Opinion
No. 34493-9-II.
October 9, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-00074-2, Frank Cuthbertson and Ronald E. Culpepper, JJ., entered March 3, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Penoyar, J.
Miles D. Parkison appeals his convictions of five counts of first degree robbery, three with accompanying firearm enhancements, and one count of second degree robbery. Through counsel, he argues that (1) the trial court denied him his right of self-representation; (2) the deputy prosecutor committed prosecutorial misconduct when he misstated the beyond a reasonable doubt standard in closing argument; and (3) his trial counsel was ineffective because he failed to object to the prosecutor's misstatements of the law in closing argument, failed to adequately object to certain evidence, and failed to object to an erroneous curative instruction. We also address the following issues Parkison raises pro se in a statement of additional grounds for review (SAG): (1) sufficiency of the evidence; (2) violation of his right against self-incrimination; (3) issues related to Detective Larry Andren's testimony about a rental car's license plate; (4) issues related to the admission of certain evidence; (5) wrongful denial of a second CrR 3.5 hearing following a mistrial; (6) erroneous trial court ruling on corpus delicti; (7) failure to grant his request for a pretrial line-up; and (8) double jeopardy. Finding no reversible error, we affirm.
RAP 10.10.
FACTS
Background
On December 19, 2004, a man robbed the Shell gas station located near Wright Park in Tacoma, Washington. On December 20, 2004, a man robbed a Subway sandwich shop located near the Shell station and, soon after, a Taco Del Mar restaurant and a Walgreen's Drug Store a few miles away from the Subway. The robber either displayed a gun or indicated he had a weapon during all four of these robberies. Some of the robberies were recorded on surveillance cameras, and the police released images from the robberies to the newspapers and television. The clerk at the Shell station saw the man leave the scene in a car and was able to provide the police with a license plate number and a description of the car.
According to the State's evidence, a short time after these robberies, Parkison's then girl friend, Jennifer Lonborg, told her friend and former boy friend, Jon Lagerquist, that Parkison told her he had committed the four robberies; Lagerquist notified the police.
Lonborg eventually spoke to Detective Andren, and confirmed that the robber in certain surveillance images appeared to be Parkison. She also told Andren that, at the time of the first four robberies, Parkison had had access to her gun and that the gun shown in the surveillance images was similar to her gun. In addition, she told Andren that Parkison had had access to her rental car.
On December 29, 2004, a man robbed a Payless Shoe Store and a Dollar Tree Store, which were located near each other on 6th Street in Tacoma. As with the earlier robberies, the man either displayed a gun or indicated he had a weapon during each of these robberies. Following the Payless robbery, a K-9 unit tracked the robber's scent to the Mark Twain Apartments located behind the store.
On January 3, 2005, the police arrested Parkison at his apartment in the Mark Twain Apartments. During a subsequent police interview, Parkison confessed to all six robberies, although he asserted he was never armed with anything other than a toy gun. The police tape recorded Parkison's confession. The officers obtained a search warrant for Parkison's apartment and found a toy gun in his dresser.
The State charged Parkison with six counts of first degree robbery, all of which carried firearm enhancements. Parkison pleaded not guilty, and the case proceeded to a jury trial. First Trial
Prior to the first trial, the trial court held a CrR 3.5 hearing and determined that Parkison's taped police interview was admissible. This proceeding is described in greater detail below.
Also prior to trial, Parkison repeatedly asserted that he wanted substitute counsel because he and his appointed counsel disagreed on trial strategy and other issues. The trial court initially denied Parkison's motion, but it ultimately granted the motion after Parkison filed a bar complaint against his counsel. In its written order, the trial court stated that it found "defendant[']s acts have created a conflict which requires substitution of [counsel]." Clerk's Papers (CP) at 40.
Parkison initially planned to present a duress defense. He asserted that he planned to show (1) some drugs had gone missing during a drug sting operation he was participating in as a police informant; (2) the drug dealers held him responsible for the missing drugs and had threatened him and his family; and (3) he committed the robberies only after he was unable to obtain assistance from the officers involved in the drug investigation. But Parkison apparently abandoned this defense, testifying at the first trial that he did not commit any of the robberies, that the taped confession was coerced, that he had not been advised of his Miranda rights during the interview, and that the detectives ignored his requests for counsel during the interview. Parkison was the only defense witness.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During the first trial, Parkison repeatedly interrupted the proceedings, demanding to speak directly to the jury during the course of the State's case to alert it that his trial counsel's representation was deficient, that he was not being allowed to obtain or review the evidence, and that the prosecution's evidence was not accurate. With the jury absent, the trial court admonished Parkison for his outbursts and instructed him that he was not allowed to talk to the jury during the State's case; he responded that he still intended to speak to the jury when it returned.
After Parkison repeatedly refused to restrain himself, the trial court and counsel discussed whether to remove Parkison from the courtroom or tape his mouth shut and place him in handcuffs so he could not remove the tape. Following extensive discussion, Parkison eventually agreed to remain quiet and, although he occasionally attempted to speak to the trial court, his behavior remained significantly less disruptive.
After two of the State's witnesses testified, outside the presence of the jury, defense counsel informed the trial court that Parkison was not happy with how the case was going, felt he was not "being fairly treated by the system," and was dissatisfied with defense counsel's investigation because counsel had had difficulty locating certain witnesses. 3 Report of Proceedings (RP) (Nov. 7, 2005) at 121-22. Defense counsel told the trial court that Parkison intended to "tell the jury himself what's going on." 3 RP (Nov. 7, 2005) at 122. After the trial court directed the deputy prosecutor to provide the defense with certain contact information, defense counsel told the trial court: "At this point, I have no control over what [Parkison] intends to do at this point as far as making some statement to the jury." 3 RP (Nov. 7, 2005) at 124.
The trial court then told Parkison that he was not entitled to make statements directly to the jury at this point. Parkison responded that he was frustrated by defense counsel's incomplete investigation. He also told the trial court, in detail, about the facts supporting his proposed duress defense. He continued to speak even though the trial court attempted to interrupt him, expressing his concern that no one involved in the drug investigation he allegedly worked in was stepping forward to assist with his defense.
After the trial court told Parkison that these were matters that defense counsel's ongoing investigation could resolve, the following discussion occurred:
[PARKISON]: I am going to let them know what I just told you, Your Honor.
THE COURT: You are not going to let them know right now, Mr. Parkison, we have other witnesses. You are not on the witness stand.
[PARKISON]: Fine, I am going to let them know. I am going to let them know.
THE COURT: It is not your turn to say anything.
[PARKISON]: Conflict here. Pardon me?
THE COURT: Not your turn to say anything to the jury.
[PARKISON]: Well, I am speaking pro se, then, by myself and conflict of interest here between me and my attorney. I am speaking pro se.
THE COURT: It is not your turn to say anything to the jury. It's the State's case. We are going to proceed with the State's case.
[PARKISON]: Fine, I am going to go pro se to the jury what's going on here, because all the evidence isn't put together. You guys were trying to make me look like I am the bad guy. Yeah, the crimes that I did are wrong; I admit to the act of the crimes. I admitted to what I did was wrong, okay? I was under duress.
THE COURT: Well that I —
[PARKISON]: What I did was wrong.
THE COURT: Mr. Parkison, you are going to have to be quiet. We have witnesses and a juror waiting.
Call the jury in and proceed with testimony from the witnesses. So let's get the jury.
[PARKISON]: I am done. Represent myself pro se. [DEPUTY PROSECUTOR]: Your Honor, is the court satisfied he understands?
THE COURT: He's to be quiet. We have got witnesses; we are going to hear from them.
[PARKISON]: That's fine.
3 RP (Nov. 7, 2005) at 129-30. After this discussion, the State presented several witnesses without further significant interruption.
The next day, however, after discussing the ongoing defense investigation, Parkison attempted once again to speak directly to the jury, repeatedly ignored the trial court's direction, and insisted he would speak to the jury despite the trial court ordering him not to. Eventually, the trial court threatened to remove Parkison from the courtroom or tape his mouth shut; Parkison still insisted that he would talk to the jury.
Stating that this was clearly an attempt by Parkison to force a mistrial because he was unhappy with how the trial was going and that it would deny any motion for a mistrial, the trial court again attempted to find a solution; Parkison continued to interrupt. Eventually, Parkison stated that, although he would still try to talk to the jury before any witnesses took the stand, he would not interrupt any of the State's witnesses. Finally, after more discussion, he agreed not to interrupt.
When the jury returned, the trial court instructed it to disregard "the prior disruption." 4 RP (Nov. 8, 2005) at 334. Ultimately, Parkison did not interrupt for the remainder of the State's case.
Throughout the trial, Parkison expressed frustration with his substitute counsel's lack of preparation and repeatedly asserted he had not been given access to various discovery materials. The trial ended in a mistrial on November 21, 2005.
Second Trial
The second trial was held from January 12 to 31, 2006, before a different judge.
A. Pretrial Motions
Prior to the second trial, Parkison filed numerous pro se motions. On December 29, 2005, he filed a motion to dismiss his defense counsel for conflict of interest and ineffective assistance of counsel. And on January 9, 2006, he filed a pro se motion "For Right to pro-se Representation." CP at 188.
These motions included motions (1) for the disclosure of a variety of evidence or the ability to subpoena certain evidence; (2) to admit or exclude certain evidence, including a motion to suppress his statements; (3) for a bill of particulars; (4) to dismiss the information; (5) for appointment and payment of various expert witnesses; (6) for a 15-day order of commitment to Western State Hospital to evaluate and diagnose his mental health conditions; (7) for release or bail; and (8) for dismissal based on insufficient evidence. He also filed an "omnibus application"; a supplemental "omnibus application"; and a motion entitled, "Motion to File Motions Practice Pretrial" (CP at 152), in which he argued that he was entitled to bring any and all pretrial motions and listed several types of motions, but did not present any argument related to any specific motion.
In his omnibus application, Parkison made dozens of requests, including requests for disclosure of various evidence and witnesses by the State, a request that the trial court dismiss the charges on the grounds of an insufficient information or indictment, and a request for a bill of particulars. He also moved to suppress certain physical evidence and identification evidence, requested that the trial court secure the appearance of certain witnesses at the new trial, inquired about conditions of pretrial release, and asked the trial court for appointment "of expert or for services other than counsel." CP at 96. In addition, he listed the witnesses and evidence he intended to rely on at trial and the defenses he intended to rely on. The defenses he listed were "[t]he lies of Detective Andrew [sic], Coercion, Miranda, [t]he lies of Jennifer Wright Laundborg [sic]." CP at 99.
On January 11, 2006, the trial court held a hearing to address pretrial motions. Stating that it had seen various motions in the court file but that it did not have bench copies of these motions and was unsure if it had already considered any of the motions, the trial court asked Parkison to explain the motions he had filed.
Parkison responded that (1) he had a conflict of interest with his defense counsel (the same counsel who represented him at the first trial) because he was "basically [not] going with what [he] want[ed] to do on this trial" (1 RP (Jan. 11, 2006) at 4); (2) his counsel was ineffective and was railroading him and not providing him with information; (3) the trial court should reevaluate whether his confession was admissible; (4) evidence related to Lonborg's rental car should be suppressed because Detective Andren admitted he lied about his investigation into this vehicle; (5) he wanted to subpoena records from car rental and insurance agencies to determine what car Lonborg actually rented; and (6) there was some unspecified evidence establishing that he was not in town when the crimes occurred that had not been addressed. He did not, however, state specifically that he wanted to act pro se. The trial court considered this to be a motion for ineffective assistance of counsel and orally denied it.
Parkison, however, continued to complain that he did not feel that the last trial was fair and asserted that numerous questions and issues had been avoided and not fully investigated. He asserted that there was information regarding "vehicles and the dates and times" he was not allowed to introduce; that he felt his counsel should have raised these issues; that his counsel should have brought up his medical history to help explain why he confessed to crimes he later denied committing; that his counsel did not question the witnesses fully; and that when he tried to say something, he was told to be quiet. 1 RP (Jan. 11, 2006) at 7.
In response, the trial court asked Parkison if he was familiar with the rules of evidence; Parkison replied that he was not. The trial court then advised him that he was potentially facing a 30-year sentence and that "that's not something you want to play with," and it asked whether he was on any medications. 1 RP (Jan. 11, 2006) at 9. Parkison replied that he was on "Lithium, Trazadone, and three or four other medications" for both mental and physical health reasons. 1 RP (Jan. 11, 2006) at 10.
The trial court then discussed whether there had been a prior CrR 3.5 hearing. Defense counsel stated that there had been one and that the first trial court found Parkison's statements admissible. But defense counsel also noted that during trial, the defense had raised the issues of whether the confession was accurate or coerced.
The deputy prosecutor argued that the previous trial court had resolved all the issues Parkison and his counsel were now raising and asserted that this was merely a delay tactic. He also emphasized that Parkison had already interfered with the case, stating:
Mr. Parkison at one point during the previous trial, for two and a half hours, had outbursts in the courtroom that almost resulted in him being duct-taped at counsel table. That's how out of control things got which can give the Court a sense of sort of where this trial may go if we continue to entertain these hand-raisings that he brings up and the issues he wants to raise despite being represented by counsel; we're going to be here for a long time.
1 RP (Jan. 11, 2006) at 15.
The trial court told Parkison and defense counsel to discuss two primary issues: (1) whether Parkison should be committed to Western State Hospital for a 15-day evaluation to determine if he was able to assist counsel; and (2) whether Parkison was capable of making an informed decision about waiving his right to counsel and proceeding pro se. As to the pro se issue, the trial court stated:
Mr. Parkison, that while defendants in Washington generally have a right to proceed pro se or on their own, they also — at least my understanding of the law is that they need to be able to knowingly, or I need to find that they can knowingly and voluntarily waive their right to counsel. At this point from our initial colloquy and I have further questions I may ask later, it doesn't appear, given your history, that you can make an informed decision to waive the right to counsel at this point.
1 RP (Jan. 11, 2006) at 16. The trial court then found no grounds for ineffective assistance of counsel and cautioned Parkison that if the evaluation determined he was capable of assisting with his defense, the trial would go forward and it would not tolerate any "going back and forth and playing any games." 1 RP (Jan. 11, 2006) at 17.
After Parkison talked to his defense counsel, defense counsel advised the trial court that there were some "issues" between him and Parkison, that Parkison did not necessarily agree with his trial tactics, and that throughout his representation there had been obvious "communication barriers" between them. 1 RP (Jan. 11, 2006) at 19. Defense counsel also asserted that Parkison had not previously mentioned being "on any type of psychotropic medications" (1 RP (Jan. 11, 2006) at 18), and stated that a competency evaluation might be appropriate to determine whether the drugs or Parkison's mental health issues were causing the conflicts and communication issues. He further stated that he did not think Parkison should act pro se, primarily because Parkison had only a seventh grade education and had never completed General Education Development (GED).
The deputy prosecutor objected to another competency evaluation, asserting that Parkison was merely attempting to interfere with defense counsel's ability to present the case. He noted that throughout the first trial it was clear Parkison could effectively communicate with his counsel. And he opined that Parkison was merely frustrated because he was unable to establish his duress defense during the first trial and he was now "stuck" with the general denial defense he presented at the previous trial. 1 RP (Jan. 11, 2006) at 20.
The trial court denied Parkison's request for another evaluation and stated that the trial would start the next day. Although it had previously indicated that it was not inclined to allow Parkison to proceed pro se, it did not comment on this issue again after defense counsel had expressed concern about Parkison's educational level.
B. Trial Testimony
At the second trial, the robbery victims all testified about the dates and times of the robberies and described the man who robbed them and, if they actually saw a gun, described the gun. Although there were some differences, their descriptions of the man and the gun were generally consistent. But none of the victims identified Parkison in court, and the testimony established that the witnesses from the Payless and Dollar Tree robberies had been unable to identify Parkison in a photo montage that contained his photograph.
Additionally, although forensic officers investigated the crime scenes, they did not find any of Parkison's fingerprints. The State also introduced several photographs and videos from the surveillance systems at some of the stores and investigation photographs from each robbery.
None of these exhibits is in the appellate record.
Only one of the victims, the clerk at the Shell station, testified that he saw or heard the robber leave in a car. He testified that the car was a grayish, four-door Ford Taurus or Saturn. He stated that he looked at the car's license plate and, although he was so shaken he did not recall doing it, he wrote down the number on a piece of paper. He reported this number to the police. At the second trial, however, all he could recall was "something about a nine." 3 RP (Jan. 17, 2006) at 103.
Parkison later addressed the trial court and asserted that the clerk's testimony about the car and license plate was inconsistent with his testimony at the first trial. But the record shows that at the first trial, the clerk testified that the car was a grayish four-door Ford Taurus or Saturn and that he noted the license plate number and reported it to the 911 operator. This testimony is consistent with his testimony at the second trial.
Lonborg later testified that on December 19 and 20, Parkison had access to a car she had rented from Enterprise Car Rental and that he admitted to her that he drove the rental car during the first four robberies. She further testified that she believed the rental car was a four-door Mitsubishi Eclipse that was "gold with a little bit of pink to it." 6 RP (Jan. 23, 2006) at 539.
Lonborg also testified that she had been living with Parkison, whom she had known for years, at the Mark Twain Apartments for a short time at the time of the first four robberies. During the second week in December 2005, they returned from a trip out of town to find that someone had been in the apartment, and she retrieved her silver Colt .45 revolver from her former boy friend and roommate, Lagerquist, and gave it to Parkison.
She also testified that she had been told that the gun had been modified and was not safe to fire. Lagerquist also testified that he believed the Colt was not safe to fire because of a problem with the cylinder. But a forensic scientist testified that she test fired the Colt, that it was operable, and that she did not consider the gun unsafe to fire in general. She noted, however, that it would be unsafe if someone used the wrong type of ammunition and that the hammer mechanism was not working properly.
She stated that on the night of December 20, Parkison came into the bathroom when she was showering with his hands full of money and told her that he had "ripped off some crack addict up on the Hilltop." 6 RP (Jan. 23, 2006) at 541. They had previously been on the Hilltop "trying to grab crack from people without paying for it," so she was not surprised. 6 RP (Jan. 23, 2006) at 541.
But she further testified that two days later, Parkison showed her a Crime Stoppers article in the local newspaper describing the first four robberies and told her that he was the robber pictured in the article. She stated that, although the photograph in the paper was blurry, she believed it looked like Parkison. She also testified that she had asked Parkison if he used her gun and that he said he had.
On cross-examination, however, Lonborg admitted that in her written statement she said that when she asked Parkison whether he had used her gun in three robberies, he told her that he had not committed the robberies. Despite this admission, she testified that her trial testimony was correct.
She then stated that she did not call the police at that time because she loved Parkison. Instead, the same day Parkison told her he had committed the robberies, she told Lagerquist about Parkison's admissions because she believed he would do the right thing with this information.
In addition, she testified that during December 2004, both she and Parkison were using crack cocaine and that they had started to pawn things, including the Colt revolver, to pay for drugs. She believed she pawned the gun on December 23 or 24, shortly before the last two robberies occurred.
Lonborg also examined photographs from the Subway surveillance system and testified that the gun in the photograph appeared to be her Colt and that the profile of the robber in one of the photographs looked like Parkison. She also testified that in one of the surveillance photographs, the robber was wearing a shirt similar to one she had given Parkison; that Parkison owned a baseball cap similar to the one described by several of the victims; that he had a bandana similar to one described by some of the victims; and that she had seen Parkison wearing the hat and bandana described by one of the robbery victims on December 20, when he showed her the money while she was in the shower.
She confirmed that at some point, approximately a week before Christmas, Parkison had contacted narcotics officers about crack dealers in the apartment complex and that they subsequently met with the detectives who asked her if she wanted to be part of a "sting." 7 RP (Jan. 24, 2006) at 650. She also testified that Parkison "had done work for them before." 7 RP (Jan. 24, 2006) at 649.
Officer Scott Shafner testified that he participated in Parkison's arrest on January 3, 2006. Prior to the arrest, Parkison had contacted his unit offering to provide drug information in exchange for money and he had been investigating Parkison's background to see if he would act as an informant for the special investigations unit when he found out about the arrest warrant for Parkison related to the robberies. He helped locate Parkison at his apartment and participated in the arrest. He testified that Parkison was cooperative. He also testified that he did not advise Parkison of his Miranda rights and that another officer transported Parkison to the police station.
Lagerquist also testified. He testified that he was a self-employed, general counselor and that he had lived with Lonborg and her son for 12 years before Lonborg started staying with Parkison. He confirmed that Lonborg had contacted him about the Crime Stopper's article and testified that she was frightened when she told him about it.
He also confirmed that Lonborg had a Colt .45 revolver, which she had kept in a gun safe at his house until she requested it from him sometime before December 20. In addition, he testified that Lonborg had rented a car because her car was in the shop for repairs; he believed the car was a metallic silver gray, four-door Dodge or Plymouth Neon.
Detective Andren testified that he was assigned to investigate the December 20 robberies. He believed these robberies were connected because the physical description of the robbers was similar. He later obtained some images of the robber from the surveillance systems at Subway and Walgreens. A Crime Stoppers article containing these pictures and an article about the robberies ran in the December 21 or 22, 2004 Tacoma News Tribune.
Detective Andren also testified that, based on the information he obtained from Lonborg and Lagerquist, he reviewed the rental car records from Enterprise Car Rental. The paperwork he examined showed that Lonborg had rented a silver Dodge Neon, with a license plate number of 714 SOV. Andren also testified that he did not obtain copies of the paperwork and that he never saw the car because someone else had rented it. Defense counsel strenuously objected to Andren's testimony based on the information he obtained from Enterprise; we discuss defense counsel's objections in greater detail below.
At the same time Parkison informed the trial court that the Shell clerk's testimony was inconsistent with his testimony at the first trial, Parkison also expressed concern that the license plate information Detective Andren testified to was to a Dodge Neon despite the fact Lonborg had actually rented a green Taurus and that the plate number Andren testified to "came out from nowhere"; he wanted to know where the officer got the license plate information. 6 RP (Jan. 23, 2006) at 435. Throughout the trial and in his numerous motions after trial and on appeal, Parkison contended that the license plate and car rental information was falsified.
Detective Andren also testified about his interview with Lonborg and her written statement. He stated that Lonborg identified Parkison as the robber in one of the surveillance photographs from Subway, recognizing his clothing and appearance as well as the gun. She also told him that she had pawned the gun and, when Andren located the gun, it "was very similar to the one used in the [Subway] robbery." 9 RP (Jan. 26, 2006) at 863.
Detective Andren later obtained additional information from the Payless and Dollar Tree robberies. After interviewing some of the witnesses from those robberies and obtaining some surveillance images from Dollar Tree, he obtained an arrest warrant for Parkison. He was not involved in the arrest, but he and Officer Bradley Graham interviewed Parkison after the arrest.
Detective Andren also testified about Parkison's police interview. As he did in the initial CrR 3.5 hearing, he testified that he advised Parkison of his Miranda rights before the interview and that Parkison voluntarily agreed to give a taped statement. He further testified that, although Parkison was initially in handcuffs, the detectives removed the handcuffs during the interview and that the interview was conducted in two parts, an unrecorded pre-interview and a taped interview.
During his testimony about the interview, Detective Andren periodically read from the transcript. Although Andren identified Exhibit 66 as a transcript of the taped portion of the interview, the exhibit was never admitted. There is nothing in the record indicating that the actual tape of the interview was ever in the courtroom.
He stated that Parkison initially denied involvement in the robberies but, after they confronted him with the information and photographs they had obtained, he "finally broke down, started crying, and said he'd like to get this done." 9 RP (Jan. 26, 2006) at 870. Parkison then confessed to all six robberies and admitted to using Lonborg's rental car. When they asked him if Lonborg knew about the robberies, he stated that he told her about them and had shown her the picture and article in the newspaper.
Detective Andren stated that, although they had described the incidents to Parkison, they did not tell him all the details that he later disclosed in his confession. Parkison did, however, deny using Lonborg's gun and claimed that he had used a toy gun instead.
Detective Andren further testified that Parkison also stated that after he robbed the Payless store, he walked to the Mark Twain Apartments along the same route the K-9 unit had tracked. Parkison also told the detectives that he committed the robberies to get money to pay off some drug dealers who had fronted him some cocaine and were threatening his family. The State rested after Andren testified.
As in the first trial, Parkison was the only defense witness. He once again denied committing any of the robberies and asserted that the confessions were coerced, that the officers never advised him of his Miranda rights, and that he was denied counsel during the interview despite his repeated requests for counsel. He also asserted that the confessions were coached.
Parkison also denied telling Lonborg that he had committed the robberies or driving Lonborg's car unless they were together, and he did not recall telling the detectives that he had committed the robberies to pay off some drug dealers that had threatened his family. At one point, he also asserted that he was not in town on December 19, 2004. In addition, he testified that Lonborg's rental car was a dark forest green, four-door Taurus, and denied driving the rental car on December 19 or 20, or telling Lonborg that he did. Following Parkison's testimony, the defense rested.
During his rebuttal to defense counsel's closing argument, the deputy prosecutor attempted to explain the reasonable doubt standard and the phrase "abiding belief." That argument is described in greater detail below.
The second jury convicted Parkison of five counts of first degree robbery, three with firearm enhancements, and one count of second degree robbery.
The first degree robbery convictions were on counts I, II, III, IV, and VI; the firearm enhancements were on counts II, III, and IV; and the second degree robbery conviction was on count V.
C. Post-Verdict Motions and Sentencing
After the verdict, but prior to sentencing, between February 23 and March 3, 2006, Parkison filed approximately 18 pro se motions with the trial court. These motions included motions for a new trial, motions to "fire" counsel, motions purporting to preserve issues for appeal related to false reports and testimony, motions regarding discovery of evidence, and a motion for a change of venue for appeal proceedings. At the sentencing hearing, defense counsel stated that there had been a total breakdown in communications with Parkison and moved to withdraw and substitute counsel. The trial court denied the motions. It does not appear that the trial court addressed any of Parkison's other motions.
After counsels' arguments at the sentencing hearing, the trial court informed Parkison that he had "an opportunity for elocution or to make a statement to the Court." RP (Mar. 3, 2006) at 7. Parkison asked the trial court what that meant and, when the trial court explained that he had a right to speak to the court or to the victims regarding sentencing, Parkison asked if he could "put anything like on the record for appeal." RP (Mar. 3, 2006) at 7. The trial court informed Parkison that he had a couple of minutes to say whatever he wanted to say.
Parkison proceeded to state that he wanted to put on the record for purposes of appeal that his confession was "threatened and forced" and that the officers pushed his head on the table. RP (Mar. 3, 2006) at 7. He also asserted that he requested subpoenas for the 911 tapes; other reports related to the Shell robbery; various witnesses; information related to the "second lease on the silver Dodge Neon"; and information from "State Farm Insurance, Stacy Wakefield, . . . Dan Salatino, . . . Randy's Pawn Shop," and that none of these requests was ever addressed. RP (Mar. 3, 2006) at 8. He then stated that "there is a RICO conspiracy racketeering going on involved here," that his "constitutional right" of "full discovery" was violated, and that the State had presented false police reports related to the rental car and a possible "second vehicle." RP (Mar. 3, 2006) at 8. At this point, the trial court interrupted, telling Parkison about his right to appeal and asking him if there was anyone present to speak on his behalf. Parkison responded no, and the trial court imposed sentence.
Parkison appeals.
ANALYSIS
Waiver of Counsel and Self-Representation
Parkison first challenges the trial court's refusal to allow him to represent himself pro se at his second trial. We review a trial court's denial of a defendant's request to proceed pro se for abuse of discretion. State v. Vermillion, 112 Wn. App. 844, 855, 51 P.3d 188 (2002), review denied, 148 Wn.2d 1022 (2003). A trial court abuses its discretion if its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. Vermillion, 112 Wn. App. at 855.
He also appears to raise this issue as one of several unnumbered grounds in his SAG. Because appellate counsel raises this issue, we do not address this SAG issue separately.
The Sixth Amendment allows a criminal defendant to waive his right to the assistance of counsel and to personally make his own defense. Faretta v. California, 422 U.S. 806, 819-21, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Our state constitution also guarantees the right to self-representation. See Wash. Const. art. I, § 22; Vermillion, 112 Wn. App. at 850.
The Sixth Amendment right to self-representation applies to the states through the Fourteenth Amendment. See State v. Luvene, 127 Wn.2d 690, 698, 903 P.2d 960 (1995).
To exercise this right, the defendant must affirmatively request to proceed pro se; the trial court is under no obligation to inform a defendant of the right to self-representation. State v. Fritz, 21 Wn. App. 354, 359, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979). An unjustified denial of the right to self-representation, once requested by the defendant, is a structural error that requires reversal without any showing of prejudice. State v. Woods, 143 Wn.2d 561, 585-86, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001); State v. Breedlove, 79 Wn. App. 101, 110, 900 P.2d 586 (1995).
The right to self-representation, however, is not absolute and may be "limited in the interest of both fairness and efficient judicial administration." State v. DeWeese, 117 Wn.2d 369, 375, 816 P.2d 1 (1991). A defendant's waiver of his right to counsel must be unequivocal, knowing, and intelligent, and must be made in a timely fashion. DeWeese, 117 Wn.2d at 376-77. If the defendant's motion is not timely, the defendant relinquishes his right to self-representation and the issue of his representation is left to the discretion of the trial court. State v. Stenson, 132 Wn.2d 668, 737-38, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). In determining if a request to proceed pro se is timely, the trial court generally must determine whether the request is made for the purpose of delay or for tactical advantage, and whether granting the request would hinder the efficient administration of justice. Stenson, 132 Wn.2d at 738.
Once the defendant raises the issue, the trial court should ensure that the defendant's decision is made with at least minimal knowledge of what the task entails, preferably through a colloquy on the record ensuring that the defendant understands the risks of self-representation. Vermillion, 112 Wn. App. at 851 (citing City of Bellevue v. Acrey, 103 Wn.2d 203, 211, 691 P.2d 957 (1984)). At a minimum, the court should apprise the defendant of the seriousness of the charge; the maximum potential penalty involved; and the existence of technical, procedural rules governing the presentation of his defense. Vermillion, 112 Wn. App. at 851 (citing Acrey, 103 Wn.2d at 211).
A. Unequivocal Request
The State argues that, although Parkison filed a written motion to proceed pro se, he never advised the trial court of this motion and, therefore, did not make an unequivocal request to represent himself as required under State v. Luvene, 127 Wn.2d 690, 698, 903 P.2d 960 (1995) (citing State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987)). It asserts that the record shows that, at most, Parkison advised the trial court that he was frustrated with his counsel's representation.
In Luvene, the defendant was frustrated because his trial counsel was not prepared for trial and stated that he would represent himself if it would avoid further delay, but the defendant also stated that he was unprepared and "out of [his] league." 127 Wn.2d at 699. In contrast, here, Parkison's numerous pro se motions show that he repeatedly attempted to act pro se and that he clearly believed he was better able to determine trial strategy and to obtain and evaluate evidence than his appointed counsel. Additionally, before his second trial, he never indicated that he desired to represent himself only because he felt it was his only option. Thus, the facts here, unlike those in Luvene, do not show that Parkison's request was unequivocal.
Furthermore, although the record shows that Parkison was frustrated with defense counsel's representation, that this was undoubtedly the reason he filed his motion to proceed pro se, and that this was the primary issue the trial court addressed, Parkison's frustration with defense counsel was not the only issue the trial court addressed. Not only did Parkison actually attempt to act pro se by filing multiple pretrial pro se motions, the trial court specifically noted Parkison had a right to act pro se and addressed whether he was capable of making an informed decision about waiving his right to counsel and proceeding pro se. Thus, it is clear that, despite Parkison's failure to orally present his motion to proceed pro se, the trial court understood Parkison wished to do so. Accordingly, we reach this issue.
B. Timeliness and Delay
Parkison contends that his request to proceed pro se was timely and would not result in delay because he never requested a continuance. We disagree.
Parkison filed his written pro se motion to proceed pro se on January 9, 2006; the trial court considered Parkison's pretrial motions on January 11; and jury selection began on January 12; thus, his request was made immediately before trial was to begin. When a request to proceed pro se is made as the trial "is about to commence," then "the existence of the right depends on the facts of the particular case with a measure of discretion reposing in the trial court in the matter." Vermillion, 112 Wn. App. at 855 (quoting Fritz, 21 Wn. App. at 361).
Although Parkison never expressly requested a continuance, he repeatedly argued that he wanted to raise and address issues not previously addressed by defense counsel and that he had been denied access to evidence necessary to present these arguments. Thus, if the trial court had allowed Parkison to proceed pro se,
[i]t is almost impossible to conceive the Defendant could have immediately assumed his own defense without a considerable delay for him to prepare himself to conduct an adequate defense. The record shows that granting [a] motion to proceed pro se would have delayed the trial and seriously hindered the administration of justice.
Stenson, 132 Wn.2d at 739 n. 16.
In addition, the record from the first trial reveals repeatedly that, although Parkison had no understanding of the rules of evidence, he felt strongly about protecting what he perceived as his rights and that he was more than willing to repeatedly assert his claims despite the trial court's rulings. Given this, it is highly likely that if Parkison were to act pro se, merely guiding him though the discovery process would have caused considerable delay. In fact, it is questionable whether Parkison would ever accept the trial court's decisions if he disagreed with them or that he would ever be ready to proceed to trial without the assistance of counsel.
In addition to the disruptive behavior during the first trial described in footnote 3, supra, at one point during the State's examination of Parkison during the second trial, after defense counsel had objected to the prosecutor's questions as argumentative, Parkison began to assert that some of the officers were lying and objected to the testimony regarding the license plate reported by the Shell clerk. Although the trial court repeatedly tried to interrupt, Parkison continued, stating, "Mr. Lagerquist, three time defender." 10 RP (Jan. 30, 2006) at 1083. Eventually, the corrections officer instructed Parkison that he needed to "listen to the Judge." 10 RP (Jan. 30, 2006) at 1083. Additionally, Parkison's actions after the verdict and during sentencing strongly suggest Parkison had difficulty following the trial court's instructions and grasping procedural concepts. Although these things occurred after the trial court considered Parkison's request to proceed pro se, they further demonstrated that Parkison had considerable difficulty following the trial court's directions or allowing the trial court to manage the proceedings.
As noted above, in determining whether a request to proceed pro se is timely, the trial court generally must determine whether the request is made for the purpose of delay or for tactical advantage and whether granting the request would hinder the efficient administration of justice. Stenson, 132 Wn.2d at 738. The record does not show how Parkison would have obtained a tactical advantage and Parkison's views may well be sincerely held even if the related delay was not for the purpose of delay. This was Parkison's second trial. He brought this motion just days before the second trial; he lacked understanding of the law, and he was persistent and unrestrained. Allowing him to proceed pro se would have hindered the trial and the administration of justice. Thus, the trial court did not abuse its discretion in refusing to allow Parkison to act pro se.
C. Lack of Education or Legal Training
Parkison further argues that under Vermillion, the trial court could not deny his request to proceed pro se based solely on his lack of education or legal training. As discussed above, this was not the only reason to deny Parkison's request; there were several factors indicating that allowing Parkison to act pro se at this point in the proceedings would cause unnecessary delay.
Furthermore, although Parkison correctly asserts that he was not required to show any technical knowledge or that he had the ability "to secure himself a fair trial," Vermillion, 112 Wn. App. at 858 (quoting State v. Hahn, 106 Wn.2d 885, 890 n. 2, 726 P.2d 25 (1986)), because Parkison made this request so close to the trial date, the trial court could also consider the other factors, such as the extraordinary delay self-representation would have likely caused in this case. Unlike the defendant in Vermillion, Parkison did not ask to proceed pro se a week before jury selection and he did not indicate that he was fully prepared to proceed. Thus, the facts show that there was a legitimate concern about the orderly administration of justice at that point and there was more than Parkison's lack of technical abilities to justify denying him the right to proceed pro se.
D. Deputy Prosecutor's Representation of the Record
Parkison also asserts that the trial court denied his request to proceed pro se in part because of the deputy prosecutor's erroneous assertion that his behavior at the first trial demonstrated he would get out of control if he were allowed to represent himself and that his purpose was delay. In a related argument, he asserts that defense counsel was ineffective for not attempting to correct the trial court's misconceptions, based on the prosecutor's misrepresentations, about his behavior during the first trial.
The record from the first trial shows that Parkison was periodically disruptive and that he repeatedly refused to accept the trial court's rulings to the point the trial court considered removing him from the courtroom. And, as noted above, Parkison's actions in the first trial are relevant to evaluating his ability to represent himself without hindering the administration of justice. Furthermore, even though Parkison's actions may not have actually been for the purpose of delay, the first trial court at one point concluded that they were.
Accordingly, the deputy prosecutor did not misrepresent the record from the first trial and this argument has no merit. Furthermore, because the deputy prosecutor did not misrepresent the record, defense counsel was not ineffective for failing to object to the deputy prosecutor's characterization of the record.
To show ineffective assistance of counsel, Parkison must show that defense counsel's performance was deficient and that this deficiency was prejudicial. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Parkison also appears to argue that the deputy prosecutor misled the trial court into thinking that Parkison was requesting to be allowed to proceed in a hybrid fashion, allowing him to have counsel and act pro se, and that he was "counsel shopping." Br. of Appellant at 24. But there is nothing in the record showing that the trial court based its decision on either of these grounds; the trial court clearly addressed pro se representation, not any type of hybrid representation or substitution of counsel issues. Prosecutorial Misconduct
Parkison next asserts that he is entitled to a new trial because the deputy prosecutor misstated the standard of the burden of proof "in several ways" during his rebuttal to Parkison's closing argument. Br. of Appellant at 30. He also argues that defense counsel provided ineffective assistance because he failed to object to the prosecutor's misstatements of the law.
A. Related Facts
Prior to closing argument, the trial court instructed the jury that:
The attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.
2 CP at 210.
It also instructed the jury:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff, and has the burden of proving each element of the crime beyond a reasonable doubt.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
2 CP at 211.
In his closing argument, the deputy prosecutor stated:
Any remarks that I might make or [defense counsel] might make for his closing or my remarks in my rebuttal are intended to help you understand the law and apply both the evidence that you heard to the law as the Judge gave it to you.
11 RP (Jan. 31, 2006) at 1108.
In his rebuttal to Parkison's closing argument, the deputy prosecutor further stated:
What I want to leave you with is — the measuring stick that you use in this case is beyond a reasonable doubt, and that's contained in Instruction No. 1 — or Instruction No. 4, I'm sorry. The State has to prove every element in those to-convict forms, each one of those elements, beyond a reasonable doubt. The instruction will tell you that beyond a reasonable doubt of what that is, but there's some things to look at what it's not, okay. It's not beyond a shadow of a doubt. It's not beyond all doubt whatsoever. It's not 100 percent convinced. It's not absolute certainty. It is a doubt for which a reason exists, a reason that arises from the evidence or the lack of evidence. A doubt that would arise from the evidence would be like my car crash situation. A witness comes in, takes the stand, and says nope, the light was red when the blue car entered the intersection, and everybody else has said that the blue car had the green light. Well, if all the other witnesses were sleeping or not paying attention or doing something else, and you had that last witness come in and saying, well, I was standing right there; the light was red. You're going to assess the credibility of all those witnesses and that positive statement is going to be a doubt that arises from the evidence.
Now, a doubt that arises from the lack of evidence would be a situation where no one testified to a certain thing. No one said the accident happened at Third and Main. You heard about this accident for days and days and days, but not a single person said where it happened, and if the State has to prove that it happened at Third and Main, you can't get there.
The lack of evidence is not an open invitation for the jury to say, well, you know, it would really be nice if they had a witness that came in and said it happened at Third and Main. The lack of evidence is not an open invitation to speculate as to what you could have heard, what you should have heard. You heard the evidence that was admissible in this case. The lack of evidence is not an open invitation for you — for the jury to decide, you know, what Mr. Jones should have called XYZ and another 123 to prove to us beyond a shadow of a doubt, beyond all doubt whatsoever, or that I would be hundred percent convinced; that's not what the standard is. A doubt for which a reason exists, and what's your measuring stick for this reason? It is a doubt that would exist in the minds of a reasonable person after fully, fairly considering all of the evidence or the lack of evidence, a reasonable person. You, ladies and gentlemen of the jury, are the reasonable person's standard to be applied in this case.
Finally, after you've applied your common sense measuring stick to the reasonableness of this doubt, if you have an abiding belief in the truth of the charge, you are convinced beyond a reasonable doubt.
Now, abiding belief. It had to have been a lawyer that came up with that one because there's a word you probably use every single day in your life. You get up in the morning, you know, I have an abiding belief that I'm going to have a bowl of Cheerios this morning. Abiding belief: Abiding, lasting, strong, withstanding the test of time; something that's not to be taken lightly. You know, I would submit to you that you make decisions every day and you have an abiding belief in the province of making that decision. Think about deciding to have major surgery, you know, you explore the issues; you explore all the options and you take that leap of faith and let the doctor do the surgery. Buying a house, is this the right house for us? You do everything you possibly can do to check it out, and at a certain point, you just have to let go and just do it. It may be as simple as — you know, you're driving down crowded I-5 and you decide to change lanes. You look and it's clear. You look again and it's clear, and you start to go. You have an abiding belief in making that decision. And no, being a juror is not like driving down I-5 and changing lanes in heavy traffic, but these are terms — the law that's given to you are terms that you are familiar with; you're just not familiar with them in that specific context. And once you are convinced the State has proved every element beyond a reasonable doubt, you will then get a chance to return your verdict.
I'll give you an example. A friend of yours gave you a jigsaw puzzle for Christmas this year, and the box is simple brown, front, back and sides. No markings, no labels. You know, he says I got this jigsaw puzzle from my grandmother, and it's either a picture of Sumner, Tacoma, or Seattle. I can't remember which, but here, have the puzzle. So you start putting the pieces together, and you work on it for a couple days, and all of a sudden you get the upper right hand corner of the puzzle done, and you look at that, and you go, okay, that could be Sumner, that could be Tacoma, or that could be Seattle because that mountain looks pretty dang familiar, and it seems to me, you can see it from all those places. So you dump a bunch more pieces on the table and start working another corner, and the next thing you know, you get the whole right side of the picture done, and you think to yourself: Not a lot of tall buildings in Sumner the last time I was there. Could be downtown Tacoma, could be downtown Seattle, but you're not sure yet what that picture is all about, so you start working on some more pieces. And as you start to put that left-hand side together, you know what? You know what that picture is of. You are convinced beyond a reasonable doubt at this point that that jigsaw puzzle is a picture of downtown Seattle, despite the fact that almost half of that picture is still missing, and just to make sure, you get the rest of the puzzle pieces and you put it together. You know what? Once that puzzle is finished, you look at it. It's pretty much the same in your mind completed as it was when half of it was missing.
11 RP (Jan. 31, 2006) at 1163-68 (emphasis added). Defense counsel did not object to any portion of this rebuttal.
B. Standards of Review
To establish prosecutorial misconduct, Parkison must prove that the prosecutor's conduct was improper and that this improper conduct prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Parkison can show prejudice if he establishes that "there is a substantial likelihood the instances of misconduct affected the jury's verdict." Dhaliwal, 150 Wn.2d at 578 (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal, 150 Wn.2d at 578; State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
Parkison's counsel did not object to the deputy prosecutor's statements below. Thus, Parkison waived his right to assert prosecutorial misconduct unless the deputy prosecutor's remarks were so "flagrant and ill intentioned" that they caused enduring and resulting prejudice which a curative instruction could not have remedied. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
But even assuming that Parkison waived his right to challenge the deputy prosecutor's statements, he may still raise this issue in the context of an ineffective assistance of counsel claim. To establish ineffective assistance, Parkison must show that (1) defense counsel's performance was deficient, and (2) this performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). To prevail on a claim of ineffective assistance of counsel, the defendant must overcome a strong presumption that defense counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
C. Arguments
Parkison raises three issues related to the deputy prosecutor's rebuttal. First, referring to the first italicized paragraph in the above quote, he contends that the deputy prosecutor's "comparison of proof beyond a reasonable doubt to the certainty people use in important everyday decisions was improper," and trivialized the standard. Br. of Appellant at 32-33. Second, in a related argument, he contends that this same portion of the prosecutor's rebuttal was also improper because it focused the jury "on the certitude the jury would need to take action, rather than to hesitate to act," and asserts that "[t]he use of such analogies `has generally been condemned.'" Br. of Appellant at 34. And third, he contends that the second italicized paragraph, in which the deputy prosecutor analogizes to the process of recognizing a jigsaw puzzle, was improper because it also trivialized the standard and because the "degree of certainty required to `know' what a puzzle picture is nowhere near the degree of certainty required for proof beyond a reasonable doubt." Br. of Appellant at 35-36.
Even assuming that these comments were a misstatement of the law, had defense counsel objected, the trial court could have instructed the jury to ignore these comments because they were not accurate statements of the law. And these comments were not so "flagrant" or "ill intentioned" that a simple curative instruction would not have remedied any possible prejudice. But, although this resolves the prosecutorial misconduct issue, it does not answer the question of whether defense counsel was ineffective for failing to object to these statements.
Case law supports Parkison's first two arguments.
In Scurry, the trial court, in an attempt to explain the concept of reasonable doubt,
told the jury that "[i]n order to establish proof beyond a reasonable doubt, the evidence must be such that you would be willing to act upon it in the more important affairs of your own life," and that "if . . . you have an abiding conviction of the defendant's guilt, such as you would be willing to act upon in the more weighty and important matters in your own affairs, then you have no reasonable doubt."
Scurry v. United States, 347 F.2d 468, 469-70 (D.C. Cir. 1965), cert. denied, 389 U.S. 883 (1967). On review, the District of Columbia Circuit found that this statement was an inaccurate statement of the law, explaining:
Being convinced beyond a reasonable doubt cannot be equated with being "willing to act . . . in the more weighty and important matters in your own affairs." A prudent person called upon to act in an important business or family matter would certainly gravely weigh the often neatly balanced considerations and risks tending in both directions. But, in making and acting on a judgment after so doing, such a person would not necessarily be convinced beyond a reasonable doubt that he had made the right judgment. Human experience, unfortunately, is to the contrary.
The jury, on the other hand, is prohibited from convicting unless it can say that beyond a reasonable doubt the defendant is guilty as charged. Thus there is a substantial difference between a juror's verdict of guilt beyond a reasonable doubt and a person making a judgment in a matter of personal importance to him. To equate the two in the juror's mind is to deny the defendant the benefit of a reasonable doubt.
Scurry, 347 F.2d at 470.
In Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954), the Supreme Court also addressed a similar instruction. Although the Court found that the instruction was arguably improper and should have, instead, been phrased "in terms of the kind of doubt that would make a person hesitate to act . . . rather than the kind on which he would be willing to act," it ultimately held that this instruction "was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some." Holland, 348 U.S. at 140. It stated:
Even more insistent is the petitioners' attack, not made below, on the charge of the trial judge as to reasonable doubt. He defined it as "the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon." We think this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, see Bishop v. United States, 71 App. D.C. 132, [137-138, ]107 F.2d 297, 303 [(D.C. Cir. 1939)], rather than the kind on which he would be willing to act. But we believe that the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some. A definition of a doubt as something the jury would act upon would seem to create confusion rather than misapprehension. "Attempts to explain the term `reasonable doubt' do not usually result in making it any clearer to the minds of the jury," Miles v. United States, 103 U.S. 304, 312 [13 Otto 304], 26 L. Ed. 489[(1881)], and we feel that, taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.
Holland, 348 U.S. at 140. Other courts have also found that, taken in context, this type of error may not be reversible error. Ramirez v. Hatcher, 136 F.3d 1209, 1213-14 (9th Cir.), cert. denied, 525 U.S. 967 (1998); United States v. Jaramillo-Suarez, 950 F.2d 1378, 1386 (9th Cir. 1991) (reversal not required where this instruction "taken in context with all of the other instructions, did `not detract from the heavy burden suggested by the use of the term "reasonable doubt" standing alone'") (quoting United States v. Nolasco, 926 F.2d 869, 873 (9th Cir.) (en banc), cert. denied, 502 U.S. 833 (1991)); United States v. Robinson, 546 F.2d 309, 313-14 (9th Cir. 1976), cert. denied, 430 U.S. 918 (1977).
These cases suggest that, although the prosecutor's argument was improper, defense counsel's failure to object was not prejudicial error. These cases are not, however, necessarily dispositive. We can find no Washington cases citing Holland or its progeny for this issue. Furthermore, the above cases were decided in jurisdictions that did not require that trial courts instruct the jury on the meaning of "reasonable doubt," while this state does, State v. McHenry, 88 Wn.2d 211, 214, 558 P.2d 188 (1977), which would arguably alter the harmless error analysis. But despite this difference, we must still consider the alleged inappropriate arguments in the Page 33 context of the deputy prosecutor's argument as a whole and the court's jury instructions. Dhaliwal, 150 Wn.2d at 578.
The first part of the deputy prosecutor's rebuttal, which Parkison does not challenge, emphasized that the reasonable doubt standard was a heavy one and accurately stated the law. The trial court's instructions, which Parkison also does not challenge, further emphasized this burden and are accurate statements of the law. Given this context, the deputy prosecutor's later argument, although likely error, was not likely prejudicial and defense counsel could have made a legitimate tactical decision to not draw undue attention to this portion of the argument by objecting. Accordingly, Parkison's ineffective assistance of counsel argument based on these statements fails.
Turning to Parkison's third argument, his challenge to the deputy prosecutor's puzzle analogy, it appears that this argument is completely without merit.
The gist of the puzzle analogy is that even if the jurors are not present when the crimes were committed and do not have a complete picture of each offense, they can still understand what happened to a level of certainty that satisfies the reasonable doubt standard. Additionally, this analogy is consistent with 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 65 (2d ed. 1994), which states in part:
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
Taken in context, the puzzle analogy is not a mischaracterization of the law. Accordingly, this remark was not prosecutorial misconduct, nor was defense counsel's performance deficient when he failed to object to this analogy.
Additional Ineffective Assistance of Counsel Arguments
Parkison further argues that defense counsel was ineffective for failing to timely object to certain evidence and failing to timely object to an erroneous curative instruction.
A. "Dog Track" Evidence
At the second trial, Officer Kenneth R. Gamble testified that he helped investigate the Payless robbery and that a K-9 unit tracked a scent from the store to the vicinity of the Mark Twain Apartments, where Parkison lived. Defense counsel objected to this testimony on hearsay grounds; the trial court initially overruled the objection. Gamble also testified that he did not assist with the dog and was not personally aware of what happened. He also testified that he had no knowledge relevant to the reliability of the K-9 unit that was involved in this investigation.
The State also introduced some evidence of the dog tracking in the first trial. Whether that evidence was properly admitted is irrelevant because that trial ended in a mistrial.
After Officer Gamble finished testifying, and out of the presence of the jury, defense counsel renewed the objection to the dog tracking evidence on hearsay grounds and for lack of foundation and moved to strike all testimony related to the dog tracking. He asserted that there was no evidence regarding the reliability of the dog tracking, the reliability of the K-9 used to investigate this incident, or the dog's training. The trial court denied this motion as well. The next day, however, the trial court announced it had reconsidered its ruling on this issue and determined that a limiting instruction would be proper unless the State first proved the foundational requirements as to where the dog tracking ended.
The State called Officer Joe Bundy to attempt to establish the foundation. Bundy testified that he investigated the Payless robbery with Officer Gamble. When the K-9 unit from Puyallup responded, Bundy accompanied the dog and handler as they attempted to follow the scent trail. Although he was not trained as a K-9 handler, Bundy had been instructed on how to assist K-9 officers and he had done so before.
He testified that the dog started to track a scent trail from the corner of the Payless building and headed directly between the store and a neighboring Subway restaurant. The dog then went past a dumpster and recycle bin, into the parking lot adjacent to building H of the Mark Twain Apartments, and up to building H; it did not go to any specific apartment. While crossing the field, the dog initially stopped at a pile of clothes that were in the middle of the field; Officer Bundy could not recall what the clothing looked like or whether he took that clothing as evidence.
Officer Bundy also testified that, although he had assisted K-9 units before, he was not trained to handle a dog and he could not testify about how the weather conditions or other factors could have affected the dog's ability to track. Additionally, he testified that he did not have any knowledge of the specific dog's training and did not know if it was trained to track humans, drugs, or both.
After the State rested its case, defense counsel renewed his argument that the State failed to establish a foundation for the dog tracking evidence. The trial court once again denied the motion.
The record clearly shows that defense counsel objected to the dog tracking evidence both on hearsay and foundational grounds. To the extent Parkison is arguing that defense counsel should have objected to this evidence earlier, he cannot show that this failure was prejudicial.
Furthermore, at the second trial, one or more of the robbery victims testified as to each robbery and, although none of them specifically identified Parkison, they all described someone with the same general physical characteristics. Additionally, not only did the jury hear that Parkison told Lonborg he had committed the first four robberies, the State presented evidence that Parkison admitted during the police interview that he had committed all six robberies. Given this evidence, any error in admitting the dog tracking evidence without a sufficient foundation is clearly harmless error, and Parkison does not establish the prejudice necessary to support his ineffective assistance of counsel argument.
Interestingly, Parkison does not directly challenge the trial court's admission of this evidence or refusal to later strike any of the dog tracking evidence. But even if he had, the same harmless error analysis would apply.
B. Erroneous Curative Instruction
During the second trial, Detective John Bair briefly testified about how he assembled the photo montage shown to some of the robbery victims from the Payless and Dollar Tree robberies. He testified that, after he received information that Parkison was a person of interest in the robberies, he attempted to find a recent photograph of Parkison to include in the photo montage. He then stated:
I was given the name of the defendant that's in the courtroom, and I did a criminal check on him and found that our last booking photo showed a 1995 booking, and because the photo was so old, I contacted the Department of Licensing and obtained —
7 RP (Jan. 24, 2006) at 670.
The trial court immediately interrupted Detective Bair's testimony and held a side bar outside the jury's presence. On the record, the trial court expressed its concern about Bair mentioning prior misconduct, bad acts, or convictions by referring to the booking photo and directed the deputy prosecutor to tell Bair not to mention any prior convictions.
Defense counsel moved for a mistrial based on this testimony. The deputy prosecutor responded that a mistrial was premature and requested a curative instruction directing the jury to disregard the testimony. Despite defense counsel's assertion that a curative instruction would be ineffective, the trial court denied the motion for mistrial.
The trial court then gave the jury the following oral curative instruction:
I want to give you what we call a curative instruction, and the detective, Detective Bair, was talking about how he got some information and mentioned some conviction information, and I'm going to ask you to disregard that testimony; the complete response that was given in its entirety.
7 RP (Jan. 24, 2006) at 675 (emphasis added). Detective Bair then testified that he showed a photo montage containing Parkison's driver's license photograph to three witnesses, but none of these witnesses identified Parkison from the photo montage.
Sometime later, after the State had presented another witness, defense counsel objected to the trial court's oral curative instruction and moved for a mistrial, arguing that the instruction should not have referred to any "conviction information" because Detective Bair had referred to a booking and not a conviction. Although the deputy prosecutor agreed that the reference to a conviction was improper, he argued that this error was not material. The trial court denied the motion for mistrial, concluding that the instruction was, in effect, just instructing the jury to disregard the testimony.
Parkison does not directly challenge the trial court's denial of the motion for mistrial.
Although defense counsel should have immediately objected to the trial court's erroneous curative instruction, as with the dog tracking evidence, it is highly unlikely that a brief reference to a booking photograph and the trial court's mischaracterization of this testimony as a reference to a conviction was harmful error. In addition to the victims' testimony describing a robber who appeared similar to Parkison, Parkison's confession to Lonborg, and Parkison's confession to the police, there was considerable evidence that Parkison had had prior contact with the police. Given this, it is unlikely that these errors affected the verdict, and Parkison cannot establish the prejudice necessary to prove his ineffective assistance of counsel claim on this ground.
C. Cumulative Ineffective Assistance of Counsel
Parkison asserts that these errors taken together establish that his trial counsel's performance was ineffective. The cumulative effects of errors may require reversal, even if each error on its own would otherwise be considered harmless. See State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004).
But the State presented very strong evidence, including Parkison's confessions to both Lonborg and the police. Given this evidence, even the cumulative effect of these two errors does not establish prejudice depriving Parkison of a fair trial. SAG Issues
Parkison's SAG lists 53 enumerated additional grounds for relief and two additional pages of what appear to be multiple unnumbered additional grounds. We address those grounds which are adequately stated and supported.
A. Issues Not Considered
1. Grounds Not Sufficient for Review
Although Parkison is not required to cite to the record or authority in his SAG, he must still "inform the court of the nature and occurrence of [the] alleged errors," and we cannot become Parkison's counsel and search the record to find support for his claims. RAP 10.10(c). Several of Parkison's enumerated grounds are not sufficient to allow review, and we cannot reach them. Additionally, several of the issues in Parkison's attached list are also not specific enough to address.
These issues are: (1) a vague allegation possibly relating to a motion in limine regarding a car; (2) an assertion that a motion in limine was untimely filed; (3) a general assertion of prosecutorial misconduct; (4) a general assertion of ineffective assistance of counsel; (5) "rights to impeachment of witnesses WAS denied"; (6) denial of right to have witnesses testify on his behalf; (7) a general reference to the Code of Judicial Conduct; (8) a general assertion that the jury was misled by irrelevant evidence that should have been excluded; (9) a general reference to hearsay evidence being admitted in error; (10) an assertion that Lagerquist "was third party hearsay, person"; (11) a general claim of "abuse of discretion"; (12) an incomprehensible argument related to opening the door regarding information about the rental car and a motion in limine; and (13) an assertion that the trial court refused to look at his requests to subpoena unnamed witnesses or evidence. SAG.
2. Matters Outside of the Record
The following enumerated grounds relate to matters outside the record and we cannot address them on direct appeal: 1-2, 4, 11-13, 18, 22, 28, 31-34, 36, 40, 45, 50. McFarland, 127 Wn.2d at 338 n. 5. Additionally, we cannot address several grounds in the attached list because they refer to matters outside the record.
At various points during the trial and in motions filed after the trial, Parkison stated that he wanted to place information on the record for purposes of appeal. He filed numerous motions containing a variety of factual allegations related to many of the claims he now makes in his SAG. In addition, he orally stated some of these factual allegations when the trial court allowed him to speak and during elocution. But his mere assertion that these facts existed and that he had discovered additional evidence are not sufficient to establish a record for review.
These grounds include the following: (1) a claim that the taped interview was "played during [deliberation]" (SAG); (2) a claim that evidence was tampered with; (3) an allegation that the record includes a discussion of a motion in limine that never occurred; (4) a claim that Parkison received ineffective assistance due to an incomplete investigation; (5) a claim that Detective Andren and other officers falsified police reports; and (6) a claim that the officers lacked probable cause to arrest or to obtain a search warrant.
3. Matters of Credibility and Weight
Parkison raises several enumerated grounds that appear to relate to matters of credibility and weight. We do not review weight and credibility determinations because we cannot see the witnesses or hear their testimony and, therefore, must defer to the jury or court who has had the opportunity to do so. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Accordingly, we cannot review these grounds or the several unnumbered additional grounds involving weight and credibility issues.
The following unnumbered additional grounds relate to credibility and weight: (1) issues related to Lonborg's testimony, possibly asserting that her testimony was internally inconsistent and that it was also contradicted by other testimony; (2) allegations that Parkison was coerced and threatened during the interrogation, that the detectives did not advise him of his Miranda rights until well into the interrogation, and that they refused him counsel when he requested it; and (3) an assertion that forcing Parkison to read from the transcripts created the impression that his confessions were voluntary.
4. Issues Addressed by Appellate Counsel
Parkison also challenges Detective Bair's testimony referencing the booking photograph. The trial court recognized this error and issued a curative instruction, and appellate counsel has addressed the error in the curative instruction. Accordingly, we do not address this issue separately.
Additionally, in an unnumbered ground, Parkison asserts "Pro-Se." To the extent he is challenging the trial court's failure to allow him to proceed pro se, that issue was raised by counsel and addressed above. To the extent he is asserting something else, this issue is too vague to address.
B. Sufficiency of the Evidence
Several of Parkison's SAG grounds appear to relate to whether there was sufficient evidence to support the conviction.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. McNeal, 145 Wn.2d 352, 359-60, 37 P.3d 280 (2002) (citing State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." McNeal, 145 Wn.2d at 360 (quoting Salinas, 119 Wn.2d at 201). "Credibility determinations are for the trier of fact and are not subject to review." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing Camarillo, 115 Wn.2d at 71). And we "must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
Taken in the light most favorable to the State, the victims' testimony, Parkison's confessions, and his admissions to Lonborg are clearly sufficient to support the convictions. Parkison appears to emphasize the conflicting testimony about the identification of the car from the Shell robbery, the voluntary nature of his confessions to the police, and whether he in fact admitted to Lonborg that he committed the first four robberies. But these arguments go to the weight and credibility of the evidence and do not establish insufficient evidence.
Notably, during one of Parkison's outbursts during the first trial, he told the trial court that he had committed the robberies, asserting that he had done so under duress.
C. Self-Incrimination
In an unnumbered ground, Parkison argues that he was "forced" to take the stand in violation of his Sixth Amendment rights because counsel told him that the jury needed to hear what he had to say. He contends that he did not want to take the stand.
The record clearly shows that possibly the only way Parkison could present a defense, whether it was his initial proposed duress defense or his later asserted general denial, was by taking the stand. Thus, to the extent he is arguing that his trial counsel was ineffective for insisting he testify, this was a reasonable tactic by defense counsel and it cannot be the basis of an ineffective assistance of counsel claim. To the extent he is arguing he was forced to testify, merely testifying because his trial counsel advised him it was his only chance of a defense does not establish that he was forced or coerced into waiving his right against self-incrimination and this argument has no merit. Furthermore, his assertion that he did not want to testify and that his counsel demanded he did so is outside the record on appeal.
D. Car Information
1. Related Facts
During the second trial, Detective Andren testified that, based on information he obtained from Lonborg and Lagerquist, he contacted Enterprise Car Rental, and Enterprise allowed him to see the paperwork from Lonborg's rental. Defense counsel objected to any testimony about the car's color, make, or license plate obtained from the Enterprise records based on hearsay, lack of foundation, and best evidence grounds. On voir dire, Andren testified that, after Lonborg told him about the rental car, he went to Enterprise, told them he was investigating a series of robberies, and asked if Lonborg had rented a car from them in December. They showed him the rental documents that described the renter and the make, model, color, and license plate number of the rented vehicle. Andren testified that the information on the form matched the information Lonborg and others had provided.
Although Enterprise allowed Detective Andren to look at the documents, it refused to release a copy to him without a subpoena. He never got a subpoena for Enterprise's records, nor did he record the dates the car was rented in his report. Andren testified, however, that this appeared to be a form that Enterprise used in its regular course of business.
The trial court noted that Lonborg testified about an incident at a motel in which her car was damaged and that she drove a rental car while hers was in the shop. This corroborated Detective Andren's testimony about Lonborg renting a car. The court noted that the issue of what color the car was could be addressed on cross examination given the varying testimony about the color other witnesses provided. The trial court then ruled that the deputy prosecutor could question Andren about the rental car. As noted above, Andren testified that the paperwork stated that Lonborg had rented a silver Dodge Neon with a license plate number of 714 SOV. Andren also testified that he never saw the car because someone else had rented it.
Later, when Detective Andren testified about Parkison's confessions, the deputy prosecutor asked him if the detectives discussed the license plate and vehicle descriptions with Parkison. When Andren responded that they did not use the license plate information but, rather, mentioned that the vehicle description they had from the robbery matched the information related to Lonborg's rental car, defense counsel objected, arguing lack of foundation. The trial court overruled the objection, and Andren testified that Parkison admitted that he had used Lonborg's rental car in some of the robberies.
2. Discussion
In several SAG grounds, Parkison appears to argue that the State presented false testimony related to the license plate number the Shell clerk reported. Although some of these arguments relate to credibility and weight issues and others refer to matters clearly outside the record, all of which are matters we cannot address on direct appeal, he may also be asserting that the information about the license plate and the color and model of the rental car obtained from the Enterprise documents should not have been admitted or that the license plate information from the Enterprise documents should not have been used to show that this information was consistent with the license plate number the Shell clerk reported.
First, nothing in the record states what license plate number the clerk actually reported to the police and no testimony compares the number the clerk provided and the number from the Enterprise documents. But to the extent he is arguing that this evidence should not have been introduced under the best evidence rule, this argument has some merit.
When seeking to prove the contents of a document, the State must comply with the so-called best evidence rule. State v. Fricks, 91 Wn.2d 391, 397, 588 P.2d 1328 (1979). "This basic principle of evidence generally requires that `the best possible evidence be produced.'" Fricks, 91 Wn.2d at 397 (quoting Larson v. A.W. Larson Constr. Co., 36 Wn.2d 271, 217 P.2d 789 (1950)). This rule "requires that the original writing be produced unless it can be shown to be unavailable `for some reason other than the serious fault of the proponent.'" Fricks, 91 Wn.2d at 397 (quoting McCormick, Handbook of the Law of Evidence § 230, at 560 (2d ed. 1972)).
Here, the State failed to produce the document or to make any showing of its unavailability. Under these circumstances, Detective Andren's testimony regarding the content of this document was not sufficient to establish its admissibility. But given the rest of the testimony in this case, including Parkison's confessions to the police and to Lonborg admitting that he drove the car she had rented when he committed the earlier robberies and other testimony identifying the car, this error was harmless.
E. Other Evidentiary Issues
Parkison appears to argue that the trial court erred in admitting photographs and testimony regarding an incident that preceded the robberies at a motel. He appears to contend that this evidence was irrelevant because it did not relate to the robberies and asserts that because the jury did not hear evidence about the entire incident, this evidence focused on what amounted to a "bad act" not related to the offenses.
At trial, Lonborg testified that she rented a car after her car was damaged when she and Parkison "got into some kind of fight with an old man at this hotel, and he started swinging his broom at [her] car and started hitting it about five times and caused a lot of damage." 6 RP (Jan. 23, 2006) at 543. She continued, explaining that they were at the hotel so Parkison could post a "poster for a former pedophile for the Police Department" and that it turned out the person in the poster was staying at the hotel. 6 RP (Jan. 23, 2006) at 543. Periodically during Lonborg's testimony, both counsel and Lonborg referred to the date of this incident to establish when other events took place.
Detective Andren also testified about the incident at the motel. He testified that the initial tip he received from Crime Stoppers indicated only that the robber's name was "Miles" and when he looked through various records to try to determine who "Miles" was, Parkison's name appeared because of his involvement in the "incident" at the motel. When the deputy prosecutor asked Andren what the "incident" was, he testified: "There had been a disturbance call at the Bay Motel down on Puyallup Avenue where there had been a confrontation between the manager of the motel and a subject that was in there passing out flyers." 9 RP (Jan. 26, 2006) at 842. The person at the motel had taped the contact, and Andren was able to obtain a still image of Parkison talking to a police officer from that tape. This photograph was admitted as Exhibit 65 without objection. Parkison also briefly testified about having contact with law enforcement officers at the motel and the photograph.
Defense counsel did not object to any of this evidence. Accordingly, at best, Parkison is arguing that his trial counsel was ineffective for failing to challenge this evidence.
Although this evidence could suggest a prior "bad act," there was no detailed testimony about what occurred at the motel and Lonborg's testimony suggested Parkison was assisting law enforcement by disseminating flyers and the aggressor in the incident was the motel manager, not Parkison. Any possible error in admitting this testimony did not prejudice Parkison.
In an unnumbered additional ground, Parkison also appears to argue that the trial court erred when it admitted evidence of his past drug use. Again, his counsel did not object to this testimony, so at best this is a claim of ineffective assistance of counsel.
Parkison himself introduced much of this evidence in an attempt to show that he was working for the police and to explain why he was currently on so many prescribed medications. Because this evidence was relevant to Parkison's defense as well as to the State's case, Parkison's counsel was not ineffective for failing to object to it.
F. No Second CrR 3.5 or CrR 3.6 Hearings
1. Related Facts
On November 2, 2005, prior to the first trial, the trial court held a CrR 3.5 hearing to determine the admissibility of Parkison's "22 page taped statement" to the police. 2 RP (Nov. 2, 2005) at 14. The State called the two Tacoma Police Department detectives who had interviewed Parkison: Andren and Graham.
The detectives' testimony established that the interview occurred in two stages: a preliminary stage that was not taped and a second stage that was taped; and that Andren advised Parkison of his Miranda rights before both stages of the interview, Parkison appeared to understand his rights, Parkison waived those rights, and Parkison never requested counsel or asked to stop the interview. Parkison also initialed an advisement of rights form.
Although the trial court advised Parkison of his right to testify at the hearing, including that the jury could learn about any inconsistent statements if he chose to testify at trial, Parkison did not testify at the hearing or present any other witnesses. Clarifying that the State planned to introduce statements from both the pre-interview and the taped interview, the trial court found Parkison's statements admissible. At the first trial, Parkison admitted making the statements to the detectives, but he denied committing any of the robberies and asserted that his confessions were coerced and he was not advised of his Miranda rights.
In December 2005, after the first trial ended in a mistrial, Parkison filed various motions requesting a suppression hearing in which he argued, consistent with his testimony at the first trial, that the confessions were coerced, that he had never been advised of his Miranda rights, and that the detectives had refused to allow him to speak to counsel despite his requests to do so during the interview. But rather than acknowledge the prior CrR 3.5 hearing in these motions, Parkison asserted that no suppression hearing had been held. On January 9, 2006, he filed a note for motion docket, attempting to set a "Confession Hearing." CP at 185.
On January 11, 2006, when Parkison orally advised the second trial court of his numerous written motions, he made a vague reference to wanting a CrR 3.5 hearing. The trial court subsequently asked defense counsel whether there had been a CrR 3.5 hearing below. Defense counsel stated that there had been a hearing and that the first trial court found Parkison's statements admissible, but he also noted that, during the first trial, the defense had raised the issues of whether the confession was accurate and whether it was coerced. Also on January 11, the first trial court filed its written findings of fact and conclusions of law regarding the admissibility of Parkison's statements under CrR 3.5. The second trial court did not hold a new CrR 3.5 hearing.
2. Discussion
Parkison now argues that he was prejudiced because the second trial court did not hold a new CrR 3.5 or new CrR 3.6 hearing after the mistrial and that his statements should be suppressed because they were coerced and he was not advised of his Miranda rights. Parkison does not state what evidence he is referring to when he argues that he was entitled to another CrR 3.6 hearing; without such information, we cannot reach this issue. RAP 10.10(c). Accordingly, we address only the CrR 3.5 issue.
A trial following a mistrial in the same case is merely a continuation of the first trial and the ongoing prosecution. State v. Buchanan, 78 Wn. App. 648, 652, 898 P.2d 862 (1995) (citing State v. Clemons, 56 Wn. App. 57, 61, 782 P.2d 219 (1989) (refusing to treat a retrial following a mistrial as a new action or proceeding), review denied, 114 Wn.2d 1005 (1990)). It is within a trial court's discretion to decline to reopen a hearing, and we reverse the court's decision only upon a showing of an abuse of discretion and resulting prejudice. In re Welfare of Estes, 73 Wn.2d 263, 270, 438 P.2d 205 (1968). "Abuse of discretion is discretion exercised on untenable grounds for untenable reasons." State v. Sanchez, 60 Wn. App. 687, 696, 806 P.2d 782 (1991).
Here, Parkison had the opportunity to testify at the CrR 3.5 hearing and he does not explain why he did not choose to do so. But it appears that this choice may have been tactical because he planned to present a duress defense and would, therefore, admit to committing the six robberies. His trial testimony, however, showed that he decided to abandon his duress defense and to instead deny committing the robberies. Parkison waived his right to testify at the pretrial hearing and he does not suggest any reason why he should later be allowed to reconsider this choice. He is not asserting that he was misled, that his waiver was not knowing and voluntary, or that he intended to present evidence that was not fully available to him at the time of the CrR 3.5 hearing. Accordingly, the second trial court did not abuse its discretion when it refused to reopen the CrR 3.5 hearing.
G. Corpus Delicti
At both the November 2, 2005 suppression hearing prior to the first trial and throughout the second trial, defense counsel argued that Parkison's statements to the police were inadmissible because of lack of corpus delicti related to the identity of the robber. Both trial courts rejected this argument.
Parkison appears to challenge the trial courts' corpus delicti rulings admitting his statements without first requiring the State to prove corpus delicti as to the robber's identity. This argument has no merit.
Unless the offense at issue cannot be proved without also proving that the perpetrator had a specific status or was in a specific condition, the perpetrator's identity is not part of the corpus delicti. Bremerton v. Corbett, 106 Wn.2d 569, 574, 723 P.2d 1135 (1986); see also State v. Baxter, 134 Wn. App. 587, 596, 141 P.3d 92 (2006) (citing State v. Meyer, 37 Wn.2d 759, 763, 226 P.2d 204 (1951)). Here, the perpetrator's status was irrelevant to whether the offense was committed; accordingly, the trial court did not err when it refused to require that the State establish identity in order to prove corpus delicti.
To the extent Parkison is also arguing that the trial courts erred in finding corpus delicti, generally, that argument is also without merit. The victims' testimony was clearly sufficient to establish the corpus delicti of the robberies.
H. Pretrial Line-Up
Parkison argues that he was prejudiced because the trial court did not allow him to have a "pretrial line up" despite his request for one. SAG (Ground 38). But none of the witnesses identified him at trial, so, even assuming error, Parkison could not show prejudice.
I. Double Jeopardy
Parkison appears to argue that he suffered double jeopardy when he was forced to stand trial twice for the same crimes. This argument is clearly without merit. Double jeopardy is not implicated when defendant is retried following a mistrial granted because a jury was unable to reach a verdict. State v. Ahluwalia, 143 Wn.2d 527, 538, 22 P.3d 1254 (2001).
Parkison fails to establish any prejudicial error, and we affirm.
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.
We concur: HOUGHTON, C.J., PENOYAR, J.