Opinion
No. 50206-9-I.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No: 96-1-00064-6. Judgment or order under review. Date filed: 03/12/2002. Judge signing: Hon. Susan K Cook.
Counsel for Appellant(s), Steven D52 McDonald (Appearing Pro Se), Mcc-Wa. State Reformatory, Special Offender Ctr./A-108, P.O. Box 514, Monroe, WA 98272-0514.
Sheryl Gordon McCloud, Attorney at Law, 1301 5th Ave Ste 3401, Seattle, WA 98101-2605.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 So. 3rd St, Mount Vernon, WA 98273-3867.
Steven McDonald appeals his conviction for first degree arson, arguing that the trial court improperly limited his examination of a State witness, that the evidence at trial was insufficient to support a first degree arson conviction, and that the information was fatally defective because it charged in the disjunctive. He also challenges the court's imposition of a sentence of life without parole as a persistent offender, raising a number of constitutional and nonconstitutional challenges. Finally, McDonald raises several issues in his pro se supplemental brief. We reject McDonald's arguments and affirm his conviction and sentence.
I
At Steven McDonald's trial for two counts of arson, the State introduced testimony from several witnesses who interacted with McDonald on the night of the fires. The first, cabdriver Dorothy Evans, testified that on the evening of the fires, she drove McDonald to the West Winds Motel in Mount Vernon. She helped him unload his bags and then left. At trial she testified that McDonald had commented about aliens being after him. The motel manager testified that she rented McDonald a room around 9:00 or 9:30 on the evening of the fires. McDonald called her later in the evening to complain that his neighbors in room 119 were fighting. About 3:30 a.m., he rang the night bell because he had locked himself out. Shortly after 5:00 a.m., police and fire responded to a fire on the mat and door of room 119.
Two other cabdrivers, Garold Hackley and Barry Campbell, also testified about driving McDonald in their cabs the evening of the fire. Hackley remembered picking up McDonald at Cascade Pizza about 2:00 a.m. and taking him across the street to his room at the West Winds. He remembered that McDonald was talking to himself in the back seat. Hackley waited while McDonald went inside his room to get money.
Campbell testified that at about 2:15 a.m., he picked up McDonald and drove him to the West Winds Motel. He waited while McDonald went to get his wallet and a white plastic bucket to put gasoline in. McDonald told Campbell that the gasoline was for a friend's car. Campbell then took McDonald to a gas station where he rented a gas can and purchased gasoline. After stopping at a fast food restaurant, Campbell took McDonald back to the motel. While waiting for McDonald, Campbell saw McDonald pour the gasoline from the can into the bucket. Campbell testified that he got a bad feeling, and left. He remembered that it was about 2:45 a.m. when he left.
Hackley picked up McDonald a second time around 5:00 a.m. He remembered that McDonald was carrying a bucket. In the bucket was a liquid that smelled like gasoline. McDonald told him that the gas was for a friend who needed it to get to the gas station. Hackley drove McDonald back to his motel room. He testified that the bucket recovered from McDonald's room matched the bucket McDonald carried that night.
Edith Clarke had been staying in room 119 with her husband Douglas and son Joseph. She testified that she first had contact with McDonald around 9:30 that night when he complained about noise coming from her room. At around 5:00 a.m., she woke after hearing McDonald talking to himself about starting a fire. While waking her husband, she heard a plop and saw flames through her window. She immediately went to the door and saw McDonald standing on the other side of the fire smoking a cigarette with a white bucket beside him. She called to her husband to get water to put out the fire. She testified that it took more than two buckets of water to extinguish the flames. When the fire department arrived, they discovered that her son Joseph's van was also set on fire.
When Sergeant Peter Lindberg of the Mount Vernon Police Department arrived, Edith told him that McDonald had started the fire. Lindberg contacted McDonald in his room, and smelled an odor of petroleum on him. The officer heard running water in the bathroom and asked McDonald why the water was running. McDonald told him he was getting ready to take a shower. Lindberg asked to check the bathroom, and found the faucet on full with water pouring into a square plastic bucket directly under the faucet. McDonald emptied the bucket into the tub and explained that he had been cleaning car parts. Lindberg then arrested McDonald.
A jury convicted McDonald of two counts of arson. Those convictions were later reversed due to a conflict of interest by his standby counsel. At his retrial he again proceeded pro se. The jury found him guilty of setting fire to the floor mat outside his neighbors' door and setting the van on fire. At sentencing, the trial court found that McDonald had two prior robbery convictions, both serious offenses under the Persistent Offender Accountability Act (POAA). This triggered a "three strikes" life sentence. Accordingly, the court sentenced him to life in prison without the possibility of parole. McDonald appeals his conviction and his sentence.
See State v. Smith, 150 Wn.2d 135, 139, 75 P.3d 934 (2003), cert. denied, 124 S.Ct. 1616 (2004) (explaining that POAA is part of the Sentencing Reform Act, RCW 9.94A.570, and mandates that courts sentence "persistent offenders" to life imprisonment without possibility of parole); see also RCW 9.94A.030(32)(a)(ii) (defining "persistent offender" as person with two prior convictions for `most serious offenses'").
II
McDonald raises a number of closely related challenges to the trial court's handling of his requests to investigate State witnesses. He argues that the trial court prevented him "from even investigating impeachment evidence." He asserts that the State breached its duty to disclose all prior criminal conduct of its witnesses, regardless of whether that conduct resulted in a conviction. Underlying this issue is the allegation that the State hid information from him. But McDonald fails to provide any specific example of such misconduct. Instead, he relies on an inference that Campbell's prior status as a police informant necessarily means that the State is hiding information.
Trial courts have broad discretion when choosing to admit or deny evidence. Appellate courts will not overturn such decisions absent an abuse of discretion. A trial court abuses its discretion only if its decision is manifestly unreasonable or is based on untenable grounds. McDonald argues that the trial court improperly limited his ability to impeach Campbell by preventing him from investigating Campbell's past involvement with the police and prior drug use. What McDonald apparently sought was a blank check to pursue any investigative thread he chose, regardless of the merits. But courts have broad discretion to limit such inquiries when they are "collateral to the principal issues being tried." As the State correctly points out, the court granted McDonald great leeway to investigate both Campbell and the arresting officers. The court provided $2,100 for an investigator and provided Campbell's court files and criminal history.
State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990).
Havens v. CD Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994).
State v. Oswalt, 62 Wn.2d 118, 120, 381 P.2d 617 (1963).
The trial court did not allow McDonald to review Campbell's medical records concerning his drug history. But this evidence was privileged, and McDonald provided the court with no basis for overcoming the privilege. The court's decision limiting McDonald's impeachment and investigation of Campbell was not an abuse of discretion.
McDonald also argues that the trial court improperly limited his questioning of Campbell. Throughout his pretrial motions, McDonald attempted to establish that Campbell was providing doctored testimony in exchange for leniency from the State. The court prohibited McDonald from pursuing this line of questioning by pointing to the absence of support for his claims.
The trial court did allow McDonald to impeach Campbell about his prior convictions and his drug use on the night of the fires. The State chose to address these in its direct examination. Campbell admitted using heroin on the night of the fire, and talked about his prior criminal convictions. On cross-examination, McDonald questioned him extensively about his continuing drug use, and the description of McDonald he gave the police.
McDonald attempts to characterize Campbell as the State's "informant witness." But McDonald provided no evidence linking Campbell's testimony in this case with any leniency or special favors by the State. The trial court correctly rejected his claims.
McDonald next argues that the State failed to disclose evidence of officer misconduct, and that this led to a Brady violation. But McDonald provides no evidence that the State or court suppressed evidence favorable to him. The trial court denied McDonald's request for any internal affairs investigations concerning Officers Lindberg and Ruxton, explaining that a discrepancy in witness stories was not a basis to examine internal investigation files.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The court gave McDonald great latitude to establish his theory that the arresting officers conspired to frame him. McDonald attempted to impeach Officer Ruxton about whether the statements obtained during his interview were correct. McDonald also questioned Ruxton about his motive for charging him as a persistent offender:
McDONALD: Isn't it also true that you and Sergeant Lindberg wanted to be the first in Skagit County to obtain a three strike conviction?
RUXTON: No.
Later, McDonald pursued this line of questioning again, asking Ruxton:
McDONALD: Isn't it true that once you found out that Mr. McDonald was psychologically disabled you decided to set him up for this and he had two prior felonies to become the first three strike person in Skagit County?
RUXTON: No.
In fact, McDonald pursued an aggressive line of questions, attempting to impeach the officer about numerous aspects of the investigation. The record simply does not support McDonald's assertion that the trial court improperly limited his right to confront Ruxton.
McDonald argues that there is insufficient evidence to support the third alternative means of committing first degree arson. Specifically, he argues that there is no evidence that the fire entered the hotel room when Edith opened the door to put out the fire.
When a defendant challenges sufficiency of the evidence, this court evaluates the evidence in a light most favorable to the State to determine "whether . . . any rational trier of fact could have found guilt beyond a reasonable doubt," taking all reasonable inferences from this evidence and interpreting it in favor of the State and "most strongly against the defendant." This is because claims of insufficiency admit the truth of the State's evidence and all inferences reasonably drawn from that inference.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 201.
Salinas, 119 Wn.2d at 201.
The State charged McDonald with first degree arson. The "to-convict" instruction provided that to convict McDonald of first degree arson, the State had to prove beyond a reasonable doubt:
The statute provides:
(1) A person is guilty of arson in the first degree if he knowingly and maliciously:
(a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen; or
(b) Causes a fire or explosion which damages a dwelling; or
(c) Causes a fire or explosion in any building in which there shall be at the time a human being who is not a participant in the crime; or
(d) Causes a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds.
(2) Arson in the first degree is a class A felony.
RCW 9A.48.020. The State charged McDonald with the first three alternate means of committing arson.
(2) That the fire:
(a) was manifestly dangerous to human life, or
(b) damaged a dwelling, or
(c) was in a building in which there was at the time a human being who was not a participant in the crime. . . .
Where a single offense may be committed in more than one way, the jury must be unanimous as to guilt for the crime charged, but unanimity is not required as to the specific means by which the crime was committed so long as substantial evidence supports each alternate means. Substantial evidence exists if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.
State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988).
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
Fire investigator Malone testified that there was damage to the motel room door, explaining that "there was damage to the veneer surface on the door, some surface burning. It had become a smoldering type fire. The material was actually beginning to burn." McDonald notes that while cross-examining Malone, he asked about his report and stated that, "There is no listing here [on the report] that [the victim] had told you that the door had actually been on fire, is that correct?" Malone agreed.
But McDonald wrongly focuses on his own evidence, and not the evidence the State presented. Direct testimony by victim Edith established that the door was on fire when she opened the door. The motel manager testified that the damage to the door required scraping and repainting. She explained that the damage went into the wood of the door. Substantial evidence supports the jury's conclusion that when Edith opened the door, the flames entered the dwelling.
McDonald next argues that the information was defective because it listed three alternate means of committing arson in the disjunctive. Both the federal and state constitutions protect defendants by requiring that they be informed of the nature and cause of the charges against them. When an information omits a statutory element of the charged crime, the information is constitutionally insufficient because it fails to state an offense. This requirement protects defendants by informing them of the charges and allowing them to prepare a defense.
U.S. Const. amend. VI; Wash. Const. art. I, sec. 22.
State v. Greathouse, 113 Wn. App. 889, 899, 56 P.3d 569 (2002), rev. denied, 149 Wn.2d 1014 (2003).
State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991).
"In an information or complaint for a statutory offense, it is sufficient to charge in the language of the statute if the statute defines the crime sufficiently to apprise an accused person with reasonable certainty of the nature of the accusation." Accordingly, because McDonald challenges this charging document for the first time on appeal, he has a heavy threshold to overcome.
State v. Leach, 113 Wn.2d 679, 686, 782 P.2d 552 (1989); see also RCW 10.37.050.
State v. Tandecki, 84 P.3d 1262, 1266 (2004).
The charging document charged three of the four alternative means of committing arson in the first degree. The language mirrors language found in the arson statute, RCW 9A.48.020. That language provided sufficient notice of the charges facing the defendant.
McDonald argues the United States Constitution requires a jury determination of his prior convictions. In State v. Wheeler, the Washington Supreme Court held that prior convictions resulting in a sentence under the POAA need only be determined by the trial judge at the sentencing hearing by a preponderance of the evidence. McDonald argues that Wheeler's holding is undermined by the U.S. Supreme Court's decision in Ring v. Arizona, and that the state constitution requires a jury determination of his prior convictions. But our Supreme Court squarely rejected this argument in State v. Smith. In Smith, the court concluded that for the purposes of the POAA, "neither the sixth amendment to the United States Constitution nor article I, sections 21 and 22 of the Washington Constitution includes the right to a jury determination of prior convictions at sentencing."
145 Wn.2d 116, 34 P.3d 799 (2001), cert. denied, 535 U.S. 996 (2002).
Wheeler, 145 Wn.2d at 123-24.
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (reversing state statute which provides that trial judge determines presence or absence of aggravating factors required for the imposition of the death penalty after jury verdict on underlying crime).
150 Wn.2d 135, 75 P.3d 934 (2003), cert. denied, 124 So. Ct. 1616 (2004).
Smith, 150 Wn.2d at 156.
McDonald next argues that he does not have the requisite three strikes because his 1978 armed robbery conviction was vacated in 1984. In the alternative, he claims that the restoration of his rights also serves to remove the conviction as a prior serious felony. Neither claim is correct. The 1984 document he presents did not vacate his 1978 conviction for armed robbery. The document clearly states that the sentence is vacated, not the underlying conviction. And after vacating his 1978 sentence, the court then substituted a new, shorter sentence.
McDonald also argues that his rights were restored under Florida law. He does not provide any evidence of this, only citing to the order vacating sentence and imposing a new sentence. Even assuming arguendo that a Florida court had restored his rights, this would not make his conviction inadmissible. As the State correctly points out, a restoration of rights does not affect offender scoring.
McDonald argues that his sentence of life without parole as a persistent offender under Washington's "three strikes" law is disproportionate to the crime he actually committed. He claims that if the court looks at the actual facts underlying his conviction and not the charge, the court will conclude that life without the possibility of parole is cruel and unusual punishment. But we disagree and conclude that under the test articulated in State v. Fain, his punishment is not constitutionally prohibited. Article I, section 14 of the Washington Constitution prohibits cruel punishment and provides more protection than its federal counterpart. Courts have ruled that such protections include safeguarding against sentences that are grossly disproportionate to the crime committed. To determine if a sentence of life in prison without the possibility of parole under the POAA is grossly disproportionate, appellate courts consider the four Fain factors: (1) the nature of the crime; (2) the legislative purpose behind the sentence; (3) the sentence the defendant would receive for the same crime in other jurisdictions; and (4) the sentence the defendant would receive for other similar crimes in Washington. No single Fain factor is dispositive.
94 Wn.2d 387, 617 P.2d 720 (1980).
Fain, 94 Wn.2d at 392 (holding that the defendant's life sentence for his third conviction for writing bad checks was cruel and unusual).
State v. Morin, 100 Wn. App. 25, 29, 995 P.2d 113 (2000).
Morin, 100 Wn. App. at 29 (citing Fain, 94 Wn.2d at 397).
See, e.g., Morin, 100 Wn. App. at 31-34 (noting that "it appears unlikely that [Morin's crime] . . . would result in life without parole" in other jurisdictions, but affirming the life sentence).
Under the first Fain factor, courts consider whether the crime is a violent crime and whether it is a crime against a person or property. Courts should also consider the actual facts of the case. Here, McDonald committed first degree arson, a class A felony. This is a most serious criminal offense. It is also a crime against a person. McDonald set a fire at the only entrance to a hotel room at 5:00 in the morning, knowing that a family was asleep inside. Clearly, the fire that McDonald set endangered a family. McDonald wrongly focuses on the fact that no one was injured, instead of the likely result of the fire had Edith not awoken in time to stop the fire from spreading. This deliberately set fire stands in marked contrast to the property crime in Fain.
Morin, 100 Wn. App. at 30.
Morin, 100 Wn. App. at 31.
See RCW 9.94A.030(28)(a).
Under the second Fain factor, this court examines the purpose of the POAA, which is to "provide a mandatory sentence based on the seriousness of the crime and a predetermined number of prior convictions for the most serious offenses." Our Supreme Court has also concluded that this includes the "deterrence of criminals who commit three `most serious offenses' and the segregation of those criminals from the rest of society."
State v. Thorne, 129 Wn.2d 736, 767, 921 P.2d 514 (1996).
Thorne, 129 Wn.2d at 775.
McDonald had previously committed two robberies, one with a firearm and the other using the threat that he had a firearm. The Legislature has categorized both crimes as "most serious offenses." Based upon this conduct, McDonald's sentence is consistent with the purposes of the POAA. Under the third Fain factor, this court looks at how other states would punish the same crime. Although McDonald argues that no other states impose life without parole for first degree arson, McDonald incorrectly focuses on sentences imposed absent a third strike. In fact, most states that have "three strikes" laws include first degree arson in the list of qualifying crimes. As our Supreme Court has acknowledged, "Washington's so-called `three strikes' law is similar to state and federal legislation throughout much of the United States." And as the State notes, six other states (including Illinois), include arson in the list of offenses that result in life sentences without the possibility of parole.
State v. Rivers, 129 Wn.2d 697, 714, 921 P.2d 495 (1996).
See, e.g.,720 Ill. Comp. Stat. 5/33B-1 (1994).
Finally, under the fourth Fain factor, first degree arson is a class A offense and it is a most serious offense. Other most serious offenses would also qualify an offender for life in prison if he had a prior first degree arson conviction. For example, in State v. Rivers, our Supreme Court determined that the defendant's sentence of life without parole did not violate either the federal or state prohibition against cruel punishment. Rivers' strikes were for second degree robbery, attempted second degree robbery, and second degree assault. McDonald's crimes — armed first degree robbery, second degree robbery, and arson — are as serious as Rivers'.
See RCW 9.94A.030(28)(a).
129 Wn.2d 697, 921 P.2d 495 (1996).
Rivers, 129 Wn.2d at 715.
Rivers, 129 Wn.2d at 704.
The Legislature has a right to discourage such behavior and protect the public from repeat offenders. Although McDonald's sentence may be more severe than he would have received in some other jurisdictions, it is far from unique. We conclude that McDonald's sentence constitutes neither cruel nor unusual punishment.
In his supplemental brief, McDonald raises several pro se arguments. He first argues that the court did not allow him to obtain counsel of his choice, and that the court forced him to proceed pro se. McDonald argues that he "got stuck doing this because nobody would represent me." This is an inaccurate characterization of the facts and McDonald's actions. On several occasions the trial court asked McDonald if he still wanted to proceed pro se, and explicitly offered to appoint him counsel if he wished. On each occasion McDonald declined.
McDonald did not assert to the court that he wished to obtain an attorney, or that he did not want to continue representing himself. At his arraignment hearing in July 2001, hired counsel appeared on McDonald's behalf. There, McDonald explained to the court that, "It was my understanding I'd come over, co-counsel or standby counsel, I still would be representing myself. That is what we were going to determine today." At his August hearing, the court asked McDonald if he was representing himself. He acknowledged that he was, and the court proceeded with McDonald's request for a Franks hearing.
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
In October, McDonald again appeared pro se, arguing his motion to modify the court's order limiting his access to photocopies and state resources for his federal claims against Skagit County. At one point in the proceeding, the court asked McDonald, "Are you asking for counsel?" McDonald replied, "No, I already got the brief done." And at the end of the hearing, the court again asked McDonald if he wanted counsel:
COURT: Mr. McDonald, at this point I want to be sure again, I'm happy to appoint counsel for you.
DEFENDANT: I'm fine.
COURT: You don't want counsel?
DEFENDANT: No.
McDonald presented several more motions at a hearing in mid-December. Near the end of the hearing, the trial court again asked McDonald, "How are we doing, Mr. McDonald, with your representing yourself?" McDonald replied, "I'm doing fine," and proceeded to bring his final motion.
At the pretrial conference held in January, the court asked McDonald if he planned to have anyone assist him at trial. McDonald replied that he did not. At the end of the hearing, McDonald asked the court
DEFENDANT: If I want I can have somebody at my table here?
COURT: If you want.
DEFENDANT: An advisor or something?
COURT: You can have an attorney.
DEFENDANT: That's what I'm talking about.
COURT: You have gone this far without them. I haven't asked you recently. I'm assuming you are still representing yourself?
DEFENDANT: Yeah, I'm still representing myself.
At no time was McDonald forced to choose between incompetent or unqualified counsel and self-representation. At every juncture, when asked about continuing to represent himself, he unequivocally chose to proceed pro se. McDonald fails to establish any prejudice.
McDonald also challenges the sufficiency of the evidence. Because the facts as established by Edith and the cabdrivers are sufficient to support McDonald's conviction, we reject this argument.
Finally, McDonald argues that the trial court erred by prohibiting him from using the police department policy manual to impeach the officers. At his August hearing, the court heard his motion to compel the Mount Vernon Police Department to release its policies and procedures manual. McDonald argued that it was a public document subject to the public disclosure act. The court eventually decided that if it was subject to the act, the defendant would receive the document. In the interim, the court concluded that it would conduct an in-camera review to determine whether the material was responsive to the defendant's claimed need for the document. The court concluded that it was not.
By denying McDonald access to the manual because it was not probative, the court ruled that it was not relevant. A review of the document shows that the court's conclusion is correct. McDonald cannot show prejudice or that any alleged error would have affected the trial's outcome.
AFFIRMED.
COLEMAN and AGID, JJ., concur.