Opinion
Nos. 26192-1-III; 26273-1-III.
July 15, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-00160-4, Linda G. Tompkins, J., entered May 18, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition dismissed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Brown, JJ.
Robert D. Raider appeals his conviction of one count of possession of methamphetamine. He contends the trial court erred by permitting a police officer to testify as to the law, he was denied his right of allocution, and the trial court improperly imposed an exceptional sentence. In his personal restraint petition, he contends the exceptional sentence is contrary to law, prosecutorial vindictiveness deprived him of due process, and RCW 9.94A.535(3)(t) is unconstitutionally vague. We affirm his conviction and dismiss his personal restraint petition.
RCW 9.94A.535(3)(t) provides: "The defendant committed the current offense shortly after being released from incarceration."
FACTS
On December 3, 2006, Officer Curtis Tucker noticed Mr. Raider driving erratically. He activated his lights and Mr. Raider pulled over. Mr. Raider and the passenger immediately exited the car. Mr. Raider explained to the officer that the car had mechanical problems and belonged to his mother. When asked for identification Mr. Raider could not produce a driver's license. Officer Tucker checked Mr. Raider's driver's license status and discovered his license was suspended. He arrested Mr. Raider. The passenger identified himself as Michel Clarke and was allowed to leave.
During a search of the car incident to arrest, Officer Tucker found a baggie of methamphetamine on the driver's side floorboard. The State charged Mr. Raider by amended information with possession of methamphetamine. The information also alleged the presence of the aggravating factor of rapid recidivism, stating "the defendant committed the current offense shortly after being released from incarceration, as provided by [RCW] 9.94A.535." Clerk's Papers (CP) at 4. The State also filed notice of intent to seek an exceptional sentence upward based on this factor.
At trial, Officer Tucker testified to the above facts. He also stated there was no indication the passenger had any possessory interest in the car. During cross-examination, the defense questioned Officer Tucker about his interaction with the passenger as follows:
Q Okay. Now, you said that when the, Mr. Raider and the passenger got out of the car you obtained . . . the passenger's identification. Did you make a notation of that anywhere in your report?
A Actually we didn't obtain his identification; we just IDed him, just made contact with him and IDed him.
Q So he told you his identification?
A Right.
Q You didn't get a card that said who he was?
A He didn't have one on his possession.
Q So you don't actually know if that was Michael Clarke or not; do you?
A That was the name he gave to us.
Report of Proceedings (RP) at 132-33.
On redirect, the prosecutor followed up on this line of questioning, asking Officer Tucker whether he was allowed to ask the passenger for identification. Defense counsel objected that this question called for a legal conclusion. The trial court overruled the objection. Officer Tucker then explained, "We are not allowed to demand identification, meaning a driver's license . . . from a passenger in a vehicle." RP at 143. The jury convicted Mr. Raider as charged.
Before sentencing, Mr. Raider requested a waiver of a jury determination of the presence of the rapid recidivism aggravating factor. The court carefully advised Mr. Raider of his constitutional right to a jury determination of this factor. Mr. Raider indicated that he understood. In the order, he stipulated that his current offense occurred shortly after his release from incarceration and that his rapid recidivism could be used to enhance his sentence.
At sentencing, the State recommended an exceptional sentence upward based on Mr. Raider's rapid recidivism, pointing out Mr. Raider was arrested just 26 days after his release from prison. The court orally imposed an exceptional sentence upward, but then immediately struck the sentence, stating, "Wait a minute. I have not heard from Mr. Raider." RP at 253.
Mr. Raider made statements to the court. The court then imposed the same sentence. The court entered the following findings: (1) Mr. Raider was released from prison on November 7, 2006; (2) Mr. Raider committed his current crime on December 3, 2006; (3) Mr. Raider waived his right to a jury determination of whether the 26-day period was "`shortly after release from incarceration'" (CP at 61); (4) Mr. Raider signed an order stipulating to the presence of the rapid recidivism aggravating factor; (5) Mr. Raider had 54 previous criminal law violations, including 6 felony charges involving possession of a controlled substance; and (6) 4 of these convictions were in the 5 years prior to the current offense, including the 2 convictions for which he was released from incarceration on November 7, 2006.
From these findings, the court concluded that Mr. Raider had committed a large number and wide variety of offenses during a 17-year period, committed the current offense shortly after his release from incarceration for similar offenses, and demonstrated a greater disregard for the law than otherwise would be the case based upon the short period of time between his last incarceration and the commission of this current offense.
Mr. Raider appeals his conviction and exceptional sentence.
ANALYSIS
Mr. Raider first argues that the trial court erred in allowing Officer Tucker to testify as to a legal conclusion. Specifically, he contends that Officer Tucker should not have been permitted to testify that police officers have no legal basis to ask for the passenger's identification. He claims this testimony prejudiced his case because it went to the issue of whether anyone else could have possessed the methamphetamine and improperly bolstered the officer's credibility.
Trial courts are afforded broad discretion in deciding whether to admit evidence, including testimony. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). The Rules of Evidence do not preclude a witness from testifying as to a matter of law. However, a witness may not make a conclusion of law. Hyatt v. Sellen Constr. Co., 40 Wn. App. 893, 899, 700 P.2d 1164 (1985). "Improper legal conclusions include testimony that a particular law applies to the case, or testimony that the defendant's conduct violated a particular law." State v. Olmedo, 112 Wn. App. 525, 532, 49 P.3d 960 (2002). The trial judge determines the applicable law, not witnesses. Hyatt, 40 Wn. App. at 899; see Ball v. Smith, 87 Wn.2d 717, 723, 556 P.2d 936 (1976) ("questions of fact are to be determined by a jury, and that all matters of law are to be determined and declared by the court").
Officer Tucker's testimony was not a conclusion of law. He did not discuss applicable law or whether Mr. Raider's conduct violated the law. Olmedo, 112 Wn. App. at 532. Reading the testimony in context, Officer Tucker was simply explaining why he did not ask the passenger for proof of identification. During direct examination, Officer Tucker testified that the passenger verbally identified himself. Defense counsel chose to make an issue out of the officer's failure to obtain some form of hard identification. Therefore, the court allowed Officer Tucker to explain that under the circumstances the law did not permit him to ask the passenger for a driver's license. This testimony was not an improper conclusion of law.
Furthermore, defense counsel opened the door to the challenged testimony. "[W]hen a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination . . . within the scope of the examination in which the subject matter was first introduced." State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). After defense counsel made an issue of the State's failure to obtain identification, it was not error to allow the State to explain the situation.
Next, Mr. Raider claims that the same testimony constitutes an improper opinion of guilt, which denied him a fair trial because "[i]t should have been up to the jury to decide whether the presence of the passenger created reasonable doubt." Br. of Appellant at 16.
Generally, no witness may testify as to the guilt of a defendant, whether directly or by inference, because it invades the province of the jury. Olmedo, 112 Wn. App. at 530-31. Whether testimony constitutes an impermissible opinion on the defendant's guilt is determined from the circumstances of each case. State v. Cruz, 77 Wn. App. 811, 814-15, 894 P.2d 573 (1995). "Improper opinions on guilt usually involve an assertion pertaining directly to the defendant." City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993). However, evidence is not improper opinion testimony if it indirectly comments on a defendant's guilt or credibility and is helpful to the jury and based on inferences from the evidence. Id. at 578.
Further, ER 704 provides that "[t]estimony in the form on an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." In evaluating whether testimony constitutes an impermissible opinion on guilt or embraces an ultimate issue, a trial court may consider the following factors: the type of witness involved, the nature of the testimony, the nature of the charge and defense, and the other evidence before the trier of fact. Heatley, 70 Wn. App. at 579.
Applying these factors here, we conclude that Officer Tucker's testimony did not amount to a jury directive. It was immaterial to the central factual question, which was whether Mr. Raider possessed methamphetamine. Officer Tucker's statement was offered to explain why he did not ask for a passenger's identification; it cannot in any way be construed as an opinion, direct or indirect, of Mr. Raider's guilt. The law pertaining to when an officer may ask for a passenger's identification is peripheral to the issue of Mr. Raider's guilt.
Even assuming the admission of Officer Tucker's testimony was error either as an improper legal conclusion or opinion on guilt, any error was harmless. Mr. Raider asserts that the testimony was prejudicial because it established that the officer had no grounds to investigate the passenger's involvement, and that in turn eliminated any possibility that the passenger could have possessed the methamphetamine. In short, he claims that the inadmissible testimony went to the issue of whether anyone else could have possessed methamphetamine.
"The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Contrary to Mr. Raider's claim, the record contains substantial evidence from which the jury could conclude that he possessed the methamphetamine. It was properly instructed that possession need not be exclusive to establish constructive possession. The evidence shows that Mr. Raider was the driver of a car in which methamphetamine was discovered on the driver's side. Officer Tucker's testimony had scant, if any, significance in view of all the evidence. The trial court did not err in admitting Officer Tucker's testimony.
Next, Mr. Raider contends that his right of allocution was violated. RCW 9.94A.500(1) requires that the defendant be given an opportunity to allocate, i.e., ask for mitigation or leniency before the court imposes a sentence. In re Pers. Restraint of Echeverria, 141 Wn.2d 323, 336, 339 n. 54, 6 P.3d 573 (2000). The Washington Supreme Court has held, "Failure by the trial court to solicit a defendant's statement in allocution constitutes legal error." State v. Hughes, 154 Wn.2d 118, 153, 110 P.3d 192 (2005), overruled in part on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). However, the right of allocution is not a constitutional right. State v. Canfield, 154 Wn.2d 698, 702-03, 116 P.3d 391 (2005) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)).
Mr. Raider argues that he is entitled to resentencing before a different judge because the court announced its intended sentence before giving him the chance to allocute. We have held that a defendant is automatically entitled to a new sentencing hearing when allocution comes after pronouncement of a sentence. State v. Crider, 78 Wn. App. 849, 860-61, 899 P.2d 24 (1995). We wrote:
[A]n opportunity to speak extended for the first time after sentence has been imposed is "a totally empty gesture." Even when the court stands ready and willing to alter the sentence when presented with new information . . . from the defendant's perspective, the opportunity comes too late. The decision has been announced, and the defendant is arguing from a disadvantaged position.
Id. at 861; see also State v. Aguilar-Rivera, 83 Wn. App. 199, 203, 920 P.2d 623 (1996) ("when the right of allocution is inadvertently omitted until after the court has orally announced the sentence it intends to impose, the remedy is to send the defendant before a different judge for a new sentencing hearing").
However, Mr. Raider failed to preserve any possible error. At sentencing, the trial court orally imposed an exceptional sentence upward, inadvertently forgetting to give Mr. Raider his right to allocute. The court immediately recognized its oversight and offered Mr. Raider the chance to speak on his behalf. He did so. The court then formally imposed the same sentence. But defense counsel did not object to Mr. Raider's delayed opportunity to allocute. Accordingly, no claim of error is preserved for our review. See State v. Hatchie, 161 Wn.2d 390, 166 P.3d 698 (2007) (issue of possible violation of allocution right not preserved because defense counsel failed to object to the court's imposition of a sentence before allowing the defendant to speak).
Mr. Raider next contends that the court erred in ordering an exceptional sentence. First, he contends that the trial court erred by relying on his criminal history to support the sentence. He argues that the only possible reason the sentencing court noted his history was to make an "implicit" finding that the presumptive sentence was "clearly too lenient" under RCW 9.94A.535(2)(b). Relying on Hughes, 154 Wn.2d 118, Mr. Raider argues that this implied finding requires additional factual determinations, which the court failed to make.
RCW 9.94A.535(2)(b) provides in part: "The defendant's prior . . . criminal history results in a presumptive sentence that is clearly too lenient."
Whether a sentencing court is authorized to impose an exceptional sentence is a question of law, which is reviewed de novo. Hughes, 154 Wn.2d at 132. Here, nothing in the record supports Mr. Raider's claim that the trial court relied on the "clearly too lenient" factor to support the sentence. Neither its written findings and conclusions nor its oral ruling mention this factor. Even Mr. Raider admits that this finding is merely implied. But as the State correctly points out, this "finding" is not implicit, it is non-existent.
Rather, the record indicates that the court used Mr. Raider's criminal history, particularly his prior possession convictions, to support a finding of rapid recidivism. To establish this aggravating factor, a sentencing court must take into account, "the various similar offenses and the heightened harm or culpability that pattern indicates." Id. at 142. Presumably aware of this requirement, the trial court's findings that mention Mr. Raider's criminal history focus on crimes similar to his current conviction — possession of a controlled substance. Finding of fact 2.6 states, "The Defendant has been convicted of 54 criminal law violations including six felony charges involving Possession of Controlled Substances." CP at 61 (emphasis added). Finding of fact 2.7 notes that: "Four of these Possession of Controlled Substances convictions were in the last five years prior to this current offense including the two convictions for which he was released from incarceration on November 7, 2006." Id. The court's findings pertaining to Mr. Raider's criminal history merely support its conclusion of rapid recidivism. We reject Mr. Raider's contention that they support an implied factor.
Next, Mr. Raider argues that rapid recidivism does not support the exceptional sentence. Specifically, he argues that even though he stipulated to this factor, it does not apply because his current offense did not occur after an especially short time. To support his assertion he distinguishes his facts from those in State v. Saltz, 137 Wn. App. 576, 154 P.3d 282 (2007), where we held that the defendant's commission of a similar offense against the same victim on the one-month anniversary of his release from prison supported the rapid recidivism factor. Mr. Raider argues that his case is different from Saltz because he committed his offense "more than one month" after his release. Br. of Appellant at 26.
First, Mr. Raider's argument is factually incorrect. The record shows that 26 days elapsed between Mr. Raider's release from prison and the date of his current crime. But more importantly, Mr. Raider's argument ignores that he stipulated to this factor. The stipulation order signed by Mr. Raider on March 29, 2007, provided in part:
Parties/Defendant moved the court for: an order recognizing stipulating to the presence of the aggravating factor identified in 3/16/07. The defendant admits stipulates that the crime he was recently convicted of — [possession of a controlled substance] from 12/3/06 — occurred shortly after his release from incarceration on 11/7/06.
. . . .
. . . [D]efendant . . . further stipulates that the court may use the presence of this aggravating factor to impose an exceptional sentence.
. . . .
. . . [T]he court recognizes the foregoing stipulation the presence of an aggravating factor as outlined in RCW 9.94A.535(3)(t) to the court's consideration of this factor in the state's request for an exceptional sentence upward.
CP at 26-27.
Additionally, Mr. Raider waived a jury determination of this factor. He does not claim that he misunderstood or was not apprised of the consequences of his waiver and stipulation. As indicated above, the court carefully reviewed the implications of the waiver and stipulation with him. Mr. Raider indicated that he understood. And defense counsel was adamant that this approach was Mr. Raider's preference. Mr. Raider cannot now complain that the time between his release and the commission of the current offense does not meet the requirements of rapid recidivism. He has waived his right to appeal the issue. See State v. Ermels, 156 Wn.2d 528, 131 P.3d 299 (2006) (finding defendant waived right to appeal exceptional sentence upward after he voluntarily stipulated to the sentence pursuant to plea agreement).
But even if we address the merits of Mr. Raider's claim, his argument must fail. Rapid recidivism is a well recognized aggravating factor. State v. Butler, 75 Wn. App. 47, 53-54, 876 P.2d 481 (1994). The legislature provides for this factor to support an exceptional sentence. RCW 9.94A.535(3)(t). However, rapid recidivism must be based on more than prior convictions because the presumptive sentence range considers prior convictions. Butler, 75 Wn. App. at 53-54. Thus, as Mr. Raider correctly points out, an exceptional sentence based on this factor must also indicate "a greater disregard for the law than otherwise would be the case." Id. at 54.
Mr. Raider argues that such circumstances are not present here. But the record shows that Mr. Raider's current crime for possession of a controlled substance occurred less than a month after his release from prison where he was serving time for two other possession convictions. Such circumstances have justified exceptional sentences under the rapid recidivism factor. See, e.g., Hughes, 154 Wn.2d 118 (flagrant disregard for the law shown by commission of the exact crime against the same victim less than three months from release); Saltz, 137 Wn. App. 576 (similar nature of the crime against the same victim occurring one month after release from prison supported rapid recidivism factor). The court's reliance on rapid recidivism to support the exceptional sentence was proper.
PERSONAL RESTRAINT PETITION
In his personal restraint petition, Mr. Raider argues (1) the exceptional sentence is contrary to law, (2) prosecutorial vindictiveness deprived him of due process, and (3) the law used to enhance his sentence was unconstitutionally vague.
Exceptional Sentence
Pro se, Mr. Raider first cites Hughes, 154 Wn.2d 118, for the proposition that the rapid recidivism factor must take into account the heightened harm and culpability, i.e., a flagrant disregard for the law, suggested by the pattern of crimes. He argues, as he did on direct appeal, that nothing in the record indicates he showed a greater disregard for the law than would otherwise be the case. He points out that his current offense merely involves the "possession of a small amount of drugs, obviously for personal use." Personal Restraint Petition (PRP) at 3. We have addressed and rejected this argument above.
Prosecutorial Vindictiveness
Mr. Raider next argues that prosecutorial vindictiveness deprived him of due process. He contends the prosecutor's amendment of the information, which added the aggravating factor of rapid recidivism, amounted to retaliation for the exercise of his right to go to trial. According to Mr. Raider, "[the prosecutor] threatened the defendant by telling him that unless he gave up his right to trial and signed a plea she would seek an exceptional sentence." PRP at 4. He claims his attorney witnessed this conduct and also points out that he was arrested on December 3, 2006, but the State did not file its notice of intent to seek an exceptional sentence until March 16, 2007.
Constitutional due process principles prohibit prosecutorial vindictiveness. United States v. Goodwin, 457 U.S. 368, 372-85, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982). "Prosecutorial vindictiveness occurs when `the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights.'" State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 258 U.S. App. D.C. 263, 810 F.2d 1242, 1245 (1987)). There is no presumption of prosecutorial vindictiveness when the State amends charges in a pretrial setting. Id. at 629; State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d 1222 (1998). Thus, "[p]rosecutorial vindictiveness must be distinguished, however, from the rough and tumble of legitimate plea bargaining." State v. Lee, 69 Wn. App. 31, 35, 847 P.2d 25 (1993). The defendant bears the burden of proving prosecutorial vindictiveness. Bonisisio, 92 Wn. App. at 791.
There is no showing of vindictiveness here. Nothing in the record supports Mr. Raider's allegations regarding plea negotiations. There is no evidence before us regarding the prosecutor's motives or the substance of plea negotiations. Mr. Raider's speculation that the prosecutor was motivated by a desire to punish him, without more, does not amount to vindictiveness. Furthermore, as just noted, amendment of an information after failed negotiations, if that is the case here, does not amount to vindictiveness. Given the absence of evidence supporting the prosecutorial vindictiveness claim, Mr. Raider's argument must fail.
Exceptional Sentence: Vagueness
Finally, Mr. Raider argues that RCW 9.94A.535(3)(t) is unconstitutionally vague because it fails to clearly define the prohibited conduct by failing to define the terms "shortly after" and "incarceration." Again, Mr. Raider ignores the fact that he stipulated to committing the current crime shortly after release from incarceration. He cannot now complain that these terms are vague.
But even if we address the merits of his argument, it must fail. The State correctly points out that in State v. Baldwin, 150 Wn.2d 448, 78 P.3d 1005 (2003), the Washington Supreme Court addressed and rejected a similar argument. In that case, the defendant challenged the exceptional sentence guidelines in former RCW 9.94A.390 (2000), recodified as RCW 9.94A.535, contending the provisions were unconstitutionally vague. Id. at 457. The court rejected this argument, noting the vagueness doctrine focuses on laws that prohibit or require conduct, not sentencing guidelines, which "are intended only to structure discretionary decisions affecting sentences." Id. at 458, 461. It held:
The sentencing guideline statutes challenged in this case do not define conduct nor do they allow for arbitrary arrest and criminal prosecution by the State. Sentencing guidelines do not inform the public of the penalties attached to criminal conduct nor do they vary the statutory maximum and minimum penalties assigned to illegal conduct by the legislature. . . . Thus, the due process considerations that underlie the void-for-vagueness doctrine have no application in the context of sentencing guidelines.
Id. at 459 (emphasis added) (citation omitted).
Because Mr. Raider is challenging a portion of the sentencing guidelines, his vagueness challenge must fail under Baldwin. RCW 9.94A.535(3)(t) simply provides an aggravating circumstance to justify an exceptional sentence; it does not mandate imposition of a sentence outside the standard range. Under Baldwin, such guidelines do not create a protectable liberty interest. Id. at 461. Furthermore, Mr. Raider stipulated to the presence and use of this aggravating factor.
Affirmed; personal restraint petition dismissed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J., BROWN, J., concur.