Opinion
No. 52191-8-I.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-10117-4. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. Harry J McCarthy.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Rog Boyd — Informational Only (Appearing Pro Se), Doc # 256312, Wash. Corr. Center, P.O.BOX 900, Shelton, WA 98584.
Maureen Marie Cyr, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Andrea Ruth Vitalich, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Roger Boyd appeals his conviction and exceptional sentence for burglary in the second degree. The error, if any, in admitting portions of certain remarks that he made after receiving Miranda warnings was harmless. The court did not abuse its discretion in admitting either dog track or boot print evidence. Boyd fails to demonstrate that his counsel was ineffective. And the exceptional sentence was proper in this case. We affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).
On November 11, 2002, at 7:52 p.m., Tukwila Police Officers Richard Mitchell and Eric Lund responded to a burglary alarm at Jet Fuel Espresso. As Officer Mitchell drove towards the espresso stand, he saw a white male wearing dark clothing running over the Duwamish River Bridge. The man vaulted over the guardrail and went down an embankment.
Upon arriving at the stand, Officer Mitchell saw that one of the doors of the business had been forced open. There were boxes and a garbage can scattered on the floor.
Officer Lund set up a perimeter position in the area and saw Boyd walking down the middle of the street. The officer shined his spotlight down on Boyd, who put his hands in the air. Officer Lund then detained Boyd, observed that he was sweating and out of breath, patted him down and read him his Miranda rights. Boyd acknowledged that he understood his rights. Officer Lund handcuffed Boyd, felt Boyd's pulse beating fast, and observed his muddy boots.
Officer Lund then asked Boyd where he was going and where he was coming from. Boyd's answers were inconsistent in Officer Lund's view. They informed him that the business that he was allegedly going to visit had been closed for some time. At that point Boyd said, "Fuck it. Just take me. I want to talk to my attorney." Officer Lund stopped asking questions, and Boyd said nothing further.
Meanwhile, at Jet Fuel Espresso, Officers Mitchell and Mark Renninger saw a muddy boot print on the door. Officer Mitchell then joined Officer Lund, and identified Boyd as the person he had seen running across the bridge and vaulting the guardrail. A K-9 unit arrived on the scene and began its investigation. The dog tracked from the espresso stand to where Boyd was detained.
The officers arrested Boyd. The State charged him with one count of second degree burglary.
Boyd moved to suppress all of his remarks to Officer Lund. Specifically, he argued that the court should exclude all of his remarks, including, "Fuck it. Just take me," not just his request to speak to a lawyer. The judge disagreed, and only suppressed the express request for a lawyer. At trial, Margaret Barber from the Washington State Patrol Crime Laboratory testified. She compared the muddy boot print on the door of the espresso stand with the pair of boots Boyd wore the night of the burglary. She testified that she could not exclude Boyd's left boot as the source of the print but she could not say with certainty whether his boot was the boot that made the print.
The jury found Boyd guilty as charged.
At sentencing, the court determined Boyd's offender score was 24. The standard range for his offense was 51-68 months, with a statutory maximum of 120 months. The prosecutor recommended the maximum sentence. The court relied on four aggravating factor and imposed an exceptional sentence of 108 months.
Boyd appeals the judgment and exceptional sentence.
SUPPRESSION MOTION
Boyd argues that the trial court violated his Fifth Amendment and Washington Constitution right against self-incrimination by admitting his remarks, "Fuck it, Just take me," which he made during his encounter with Officer Lund. We hold that any error in admitting these remarks was beyond a reasonable doubt harmless.
The Fifth Amendment provides that no "person shall be compelled in any criminal case to be a witness against himself," and the Washington Constitution Article 1, Section 9 provides that "no person shall be compelled in any criminal case to give evidence against himself." The State bears the burden of proving that a defendant's custodial statements were made voluntarily after a knowing, intelligent waiver of constitutional rights. A defendant who initially waives his rights and agrees to speak with police may later invoke his right to remain silent. "[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." Statements taken after a defendant expresses a desire for an attorney may not be admitted.
State v. Braun, 82 Wn.2d 157, 160-62, 509 P.2d 742 (1973).
Miranda, 384 U.S. at 473-74 (emphasis added).
State v. Chapman, 84 Wn.2d 373, 377, 526 P.2d 64 (1974).
An erroneous admission of custodial statements is subject to constitutional harmless error review. We find a constitutional error harmless only if convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error and whether the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. The State bears the burden of making such a showing.
Arizona v. Fulminante, 499 U.S. 279, 295, 111 S. Ct 1246, 113 L.Ed.2d 302 (1991).
State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995).
State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).
Here, Officer Lund advised Boyd of his rights, and Boyd stated that he understood them. There is no claim here that Boyd's statements were not voluntary. They were. Rather, he argues that all his remarks in response to the officer's comment that the business he claimed was his destination was closed were assertions of his right to remain silent. Although we need not decide this particular question, we make two observations. First, this argument appears to be based on the assumption that all his remarks constituted a single statement asserting his right to remain silent. We note that he cites no pertinent authority to support this assertion. And this assertion appears to be inconsistent with the state supreme court's rejection of the "whole statement" approach in the area of admission of hearsay.
State v. Roberts, 142 Wn.2d 471, 492-93, 14 P.3d 713 (2000) (rejecting the "whole statement" approach with respect to admission of hearsay and adopting the position of the U.S. Supreme Court articulated in Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)).
Second, and more importantly, any error in the admission of the remarks was beyond a reasonable doubt harmless. The State presented overwhelming "untainted" evidence from direct officer testimony and circumstantial evidence of Boyd's commission of second degree burglary.
Evidence other than the oral exchange between Boyd and Officer Lund demonstrates that a jury would be convinced beyond a reasonable doubt of Boyd's guilt. Officer Mitchell responded to the alarm at Jet City and arrived at the scene in less than one minute. He saw a white male, whom he later identified as Boyd, running away from the espresso stand and across the bridge and radioed a description to Officer Lund who held a perimeter position nearby. Officer Lund caught the fleeing Boyd, who matched the description. After Officer Mitchell joined Officer Lund who had Boyd detained, Mitchell confirmed Boyd was the person he had seen running across the bridge just moments before.
Furthermore, a K-9 unit tracked Boyd from the espresso stand, across the bridge, down an embankment, through a business park, and to the patrol car where Boyd was detained. Based on this evidence, a jury could find beyond a reasonable doubt that Boyd was guilty of the charge without considering the admitted evidence regarding his remarks in response to questioning. Any error in admitting Boyd's statement was beyond a reasonable doubt harmless.
INEFFECTIVE ASSISTANCE OF COUNSEL
Boyd first argues that he received ineffective assistance of counsel when his attorney failed to request an instruction informing the jury that the dog track evidence required corroboration and that his lawyer should have moved to suppress "expert" testimony regarding the boot print on Jet Fuel's door. We conclude that Boyd fails to establish his claim.
To prevail on his claim of ineffective assistance of counsel, Boyd must first establish that his counsel's representation was deficient. To show deficient performance, he has the "heavy burden of showing that his attorney `made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.'" He may meet this burden by establishing that, given all the facts and circumstances, his attorney's conduct failed to meet an objective standard of reasonableness. Deficient performance is not shown by matters that go to trial strategy or tactics.
State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), review denied, 121 Wn.2d 1006 (1993).
State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068, review denied, 130 Wn.2d 1008 (1996).
Hendrickson, 129 Wn.2d at 77-78.
Because Boyd's representation was not deficient we need not reach the second prong of the test, whether he was prejudiced by his counsel's action.
Dog Track Evidence
A conviction cannot be based on dog track evidence alone; there must be corroborating evidence identifying the accused as the perpetrator of the crime. Boyd argues that where evidence requires corroboration "the jury must be so informed lest there be a conviction upon that evidence alone." We conclude that because the State presented evidence to corroborate the dog track evidence Boyd's attorney's failure to request an instruction that dog track evidence must be corroborated is not deficient performance.
State v. Loucks, 98 Wn.2d 563, 566-67, 656 P.2d 480 (1983).
State v. Wagner, 36 Wn. App. 286, 288, 673 P.2d 638 (1983).
Boyd's situation is unlike Loucks and Wagner, where the dog track comprised the only evidence regarding the identity of the defendant. In that situation a defendant is entitled to an instruction informing the jury that, absent "some other evidence of guilt, [dog track evidence] does not warrant a conviction."
Wagner, 36 Wn. App. at 288.
Here, officers first identified Boyd running away from the scene of the crime, pursued, and detained him. The dog track evidence is but one piece of evidence that corroborates the officers' identification of the suspect. Substantial evidence of the defendant's identity came from sources other than the dog track. Counsel was not ineffective for failing to request a jury instruction that requires corroboration of dog track evidence where other evidence in addition to the dog track evidence corroborates the suspect's identification.
Shoe Print Evidence
Boyd next argues ineffective assistance of counsel because his counsel failed to object to Margaret Barber's testimony regarding the boot print on the door. He claims her "expert testimony" was inadmissible because her testimony was within the common understanding of the average juror and that presenting her as an expert led the jury to give her testimony undue weight. We conclude that Boyd has failed to demonstrate prejudice.
"Generally, the comparison of footprints may properly be made a subject of nonexpert testimony. This is not to say, however, that expert testimony on this subject is not permissible, and the determination as to whether shoe-print comparison testimony is lay or expert must be made on a case-by-case basis." "[W]henever appropriate, counsel should ask the trial judge to consider whether the probative value of the expert testimony is outweighed by the potential for prejudice or the jurors' giving it undue weight."
31A Am.Jur.2d Expert and Opinion Evidence sec. 258 (2003) (citations omitted).
Robert H. Aronson, The Law of Evidence in Washington, sec. 702.04 (4th ed. 2003); ER 403.
No Washington decision squarely addresses whether testimony regarding shoe print evidence is exclusively the province of lay testimony. But in Wagner, the court admitted expert testimony on shoe print evidence.
Barber could not conclusively match the boot print on the door to Boyd. Nor could she exclude Boyd from being present at Jet City. On cross-examination, Barber admitted that she did not know what other types of shoes could have the same design. She also admitted that she had not performed any tests comparing the mud on the door and the mud on the boots and could not conclusively state that Boyd's boot made the print on the door. Given Barber's equivocal testimony Boyd cannot establish that he was prejudiced by her testimony.
Absent prejudice, Boyd has failed to demonstrate that his counsel at trial was ineffective.
EXCEPTIONAL SENTENCE
Boyd argues the trial court abused its discretion in imposing an exceptional sentence upward. The court sentenced Boyd to 108 months, the standard range sentence for second degree burglary is 51-68 months. Specifically, Boyd argues that the court miscalculated his offender score, erred in considering his lack of effort toward rehabilitation, the risk that he would reoffend, and in considering his past probation violations.
"The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence . . ." In reviewing an exceptional sentence, this court asks three questions: (1) Are the reasons given by the sentencing court supported by the record, using the clearly erroneous standard of review? (2) Do the reasons justify departure from the standard range as a matter of law? (3) Is the sentence clearly too excessive or too lenient, using the abuse of discretion standard of review?
State v. Ferguson, 142 Wn.2d 631, 643-44, 15 P.3d 1271 (2001) (citing former RCW 9.94A.120(1), (2) (1999)).
Offender Score/Unscored Misdemeanor History
Boyd argues the court abused its discretion when it used a miscalculated offender score and his unscored misdemeanor history in imposing his sentence.
Boyd argues that his offender score should be 23 instead of 24. This error, if any, is harmless because the sentencing grid "maxes out" at nine or more. Boyd's offender score is above nine regardless of the additional point included for commission of a crime while under community placement. Next, Boyd argues his prior unscored offenses do not allow the court to impose an exceptional sentence. A high offender score, even where far above the upper limit of the sentencing grid, is insufficient to justify an exceptional sentence; something more is required.
State v. Stephens, 116 Wn.2d 238, 243, 803 P.2d 319 (1991).
However, a defendant's prior unscored misdemeanors can warrant the imposition of an exceptional sentence if they result in a presumptive sentence that is too lenient in light of the purposes of the SRA. A defendant's prior unscored misdemeanor history is a statutory aggravating factor that justifies an exceptional sentence as a matter of law. Five unrelated misdemeanor convictions have been held sufficient to warrant an exceptional sentence. For related misdemeanors, the threshold number needed to warrant different treatment can be lower than for unrelated misdemeanors because it exhibits a pattern of criminal behavior revived by the current offense. Boyd had four prior misdemeanor offenses in addition to his 13 prior convictions for burglary. His prior misdemeanor convictions included DUI, driving with a suspended license, theft, and property destruction. At least two of Boyd's prior misdemeanor offenses are property crimes similar to burglary. The trial court justifiably factored in Boyd's extraordinary offender score and misdemeanor history in imposing an exceptional upward sentence.
RCW 9.94A.535(2)(j); State v. Ratliff, 46 Wn. App. 325, 332, 730 P.2d 716 (1986), review denied, 108 Wn.2d 1002 (1987).
State v. Atkinson, 113 Wn. App. 661, 669, 54 P.3d 702 (2002), review denied, 149 Wn.2d 1013 (2003).
State v. Roberts, 55 Wn. App. 573, 579, 779 P.2d 732, review denied, 113 Wn.2d 1026 (1989) (emphasis added).
Disregard for the Law
Boyd next claims that the court improperly relied on "future dangerousness" in its imposition of an exceptional sentence. The court did not use future dangerousness in imposing Boyd's sentence. Rather, it properly relied on unscored misdemeanors and the purposes of the Sentencing Reform Act. Once a proper mitigating or aggravating factor is found for sentencing purposes, statements of purpose may properly be considered in selecting sentence; they do not in and of themselves constitute grounds to go outside the standard range. Here, Boyd had prior unscored misdemeanors in addition to violating the statements of purpose. RCW 9.94A.010 provides the purposes of the SRA;
State v. Barnes, 117 Wn.2d 701, 712-13, 818 P.2d 1088 (1991) (Future dangerousness cannot be used as an aggravating factor in non-sexual offenses.).
State v. Alexander, 70 Wn. App. 608, 854 P.2d 1105 (1993), reconsideration filed, review granted, 123 Wn.2d 1001, 868 P.2d 871, reversed on other grounds, 125 Wn.2d 717, 888 P.2d 1169 (1995).
The purpose of this chapter is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences, and to:
(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history;
(2) Promote respect for the law by providing punishment which is just;
(3) Be commensurate with the punishment imposed on others committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve him or herself;
(6) Make frugal use of the state's and local governments' resources; and
(7) Reduce the risk of reoffending by offenders in the community.
Here, unscored prior misdemeanors and actions inconsistent with the purpose of the SRA justify an exceptional sentence. Contrary to Boyd's assertion, the court did not rely on future dangerousness in imposing his sentence. It justifiably imposed an upward adjustment consistent with the purposes of the SRA.
The court concluded, "The defendant has shown a lack of effort with regard to rehabilitation. This fact constitutes a basis for an exceptional sentence." It further concluded that, "The defendant's criminal history strongly indicates that if not incarcerated, the defendant will continue to reoffend at a rapid rate. Boyd continues to reject the opportunity to improve himself and continues to reoffend." We agree with the trial court that, "these factors form a basis for an exceptional sentence upward." Further, Boyd demonstrates a lack of respect for the law by continuing to offend while under supervision, and failing to take advantage of court ordered drug/alcohol treatment. Boyd admits that previously he received an exceptional sentence downward and that he had been given several opportunities to address his substance abuse problems through court ordered treatment. This failure to seek treatment and continuing to offend demonstrates Boyd's flouting the purposes of the SRA. The trial court did not abuse its discretion in sentencing Boyd when it relied on the aggravating factors of misdemeanor history and Boyd's actions that run contrary to the purpose of the SRA.
Sentence Length
Next, Boyd claims the trial court abused its discretion when it imposed a sentence of 108 months. The court did not abuse its discretion with respect to the length of the sentence.
When an exceptional sentence is factually and legally justified, the length of a sentence is reviewed only for an abuse of discretion. The only limit to the trial court's discretion is that it must remain within the statutory maximum. An exceptional sentence may only be overturned when its length is so unreasonable that it "shocks the conscience."
State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986).
State v. Burkins, 94 Wn. App. 677, 701, 973 P.2d 15, review denied, 138 Wn.2d 1014 (1999).
State v. Vaughn, 83 Wn. App. 669, 681, 924 P.2d 27 (1996), review denied, 131 Wn.2d 1018 (1997).
Substantial and compelling reasons existed to support Boyd's exceptional sentence based on his high offender score and other aggravating factors cited by the trial court. Furthermore, the sentence imposed was within the statutory maximum. The court did not abuse its discretion in imposing Boyd's sentence.
APPRENDI
Boyd argues that he has the right to a jury determination of the facts underlying the four aggravating factors the court relied on beyond a reasonable doubt in imposing his exceptional sentence. Boyd claims that Apprendi v. New Jersey, and Ring v. Arizona support his argument Our supreme court rejected this proposition in State v. Gore, holding "that the factual basis for an exceptional sentence upward need not be charged, submitted to the jury, and proved beyond a reasonable doubt." Gore relied on Apprendi and McMillan v. Pennsylvania to support its holding. Boyd argues that Ring should change the result in Apprendi and Gore. We disagree.
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
143 Wn.2d 288, 315, 21 P.3d 262 (2001) (emphasis added).
477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).
In Gore, the sentencing court imposed exceptional sentences based on victim vulnerability and Gore's "preparation for and planning of the offenses." Our supreme court found McMillan controlling and held that the State may permit a sentencing court's imposition of an exceptional sentence that is within the statutory maximum `without the factual determinations [supporting an aggravating factor] being charged, submitted to a jury, or proved beyond a reasonable doubt.' Apprendi, as interpreted by Gore, does not necessitate that all facts which effect a defendant's sentence be found beyond a reasonable doubt by a jury.
Gore, 143 Wn.2d at 295.
Gore, 143 Wn.2d at 314.
Ring involved an Arizona sentencing law that allowed the sentencing court to impose a death sentence upon finding at least one enumerated aggravating circumstance. The key feature of Arizona's law was that the sentencing court alone could decide the aggravating circumstance necessary to convert a first degree murder conviction into a capital offense. Without the sentencing court's findings i.e., with the jury's findings alone Arizona law allowed a maximum penalty of life imprisonment. The Supreme Court held Arizona's sentencing law unconstitutional because the "enumerated aggravating factors operate[d] as `the functional equivalent of an element of a greater offense.'" Ring left Apprendi and McMillan, the cases supporting Gore, undisturbed.
Ring, 536 U.S. at 609 (quoting.
Sentencing factors that increase punishment, but do not alter the statutory maximum are constitutionally permissible.
Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002).
We affirm the judgment and exceptional sentence.
KENNEDY, and BECKER, JJ., concur.