Opinion
No. 63936-6-I.
Filed: February 7, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 08-1-01834-7, Kenneth L. Cowsert, J., entered July 30, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Dwyer, C.J., and Grosse, J.
Habtemariam was convicted of first degree murder. Habtemariam alleges that his trial was prejudiced by the admission of improperly obtained statements to police, by ineffective assistance of counsel, and by improper questions from the prosecutor at trial. Any error was harmless. We affirm.
FACTS
On the evening of July 7, 2008, Filmon Habtemariam went to McCabe's Bar in Everett. He met his cousin Tekelet Habtemariam at the bar, as well as Tekelet's good friend Joseph Cobbs. The State presented evidence at trial that in the early morning on July 8, 2008, the three men left the club and got into Tekelet's car. Tekelet had agreed to give Habtemariam a ride to the apartment complex where he was staying. Tekelet was driving, Habtemariam was sitting in the rear passenger seat behind Tekelet, and Cobbs was sitting in the front passenger seat. When they arrived, Habtemariam asked Tekelet to drop him off. The car slowed and Habtemariam fired a gun several times, killing Tekelet. Cobbs testified to seeing Habtemariam get out of the car with a gun in his hand and run from the scene. Another witness, James Grubb, lived nearby and testified to hearing a car crash and seeing a slender young black man staggering away from the vehicle into the apartment complex.
We refer to the defendant as Habtemariam, and any other parties with the last name Habtemariam by their first names, in order to avoid confusion.
When police officers arrived at the scene, Tekelet was dead Cobbs identified Habtemariam as the murderer and gave a description of Habtemariam's appearance. Grubb also told officers what direction the suspect had run towards. Police officers created a perimeter surrounding the apartment complex, and a K-9 unit began tracking in the direction the defendant had gone. On that track, the officers discovered a handgun hidden in a bush. That gun was thereafter identified as the murder weapon. It belonged to Habtemariam's roommate.
One of the deputies patrolling the perimeter observed a black male who fit the suspect's description and was walking briskly. The officer contacted Habtemariam and eventually verified that he fit the detailed description of the suspect. He detained Habtemariam. Officers brought Cobbs to the scene of the arrest and Cobbs identified Habtemariam as the shooter. The officers then informed him that he was a suspect in a murder investigation. Officers advised Habtemariam of his Miranda rights, using a department issued warning card. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Habtemariam indicated that he understood his rights and he did not request an attorney at that time.
Officers took Habtemariam to the police station, where he was interviewed by two detectives. Habtemariam was again read his Miranda rights from a card. He indicated that he understood his rights but did not understand why he was being detained. He eventually made it clear that he was willing to talk.
A detective testified that, after speaking with the officers for some time, Habtemariam asked, "[I]s there an attorney I can talk to or something[?]" The detective asked him if he was requesting an attorney, and Habtemariam responded, "`Why would I want to talk to a lawyer[?]'" The officers did not believe that he wanted an attorney at that point. After that exchange, they took a break from the interview to go get Habtemariam food and cigarettes that he had requested. Habtemariam ate his food in the interview room and then went outside with the officers so he could smoke.
The officers then recommenced questioning. Habtemariam was generally calm, composed and cooperative. Finally, Habtemariam asked directly, "`Can I speak to my lawyer, please.'" The officers stopped all further questioning and put Habtemariam in contact with a public defender.
The State charged Habtemariam with first degree murder while armed with a firearm, possession of a stolen firearm, second degree unlawful possession of a firearm, and tampering with a witness.
The State sought to introduce evidence about a prior interaction between Habtemariam and his relatives. Habtemariam's other cousin, Fetsum Habtemariam, the victim's brother, testified that a couple of weeks before the shooting, Habtemariam, Tekelet, Fetsum and Habtemariam's brother Dawit were at a bar together when Habtemariam angrily told Tekelet, Fetsum, and Dawit that he was going to kill them, because they were "a disgrace to the Habtemariams." Fetsum also testified in an offer of proof that Habtemariam's brother Dawit had stopped buying drugs from Habtemariam and had started buying them from Tekelet. The State sought to enter this as evidence that Habtemariam had a motive to kill Tekelet for stealing his drug customers. However, the trial court ruled that while Fetsum could testify to the threat Habtemariam made at the bar, the issue of drug dealing and motive was deemed to be prejudicial, unfair, and inadmissible at trial.
The case proceeded to trial. The jury found Habtemariam guilty as charged. Habtemariam appeals.
DISCUSSION
I. Admissibility of Habtemariam's Statements
Habtemariam contests the admission of certain statements he made to police, because those statements were obtained in violation of his Miranda rights under the Fifth Amendment and his rights under CrR 3.1.
A. Fifth Amendment Rights under Miranda
Habtemariam alleges that the trial court erred by admitting statements he made to police officers, because the officers violated his Fifth Amendment rights under Miranda in obtaining those statements. The law established in Miranda broadly protects a defendant's rights against compelled self-incrimination:
Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.
384 U.S. at 444-45. Habtemariam does not dispute that he understood his Miranda rights or that he initially agreed to waive them and begin speaking with officers. Even after waiving those rights, a suspect may ask for an attorney at any time. State v. Radcliffe, 164 Wn.2d 900, 906, 194 P.3d 250 (2008). However, such a request must be explicit; "an equivocal request will not do." Id. (citing Davis v. United States, 512 U.S. 452, 461, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)). Indeed, both the United States Supreme Court and the Washington Supreme Court have expressly held that when a suspect's request for counsel is ambiguous or equivocal officers are not obliged to stop questioning him. Davis, 512 U.S. at 461-62; Radcliffe, 164 Wn.2d at 906-08.
Habtemariam asserts that he made an unequivocal request for an attorney while speaking with detectives, so all questions and statements that followed that request were improper and should have been suppressed at trial.
The trial court disagreed, concluding that the request was ambiguous and did not constitute an invocation of his Miranda rights at that point. We review the trial court's conclusion of law de novo. State v. Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005).
When Habtemariam asked, "[I]s there an attorney I can talk to or something[?]" Detective Wells asked Habtemariam if he was requesting an attorney. Habtemariam then answered: "`Why would I want to talk to a lawyer[?]'" The officer's understanding was that Habtemariam was not asking for an attorney, and that his initial question was merely an equivocal one.
Habtemariam argues that questioning should have ceased immediately after his initial question regarding an attorney. On appeal Habtemariam attempts to isolate and extract his initial question, "[I]s there an attorney I can talk to or something[?]" from its surrounding context. But, a suspect's reference to an attorney is determined to be ambiguous or equivocal based on how "a reasonable police officer in the circumstances" would have understood the suspect's statement. Davis, 512 U.S. at 459. The officers properly evaluated the entire circumstances of the conversation in determining Habtemariam's intent. Habtemariam quickly followed his first question with the subsequent question, "`Why would I want to talk to a lawyer[?]'" Additionally, Habtemariam was described as being calm and articulate throughout questioning, but he also made some rambling, spontaneous and unsolicited statements, including a dialogue with himself:
[H]e was asking himself, "Do I have any warrants?" And then he would answer and say, "Well, no, I just got out of jail. I know I don't have any warrants." And then he would ask another question after that one to himself.
. . . .
. . ." Did you have — did you find any dope in my pockets?" And he answered that as well and said, "No, I know I didn't have any dope in my pockets."
He made other spontaneous statements as well, telling officers that he was "coming down from [his] drunk." Given Habtemariam's demeanor, conversational style, intoxication, and the general circumstances of the questioning, the officers acted reasonably and were justified in seeking clarification of exactly what Habtemariam wanted. Habtemariam's initial question was equivocal and ambiguous, and this conclusion was reinforced by Habtemariam's immediate clarification that he did not in fact want an attorney. As the Davis court articulated:
[W]hen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. . . . Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel.
Davis, 512 U.S. at 461. Here, Detective Wells proceeded in exactly this manner and observed proper and reasonable procedure, clarifying Habtemariam's question and promptly discovering that Habtemariam was not in fact requesting an attorney at that point. Accordingly, we hold that the trial court properly admitted Habtemariam's statements.
Habtemariam cites to State v. Robtoy, 98 Wn.2d 30, 38-39, 653 P.2d 284 (1982) (holding that an equivocal request for counsel would require police to then limit any questioning to the sole purpose of clarifying that request). However, in Radcliffe, the Washington Supreme Court expressly replaced the rule in Robtoy, holding that an equivocal request does not require police to stop or limit the interrogation under the Fifth Amendment. Radcliffe, 164 Wn.2d at 906-08. The result in Habtemariam's case would be the same regardless of which rule was applied. Following Habtemariam's ambiguous request for counsel, detectives actually complied with the more stringent and now inapplicable Robtoy standard, seeking only to clarify Habtemariam's request. In fact, under Radcliffe, the officers were not required to cease or narrow questioning at all. 164 Wn.2d at 907-08.
B. Requirements of CrR 3.1
Habtemariam argues that, in addition to a Fifth Amendment violation, police officers also violated his rights under CrR 3.1. The rule provides in part:
[(b] (1) The right to a lawyer shall accrue as soon as feasible after the defendant is taken into custody. . . .
. . . .
[(c] (1) When a person is taken into custody that person shall immediately be advised of the right to a lawyer. Such advice shall be made in words easily understood, and it shall be stated expressly that a person who is unable to pay a lawyer is entitled to have one provided without charge.
(2) At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number of the public defender . . . and any other means necessary to place the person in communication with a lawyer.
CrR 3.1. Habtemariam points out that CrR 3.1 goes beyond the requirements of Miranda and the Fifth Amendment. See, e.g., State v. Templeton, 148 Wn.2d 193, 218, 59 P.3d 632 (2002); State v. Kirkpatrick, 89 Wn. App. 407, 413, 948 P.2d 882 (1997). However, the cases that he relies on are distinguishable from his case, and do not apply here. For example, Habtemariam relies on Kirkpatrick for his assertion that "police must not only advise the arrestee of his right to counsel, but also must formally offer the assistance of counsel." However, Kirkpatrick dealt with an officer's failure to contact an attorney after the defendant had unequivocally requested one. 89 Wn. App at 414. Habtemariam overlooks the plain language of CrR 3.1(c)(2), in which officers are only required to provide access to communication with a lawyer for those defendants in custody who express a desire for a lawyer. Here, Habtemariam asserts that officers never advised him of his right to court appointed counsel under the rule. Yet, the record shows that the arresting officer read Habtemariam his rights shortly after arrest and before any custodial questioning; that Habtemariam understood his rights; that he did not have or express a desire to speak with a lawyer until later, and that when he did so officers promptly honored his request and placed him in contact with a public defender. The officers complied with CrR 3.1(c).
Habtemariam also asserts that since CrR 3.1 "`goes beyond the requirements of the Constitution'", Templeton, 148 Wn.2d at 211 (quoting Heinemann v. Whitman Cnty. Dist. Ct., 105 Wn.2d 796, 802, 718 P.2d 789 (1986)), the standard of equivocality must necessarily be higher. This assertion is unsupported by argument or authority. In Templeton, the Supreme Court addressed the defendants' motion to suppress breath test evidence following the officers' failure to properly and adequately advise the defendants of their right to counsel. 148 Wn.2d 199. The Court held that the advisement of rights forms the officers used were inadequate under CrR 3.1, but nonetheless concluded that suppression of evidence was improper, since the insufficient advisement of rights was harmless error. Id. at 220. The Templeton court's conclusion is thus the opposite of the conclusion Habtemariam now seeks. Moreover, the defendants in Templeton expressly waived their right to counsel, so the court never reached the issue now before us of determining whether waiver was equivocal or not. Id. Templeton does not raise or address "the standard of equivocality" as Habtemariam suggests, and neither does he point to any other authority to support this contention. Habtemariam fails to show that the standard of equivocality is higher.
We hold that the arresting officer properly advised Habtemariam of his rights under both Miranda and CrR 3.1, and we affirm the trial court's admission of Habtemariam's statements.
II. Ineffective Assistance of Counsel
The State's primary witness, Cobbs, provided the only eyewitness account of the shooting. Before trial, Habtemariam's counsel sought leave from the trial court to impeach Cobbs with his entire criminal history, including felony convictions for harassment, possession of cocaine, and third degree assault. Cobbs also had a prior conviction for making false statements, a misdemeanor crime. Applying ER 609(a), the trial court ruled that the felonies were inadmissible, but allowed the misdemeanor conviction to come into evidence since it involved dishonesty. At trial, Habtemariam's counsel cross-examined Cobbs. He asked questions about Cobbs' probation with the Department of Corrections. But, he did not directly impeach Cobbs's honesty with the misdemeanor conviction. Habtemariam alleges that his counsel's failure to do so constituted ineffective assistance of counsel and thus undermined the validity of the verdict.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness based on consideration of all the circumstances, and that the deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). If one of the two prongs of the test is absent, we need not inquire further. Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007). The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Prejudice is present if there is a reasonable probability that, but for counsel's error, the result would have been different. Id. at 335.
We look to whether Habtemariam has carried his burden to demonstrate that there was no legitimate strategic or tactical reason for his attorney's decision against raising Cobbs's misdemeanor crime of dishonesty. When evaluating trial counsel's strategic decisions, we give exceptional deference. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004). Here, there was a legitimate tactical reason for his attorney's approach to cross-examination and impeachment. Before trial, Habtemariam's counsel had expressed his desire to bring in evidence of Cobbs's violent criminal history. Although counsel was not permitted to bring those felony crimes into evidence, he was allowed to discuss Cobbs's status with the Department of Corrections, and emphasize to the jury that Cobbs was on probation for past crimes. Counsel could quite reasonably have made the tactical decision that focusing on Cobbs's probation would serve as a more effective impeachment tool with the jury than focusing on the lesser misdemeanor crime, even though the latter involved a crime of dishonesty.
"The extent of cross-examination is something a lawyer must decide quickly and in the heat of the conflict. This, too, is a matter of judgment and strategy." State v. Stockman, 70 Wn.2d 941, 945, 425 P.2d 898 (1967). Even if some other tactical approach to cross-examination and impeachment might have been more successful in retrospect, Habtemariam's counsel made a reasonable strategic decision. We hold that Habtemariam did not carry his burden of showing deficient performance, so his ineffective assistance claim fails. Since he does not meet the first prong, we need not address the second prong of prejudice.
III. Improper Questioning by Prosecution
The State sought to demonstrate that Habtemariam was mad at Tekelet for stealing drug customers from him. However, the trial court had deemed such questioning impermissible. Following a pretrial offer of proof by the victim's brother, Fetsum, the trial court expressly addressed this matter: "It seems like this witness has not, to me, made any connection between potential drug dealing and the association that I think would make that issue relevant to the issue of motive. . . . I think, at this point, it would be prejudicial to the defendant, and unfair. . . . I will disallow any testimony regarding that."
During his cross-examination, Habtemariam testified without objection that both he and the victim, Tekelet, were drug dealers. Then, despite the court's pretrial order prohibiting such questioning, the prosecution asked Habtemariam about the potential drug dealing dispute:
Q. Isn't it true that you were mad at Tekelet because he was taking away some of your customers by selling drugs to them?
A. No, that's not true.
Q. He was doing that, wasn't he?
A. No, he wasn't.
Defense counsel objected and moved for a mistrial. The trial court did not rule on the motion. Counsel did not renew the objection or request a limiting instruction.
A mistrial is appropriate only when an improper remark or question, viewed against the backdrop of all the evidence, is so prejudicial to the jury that a defendant is denied the right to a fair trial. See State v. Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983); State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987). In looking at a trial irregularity to determine whether it may have prejudiced the jury, a court should consider several factors: (1) the seriousness of the irregularity; (2) whether the statement in question was cumulative of other evidence properly admitted; and (3) whether the irregularity could be cured by an instruction to disregard the remark, an instruction which a jury is presumed to follow. Escalona, 49 Wn. App. at 254. A trial judge is best suited to determine the impact of a potentially prejudicial statement, so this court will not disturb a trial court's decision to deny a mistrial unless it constitutes an abuse of discretion. Id. at 254-55.
Under the first factor, the prosecutor's questions constituted a serious irregularity. The State argues that the prosecutor's question arose as a reasonable inference since there was already evidence on the record that the defendant and the victim were drug dealers and that Habtemariam had previously threatened the lives of his brother and cousins. However, the questioning directly contravened a trial court evidentiary ruling and improperly suggested a motive, making the irregularity a serious one. Looking to the second factor, the improper questions at issue were not cumulative of any other evidence properly admitted — no other evidence on this matter was allowed by the court. And, under the third factor, Habtemariam argues that the questions were extremely prejudicial and incurable by any instruction. However, we presume that the jury would follow a judge's instructions to disregard a question or remark. Weber, 99 Wn2d at 166. Here, an instruction could have cured any prejudice and such instruction was not sought.
The ultimate goal in analyzing these factors is to make a determination of whether the irregularity, viewed in light of all the evidence, was so prejudicial that a defendant was denied the right to a fair trial. Escalona, 49 Wn. App at 254. While the prosecutor's questions were improper and constituted an irregularity, they did not prejudice the jury or warrant a mistrial. The trial court did not abuse its discretion in denying Habtemariam's request for a new trial.
In Escalona, we considered a similar improper remark, made in that case by the victim while on the witness stand about the defendant's past criminal record. Id. at 253. There, the trial court had similarly denied defendant's motion for a mistrial. Id. On appeal, this court held that given the grave seriousness of the irregularity combined with the weakness of the State's case, an instruction could not cure the prejudicial effect of the statement, and a new trial was warranted. Id. at 256. However, Habtemariam's case is distinguishable and the irregularity at issue here is less severe than the one in Escalona. In Escalona, the court described the improper reference to the defendant's criminal record as "particularly serious considering the paucity of credible evidence against Escalona." Id. at 255. In Habtemariam's case, by contrast, the State presented a great deal of other substantial evidence that supported the conviction. It was already on the record that Habtemariam had threatened the lives of his relatives, including the victim. There was eyewitness testimony from Cobbs that Habtemariam committed the murder, and that testimony was corroborated by other evidence. Ultimately, the strong evidence helped mitigate the seriousness of the irregularity. Additionally, following the prosecution's improper questions, Habtemariam swiftly and unequivocally answered, "No, that's not true." His prompt denial may have helped to further mitigate the impact that the questions had on the jury. The questions went to motive to commit the crime, but the direct evidence that Habtemariam committed the crime was strong without any reference to motive. Even though the questions were improper, any error was harmless, since they did not affect the outcome of the trial.
IV. Cumulative Error
Habtemariam alleges that even if none of the above errors warrant reversal individually, reversal is still required based on the cumulative effect of those errors. The cumulative error doctrine "is limited to instances when there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000); see also, State v. Alexander, 64 Wn. App. 147, 154, 822 P.2d 1250 (1992). Here, as in Greiff, there is not an accumulation of several errors. Instead, there is only one error, arising from the prosecution's improper questions of Habtemariam. Considering the entire scope of the trial and the substantial evidence supporting the State's case we conclude that the prosecutor's question did not have a material effect on the case. Habtemariam was not deprived of his right to a fair trial. The cumulative error doctrine does not apply here.
V. Statement of Additional Grounds
In his statement of additional grounds, Habtemariam reasserts his disparate version of the facts, which he testified to at trial. He also reemphasizes other facts in the record that support his innocence. The evidence raised by Habtemariam was presented to the jury. This court defers to the trier of fact on issues of credibility of testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. J.P., 130 Wn.App 887, 891-92, 125 P.3d 215 (2005). If the jury found the evidence in support of Habtemariam's innocence not credible, we will not disturb its finding on appeal.
We affirm.