Opinion
Nos. 34941-8-II; 34983-3-II.
January 8, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 05-1-03396-9, Frank Cuthbertson, J., entered June 2, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
A jury convicted Abdul Calhoun and Zachary Frazier of first degree robbery, first degree burglary, and two counts of second degree assault. Calhoun and Frazier forced their way into an apartment, assaulted two residents, and stole a safe. The police quickly stopped their vehicle based on one victim's 911 call. The police escorted the victims to the traffic stop where the victims positively identified Calhoun and Frazier as the perpetrators. On appeal, Calhoun and Frazier argue that the trial court erred when it (1) failed to suppress the show-up identification and (2) permitted a misleading jury instruction regarding accomplice liability. Additionally, they argue that the convictions of both first degree robbery and second degree assault violated double jeopardy. Finally, Calhoun argues that the trial court abused its discretion by failing to order a competency evaluation, and Frazier contends the trial court abused its discretion by denying his motion for severance after Calhoun's numerous outbursts during trial. In his statement of additional grounds (SAG), Calhoun argues (1) a violation of his speedy trial rights; (2) a violation of his right to a fair trial; (3) prosecutorial and judicial misconduct; and (4) ineffective assistance of counsel. Frazier also argues ineffective assistance of counsel as well as a violation of his Miranda rights in his SAG. We affirm Calhoun and Frazier's first degree burglary and first degree robbery convictions but reverse both second degree assault convictions and remand to the trial court for resentencing.
RAP 10.10.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
I. The Robbery
At approximately 2 a.m. on July 11, 2005, Celia Isaac, Isha Isaac, Rolan Kimbrough, and four young children were asleep in their small one bedroom apartment. Celia awoke suddenly to a "big bang" shortly after she fell asleep. Report of Proceedings (RP) (May 3, 2006) at 32. When Celia opened her eyes, she saw two men wearing bandanas entering the apartment through the living room window. One man ran at Celia, jumped on top of her, and searched her bra until he recovered a key to the family's safe.
Meanwhile, the sound of the men coming into the apartment woke Rolan who came into the living room. Rolan immediately ran back to the bedroom to protect his daughter when one of the men followed him and struck him over the head with a "pretty hard" object. RP (May 4, 2006) at 143. Rolan heard them ask repeatedly, "Where's the safe, you know, we come for?" RP (May 4, 2006) at 142. The men fumbled through the apartment until they found the safe and fled.
Celia and Isha followed the men to the street and Celia saw the men jump into a red truck. Isha was able to see the truck's license plate and immediately called 911.
II. Identification
Officer Russell Martin was on patrol and received the 911 dispatch concerning the home invasion robbery. As officer Martin headed toward the victims' residence he passed a red truck with a license plate matching Isha's description. Martin stopped the red truck and detained its three passengers. Calhoun and Frazier were two of the passengers and Verndeleao Joy Banks was the third. Later, upon searching the vehicle, Martin discovered the victims' safe.
The police transported Rolan and Isha to the traffic stop scene. When police escorted Frazier and Calhoun out of the red truck, Rolan and Isha positively identified them as the two men who entered the apartment. The State charged Calhoun and Frazier with first degree robbery, first degree burglary, and two counts of second degree assault. The State filed additional charges against Frazier for third degree assault and unlawful use of drug paraphernalia.
The jury acquitted Frazier of the drug paraphernalia charge and he does not appeal the third degree assault conviction.
III. Pretrial Motions
A. Competency
Trial was scheduled to begin on August 23, 2005. Following two continuances, Calhoun sought an additional continuance after discharging his first appointed counsel and filing a bar complaint. Calhoun's second attorney withdrew when Calhoun insisted he sign a contract promising representation in a manner "in which [Calhoun] saw [as] constitutionally required." RP (Apr. 27, 2006) at 34. Both the State and the defense counsel were granted additional continuances due to Calhoun firing his attorneys and the assigned prosecutor's trial schedule conflicts.
On April 19, 2006, the trial court asked Calhoun if there were any medical or mental health issues that were of concern. Calhoun answered that there were no medical issues and that he did not require any accommodation. A week later, and approximately a week before trial was to begin, Calhoun's third defense attorney moved for appointment of a psychologist to evaluate Calhoun's competency under chapter 10.77 RCW.
Calhoun's attorney based his motion on the fact that Calhoun (1) behaved so disruptively that his previous attorneys withdrew and the defense investigator refused to work on the case; (2) constantly addressed the court in the third person; (3) insisted on having a defense strategy centered on the Uniform Commercial Code (UCC), specifically with the wish to file interrogatories "demanding the basis for why [the prosecutor] claims to have a perfected security interest in the body of Mr. Calhoun"; and (4) urged defense counsel to use maritime and civil law. RP (Apr. 27, 2006) at 35. Furthermore, defense counsel informed the trial court that Calhoun had a history of drug use that might have caused some brain damage. Finally, defense counsel noted Calhoun's distrust and anger at counsel for not sequestering the jury and for informing the trial court of Calhoun's drug use.
In response, the State elicited testimony from the Pierce County Jail's mental health professional, Mary Tudor. Tudor explained that neither she nor her colleagues perform competency evaluations under chapter 10.77 RCW. Nonetheless, the trial court allowed Tudor to read a colleague's evaluation of Calhoun based on a 30 to 45 minute observation. Tudor testified that her colleague reported:
Mr. Calhoun does have some issues. One is some personality issues, and another is that he's extremely anxious about the outcome of this case. He's very concerned for his future, and the combination of these two things have made him very distrustful of his attorney, present and past. There was nothing indicating any psychotic symptoms; nothing indicating that we would have him submit to one of our psychiatrists to take medication. He is housed in general population and there have been no indications from uniform staff that he's presenting with mental health issues. There have been a number of write-ups for behavioral things, but nothing they thought were stemming from an inability to understand or get along with the rules of the jail.
RP (Apr. 27, 2006) at 40.
Following this testimony, the trial court engaged in the following colloquy with Calhoun:
THE COURT:Mr. Calhoun, you understand that you're being charged in this case with some very serious charges: Robbery in the first degree, assault in the second degree in two counts, and burglary in the first degree. Do you understand that?
CALHOUN: Yes, Your Honor, I am aware.
THE COURT:And you understand that those are serious felony charges?
CALHOUN: Extremely.
THE COURT:And do you understand that my role as the judge is that I'm not on anybody's side in this case? My job is to make sure that you and Mr. Frazier and Ms. Banks get a fair trial.
CALHOUN: Findings of Fact and Conclusions of Law, yes, sir.
THE COURT:Okay. Well, beyond that, my job is to make sure that all of the defendants in this case and the State, all of the parties, get a fair trial, that's my role. Do you understand that?
CALHOUN: Yes, sir.
THE COURT:And do you understand that — what the prosecutor's role is?
CALHOUN: Yes . . . The prosecutor's role is to prosecute this case, to find evidence and to bring in his witnesses, to present his case to the jury and to the judge. And upon his evidence presented, to more or less find — persuade the jury by deduction and induction to find a guilty verdict against me and the co-defendants . . .
THE COURT:Okay. And do you understand what the role of the defense attorneys are in general? . . .
CALHOUN: To assist in preparing an adequate defense for their defendants — for their clients and to set up an effective defense so that they may be able to controvert or more or less refute the allegations of [the prosecutor].
RP (Apr. 27, 2006) at 42-43.
The trial court then found that Calhoun was competent based on the colloquy, Tudor's report, and Calhoun's pro se pleadings. Specifically, the trial court noted that it believed Calhoun had attempted to become a "jail-house lawyer" and that his confusion appeared to stem from misunderstanding legal terms rather than an inability to understand the proceedings. RP (Apr. 27, 2006) at 44. The trial court concluded that Calhoun satisfied the two-part test under State v. Lord in that he understood the charges against him and he was capable of assisting his attorney.
State v. Lord, 117 Wn.2d 829, 900, 822 P.2d 177 (1991).
B. Show-Up Identification
Calhoun and Frazier moved to suppress the show-up identification as unduly suggestive and unreliable. In support of the motion, the parties agreed to a stipulated record based on the police reports. Neither Frazier nor Calhoun requested or offered live testimony.
Frazier and Calhoun argued that (1) Rolan and Isha did not have sufficient time to see the assailants at the apartment; (2) Rolan and Isha saw booking photos on the police screen while they were being escorted to the traffic stop; (3) the police conducted the identification in front of the same red truck Isha observed when she left her apartment; and (4) Isha and Rolan were hesitant about the identifications until they saw Banks.
Isha and Banks were acquaintances and Isha knew that Frazier was Banks's boyfriend.
The trial court denied the motion based on the following findings of fact: (1) the victims were alert during the robbery and had face-to-face contact with their assailants for several minutes; (2) there was sufficient lighting in the apartment to make an identification and to distinguish facial features; (3) the victims' attention was fixed on the robbers as no weapons were brandished that might have distracted them; (4) the robbers' bandanas did not cover their eyes or hair, and the victims could describe the robbers' weight, size, and clothing; (4) Isha was able to correctly identify the red truck and its license plate number; and (5) Rolan and Isha's descriptions of the robbers matched Calhoun and Frazier before the show-up occurred.
Finally, the trial court noted that Isha and Rolan's level of certainty at the time of the identification and the short time lapse between the event and the identification demonstrated that the identifications were reliable under the totality of the circumstances.
IV. Trial
At trial, the three victims testified about the robbery at their home. Isha and Rolan again identified Frazier and Calhoun as the two men who came through their window and took their safe. In addition, Officer Martin testified that he stopped Frazier and Calhoun in a red truck with license plates matching the description from Isha's 911 call.
During trial, Calhoun made several outbursts and he attempted to file a bar complaint against his attorney with the trial court. The trial court declined to listen to Calhoun and the jury was seated. Calhoun then stated in front of the jury that he was firing his attorney for denying his "constitutional rights." RP (May 8, 2006) at 276. Calhoun stated, "I object to this man representing me. He is lying. He will not uphold my rights." RP (May 8, 2006) at 277. After the outburst, Frazier moved for a mistrial, or in the alternative, to sever his trial from Calhoun's. The trial court denied both motions and instructed the jury to disregard Calhoun's statements.
Calhoun also filed an affidavit of prejudice and a petition for an order disqualifying the trial court judge. He accused the trial judge of treason and of violating his constitutional rights. The trial court denied the motion as untimely and unwarranted.
Additionally, Calhoun filed a pleading with the trial court indicating that all of the State's witnesses had lied and perjured themselves.
Calhoun chose to testify. When asked to swear under oath, Calhoun refused and stated "[p]ursuant to Article 1, Section 6 of the Washington State Constitution . . . which is most binding upon my conscience . . . Matthew, Chapter 5, Verses 36 and 37, I will let . . . My yes mean yes and my no mean no, because anything more than means is from the evil one." RP (May 11, 2006) at 459. At this point, defense counsel unsuccessfully renewed his request for a competency evaluation. Calhoun testified that he did not participate in the robbery. He explained that Banks picked him up in the truck and that they were pulled over right when they were about to pick up Frazier.
The State and Calhoun engaged in a very contentious cross-examination. When the prosecutor asked Calhoun if he agreed with his attorney's statement that it was undisputed that someone robbed Isha, Celia, and Rolan, Calhoun responded, "I don't agree with nothing that man says because he's not my attorney. He's been lying the whole time trying to keep the whole story from you people." RP (May 11, 2006) at 474. The trial court excused the jury and warned Calhoun that any further outburst would result in more security measures or potentially a stun belt. When Calhoun finished testifying, he turned to the jury and announced, "Ladies and gentlemen of the jury, I'd like to inform you that . . . he'll shock me with [a] shocker. He told me he would shock me with a shocker because he does not want you to know the truth." RP (May 11, 2006) at 499-500.
V. Jury Instructions
Before closing arguments, the parties disputed the proper accomplice liability instructions. The State asked the trial court to supplement the definition of an accomplice in an instruction that read:
If you are convinced that both defendants participated in a crime or crimes charged in this case and that the crime or crimes have been proven beyond a reasonable doubt, you need not determine which defendant was an accomplice and which was principal.
Clerk's Papers I (CP I) at 90.
There are two sets of clerk's papers — one for Frazier and one for Calhoun. To avoid confusion, we will refer to Calhoun's as CP I and Frazier's as CP II.
The defense objected to the instruction, arguing that it was both confusing and unnecessary because the to-convict instructions already stated that the jury must find that either the defendant or an accomplice committed the crime. The State responded that the instruction was necessary to inform the jury that they need not be unanimous as to who was the principal and who was the accomplice. In other words, if the jury was unanimous that Rolan was assaulted, both Frazier and Calhoun should be convicted so long as all the jurors agreed that both of them were either the principal assailant or an accomplice in the assault. The trial court agreed with the State and allowed the instruction.
The trial court gave an additional instruction that the jury "must separately decide each count charged against each defendant. [The] verdict on one count as to one defendant should not control your verdict on any other count or as to any other defendant." CP I at 88. The jury found Frazier and Calhoun guilty of first degree robbery, first degree burglary, and two counts of second degree assault.
VI. Sentencing
At sentencing, the State presented evidence that Frazier had five prior California convictions. Frazier's defense counsel argued that those convictions washed out but that it did not matter because Frazier's offender score, even without the previous convictions, would be nine. Neither Calhoun nor Frazier argued to the trial court that the robbery and assaults constituted the same criminal conduct or that convictions for both the assaults and the robbery violated their constitutional protection against double jeopardy.
ANALYSIS
I. Identification
Calhoun and Frazier both argue that the trial court erred in allowing evidence of the original "show-up" identification. The United States Supreme Court has noted the due process concerns surrounding eyewitness identifications. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Courts have long condemned the police practice of using single-defendant show-up identifications because the very act of showing only one suspect infers that the police have already narrowed their attention to that particular person. Stovall, 388 U.S. at 302; State v. Hanson, 46 Wn. App. 656, 666, 731 P.2d 1140 (1987). However, show-up identifications are not per se unconstitutional, and Washington courts recognize that the procedure is a legitimate part of a prompt search for a suspect shortly after the commission of a crime. State v. Springfield, 28 Wn. App. 446, 447, 624 P.2d 208 (1981).
Even if a defendant shows that an identification procedure is impermissibly suggestive, a trial court may admit the evidence if the identification is still reliable. State v. Vickers, 107 Wn. App. 960, 967 n. 10, 29 P.3d 752 (2001). The trial court considers the following factors in assessing reliability: (1) the witnesses' opportunity to view the perpetrator during the crime, (2) the witnesses' degree of attention, (3) the accuracy of prior witness descriptions, (4) the witnesses' certainty at the time of identification, and (5) the length of time between the crime and identification. State v. Barker, 103 Wn. App. 893, 905, 14 P.3d 863 (2000). The trial court must make a factual finding regarding each factor, and we review the findings to determine whether substantial evidence supports the findings. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
As a preliminary matter, Calhoun and Frazier challenge some of the trial court's findings because they are contrary to the witness trial testimony. As the State correctly notes, however, the suppression hearing was held on a stipulated record, and thus the parties and the appellate court are bound by that record. State ex. rel. Carroll v. Gatter, 43 Wn.2d 153, 155, 260 P.2d 360 (1953); Glen Park Assocs., LLC v. Dep't of Revenue, 119 Wn. App. 481, 487, 82 P.3d 664 (2003). Under these circumstances, we do not consider inconsistencies between the trial court's findings and subsequent trial testimony.
The State concedes that the show-up identification here was impermissibly suggestive. However, it argues that the trial court was correct to admit evidence of the show up during the trial because the identification was reliable despite the circumstances.
We must determine whether substantial evidence supports the trial court's finding of reliability. Hill, 123 Wn.2d at 647. In Brown, Division Three of this court found that an identification procedure satisfied the reliability factors when the witness saw the suspect from 30 to 40 feet away for approximately 30 seconds. The witness was accurate in his description of the suspect's height, race, and the length and color of his hair. Finally, the witness was very confident of his identification. State v. Brown, 128 Wn. App. 307, 313, 116 P.3d 400 (2005); compare State v. Traweek, 43 Wn. App. 99, 104, 715 P.2d 1148 (1986) (suggestive identification was still reliable when the witness was immediately suspicious of the defendants, the witness observed the defendants closely in a well lit store, and the witness subsequently gave an accurate description and picked the defendant from a lineup within days of the incident), with State v. McDonald, 40 Wn. App. 743, 747, 700 P.2d 327 (1985) (suggestive identification was unreliable when the witness saw the defendant for only several minutes, the initial description of the defendant was inaccurate, and the witness chose a person other than the defendant out of a lineup).
The facts of this case are analogous to Brown. The trial court found that (1) the witnesses attentively watched the suspects for several minutes under sufficient lighting; (2) the robbers did not possess weapons to distract the witnesses; (3) the witnesses gave accurate descriptions of the robbers' eyes, hair, weight, size, race, and clothing; (4) Isha was able to correctly identify the red truck and the license plate number; and (5) Rolan and Isha were confident in their identification of Calhoun and Frazier. The stipulated record supports each of these findings, and we uphold the trial court's decision to admit evidence of the identification.
It is insignificant that the trial court included some trial testimony in the findings of fact and conclusions of law because the trial court's oral ruling was made before trial based on the stipulated facts.
Finally, it bears noting that sufficient evidence supports the conviction even without the pretrial identification. Calhoun and Frazier do not contend that the pretrial identification tainted the subsequent in-court identification by the victims. Thus, the admission of the pretrial identification is merely cumulative evidence. State v. Hilliard, 89 Wn.2d 430, 439, 573 P.2d 22 (1977) (suggestibility of pretrial identification irrelevant if in-court identification has independent origin). Moreover, in addition to the victim's identification of Calhoun and Frazier, the record reveals both direct and circumstantial evidence linking Calhoun and Frazier to the robbery. Specifically, it is undisputed that (1) the police arrested Calhoun and Frazier in a red truck matching the license plate number Isha provided and (2) Isha and Celia's safe was located during the traffic stop. The defense did not offer any theory as to how the safe ended up in the red truck Calhoun and Frazier were driving. Therefore, even if the trial court erroneously admitted the identification, any error would likely be harmless.
II. Competency
Both the Due Process clause of the United States Constitution and RCW 10.77.050 forbid a criminal trial of an incompetent defendant. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); In re Pers. Restraint of Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001). In Washington, a defendant is competent if he is capable of understanding the nature of the proceedings and charges against him and is capable of assisting in his own defense. RCW 10.77.010(14); State v. Lord, 117 Wn.2d 829, 900, 822 P.2d 177 (1991). The competency standard is the same whether the defendant is pleading guilty, waiving right to counsel, or standing trial. Fleming, 142 Wn.2d at 862. When an evidentiary basis exists that creates doubt regarding the defendant's competency to stand trial, "then due process requires that the trial court resolve that doubt." State v. Johnston, 84 Wn.2d 572, 576, 527 P.2d 1310 (1974) (quoting State v. Peterson, 90 Wash. 479, 482, 156 P. 542 (1916). RCW 10.77.060(1) requires that a competency hearing be held "[w]henever a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt his or her competency." Lord, 117 Wn.2d at 901. Because Calhoun did not raise an insanity defense, "a hearing is required only if the court makes a threshold determination that there is reason to doubt the defendant's competency." Lord, 117 Wn.2d at 901.
"[O]nce there is a reason to doubt a defendant's competency," a competency hearing is mandatory and the court must order a competency evaluation. City of Seattle v. Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985). Filing a motion to determine competency does not constitute sufficient doubt. Lord, 117 Wn.2d at 901. It is within the trial court's discretion to determine whether a competency examination is necessary. Fleming, 142 Wn.2d at 863. Thus, we will not find error in a trial court's decision not to order a competency evaluation absent a manifest abuse of discretion. Lord, 117 Wn.2d at 901, 903. Abuse of discretion occurs when the trial court's decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). If there is no obvious reason to doubt the defendant's competency, then the threshold burden has not been met and the trial court is not required to conduct a competency hearing. Lord, 117 Wn.2d at 901.
A trial court should consider appropriate factors when determining whether a defendant's competency is in doubt. It may consider the "defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel." Fleming, 142 Wn.2d at 863 (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)). The defendant should be able to communicate rationally with counsel. State v. Harris 114 Wn.2d 419, 430, 789 P.2d 60 (1990). In addition, the trial court should give considerable weight to defense counsel's opinion regarding his client's competency and ability to assist in the defense. Lord, 117 Wn.2d at 901 (citing Gordon, 39 Wn. App. at 442).
The requirement that the defendant have the ability to understand the proceedings against him is satisfied if the defendant "understands that there is a judge in the courtroom, that a prosecutor will try to convict him of a criminal charge, and that he has a lawyer who will try to help him." State v. Ortiz, 104 Wn.2d 479, 482-83, 706 P.2d 1069 (1985). Another consideration is whether the defendant has the ability to recall past facts: "the defendant's ability `to relate past events which would be useful in assisting his attorney' in whatever defense counsel decides is appropriate is an important consideration in determining his competency to stand trial." Harris 114 Wn.2d at 428 (quoting Ortiz, 104 Wn.2d at 483). The defendant cannot be found incompetent, however, merely because he is unable to suggest trial strategies or choose among alternative defenses. Ortiz, 104 Wn.2d at 483-84 (distinguishing the more stringent competency requirement for waiving the insanity defense that was established in State v. Jones, 99 Wn.2d 735, 664 P.2d 1216 (1983)). Overall, a defendant's ability to assist his counsel and understand the nature of the charges is a minimal requirement. See Harris, 114 Wn.2d at 428-30 (noting decisions where defendants have been competent even though they had poor memories, were schizophrenic, suffered hallucinations, or had minimal brain damage).
Here, before trial, Calhoun's defense counsel noted Calhoun's extremely disruptive behavior, his difficulty in working with defense counsel, as well as his insistence on using the UCC and maritime law to construct his defense. During trial, Calhoun continued to act inappropriately in court by attempting to fire his attorney and openly accusing the trial judge of treason.
There is no dispute that Calhoun's behavior was extremely inappropriate and that his unusual view of various legal concepts resulted in major obstacles for defense counsel. However the trial court engaged Calhoun in a colloquy that demonstrated that Calhoun could articulate and understand the nature of the charges, as well as the roles of the judge, prosecutor, and defense counsel. While some of Calhoun's answers to the trial court's questions were imperfect, he responded coherently. In addition, the trial court heard Tudor's report stating that Calhoun did not exhibit signs of a mental impairment, but that his behavior resulted from his anxiety over the charges. While Tudor was not qualified to give an opinion regarding competency, the trial court did not err in considering her report. See Harris, 114 Wn.2d at 429 (citing with approval White v. Estelle, 669 F.2d 973 (5th Cir. 1982) where a trial court relied on the lay testimony of the sheriff and jailers that the defendant behaved and communicated similarly to other prisoners).
We hold that the trial court did not abuse its discretion when it found that Calhoun understood the nature of the charges and had the ability to rationally assist his defense counsel.
III. Severance/Mistrial
Frazier argues that the trial court abused its discretion in failing to sever his trial from Calhoun's, or in the alternative, grant a mistrial because Calhoun's inappropriate behavior and alleged incompetency prejudiced his right to a fair trial. This argument fails.
We review a trial court's decision regarding severance for abuse of discretion and will not overturn the trial court absent the defendant demonstrating specific prejudice. State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982). Our review of a trial court's ruling on a mistrial is similar. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). Under CrR 4.4(c)(2)(ii), a trial court may grant a severance of defendants during trial if "it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant." Washington courts disfavor separate trials for multiple defendants and the defendant seeking a severance must show that a joint trial is so manifestly prejudicial as to outweigh the court's concern for judicial economy. State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991). Frazier moved for a severance and/or mistrial partway through the trial following one of Calhoun's outbursts. The trial court denied the motion, gave a curative instruction, and later provided a jury instruction that one defendant's guilt could not be imputed to the other.
Washington courts have not addressed whether a co-defendant's behavior warrants severance; thus, it is helpful to turn to other jurisdictions that have analyzed trial courts' discretion in this context. See e.g., United States v. Marshall, 458 F.2d 446, 448 (2d Cir. 1972) (no severance required when a co-defendant hurled obscenities at witnesses, the prosecutor, and the trial judge, threw furniture, and during closing arguments cut his wrists and tongue with a razor blade); United States v. Bamberger, 456 F.2d 1119, 1127-28 (3d Cir. 1972), cert. denied sub nom., Crapps v. United States, 406 U.S. 969, 92 S. Ct. 2424, 32 L. Ed. 2d 668 (1972) (no severance after a co-defendant called witnesses liars, made derogatory comments to the trial judge, interrupted witness testimony, and swallowed one of the government's exhibits); State v. McGuire, 254 S.E.2d 165, 169 (N.C. 1979) (no severance when a co-defendant called witnesses liars, and spoke to the jury when it exited, saying "Good-bye girl" and "Keep cool. Peace!"); State v. Zwicker, 164 N.W.2d 512, 517 (Wis. 1969) (no severance for a co-defendant's use of obscenities).
It is undisputed that Calhoun's behavior was inappropriate and was undoubtedly disruptive. The trial court addressed this issue by giving a curative instruction as well as a jury instruction that Calhoun's behavior did not infer wrongdoing by Frazier. See State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994) (appellate courts presume a jury follows proper instructions). Calhoun's behavior was arguably much less disruptive than in the cases cited above. Similarly, we hold that the trial court did not abuse its discretion when it denied Frazier's motion for a severance or mistrial.
IV. Jury Instructions
Calhoun and Frazier both assign error to the trial court's jury instruction 7, arguing that the instruction relieved the State of its burden to prove every element of the crimes charged beyond a reasonable doubt. We review challenged jury instructions de novo. State v. Scherz, 107 Wn. App. 427, 431, 27 P.3d 252 (2001). Jury instructions are proper when they permit the parties to argue their case theories, do not mislead the jury, and properly inform the jury of the applicable law. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980).
Jury instruction 7 defined accomplice liability. The instruction mirrored Washington Pattern Jury Instruction: Criminal 10.51, at 136 (2005) (WPIC) modified by the State's proposed instruction 7 which stated:
A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of the crime.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
WPIC 10.51 at 136.
If you are convinced that both defendants participated in a crime or crimes charged in this case and that the crime or crimes have been proven beyond a reasonable doubt, you need not determine which defendant was an accomplice and which was principal.
CP I at 90.
Calhoun and Frazier argue that the instruction was improper because there was contradictory testimony at trial about the identity of which suspect committed which acts within the apartment. Calhoun and Frazier argue that this instruction solved the State's evidentiary issue because the jury could convict as long as it found that Calhoun and Frazier participated in some undefined manner and that someone committed a crime.
Calhoun and Frazier's arguments are unpersuasive. First, the law of accomplice liability does not require the State to prove which participant acted as the principal and which participant acted as an accomplice. See State v. McDonald, 138 Wn.2d 680, 688, 981 P.2d 443 (1999). Second, jury instructions involving accomplices do not require that the defendant had "specific knowledge of every element of the crime committed by the principal, provided [that] he has general knowledge of that specific crime." State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 717 (2000).
A plain reading of the instruction demonstrates that if the jury found a defendant to be an accomplice, it had to find that the defendant participated in the specific crime and that someone committed the crime beyond a reasonable doubt. In addition, this instruction did not exist in a vacuum but, rather, followed an explicit definition of what it means to be an accomplice, i.e., to participate in the crime. Finally, the to-convict instructions for each count instructed the jury that it must find that the defendant, or an accomplice, committed each element of the crime beyond a reasonable doubt.
Instruction 7, while somewhat redundant given the other instructions, was not a misstatement of the law of accomplice liability, and thus the trial court did not err.
V. Double Jeopardy
Calhoun and Frazier also argue that their convictions for first degree robbery and two counts of second degree assault violate double jeopardy. The State concedes that the robbery and the assault of Celia merge, but the State argues that the robbery and the assault on Rolan do not merge because the crime had an independent purpose.
In State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005), the Washington Supreme Court addressed the relationship between first degree robbery and second degree assault in relation to double jeopardy. It held that when a second degree assault elevates robbery to the first degree, "a case by case approach is required to determine whether first degree robbery and second degree assault are the same for double jeopardy purposes." Freeman, 153 Wn.2d at 780. The court ultimately concluded that, generally, the assault will merge with the robbery unless the assault has an independent purpose or effect. Freeman, 153 Wn.2d at 778-80.
The State relies on State v. Wade, 133 Wn. App. 855, 138 P.3d 168 (2006), to argue that here, a first degree robbery and second degree assault do not merge. In Wade, a jury convicted a defendant who unlawfully entered a home to obtain money and gain information about another individual. The defendant first clubbed one victim in an effort to obtain information about the money and the individual. The defendant later obtained what he was after, returned, and pointed a gun at the same victim demanding his money and jewelry. In upholding the conviction for both the robbery and the assault, the appellate court concluded that the defendant committed the initial assault in an effort to obtain information. Therefore, the assault had an independent purpose and design from taking the victim's money and jewelry. Wade, 133 Wn. App. at 872; see also State v. Prater, 30 Wn. App. 512, 635 P.2d 1104 (1981) (no merger when one defendant went to look for a safe and the co-defendant assaulted a hostage who was not located near the safe).
The State argues that Frazier and Calhoun assaulted Rolan after he ran away from them and, thus, the purpose was not part of the robbery but, rather, to prevent Rolan from fleeing, obtaining a weapon, or calling for help. While this argument has some merit, the evidence at trial, as well as the jury instructions, do not support the State's position. At trial, Rolan testified that as soon as the men came into the apartment, one came right toward him, struck him in the head, and asked where the safe was. There was no evidence that Calhoun and Frazier sought to prevent Rolan from escaping or calling for help. Moreover, the State's closing argument links the assault on Rolan directly to the robbery, not to an independent purpose. Finally, the to-convict jury instruction for the second degree assault told the jury that they had to find that "[t]he assault [on Rolan Kimbrough] was committed with [the] intent to commit [R]obbery or Theft in the Second Degree." CP II at 59.
Following supplemental briefing, we are persuaded that, in some cases, multiple counts of second degree assault may not merge with a first degree robbery or theft charge. This, however, is not one of those cases. There simply was no basis, other than the robbery, to charge Calhoun and Frazier with second degree assault on Rolan. Neither the trial testimony, the State's closing argument, nor the jury instructions refer or indicate to an independent purpose or design that would separate the robbery from the assault on Rolan.
The State argues that merging both assaults with the robbery conviction allows Calhoun and Frazier to receive a "free crime." Resp't Supp. Br. at 7. However, at most, the assault on Rolan would likely only be fourth degree assault. This is because we can find no case law, nor statute, permitting the State to elevate multiple simple assaults to felonies based on a single robbery. We hold that both assaults merge with the first degree robbery conviction.
VI. Same Criminal Conduct/Offender Score
Frazier and Calhoun argue for the first time on appeal that the first degree robbery and the second degree assault constitute the same criminal conduct for sentencing. Additionally, Frazier argues that his trial counsel erred when he erroneously stipulated to Frazier's offender score being nine. The State disagrees with both of these arguments, but contends that the issue is moot because the trial court will have to resentence Calhoun and Frazier because of the double jeopardy issue. Because we find the second degree assault on Rolan merges with the first degree robbery, the same criminal conduct issue becomes entirely moot. The sentencing court must conduct a new sentencing hearing that will address Frazier's offender score and determine if Frazier's previous California convictions wash out.
VII. Ineffective Assistance of Counsel
In their SAGs, both Frazier and Calhoun assert they were deprived of their constitutional right to effective assistance of counsel.
A. Standard of Review
To show ineffective assistance of counsel, a defendant must demonstrate that his counsel's representation was deficient and that the deficiency prejudiced the trial's outcome. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Prejudice results where there is a reasonable probability that, but for counsel's deficient performance, the outcome would have differed. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
We presume that counsel provided competent and adequate representation and reviews performance in light of the entire record. Lord, 117 Wn.2d at 883. Counsel's representation is deficient only if it falls below an objective standard of performance. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). But that is not the case here.
B. Effective Assistance
1. Calhoun
Calhoun argues that his counsel was ineffective because of his inability to work with his third counsel as well as his counsel's high caseload. Calhoun's claim mainly relies on a series of counsel's purported extrajudicial statements but because these facts are not part of the record on appeal, we cannot evaluate Calhoun's arguments. Matters not in the record will not be considered on appeal. RAP 9.2(b).
Additionally, the record demonstrates that Calhoun's counsel made numerous pretrial motions, including a request for a competency evaluation, as well as a motion to suppress identification. While these motions were unsuccessful, they demonstrate counsel's zealous advocacy in a less-than-ideal working relationship. Moreover, the record reflects that counsel appeared well-prepared to cross-examine witnesses, argue jury instructions, and present a well-reasoned closing argument. Calhoun has failed to show how his counsel's representation was ineffective.
2. Frazier
Frazier assigns error to his counsel's failure to (1) adequately investigate, (2) provide an opening statement, (3) properly cross-examine, and (4) play the victim's 911 tape. These arguments are unpersuasive.
First, counsel's decisions to forgo an opening statement and to decline playing the 911 tape appear to be legitimate tactical decisions and we will not reverse based on counsel's strategy. McFarland, 127 Wn.2d at 336. The same is also true for counsel's strategy for cross-examination. Second, while Frazier claims his counsel did not sufficiently investigate the crime, Frazier fails to demonstrate how further investigation would have resulted in exculpatory evidence. Because he cannot point to any prejudice, his ineffective assistance of counsel argument fails.
VIII. Miranda
Frazier also argues in his SAG that his rights under Miranda v. Arizona, were violated. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Because any statements Frazier might have made to the police after arrest were not admitted at trial, Frazier cannot establish error.
IX. Speedy Trial
In his SAG, Calhoun argues a violation of his right to a speedy trial. Washington's time-for-trial rule, CrR 3.3, generally requires the State to begin an incarcerated criminal defendant's trial within 60 days of arraignment; if not, the trial court will dismiss the case with prejudice. CrR 3.3(b)(1). There are, however, exceptions to this rule. The decision to grant or to deny a motion for a continuance rests within the trial court's sound discretion, which we will not disturb absent "a clear showing" that the trial court's decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting Junker, 79 Wn.2d at 26).
Here, the record demonstrates that the first trial date was August 23, 2005, but the defense sought a continuance for further investigation. Though Calhoun refused to sign the motion for continuance, this was a defense motion for a continuance and it does not count in the 60-day time for trial. State v. Greene, 49 Wn. App. 49, 58, 742 P.2d 152 (1987). The State sought a continuance on two occasions, both times because the assigned prosecutor was in trial on another case. Granting a continuance in this situation is well within the trial court's discretion.
Calhoun was responsible for the remaining continuance motions, which directly resulted from his contentious relationship with his first two attorneys. Because Calhoun or Calhoun's counsel sought these continuances, they do not count as time accrued under CrR 3.3. Greene, 49 Wn. App. at 58.
X. Prosecutorial and Judicial Misconduct
Calhoun also contends the prosecutor and the trial judge committed misconduct. To obtain reversal of a conviction on the basis of prosecutorial misconduct, a defendant must show that the prosecutor's conduct was improper and that the conduct had a prejudicial effect, which means there must be a substantial likelihood the conduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. Hoffman, 116 Wn.2d at 93.
Calhoun alleges the prosecutor abdicated his duty by allowing the police to return the safe to Celia, Isha, and Rolan. In addition, Calhoun argues that the prosecutor improperly commented on witness credibility during closing argument. As to the first issue, Calhoun fails to explain how the prosecutor had any control over the police actions on the night of the arrest. On the issue of commenting on testimony, the record reflects that the prosecutor did not offer a personal opinion on Calhoun's credibility. Rather, counsel compared Calhoun's testimony with severely contradictory evidence at trial. This type of credibility analysis is permissible during closing arguments when parties offer different narratives. See State v. Wright, 76 Wn. App. 811, 818, 888 P.2d 1214 (1995). Thus, Calhoun fails to establish that the prosecutor's conduct was improper, let alone prejudicial.
The same standard applies to his judicial misconduct claim, where Calhoun contends that the trial court "administere[d] his own capricious unchecked despotic Judicial decisions" in a "partisan attitude of fascism." SAG at 20. A review of the record demonstrates that the trial court conducted itself professionally and ensured that Calhoun received a fair trial. Because Calhoun fails to meet his burden, we need not further discuss these arguments.
We affirm Calhoun and Frazier's first degree burglary and first degree robbery convictions but reverse both second degree assault convictions and remand to the trial court for resentencing. Frazier can reargue his offender score and criminal conduct claims at resentencing. We need not address them here.
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.
HOUGHTON, J. and BRIDGEWATER, J. concur.