Opinion
No. 34748-2-II.
August 7, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-1-01576-1, James E. Warme, J., entered April 27, 2006.
Affirmed in part and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
A jury convicted Joshua Tucker Calkins of one count of first degree robbery with a deadly weapon for robbing a Denny's restaurant in Kelso, Washington. On appeal, he contends that the judgment and sentence is inconsistent with the trial court's oral rulings and that the prosecutor's misconduct requires that he be granted a new trial. In a pro se Statement of Additional Grounds (SAG), Calkins raises numerous issues, including the ineffectiveness of his counsel and the trial court's instructions. We affirm Calkins's conviction but remand for correction of a clerical error in the judgment and sentence.
FACTS
After finishing his meal, a man approached Wilma Wixon at the cash register of the Denny's restaurant. Holding a partially hidden knife, he said, "If you want to avoid a bloodbath, give me the money in the till." 1 Report of Proceedings (RP) at 36. Wixon gave the man the money and he left the restaurant still holding the knife.
Wixon described the robber to responding police and said that he had a large tattoo on his right arm. Police collected the drinking glass and straw from the table where the robber had been sitting. They found latent fingerprints on the glass and a deoxyribonucleic acid (DNA) sample on the straw. The DNA was compared to the felons DNA database and found to match Calkins. The fingerprints on the glass matched those on Calkins's 1994 fingerprint card.
Kelso Police Detectives Michael Meier and Damon Blain interviewed Calkins who denied being in Kelso on the night of the robbery. Detectives noted that Calkins had a large tattoo on his upper left arm. Wixon selected two of six photos presented to her by the detectives. One of the photos she selected pictured Calkins. At trial, Wixon testified that, after she selected the two photos, the detectives told her that she had the tattoo on the wrong arm.
The jury convicted Calkins of one count of first degree robbery (Count I) with a deadly weapon enhancement. The trial court sentenced him to 112 months in confinement, which included a 24-month enhancement, plus 18 to 36 months in community custody. Calkins appeals.
On appeal, we address several issues including whether the judgment and sentence properly reflects the sentence imposed and whether the prosecutor's conduct entitles Calkins to a new trial. We also address numerous issues Calkins raised in his SAG, including the ineffectiveness of his counsel and the trial court's instructions.
DISCUSSION
Judgment and Sentence
Calkins and the State agree that the judgment and sentence does not accurately reflect the trial court's ruling at sentencing.
The trial court orally ruled that it could not find that Calkins was on community custody at the time he committed the robbery because that fact was not pleaded and proven to the jury. Contrary to the oral ruling, the judgment and sentence form provides that "defendant committed a current offense while on community placement" and added one point to Calkins's offender score. Clerk's Papers (CP) at 22. See former RCW 9.94A.525(17) (2002). Our Supreme Court recently ruled that whether an offender was on community custody at the time he committed the offense for which he is being sentenced is not a fact that must be pleaded and proven to the jury. State v. Jones, 159 Wn.2d 231, 149 P.3d 636 (2006), cert. denied, 127 S. Ct. 2066 (2007). But the State did not appeal and agreed to a remand for resentencing without the community custody point in Calkins's offender score. Under these circumstances, we acknowledge that the judgment and sentence is inconsistent with the trial court's unchallenged ruling and accordingly remand for resentencing.
Prosecutorial Misconduct
Through appellate counsel and in his SAG, Calkins contends that the deputy prosecutor committed prosecutorial misconduct by (1) referring to excluded evidence; (2) interjecting personal opinion; (3) inappropriately appealing to the passions of the jury while commenting on evidence outside the record; (4) mischaracterizing witness testimony; (5) vouching for witness's credibility; (6) disregarding and misrepresenting the evidence in closing arguments; and (7) amending the charging information without the proper notice. We disagree.
Here, Calkins did not object at trial to the errors he now asserts. If no objection is made at trial, a defendant cannot raise the issue of prosecutorial misconduct for the first time on appeal unless he proves that the misconduct was so flagrant and ill-intentioned that no curative instruction would have corrected the prejudice it created. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). A defendant cannot remain silent, speculate on a favorable verdict, and, when it is adverse, use the alleged misconduct to obtain a new trial on appeal. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). We will address each allegation of misconduct in turn under the flagrant and ill-intentioned standard of review.
A. Referring to Excluded Evidence
At trial, the prosecutor asked Forensic Scientist Jill Arwine where she had obtained the inked fingerprints she used in her analysis. Calkins objects to Arwine's reply that she had "obtained those [prints] from the criminal records division of the identification section." 2 RP at 177. At trial, defense counsel objected to her answer but declined the offer of a curative instruction because such an instruction would highlight the improper reference to Calkins's criminal history. But an instruction would have cured any prejudice, and Calkins cannot now claim he was prejudiced by the witness's improper reference to the criminal records division.
B. Misrepresenting Evidence in Closing Arguments
Calkins next takes issue with several of the prosecutor's statements during closing arguments, including: "the final count was testified to as being somewhere in the range of $300." 2 RP at 222. Calkins did not object to any of the statements he now challenges and, thus, waived his objection. Moreover, the dollar value of items taken is not an element of first degree robbery. RCW 9A.56.200. Calkins was not prejudiced by the prosecutor's misstatement regarding the amount of money he stole.
The trial court had previously excluded Jason Jensen's (the restaurant manager) testimony regarding his boss's hearsay estimate that $300 had been stolen. Jenson also testified that he estimated that about $250 was stolen.
Calkins also alleges that the prosecutor misrepresented or disregarded the evidence when he argued in closing that: (1) "good police investigation," and "some people, . . . ordinary evening" (2 RP at 221), "knows where Kelso is" implies evidence of guilt (2 RP at 226), and "armed robbery" indicates consciousness of guilt (2 RP at 227); (2) prosecutor referred to a "3 to 4 inch knife" without ever offering the actual knife or a replica (2 RP at 231); (3) prosecutor excused "blatant" police misconduct when he said, "[n]ow the defense is going to say that the police manipulated her into changing her story. They didn't. They went back to her and said, Hey, he has a tattoo on the other arm and she said over the course of thinking about it . . . I'm not sure" (2 RP at 229); and (4) "Jensen testified that the person driving the car was . . . Joshua Calkins" (2 RP at 244). However, Calkins did not object to any of these statements and they are not so flagrant or ill-intentioned that they could have prejudiced him. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Thus, we do not review them further.
C. Personal Opinion
Calkins now objects to the prosecutor's statement during closing argument that during the police interview the detectives told Calkins that "[w]e have excellent evidence that you were at the Kelso Denny's." 2 RP at 226. The trial court had earlier excluded Detective Meier's use of "excellent" when describing the DNA and fingerprint evidence because it was an impermissible opinion characterizing the evidence. Calkins did not object at trial and because an instruction could have cured any prejudice from the improper remark, but was not requested, this improper comment does not warrant reversal. State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961).
Alternatively, Calkins claims that the prosecutor improperly offered his own opinion in closing arguments. However, Calkins never objected to any of these statements at trial. See State v. McKenzie, 157 Wn.2d 44, 54, 134 P.3d 221 (2006) ("[p]rejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion") (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983)). Our review of the record shows that the prosecutor was arguing inferences from the evidence rather than interjecting his personal opinions. McKenzie, 157 Wn.2d at 54.
D. Appealing to Jury's Passions and Fears
Calkins next contends that because the State did not produce the weapon used during the robbery and instead relied on the testimony of the Denny's employees that the man who robbed the restaurant had a knife with a three-or four-inch blade, the evidence was insufficient to support the jury's finding that he was armed with a deadly weapon. Specifically, Calkins takes issue with the prosecutor's argument appealing to the jury's passions and fears: he argued that the jury could find that Calkins's knife was a deadly weapon because the knife
Arguments directed at a jury's passion or prejudice include "arguments intended to `incite feelings of fear, anger, and a desire for revenge' and arguments that are `irrelevant, irrational, and inflammatory . . . that prevent calm and dispassionate appraisal of the evidence.'" State v. Elledge, 144 Wn.2d 62, 85, 26 P.3d 271 (20b01).
is still capable of cutting somebody's throat. It is still capable of cutting a major artery. It is still capable of causing sufficient bleeding to bleed out.
Use your common sense. Use your experience. And when box cutters can be used to take down jumbo jets, we know what a deadly weapon is.
2 RP at 232 (emphasis added). Again, Calkins did not object to this statement at trial. Although we agree that the prosecutor's reference to box cutters bringing down jumbo jets was improperly designed to inflame the passion of the jury by referencing the destruction of the World Trade Center on September 11, 2001, the statement also analyzes the portion of the deadly weapon instruction referring to the manner in which an item may be used rather than the length of the blade. Thus, although unnecessarily inflammatory, this statement alone is insufficient to require a new trial.
Instruction No. 8 stated:
For the purposes of the "to convict" instruction, deadly weapon means any weapon, device, or instrument, which under the circumstances which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.
CP at 13.
E. Vouching for Witness's Credibility
Calkins next contends that it was misconduct for the prosecutor to state that Wixon "is being completely honest with you. . . . She hasn't been manipulated in any way." 2 RP at 230. But, in context, this statement was an inference drawn from the evidence, as to why the jury should believe one witness over the other and was offered to rebut the defense argument that the police investigation had tainted Wixon's testimony. See, e.g., State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996) (a prosecutor's closing argument may include inferences from the evidence). Calkins did not object. Moreover, the statement is not "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." State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (citing Gentry, 125 Wn.2d at 596), cert. denied, 523 U.S. 1008 (1998).
F. Amending Information Without Proper Notice
Calkins claims that the State tried to "ambush" him by amending the charging information
the day of the trial without providing proper notice. SAG at 15. An accused person must be informed of the criminal charge he is to meet at trial and cannot be tried for an offense not charged. Washington Const. art. I, § 22; State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). But here, the State orally moved to amend the information by replacing the word "and" with "and/or" in the following sentence: "and in the commission of said crime and in immediate flight therefrom." CP at 45, 46. The remaining charging language was identical and the crime the State alleged that Calkins had committed did not change. Defense counsel objected to the amendment only on the grounds that the motion to amend "normally" required a written motion with an opportunity to respond. The trial court granted the State's motion on condition that it provide a written amended information. The State provided the written amended information and Calkins made no further objections. We note also that it is proper to charge in the conjunctive (and) and prove in the disjunctive (or). State v. Dixon, 78 Wn.2d 796, 802-03, 479 P.2d 931 (1971). Thus, the trial court's elements instruction to the jury could properly contain "or" even though the information used the term "and." Calkins's claim that the State committed prosecutorial misconduct by amending the information immediately before trial violated his due process rights has no merit. State Misconduct (SAG)
Calkins next argues that the government engaged in two instances of misconduct when the police (1) failed to collect, test, and turn over to him exculpatory evidence — the Denny's order ticket allegedly left by the robber on the cash register during the robbery; and (2) engaged in bad faith when they attempted to influence and coach Wixon's testimony when the police told Wixon that she had the tattoo on the wrong arm.
Calkins's first argument refers to matters outside of the record and is beyond our ability to review. On appeal, we limit our review to issues contained in the record. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) ("a personal restraint petition [(PRP)] is the appropriate means of having the reviewing court consider matters outside the record"). If Calkins can provide to this court affidavits or other evidence showing that police investigated in bath faith, he can attach this evidence to a timely PRP. State v. Straka, 116 Wn.2d 859, 884, 810 P.2d 888 (1991) (ruling that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law") (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)).
Calkins's second argument regarding police telling Wixon that she described the tattoo as being on the wrong arm did not prejudice Calkins's case.
At trial, Wixon testified at length about seeing the tattoo on the robber's arm and admitted that she could not remember which arm was tattooed. The police statement was improper. But it did not change Wixon's testimony or, in light of other overwhelming evidence of the robber's identity, affect the outcome and is not grounds for reversal. Additional SAG Issues
Calkins raises several additional issues essentially seeking a reassessment of witness credibility and reweighing of the evidence: (1) the prosecutor's statement during the pretrial motion when the prosecutor said he had a "game plan" to shift the burden onto Calkins as well as the State intended to use improper tactics; (2) prosecutor lied to the trial court to allow prejudicial evidence to be admitted; (3) prosecutor called witnesses not on the witness list without proper notice to the defense; (4) prosecutor used "coached" testimony; (5) prosecutor's opening statements were misconduct; (6) the State denied Calkins access to a full and complete record because the jury selection and opening statements were not transcribed; (7) the State never presented the jury with his tattoo to allow the jury to compare it to the witness testimony; and (8) the State's case is "weak" causing it to resort to "improper tactics." Calkins does not argue that there was insufficient evidence to convict him. Instead, he presents an unsupported claim that the State resorted to misconduct so it could win its "weak case."
Calkins takes the prosecutor's arguments during motions in limine out of context. The prosecutor simply argued that Calkins's statements during the interview with police were evidence rather than burden shifting. The prosecutor did not "excuse his behavior in advance" (SAG at 7), as Calkins claims, when the prosecutor argued that the witness was a victim and the prosecutor should not be prohibited from calling her a victim.
The prosecutor merely summarized the evidence to the trial court during the pretrial motion. The prosecutor stated that the victim "ha[d] a 4-inch knife in her face, or at least — . . . [i]n the vicinity." 1 RP at 24.
This information is outside of the record. The prosecutor told the trial court that he faxed a copy of the witnesses' names and the summary of the statement. The trial court declined to order proof of the fax.
The trial court noted that there were no objections made during the opening statements.
Appellate courts do not weigh evidence or assess credibility. It is the sole province of the trier of fact to pass on the weight and credibility of evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). We defer to the trier of fact to resolve any conflicts in testimony and affirm on these grounds. State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964, review denied, 135 Wn.2d 1015 (1998). We will not substitute our judgment for that of a properly instructed jury with the opportunity to view the witnesses and decide the weight and credibility of the evidence of Calkins's guilt.
Trial Court Errors (SAG)
Calkins argues that the trial court erred when it: (1) failed to admonish the prosecutor for his various instances of misconduct; and (2) provided "weak, belated" curative instructions prior to deliberations and "skewed the jury's perceptions" with those instructions. SAG at 39 (emphasis omitted). We disagree.
A. "Weak" Curative Instructions
As discussed above, Calkins repeatedly failed to object to virtually all of the alleged misconduct he now challenges on appeal. Additionally, Calkins declined to request any curative instructions. A review of the record as submitted does not support Calkins's contention that the trial court gave "belated curative instructions just prior to deliberations." SAG at 39 (emphasis omitted). Calkins has again failed to meet his burden. Stenson, 132 Wn.2d at 719.
B. Unanimous Jury Instruction
Calkins further contends that the trial court "improperly and coercively influenced the jury's deliberations" when it instructed the jury that it must reach a unanimous verdict. SAG at 41 (emphasis omitted). Calkins further asserts that Washington Constitution article I, section 22, requiring unanimous jury verdicts in criminal cases, violates his right to have the jury render a "no verdict" under the United States Constitution. This argument is without merit.
Article I, section 22, provides:
In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases.
In Washington, a defendant may be convicted only when a unanimous jury concludes the criminal act charged in the information has been proved beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled in part by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). Here, the trial court's instructions did not coerce a verdict; rather, they accurately stated the law and protected Calkins's right to a unanimous jury verdict. Cf. State v. Boogaard, 90 Wn.2d 733, 740, 585 P.2d 789 (1978) (night duty judge's questioning pressured the minority jurors into changing their vote in order to comply with the judge's obvious desire that they quickly reach a unanimous verdict).
Ineffective Assistance of Counsel (SAG)
Calkins alleges that his trial counsel was ineffective because his trial counsel failed to: (1) obtain the order ticket left by the robber at the crime scene and did not question police about their failure to collect the ticket; and (2) object to the unanimous jury instruction. To establish ineffective assistance of counsel, Calkins must show (1) deficient performance upon review of the entire record and (2) a reasonable probability that, except for counsel's deficient performance, the result of the proceeding would have differed. McFarland, 127 Wn.2d at 334-35 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
As discussed above, there is no evidence in the record that policefailed to adequately investigate nor that the jury instructions were faulty. Accordingly, on this record, Calkins cannot show that his counsel performed deficiently.
Cumulative Error (SAG)
Calkins asserts that the cumulative error doctrine applies to his case warranting reversal of his conviction. Cumulative error may warrant reversal, even if each error standing alone would otherwise be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006) (citing State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000)), cert. denied, 127 S. Ct. 2986 (2007). Because there are not multiple errors to accumulate, this doctrine does not apply.
Accordingly, we affirm Calkins's conviction, but, based on the parties' stipulation, we remand the judgment and sentence for correction of Calkins's offender score to delete one community custody point and resentencing.
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.
BRIDGEWATER, J., VAN DEREN, A.C.J., concur.