Opinion
No. 35476-4-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02425-1, Susan Serko, J., entered October 6, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
Steven R. Belitz appeals his convictions of five counts of first degree robbery, one count of second degree possession of stolen property, and one count of attempting to elude a pursuing police vehicle, all with firearm enhancements. Belitz argues that the trial court erred in (1) commenting on the evidence, (2) incorrectly instructing the jury, (3) admitting his confession to the police, (4) admitting contradictory testimony from two detectives, and (5) adding the firearm enhancements to his convictions. Belitz also contends that his counsel ineffectively represented him and that the State vindictively prosecuted him. Finding no reversible error, we affirm.
FACTS I. Robberies
On May 12, 2005, Steven Belitz robbed a Safeway store in Tacoma. He brought a beer to a check-out stand. As the cashier rang him up, Belitz told her to put all the money in a bag. When the cashier repeated his statement, he pulled up his shirt, displaying the handle of a gun. She put cash from her register in a bag and gave it to Belitz, who left the store.
On May 14, 2005, Belitz robbed a Starbucks in Tacoma. He waited until all the customers were gone, and then approached the cashier. He told her, "this is a robbery," and demanded the money in the till. Report of Proceedings (RP) (Aug. 31 2006) at 370). When the cashier asked him to repeat himself, he pulled a gun from his waistband and showed it to her. The cashier put everything in her till into a paper bag. Belitz took the bag and walked out of the store to his parked car.
On May 15, 2005, Belitz robbed a Quizno's sandwich shop in Tacoma. Belitz ordered a sandwich and moved toward the register. While the clerk was ringing him up, Belitz pulled out a gun and pointed it at him. The assistant manager opened the cash drawer, and Belitz took the money. Belitz walked out with the money and his sandwich.
On May 16, 2005, Belitz robbed Ivar's Seafood Bar in Tacoma. He entered the store and went straight to the bathroom. When Belitz emerged, he loitered in front of the register. Finally, Belitz approached the register, pulled out a gun, pointed it at the cashier, and said, "I need what's in your till." RP (Sept. 5, 2006) at 25. The cashier placed the bills on the counter, and Belitz left with the money.
On May 17, 2005, Belitz robbed a Tacoma Boys grocery store in Tacoma. Belitz brought a piece of meat up to the cashier. As she grabbed it, he said, "You are being robbed, give me everything you have." RP (Aug. 30, 2006) at 172. Belitz had also pulled a gun out from under his shirt and pointed it at her. The cashier removed the money from the register and placed it in a bag, which she gave to Belitz. Belitz walked quickly out of the store. Two Tacoma Boys employees chased Belitz out the door and through the parking lot. When they got close, Belitz turned and pointed his gun at them; the employees backed off. Belitz ran to his car and drove away.
The police chased Belitz through Tacoma. Belitz eventually took a corner too fast and high-centered his car on some shrubs. Officers arrested Belitz, handcuffed him, and read him his Miranda rights. At the scene, Belitz asked the officers if they would get the pictures of his family for him from the car he had been driving. The officers said that they would. Officer Rush then transported Belitz to an interrogation room at the police station.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Belitz's Confession
Detective Andren, Detective Reidburn, and Officer Rush were all present at Belitz's interrogation. Andren re-advised Belitz of his Miranda rights. Belitz said he understood his rights and agreed to answer the detectives' questions.
Belitz immediately told the detectives that he had a drug problem and that he had robbed Tacoma Boys so that he could buy more drugs. He recounted the details of the robbery, stating that he parked about a half-block away from the store. He placed a weapon in his waistband and walked into the store. He shopped for a short time, selected a steak, and brought it to the cashier. He placed the steak on the counter and told the cashier he wanted all the money in the till. He then lifted his shirt to show the gun. Once the cashier placed the money from her till and the steak in a plastic bag, Belitz ran to his car, but two male employees chased him. When he turned to show them the gun, the men backed off. He then drove away.
Andren then asked Belitz if he had committed any other robberies. Andren specifically listed the robberies at Safeway, Quizno's, Starbucks, and Ivar's Seafood Bar and told Belitz that he matched the description of the robber. When Belitz denied these crimes, Andren warned that he would collect "video from those businesses that had video." RP (Aug. 31, 2006) at 288. Andren told Belitz that he "would be coming back to talk to him if, in fact, he was the guy." RP (Aug. 31, 2006) at 288. Belitz then admitted to all of the robberies, describing each in detail. Among other details, he recalled where he had parked, when the clerks had trouble opening the registers, and any customers present during the robberies. Belitz stressed that he committed the crimes alone: when the detectives asked him if there had been a woman waiting in his car during one of the robberies, Belitz told them, "there was nobody with me." RP (Aug. 28, 2006) at 77. He joked, "I wish I was with a woman. . . . [b]ecause I could have blamed it on her." RP (Aug. 28, 2006) at 77. When he had finished describing the robberies, Belitz agreed to give a taped statement. The tape recorded Detective Reidburn repeating Belitz's Miranda warnings, Belitz repeating his confession, and the time when the recording ended. The tape did not contain the starting time.
Belitz testified at the suppression hearing that the detectives told him that "they had tape recordings that would show videotapes showing that I had done these robberies." RP (Aug. 28, 2006) at 62.
During his interrogation, Belitz's pictures of his family sat on the table in the interrogation room in a black plastic bag. At one point, Rush pulled out the pictures. Belitz testified at the suppression hearing that Rush looked at them, "making comments about my children, how cute they were and things like that." RP (Aug. 28, 2006) at 60. She also commented "about what kind of a person I was and said some other things." RP (Aug. 28, 2006) at 60.
The State initially charged Belitz with five counts of first degree robbery with firearm enhancements, one count of attempting to elude a pursuing police vehicle with a firearm enhancement, and one count of possessing stolen property. After Belitz refused two plea bargains, the State amended the information, adding two counts of second degree assault with firearm enhancements, one count of obstructing a law enforcement officer, and one count of resisting arrest.
III. 3.5 Hearing
Belitz moved to suppress his statements to the detectives, arguing that (1) considering the total circumstances, his confession was involuntary, and (2) the taped confession was inadmissible because it did not contain the starting time as RCW 9.73.090(1)(b)(ii) requires.
At the suppression hearing, Belitz testified that he consistently smoked crack cocaine and drank alcohol during the week of the robberies. He smoked and drank until he finished the cocaine, committing robberies when he needed money to buy more drugs. Because of his drug use, he "hadn't slept pretty much that whole week." RP (Aug. 28, 2006) at 57. The night before his arrest, Belitz bought $60 of crack cocaine and some fortified wine. He smoked until about four o'clock in the morning, and then continued drinking. He did not sleep that night. Around noon on the day of his arrest, Belitz went to his dealer's house, where a person "fronted [him] a couple of $20.00 pieces and [he] drank . . . a Two-Eleven." RP (Aug. 28, 2006) at 56. He also took two Klonopin. Belitz took the last hit of the cocaine in his car and stopped at a tavern, where he drank a 24-ounce glass of beer. "[P]retty soon after that," he went to the Tacoma Boys. RP (Aug. 28, 2006) at 58. Belitz also testified that smoking cocaine alone made him feel paranoid and drinking alcohol alone made him incoherent, but the two combined made him feel extremely happy. When Belitz used alcohol and cocaine together "[i]t was just like I was myself and, you know, personable and things like that." RP (Aug. 28, 2006) at 52.
Klonopin is a prescription pain killer. Belitz did not have a prescription for the drug, but he took it because cocaine made his heart race. Klonopin "kind of counteracted the coke and it would mellow [him] out." RP (Aug. 28, 2006) at 58.
Belitz gave a detailed account of his arrest and interrogation. He testified that he asked the detectives "to do everything in their possibility that they would speak to the prosecutors to get these charges [to] run concurrent" and that "[t]hey said they would do what they could." RP (Aug. 28, 2006) at 60-61. He acknowledged that the detectives didn't make "a certain promise," but said that they "were reassuring that they would do some things for me." RP (Aug. 28, 2006) at 61. Belitz also stated, "[The detectives] mentioned that if I displayed the gun or pointed the gun at somebody, there was a big difference in that." RP (Aug. 28, 2006) at 62. Therefore, "when I went through the crimes, I was trying to remember, well, did I really point the gun at this person or did I just display it, because they inferred that the crime would be lesser if I just displayed the gun." RP (Aug. 28, 2006) at 62. At one point Belitz testified, "There were a lot of things I did understand. I did speak on my own accord." RP (Aug. 28, 2006) at 61. Later, Belitz acknowledged, "I think I understood [what was being said], you know, I'm not going to lie, I think I understood it." RP (Aug. 28, 2006) at 64. On cross-examination, Belitz admitted to joking with the detectives about wishing that a woman had been with him at one of the robberies so he could have blamed it on her.
Reidburn testified that he was familiar with the symptoms a crack cocaine user exhibits and that he saw none of these with Belitz. In fact, "Mr. Belitz seemed to be rather articulate, quite educated, very capable of speaking his thoughts completely and thoroughly." RP (Aug. 28, 2006) at 26. Reidburn also saw nothing in Belitz's appearance or demeanor to suggest that Belitz did not understand what was going on. In addition, Belitz provided specific details about the robberies. Reidburn conceded that the tape of the interview did not include the time when the recording began. Andren confirmed that Belitz did not appear to be under the influence of drugs or alcohol. Belitz understood the questions and "was quite articulate." RP (Aug. 28, 2006) at 38.
The trial court ruled Belitz's statement admissible, concluding that "the defendant's ability to understand and waive his constitutional rights was not affected by his claimed drug usage." Clerk's Papers (CP) at 58. The trial court also concluded that the detectives had complied substantially with RCW 9.73.090(1)(b)(ii) and that substantial compliance was sufficient.
IV. Trial
At trial, Reidburn and Andren testified to Belitz's statements during interrogation. On cross-examination, Andren testified that he asked Belitz "how much sleep he'd had the past few nights, the night before." RP (Aug. 31, 2006) at 298. During Reidburn's cross-examination, the following exchange took place:
[Counsel]: During the course of this interview, was there anything about his demeanor or appearance that would have led you to believe that maybe he was either under the influence or tired or mentally ill?
[Reidburn]: Yes, he was quite a bit thinner than what he is right now, withdrawn, he was although very articulate, very communicative, he had to formulate his thoughts and it took him some time. He had to think about it before he'd come out with a thought.
[Counsel]: And did that lead you to believe that maybe he was under something, perhaps alcohol or —
[Reidburn]: Well, it could have been the effects of the drugs he took prior to the robbery.
RP (Aug. 31, 2006) at 323-24. Reidburn also testified that he asked Belitz what drugs he had taken that day and when he had taken them and that Belitz's family pictures were present but he did not know why and they were never used for any purpose during the interrogation. As part of its case-in-chief, the State played Belitz's taped confession.
During his closing argument, defense counsel argued that the jury should give little weight to Belitz's confession. He referred to Reidburn's testimony, arguing that Belitz may have been affected by his earlier drug consumption and, therefore, that his confession was unreliable.
Early in the trial, the State and Belitz's counsel had conferred about the jury instructions and presented the trial court with "an agreed packet." RP (Sept. 5, 2006) at 51-52. The packet included the defendant's proposed instruction on the attempting-to-elude charge.
The jury convicted Belitz of five counts of first degree robbery, two counts of second degree assault, one count of possessing stolen property in the second degree, and one count of attempting to elude a pursuing police vehicle. The jury also returned a special verdict finding that Belitz was armed with a firearm during the commission of all of these crimes. During the sentencing hearing, the trial court dismissed the two counts of second degree assault because they violated double jeopardy.
ANALYSIS I. Judicial Comment On the Evidence
At trial, as the State's first witness began his substantive testimony, the trial court interrupted and addressed the jurors:
I notice that no one is taking notes. You don't have to take notes, you are not obligated to take notes, but it is at this point when evidence is presented that you are entitled to take notes if you so choose. So you can pull them out, and I'll give you just a minute to do that if you would like to, or not, as you see fit.
RP (Aug. 29, 2006) at 97-98. Belitz argues that by advising the jurors to take notes, the trial court conveyed its opinion of the importance of the witness's testimony.
Article 4, section 16 of the Washington Constitution provides, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." A court comments on the evidence when the listener can infer the court's opinion on the merits of the case or the court's evaluation of a disputed issue from the statement. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (citing State v. Hansen, 46 Wn. App. 292, 300, 730 P.2d 706, 737 P.2d 670 (1986)). The comment may be either express or implied from the judge's conduct or demeanor. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). A judge makes a prohibited comment when "the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury." Lane, 125 Wn.2d at 838 (citing State v. Trickel, 16 Wn. App. 18, 25, 553 P.2d 139 (1976)). If we find the trial court's remarks were a comment on the evidence, we presume that the comments were prejudicial. State v. Bogner, 62 Wn.2d 247, 253-54, 382 P.2d 254 (1963).
Here, the trial court did not comment on the witness's credibility or testimony. The trial court simply reminded the jurors that they could take notes if they wanted to, but they were not required to do so. The court explained that the time to take notes is "at this point when evidence is presented." RP (Aug. 29, 2006) at 97-98. Nothing in the court's reminder pointed to this witness as being particularly important or believable. Moreover, even if the trial court had expressed an opinion regarding the witness's testimony, it did not comment on a disputed fact. See Hansen, 46 Wn. App. at 301 (when the statement goes to a peripheral issue, not a disputed fact, it does not constitute a comment on the evidence). The trial court interrupted at the very beginning of the witness's testimony — just after he said that a person had robbed his workplace. This fact was not disputed; the disputed fact was whether Belitz committed the robbery, which the witness had yet to address. We conclude that the trial court did not impermissibly comment on the evidence.
II. "Attempting to Elude" Instructions
Belitz argues that the trial court denied him due process of law when it incorrectly instructed the jury regarding the definition of attempting to elude a pursuing police vehicle. He alleges two errors: (1) the instructions did not define "driving in a reckless manner," an essential element of the crime, and (2) the instructions contained contradictory definitions of the term "willful." Br. of Appellant at 22-23. Because Belitz proposed the challenged instruction and, thus, arguably invited the error, he also frames the issue as ineffective assistance of counsel for proposing the instruction. We can most easily dispose of the issues by considering the two alleged errors on the merits.
Belitz also argues in passing that "willful" was not used in the statute criminalizing an attempt to elude a pursuing police vehicle. Br. of Appellant at 22. The discussion of Belitz's first argument regarding the improper substitution of the "wanton or willful" standard disposes of this argument.
A. Lack of Definition For "Driving in a Reckless Manner"
On the charge of attempting to elude a pursuing police vehicle, the trial court instructed the jury that a person commits the crime, in part, by driving his vehicle "in a manner indicating a wanton or willful disregard for the lives or property of others." CP at 118. This language, however, comes from former RCW 46.61.024 (2002), which the legislature revised in 2003. Laws of 2003, ch. 101, § 1. The current statute uses "reckless manner" in the place of "manner indicating a wanton or willful disregard for the lives or property of others." RCW 46.61.024(1).
The relevant portion of the jury instruction states,
A person commits the crime of Attempting to Elude a Pursuing Police Vehicle when he or she willfully fails or refuses to bring his or her vehicle to a stop after being given a visual or audible signal to bring the vehicle to a stop by a police officer, and while attempting to elude a pursuing police vehicle he or she drives his or her vehicle in a manner indicating a wanton or willful disregard for the lives or property of others.
CP at 118.
Former RCW 46.61.024 states in relevant part,
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony.
The relevant portion of RCW 46.61.024(1) provides,
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony.
Driving in a "reckless manner" means driving in a "`rash or heedless manner, indifferent to the consequences.'" State v. Roggenkamp, 153 Wn.2d 614, 631, 106 P.3d 196 (2005). Both standards regulate the same action, but "reckless manner" is a lesser mental state than the "wanton or willful" standard. Roggenkamp, 153 Wn.2d at 626-29. And because proof of a higher mental state also establishes the presence of a lower mental state under RCW 9A.08.010(2), Belitz's conviction under the "willful and wanton" standard established the presence of the "reckless manner" element. Accordingly, the instruction did not harm Belitz.
B. Contradictory Definitions Of "Willful"
Belitz also faults his trial counsel for failing to object to the instructions on the attempting to elude charge, which, he contends, provided contradictory definitions of the term "willful." Br. of Appellant at 31.
The instructions give two definitions of variants of the term "willful." Instruction number 27 defines "willful" as "acting intentionally and purposely, and not accidentally or inadvertently." CP at 120. Instruction number 28 defines "willfully" as "knowingly." CP at 121. The slightly different definitions that the trial court used for these terms are reasonable. Although variants of the same word, the two words are different: one is an adjective and the other is an adverb. As such, they reflect slightly different shades of meaning, just as the words "intentionally" and "knowingly" do. See State v. James, 36 Wn.2d 882, 906, 221 P.2d 482 (1950) (quoting different definitions for "willful" and "willfully"). We find no reasonable possibility that the jury was confused by the slightly different meanings of "willful" and "willfully."
III. Statement Of Additional Grounds
A. Admissibility of Confession
1. The Total Circumstances
Belitz argues pro se that the trial court erred in finding that he voluntarily and intelligently waived his Miranda rights. Essentially, he maintains that the evidence was not sufficient to support the trial court's conclusion. We review a sufficiency challenge by asking whether the record contains substantial evidence to support the trial court's conclusion that Belitz voluntarily and intelligently confessed. State v. Broadaway, 133 Wn.2d 118, 129, 942 P.2d 363 (1997). Substantial evidence is that which is sufficient to persuade a fair-minded, rational person of the finding's truth. State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002).
The test for voluntariness is whether, under the total circumstances, the defendant's will was overborne and the confession coerced. Broadaway, 133 Wn.2d at 132. The trial court considers the defendant's condition, his mental abilities, and the police conduct. Broadaway, 133 Wn.2d at 132 (citing State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984)). Improper police conduct includes an interrogating officer's promises or misrepresentations when there is a causal connection between the promise and the Page 14 confession, one which caused the defendant's will to be overborne. Broadaway, 133 Wn.2d at 132.
Belitz meticulously described his substantial drug and alcohol use, his poor physical condition, his use of a prescription drug, and his lack of sleep for a week. The detectives, however, testified that Belitz was articulate, educated, and "capable of speaking his thoughts completely and thoroughly." RP (Aug. 28, 2006) at 26. Detective Andren also testified that Belitz "understood everything." RP (Aug. 28, 2006) at 38. Reidburn testified that Belitz's descriptions of his earlier robberies were "quite specific. He could describe the clerk, where he parked his vehicle when he ran off, he was rather specific." RP (Aug. 28, 2006) at 27. Belitz "seemed to be quite specific about how he went up to the meat counter, chose some meat and went up to the cash register and was preparing to pay for it" when recounting the Tacoma Boys robbery. RP (Aug. 28, 2006) at 26. Belitz affirmed that he could remember the details of all the robberies. Moreover, Belitz was able to joke during interrogation; in averring that there was not a woman with him at one of the robberies, he said that he wished that he had been with a woman because he could have blamed the robbery on her. Ultimately, Belitz himself testified, "Well, I think I understood [what was happening], you know, I'm not going to lie, I think I understood it." RP (Aug. 28, 2006) at 89.
Yet Belitz implies that the police improperly promised leniency if he talked. The record does not support the claim. One officer did promise to retrieve a photograph of Belitz's family from the car at the scene of his arrest. But the promise was unrelated to the interrogation: the officer, in responding to Belitz's request, made the promise at the scene of the arrest. Belitz also testified that before he began to discuss the crimes, "I asked [the police] to do everything in their possibility that they would speak to the prosecutors to get these charges to run concurrent." RP (Aug. 28, 2006) at 61. He asserts that the officers "said that they would do what they could." RP (Aug. 28, 2006) at 61. But Belitz later clarified, "I can't say that they made a certain promise that it would be run concurrent." RP (Aug. 28, 2006) at 61. In addition, neither Belitz nor the detectives phrased the statement in a way that would imply that the detectives "would do what they could" for Belitz only if he confessed. RP (Aug. 28, 2006) at 61. Finally, Belitz testified that the police "inferred that the crime would be lesser if I just displayed the gun instead of pointing the gun." RP (Aug. 28, 2006) at 62. Again, Belitz does not assert that this promise caused him to confess: "when I went through the crimes, I was trying to remember, well, did I really point the gun at this person or did I just display it." RP (Aug. 28, 2006) at 62.
Belitz also argues that the law enforcement officers manipulated him psychologically. Belitz testified that the police officers put his family pictures in the interrogation room to play on his emotions. He recounted how Rush noted the pictures and then made "comments about [his] children, how cute they were and things like that." RP (Aug. 28, 2006) at 60. Reidburn testified that he did not know why the pictures were on the table. He stated that they were never used for any purpose during the interview. Moreover, the record does not show when Rush made those comments or exactly what she said.
As part of this argument, Belitz contends that Detective Andren lied to him by telling him that they had video-recordings of him robbing stores other than Tacoma Boys. However, Andren's testimony demonstrates that he did not lie to Belitz. Andren testified to warning Belitz that he would collect "video from those businesses that had video." RP (Aug. 31, 2006) at 288. He told Belitz that he "would be coming back to talk to him if, in fact, he was the guy." RP (Aug. 31, 2006) at 288. This statement does not constitute improper police conduct.
The testimony of the detectives, as well as that of Belitz himself, was more than adequate to support the trial court's finding that Belitz intelligently and voluntarily confessed. The trial court did not err in finding Belitz's confession admissible.
2. Tape Recording
Under RCW 9.73.090(1)(b)(ii), a taped recording of a confession must contain the starting and ending times of the recording. The tape here did not include the starting time. Regardless, the trial court ruled the taped confession admissible because it found substantial compliance with this requirement. Belitz contends that substantial compliance is not enough and, thus, that the trial court violated his due process rights by ruling the taped confession admissible.
The statute requires that the recordings "shall conform strictly" to certain conditions, including recording the starting and ending times. RCW 9.73.090(1)(b). But substantial compliance with the starting time requirement is enough when the absence of a start time is not material to reviewing allegations of police misconduct or unauthorized editing. Rupe, 101 Wn.2d at 685; see also State v. Demery, 100 Wn. App. 416, 420, 997 P.2d 420 (2000), rev'd on other grounds, 144 Wn.2d 753 (2001). Because Belitz makes no claim of police misconduct in connection with the tape's starting time, the trial court did not err in determining that substantial compliance was sufficient.
B. Ineffective Assistance Of Counsel
Belitz contends that his counsel was ineffective for (1) failing to impeach key witnesses with their prior inconsistent statements and (2) failing to present a defense relating to Belitz's mental state during the robberies.
To demonstrate that counsel was ineffective, Belitz must show that counsel's performance was deficient and that the deficient performance prejudiced him. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). Belitz cannot rely on matters of legitimate trial strategy or tactics to establish deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
C. Failure to Impeach
Belitz criticizes counsel for not impeaching Reidburn and Andren with their prior inconsistent statements at the CrR 3.5 suppression hearing. He focuses on the differences between Reidburn's suppression testimony and his trial testimony.
At trial, in response to a question about whether Belitz appeared to be either mentally ill or under the influence of drugs, Reidburn said, "Yes, he was quite a bit thinner than what he is right now, withdrawn, he was although very articulate, very communicative, he had to formulate his thoughts and it took him some time. He had to think about it before he'd come out with a thought." RP (Aug. 31, 2006) at 323. Reidburn suggested that this "could have been the effects of the drugs he took prior to the robbery." RP (Aug. 31, 2006) at 324. At the suppression hearing, Reidburn said that he saw no signs that Belitz was lethargic, unable to think clearly or had difficulty formulating and completing sentences. He said that Belitz "seemed to be rather articulate, quite educated, very capable of speaking his thoughts completely and thoroughly." RP (Aug. 28, 2006) at 25-26. Reidburn saw nothing in Belitz's appearance or demeanor to suggest that he did not understand what was happening.
Reidburn's statements about Belitz's appearance did not differ in any material aspect. At trial, defense counsel asked Reidburn if Belitz's appearance could have led him to believe that Belitz was "either under the influence . . . or mentally ill." RP (Aug. 31, 2006) at 323. At the suppression hearing, the State asked Reidburn if anything about Belitz's appearance could have led him to believe that Belitz might not have understood what was going on. Because the questions were different, Reidburn's different answers were legitimate. Moreover, to the extent that Reidburn's testimony about the effects of crack cocaine on Belitz may have been inconsistent, defense counsel's decision not to call attention to that inconsistency may have been legitimate trial strategy. During his closing argument, counsel attempted to cast doubt upon the reliability of Belitz's confession by emphasizing his cocaine binge. He focused on the effects of Belitz's drug use: "even Detective Reidburn, when I questioned him about it, expressed some concern about it." RP (Sept. 6, 2006) at 416-17. We conclude that counsel was not ineffective in failing to point out these inconsistencies in Reidburn's testimony.
Belitz identifies two other inconsistencies between the detectives' testimony at trial and at the suppression hearing. Reidburn testified at trial that he had asked Belitz what kinds of drugs he had taken that day and when. Yet at the suppression hearing, Reidburn testified, "I didn't ask him specifically [if he had taken any drugs that day other than crack cocaine], no." RP (Aug. 28, 2006) at 32. Detective Andren testified at trial that he had asked Belitz about the amount of sleep he had had the past few nights and the night before. During the suppression hearing, Andren stated that he had not asked Belitz how much sleep he'd had the night before the interrogation.
Although counsel may have missed an opportunity to impeach the detectives with these minor inconsistencies in Reidburn and Andren's testimony, Belitz cannot show that the trial outcome would have been any different if counsel had noted the inconsistencies. Thus, Belitz cannot show prejudice.
D. Failure To Present a Defense
Belitz also maintains that counsel should have subpoenaed witnesses to attest to Belitz's inability to have formed the requisite mental state for first degree robbery. He implies that counsel should have argued a diminished capacity defense or voluntary intoxication.
1. Diminished Capacity
Failure to present a diminished capacity defense where the facts support such a defense can constitute ineffective assistance of counsel. State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003) (citing State v. Thomas, 109 Wn.2d 222, 226-29, 743 P.2d 816 (1987)). A diminished capacity defense requires expert testimony explaining how the defendant's mental disorder prevented him from forming the requisite mental state. Tilton, 149 Wn.2d at 784. If counsel decides not to call a witness, generally counsel's assistance is still effective if he "conduct[ed] appropriate investigations to determine what defenses were available," and the defense was not legitimate. State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995) (citing State v. Jury, 19 Wn. App. 256, 263-64, 576 P.2d 1302 (1978)).
Before trial, Belitz's counsel asked two experts to examine Belitz to determine whether he had a mental disorder such that Belitz could invoke a diminished capacity defense under Washington law. They found that Belitz did not have a "mental disorder, per se, and even if there was that it certainly didn't impact his ability to formulate intent, so they found that there was no diminished capacity." RP (Sept. 5, 2006) at 35. Thus, counsel investigated the possibility of presenting a diminished capacity defense and learned that the facts did not support it.
2. Voluntary Intoxication
Counsel's failure to present a voluntary intoxication defense can also amount to ineffective assistance when the facts support the defense. Tilton, 149 Wn.2d at 784-85. A defense of voluntary intoxication requires that (1) the crime charged include a particular mental state as an element, (2) there be substantial evidence of the use of alcohol or drugs, and (3) the evidence show that the use affected the defendant's ability to form the requisite mental state. State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002). To make out a viable defense, the evidence must show that the defendant was "out of control of himself." State v. Johnston, 100 Wn. App. 126, 135, 996 P.2d 629 (2000) (citing State v. Byrd, 30 Wn. App. 794, 798, 638 P.2d 601 (1981)).
In this case, Belitz's crime of first degree robbery meets the first requirement for a defense of voluntary intoxication because robbery is a specific-intent crime: it requires the "[i]ntent to steal." State v. Allen, 159 Wn.2d 1, 9 n. 3, 147 P.3d 581 (2006) (citing State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991)). Belitz also presented evidence of the second element. He testified to substantial drug use during the week of the robberies and particularly prior to the Tacoma Boys robbery at the suppression hearing. He told the detectives at his interrogation "that he was either high or drunk during most of the incidents." RP (Aug. 28, 2006) at 42. On the day of the Tacoma Boys robbery, he had smoked crack cocaine the night before, smoked more cocaine that day, taken prescription pain-killers, and drank alcohol.
Although this statement implies that Belitz separated his cocaine and alcohol consumption, he testified that he usually used the two intoxicants at the same time.
But, the record does not show that the drugs affected his ability to form the requisite mental state or that he was "out of control of himself." Johnston, 100 Wn. App. at 135. According to Belitz, combining alcohol and cocaine made "[me] just like I was myself and, you know, personable and things like that." RP (Aug. 28, 2006) at 51-52. Moreover, Belitz could remember and describe the details of his robberies. In addition, at the CR 3.5 hearing, Belitz provided a factually detailed account of his arrest and interrogation in contesting his ability to have voluntarily and intelligently waived his Miranda rights. Belitz's ability to remember specific details about the robberies and his arrest shows that his drug use did not affect his ability to form the requisite mental state for robbery. We cannot say that counsel ineffectively represented Belitz by not presenting a voluntary intoxication defense. Further, even if counsel had presented the defense, Belitz cannot show that the trial outcome would have been more favorable if the jury had considered the defense.
Division Three addressed a similar situation in Johnston. There, the court, in holding that the defendant was not denied effective assistance of counsel for failure to argue voluntary intoxication, emphasized that he gave detailed testimony of the events and drawings. Johnston, 100 Wn. App. at 135.
3. Tainted Evidence
Belitz appears to argue that he was prejudiced by the admission of "tainted" evidence: certain statements made by Reidburn and Andren at his CrR 3.5 hearing that they allegedly contradicted in their trial testimony. Statement of Additional Grounds (SAG) at 47. He argues that their testimony was tainted because of that contradiction and "may have been perjury." SAG at 50. Belitz challenges Reidburn's statements about Belitz's appearance during his interrogation and the detectives' testimony about the questions they asked him at interrogation.
A person is guilty of first degree perjury when "he makes a materially false statement which he knows to be false under an oath required or authorized by law" in an official proceeding. RCW 9A.72.020(1).
Regardless of the merit of the argument, a review of the record reveals that Belitz did not raise perjury or "tainted evidence" as an issue at trial. Generally, we refuse to review an alleged error not raised at trial, unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). A constitutional error is manifest when it has "practical and identifiable consequences" at trial. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
Without addressing the constitutionality of the error, the contradictory testimony was not manifest error. Belitz points to three potentially contradictory statements: Reidburn's testimony about not witnessing the effects of crack cocaine on Belitz, and Andren's and Reidburn's separate testimony about questions they asked Belitz at interrogation. Regarding the first allegedly contradictory statement, Detective Reidburn's differing testimony about Belitz's appearance at trial and at the suppression hearing was not contradictory because he was responding to different questions. Regarding the other two allegedly contradictory statements, in ruling Belitz's confession admissible, the trial court focused on the evidence of Belitz's mental state, not police conduct. The trial court found Belitz's waiver to be voluntary "based on the fact that Mr. Belitz was able to give such detail of the robberies." RP (Aug. 28, 2006) at 88. The trial court emphasized Belitz's admission that he understood what was going on at the interrogation. Thus, the alleged error did not have a practical effect on the trial court's determination that Belitz's waiver of his Miranda rights was voluntary. Because the claimed error was not manifest, we decline to further consider it.
4. Prosecutorial Vindictiveness
Belitz asserts that he was the victim of prosecutorial vindictiveness because the prosecutor filed four more charges and four more firearm enhancements against him after he declined two plea bargains. However, Belitz did not raise this argument at trial.
Prosecutorial vindictiveness exists when "`the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights.'" State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)).
Here, assuming the error was constitutional, it was not manifest. None of the charges added in the first amended information affected Belitz's sentence. The jury found Belitz not guilty of obstructing a law enforcement officer and the trial court dismissed the convictions for second degree assault. Thus, the alleged error did not have actual, identifiable consequences. We decline to review the issue.
5. Equal Protection Clause
Belitz argues that the firearm enhancements added to his five convictions for first degree robbery violate the equal protection clauses of the United States and Washington State Constitutions because his convictions for first degree robbery were subject to firearm enhancements, while a person convicted of a drive-by shooting is exempt from these enhancements. Belitz argues that, as applied to his case, both crimes require the presence of a firearm; therefore, they must both be exempted from firearm sentence enhancements under equal protection. Belitz did not raise this argument at trial. Thus, we will review the issue only if it is "manifest error affecting a constitutional right." RAP 2.5(a)(3); Scott, 110 Wn.2d at 686-87.
Former RCW 9.94A.310(3)(f) (2000) exempts persons convicted of "[p]ossession of a machine gun, possessing a stolen firearm, drive-by shooting, theft of a firearm, unlawful possession of a firearm in the first and second degree, and use of a machine gun in a felony" from the firearm sentencing enhancement. This exemption has been recodified at RCW 9.94A.533(3)(f). The statutory language remains unchanged.
Belitz argues that the presence of a firearm was an element in his commission of the crime of first degree robbery because the State charged him with first degree robbery instead of second-degree robbery because he displayed a firearm.
Belitz makes a facial challenge to the firearm enhancement statute. Because the court added time to Belitz's sentences under the statute, the claimed constitutional error is observable and prejudicial and, thus, manifest. See Lynn, 67 Wn. App. at 345 (citing State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)).
The Washington and federal constitutions guarantee similarly situated persons equal treatment under the law. Wash. Const. art. I, § 12; U.S. Const. amend. XIV. We analyze equal protection challenges under one of three standards of review: strict scrutiny, intermediate scrutiny, or rational basis. State v. Berrier, 110 Wn. App. 639, 648, 41 P.3d 1198 (2002) (citing State v. Manussier, 129 Wn.2d 652, 672-73, 921 P.2d 473 (1996)). Here, the standard of review is the rational basis test. Berrier, 110 Wn. App. at 649 (firearm enhancement classifications are subject to rational basis review because they involve only a physical liberty interest and no suspect class).
To pass the rational basis test, the "challenged law must serve a legitimate state objective, the law must not be wholly irrelevant for achieving that objective, and the means must be rationally related to the objective." Berrier, 110 Wn. App. at 649. Under this standard, the legislature has broad discretion in choosing how to meet its objectives.
Manussier, 129 Wn.2d at 673. The party challenging the law must show that the classification is purely arbitrary. Manussier, 129 Wn.2d at 673.
Initiative 159, "Hard Time for Armed Crime," which contains former RCW 9.94A.310(3)(f) (2000), was intended to punish armed criminals more harshly than those who are unarmed. Berrier, 110 Wn. App. at 649-50. The statute exempts certain crimes from firearm enhancements if "the possession or use of a firearm is a necessary element of the underlying crime itself." Berrier, 110 Wn. App. at 650. The legislature separately addressed harsher penalties for crimes where firearms are a necessary element. See Laws of 2005, ch. 129 § 10 (theft of a firearm), § 13 (possessing a stolen firearm), § 16 (first and second degree unlawful possession of a firearm), § 17 (drive-by shootings); RCW 9.41.190 (possession of machine gun); RCW 9.41.225 (use of machine gun in a felony). Firearm enhancements increase the penalties for crimes that the defendant committed with a firearm, but which the defendant could have committed with a less dangerous weapon or no weapon.
Here, the legislature rationally excluded first degree robbery from the exempted crimes because, under RCW 9A.56.200(1)(a), the use of a firearm does not exacerbate the criminal's punishment. Rather, first degree robbery is contingent on the use or display of a deadly weapon. RCW 9A.56.200(1)(a). Without a firearm enhancement, the penalty for committing first degree robbery with a knife or a club would be the same as it would be if the criminal had used a firearm. Thus, punishing criminals who use firearms to commit a robbery more harshly than those who use a knife or a club is a rational means of accomplishing a statutory objective: encouraging them not to use firearms. See Laws of 2005, ch. 129 § 1(2)(c) (one purpose of Initiative 159 was to distinguish between gun predators and criminals that use other deadly weapons and greatly increase the penalties for gun predators).
Belitz relies on our holding in Berrier that applying a firearm enhancement to a conviction for possession of a short-barreled shotgun but not to possession of a machine gun violates equal protection. See Berrier, 110 Wn. App. at 651. Berrier is distinguishable. There, the issue was whether a rational basis existed to distinguish between the unlawful possession of different types of firearms in applying a firearm enhancement. Berrier, 110 Wn. App. at 651. Here, the distinction is between a crime that penalizes the use of a deadly weapon and a crime that specifically penalizes the use of a firearm.
Because a rational basis exists for the applying sentence enhancements to first degree robbery, the firearm sentence enhancements did not violate Belitz's equal protection rights.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and VAN DEREN, A.C.J., concur