected to the jury having unfettered access to his taped confession during deliberations. Allen made no objections during closing argument.
The jury convicted Allen of aggravated first degree murder. At sentencing, Allen moved for a new trial based on Smith's testimony. The court denied the motion.
Allen timely filed this appeal. He challenges sufficiency of the evidence and numerous evidentiary rulings; contests the trial court's denial of his motions for mistrial and for a new trial; violation of his right to counsel; and he argues that prosecutorial misconduct and cumulative error deprived him of a fair trial.
ANALYSIS I. Sufficiency of the Evidence
Allen challenges the sufficiency of the evidence to support the aggravated first degree murder conviction. In order to prove the offense, the jury must have found both premeditation and the aggravating factor of robbery. RCW 10.95.020(11)(a); 9A.32.030(1)(a); RCW 9A.32.040; RCW 9A.56.200, .210.
The standard of review for a challenge to the sufficiency of the evidence is whether any reasonable trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the State. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A reviewing court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
A. Evidence of Premeditation
Premeditation is `the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.' State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217 (1982). To support a first degree murder conviction, premeditation must span more than a moment. RCW 9A.32.020(1).
The State bears the burden of proving premeditation. State v. Lane, 112 Wn.2d 464, 472, 771 P.2d 1150 (1989). Premeditation may be proved by direct or circumstantial evidence, which are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Circumstantial evidence may be sufficient where the jury's inferences are reasonable and the evidence supporting the jury's finding is substantial. State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (2001).
By itself, strangulation does not support the inference of premeditation, but where injuries are inflicted by various means over a period of time there is evidence of deliberation or reflection. State v. Bingham, 105 Wn.2d 820, 825-26, 719 P. 2d 109 (1986). Sufficient evidence may also be found where the weapon used was not readily available or where there is evidence of a motive. State v. Gentry, 125 Wn.2d 570, 599, 888 P.2d 1105 (1995); State v. Ollens, 107 Wn.2d 848, 853, 733 P.2d 984 (1987). In addition, sufficient evidence may be found where there is evidence of a prolonged struggle before the strangulation. State v. Harris, 62 Wn.2d 858, 867-68, 385 P.2d 18 (1963) (victim was struck several times in the head before she was strangled using an electrical cord); State v. Gibson, 47 Wn. App. 309, 312, 734 P.2d 32 (1987) (same).
Allen argues that there was no premeditation of his mother's murder, but instead he acted out during a heated argument that escalated into physical violence by both parties. Allen claims he did not bring any weapons to Cox's apartment on the day of her murder, was at the apartment for less than 20 minutes before making a 911 call, and used weapons that were readily available at the house. But Gerald Cox testified that there was no telephone cord in the residence.
And although Allen claims a spontaneous argument resulted in his mother's death, there is substantial evidence that Allen had time to think about, deliberate, and weigh his actions, in light of his consecutive use of three different means to assure her death at his hands. See State v. Ortiz, 119 Wn.2d 294, 312-313, 831 P.2d 1060 (1992); Ollens, 107 Wn.2d at 853. Allen confessed to first using a telephone cord in an attempt to strangle Cox, and then to using his rifle to fracture her skull after the telephone cord broke and she ran away from him. But the forensic pathologist, Dr. Nelson, testified that Cox had clearly been manually strangled. He could not determine whether the official cause of death was manual strangulation or head trauma. He did not see evidence of ligature strangulation.
The evidence further showed that before the murder, Allen told friends that he hated Cox and wished she were dead. He also asked a friend how to commit the `perfect murder.' RP at 344. And multiple verbal disputes and physical confrontations occurred between Allen and Cox in the nine months before the murder. This type of evidence `often bears directly upon the state of mind of the accused with consequent bearing upon the question of malice or premeditation.' State v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997).
Thus, viewing the evidence in the light most favorable to the State, the jury's inferences are reasonable and the evidence is substantial that the State carried its burden to prove that Allen premeditated killing his mother.
B. Evidence of Aggravating Factor Robbery
Allen also challenges the sufficiency of the evidence to support a finding of robbery as the aggravating factor for his first degree aggravated murder conviction. RCW 9A.56.190, .200, 210; 10.95.020(11)(a). Although Allen did not object below, sufficiency of the evidence is an issue of constitutional magnitude that can be raised for the first time on appeal. RAP 2.5(a)(3); State v. Alvarez, 128 Wn.2d 1, 10, 904 P.2d 754 (1995).
Under RCW 10.95.020(11)(a), a person is guilty of aggravated first degree murder if he or she commits first degree murder and the `murder was committed in the course of, in furtherance of, or in immediate flight from . . . [r]obbery in the first or second degree.' To uphold the jury's finding that robbery was an aggravating factor, we must determine that the evidence, when viewed in a light most favorable to the State, supports the conclusion that any rational trier of fact could have found that Allen (1) murdered Cox; (2) in the course of, furtherance of, or immediate flight from robbing her. State v. Finch, 137 Wn.2d 792, 835, 975 P.2d 967 (1999); State v. Brett, 126 Wn.2d 136, 166, 892 P.2d 29 (1995)
Allen asserts that he had no intent to steal the cashbox and was surprised that he had it in his possession. But the State maintains that circumstantial evidence supports the jury's verdict that the robbery was an aggravating circumstance of the murder.
`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 or his property. . . .' RCW 9A.56.190. The facts of this case indicate that Allen committed robbery when he used deadly force against Cox in her bedroom, disabled her, and immediately thereafter unlawfully took a cashbox from her nightstand. See State v. Kjorsvik, 117 Wn.2d 93, 110, 812 P.2d 86 (1991) (essential element of intent appropriately inferred where defendant unlawfully took victim's money, by threatened use of force, violence and fear while displaying a deadly weapon).
RCW 9A.56.200 — Robbery in the first degree: `(1) A person is guilty of robbery in the first degree if: (a) In the commission of a robbery or in immediate flight therefrom, he or she: (i) Is armed with a deadly weapon; or (ii) Displays what appears to be a firearm or other deadly weapon; or (iii) Inflicts bodily injury. . . .'
`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.' State v. Brown, 132 Wn.2d 529, 607-08, 940 P.2d 546 (1997) (quoting State v. Golladay, 78 Wn.2d 121, 132, 470 P.2d 191 (1970), overruled on other grounds, State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976)). The killing must be part of the `res gestae' of the felony. Golladay, 78 Wn.2d at 132. In other words, we consider not only the direct facts and circumstances of Allen's actions, but also the immediate surrounding circumstances that have a `causal connection' to the facts in question. State v. Leech, 114 Wn.2d 700, 706, 790 P.2d 160 (1990).
In Leech, the defendant was charged with felony murder after he committed arson and a firefighter died while attempting to extinguish the fire. 114 Wn.2d at 700. He argued that once the act of arson ended, the victim's subsequent death could not be `in furtherance of' the arson. Leech, 114 Wn.2d at 704. But we do not read `in furtherance of' literally.
The Leech court held that the death occurred while the fire was still burning and was therefore close enough in time and place to the arson to be within the res gestae of that felony. 114 Wn.2d at 708; see also State v. Dudrey, 30 Wn. App. 447, 450, 635 P.2d 750 (1981) (`intimate and close connection' between homicide and burglary warranted treatment of burglary as an aggravating factor).
In Golladay, the court found no causal connection between the victim's murder and the defendant's alleged larceny. 78 Wn.2d at 130. The defendant was seen discarding the murder victim's purse and shoes from his car. He explained that the victim had been in his car with another man earlier in the evening. The victim was found some miles away from the defendant, and numerous witnesses saw the victim with another man close to the time of her murder. There was also no evidence that the defendant intended to take the victim's shoes and purse, thus, the larceny was entirely separate, distinct, and independent from the homicide. Golladay, 78 Wn.2d at 130-32.
The facts here differ from Golladay and are akin to those of Leech and Dudrey. The evidence establishes that: (1) Allen and Cox had a volatile relationship, and money was an ongoing point of contention between them; (2) Cox told her husband that `she was gonna have it out with [Allen] over some money' on the day of her murder; (3) Allen went to Cox's residence and they got into an argument; (4) Allen `lost it' and physically assaulted Cox; (5) Allen first strangled Cox with a telephone cord in her bedroom, and then bludgeoned her head with a gun; (6) Cox died of either manual strangulation or head trauma; (7) Allen took the cashbox from the nightstand while Cox lay dying on the floor, kept the money from it, and discarded the box in a nearby slough; and (7) Allen then returned to Cox's residence, found that Cox was possibly still alive in the bedroom, and called 911. RP at 386, 1017. Unrefuted evidence establishes that Allen killed his mother and stole a cashbox containing approximately $1,500 from her nightstand as she lay dying. The evidence is persuasive that the murder and cashbox theft occurred when their volatile relationship over money flared into a murderous attack by Allen. There is also a clear causal connection between Allen disabling Cox by strangling and beating her, and his ability to take the cashbox without further argument or struggle. And additional evidence indicates that Cox was still alive when Allen returned to her home after stealing the cashbox.
This conclusion is supported by Allen's admission to taking the cashbox and also evidence indicating that Allen was later seen with the cashbox money.
Viewing the evidence in the light most favorable to the State, any reasonable trier of fact could find that Allen intentionally robbed Cox and that Cox's murder was part of the res gestae of the robbery. Thus, we find sufficient evidence for the jury's verdict on the aggravating robbery factor.
II. Evidentiary Rulings
A reviewing court reverses trial court rulings on the admissibility of evidence only upon a showing of manifest abuse of discretion. State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992). A trial court abuses its discretion when it adopts a view no reasonable person would take. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
In order to preserve an evidentiary challenge on appeal, a party must make a specific objection to the admission of the evidence before the trial court. ER 103. Failure to do so precludes appellate review. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). But if the error is a manifest error affecting a constitutional right, we may consider the issue for the first time on appeal. RAP 2.5(a)(3).
A. Opinion Testimony from Police and Lay Witnesses
Allen objects to the admission of testimony by (1) Detectives Davis and Stafford, which Allen characterizes as their opinions of Allen's guilt; and (2) by numerous witnesses regarding Allen's demeanor.
Allen challenges the alleged opinion testimony for the first time on appeal. RAP 2.5(a)(3). Thus, we must first consider whether a trial court's ruling on the admissibility of opinion testimony was a manifest error affecting a constitutional right.
Allowing a witness to opine as to the guilt of the defendant invades the exclusive province of the trier of fact and is an error of constitutional magnitude. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001); State v. Jones, 71 Wn. App. 798, 813, 863 P.2d 85 (1993). Opinion testimony is `based on one's belief or idea rather than on direct knowledge of facts at issue.' Demery, 144 Wn.2d at 760 (quoting Black's Law Dictionary at 1486 (7th ed. 1999)).
In determining whether witness statements are impermissible opinion testimony, the court considers numerous factors, including the `type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact.' City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993). `[T]estimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.' Heatley, 70 Wn. App. at 578.
But where a witness does not expressly state his belief regarding the guilt or veracity of another witness, there is no manifest constitutional error. Jones, 71 Wn. App. at 813 (relying on State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). We recently considered this issue in State v. Saunders, where the defendant objected at trial to only one of four statements challenged on appeal. 120 Wn. App. 800, 811, 86 P.3d 232 (2004). We concluded that we would `consider each instance because the admission of opinion testimony may be manifest error affecting a constitutional right.' Saunders, 120 Wn. App. at 811 (citing Demery, 144 Wn.2d at 759). For the same reason, we examine Allen's objections.
i. Officer Testimony
Allen first objects to the testimony of Detectives Davis and Stafford. An officer's testimony often carries a special aura of reliability and trustworthiness and may be particularly prejudicial. Demery, 144 Wn.2d at 753.
Counsel asked Stafford whether Allen `ever at any time den[ied] that he killed Sharon Cox.' RP at 555. Over a relevance objection, the court permitted Stafford to answer, `No, he did not.' RP at 556. This statement was not opinion testimony, as it was not a comment on Allen's guilt or veracity and was based on Stafford's personal experience with Allen.
Allen also claims that Davis improperly commented on Allen's veracity. But Allen cites to 100 pages of Davis' testimony without identifying any particular impropriety. We need not consider issues unsupported by specific references to relevant parts of the record. RAP 10.3(5); Estate of Lint, 135 Wn.2d 518, 531-32, 957 P.2d 755 (1998). Because Allen does not specifically identify any erroneous testimony by Davis, we decline further review of this claim. ii. Witness Testimony on Allen's Demeanor
Allen next argues that testimony by Detectives Hartley and Milosevich and lay witnesses Bonnie Walker and Brian Kitts was inadmissible under ER 701 and 403. An opinion that lacks proper foundation or is not helpful to the trier of fact is not admissible under ER 701. State v. Read, 147 Wn.2d 238, 249, 53 P.3d 26 (2002). An otherwise admissible opinion may be excluded under ER 403 if it is confusing, misleading, or if the danger of unfair prejudice outweighs its probative value. Bell v. State, 147 Wn.2d 166, 181, 52 P.3d 503 (2002).
Allen also alludes to ER 702, 703 and 704 in his brief. None of the challenged statements expressed an opinion on the ultimate issue of whether Allen murdered Cox, and therefore, ER 704 is inapplicable. Similarly, none of the challenged statements was in the context of expert testimony. The statements were all based on the witness' personal observations of Allen's demeanor while he was with them. Thus, ER 702 and 703 are also not relevant.
Hartley testified that when he met with Allen on the day of Cox's death, Allen was `nervous,' did not appear upset, and `was even laughing and joking' during their conversation. RP at 448, 458. Hartley also confirmed that Allen did not exhibit any emotion while describing finding his mother, nor did he cry during the interview.
Milosevich testified that during their interview, Allen `was very matter of fact, [and] showed very little emotion. He broke down once at the very beginning of the interview . . . [b]ut that was it,' and the emotional response lasted `[j]ust a matter of seconds.' RP at 469.
A family friend, Bonnie Walker, testified that shortly after Cox's murder, Allen described finding Cox in her bedroom. She said he was, `talking to me just like it was any other conversation,' and told her `not to cry because it wasn't worth it.' RP at 337.
Brian Kitts overheard Allen talking on the telephone to Allen's aunt. Kitts stated that `he sounded like he was cryin', kind of, but he wasn't crying . . . his voice made it sound like he was crying but there was no real expression on his face.' RP at 740. When Allen got off the telephone Kitts described him as `relaxed' and `carefree.' RP at 741.
Testimony describing how a defendant reacts to emotional news is not necessarily improper opinion testimony. State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021 (1988). A witness who personally observes a defendant may convey facts to provide a foundation for the observation, and then `state his opinion, conclusion, and impression formed from such facts and circumstances as came under his observation.' State v. Jamison, 93 Wn.2d 794, 798, 613 P.2d 776 (1980) (quoting Ulve v. City of Raymond, 51 Wn.2d 241, 253, 317 P.2d 908 (1957)).
In State v. Allen, an officer testified that the defendant `appeared to be sobbing . . . [but] the lack of tears, the lack of any redness in her face did not look genuine or sincere.' 50 Wn. App. 412, 416, 749 P.2d 702 (1988). The court held that this was not impermissible opinion testimony because the statement was `prefaced with a proper foundation: personal observations . . . that directly and logically supported his conclusion.' Allen, 50 Wn. App. at 418.
In this case, none of the challenged testimony opines about Allen's sincerity, the appropriateness of his demeanor, or about his guilt or veracity. The testimony simply recounts the personal observations of those who witnessed Allen's demeanor after his mother's death. Thus, the evidence is not opinion testimony and there is no manifest error warranting review.
B. Cox's Character
Allen argues that the trial court erred in admitting `victim impact testimony' by allowing witnesses to comment on Cox's character during the guilt phase of the trial. Br. of Appellant at 33. The State responds that the challenged testimony was not victim impact evidence. We agree with the State.
`Victim impact testimony' refers to the limited circumstances during the penalty phase of a capital case where a victim's relatives may offer evidence regarding the characterizations of the crime, the defendant, and the appropriate punishment. Gentry, 125 Wn.2d at 617. Here, the challenged testimony came in during the guilt phase of Allen's trial. Thus, the relevant law on `victim impact testimony' does not apply.
Allen challenges the testimony as improper evidence of Cox's good character and reputation within the family and in the community. He cites ER 401, 402, 404(a)(2) and 405(a) for this contention. The State responds that the evidence was relevant and properly admitted because Allen argued at trial that Brian Kitts or another person may have been responsible for Cox's death.
Relevant evidence is `evidence having any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.' ER 401. Relevant evidence is generally admissible. ER 402. If the evidence is relevant but comments on a person's character trait, it is not admissible, unless it is Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.
ER 404(a)(2).
Allen objected to the State asking Cindy Helms, Cox's `best friend,' what kind of person Cox was. RP at 155. The court concluded that Helms' testimony that Cox was generally well-liked in her family and community was relevant. Helms testified that Cox generally tended to get along with people, particularly family, including Kitts, and that Cox was a `soft-hearted, very kind person.' RP at 160.
Kitts, who Allen alleged killed Cox, is Helms' adopted son.
This testimony refuted Allen's argument that Kitts killed Cox, and it established that Cox was generally liked in the community to refute Allen's allegation that someone else killed her. The evidence of Cox's character was not being introduced to prove conformity on a particular occasion, and ER 404(a) does not bar its admission.
Stephanie Geinger testified that Cox `was [her] second mom.' RP at 333. She also stated that when Allen told her about Cox's death, she started crying. Brian Kitts testified that Cox's death `was basically one of the worse [sic] things that ever happened to [him].' RP at 756. Neither statement related to Cox's character, thus, ER 404(a) is inapplicable to bar either Geinger's or Kitts' testimony.
Allen now objects to statements defense counsel elicited from Bobby Fields. Fields testified that upon learning of Sharon Cox's death, Gerald Cox, her husband, was crying and thought she must have had a heart attack because she was a workaholic. Fields also stated that `everybody loved [Cox].' RP at 434. But Allen cannot now challenge these statements because he did not object at trial.
C. Evidence of Cox's State of Mind on the Day of her Murder
Allen next contends that the trial court erroneously admitted testimony by Gerald Cox that Cox told him she was going to `have it out' with Allen about money issues on the day of the murder. RP at 386. Allen objected to the statement as hearsay, and the trial court ruled that it was admissible as a `[d]eclaration of intent.' RP at 387; ER 803(a)(3).
ER 803(a)(3) permits the admission of a hearsay statement that shows the `declarant's then existing state of mind, emotion, sensation, or physical condition.' The state of mind exception allows hearsay statements to show `that the declarant acted in accordance with statements of future intent.' State v. Powell, 126 Wn.2d 244, 266, 893 P.2d 615 (1995). Cox's statement reflects that she intended to see Allen that day and to confront him about an inflammatory issue between them. This statement was admissible under ER 803(a)(3).
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 1354 (2004), does not dictate a different result. Crawford requires that the defendant have the opportunity to confront `testimonial' hearsay statements. `An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' Crawford, 124 S. Ct. 1354, 1364. Cox's statement to her husband was of the latter variety, and does not implicate the Sixth Amendment's protections.
D. Evidence of the Hostile Relationship Between Allen and Cox
Allen moved in limine to exclude evidence of his turbulent relationship with Cox. He asserts that this evidence was admitted without a proper balancing of its probative value and potential prejudice under ER 404(b).
ER 404(b) prevents character evidence of an accused's other crimes, wrongs or acts to show conformity with it. But character evidence may be admissible to show `motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b). The trial court must identify on the record the purpose for which ER 404(b) evidence is admitted, find the evidence materially relevant, and balance its probative value against the potential for prejudice. ER 403; State v. Wade, 138 Wn.2d 460, 463, 979 P.2d 850 (1999).
The trial court allowed evidence regarding the relationship between Cox and Allen during the nine months before Cox's death, holding that evidence of hostility between Cox and Allen was prejudicial, but relevant, and that `the state of mind of [Allen] towards his mother, which is essentially the issue of motive, can be proven by hostile statements, assuming that there's some that are recent.' RP at 71. The trial court explained that the hostility was `an ongoing problem . . . [a]nd that's why [he] allowed that [nine month] parameter.' RP at 72.
Allen also specifically challenges the testimony of Bonnie Walker and Wayland Heaton about Allen's conduct toward Cox. Walker testified that in October 1999, she observed Allen `throwin' stuff around . . . punch[ing] holes in the wall and kick[ing] a couple of holes in the wall' after getting in an argument with Cox. RP at 562. The trial court decided, `It is admissible to show that he was very upset about his relationship with his mother. That's the only purpose for which it's admissible . . . [i]t's not admissible to prove character . . . [or] conformity therewith . . . [and] it doesn't have a huge prejudicial effect.' RP at 610.
Heaton testified that Allen said numerous hateful things about his mother: `[H]e wished she would die,' he called her a `bitch,' he said `he wanted to kill her,' and he would clench his fists when he said these things. RP at 645. The court admitted this testimony because it established Allen's `state of mind.' RP at 647. The record thus indicates that the trial court properly considered the purpose of the evidence, its relevance, its probative value, and its prejudicial nature.
Allen further argues that the trial court erred in failing to provide a curative instruction for testimony referring to Allen's prior outbursts toward his mother. But Allen did not request a curative instruction. Instead, he first asked that the testimony be stricken, and then he asked for and secured an order limiting the use of the evidence of Allen kicking and punching the walls to the relationship between Allen and his mother. The trial court's order stated that `the prosecution shall not advance any argument to the jury which suggests in any way that the defendant's alleged activities on February 7, 2000 were in conformity with his kicking and punching of the walls.' CP at 258. And Allen fails to show that this limiting instruction was inadequate.
A trial court must give a limiting instruction where evidence is admitted for one purpose, but not for another, and the party against whom the evidence is admitted requests the instruction. ER 105; State v. Gallagher, 112 Wn. App. 601, 611, 51 P.3d 100 (2002). The trial court has wide latitude in `fashioning its own limitation on the use of the evidence' so that it is used for the proper purposes. Gallagher, 112 Wn. App. at 611. The trial court did not abuse its broad discretion in its limiting the use of the evidence about Allen's prior outbursts toward Cox.
E. 911 Tape and Recorded Confession
Allen argues that the trial court erred in admitting the 911 tape and in giving the jury unfettered discretion to play the tape of Allen's confession during deliberations. The trial court has discretion over the admission of evidence, and this court will not disturb its decision absent an abuse of discretion. Castellanos, 132 Wn.2d at 97.
`[A] tape recorded statement of the defendant . . . [may] go to the jury if, in the sound discretion of the trial court, the exhibit [is] found to bear directly on the charge and [is] not unduly prejudicial.' State v. Frazier, 99 Wn.2d 180, 188-89, 661 P.2d 126 (1983). The test for prejudice is `whether such evidence is likely to stimulate an emotional response rather than a rational decision.' State v. Elmore, 139 Wn.2d 250, 295, 985 P.2d 289 (1999).
The requirements for proper admission are that the party requesting admission must appropriately seek a ruling from the trial court on the admission of such an exhibit. Any objection to the exhibit's admission or its use by the trier of fact must be articulated at that time for a ruling by the trial court. However, once admitted into evidence, an exhibit may be used by the trier of fact in whatever fashion it chooses under CrR 6.15(e).
Elmore, 139 Wn.2d at 296.
In this case, the State moved to enter the 911 tape and the confession tape into evidence. Allen objected, stating that the tapes could have an emotional or inflammatory effect. The trial court overruled his objection and allowed the tapes, ruling that there were significant issues for the jury to consider surrounding the `circumstances . . . [and the] reliability of the confession.' RP (Oct. 22, 2002, p.m. session) at 11-12.
The recorded confession bears directly on the charge against Allen. And the admission of the tapes was not unduly prejudicial because the tapes were likely to promote the jury's resolution of the issues rather than incite an emotional response. Thus, the trial court did not abuse its discretion.
III. Right to Counsel
Allen claims that the trial court improperly admitted several of his statements to police, violating his Fifth and Sixth Amendment rights. Specifically, Allen argues that (1) the trial court erroneously admitted statements he made to officers on February 7, 8, 9 and 10 because he was not given Miranda warnings; (2) officers violated his right to counsel by interrogating him after he requested an attorney; and (3) his confession was coerced.
A trial court's findings of fact from a CrR 3.5 hearing are verities on appeal if unchallenged, and, if challenged, we will uphold them if supported by substantial evidence in the record. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). We review a trial court's legal conclusions regarding custodial interrogation de novo. State v. Solomon, 114 Wn. App. 781, 788, 60 P.3d 1215 (2002), review denied, 149 Wn.2d 1025, 72 P.3d 763 (2003).
A. Allen's February 7 Statements
Allen first asserts that the trial court erred in admitting statements he made to officers before they gave him Miranda warnings. Officers must advise defendants of their right to counsel and their right against self-incrimination when `custodial interrogation' begins. U.S. Const. Fifth Amend.; Wash. Const. art. I, sec. 9; Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
`Custodial interrogation' is questioning initiated by police officers when a reasonable person would not feel at liberty to terminate interrogation. State v. Templeton, 148 Wn.2d 193, 208, 59 P.2d 632 (2002) (citing Thompson v. Keohane, 516 U.S. 99, 107, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995)). The relevant inquiry is whether, under an objective standard, a reasonable person would believe he was in police custody based on the restriction of the suspect's freedom of movement at the time of questioning. State v. Cunningham, 116 Wn. App. 219, 228, 65 P.3d 325 (2003). `The Fifth Amendment right to counsel exists solely to guard against coercive, and therefore unreliable, confessions obtained during in-custody interrogation. . . .' State v. Stewart, 113 Wn.2d 462, 478, 780 P.2d 844 (1989). Officers are not required to administer Miranda warnings `simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.' State v. Rotko, 116 Wn. App. 230, 241, 67 P.3d 1098 (2003).
Our review of the specific facts supports the trial court's conclusion that Allen was not subjected to custodial interrogation before being given Miranda warnings on February 7. The officers repeatedly told him that he could leave, even after he received Miranda warnings at 6:28 p.m. A reasonable person under the same circumstances would not feel that he had to stay at the station or that he was in police custody under formal arrest.
B. Allen's Statements on February 8, 9, and 10
Allen also asserts that his statements on February 8, 9, and 10 were `the result of a custodial interrogation conducted without a Miranda warning.' Br. of Appellant at 18. But as noted above, Hartley and Milosevich gave Allen Miranda warnings at 6:28 p.m. on February 7.
On February 8, police contacted Allen to ask if he would be willing to undergo a second CVSA. Allen consented, and they agreed to do the CVSA on February 10. There is no indication that officers made any contact with Allen on February 9. On February 10, Allen voluntarily came to the police department for a second CVSA. Mauck again told Allen that he was `free to go and he was not under arrest.' RP (April 9, 2001) at 113.
Allen's February 8 and 10 encounters were voluntary and noncustodial. He had already waived his Miranda rights on February 7. And once a defendant chooses not to invoke his right to silence, officers are not required to repeat the Miranda warnings each time they question the defendant. State v. Gilcrist, 91 Wn.2d 603, 607, 590 P.2d 809 (1979). Even if Allen had invoked his right to counsel, he thereafter initiated further communication with the officers without a lawyer and was, therefore, subject to further questioning. State v. Aten, 130 Wn.2d 640, 666, 927 P.2d 210 (1996).
C. Interrogation Following Mention of Counsel
Allen next argues that he invoked his right to counsel numerous times and that evidence obtained as a result of police questioning after his requests for counsel should have been suppressed. The record does not support this assertion.
Once an accused has unequivocally asserted his Fifth Amendment right to counsel, custodial interrogation must cease unless the accused initiates further communication or until counsel has been made available to the accused. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). When a suspect makes an equivocal request for counsel during a custodial interrogation, any questioning must be strictly confined to clarifying the suspect's request. State v. Robtoy, 98 Wn.2d 30, 39, 653 P.2d 284 (1982).
But Allen never unequivocally invoked his right to counsel. Each time Allen indicated that he might want an attorney, the officers legitimately asked for clarification. Allen's clarifying statements consistently stated that he wanted to continue talking with police officers, and Allen continued to voluntarily initiate contact with police. Further, even after obtaining counsel, he ignored his counsel's direct advice not to talk to anyone, and he again waived his Miranda rights to talk with the police. And at the CrR 3.5 hearing, where Allen first argued denial of counsel, Allen testified that he had voluntarily signed the waivers of his Miranda rights and that he did not tell the police that he did not want to talk to them.
IV. Confession
Allen now contends that he was coerced into confessing that he killed his mother. But he provides no authoritative legal support for his allegation that police coerced his confession.
He cites only a Denver University Law review article as legal support for this contention, which we do not find persuasive.
The proper inquiry for determining whether a confession has been coerced is to consider the totality of the circumstances, including the defendant's condition, his mental abilities, and police conduct. State v. Rupe, 101 Wn.2d 664, 678-79, 683 P.2d 571 (1984). We also consider any promises or misrepresentations interrogating officers made, and whether any such promise weakened the defendant's free will to the extent that the confession was coerced. Broadaway, 133 Wn.2d at 132; Rupe, 101 Wn.2d at 679.
Allen waived his Miranda rights on February 7, 2000, and five times thereafter. During cross-examination, Allen acknowledged that he made these waivers willingly and voluntarily. The investigating officers were straightforward with Allen. They did not threaten him or make misrepresentations or false promises to influence Allen to waive his rights or continue talking with police. On the contrary, Allen appeared calm and cooperative, and he was willing to talk to the officers despite their repeated statements that he was free to leave at any time.
After officers arrested and Mirandized Allen on March 8, Davis and Milosevich questioned him for approximately eight hours. Allen repeatedly tried to confess, and officers refused to accept his confession without details that matched what they knew about the crime. The next day Allen confessed, providing details known only by the police and the guilty party. Allen then gave a taped confession. This does not indicate coercion.
Allen further argues that statements he made to the police after the confession should have been suppressed as `fruit of the poisonous tree.' Br. of Appellant at 26. Because his confessions were voluntary, this contention is without merit.
V. Motions for Mistrial and New Trial
Before the first trial, the court granted Allen's motion in limine to prevent Christopher Smith from testifying that after Cox's death, Allen said `he had killed before and he could kill again.' RP at 911. During the second trial, the prosecutor elicited this exact, prohibited testimony from Smith.
The State concedes that the prosecutor violated the court's ruling that Smith's statement should not be introduced. But the State argues that the violation was harmless error because it was admissible under ER 804(b)(3), or 801(d)(2)(i), and Allen has not established that he suffered any prejudice from the introduction of this evidence.
ER 804(b)(3) provides: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
ER 801(d)(2) states that a statement is not hearsay if it is an admission by a party opponent:
The statement is offered against a party and is (i) the party's own statement, in either an individual or a representative capacity or (ii) a statement of which the party has manifested an adoption or belief in its truth, or (iii) a statement by a person authorized by the party to make a statement concerning the subject, or (iv) a statement by the party's agent or servant acting within the scope of the authority to make the statement for the party, or (v) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
The trial court acknowledged that if the testimony were deemed inadmissible, it would have warranted a mistrial because no curative instruction could have remedied Smith's prejudicial statement.
The court questioned Smith outside the jury's presence about the context of Allen's statement. The evidence indicated that Allen made the challenged statement to Smith after Allen returned from police questioning in the days immediately following Cox's murder. Smith testified out of the jury's presence that, although he did not know who Allen was referring to when he said he had killed before, Smith `took that as a personal confession.' RP at 935. But before the jury, Smith testified that he interpreted Allen's statement as `just blowin' off steam.' RP at 933.
After extensive discussion outside the jury's presence, the court concluded that Allen's statement to Smith was admissible under ER 804(b)(3) as a statement against penal interest or as a `somewhat ambiguous admission.' RP at 945. The trial court ruled that while the State violated the court's earlier ruling, the evidence was admissible as a statement against penal interest and, therefore, did not warrant a mistrial. It stated, `[I]f this witness was clear that this was a statement about a different homicide . . . it's a 404(b) action that has no business here. If it's ambiguous and could be reasonably interpreted by the jury to be a statement against his interest in this case . . . then I think it's probably admissible.' RP at 941.
Allen would be `unavailable' for purposes of ER 804 because he did not testify, invoking his Fifth Amendment rights.
At the close of evidence, Allen moved for a new trial on the same ground. The trial court denied the motion, stating that `in the context in which it was admitted, the only evidence that we have that it related to any homicide, was the one in question. Consequently, it's relevant to that.' RP at 1262.
We review the denial of a motion for mistrial under an abuse of discretion standard. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000). We will uphold a trial court's decision to deny a mistrial motion unless the irregularity so tainted the entire proceeding that when viewed in the context of all the evidence, the defendant was denied a fair trial. State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172 (1992).
Although the State violated the trial court's pretrial order, the court's admission of Smith's testimony did not deny Allen a fair trial. Party statements offered into evidence against that party are not hearsay and are admissible under ER 801(d)(2)(i) as an admission by a party-opponent.
Moreover, defense counsel highlighted the fact that Smith interpreted Allen's statement as `just blowin' off steam' on cross-examination. RP at 933. The jury did not hear Smith's statement that he took Allen's words as a personal confession. Smith also testified that it was well after Allen made the statement that Smith began to think he could have been referring to Cox.
Thus, Smith's testimony did not warrant a mistrial or new trial because it was admissible under ER 801(d)(2)(i) and relevant to the charges against Allen. The trial court's decision to deny a mistrial did not taint the proceedings or materially affect any of Allen's substantial rights.
VI. Cross-examination of Eurich
Allen argues that he was denied his Sixth Amendment right to confront and cross-examine David Eurich. U.S. Const. Sixth Amend.; Wash. Const. art. 1, sec. 22. This right is significant where a witness may have incentive to cooperate with the prosecution or may otherwise be biased. State v. Buss, 76 Wn. App. 780, 788-89, 887 P.2d 920 (1995). But a defendant has no constitutional right to admit irrelevant evidence as part of his defense. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). And the trial court has discretion to preclude cross-examination where the evidence is vague or speculative. State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980).
Allen argues that the jury was entitled to hear that Eurich was facing trial for 10 crimes of dishonesty. The trial court permitted Allen to inquire about Eurich's convictions, the number of Eurich's pending charges, and the standard range for Eurich's sentences if convicted on all pending counts, but it ruled that the nature of the unproved charges should not be disclosed.
The trial court did not abuse its discretion. The court allowed evidence of pending charges to show bias or interest but limited questions regarding the nature of the charges because Allen was `impeaching by showing a conviction for a crime of dishonesty.' RP at 684; ER 609(a). And despite the court's ruling, counsel listed Eurich's numerous convictions, and Eurich testified that he was facing eight counts of forgery and that many of the charges `involve[ed] theft and dishonesty.' RP at 719. Allen was not prejudiced in his cross-examination of Eurich.
VII. Prosecutorial Misconduct
Allen argues that in closing argument the prosecutor improperly used evidence of Allen's hostile behavior toward Cox to indicate that he acted in conformity with that behavior on February 7, 2000.
Allen's failure to object during closing argument constitutes a waiver of any error unless the remark is `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.' State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). The defendant bears the burden of showing that the misconduct was improper in light of the entire case and that there is a substantial likelihood that it affected the jury verdict. Finch, 137 Wn.2d at 839. Allen has not met that burden here.
After recounting evidence of Allen's verbally and physically aggressive behavior, the prosecutor argued What are the chances in life that you go around telling people, I wish she was dead. I'm going to kill her. And then all of a sudden, lo and behold, she's murdered. . . . [W]hen the Defendant tells all these people that he's going to kill his mother, that he . . . wants her dead . . . it was a forecast. And when all the physical evidence points to him, that's the snow being on the ground.
RP at 1117-18.
Nothing in the challenged testimony is particularly egregious or ill-intentioned. And the court could have cured any impropriety with a jury instruction had Allen properly objected. Thus, Allen has waived this argument by failing to object below.
VIII. Cumulative Error
To obtain relief under the cumulative error doctrine, Allen must show significant errors and show that they unfairly prejudiced his trial. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994). Allen has not met this burden: The issues he has enumerated in his appeal were without merit, or harmless. Thus, there is no cumulative error.
We affirm.
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.
HUNT, J., Concur.
Because the State produced no evidence that Allen robbed the victim during the assault and killing, I dissent.
The State's theory was that Allen killed his mother during an explosive outburst of anger and violence. Consistent with this theory, the trial court allowed the State to introduce evidence of Allen's turbulent relationship with his mother and his earlier threats against her.
Allen's confession was consistent with the State's theory. He described an escalating argument that lead to his attempts to strangle his mother. When these attempts were apparently unsuccessful, he hit her on the head with a rifle with sufficient force to break the rifle in two. He then picked up the pieces, washed them, and hid them in the garage. Finally, he returned to the bedroom where his mother lay dead or dying and took a cashbox from the nightstand.
To prove a robbery, the State had to show beyond a reasonable doubt that Allen took the cashbox from his mother against her will by force or threat of force. RCW 9A.56.190. Missing entirely from the State's case is any evidence that Allen took the cashbox from his mother against her will and by force or threatened force. Allen admitted to a simple theft, not robbery. And the State offered nothing to counter Allen's story. Although the jury was not obliged to accept Allen's story, rejecting his explanation does not prove a different, untold story.
The majority reasons that the killing and theft were connected because they occurred at the same time and place, citing State v. Dudrey, 30 Wn. App 447, 635 P.2d 750 (1981) and State v. Leech, 114 Wn.2d 700, 790 P.2d 160 (1990). From this, the majority concludes that ` [t]here is also a clear causal connection between Allen disabling Cox by strangling and beating her, and his ability to take the cashbox without further argument or struggle.' Majority Opinion at 13.
But the question is not whether the killing and theft were closely connected in time and place. The question is whether the theft was really a robbery because Allen took the cashbox by overcoming Cox's will through force or threatened force. Merely connecting the theft to the killing through time and place does not elevate the theft to robbery. Neither does the majority's reasoning that Allen was relieved of having to take the box by force or threatened force because he had already disabled Cox. In essence, this argument is simply that if Allen had not already killed his mother, he would have had to rob her (use force) to get the box. Perhaps, but this theory assumes that Cox attacked his mother to get the cashbox. The State produced no evidence that he did. In fact, the State's theory was that Allen's final assault was the culmination of a long-developing feud between Allen and his mother. Finally, speculation as to what might have happened if events had unfolded in a different manner does not help us understand what did happen.
In conclusion, the State proved that Allen and his mother had a troubled history, which included Allen's threats of violence. On the day of the killing, Allen and his mother argued; in an explosion of anger and violence, Allen strangled and beat his mother to death; afterwards, he took a cashbox. The State produced no evidence that Allen robbed his mother during the killing. I would reverse the aggravating factor finding and remand for resentencing.