Opinion
No. 34138-7-II.
May 8, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03028-7, Ronald E. Culpepper, J., entered November 18, 2005.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
Stephen Demetrius Boone appeals his convictions for first degree murder, four counts of first degree robbery, first degree attempted robbery, first degree kidnapping, first degree attempted kidnapping, and second degree unlawful possession of a firearm. He contends that the trial court (1) abused its discretion in denying his motion to sever the charges related to different victims, (2) erred in denying his motion for mistrial based on prosecutorial misconduct during closing argument, and (3) improperly admitted a custodial statement he made during police interrogation. We disagree and affirm.
Boone also argued in his brief that Washington's "`automatic decline' statute," Br. of Appellant at 28 (citing RCW 13.04.030(1)(v)), violates the International Covenant on Civil and Political Rights, the United Nations Convention on the Rights of the Child, and customary international law, but this argument was abandoned during oral argument and we do not address it here.
FACTS
Shortly before midnight on June 11, 2004, Jin Kim was checking his mailbox outside his apartment located near the Tacoma Mall when he realized two men were watching him. He tried to avoid them, but they approached asking for a "ride to the Hilltop." Report of Proceedings (RP) at 71. One of the men pointed a gun at Kim and asked for money. They took his wallet, asked for his keys, and told Kim to take them to his apartment. Kim's ex-girlfriend was in the apartment at the time, so Kim told them that he did not live there; he was just checking the mail for someone else. Kim later testified that Stephen Boone, the one holding the gun, was "in command." RP at 81.
Boone was 17 years old at the time of the trial.
According to Kim, after taking his wallet and cell phone, Boone and his colleague got into Kim's car and ordered him to drive to the Hilltop area. When they reached a gas station in Hilltop, they ordered Kim to withdraw money from the station's automated teller machine (ATM). Inside the store they were joined by a man who Boone called "uncle," RP at 192, and an unidentified woman. Boone threatened to shoot Kim when he failed to withdraw any money from the ATM. It soon became apparent that Kim did not have sufficient funds in his account to make a withdrawal.
At that point Boone and the other man left the scene in a different car and the woman told Boone, "Don't say anything to nobody just keep it quiet and we will let you go." RP at 195. Kim was able to get into his car and escape the scene. He located an off-duty police officer and reported what had transpired. The store's video surveillance system recorded the scene. Kim later identified Boone from a photo montage and made an in court identification at trial.
Two days later on June 13, a little before 4:00 p.m., Ericka Dillman was walking toward a bus stop in Tacoma when two men in a teal green Mustang pulled up beside her. When the passenger in the Mustang asked for money, she replied that she did not have any. The man climbed out of the Mustang's passenger window, went through her pockets, and took her purse at gun point. He then climbed back into the car and left.
She reported the Mustang's license plate number to the police. When she eventually got her purse back, her social security card and her nursing certificate were missing. She was able to identify Boone from a photo montage as the man who had robbed her and made an in court identification during trial. She also testified that the man had "braids in his hair." RP at 309.
Shortly after 4:00 p.m. on the same day, Yong Yi and her husband, Dong Won, were at a gas station in front of their apartment near the Tacoma Mall. Yi picked up milk from a minimarket inside the gas station, while Won pumped gasoline. When Yi came out of the store, she saw a black man standing next to Won. The man had a gun and told Yi and Won to get in their car. The man climbed into the back seat, took Won's wallet and Yi's purse, and ordered Won to drive the car. Won drove the car for about 10 meters and then the man ordered Won to stop and get out. Both Won and Yi exited the vehicle. Yi saw Won motion with his eyes for her to run away as the man aimed a gun at his head. Yi was able to see Won grab the gun and heard a gunshot as she ran toward the store. Won died from the gunshot wound. Although she had earlier failed to identify him from a photo montage, Yi identified Boone at trial as the man who shot her husband. She also testified that the man who shot her husband had "braided hair." RP at 527. Several witnesses heard the gunshot or saw a "teal-colored Mustang" at the gas station, but none of the other witnesses was able to identify Boone as one of the two men in the Mustang. RP at 584.
Ronnette Slenning witnessed the teal-colored Mustang and heard the sound of a gunfire. Also, Debra Harrison saw the Mustang, and Jason Pfingston heard the gunshot.
Scott Williams testified that on the day of the Dillman and Yi robberies and murder he followed a green Mustang driven by two black men because he sensed "something wrong." RP at 242. The men in the Mustang threw cards out of the car window as they drove. Williams followed the Mustang to the gas station where Won was shot a few minutes later. He also saw a black man get into the green Mustang shortly after the gunshot. After hearing the gunshot, Williams returned to the area where the cards had been thrown from the green Mustang and retrieved them. Williams gave the cards and the Mustang's license plate number to the police. One of the cards was Dillman's nursing certificate.
On June 15, Detective Tom Davidson searched Boone's sister's apartment. Upon entry, Davidson immediately located and arrested the other suspect in the case, Demarco McGown. The police arrested Boone at the apartment after a special weapons and tactics (SWAT) team discharged four gas canisters inside. Davidson later testified that Amina Boone, Boone's sister, told him that Boone "already threw the gun away," but at trial she denied making the statement. RP at 290.
Detective Daniel Davis testified that when he interrogated Boone, Boone seemed "disinterested" and stated that "he had never robbed anyone" and that "he had not been in any green Mustang." He stated that, after he told Boone how the investigation led to him, Boone replied, "explain it to someone who cares." RP at 663.
The State charged Boone with first degree murder of Dong Won (count I), first degree robbery of Dong Won (count II), first degree robbery of Yong Yi (count III), first degree attempted kidnapping of Yong Yi (count IV), first degree robbery of Ericka Dillman (count V), first degree robbery of Jin Kim (count VI), first degree kidnapping of Jin Kim (count VII), first degree attempted robbery of Jin Kim (count VIII), and second degree unlawful possession of a firearm (count IX). The State charged all of the counts except count IX with firearm enhancements.
A Criminal Rule (CrR) 3.5 hearing was held on September 7, 2005. RP at 32. The trial court concluded that Boone's statements to Davis "were knowingly and voluntarily made" and were therefore admissible. RP at 63. At trial, Boone attempted to exclude his statement "[e]xplain it to someone who cares," arguing that it suggested "callousness," "insensitivity," or "arrogance." RP at 644. The trial court initially stated, "I think I'm going to exclude the statement. . . letting it in . . . just creates more problems than necessary. It seems to me it's somewhat marginal to the State's case." RP at 645. But the trial court later reversed itself and ruled, "[b]ut [the State] wants this in, and it's admissible under 801, 802 . . . So I will allow him to elicit the statement `explain it to someone who cares' from Detective Davis if he decides to do that." RP at 649-50.
Following voir dire, Boone moved to sever counts VI, VII, and VIII — counts related to victim Jin Kim — because Kim's "strong identification" could lead the jury to believe that Boone was the perpetrator of all the charged offenses. RP (Sep. 8, 2005) at 4. The trial court denied Boone's motion to sever, ruling,
Court: However, I am going to deny the motion to sever in this case partly because it is very late in the game . . . This is a fairly old case, 440 days or something. The State has prepared, I assume with the anticipation that it would be going forward with all nine counts. This is a little late.
[The State] assures me that — or tells me that identity's not an issue, and that if, in fact, identity is real strong on the Kim incidents from the Friday or Saturday and identity was real weak on the other cases, I would be concerned about jurors thinking, well, a guy who did the Kim incidents probably did the other ones, too. But apparently — my understanding is Mr. McGown was in the later incidents also and he's going to testify?
[The State]: That's correct, Your Honor.
Court: So, seems to me identity maybe isn't quite as great an issue as [defense counsel] might think.
RP (Sep. 8, 2005) at 11-12. Defense counsel agreed that "McGown will testify in all counts."RP (Sep. 8, 2005) at 12. Contrary to expectations, McGown testified that he did not know Boone and had no recollection of the weekend of June 12 and 13, 2004.
After the State rested its case, Boone renewed his motion to sever counts VI, VII, and VIII. The trial court denied his motion again, stating, "[w]ell, I am going to deny the motion to sever. Again what I said prior to trial remains. It is, of course, more efficient to try them together. Again this is brought relatively late. I don't know if I need to add anything else." RP at 726.
Tamika Boone, another of Boone's sisters, testified that Boone had never had his hair braided and that McGown's hair was braided on the morning of June 14. During closing arguments, the State admitted that Boone's hair was "not braidable," RP at 836, and that McGown "had his hair in braids." RP at 837-38.
The State argued:
Mr. McGown has trouble recalling, you know, anything that happened in his life at that point, or during that weekend. You know what? Maybe he did truly forget what had happened that weekend, maybe he really would like to forget what happened that week even, or maybe the fact that this gallery was packed full of people caused him to lose some of his memory.
Doesn't remember or doesn't want to remember.
RP at 841. Boone moved for a mistrial, claiming prosecutorial misconduct. The trial court denied Boone's motion and ruled, "I don't think it rises — if it's misconduct — I am not sure it is — it certainly I don't think rises to the level of requiring mistrial. I am going to deny the motion for mistrial." RP at 848.
The jury found Boone guilty on all counts. The trial court sentenced him to a total confinement of 932.25 months. Boone appeals.
ANALYSIS
I. Motion to Sever
Boone first contends that the trial court abused its discretion in denying his motion to sever and that he was denied effective assistance of counsel because his attorney failed to file the motion in a timely manner. He also argues that the trial court should have granted his renewed motion to sever following McGown's testimony.
"A defendant's motion for severance . . . must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if the interests of justice require. Severance is waived if the motion is not made at the appropriate time." CrR 4.4(a)(1). A motion to sever made on the first day of trial is untimely under CrR 4.4(a)(1). State v. Hernandez, 58 Wn. App. 793, 797, 794 P.2d 1327 (1990), disapproved on other grounds by State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991). A defendant seeking severance bears the burden of demonstrating that a trial on multiple counts "would be so manifestly prejudicial as to outweigh the concern for judicial economy." State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). The trial court's refusal to sever counts is reversible only upon a showing that the trial court's decision constituted a manifest abuse of discretion. Bythrow, 114 Wn.2d at 717.
Here, the trial court denied Boone's motion to sever because he made the motion "very late in the game" and because his identity was not an issue. RP (Sep. 8, 2005) at 11. Thus, Boone's initial motion to sever was untimely because it was made after jury voir dire on the first day of trial.
But in addition to looking at the timeliness of a severance motion, we note that the refusal to sever counts may prejudice a defendant because "(1) he may become . . . confounded in presenting separate defenses; (2) the jury may use the evidence of . . . one crime charged to infer . . . guilt [on another] crime or crimes charged; or (3) the jury may cumulate evidence of the various crimes charged and find guilt when, if considered separately, it would not so find." Bythrow, 114 Wn.2d at 718. Factors that tend to mitigate prejudice that may arise from a refusal to sever offenses at trial include: "(1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial." State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
In assessing Boone's claim that the trial court was compelled to grant his motion to sever and committed a manifest abuse of its discretion in denying it, we compare the State's evidence on the Kim counts (VI, VII and VIII) to that of the Yi/Won counts (I, II, III, and IV) and the Dillman count (V) because Boone did not move to sever the Dillman count from the Yi/Won counts.
Kim identified Boone in a photo montage and later made an in court identification. Video surveillance footage showed Boone and Kim at the store. Yi failed to identify Boone in a photo montage, but she made an in court identification of Boone. Thus, even though the evidence of Boone's identity in the Yi and Won robbery and murder was not overwhelming, the relative strength of the evidence on both robberies was not "sufficiently dissimilar to merit severance." Russell, 125 Wn.2d at 64.
Second, clarity of the defense was not an issue. "The likelihood that joinder will cause a jury to be confused as to the accused's defenses is very small where the defense is identical on each charge." Russell, 125 Wn.2d at 64-65. Because Boone's general denial was the same for all counts, the likelihood of jury confusion was slight.
Third, the trial court properly instructed the jury to decide each count separately. Because "a jury is presumed to follow the trial court's instructions," the instruction to decide each count separately mitigated any prejudice. State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995).
Finally, although the evidence of the different robberies was not cross-admissible, severance was not required as a matter of law. State v. Kalakosky, 121 Wn.2d 525, 538, 852 P.2d 1064 (1993). Evidence of prior acts or crimes is inadmissible if it is offered to establish a person's character or to show he acted in conformity with that character. ER 404(b).
"Evidence of other crimes is relevant on the issue of identity only if the method employed in the commission of both crimes is `so unique' that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged." Hernandez, 58 Wn. App. at 799 (citations omitted). Here, all three robberies occurred in an area near the Tacoma Mall within a two-day period and, in both the Kim and Yi/Won counts, the perpetrator had a gun and kidnapped or attempted to kidnap the victims following the robbery. These facts are insufficient to demonstrate that the method was so unique that proof of Boone's commission of one crime would create a high probability that he committed the other crimes. Thus, evidence on the Kim counts would not be admissible on the issue of identity in the Yi/Won counts.
But severance is not automatically required when evidence of one count would not be admissible in a separate trial on the other count. Bythrow, 114 Wn.2d at 720. Accordingly, this factor alone is insufficient to mandate a reversal or a conclusion that the trial court abused its discretion in refusing to sever the joined counts.
Boone stresses that even if the trial court did not err in denying his motion on the first day of trial, he was entitled to severance when he renewed his motion following McGown's failure to corroborate Yi's identification of Boone.
We have held that the "interests of justice" exception under CrR 4.4(a)(1) applies where prejudice arises during trial. State v. Harris, 36 Wn. App. 746, 750, 677 P.2d 202 (1984).
Boone relies on Hernandez to support his argument that the trial court should have severed the Kim and Yi/Won charges. Hernandez was tried for three counts of robbery involving different convenience stores on different dates. There, the witnesses' degree of certainty about the identity of the defendant varied greatly. We held that this disparity, coupled with the lack of cross-admissibility, required severance. Hernandez, 58 Wn. App. at 800. We did not find the trial court's error harmless because "where the prosecution tries a weak case or cases, together with a relatively strong one, a jury is likely to be influenced in its determination of guilt or innocence in the weak cases by evidence in the strong case." Hernandez, 58 Wn. App. at 801.
But here, the strength of the State's evidence linking Boone to the different crimes, even in light of the lack of cross-admissibility of the evidence, did not require the trial court to sever the Kim counts following McGown's testimony because the State presented strong evidence of Boone's connection to each of the crimes.
Evidence of Boone's participation in the Kim robbery was very strong. The State presented Kim's identification of Boone from the photo montage and in court, as well as videotaped evidence of Boone and Kim at the store at the time of the robbery.
The State's evidence of Boone's participation in the Yi/Won and Dillman crimes was equally strong, although different from that in the Kim robbery. Yi identified Boone in court but could not identify him in a photo montage. But Dillman identified him from a photo montage and in court. Moreover, Williams testified that he followed the teal-colored Mustang used only in the Dillman and Yi/Won crimes to the gas station where Won was killed. Williams testified that there were two black men in the car and that they discarded Dillman's nursing certificate on the way to the gas station. He then heard the shots that resulted in Won's death. Under these circumstances, the jury's determination in the Yi/Won and the Dillman crimes was unlikely to be tainted by the refusal to sever the charges relating to the Kim crimes. Hernandez, 58 Wn. App. at 801.
With regard to the question of identity of the shooter with braids, it is within the jury's province to resolve disputed testimony and to judge the credibility of witnesses. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We do not second-guess a jury's factual determinations. State v. Hughes, 106 Wn.2d 176, 203-04, 721 P.2d 902 (1986). Given that multiple witnesses saw the teal-colored Mustang at the gas station where the Yi/Won crimes occurred, Yi and Dillman's testimony regarding the braids is insufficient to mandate severance as a matter of law.
In addition, any prejudice Boone may have experienced was outweighed by concerns for judicial economy. The State contends that multiple witnesses would have been required to testify in both trials had the trial court severed counts VI, VII, and VIII. Thus, a "conservation of judicial resources and public funds" supported the refusal to sever the charges. See Bythrow, 114 Wn.2d at 723. Consequently, the trial court did not abuse its discretion in denying Boone's renewed motion to sever the charges related to the Kim crimes from the crimes involving Yi and Won.
Finally, when a defendant claims ineffective assistance of counsel based on his attorney's failure to successfully argue a motion to sever, he must show prejudice by demonstrating that the motion should have been granted and that, but for the deficient performance, "there is a `reasonable probability' that . . . the outcome of the [trial] would have been different." State v. Standifer, 48 Wn. App. 121, 125-26, 737 P.2d 1308 (1987). We "engage in a strong presumption counsel's representation was effective." State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Nevertheless, we note that Boone's claim of ineffective assistance of counsel lacks merit because he fails to show that his motion to sever should have been granted. At least three of the four prejudice-mitigating factors were present when the trial court denied the motion. And the State presented strong independent evidence of his participation in the crimes involving Kim, Yi and Won, and Dillman, making it unlikely that the outcome of the trial would have differed in separate trials. Boone's ineffective assistance of counsel claim fails.
II. Prosecutorial Misconduct
Boone also argues that the trial court abused its discretion in denying his motion for a mistrial when the prosecutor, in his closing arguments, stated that McGown may have forgotten about the crimes because of the people in the courtroom and that Boone was "the leader, the one in control and the one who committed the crimes." Br. of Appellant at 24. He asserts, "no juror could have failed to pick up the prosecutor's underlying accusation that Mr. Boone or someone close to him had somehow done something improper to cause the `memory loss.'" Br. of Appellant at 23.
We do not reverse a conviction due to prosecutorial misconduct unless "the prosecutor's conduct was improper and prejudiced [the defendant's] right to a fair trial." State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). When evaluating purportedly improper remarks, we consider them in the context of the entire case, including the entire argument, the issues presented, the evidence at issue, and the trial court's instructions. Russell, 125 Wn.2d at 85-86. We grant trial counsel wide latitude to draw reasonable inferences from the evidence, but counsel may not make statements that the evidence does not support. Boehning, 127 Wn. App. at 519. There is reversible prejudice only when there is a substantial likelihood that the conduct in question affected the jury's decision. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). The defendant bears the burden of proof. Stenson, 132 Wn.2d at 718.
Here, Boone moved for a mistrial when the prosecutor argued that McGown's trouble recalling what had happened on the days of the robberies may have been caused by "the fact that this gallery was packed full of people." RP at 841. But simply telling the jury that McGown may have been influenced by a trial courtroom full of people was neither improper nor prejudicial. It is unreasonable to construe the prosecutor's statement to mean that Boone improperly caused McGown to testify falsely. Additionally, the prosecutor's statement that Boone was the leader and the one in control was based on Kim's testimony that Boone was in command during the robbery. Because Boone fails to meet his burden to demonstrate a substantial likelihood that the prosecutor's remarks affected the jury's verdict, his prosecutorial misconduct claim fails. Stenson, 132 Wn.2d at 718-19.
The trial court properly denied Boone's motion given the context of the prosecutor's statements. As the trial court properly ruled, even if we were to assume that the prosecutor's remarks were improper, they did not "rise to the level . . . requiring mistrial." RP at 848.
III. Admission of Custodial Statement
Boone also argues that the trial court abused its discretion by admitting his statement, "[e]xplain it to someone who cares." Br. of Appellant at 25. He asserts that this statement he made during police interrogation was irrelevant and prejudicial because it was evidence of "bad acts" and was not harmless. Br. of Appellant at 25.
The trial court determines whether evidence is relevant and we review the trial court's ruling for a "`manifest abuse of discretion.'" State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001) (citations omitted). A trial court abuses its discretion only when no reasonable person would have decided the issue as the trial court did. State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979). We must presume the trial court's decision correct and reverse only if the appellant makes "an affirmative showing of error." State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 859 (1999).
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 404(b). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Even "relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." ER 403.
Boone fails to offer any authority to support his assertion that evidence of "callousness" can constitute "bad acts." Br. of Appellant at 27. Boone's statement "[e]xplain it to someone who cares," is not evidence of a bad act because it does not implicate any crime or misconduct by Boone. Br. of Appellant at 26. Nor does this statement tend to prove Boone's propensity to commit a crime. It was merely his response when the police confronted him with facts that led them to him. Although the statement's probative value seems marginal, it cannot be said that no reasonable person would have admitted the statement as the trial court did. Thus, the trial court did not abuse its discretion in admitting it.
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.
We concur:
Houghton, CJ.
Quinn-Brintnall, J.