Opinion
No. 25413-1-II Consolidated with No. 25452-2-II.
Filed: August 17, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 99-1-03200-6, Hon. Frederick W. Fleming, December 13, 1999, Judgment or order under review.
Counsel for Appellant(s), Mary K. High, Attorney At Law, 109 Tacoma Ave N, Tacoma, WA 98403.
Linda J. King, Attorney At Law, P.O. Box 881008, Steilacoom, WA 98388-1088.
Counsel for Respondent(s), John M. Neeb, Pierce Co. Deputy Pros. Atty., Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.
Kathleen Proctor, Pierce County Deputy Pros Atty, Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.
Andre Parker stole a stereo from a woman and Larry Brown drove the getaway car. While Parker was stealing the stereo, Brown stated, `pull out your strap.' At trial, the State offered the statement to prove that Parker had a gun; Parker and Brown objected, arguing that the statement was hearsay. The jury convicted both defendants of first degree robbery and returned special verdicts that both men were armed with a deadly weapon while committing the crime. The jury also convicted Parker of second degree unlawful possession of a firearm. Now, both defendants challenge the sufficiency of the evidence and certain jury instructions, and they allege prosecutorial misconduct. Parker also argues that the trials should have been severed and that his information was defective for failing to allege that he knowingly possessed the firearm. .
We affirm the robbery convictions, but we reverse Parker's conviction of unlawful possession of a firearm because the instructions did not require the jury to find that Parker knowingly possessed the firearm because he had a prior felony conviction. See RCW 9.41.040(1)(b)(i).
FACTS
One evening in July 1999, Paullyna Michael and her friends, Eva Sisler and Nicki Owings, went to a birthday party at a Masonic Lodge. Michael brought her stereo. Michael and others collected an admission fee at the door and patted down the attendees, refusing entry to anyone carrying a weapon. Someone other than Michael turned Andre Parker away. After the party ended, Michael, Owings, and Sisler left. As Michael was loading the stereo into the trunk of her car, Larry Brown drove up with Andre Parker and several other passengers. Brown tried to convince Michael to loan or give him the stereo, but she refused. Parker then got out and took the stereo as someone in the car repeatedly said, `pull out your strap.' RP at 397. Sisler and Owings thought Brown made the statement, but Michael was not sure. The women understood that `strap' meant a gun. Parker got back in the car and the men drove away.
Michael immediately reported the robbery, and police soon discovered Parker, Brown, and the stolen stereo when they pulled the car over for speeding. An officer found a semiautomatic handgun under the front seat, in front of where Parker had been sitting.
At Parker and Brown's joint trial, Parker admitted taking the stereo but said he took it from Michael's trunk, not her hands. He also admitted lying to police initially about his participation in the crime. But he denied possessing a gun. The jury convicted both defendants of first degree robbery and returned special verdicts that each defendant possessed a firearm while committing the crime. The jury also convicted Parker of second degree unlawful possession of a firearm.
ANALYSIS I. Severance
Parker argues that the trial court should have severed the trials. He contends that Brown's partially redacted statements to an officer implicated him. Parker objects to these statements:
I knew what happened, but I had nothing to do with it. I don't know anything about a gun. RP at 265.
I was not even around when the stereo was taken. I saw a guy walking with the stereo. My passenger asked me to stop for him and the guy got in my car. There was nobody chasing him. RP at 266.
Parker argues that admitting these statements violated CrR 4.4(c)(1) and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The State responds that Parker waived severance by failing to renew his pretrial motion before or at the close of the evidence, as CrR 4.4(a)(2) requires. We agree. CrR 4.4(a)(2) requires renewal of a pretrial severance motion, and Parker never renewed his motion.
Even if Parker had renewed his severance motion, his argument would fail. We review a ruling on a motion to sever for abuse of discretion. State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991). Under CrR 4.4(c)(1), references by defendant A to defendant B in out-of-court statements will entitle defendant B to severance unless the prosecutor agrees to delete all references to B and, thus, eliminate any prejudice.
In Bruton, the Supreme Court held that where defendant A's statement is `powerfully incriminating' as to defendant B, the unredacted statement is inadmissible unless the trials are severed. Bruton, 391 U.S. at 135-36. But if the redacted statement omits all references to anyone other than defendant A and unidentified third parties, and the trial court provides a limiting instruction, then the court need not sever the trials of A and B. Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). But a redacted statement that contains blank spaces or the word `deleted' violates B's confrontation rights. Gray v. Maryland, 523 U.S. 185, 194, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). The Court in Gray distinguished Richardson, where the statements did not refer directly to defendant B and became incriminating only in light of other evidence introduced at trial. Gray, 523 U.S. at 194.
Brown's redacted statements do not refer directly to Parker. Richardson permits ambiguous references to third parties such as `a guy' and `him.' Here, as in Richardson, the statements incriminate Parker only when linked with other evidence. Moreover, Brown's statements do no more than implicate Parker as the person who took the stereo, which Parker admitted.
II. Hearsay
Parker and Brown argue that the statement `pull out your strap' was inadmissible hearsay. We review a trial court's ruling admitting hearsay for abuse of discretion. State v. McDonald, 138 Wn.2d 680, 693, 981 P.2d 443 (1999). Under ER 801(c), a statement is hearsay if the declarant did not make the statement while testifying at trial and a party offers the statement to prove the truth of the matter asserted by the declarant.
`Pull out your strap' does not expressly assert a fact. The statement is imperative, not declarative. At most, the statement implies that Parker had a gun. Only express assertions are hearsay, and a statement is assertive only if the declarant intended an assertion. In re Penelope B., 104 Wn.2d 643, 652, 709 P.2d 1185 (1985); State v. Collins, 75 Wn. App. 496 [ 76 Wn. App. 496], 499, 886 P.2d 243 (1995); Fed.R.Evid. 801 advisory committee's note.
The party claiming that the statement is hearsay must show that the declarant intended an assertion, and courts resolve doubtful cases in favor of admissibility. Fed R. Evid. 801 advisory committee's note. The statement `pull out your strap' was part of the ongoing robbery and was relevant regardless of its truth. Even though the statement implies that Parker had a gun, the implication arises because the statement was made and does not depend on the declarant's credibility. See In re Penelope B., 104 Wn.2d at 653. Thus, `pull out our strap' is not hearsay. Parker and Brown argue that the court cannot assess the statement's reliability because the declarant's identity is uncertain. But identity is immaterial if the declarant did not intend an express assertion. See Collins, 76 Wn. App. at 499 (statements of unidentified callers asking for drugs were non-hearsay when offered to prove that the defendant was a drug dealer); United States v. Zenni, 492 F. Supp. 464, 469 (1980) (statements of unidentified callers placing bets were non-hearsay when offered to prove that the defendant engaged in illegal bookmaking activities). Moreover, two of the witnesses testified that Brown made the statement. We conclude that the trial court did not abuse its discretion by admitting the statement `pull out your strap' to prove that Parker had a gun.
III. Sufficiency of Evidence
Parker and Brown also argue that the evidence was insufficient to prove they were armed with or displayed what appeared to be a firearm. In addition, Parker argues that the evidence was insufficient to prove that he possessed a firearm. Evidence is sufficient if, `after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.' State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990).
A. Armed With a Firearm
Robbery is in the first degree if the defendant was armed while committing the robbery or in immediate flight therefrom. RCW 9A.56.200(1)(a). A deadly weapon sentence enhancement requires a finding that the defendant or an accomplice was armed while committing the crime.
RCW 9.94A.125.
A defendant is `armed' while committing a crime if a weapon is `easily accessible and readily available for use, either for offensive or defensive purposes.' State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993). Also, some nexus must exist between the weapon and the crime. State v. Mills, 80 Wn. App. 231, 236, 907 P.2d 316 (1995).
The evidence was sufficient for the jury to find that Parker and Brown were armed with a firearm while committing the robbery. Construing the facts and reasonable inferences in the State's favor, the jury could have found that Parker was carrying a gun when he was denied entry to the birthday party, that he was carrying the gun when Brown encouraged him to use it during the robbery, and that he hid the gun under the car seat as they fled the scene. These facts amply support a conclusion that Parker had easy access to the gun while committing the robbery. And the facts support a nexus between the gun and the crime; Brown encouraged Parker to pull the gun on Michael.
B. Displayed What Appeared to be a Firearm
Parker and Brown also argue that the evidence was insufficient to allow the jury to find that they `displayed what appeared to be' a deadly weapon. But this issue is moot because the jury found that Parker and Brown were actually armed with a firearm.
C. Unlawful Possession of a Firearm
Parker argues additionally that the evidence was insufficient to prove that he unlawfully possessed a firearm. Possession may be actual or constructive and need not be exclusive. State v. Turner, 103 Wn. App. 515, 520-21, 13 P.3d 234 (2000). The same evidence that proves Parker was armed with a firearm when he committed the robbery is sufficient to prove that he had actual possession of a firearm.
IV. Jury Instructions
Parker and Brown contend that two of the instructions misstated the law and that the trial court erred by failing to give a unanimity instruction. In addition, Parker argues that the instructions pertaining to unlawful possession of a firearm failed to state the essential element of knowledge. We review a trial court's decisions on jury instructions for abuse of discretion. State v. Priest, 100 Wn. App. 451, 454, 997 P.2d 452 (2000).
A. Correct Statements of Law
Parker and Brown argue that jury instructions 11 and 12 misstated the law. Instruction 11 defined displaying a deadly weapon, and instruction 12 defined being armed with a deadly weapon.
Parker and Brown argue that instruction 11 misinformed the jury that a person could, by his words or conduct, display a deadly weapon by leading another person to believe that he is actually armed with a deadly weapon.
Even if instruction 11 misstated the law, any error was harmless because the jury found that both Parker and Brown were actually armed with a firearm when they committed the robbery.
Parker and Brown also argue that jury instruction 12 omitted the necessary language `during the commission of the crime' in defining when a person is `armed with a deadly weapon.' The instruction stated simply that '[a] person is `armed with a deadly weapon' when he or an accomplice has a deadly weapon that is readily available and accessible for use for either offensive or defensive purposes.' CP (Brown) at 68. But the first degree robbery instruction correctly stated that a robbery is in the first degree when the defendant is armed while committing the crime or in immediate flight therefrom. See RCW 9A.56.200(1)(a). Thus, the instructions required the jury to find that Parker and Brown were armed during the robbery or while fleeing from the robbery.
Furthermore, the definition in instruction 12 also applied to the instruction on deadly weapon sentence enhancements. For that purpose, the defendant or an accomplice must have been armed with a deadly weapon while committing the crime; being armed in flight will not suffice. RCW 9.94A.125. Including the language `during the commission of the crime' would have been correct for the sentence enhancement but incorrect for first degree robbery. The trial court did not abuse its discretion by giving jury instruction 12.
B. Absence of Unanimity Instruction
Parker and Brown also argue that the trial court should have instructed the jury that its verdict needed to be unanimous as to the means by which they committed first degree robbery. In a criminal case, the jury's verdict must be unanimous as to the defendant's guilt. Wash. Const. art. I, sec. 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). Where a person may commit the charged crime by alternative means, the verdict must be unanimous as to a particular means unless substantial evidence supports each possible means. State v. Crane, 116 Wn.2d 315, 325-26, 804 P.2d 10 (1991). If the evidence fails to support one means, the court must set aside the verdict unless it can determine that the jury based its verdict on a means for which the State presented substantial evidence. State v. Maupin, 63 Wn. App. 887, 894, 822 P.2d 355 (1992).
The jury instructions provided that the jury had to find that Parker and Brown (1) were armed with a deadly weapon or (2) displayed what appeared to be a deadly weapon to convict them of first degree robbery.
The jury unanimously found in special verdicts that Parker and Brown were armed with a firearm while committing the robbery. Thus, the jury based its first degree robbery verdict on its unanimous finding that Parker and Brown were armed with a deadly weapon. Accordingly, the jury was unanimous in finding the means by which Parker and Brown committed first degree robbery.
C. Failure to Require Proof of Knowledge Element of Unlawful Possession of a Firearm
Parker argues that the jury instructions pertaining to unlawful possession of a firearm failed to require the State to prove that he knowingly possessed the firearm. Parker did not object to these instructions at trial, but argues that he may challenge them for the first time on appeal because the omission is a manifest constitutional error.
RAP 2.5(a)(3). Criminal defendants have a constitutional due process right to jury instructions that include the essential elements of each charged crime. State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). Knowledge is an essential element of second degree unlawful possession of a firearm. State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247 (2000). None of the instructions on unlawful possession of a firearm required the jury to find that Parker knowingly possessed the firearm.
The State argues that Parker invited the instructional error by proposing an unwitting possession instruction under which the defendant assumes the burden of disproving knowledge by a preponderance of the evidence. The State contends that this instruction relieved the State of its burden of proving knowledge just as the instructions to which Parker now assigns error. But Washington courts have invoked the invited error doctrine only in cases where the defendant requested essentially the same instruction that he challenges on appeal. See, e.g., State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (holding that defendants invited an instructional error by proposing instructions misstating the law of self defense); State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990) (holding that defendant invited instructional error by proposing instruction that did not specify the defendant's intended crime in a burglary prosecution). And the invited error doctrine requires knowing and voluntary actions by the defendant that set up the error. In re Personal Restraint of Call, Wn.2d, P.3d (2001), 2001 WL 838212 (holding that defendant did not invite the trial court to use an incorrect offender score by inadvertently agreeing to it when he pleaded guilty). Parker did not propose an instruction that relieved the State of the burden of proving knowledge. His proposed unwitting possession instruction was at best inapposite to the State's elements instruction that omitted knowledge.
In fact, Parker's instruction told the jury that it should acquit him if he showed that his possession was unknowing. The invited error doctrine precludes a defendant from arguing an error that he invited the trial court to make. Parker did not invite the trial court to instruct the jury that it could find him guilty if he unknowingly possessed the firearm. We hold that the jury instructions were inadequate for failing to include the knowledge element. We reverse Parker's conviction for second degree unlawful possession of a firearm.
V. Prosecutorial Misconduct
Parker and Brown further argue that their trial was unfair because the prosecutor improperly argued to the jury. We review a trial court's rulings on alleged prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). The defendant must establish that the prosecutor's conduct was both improper and prejudicial. Finch, 137 Wn.2d at 839. A prosecutor's misconduct is prejudicial if there is a substantial likelihood that it affected the verdict. Finch, 137 Wn.2d at 839. If a defendant fails to object at trial to an improper remark, he must demonstrate on appeal that the remark is `so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' Finch, 137 Wn.2d at 839 (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1999)). Here, Brown objected to an argument by the prosecutor that encouraged the jury to `do justice' by convicting Parker and Brown. Otherwise, neither defendant objected at trial to the alleged misconduct.
Parker and Brown first argue that the prosecutor's encouragement of the jury to `do justice' was prejudicial misconduct. In Finch, the prosecutor specifically told the jury that it represented the `conscience of the community' and that its verdict should be truthful and just. Finch, 137 Wn.2d at 840. The court held that the prosecutor did not intend to inflame the jury, and a prosecutor may appeal to the jury to `act as a conscience of the community' if the comments are not specifically designed to inflame the jury. Finch, 137 Wn.2d 842 (quoting United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984)).
Similarly, the prosecutor's remarks here were not inflammatory. The prosecutor stated: `You've been sworn to uphold the law and to do justice in this case. Justice doesn't compromise. Justice looks at the facts without sympathy and without prejudice, and does the right thing. And in this case the right thing is a conviction as charged.' RP at 620. Later, the prosecutor argued that justice required convicting Parker of unlawfully possessing a firearm. Parker and Brown fail to distinguish these comments from the prosecutor's comments in Finch, which the court held were permissible.
Second, Parker and Brown argue that the prosecutor violated ER 404(b) by arguing that Parker's prior juvenile conviction of unlawful possession of a firearm supported an inference that he had a gun when he robbed Michael. The prosecutor argued that the conviction allowed `a reasonable inference that Parker had the gun on his person during the commission of the crime.' RP at 609-10. As the State argues, the context of this argument reveals its proper purpose. The prosecutor was arguing that the prior conviction was Parker's motive for hiding the gun under the seat. Under RCW 9.41.040(1)(a), it is a crime for a person who has been convicted of a serious offense to possess a firearm. The prosecutor's argument was not improper.
ER 404(b) precludes evidence of prior crimes or misconduct to prove character and conduct in conformity with it.
Third, Parker and Brown argue, without citation to the record, that the prosecutor improperly elicited testimony meant to imply that Parker and Brown were gang members, frequented high crime areas, and used drugs. On one occasion, the prosecutor asked an officer, `Did you have a description as far as whether the vehicle was older or newer model?' The officer testified that when he is investigating a crime involving a car, he asks whether the car was a `gangbanger looking car' to get a better description. RP at 422. The testimony did not link the description to Parker and Brown and did not involve prosecutorial misconduct. On another occasion, the prosecutor asked an officer whether the Lakewood area, where the officer pulled over Parker and Brown, has a reputation. The officer testified that it is a '[v]ery high crime area, a lot of drugs.' RP at 253.
Parker and Brown analogize to State v. Suarez-Bravo, 72 Wn. App. 359, 367, 864 P.2d 426 (1994), where the court held that a prosecutor's improper line of questioning was flagrant misconduct. The prosecutor in Suarez-Bravo asked the defendant whether he lived in a high-crime area. But the prosecutor also implied that Hispanic orchard workers deal in cocaine, asked about the defendant's fears of deportation and his status as a Hispanic noncitizen, and tried to induce the defendant to call the State's witnesses liars. Suarez-Bravo, 72 Wn. App. at 362-64, 367. In contrast, although the prosecutor's question here about the Lakewood area's reputation may have been improper, it could have been neutralized by a jury instruction. And compared to the effect of the prosecutor's questioning in Suarez-Bravo, the prejudice was minimal.
Fourth, Parker and Brown argue that the prosecutor improperly expressed his personal beliefs about the case. In closing argument, after explaining that the jury could find either that the defendants displayed what appeared to be a firearm or that they were actually armed with a firearm, the prosecutor stated, `Which do I think? Which does the State think that the evidence shows? Both.' RP at 602. The prosecutor then went on to explain why the evidence supported both alternatives.
It is improper for a prosecutor to express his personal belief in the defendant's guilt. State v. Henderson, 100 Wn. App. 794, 804, 998 P.2d 907 (2000). But the Supreme Court has held that similar statements were not unfair assertions of personal opinion. See State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). In Hoffman, the defendants challenged the prosecutor's use of phrases such as `I think' and `I think the evidence shows.' Hoffman, 116 Wn.2d at 94. The Court held that the argument was not harmful misconduct because the evidence supported the prosecutor's statements and a jury instruction could have cured any error, had the defendants requested one. Hoffman, 116 Wn.2d at 94. And the Court noted that prosecutors are allowed `wide latitude in drawing and expressing reasonable inferences from the evidence' in closing argument. Hoffman, 116 Wn.2d at 94-95. We hold that the prosecutor's statement here was not prejudicial.
Parker argues that the prosecutor improperly commented on his right to remain silent by eliciting testimony that he refused to cooperate with the investigating officer and by using this testimony in his closing argument.
The prosecutor argued, `Andre Parker was willing to lie to a police officer at the scene of his arrest to try and get let go. Can you imagine what he'd be willing to tell you folks to try and get let go?' RP at 619. Parker claims this was an improper use of pre-arrest silence as substantive evidence of his guilt. See State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996).
But even if the testimony and arguments that Parker was uncooperative violated his right to silence, any error was harmless beyond a reasonable doubt. Parker argues that the prosecutor's comment was prejudicial because his defense rested on his credibility. But Parker admitted lying to the police. Thus, the harm, if any, from the prosecutor's argument was minimal.
Parker and Brown argue finally that even if none of the alleged misconduct and trial court errors alone warrant reversal, the cumulative effect of the errors denied them a fair trial. Accumulation of otherwise nonreversible errors may deny a defendant a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). We decline to hold that any of the potential errors Parker and Brown raise cumulatively denied them a fair trial. Even accumulated, any error was harmless.
VI. Sufficiency of Parker's Information
Parker points out that the information charging him with second degree unlawful possession of a firearm failed to allege that he knowingly possessed the firearm. An information must state all of the essential elements of a crime so that the accused may understand the charges and prepare a defense. U.S. Const. amend. VI; Wash. Const. art. I, sec. 22; State v. Johnson, 119 Wn.2d 143, 150, 829 P.2d 1078 (1992). As stated above in addressing the jury instructions, knowledge is an essential element of second degree unlawful possession of a firearm. Anderson, 141 Wn.2d at 359.
The level of scrutiny employed in reviewing an information for sufficiency depends on when the defendant first challenges the information. Where a defendant challenges the information before the verdict, the court construes it strictly. Johnson, 119 Wn.2d at 150. But where a defendant challenges the information after trial, the court construes it liberally in favor of validity. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). Parker challenges his information for the first time on appeal; thus, we construe the information liberally in favor of validity.
Parker's information alleged that he `did unlawfully and feloniously own, have in his possession, or under his control a firearm, having been previously convicted in the State of Washington or elsewhere of a felony.' CP (Parker) at 7. Parker's contention that this language fails to allege the knowledge element is without merit. The phrase `unlawfully and feloniously' is sufficient to allege knowledge. Johnson, 119 Wn.2d at 148; see also State v. Krajeski, 104 Wn. App. 377, 386, 16 P.3d 69, review denied, P.3d (2001); State v. Nieblas-Duarte, 55 Wn. App. 376, 380-81, 777 P.2d 583 (1989). The word `feloniously' means `with intent to commit a crime.' Nieblas-Duarte, 55 Wn. App. at 381 (quoting State v. Smith, 31 Wn. 245, 248, 71 P. 767 (1903)). Thus, construing the information liberally in favor of validity, Parker's information was sufficient.
We affirm the robbery convictions, but reverse Parker's conviction for unlawful possession of a firearm and remand for a new trial.
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: MORGAN, J., HOUGHTON, J.