Opinion
No. 35579-5-II.
January 23, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-00822-9, Frederick W. Fleming, J., entered November 17, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
John Edward Kazmierczak appeals his convictions for first degree robbery and third degree assault. We affirm the conviction for first degree robbery; but we vacate the conviction for third degree assault on double jeopardy grounds under the Fifth Amendment to the U.S. Constitution.
FACTS
On a winter evening in 2006, Kazmierczak left his work in Auburn and went to a bar with one of his co-workers. Kazmierczak was waiting for "the last train" to Tacoma, where he lived. 3 RP at 204. While at the bar, Kazmierczak ordered four rounds of drinks for himself. Each round of drinks consisted of: (1) a mini-pitcher (approximately three glasses) of beer; and (2) a "Jaegar bomb," a drink containing a shot of hard liquor. 3 RP at 202. After consuming the last round of drinks, Kazmierczak left for the train station.
Kazmierczak admitted that he has had problems with alcohol for over 10 years. He also admitted that it was not unusual for him to go to a bar and become intoxicated before going home.
Once on the train, Kazmierczak "was feeling the effects of the alcohol" and "[s]tarted to nod a little bit." 3 RP at 206. Eventually, the train stopped at Puyallup, and Kazmierczak "got off" the train. 3 RP at 206. But he did not remember exiting the train. And he only "[v]aguely" remembered that he "got off" the train in Puyallup. 3 RP at 207. Thereafter, the next thing he remembered was that somebody was chasing him.
On this same winter evening in 2006, Jaymie Parkhurst exited a bus at the Puyallup transit center and started walking toward her car. She noticed a man, whom she identified as Kazmierczak, standing "[s]ome distance away." 2 RP at 37. As she walked toward her car, Parkhurst realized that Kazmierczak was walking behind her.
During this time, Parkhurst was talking to her mother on her cell phone. Parkhurst testified, "When I walk by myself at night, I make a phone call and talk on my cell phone to my family." 2 RP at 42.
Parkhurst then remembered that earlier in the day she had parked her car in a different location. So, she "turned around." 2 RP at 43. As she retraced her steps, Parkhurst passed Kazmierczak on the sidewalk.
When Parkhurst reached her car, she again noticed that Kazmierczak "was in the parking lot," but "some distance away." 2 RP at 46. Kazmierczak started talking to her. Just as Parkhurst was about to unlock her car, Kazmierczak "approached [her] quickly." 2 RP at 47. He demanded her car keys.
Parkhurst refused to give him her car keys. Instead, she twice hit Kazmierczak in the face with her fist. But her punches did not deter Kazmierczak. And she gave him her car keys.
Parkhurst's father eventually found her car keys inside a fenced property, near where Kazmierczak had fled.
Kazmierczak then demanded her cell phone. Again, she refused to give him her cell phone because "[her] mom was on the phone." 2 RP at 50. She was afraid to lose contact with her. But Kazmierczak grabbed the cell phone with his right hand and grabbed Parkhurst's hair with his left hand. Parkhurst pulled away, dropped her belongings, and screamed for help. During this struggle, Kazmierczak ripped out a large patch of hair from Parkhurst's head. Parkhurst also suffered a few minor injuries from falling to the ground.
After this struggle, Parkhurst summoned a passing car and told the occupants, Jaesung Ji, Jason Choi, and Nathan Merz, that Kazmierczak had attacked her. She "point[ed] [Kazmierczak] out" to them. 2 RP at 54. Ji, Choi, and Merz started to chase Kazmierczak in their car. But then Ji told Choi to go back and "stay with [Parkhurst]." 2 RP at 112.
Choi was unable to find Parkhurst, though, as Parkhurst had left the scene to call the police.
Ji and Merz continued to chase Kazmierczak in their car, yelling at him to stop running. But Kazmierczak told them not to follow him and not to get any closer. During this time, Merz called the police. Eventually, Ji stopped the car and chased Kazmierczak on foot. Ji did not catch Kazmierczak because he was afraid of him. Ji also knew that the police would be arriving soon. Meanwhile, after hearing sirens, Merz went to "wave down" the police. 2 RP at 141.
Officer Scott Lien, of the Puyallup Police Department, arrived at the scene. He ordered Kazmierczak "to lie on the ground on his stomach, with his arms out to his side like an airplane." 3 RP at 175. Kazmierczak complied with Officer Lien's order. Officer Lien then arrested Kazmierczak, advising him that he was being arrested for robbery. Officer Lien testified that during the arrest Kazmierczak appeared to be intoxicated.
Thereafter, by an amended information, the State charged Kazmierczak with first degree robbery and second degree assault. Before trial, the parties agreed in an omnibus order, "The statements of defendant will be offered in the State's case in rebuttal only." CP at 110. As a result, the trial court postponed holding a CrR 3.5 hearing, wherein it would determine whether Kazmierczak's statements to Officer Lien would be admissible.
At trial, after the State had rested, Kazmierczak waived his Fifth Amendment right against self-incrimination and testified on his behalf. Among other things, Kazmierczak testified that he did not remember anything after he "got off" the train in Puyallup, except that "[s]omebody was chasing [him]." 3 RP at 206-07, 208. The State then cross-examined Kazmierczak as follows:
Q And you saw a number of people testifying during this trial. Do you recall if any of them were chasing you?
A I — I couldn't remember exactly.
Q What did the officer tell you to do when the officer saw you? He ordered you to the ground; correct?
A Yes, I believe so. . . .
Q And you were following the police officer's orders; correct?
A Yes. . . .
Q Did the police officers catch you with any stolen property on you? A I have no idea.
Q Okay. Do you remember speaking to the police officer?
A Yes.
Q In fact, Officer Lien, who was in here testifying?
A I couldn't — I couldn't tell you.
Q Okay. Do you recall the officer telling you you were under arrest?
A Yes.
Q And do you recall asking him . . . what you were arrested for?
A No.
. . . .
Q Isn't it true he told you that you were arrested for robbery?
A Not to my knowledge.
Q And isn't it true that you told him, quote, I'm not in possession of anything so how could this be?
A I don't remember making that statement.
Q And, in fact, you did not have the victim's keys, is that correct, when the police contacted you?
A I have no knowledge of that.
3 RP at 223-26 (emphasis added).
Immediately after this line of questioning, the defense rested. In rebuttal, the State called Officer Lien to testify. The State then asked the officer the following questions:
Q Officer, do you have your report with you?
A I do, sir.
Q Officer, do you recall advising the defendant what he was arrested for?
A Yes, sir.
Q What did you advise him of? A Robbery.
Q And what was his response, if any, to that?
A You want to know what I actually wrote in my report?
Q Well, what he said to you.
A He said, "How could [I] be arrested for that, I'm not in possession of anything."
3 RP at 226-27 (emphasis added).
Immediately after this line of questioning, the State rested. The trial court excused the jury for lunch and the parties briefly discussed jury instructions. After the recess, Kazmierczak's counsel moved for a mistrial, stating:
Your Honor, we had agreed pretrial that before any statements that were admitted by Mr. Kazmierczak would be brought before the jury, that we would do a 3.5 hearing. During his direct, I never asked about anything that he said to the officer, the officer said to him, or anything. And I don't believe that we properly crossed that bridge, and so I'm going to move for a mistrial.
3 RP at 231. The State responded:
Your Honor, first of all, defense counsel did not object. Second of all, this was a statement that was made — this was used in rebuttal. This was not used in the State's case-in-chief. I thought we did address this on the record before we started with the testimony.
3 RP at 232. Thereafter, the trial court denied the motion for mistrial.
Before Officer Lien's testimony, the State asked the trial court to "preclude defense counsel from asking that officer anything about those statements that were made to the officer in terms of the content, because that would be hearsay." 3RP at 157.
During closing argument, the State argued:
Why did [Kazmierczak] get rid of the keys? Because he was being chased. And remember what he said to thepolice officer afterwards when the police officer told him he was under arrest for robbery. He said, "How can you charge me with that when you didn't find any property on me?" Kind of suggesting, "Na-na na-na-na, you can't catch me. You don't have me. I got rid ofthe property." He didn't say that, but that's clearly what his belief was.
3 RP at 253 (emphasis added). And during its rebuttal closing argument, the State argued:
As I mentioned to you earlier, the fact that when the officer contacted him, told him he was under arrest for robbery, and the defendant says, "How can that be if you didn't find any evidence on me," or words to that effect, that shows he's thinking. Maybe not thinking well, maybe he is not making the best decisions. Maybe he is wrong about what the law is. Maybe he thinks we can't pin it on him if he doesn't have the goods on him and he's not caught red-handed. Well, he's wrong about that, because we can pin it on him, and you can pin it on him. You can hold him responsible for that.
3 RP at 280 (emphasis added).
The jury found Kazmierczak guilty of first degree robbery and third degree assault. Thereafter, based on his criminal history, the trial court found Kazmierczak to be a persistent offender. The trial court sentenced him to a life sentence without the possibility of parole for his first degree robbery conviction. Kazmierczak appeals.
The trial court also sentenced Kazmierczak to 29 months plus 9-18 months of community custody for the third degree assault conviction.
ANALYSIS
Kazmierczak claims that the trial court abused its discretion when it denied his motion for mistrial, following trial irregularities by the State. He contends that the prosecutor committed misconduct by: (1) ignoring the mutually agreed upon omnibus order; (2) questioning Kazmierczak about his statements to Officer Lien, without a prior determination under CrR 3.5 that they were admissible; and (3) commenting on these statements during closing argument. Finally, Kazmierczak argues that the prosecutor's misconduct violated his Fifth Amendment privilege against self-incrimination and so prejudiced him as to deny him a fair trial. We disagree.
We review a trial court's denial of a motion for mistrial under the abuse of discretion standard. State v. Crane, 116 Wn.2d 315, 332-33, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991); State v. Avendano-Lopez, 79 Wn. App. 706, 721, 904 P.2d 324 (1995), review denied, 129 Wn.2d 1007 (1996). An abuse of discretion occurs only when a decision is "manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). The trial court's decision rests on "untenable grounds" or is based on "untenable reasons" if the trial court relies on unsupported facts or applies the wrong legal standard. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
The trial court's decision is "manifestly unreasonable" if "the court, despite applying the correct legal standard to the supported facts, adopts a view `that no reasonable person would take.'" Rohrich, 149 Wn.2d at 654 (quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)).
Furthermore, in determining whether the trial court abused its discretion, we examine three 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. State v. Weber, 99 Wn.2d 158, 164-65, 659 P.2d 1102 (1983); State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987). We will overturn a denial of a motion for mistrial only if there is a substantial likelihood that prejudice affected the jury's verdict. Crane, 116 Wn.2d at 332-33; State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986); State v. Carter, 77 Wn. App. 8, 12-13, 888 P.2d 1230, review denied, 126 Wn.2d 1026 (1995). Therefore, "[t]he root of our inquiry is whether, when viewed against the backdrop of all the evidence, the trial irregularities denied . . . his right to a fair trial." Avendano-Lopez, 79 Wn. App. at 721.
Here, Kazmierczak's counsel did not timely object to the prosecutor's line of questioning during the cross-examination of Kazmierczak. And Kazmierczak's counsel did not timely object to the prosecutor's line of questioning during the direct examination of Officer Lien. Instead, Kazmierczak's counsel waited to object until after the trial court had returned from its lunch recess. Nevertheless, we need not consider whether Kazmierczak's failure to timely object to trial evidence also waives consideration of a mistrial motion based on admission of that evidence.
Moreover, Kazmierczak's counsel did not object to any of the prosecutor's comments during the closing arguments.
I. Scope of Cross-Examination
Our Supreme Court has recognized that the cross-examination of a witness is generally limited to the scope of the direct examination. State v. Robideau, 70 Wn.2d 994, 425 P.2d 880 (1967); State v. Jeane, 35 Wn.2d 423, 431, 213 P.2d 633 (1950). Nevertheless, "when, in the direct examination, `a general subject is unfolded, the cross-examination may develop and explore the various phases of that subject.'" Wilson v. Miller Flour Mills, 144 Wash. 60, 66, 256 P. 777 (1927) (quoting Bishop v. Averill, 17 Wash. 209, 217, 49 P. 237 (1897)). And under ER 611(b), the trial court can grant considerable latitude in cross-examination. See State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983); State v. McDaniel, 83 Wn. App. 179, 184, 920 P.2d 1218 (1996), review denied, 131 Wn.2d 1011 (1997).
The scope of cross-examination lies within the discretion of the trial court. State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985).
Based on this theory of cross-examination, our Supreme Court concluded, "[A] defendant may be cross-examined in the same manner as any other witness if he voluntarily asserts his right to testify. Any fact which diminishes the personal trustworthiness of the witness may be elicited if it is material and germane to the issue." Robideau, 70 Wn.2d at 998. The United States Supreme Court also held that "a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination." McGautha v. California, 402 U.S. 183, 215, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). And "RCW 10.52.040 provides that if the defendant takes the witness stand in his own behalf he shall be subject to all the rules of law relating to cross-examination of other witnesses." Robideau, 70 Wn.2d at 997.
Here, on direct examination, Kazmierczak claimed that he could not remember anything after he "got off" the train in Puyallup, except that "[s]omebody was chasing [him]." 3 RP at 206-07, 208. On cross-examination, the prosecutor simply developed the issue of who was chasing him. And once Kazmierczak admitted that he knew a police officer caught him, the prosecutor developed and explored the circumstances surrounding the arrest. Thus, the prosecutor's questions were material, germane, and within the scope of defense counsel's direct examination.
II. Admissibility of a Defendant's Statement Under Miranda and the Fifth Amendment
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court ruled that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." And two years before Miranda, the United States Supreme Court held that if there is any question regarding the voluntariness of a confession, the trial court should resolve it in a separate proceeding before the confession is submitted to the jury. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); State v. Lopez, 67 Wn.2d 185, 188-89, 406 P.2d 941 (1965).
In Washington, CrR 3.5 is designed to provide the protective procedures required by Jackson and Miranda. State v. Woods, 3 Wn. App. 691, 695, 477 P.2d 182 (1970). Thus, CrR 3.5's basic purpose is to provide a uniform procedure for the admission of voluntary confessions, as well as other incriminating custodial statements, in a fashion that will prevent the jury from hearing an involuntary confession. State v. Williams, 137 Wn.2d 746, 750, 975 P.2d 963 (1999); State v. Myers, 86 Wn.2d 419, 425, 545 P.2d 538 (1976). "The rule's significant impact is that the trial judge resolves the issue of voluntariness in the absence of the jury and thus obviates the due process problems that would arise where the jury hears an involuntary confession." Myers, 86 Wn.2d at 425.
CrR 3.5 was formerly CrR 101.20W. See State v. Williams, 137 Wn.2d 746, 750, 975 P.2d 963 (1999). After effective changes in 1973, CrR 3.5 now more generically governs the admission of any "statement of the accused." Williams, 137 Wn.2d at 751 (quoting CrR 3.5(a)). And CrR 3.5(a) provides:
When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible. A court reporter or a court approved electronic recording device shall record the evidence adduced at this hearing.
Although a hearing under CrR 3.5 is mandatory, a failure to hold a hearing should not by itself require automatic reversal. See State v. Summers, 52 Wn. App. 767, 774, 764 P.2d 250 (1988), review denied, 112 Wn.2d 1006 (1989); State v. Tim S., 41 Wn. App. 60, 63, 701 P.2d 1120 (1985); State v. Kidd, 36 Wn. App. 503, 509, 674 P.2d 674 (1983).
Thus, the State is not allowed to build its case in chief against a defendant with evidence acquired in contravention of Miranda and CrR 3.5. See Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990). But the use of statements so obtained for impeachment purposes is a different matter. Harvey, 494 U.S. at 350; State v. Davis, 82 Wn.2d 790, 793, 514 P.2d 149 (1973). "It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards." Harris v. New York, 401 U.S. 222, 224, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). Thus, the United States Supreme Court has held that the State may use a statement taken in violation of Miranda to impeach a defendant's credibility. Jenkins v. Anderson, 447 U.S. 231, 237-38, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980); Harris, 401 U.S. at 225-26. Rejecting the contention that such impeachment violates a defendant's Fifth Amendment right to remain silent, the United States Supreme Court stated:
The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. Similarly, article I, section 9 of the Washington State Constitution provides that no defendant in a criminal prosecution can be compelled to take the witness stand and testify against himself. Robideau, 70 Wn.2d at 996. Article I, section 9 of the Washington State Constitution is coextensive with, not broader than, the protection of the Fifth Amendment. State v. Earls, 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991); see State v. Moore, 79 Wn.2d 51, 483 P.2d 630 (1971).
Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.
Harris, 401 U.S. at 225 (citations omitted); see also Oregon v. Hass, 420 U.S. 714, 722-23, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). The United States Supreme Court also stated:
"In evidentiary terms, Harris allows impeachment by use of prior inconsistent statements, through which a defendant's credibility is attacked, by introducing a prior statement inconsistent with the defendant's in-court testimony." State v. Hubbard, 103 Wn.2d 570, 575, 693 P.2d 718 (1985).
In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, 412 U.S.[17,] 32, and n. 20, 93 S.Ct.[1977,] 1985, and n. 20[, 36 L. Ed. 2d 714 (1973)]. Attempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, "[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination." Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958).
Jenkins, 447 U.S. at 238 (fourth alteration in original). Finally, the United States Supreme Court stated, "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Harris, 401 U.S. at 226.
The only limitation on this rule is that the defendant's statements must have been voluntary; involuntary or coerced statements are still excluded for all purposes. Dickerson v. United States, 530 U.S. 428, 432-34, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000); State v. Glasper, 12 Wn. App. 36, 38, 527 P.2d 1127 (1974). A statement is coerced if it was obtained after the defendant's will was overborne. State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997).
Here, Kazmierczak argues that "there is some indication the trial court would have excluded the statement." Br. of Appellant at 13. But the record is devoid of any evidence regarding whether Kazmierczak's statement to Officer Lien was voluntary, involuntary, and/or coerced. And because there is no evidence of Kazmierczak's statement being involuntary and/or coerced, we decline to address this argument. See State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (Parties raising constitutional issues must present considered arguments to this court.). "We reiterate our previous position: naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion." Johnson, 119 Wn.2d at 171 (quotations omitted).
But even assuming constitutional error, i.e., that Kazmierczak's statement to Officer Lien was involuntary and/or coerced, it is subject to a harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Reuben, 62 Wn. App. 620, 626-27, 814 P.2d 1177, review denied, 118 Wn.2d 1006 (1991). Our Supreme Court has adopted the "`overwhelming untainted evidence'" standard in constitutional harmless error analysis. Guloy, 104 Wn.2d at 426 (quoting State v. Evans, 96 Wn.2d 1, 6, 633 P.2d 83 (1981) (Brachtenbach, J., concurring)). Thus, we look only at the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt.
Although Kazmierczak's trial counsel argued that Kazmierczak did not intend to deprive Parkhurst of her personal property, and Kazmierczak's appellate counsel argues that the use of his prior inconsistent statement to Officer Lien "seriously undermined [his] asserted voluntary intoxication defense," Br. of Appellant at 15, the untainted testimony of Parkhurst is so overwhelming that it necessarily leads to a finding of guilt.
Here, Parkhurst testified that Kazmierczak approached her and demanded her car keys. Parkhurst refused to give her car keys to him. And she twice hit Kazmierczak in the face with her fist. When her punches did not deter Kazmierczak, she reluctantly gave him her car keys.
Parkhurst testified that Kazmierczak then demanded her cell phone. Again, she refused to give him her cell phone because "[her] mom was on the phone." 2 RP at 50. She was afraid to lose contact with her. But Kazmierczak grabbed the cell phone with his right hand and grabbed Parkhurst's hair with his left hand. Parkhurst pulled away, dropped her belongings, and screamed for help. During this struggle, Kazmierczak ripped out a large patch of hair from Parkhurst's head. And during this struggle, Parkhurst also suffered a few minor injuries from falling to the ground. Thus, even assuming constitutional error, the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt.
On the other hand, assuming that Kazmierczak's statement to Officer Lien was voluntary, we affirm. Having voluntarily taken the stand, Kazmierczak was under an obligation to speak truthfully and accurately. Kazmierczak should not be able to testify that he did not remember the circumstances surrounding his arrest and pervert the shield provided by Miranda into a license to use perjury as a defense. Thus, under Harris, we hold that there was no error in permitting the prosecutor to impeach Kazmierczak with his prior inconsistent statement to Officer Lien. Moreover, under Harris, we hold that there was no error in permitting Officer Lien to testify, as a rebuttal witness, as to the inconsistent statement that Kazmierczak made on the night of his arrest. This manner of impeachment by the prosecution "did no more than utilize the traditional truth-testing devices of the adversary process." Harris, 401 U.S. at 225.
"`Inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done. On a comparison of the two utterances are they in effect inconsistent? Do the two expressions appear to have been produced by inconsistent beliefs?'" 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice, §§ 613.5, at 586 (5th ed. 2007) (quoting Sterling v. Radford, 126 Wash. 372, 375, 218 P. 205 (1923)); see also State v. Newbern, 95 Wn. App. 277, 292-96, 975 P.2d 1041, review denied, 138 Wn.2d 1018 (1999).
Therefore, finding no error or prejudice that affected the jury's verdict, we affirm the trial court's denial of Kazmierczak's motion for mistrial.
II. Double Jeopardy
Kazmierczak claims that punishing him for first degree robbery and third degree assault violates his Fifth Amendment right against double jeopardy. The State concedes error. We accept the State's concession.
A double jeopardy claim may be raised for the first time on appeal. RAP 2.5(a)(3); State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006).
In State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005), our Supreme Court held that "a case by case approach is required to determine whether first degree robbery and second degree assault are the same for double jeopardy purposes" and noted that "[g]enerally, it appears that these two crimes will merge unless they have an independent purpose or effect." Freeman, 153 Wn.2d at 780. Here, the third degree assault had no independent purpose and effect other than to force Parkhurst to submit to the robbery. Thus, the assault merged into the first degree robbery, and we vacate Kazmierczak's conviction for third degree assault accordingly.
In conclusion, we affirm the conviction of first degree robbery, vacate the conviction for third degree assault, and remand for resentencing.
Affirmed in part, vacated in part, and remanded for 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.
HUNT, J., QUINN-BRINTNALL, J. concur.