Opinion
No. 29880-5-II
Filed: January 19, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-2-14221-0. Judgment or order under review. Date filed: 01/28/2003. Judge signing: Hon. Brian Maynard Tollefson.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Jerry Stout appeals his conviction of first degree attempted murder-domestic violence with a firearm enhancement. We affirm, but remand for resentencing consistent with Blakely v. Wash., U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Devan and Jerry Stout were married for 15 years and they had two children together, a son, Kerry, who was 12 years old at the time of the incident, and a daughter, De Dee, who was 9 years old. In early June 2002, Devan informed Stout that she wanted a divorce. Stout was devastated, imploring Devan to consider marriage counseling or a trial separation. Devan began spending more time away from home, taking the children with her. At trial, Stout testified that he often did not know where his children were and that this worried him.
On June 10, Devan and Stout were in the kitchen talking about the divorce, when Stout threatened, `[y]ou better leave or I might hurt you.' Report of Proceedings (RP) (Dec. 10, 2002) at 45. Devan left and went to a friend's house where she reported the incident to the police.
On June 21, Devan took De Dee to her friend Lynn Williams' house after work. Kerry was spending the night at a friend's house. At around 9:00 p.m., Stout called Devan to ask her when she would be coming home, and she informed him that she would come home in a half-hour. Stout called back angry and demanded that she come home or else he would come looking for her. Devan left Williams' home a few minutes later.
When Devan arrived back home with De Dee, Stout met her downstairs in the kitchen and told her that they `needed to talk.' RP (Dec. 10, 2002) at 59. Devan testified that she sensed he was angry. She went upstairs to put De Dee to bed, and De Dee went into Kerry's room to sleep. Thinking that Stout was downstairs, Devan began to walk toward the stairs, but he told her that he wanted to talk in their bedroom. Devan testified that Stout's request was unusual, as they usually had their `talks' in the living room downstairs when their children were sleeping upstairs. RP (Dec. 10, 2002) at 62. As Devan entered the bedroom, Stout walked around to his side of bed, grabbed a handgun from within the bedding, and pointed it at her. At trial, Devan testified that Stout had a handgun but that he normally kept it in a holster inside their dresser. While pointing the gun, Stout instructed her to come into the room, and she yelled to her daughter to run and call the police.
Devan testified that she `thought about running' but did not `know what to do,' so she entered the room. RP (Dec. 10, 2002) at 65. Stout stood with his back to the door and ordered her to take her clothes off. She did, and he told her to get onto the bed. Devan saw the bedroom door partially open, and Stout said, `[d]on't come in here' as De Dee approached. RP (Dec. 10, 2002) at 68. Devan testified that De Dee shut the door and did not enter. Angrily, Stout told her, `[y]ou ruined my life.' RP (Dec. 10, 2002) at 67. Then he shot her twice once in her left biceps and once in her lower back. At trial, Devan testified that throughout the entire incident, she yelled to her daughter to run and call 911. Devan is now a permanently disabled paraplegic; she will never walk again.
After he shot her, Stout left the bedroom and shut the door. She heard De Dee say, `[n]o, Daddy, don't take me.' RP (Dec. 10, 2002) at 71. Stout re-entered the bedroom, walked around to the side of the bed nearest the nightstand, and quickly left. When he entered, Devan remained still, curled up on the floor so that he would think she was dead. At trial, she testified that normally only a lamp and a telephone are on the nightstand. She heard Stout leave in his car. After he left, Devan attempted to pull herself toward the bedroom door with her arms. She testified that she was too weak to move any further and thought, `[n]o one is going to come and find me; I'm going to die right here.' RP (Dec. 10, 2002) at 74.
After the shootings, Stout took De Dee to her grandparents' home. When he dropped her off, he told her to tell them `that your daddy shot your mother.' RP (Dec. 12, 2002) at 135. Stout then got on the expressway and drove north.
Anthony Jewell, Devan's stepfather, testified that on June 21, he heard a `frantic' knocking at the door. RP (Dec. 11, 2002) at 24. When De Dee informed him of the shooting, he and Mrs. Jewell, Devan's mother, immediately drove to the Stout residence. Mr. Jewell entered the master bedroom and saw Devan lying naked in a pool of blood, crying. Mrs. Jewell then entered the room and held her daughter's hand until the paramedics arrived. Mr. Jewell went to the nightstand to call the police, but the cordless phone that normally sat on the nightstand was missing from its cradle. He called from downstairs, and the police and paramedics arrived within 15 minutes.
Patrick O'Neill, a Tacoma Police Officer, responded to the call and found Devan lying on the bedroom floor. He asked her who shot her and she replied, `[m]y husband.' RP (Dec. 11, 2002) at 79. On June 25, 2002, Stout was charged with one count of assault in first degree-domestic violence with a firearm enhancement.
After dropping off De Dee, Stout began driving toward Canada. He stopped along the way and threw his gun into a ravine. He drove through Canada for about a week and eventually turned himself in at the Canadian-Idaho border. On July 17, Pierce County Sheriff's Deputies, Cory Shears and Micah Lundborg, transported Stout from Idaho back to Pierce County. Prior to transport, Lundborg advised Stout of his Miranda rights, and Stout indicated that he understood those rights. During the six-hour drive, Stout voluntarily confessed that he `pulled a gun out and shot [his wife].' RP (Dec. 11, 2002) at 109. He also told the deputies that he was not acting in self-defense and that, `[s]he did not deserve that. . . . I should have been man enough to walk out of the house, but I guess I wasn't . . . I was wrong. I did it.' RP (Dec. 11, 2002) at 122.
On July 18, Stout was arraigned, and the court appointed the Department of Assigned Counsel (DAC) to represent him. On July 22, Detective Bradley Graham of the Tacoma Police Department went to the Pierce County jail to interview Stout. Prior to doing so, Detective Graham contacted Deputy Prosecuting Attorney Mary Robnett about the case and asked whether he could interview Stout. Ms. Robnett attempted to determine whether Stout had an attorney. She found no indication that Jerry had obtained an attorney — neither the prosecutor's file nor the LINX system contained a notice of appearance from a defense attorney, a scheduling order, or a notice to law enforcement stating that Stout wished to assert his Sixth Amendment rights. Ms. Robnett also consulted the appellate unit. Consequently, Ms. Robnett informed Detective Graham that he could interview Stout. At that time, Ms. Robnett was not aware that the court had appointed the DAC to represent Stout. Later that morning, Stout's attorney from the DAC, James Feldman, called Ms. Robnett and informed her that he would be filing a notice of appearance on the case.
On July 22, Detective Graham proceeded to the jail to interview Stout, and Stout asked him if he `should have his attorney present.' RP (Sept. 20, 2002) at 14. Detective Graham informed Stout that it was `up to him.' RP (Sept. 20, 2002) at 14. Detective Graham then read Stout his Miranda rights from a pre-printed form, and Stout signed the form. Stout confessed the shootings to Detective Graham, and Detective Graham testified that Stout spoke voluntarily and without coercion.
On August 6, the State filed an amended information, charging Stout with one count of first degree attempted murder-domestic violence with a firearm enhancement. Stout filed a CrR 8.3 motion to dismiss the case based on prosecutorial misconduct and/or a motion to disqualify the prosecutor's office from the case, alleging that Detective Graham's interview of him on July 22 had violated his Sixth Amendment rights. A hearing was held on August 16, and the trial court dismissed the motion, holding that there had been no purposeful misconduct by the prosecutor's office, and that the defendant had not been deprived of a fair trial. However, because the prosecutor's office had a representative present at Stout's arraignment, the court found that `knowledge' that Stout was represented was `imputed to the entire prosecutor's office,' CP at 106, and because Stout's Fifth and Sixth Amendment rights may have been violated by the interview, the court ruled that the his statements to Detective Graham during the July 22 interview would be suppressed from the State's case in chief.
On September 20, the court held a CrR 3.5 hearing. The court held that Stout's statements during his first interview on July 17 were admissible. And while the court determined that Stout's statements to Detective Graham during his second interview were knowingly and voluntarily made, it deferred to previous court's ruling suppressing the statements.
The case proceeded to jury trial on December 10. Before trial, the court heard motions in limine. The State moved under ER 401, 403, and 404(a)(2) to exclude any testimony regarding Devan's alleged extra-marital affair. The defense argued that the testimony was extremely probative, as it would establish that Jerry was so distraught by the affair, he did not have a premeditated intent to kill his wife. The court granted the State's motion. Additionally, the State moved to introduce evidence of the threat made by Stout to his wife on June 10, arguing that the evidence demonstrated his intent to kill her. The court also granted this motion, finding that the evidence showed the relationship between the parties during the incident and was relevant to the issues of intent and premeditation.
At trial, Stout testified that he had placed the gun underneath the mattress three days before the shooting because he had contemplated using the gun to kill himself. In addition, he testified that he did not remember pulling out the gun that night, telling his wife to undress, or shooting her. The State impeached Stout with his statements to Detective Graham on July 22. Defense counsel did not object. Two other witnesses, Kathleen Britt and Doyle Hughes, testified for the defense regarding the changes in Stout's appearance and behavior while his marriage was declining.
The jury found Stout guilty as charged. On January 24, 2003, based on a standard range of 180-240 months, the sentencing court imposed an exceptional sentence of 440 months, with an additional 60 months for the firearm enhancement.
I. Evidentiary Issues
Stout raises two evidentiary issues. First, he argues that the trial court erroneously excluded all evidence of his wife's alleged affair under ER 401, 403, and 404(a)(2). In addition, he contends the court improperly admitted the threatening statements that he had made to his wife on June 10. We address each argument in turn.
We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
A. Evidence of the Affair
Stout first contends that the trial court improperly excluded all evidence of his wife's affair as irrelevant, improper character evidence under Rules 401, 403, and 404(a)(2). Specifically, he argues that the trial court abused its discretion in excluding the evidence because he was not introducing it to prove his wife's character; he was using it to demonstrate that he shot her impulsively and without premeditated intent.
`Relevant evidence' is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. ER 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. ER 403. A trial judge has wide discretion in balancing the probative value of evidence against its potentially prejudicial impact. State v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). In addition, evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith. ER 404(a). Evidence of a victim's character is generally only admissible in cases where the defense is self-defense or suicide. ER 404(a)(2).
Here, Stout did not learn of his wife's alleged affair seconds, or even hours, prior to shooting her. He learned of the affair six days earlier. This significant passage of time negates any claim that the affair caused Stout to shoot his wife in the `heat of passion'; the shooting was clearly not an impulsive response to learning of the affair.
Consequently, the evidence of the affair is not relevant to Stout's defense that he impulsively shot his wife, regardless of whether he intended to use the evidence for purposes other than showing action in conformity therewith. Moreover, the probative value of this evidence is substantially outweighed by its prejudicial effect. Testimony of the affair would likely inflame the emotions of the jury and engender disdain for the victim.
Thus, the trial court did not abuse its discretion in excluding the evidence.
Additionally, Stout contends that the exclusion of this evidence denied him the right to present a complete defense. He argues that testimony about the affair was necessary to prove that the shooting was impulsive and without premeditated intent because it demonstrated his frame of mind during the weeks leading up to the shooting. He also argues that the court denied his right to present a defense because it admitted evidence of Stout's threat to his wife on June 10, but would not permit him to argue that the threat was a `reaction' to her affair. Br. of Appellant at 10.
The Constitution guarantees criminal defendants an opportunity to present a complete defense. Cal. v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). Stout argues that this case can be determined by Crane v. Ky., 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986). In Crane, the Court held that absent a valid state reason, it was unconstitutional to exclude evidence bearing on the credibility of a defendant's confession where his entire defense was that there was no physical evidence to link him to the crime and that his earlier admission of guilt was not credible. Crane, 476 U.S. at 683.
First, this case is factually distinguishable from Crane. That case involved the admission of evidence bearing on the credibility of the defendant's confession, and confessions are carefully protected by due process. Evidence of an affair does not implicate the Fourteenth Amendment. Second, the State had a valid justification for excluding the evidence: it was irrelevant to Stout's theory of the case and would unfairly prejudice the victim. Third, the evidence in the record was adequate for Stout to show that he did not premeditate killing his wife, but was so upset by the divorce he acted on an impulse. The couple was married for 15 years, and they had just moved into their `dream home.' RP (Dec. 12, 2002) at 112. Shortly after, Devan informed Jerry that she wanted a divorce and he was devastated. He was also upset that she frequently left with the children, and he implored her to attend marriage counseling with him. In addition, witnesses testified as to Stout's depressed behavior and disheveled appearance prior to the shooting. Thus, Stout was able to present his theory of the case without introducing prejudicial evidence of the affair. Finally, the jury was presented with ample evidence to appreciate that Stout was very upset about the divorce during the couple's discussion on June 10, and could infer that this was why he had threatened her. In conclusion, the trial court did not deny Stout the right to present a complete defense when it excluded evidence of his wife's alleged affair.
B. Evidence of the Threat
Stout next contends that the trial court abused its discretion when it permitted the State to introduce evidence of his threat to his wife on June 10 under ER 404(b). He argues that the evidence was more prejudicial than probative and that the trial court failed to conduct this balancing analysis on the record.
ER 404(b) provides in relevant part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence is admissible under ER 404(b) only if the trial court finds that the evidence serves a legitimate purpose, is relevant to prove an element of the crime charged, and, on balance, the probative value of the evidence outweighs its prejudicial effect. State v. DeVries, 149 Wn.2d 842, 848, 72 P.3d 748 (2003). Further, to avoid error, the trial court must identify the purpose of the evidence and conduct the balancing test on the record. State v. Wade, 98 Wn. App. 328, 334, 989 P.2d 576 (1999).
Here, the State did not seek to offer the evidence to show action in conformity therewith; rather, the State used the threat as evidence of the relationship between the parties and Stout's motive and intent to kill his wife. In determining the purpose for admitting the evidence, the court analyzed Stenson, 132 Wn.2d 668. In Stenson, our Supreme Court held that evidence of previous disputes or quarrels between the accused and the deceased is generally admissible in murder cases, and such evidence tends to show the relationship of the parties and their feelings toward one another. Stenson, 132 Wn.2d at 702. Additionally, this evidence often bears directly upon the state of mind of the accused, with consequent bearing upon the question of malice or premeditation. Stenson, 132 Wn.2d at 702.
In that case, the defendant was charged with killing his wife. Stenson, 132 Wn.2d 668. The trial court permitted a witness to testify that the defendant had stated that he did not want his wife `gallivanting' around town and that her job was to be in the home. Stenson, 132 Wn.2d at 698. Additionally, the court permitted another witness to testify that the defendant told his wife that she could use his truck but that if anything happened to it, she would be in `trouble.' Stenson, 132 Wn.2d at 698. The court found that these statements were threatening and demonstrated the defendant's controlling behavior toward his wife, and they were admissible because they tended to shed light on the relationship between the parties. Stenson, 132 Wn.2d at 702-03. Similarly, Stout's threatening comment to his wife sheds light on the couple's relationship and demonstrates his ill will toward his wife during that time. Accordingly, this evidence is relevant to establish that Stout acted with premeditation and intent in shooting his wife.
But Stout contends that the prejudicial value of this evidence substantially outweighs its probative value. He argues that evidence of the threat was not necessary to prove either intent or premeditation because other, less inflammatory evidence existed to prove these elements.
Additionally, he argues that the threat made to his wife `does not demonstrate hostility or malice on his part. Rather, the statement evidences [his] restraint and lack of desire to cause harm to his wife.'
Br. of Appellant at 17.
Evidence of the threat likely prejudiced the jury to some extent; however, testimony by the victim as to her horror and fear during the actual shooting was far more prejudicial and likely to inflame the jury. And because evidence at trial showed that Stout was upset over his family situation when he made the threat, he was not portrayed as a violent person who regularly threatened his wife. Additionally, although the State did have other available evidence of intent and premeditation (evidence that Stout had removed the phone from the nightstand and the gun from its holster in the dresser), Stout testified that he had placed the gun under the mattress because he was contemplating shooting himself and there is no direct evidence that he removed the phone from the nightstand. Thus, evidence of Stout's prior threat to his wife was extremely probative as to premeditation and intent, and its probative value substantially outweighed any prejudicial effect.
In addition, Stout contends that evidence of the threat should not have been admitted because the trial court failed to conduct the requisite balancing analysis on the record. In the State's motion in limine to admit evidence under 404(b), the State argued, `[t]he defendant's prior threat towards the victim will establish motive, intent to kill, and premeditation. It is the State's belief that when the court enters into a blancing [sic] test under ER 403 that the probative value of the evidence will outweigh [sic] the prejudice to the defendant.' Clerk's Papers at 113. During the hearing, the State discussed Stenson and argued that evidence of the threat was relevant to demonstrate Stout's premeditation and intent. At the close of his argument, the prosecutor stated, `Your Honor, I don't mean to be a stickler. Is the Court going to engage in the three-part analysis that I had outlined in the brief? The case law says analysis on the record.' RP (Dec. 10, 2002) at 15. The court responded, `I adopt the analysis of the prosecutor.' RP (Dec. 10, 2002) at 15. The evidence clearly demonstrates that the trial court did not balance the probative value of Stout's threat to his wife against its prejudicial impact on the record. The court adopted the State's analysis but the State did not analyze the probative versus prejudicial effect of the evidence — it deferred the balancing process to the court. Nevertheless, a trial court's failure to articulate its balancing process is harmless error where the record as a whole is sufficient to allow effective appellate review of the trial court's decision. State v. Bradford, 56 Wn. App. 464, 468, 783 P.2d 1133 (1989). Because the record supports a finding that the probative value of the threat substantially outweighed its prejudicial effect, the trial court's error was harmless.
II. Exceptional Sentence
In addition, Stout contends, both through counsel and pro se in a supplemental statement of additional grounds for review (SAG), that his exceptional sentence is unconstitutional under Blakely, 124 S. Ct. 2531. Specifically, he argues that the court imposed an exceptional sentence based on a judicial finding of fact not proved to a jury beyond a reasonable doubt.
In Blakely, the United States Supreme Court addressed former RCW 9.94A.390 (2001), now codified as RCW 9.94A.535, which provides:
`The court may impose a sentence outside the standard sentence range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence.' The Court applied the rule from Apprendi v. N.J., 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that, `[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Blakely, 124 S. Ct. at 2536. And it explained that the `statutory maximum' is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely, 124 S. Ct. at 2537. Thus, the court held that a defendant has a constitutional right to have a jury determine whether the factors permitting an exceptional sentence have been proven beyond a reasonable doubt. Blakely, 124 S. Ct. at 2533. The Court found that Blakely's enhanced sentence violated his Sixth Amendment right to trial by jury because the facts supporting the sentence were not admitted by Blakely nor found by a jury.
Blakely, 124 S. Ct. at 2533.
At Stout's sentencing hearing, the trial court stated that, in imposing an exceptional sentence, it considered the impact that the crime had on Stout's minor child and the fact that domestic violence was involved. After the hearing, the trial court entered written findings of fact and conclusions of law. The court found that at the time Stout committed the attempted murder of his wife, De Dee Stout was in the home, well within the sound of the gunshots, and that De Dee in fact had heard the gunshots. The court concluded that substantial and compelling reasons justified an exceptional sentence because Stout's crime involved domestic violence and occurred within the sound of his minor child. Thus, although the finding of domestic violence was part of the jury's verdict, the jury did not make the requisite findings of fact and conclusions of law supporting Stout's exceptional sentence because his crime occurred within De Dee's hearing. And Stout did not admit to the facts the court used to impose the exceptional sentence. He admitted that he shot his wife while De Dee was in the room next door, but he did not admit that De Dee was within sound of the shots i.e., that she could hear the shots while in the room next door or that she had actually heard the shots.
Moreover, the court did not determine that De Dee was within the sound of the gunshots based solely on Stout's testimony. Rather, the court came to its determination based on testimony by Stout, Mrs. Stout, and De Dee Stout and the floor plan of the Stout residence admitted as the State's exhibit 1. At best, Stout's testimony permitted an inference by the court that De Dee was within the sound of the shots. Blakely does not hold that inferences made by a court based on admissions by the defendant need not be proved to a jury.
The State concedes that Stout's sentencing procedure violated the Sixth Amendment but contends that the court's failure to submit Stout's aggravating factor to the jury was harmless error under Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L.Ed. 2d 35 (1999). We recently rejected this contention in State v. Fero, No. 30356-6-II, 2005 WL 15171 (Wash.Ct.App. Jan. 4, 2005). We held that Neder is inapplicable to violations of Blakely because Blakely dealt not with flawed jury instructions i.e., an error in the trial process but with a defendant's fundamental right to trial by jury. Fero, 2005 WL 15171, at *8-9.
In Neder, the Court applied a harmless error standard of review where the court failed to instruct the jury on all elements of the offense charged. Neder, 527 U.S. at 15. The Court held that the harmless error doctrine applies to errors in the trial process itself, but where an error is `structural,' i.e., a `defect affecting the framework within which the trial proceeds' and that `render[s] a trial fundamentally unfair,' the error warrants automatic reversal. Neder, 527 U.S. at 8 (listing total denial of counsel, biased trial judge, racial discrimination in selection of the jury, denial of self-representation at trial, or a defective reasonable doubt instruction as `structural' errors). The Court held that failing to instruct the jury on each element of the charge was not a `structural' error. Neder, 527 U.S. at 8.
In making this determination, the Court considered Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S. Ct 2078, 124 L. Ed. 2d 182 (1993), wherein the Court found that a defective reasonable doubt instruction was a `structural' error. The Court reiterated its holding in Sullivan, stating that `harmless-error analysis cannot be applied to a constitutional error that precludes the jury from rendering a verdict of guilty-beyond-a-reasonable-doubt.' Neder, 527 U.S. at 11. And the Court distinguished the situation in Neder, holding that the incomplete jury instruction merely prevented the jury from making a finding on an element of the crime charged. Neder, 527 U.S. at 11.
The State argues that the court's failure to submit the aggravating factor to the jury was harmless error under Neder because overwhelming evidence supports a finding that De Dee was within hearing distance of the gunshots. The State cites several cases that have found harmless error under Neder where a judge, rather than a jury, determined a fact for sentencing purposes. But these cases pre-date Blakely and do not overcome its clear language that, where the facts supporting a defendant's exceptional sentence are neither admitted by the defendant nor found by a jury, the sentence violates the defendant's Sixth Amendment right to a jury trial. Blakely, 124 S. Ct. at 2533.
In addition, the Blakely Court did not explicitly identify the proper standard of review. See Blakely, 124 S. Ct. at 2358. The Court held that, because the defendant's sentencing procedure did not comply with the Sixth Amendment, the defendant's sentence was invalid. Blakely, 124 S. Ct. at 2538. This indicates that when a judge imposes an exceptional sentence not based on the facts reflected in the jury verdict or admitted by the defendant, the court commits fatal error. Because Blakely challenged the exceptional sentence at the trial court level, the Court would have applied harmless error review if Blakely announced a mere procedural rule. Instead, the Court reversed and remanded without stating a standard of review. Blakely, 124 S. Ct. at 2538. This indicates that Blakely suffered a `structural' error, resulting in automatic reversal.
Moreover, the Court characterized the right to a trial by jury as `no mere procedural formality, but a fundamental reservation of power in our constitutional structure.' Blakely, 124 S. Ct. at 2538-39. As in Sullivan, Stout was denied the right to trial by jury. We hold that Stout's sentencing procedure violated his Sixth Amendment right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence, and the case must be remanded for re-sentencing consistent with Blakely.
We also note that the United States Supreme Court's recent decision in Schriro v. Summerlin, U.S., 124 S. Ct. 2519, 159 L.Ed. 2d 442 (2004), is inapplicable in this case. Although the Summerlin Court held that `Ring's holding is properly classified as procedural,' the Court was analyzing whether the rule announced in Ring should apply retroactively not whether a Blakely violation constitutes an error in the trial process for purposes of harmless error analysis. Summerlin, 124 S. Ct. at 2523. In determining whether a new rule is applied retroactively, a court must analyze whether the rule is substantive or procedural, i.e. whether it `alters the range of conduct or the class of persons that the law punishes.' Summerlin, 124 S. Ct. at 2523. Whereas in determining whether harmless error applies, a court must analyze whether the error committed is `structural,' i.e., whether the error affected the framework in which the trial proceeded or whether it merely affected the trial process. Neder, 527 U.S. at 8.
III. Cumulative Error
Stout also contends that he is entitled to reversal under the cumulative error doctrine. Under that doctrine, a defendant may be entitled to a new trial when errors cumulatively produced a trial that was fundamentally unfair. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000); In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified, 123 Wn.2d 737, cert. denied sub nom, Lord v. Wash., 513 U.S. 849 (1994). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. Lord, 123 Wn.2d at 332. Where no prejudicial error is shown to have occurred, cumulative error cannot be said to have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Because Stout has failed to show any reversible error, he is not entitled to a new trial under the cumulative error doctrine.
SAG ISSUES I. Confrontation
Stout first contends that he was denied his Sixth Amendment right of confrontation when the trial court excluded evidence of his wife's affair. Specifically, he argues that he was denied the right to meaningfully cross-examine his wife after she testified about the threat that he made on June 10, 2002.
The right to confront and cross-examine adverse witnesses is guaranteed by both the federal and state constitutions. U.S. Const. amend VI; Wash. Const. art. I, sec. 22. But the right to cross-examine adverse witnesses is not absolute. State v. Darden, 145 Wn.2d 612, 620-21, 41 P.3d 1189 (2002). The confrontation right is subject to the following limitations: (1) the evidence sought must be relevant; and (2) the defendant's right to introduce relevant evidence must be balanced against the State's interest in precluding evidence so prejudicial as to disrupt the fairness of the trial. Darden, 145 Wn.2d at 621. We review a trial court's limitation of the scope of cross-examination for a manifest abuse of discretion. Darden, 145 Wn.2d at 619.
Here, as noted, the trial court did not abuse its discretion in excluding evidence of Devan's alleged affair because it was not relevant to Stout's theory of the case and it unfairly prejudiced the victim.
II. Right to Testify
Stout next contends that he was denied his right to testify on his own behalf when the court excluded evidence of his wife's alleged affair. He argues that he was denied the right to testify regarding his `stress and confusion' over his wife's extramarital affair. SAG at 6.
A defendant's right to testify on his or her own behalf in a criminal trial has its source in the Fifth, Sixth, and Fourteenth amendments of the United States Constitution. Rock v. Ark., 483 U.S. 44, 51-52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). Article I, section 22 of the Washington Constitution provides defendants with a similar right to testify.
Here, Stout was not deprived of his constitutional right to testify; he testified on his own behalf. The court merely limited the scope of his testimony on one narrow issue. A defendant's right to present evidence is not absolute — the Constitution does not relieve a defendant from complying with established rules of procedure and evidence. Chambers v. Miss., 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). The trial court's exclusion of testimony regarding Devan's alleged affair was proper because it was not relevant and was unfairly prejudicial. A defendant has `no constitutional right to have irrelevant evidence admitted in his or her defense.' State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
III. Ineffective Assistance of Counsel
Stout also asserts that he received ineffective assistance of counsel because trial counsel did not object to the State's use of his confession to Detective Graham for impeachment purposes or to the prosecutor's improper comments during closing argument.
In determining whether a defendant received constitutionally sufficient representation, this court applies the two-part Strickland test. State v. Tilton, 149 Wn.2d 775, 783-84, 72 P.3d 735 (2003); Strickland v. Wash., 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, Stout must show that trial counsel's performance was deficient based on the entire record established in the proceedings below. Tilton, 149 Wn.2d at 784; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995), cert. denied, 516 U.S. 1121 (1996). In making this determination, this court presumes that the defendant received effective representation. Tilton, 149 Wn.2d at 784; State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). Representation is not deficient if trial counsel's conduct can be characterized as legitimate trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Second, Stout must show that the deficient performance prejudiced the defense. Tilton, 149, Wn.2d at 784. This showing is made when there is a reasonable probability that, but for trial counsel's errors, the result of the trial would have been different. Strickland, 466 U.S. at 687; Hendrickson, 129 Wn.2d at 78. To establish ineffective assistance of counsel, Stout must meet both prongs of the test. Hendrickson, 129 Wn.2d at 78.
Stout first claims that defense counsel's performance was deficient because he did not object when the State cross-examined him regarding his confession to Graham. Stout is in error. The court ruled in his CrR 8.3 motion to dismiss that his confession was not admissible in the State's case in chief. Here, the State properly used Stout's prior inconsistent statements to impeach him. See ER 613(b).
In addition, Stout contends that defense counsel should have objected to improper argument by the prosecutor in closing arguments. During closing argument, the prosecutor stated that after Stout shot his wife and left the bedroom, he re-entered the room, took the phone out of the room, and placed it in De Dee's room. The prosecutor went on to argue that Stout had taken the phone out of the room so that Devan would not be able to call 911 for help. Stout argues that there is no evidence in the record that he took the phone out of the bedroom. However, there was sufficient evidence for the prosecutor to argue this reasonable inference during closing argument. Devan testified that after she had been shot and was lying on the bedroom floor, Stout re-entered the bedroom, walked over to the side of the bed nearest the nightstand, and then left the room again. She also testified that the only items usually on the nightstand are a cordless telephone and a lamp, and that the phone usually remains on the charger. Mr. Jewell testified that when he entered the bedroom and saw his step-daughter, he went to the nightstand to call the police, but the phone was missing. Detective John Ringer testified that he investigated the house on the night of the shooting and discovered that the cordless telephone was not on its charger in the master bedroom. Ringer found the telephone in Kerry's room. This evidence was sufficient for the prosecutor to make the reasonable inference that Stout removed the phone from the master bedroom and placed it in one of his children's bedrooms. Thus, defense counsel was not deficient for failing to object to proper argument by the State.
IV. CrR 8.3(b) Motion
In addition, Stout contends that the trial court erred when it denied his CrR 8.3(b) motion to dismiss the prosecution. Specifically, he argues that the court abused its discretion by suppressing his confession to Graham rather than dismissing the case.
CrR 8.3(b) provides in relevant part:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.
To support dismissal under CrR 8.3(b), a defendant must show by a preponderance of the evidence both (1) arbitrary action or governmental misconduct and (2) actual prejudice affecting the defendant's right to a fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 658, 71 P.3d 638 (2003); State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003). Dismissal under CrR 8.3(b) is an extraordinary remedy that is improper except in truly egregious cases of mismanagement or misconduct that materially prejudice the rights of the accused. State v. Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003). We review the trial court's decision on a CrR 8.3(b) motion to dismiss for manifest abuse of discretion. Moen, 150 Wn.2d at 226. During the CrR 8.3(b) hearing, Ms. Robnett testified that when Detective Graham asked her if he could interview Stout, she attempted to determine whether Stout had an attorney. Neither the prosecutor's file nor the LINX system contained a notice of appearance from a defense attorney, a scheduling order, or a notice to law enforcement that Stout wished to assert his Sixth Amendment rights. Ms. Robnett also consulted with the appellate unit. She testified that when she told Detective Graham he could interview Stout, she did not know that he was represented by an attorney. Subsequently, the court found that there was no evidence of prosecutorial misconduct or `bad or evil intentions' on the part of the prosecutor. CP 106. However, the court found that the prosecutor should have been aware that Stout was represented and that her lack of knowledge was due to prosecutorial mismanagement. The court found that the only prejudice to Stout caused by the mismanagement was the confession he made to Graham, and the court suppressed this evidence from the State's case in chief. In light of the fact that dismissal under CrR 8.3(b) is an extraordinary remedy, the trial court properly denied Stout's motion and cured any prejudice by suppressing his statements to police.
V. Prosecutorial Misconduct
Stout also asserts that the prosecutor committed prosecutorial misconduct by introducing his statements to Graham for impeachment purposes and arguing evidence that was unsupported by the record.
In order to establish prosecutorial misconduct, Stout must prove that the prosecutor's conduct was improper and that the prosecutor's conduct prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established only where `there is a substantial likelihood the instances of misconduct affected the jury's verdict.' Dhaliwal, 150 Wn.2d at 578 (citing 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).
The prosecutor did not commit prosecutorial misconduct either by using evidence of prior inconsistent statements to impeach the defendant or by arguing reasonable inferences from the evidence to the jury. Stout is not entitled to reversal on any grounds.
VI. Notice of Aggravating Factors
Finally, Stout contends that his sentence must be vacated because the aggravating factors for his exceptional sentence were not pleaded in the information. He argues that under Apprendi, `any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.' Apprendi, 530 U.S. at 476. Because we remand Stout's sentence for resentencing, we need not address this issue.
Affirmed, but remanded for resentencing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., concur.