Opinion
No. 48509-1-I.
Filed: November 20, 2003. PUBLISHED IN PART
Appeal from Superior Court of Snohomish County. Docket No: 00-1-00863-0. Judgment or order under review. Date filed: 04/23/2001.
Counsel for Appellant(s), Catherine Lynn Floit, Attorney at Law, P.O. Box 27713, Seattle, WA 98165.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Constance Mary Crawley, Attorney at Law, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Kimberley Carter appeals her felony murder conviction, arguing, inter alia, that the use of a faulty accomplice liability jury instruction necessitates a new trial. While the instruction was erroneous, the error was harmless beyond a reasonable doubt, in that the charge was felony murder. Although Ms. Carter was not personally present during the commission of the predicate crimes of burglary and robbery in the first degrees, the State proved beyond a reasonable doubt that she knowingly solicited, commanded, encouraged, or requested two other persons to commit them, and they did so. Therefore, Ms. Carter was a participant in the predicate felonies, and is liable for the death of Scott Donaldson, who was shot and killed by one of her confederates in the course of committing the crimes. When it comes to felony murder, the erroneous accomplice liability instruction here at issue is per se harmless, beyond a reasonable doubt. Accordingly, we affirm the judgment and sentence.
We treat the remainder of Ms. Carter's contentions on appeal, which we also find to be without merit, in the unpublished portion of this opinion.
FACTS
The Shooting Scott Donaldson owned a house in Everett, Washington, which he shared with four housemates: Jim Cason, Rachel Holmes, Devlin Ramsey, and Duncan Gibson. All of the residents used drugs except for Donaldson, and Gibson dealt drugs, as well. Donaldson objected to Gibson's drug dealing at the house, and so, on or about April 1, 2000, he asked Gibson to move out. Gibson had not done so before Donaldson was shot and killed by an armed intruder on April 4, 2000. Kimberly Carter knew all of the occupants at Donaldson's house. She and Jim Cason were friends, and she had previously sold marijuana to Rachel Holmes. Ms. Carter's mother lived two doors away from Donaldson's house, and Carter was a frequent visitor at Donaldson's home, as well as that of her mother. On a few of these visits, Carter took her boyfriend, Andrew Raymond, to Donaldson's house. On April 3, 2000, a birthday party was held at Donaldson's house for Kimberly Carter's father. Carter and other members of her family attended the party, as did Andrew Raymond.
The following day, Gibson, Ramsey, and `two Canadians' packed up and sold marijuana to a constant stream of people who came to Donaldson's house, and Carter drove Gibson and the two Canadians to various locations to make deliveries of marijuana to other purchasers. Late in the evening of April 4, 2000, two armed men entered Donaldson's house through the front door. Rachel Holmes and Jim Cason were eating dinner in the living room while watching television. Duncan Gibson was in his upstairs bedroom with Devlin Ramsey. Kimberly Carter's brother Joe and a woman named Jessica Losey were with Donaldson in his upstairs bedroom.
Holmes and Cason recognized one of the armed intruders, Andrew Raymond, as Kimberly Carter's boyfriend. They did not know the other intruder, whom they later described as a Mexican. He was subsequently identified as Albert Jaquez. Raymond pointed a black, medium sized handgun at Holmes and Cason. Jaquez was holding an assault rifle. Threatening to shoot, Raymond ordered Holmes and Cason to the floor, and they complied. Gibson, Losey, Ramsey, and Carter's brother Joe overheard the threat to shoot and fled the residence, down the staircase and out the back door. Donaldson remained upstairs. While Raymond started up the stairs, Jaquez poked Holmes and Cason with his gun and asked if they had any money, jewelry, or drugs. Cason could hear his room being ransacked upstairs, and he heard someone twice yell, `Get down on the floor.' He then heard gunshots, and footsteps running down the stairs and out the back door. Jaquez also fled.
Cason and Holmes ran upstairs, where they found Donaldson lying on the floor, curled up on his side. Donaldson subsequently died from gunshot wounds to his trunk and leg. Shortly after the shooting, Kimberly Carter gave Gibson inaccurate descriptions of the cars driven by the suspects, in order to protect Raymond and Jaquez. On April 6, 2000, Ms. Carter called Kevin Grover, the father of her two children, and told him that her boyfriend was involved in a murder, that she was wanted for questioning, and that she needed him to come pick up their children. When he arrived, Carter told him that she, Raymond, and Jaquez had gone to Donaldson's house, that she had knocked on the back door, and that she had `chickened out' and gone to her mother's house while the robbery took place.
She also told Grover that Raymond called her after the robbery and told her they had gotten away with the money and drugs, that Donaldson was shot when he did not lie down on the floor as ordered, and that `the guy they had actually gone in for' had escaped out the back door. Carter's Admissions to Police at the April 11 Interview On April 11, 2000, Everett police questioned Kimberly Carter. She told the detectives that on April 4 she drove Gibson and two Canadians around to do a couple of drug deliveries, in exchange for marijuana. After dropping Gibson off in Marysville, she called a cell phone number that Raymond had given her. A friend of Raymond's answered the phone, and she told this friend that Gibson had a large amount of marijuana and cash.
In response, the friend replied, `Damn, do you hear this, {Gibson's} got all this money . . . let's go jack this nigger.' Kimberly Carter also said that shortly thereafter, Jaquez and some of his friends came to her apartment and told her that they were going to `go rip {Gibson} off for his money and for the pot.' Carter said that she did not believe that they were serious, because Jaquez and his friends had joked before about robbing Gibson. Carter told police that she drove by herself to her mother's apartment in Everett on the night of April 4, and that she and her sister fled the area after hearing screaming coming from Donaldson's house. After parking at a nearby McDonalds restaurant, she walked back toward Donaldson's house to see what had happened. Along the way, she ran into Gibson, who told her that Donaldson had been shot.
Carter's Admissions to Police at the April 13 Interview
On April 13, 2000, during a second interview with the detectives, Kimberly Carter changed her statement, admitting that when she called the cell phone number Raymond had given her, she actually spoke with Raymond, rather than with an unidentified friend as earlier claimed. She further admitted that she told Raymond that Gibson had a large quantity of drugs and cash, and that they had discussed how they could set up the robbery by having her contact Gibson to order some marijuana, thus ensuring that he would be at Donaldson's residence when Raymond arrived to rob him. Although no mention of the use of guns was put into the interview report, one of the detectives subsequently testified that he remembered Kimberly Carter saying that guns would be used during the robbery.
At the trial, Ms. Carter interposed the statutory defense to felony murder, under which a defendant must prove four facts by a preponderance of the evidence, one of which is that she did not know that any other participant in the predicate felony was armed with a deadly weapon. See RCW 9A.32.030(1)(c). By its verdict, the jury clearly rejected the statutory defense.
Carter further acknowledged that, prior to the robbery, she met with Raymond at her Seattle residence and then went to her brother Joe's house to discuss the robbery plans further. At her brother's house, she asked Joe to make the call to Gibson to order some marijuana, which he apparently did. Joe then told her to go to her mother's house, where it would be safer, which she did. Ms. Carter told police that Joe, Raymond, and Jaquez drove to Everett to commit the robbery while Carter drove to her mother's home, where she remained while the robbery took place.
The Witness Tampering Everett detectives arrested Raymond after Jim Cason and Rachel Holmes identified Carter's boyfriend as one of the robbers. Sometime after the robbery, Holmes moved into Carter's Seattle apartment. Carter asked Holmes to change her story to state that Gibson had actually been Donaldson's shooter, and Holmes did so. She also asked Cason to change his story, be he refused. Some time later, after reading her horoscope, Holmes decided that the best thing to do was to return to her original version of the incident. Accordingly, she met with an Everett detective and wrote a statement summarizing the incident, and describing Raymond as Donaldson's shooter.
PROCEDURAL HISTORY
By amended information dated August 18, 2000, Carter was charged with one count of first-degree felony murder based on the predicate felonies of first degree robbery and first degree burglary. She was also charged with one count of tampering with a witness. After a CrR 3.5 hearing, the trial court admitted Carter's various statements to witnesses and to the detectives into evidence at the trial. On September 13, 2000, a jury convicted Kimberly Carter as charged. Ms. Carter's standard range was 310 to 393 months. The court sentenced her to serve 348 months for the felony murder conviction and a concurrent 8 months for the witness tampering conviction. And the court ordered community placement for Carter for `2 years or the period of earned early release, whichever is longer{.}' This appeal followed. Ms. Carter challenges her felony murder conviction and sentence.
ANALYSIS The Faulty Accomplice Liability Instruction
In order to be deemed an accomplice, an individual `must have acted with knowledge that he was promoting or facilitating the crime for which the individual was eventually charged,' rather than `any and all offenses' that may have been committed by the principal. State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000) (emphasis in original); RCW 9A.08.020(3). An accomplice need not have specific knowledge of every element of the crime committed by the principal; rather, the accomplice's `general knowledge of his coparticipant's substantive crime' suffices for accomplice liability. State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713 (2000). Here, the substantive crimes were the predicate felonies of robbery and burglary in the first degrees.
The accomplice liability instruction provided to Ms. Carter's jury stated:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, 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.
Instruction No. 8; CP 191 (emphasis added).
Substantially similar instructions were found to be defective by our Supreme Court in Roberts, 142 Wn.2d at 510-13, and Cronin, 142 Wn.2d at 572, 578-79. The co-defendants in Roberts and Cronin, who were tried separately, were each convicted of both felony murder in the first degree and premeditated murder in the first degree with aggravating factors. During his trial, Cronin's jury heard Cronin's statement to police that although he was present with Roberts during the commission of the predicate felonies of kidnapping and robbery, he was not present with Roberts when the victim was killed, in that he was moving the victim's car into position for purposes of the getaway. Cronin, 142 Wn.2d at 576-77.
On their respective appeals, both Cronin and Roberts won new trials on the premeditated murder charges, but their felony murder convictions were affirmed. See Roberts, 142 Wn.2d at 478, 534; Cronin, 142 Wn.2d at 582, 586. In neither case did the Supreme Court provide an analysis explaining why the erroneous accomplice liability instruction required reversal of the premeditated murder conviction, but did not affect the felony murder conviction.
In State v. Bolar, Wn. App., 74 P.3d 663 (2003) we provided that analysis. The accomplice liability instruction given at Bolar's trial was similar to the ones given in Cronin, Roberts, and here. Because Bolar was convicted only of felony murder, and not premeditated murder, we concluded that the erroneous accomplice liability instruction was harmless per se. 74 P.3d at 670. The State proved indisputably that Bolar was the actual shooter of the person killed in the course of a first degree burglary committed by Bolar and a confederate. We will not repeat the entire Bolar analysis here, and simply refer the interested reader to that decision.
Here, we will explain why the erroneous accomplice instruction remains harmless per se with respect to a felony murder conviction even where the defendant was not the shooter, and indeed, was not even present during the commission of the predicate felony or felonies, but only participated in planning them. Citing State v. Rice, 102 Wn.2d 120, 125, 683 P.2d 199 (1984), we said in Bolar that when it comes to felony murder standing alone, and where the evidence conclusively shows that all of the participants acted as principals in committing the predicate felony, an accomplice liability instruction is superfluous, for the felony murder statute itself establishes the complicity of both the killer and nonkiller participant in the homicide, as principals. Bolar, 74 P.3d at 669. Although technically superfluous, an accomplice liability instruction nevertheless provides a convenient means of explaining to the jury the concept of `participant liability' in felony murder trials where more than one participant was personally present during the commission of the predicate felony.
And in felony murder trials where, as here, the defendant was not personally present during the commission of the predicate felony, an accomplice liability instruction is probably essential to explaining the concept of `participant liability' to the jury. Thus, we did not intend to imply in Bolar that such an instruction should never be given during felony murder trials where more than one participant acted in the commission of the predicate felony. The superfluity of the accomplice liability instruction in Bolar was pointed out in order to illustrate the harmlessness of the error contained in the instruction, not to discourage the use of proper accomplice liability instructions in cases of felony murder.
As our Supreme Court explained in State v. Carothers, 84 Wn.2d 256, 264, 525 P.2d 731 (1974), disapproved on other grounds by State v. Harris, 102 Wn.2d 148, 153-54, 685 P.2d 584 (1984):
The Legislature has said that anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal, regardless of the degree or nature of his participation. Whether he holds the gun, holds the victim, keeps a lookout, stands by ready to help the assailant, or aids in some other way, he is a participant.
See also State v. Toomey, 38 Wn. App. 831, 840, 690 P.2d 1175 (1984) (defendant who planned a robbery with her confederate and helped lure the victim to the scene of the robbery, and then, by prearrangement with her confederate, left the scene before the robbery was committed, participated in the robbery and thus could not escape liability for felony murder when the confederate shot and killed the victim in the course of the robbery).
Here, the State proved that Ms. Carter was a participant in the first degree burglary and first degree robbery by proving beyond a reasonable doubt that she preplanned the commission of these predicate crimes, in conjunction with Raymond and Jaquez, who then carried them out while she waited nearby.
Outside the confines of felony murder, the flaw in the accomplice liability instructions used in Cronin, Roberts, and here, raises the concern that a jury could convict a defendant of the charged crime based on his or her complicity in some other crime than the one charged. In order to convict a defendant of premeditated murder, the State must prove that the defendant either (1) acted with premeditated intent in killing another person, or (2) had general knowledge that she was aiding in the commission of the crime of murder. See Cronin, 142 Wn.2d at 581-82. Thus, with respect to a charge of premeditated murder, it would not be sufficient to show that the defendant acted with general knowledge that she was aiding a burglary or a robbery, during the course of which a confederate, with premeditation, killed someone. But with respect to a charge of felony murder, which is a strict liability crime for which the only mens rea that need be shown is that necessary to prove the predicate felony, the State need only prove that the defendant acted with general knowledge that she was aiding a burglary or a robbery, during the course of which a confederate killed another person who was not a participant in the predicate crime or crimes. See Roberts, 142 Wn.2d at 511 n. 14.
In the case of felony murder, there is simply no other crime but the predicate felony that will support the murder charge, no matter how much additional criminal activity the defendant may have engaged in. This was made clear to Ms. Carter's jury by the `to convict' instruction for felony murder.:
The `to convict' instruction read:
To convict the defendant of the crime of First Degree Murder as alleged in Count 1 each of the following elements of the crime must be proved beyond a reasonable doubt: (1) On or about April 4, 2000 David Scott Donaldson was killed. (2) That the defendant or an accomplice was committing or attempting to commit (a) Robbery in the first degree
OR (b) Burglary in the first degree (3) That the defendant or an accomplice caused the death of David Scott Donaldson in the course of or in furtherance of such crime (4) That David Scott Donaldson was not a participant in the crime; and (5) That the acts occurred in {the} State of Washington. If you find from the evidence that elements (1), (3), (4) and (5) and either (2)(a) or (2(b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. Elements (2)(a) and (2)(b) are alternatives and only one need be proved. You must unanimously agree that (2)(a) has been proved, or that (2)(b) has been proved. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. Instruction 7, Clerk's Papers at 190.
This, in a nutshell, is why the erroneous accomplice liability instruction, while reversible error with respect to the premeditated murder convictions in both Cronin and Roberts, was harmless beyond a reasonable doubt with respect to their felony murder convictions, and why it was harmless beyond a reasonable doubt, here. We affirm Ms. Carter's first degree felony murder conviction.
The remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports, but will be filed of record in accord with RCW 2.06.040. Equal Protection Claim
Raymond, the actual shooter of Donaldson, was convicted of first degree felony murder, and was sentenced to 324 months. Jaquez entered a guilty plea to a reduced charge of second degree felony murder, and was sentenced to 183 months. Carter was sentenced to 348 months for her role in the felony murder. All of the participants in the crime were given standard range sentences.
Carter contends that she was denied her equal protection rights when the court sentenced her to a longer sentence than those given to her confederates, whose actions, she contends, were more `reprehensible' than her own. Thus, she requests that we order a new sentencing hearing. Although RCW 9.94A.210(1) states that standard range sentences are not appealable, a defendant may nevertheless challenge such a sentence on grounds of a violation of equal protection. State v. Conners, 90 Wn. App. 48, 51-52, 950 P.2d 519 (1998); State v. Clinton, 48 Wn. App. 671, 679, 741 P.2d 52 (1987) ("{T}he passage of the sentencing reform act does not affect the applicability and durability of the equal protection clause. RCW 9.94A must conform to, and be tested by, constitutional standards, not vice versa."). To prove such a claim, a defendant must establish: (1) membership in a class, i.e., that he or she is `similarly situated with another defendant by virtue of near identical participation in the same set of criminal circumstances{;}" and (2) that there is no rational basis for the different treatment among the class members. State v. Handley, 115 Wn.2d 275, 290, 796 P.2d 1266 (1990). Recognition of an equal protection class is the exception rather than the rule. Id. at 291.
Assuming without holding that Carter, Raymond and Jaquez constitute a class for the purposes of equal protection analysis, in that all were convicted of participation in the same crime, we nevertheless reject Carter's contention, in that the trial court had a rational basis for sentencing Carter to a longer term than either of the other two. First, Jaquez pleaded guilty to a lesser charge, resulting in a lower standard range than Carter's. Second, Carter was the `mastermind' behind the crime. The trial court found that the robbery was Carter's idea, and that it was carried out in accord with Carter's plan. She not only persuaded Raymond and Jaquez to commit the robbery, but she also persuaded her own brother to make the `set — up' phone call, in order to insure that Gibson would be at Donaldson's house when the robbery took place. And it was Carter who tried to cover up Raymond's complicity by giving Gibson a false description of the vehicles in which Raymond and Jaquez fled the scene of the crime.
Carter made attempts to cover up her own complicity, and that of Raymond, during her first interview with the police detectives who were investigating the crime, by placing the entire blame on Jaquez. Although she admitted her complicity during her second interview with police, she subsequently claimed that her statement was not accurate because it was drug-induced. Carter was the only one of the three participants who stood convicted of an additional felony, witness tampering, in connection with the crime. Although Raymond was the shooter and Jaquez was also armed, and although their conduct was indeed reprehensible, the trial court noted that Carter knew that Raymond was a drug addict when she sent him into Donaldson's house with a gun.
We agree with the trial court that there are times when the `mastermind' behind a crime may be even more culpable than those who carry out her plan.
We will not disturb the trial court's determination that this was such an occasion. Accordingly, we reject Carter's equal protection claim. Community Placement Carter contests the provision in her judgment and sentence setting her period of community placement at `2 years or the period of earned early release, whichever is longer{.}' She argues that the trial court should have calculated and stated her maximum potential community placement period. Whether a sentence is sufficiently specific about a term of community custody is a question of law that is reviewed de novo. State v. Jones, 93 Wn. App. 14, 17, 968 P.2d 2 (1998). Carter relies principally on State v. Nelson, 100 Wn. App. 226, 996 P.2d 651 (2000) to support her argument that the sentencing court erred by failing to calculate the precise term of community placement.
However, Nelson recognized that when the defendant's potential earned early release award may be greater than the fixed period specified in RCW 9.94A.120, as here, it is impossible for the trial court to specify the term of community placement at sentencing because it is contingent upon the amount of early release time that the defendant actually earns. Nelson, 100 Wn. App. at 231. Accordingly, we explicitly held, in State v. Mitchell, 114 Wn. App. 713, 59 P.3d 717 (2002) that sentencing courts are not required to precisely calculate for a defendant the maximum number of good time credits the defendant could potentially earn, and thus we decline to hold that Carter's sentence and judgment was erroneously ambiguous. Appellant's Pro Se Supplemental Brief
Venue
Ms. Carter claims that she did not get a fair trial in Snohomish County because Scott Donaldson's father previously worked for the Snohomish County Sheriff's Office in some capacity. By way of appendices to her supplemental brief, Ms. Carter provides two documents mentioning this issue. One is her post-conviction letter to the trial court asking the judge to give her a new trial in a different county based on the previous occupation of Scott Donaldson's father. And the other is the transcript of a pretrial, in camera hearing held for the purpose of determining whether Ms. Carter's mother, Eva Carter, a potential State's witness, had any basis to refuse to answer the prosecutor's questions at a deposition, based on her own Fifth Amendment right against self-incrimination. Nobody was present at this hearing other than Eva Carter, a judge who did not preside over the subsequent trial, and a court reporter. The transcript of the hearing was sealed until sometime after the trial and the commencement of this appeal. During that interview, Eva Carter questioned whether her daughter could get a fair trial based on the previous occupation of the decedent's father.
Ms. Carter's post-conviction letter to the trial judge does not qualify as a timely motion for change of venue. Eva Carter's statement made during the in camera interview does not rise to the level of a pretrial motion for a change of venue by the defendant. See CrR 5.2(b)(2) (providing that the court may order a change of venue to any county in the state upon motion by the defendant, supported by affidavit, that she believes she cannot receive a fair trial in the county where the action is pending). The appropriate time to raise such a motion is at the omnibus hearing. See CrR 4.5(d) (providing that the failure to give notice at the omnibus hearing of any issue of which the party concerned has knowledge may constitute a waiver of such issue. Cf., State v. Dent, 123 Wn.2d 467, 480, 869 P.2d 392 (1994) (holding (in the context of a challenge to venue under CrR 5.1) that unless the defendant shows good cause, failure to challenge venue at the omnibus hearing constitutes a waiver of the challenge).
Ms. Carter fails to advise this court whether she raised the venue issue at the omnibus hearing, and if she did not, upon what basis she claims good cause for not having done so. On the record here provided, we conclude that Ms. Carter has not preserved this venue issue for appeal, and we decline to decide it.
On a somewhat related issue, Ms. Carter complains that the prosecutor filed an untimely affidavit of prejudice against one the judges of the Snohomish County Superior Court. The State concedes that the affidavit was untimely, but properly points out that in a multi-judge county such as Snohomish County, the error could not have been prejudicial to Ms. Carter. Indeed, Ms. Carter does not claim that the timing of the affidavit prejudiced her in any way. Her primary objection is that the deputy prosecutor signed a preprinted form-affidavit designated for signature by defense attorneys rather than by deputy prosecutors, without correcting the form to show that the affidavit was actually filed by the State. We can assure Ms. Carter that this oversight cannot have mislead the court into believing that the defense filed the affidavit. The deputy prosecutor signed her own name and used her own bar number, and we have no doubt whatsoever that her signature is familiar to every judge on that court.
Alleged `Appearance of Fairness' Violation
Carter next contends that the trial court judge was biased against her, in that he `appeared to get mad' when, in her post-conviction letter to the judge, she asked for new counsel to represent her for purposes of post — trial motions and sentencing. In support of this request, Ms. Carter claimed that her trial counsel had been so ineffective in representing her at trial that her mother had filed a complaint with the Bar Association regarding his performance.
The court's grant of the request for new counsel was accompanied by a stern lecture from the court pointing out that the filing of a complaint with the Bar Association is not, in and of itself, a basis for appointment of new counsel. The court assured Ms. Carter that if her new counsel were to seek a new trial on the basis of ineffective assistance of trial counsel, the court would consider the motion with an open mind, but that Ms. Carter should be aware that any future complaint to the Bar Association regarding the performance of her new counsel would not be grounds for replacing him.
We see no violation of the appearance of fairness doctrine based on this lecture. To the contrary, the court granted the request for new counsel, and assured Ms. Carter that her post-trial motions would be heard with an open mind. We reject her contention that the trial judge violated the appearance of fairness doctrine by delivering the stern lecture, which told Ms. Carter only what she needed to know about any future effort to use a complaint to the Bar Association as a basis for requesting replacement counsel. First Motion for a Mistrial
During closing arguments to the jury, both the prosecutor and Carter's attorney discussed the testimony of State's witness Cherish Lutz; defense counsel challenged her credibility during his closing argument. In her rebuttal, the prosecutor pointed out to the jury that Lutz's testimony had neither been impeached based on certain aspects of her previous lifestyle, nor subjected to heavy cross-examination. Carter's counsel objected and requested a mistrial. The trial court sustained the objection, but denied the request for a mistrial, and reminded the jury that the attorneys' closing arguments were not evidence.
The State had previously moved in limine to restrict impeachment of Lutz based on certain aspects of her previous lifestyle; thus, it was unfair of the State to argue that the defense had failed to impeach her testimony based on that same information. The remarks also constituted a violation of the court's order in limine. We agree with Carter that this was misconduct. But Carter bears the burden of showing both misconduct and prejudice to her right to a fair trial. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). To prove prejudice, Carter must demonstrate that there is a substantial likelihood that the misconduct affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
The prosecutor's remarks were not about Carter, and could not have affected the jury's perception of Carter. While inappropriate, the remarks were not so egregious that the trial court's reminder to the jury about what was evidence and what was not could not cure the error. The prosecutor heeded the court's warning and her rebuttal argument was thereafter conducted appropriately. The trial court was in a far better position than we are to measure the likely effect of the remarks in light of the evidence at trial and the conduct of the closing arguments as a whole. We affirm the trial court's denial of the defense motion for a mistrial. Carter alleges several additional instances of prosecutorial misconduct based on alleged misstatements of the evidence during opening statements and closing arguments.
We decline to review these contentions. None of challenged statements were objected to at trial, and in any event, all the statements were based on reasonable inferences that could be drawn from the evidence admitted at the trial. Jury Instruction Regarding `Accomplice to the Use of a Deadly Weapon' Carter next claims that the jury was improperly instructed that, `if Carter's Co-defendant's {sic} were armed during the crime, Carter was deemed to be so armed.' Pro Se Brief at 47. Carter apparently intends to paraphrase Instruction 18, which told the jury: "If one participant in a crime is armed with a firearm, all accomplices to the participant are deemed to be so armed, even if only one firearm is involved." Clerk's Papers at 201. She contends that the instruction omits an essential element, namely, knowledge of the accomplice that another participant is armed.
The challenged instruction uses nearly identical language to that contained in WPIC 2.07.02. More importantly, Carter's counsel proposed an identical instruction. Thus, any error contained in the instruction, even constitutional error, was invited, and review is precluded. See, e.g., City of Seattle v. Patu, 147 Wn.2d 717, 720-21, 58 P.3d 273 (2002).
Juror Misconduct
At the conclusion of trial, as the jury deliberated, the prosecutor told the court that she had just learned that an assistant chief criminal deputy in the Snohomish County Prosecutor's Office, Michael Downes, was acquainted with one of the jurors. Downes subsequently came before the court and stated that he had recently learned that one of the jurors was someone he had met, and that his son was a friend of the son of that juror. He explained that the two boys had been at the same school for about four years, that they played on basketball and baseball teams together, had attended a couple of Mariner's games together, and had stayed the night at each other's houses. He also stated that his only interaction with the juror herself had been at large group functions, and that he had not attended any portion of Carter's trial and had never discussed her case with the juror in question.
The trial court recalled that the juror had raised her hand when asked, during voir dire, if she had `close friends' or relatives in law enforcement and/or the legal profession. She then reported that her deceased father-in-law and a brother-in-law were civil attorneys. The juror was subsequently questioned about why she had not mentioned her acquaintance with Downes, in response to the voir dire inquiry. She responded, "Well, I didn't think about it, because he's not a good friend. His son and my son play baseball, but he's not a good friend. I don't see him on a regular basis." Report of Proceedings at 1037-38. The juror explained further that she had not intentionally withheld the information, and that the fact that she was acquainted with Downes would not have any effect on her ability to be a fair and impartial juror. Carter moved for a mistrial, and the trial court denied the motion.
When ruling on a motion for a new trial due to juror irregularity, the question is whether, under the facts and circumstances surrounding the case, the juror is biased, and whether the litigant has been prejudiced. State v. Rempel, 53 Wn. App. 799, 802, 770 P.2d 1058 (1989), reversed on other grounds by State v. Rempel, 114 Wn.2d 77, 785 P.2d 1134 (1990). The trial court is in the best position to determine whether the juror can set aside any preconceived opinion, given the trial court's position to observe the juror's demeanor and answers to questions. Rempel, 53 Wn. App. at 801-02. Accordingly, we review the trial court's decision not to grant a new trial based on alleged juror misconduct for abuse of discretion. State v. Tigano, 63 Wn. App. 336, 341, 818 P.2d 1369 (1991).
The court did not abuse its discretion in denying Carter's request for a mistrial. Nothing in the record demonstrates that the juror's acquaintance with Downes affected her ability to be fair and impartial. The juror certainly was not deceptive during voir dire, in that the question asked was whether she had any `close friends' or relatives who worked in law enforcement. She did not consider Downes a `close friend,' but merely an acquaintance. Downes' explanation of the relationship was fully consistent with this characterization. Where a juror deceptively withholds some fact during voir dire that might affect her qualifications as a juror, a new trial is warranted, but unintentional failure to disclose information not directly connected with the case does not necessarily require a new trial. Rempel, 53 Wn. App. at 802-03. We affirm the trial court's ruling on the mistrial motion. Carter's Decision Not to Testify at Trial
Carter challenges the trial court's denial of her motion for a new trial on the basis that she elected not to testify at trial out of fear of Duncan Gibson, who, she alleged, had threatened the safety of members of her family if she were to testify at trial. Her new counsel supported the motion for a new trial by arguing that, in light of Carter's damning admissions to police regarding her complicity in the predicate felonies, the only potential for an acquittal lay in Carter's own testimony at trial.
The trial court found Carter's claim that her decision not to testify was based on threats by Gibson not credible. The court reasoned that the fact that Gibson was a drug dealer was fully disclosed at trial. Gibson himself admitted to police that he was a drug dealer, and numerous witnesses testified at trial that he was a drug dealer. It had even been reported in the media that Gibson was a drug dealer, so that everybody knew it.
We find no illogic in the trial court's reasoning. If Carter was afraid of Gibson, we think it likely that her fear arose out of her initially successful effort to persuade Rachel Holmes to change her story to police by telling them that Gibson, not Raymond, was the shooter, and her unsuccessful attempt to persuade Jim Cason to do the same. It is clear from the record that Gibson is an unsavory person. It is not beyond the realm of reason that he might be capable of threatening the safety of Carter's family if she were to testify at trial that Gibson was implicated in the shooting of Donaldson. But Ms. Carter's offer of proof with respect to what she would have said if she had testified at trial had nothing to do with implicating Gibson in the shooting. Rather, she would have testified that her self-incriminating statements to police were inaccurate, in that she had been coming down from a drug-induced high and wanted another fix, and because she thought that any inaccuracies in her statements were of no consequence because she was told by police that she was only a witness, not a suspect. In addition, she would have testified that protecting her boyfriend, not herself, motivated her efforts to get Rachel Holmes and Jim Cason to change their stories.
We agree with the trial court that if Ms. Carter had so testified, there is no reasonable probability that the jury would have found her not guilty, either of felony murder or of witness tampering. Police witnesses testified that they had, indeed, initially considered Carter a witness, rather than a suspect. But they believed that she had held back information during her first interview, which caused them to interview her a second time. And, of course, wanting to protect a boyfriend is no defense to a charge of witness tampering.
In sum, Kimberly Carter's right to a fair trial was not compromised, and she received a fair sentence. Accordingly, we affirm her judgment and sentence.