The Court of Appeals of Washington, Division OneMar 3, 2003
115 Wn. App. 1055 (Wash. Ct. App. 2003)

No. 49921-1-I

Filed: March 3, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Snohomish County, No. 011017602, Hon. Charles S. French, January 14, 2002, Judgment or order under review.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

David B. Koch, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.

Counsel for Respondent(s), Constance M. Crawley, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201.

Steven Lee Smith appeals his conviction for first degree robbery and burglary, arguing that prosecutorial misconduct deprived him of a fair trial. The prosecutor's comment here was highly inappropriate, but any prejudicial effect from the comment could have been neutralized by a curative instruction to the jury. Smith also argues that this matter must be remanded for imposition of a precise term of community custody. This argument was recently rejected in State v. Mitchell, Wn. App. , 59 P.3d 717 (2002). We similarly reject Smith's various pro se challenges to his conviction. We therefore affirm Smith's convictions. But because the trial court erred in running Smith's deadly weapon enhancements concurrently to one another, we vacate Smith's sentence and remand for resentencing.


Richard Brown was estranged from his wife, Fran. Although Brown had a restraining order against Fran, she continued to live in their house while he lived in a shop building on the property. Part of the animosity between Brown and his wife had to do with her drug use, and that of her friends. Witnesses described the house as a "drug house" where addicts would come and go. Steven Smith was one of the people who frequented Fran's house. Smith had recently stayed at Fran's house for about a month, but left when Fran accused him of stealing credit cards from Brown. Police later discovered that it was not Smith, but Fran who had stolen the credit cards. Brown often gave his wife money, but would not tell her where he kept his money for fear she would take it. He hid his money in the shop building where he lived, and moved it frequently so that Fran would not be able to find it. On or about July 31, 2001, Fran announced that she was going to visit her brother in Idaho. Brown gave Fran and her friend Sheila Faye Simon some money. Smith was also at the house that day, and heard Fran say she was leaving on a trip.

At approximately 3:00 a.m. on August 1, 2001, Brown was attacked in his bed while he slept. The attacker repeatedly hit Brown in the head with a 12 to 18 inch metal bar and asked for his money. Brown told the man that his only money was on a table. The attacker took the money on the table, then looked in the bottom drawer of a file cabinet and the bottom drawer of Brown's desk. Brown thought this was odd because he had previously kept his money in both those locations. Brown did not see his attacker's face because it was covered by pantyhose. He did, however, recognize the man's voice, although he could not immediately match the voice to a name. Fran returned the next morning. As police later determined, she had not gone to Idaho, but had made up a story so Brown would give her money for drugs. Brown told Fran about the robbery, and indicated he thought the attacker was one of her friends. He told her to call the police if she knew anything. Based on Brown's description, Fran concluded that Smith was the attacker. Brown was positive Smith was the man who had attacked him. According to the State's witnesses, on the night of the attack, Smith had been smoking crack cocaine with Sheila Faye Simon, Terri Saxton-Mullen, and Gary Weeks. At trial, Simon, Saxton-Mullen, and Weeks all testified. While their stories were not entirely consistent, all three agreed that they drove in a van with Smith to Brown's residence, that Smith went into the house, and came out with blood on him. Weeks testified that Smith suggested that they "do the Snohomish thing," meaning that they should rob Brown. Report of Proceedings (RP) (Dec. 4, 2001) at 144. Weeks claimed he stood outside the house while Smith went in, and that he could see Smith struggling with Brown. He heard Brown say he didn't have any money, and could also see that Smith had a crowbar. Weeks testified that Smith had blood on his hands and face when he returned to the van, and told everyone how hard Brown had fought. Weeks claimed they went to a friend's house where they counted the money Smith had stolen. Saxton-Mullen also testified that Smith was talking about doing the "Snohomish thing" and that Smith and Weeks had talked about having a nylon and a crowbar. She claimed she and Simon waited in the van when they got to Brown's and that when he returned, Smith talked about having blood on him. She also recalled going to a friend's house and that while there, they counted the money and Smith talked about how hard Brown fought.

In contrast, Simon testified that Smith did not talk about a robbery, but rather said that they were going to Fran's house to borrow money. They drove to Fran's house and she waited with Saxton-Mullen in the van while Weeks and Smith left. When Smith returned, Saxton-Mullen told him he had blood on his face. Simon later noticed that a tire iron was missing from the van.

At trial, the defense theory was that Fran had masterminded the robbery, and that Brown's attacker was not Smith, but someone else. The defense focused on the numerous inconsistencies in the witnesses' testimony, and on the fact that Weeks and Saxton-Mullen had received reduced charges due to their cooperation and testimony. In closing, the prosecutor argued:

[Brown] told you, that voice, that "Gimme your money, gimme your money," that voice is bouncing around in his head for weeks. And that face that he's face to face with, while he's holding onto the metal bar that struck him and the guy is punching him in the face, that face is in his mind. And after a week, two weeks, he says, I know who that is. I know that voice, and I know that face. And it's the shithead that hangs out at Fran's house.

RP (Dec. 5, 2001) at 396-97.

The jury convicted Smith as charged of first degree robbery and first degree burglary, each count with a deadly weapon enhancement. At sentencing, the trial court found that the robbery and burglary constituted the same criminal conduct, but in its discretion invoked the burglary anti-merger statute. Based on this, the court imposed 48 months on the robbery and 31 months on the burglary and ran the base sentences concurrently. The court also ran the two deadly weapon enhancements concurrently "notwithstanding the statutory language to the contrary." RP (Jan. 14, 2002) at 17. Smith's sentence also included a term of community custody of 18 to 36 months or the period of earned early release awarded pursuant to RCW 9.94A.150(1) and (2), whichever is longer.

Smith now appeals. The State has filed a cross-appeal.

DISCUSSION Prosecutorial Misconduct

In her closing argument, the prosecutor used the word "shithead" in reference to Smith. This was apparently done in an attempt to paraphrase what the victim might have thought when he realized that it was Smith who had robbed him. Smith argues that in so doing, the prosecutor committed misconduct that denied him of his right to a fair trial. The State concedes that the comment was inappropriate, but contends that reversal is not warranted because any prejudice could have been cured had defense counsel objected to the remark at trial.

A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the verdict. Brown, 132 Wn.2d at 561. Failure to object to an improper remark constitutes a waiver of error unless the remark is so "flagrant and ill intentioned" that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Brown, 132 Wn.2d at 561 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).

Smith cites to several cases holding that pejorative characterizations of a defendant may amount to misconduct. In State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988), our Supreme Court held that the prosecutor's misconduct was so flagrant and ill-intentioned that reversal was required, notwithstanding defense counsel's failure to object. But in that case, the prosecutor referred to a group of which defendant was a member as "a deadly group of madmen" and "butchers that kill indiscriminately," likening the movement members to "Kadafi" and "Sean Finn" of the IRA. Belgarde, 110 Wn.2d at 506-07. These comments were repeated throughout the closing argument, and their prejudicial effect could not have been cured by a timely objection followed by a curative instruction. The isolated remark made by the prosecutor here, while certainly improper, is simply not comparable to the misconduct in Belgarde.

This case is also distinguishable from State v. Suarez-Bravo, 72 Wn. App. 359, 367, 864 P.2d 426 (1994). The prosecutor in Suarez-Bravo asked the defendant whether he lived in a high-crime area, implied that Hispanic orchard workers deal in cocaine, asked about the defendant's fears of deportation and his status as a Hispanic noncitizen, and tried to induce the defendant to call the State's witnesses liars. The court held that the cumulative effect of this prejudicial line of questioning warranted reversal of the defendant's conviction. In contrast, any prejudicial effect from the prosecutor's comment could have been alleviated by an objection and a curative instruction. Similarly, in State v. Rivers, 96 Wn. App. 672, 673-75, 981 P.2d 16 (1999), the prosecutor peppered his closing with various personal and inappropriate attacks on the defendant and the defense witnesses. The prosecutor referred to the defendant as a predator, a jackal, and a hyena. He also referred to defense witnesses who appeared in custody as "the pajama crowd," and went on to invite the jury to imagine how these witnesses would be "welcomed in the shower" at the "King County Hotel" if they testified against the defendant. Rivers, 96 Wn. App. at 673-74. These highly inflammatory statements differ both in quality and quantity from the one inappropriate comment here.

Likewise, the comment here does not rise to the level of the misconduct which has been held to warrant reversal in other cases. See State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984) (prosecutor called the defendant a liar and clearly a "murder two" and slurred defense counsel); State v. Claflin, 38 Wn. App. 847, 849, 690 P.2d 1186 (1984) (prosecutor read a poem by an anonymous rape victim).

The remaining cases relied upon by Smith do not support his position because while the prosecutors' comments were inappropriate in these cases, they did not warrant reversal because the defendant did not object to the remarks at trial. See State v. Music, 79 Wn.2d 699, 716-17, 489 P.2d 159 (1971) (prosecutor referred to defendant as a "mad dog"), vacated in part on other grounds, 408 U.S. 940, 92 S.Ct. 2877, 33 L.Ed.2d 764 (1972); Darden v. Wainwright, 477 U.S. 168, 179-82, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (prosecutor called defendant an "animal"). The improper comment here is more akin to these statements than to the type of misconduct that has been held to warrant reversal. The prejudicial effect of the prosecutor's comment could easily have been cured had it been objected to at trial, and the failure to object to the comment constituted waiver of the claim of error.

Term of Community Custody

Smith next argues that his sentence was not sufficiently definite and certain because the sentencing court failed to calculate his maximum period of community custody. This issue is controlled by our recent holding in State v. Mitchell, Wn. App. , 59 P.3d 717 (2002). As in Mitchell, the court ordered Smith to serve a term of community custody of the statutory range (18 to 36 months) or the period of earned early release, which ever is longer. As we held in Mitchell, this order is sufficiently definite and certain, and the trial court did not err. Pro Se Issues Jury Instructions. Smith raises various claims of error pro se. First, he challenges several of the court's instructions to the jury. Essentially, Smith argues that the court erred in failing to instruct the jury on accomplice liability, and then argues that he could not have been convicted as an accomplice. This claim is without merit. Smith was tried and convicted as a principal. The State did not argue that Smith was responsible for the acts of any others, and neither the State's arguments nor the court's instructions invited the jury to impute the intent, knowledge, or actions of others to Smith. Similarly, Smith's arguments regarding alleged flaws in the accomplice liability instructions are frivolous, because the court did not instruct the jury on accomplice liability.

Smith also challenges the instruction defining intent, arguing that because the instruction failed to specify the crime charged, it allowed the jury to convict him of one crime even if the State only proved intent to commit another crime. The intent instruction given was recently approved in State v. Brown, 132 Wn.2d 529, 605-06, 940 P.2d 546 (1997), as consistent with the statutory definition of intent. Intent here was an element of the charged crimes. The instruction properly stated the general definition of intent, and it was not necessary for the instruction to also state which crimes were charged.

Smith also argues that the trial court erred in failing to give a unanimity jury instruction. The right to a jury trial includes the right to a unanimous verdict. Wash. Const. art. I, § 22; State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). When the State presents evidence of several distinct criminal acts that could form the basis of the charge, the court must ensure that the jury reaches a unanimous verdict on one particular act. Petrich, 101 Wn.2d at 572. But this rule is inapplicable where the evidence indicates a continuing course of conduct. Petrich, 101 Wn.2d at 571-72. In determining whether the evidence establishes a continuing course of conduct, courts must evaluate the underlying facts in a common sense manner. Petrich, 101 Wn.2d at 571. Where the defendant engages in a series of actions intended to achieve a singular objective, then the evidence tends to establish a continuing course of conduct. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). Viewed in a common sense manner, the evidence here clearly establishes a continuing course of conduct, and Smith was not entitled to a unanimity instruction. Sufficiency of the Evidence. Smith next argues that the evidence against him was insufficient. This argument is largely predicated on Smith's unfounded claim that he was tried as an accomplice. The evidence was sufficient to convict Smith as a principal. Evidence is sufficient if, viewed the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). Here, the victim positively identified Smith as his attacker. Several other witnesses also testified that Smith committed the charged crimes, and was armed with a deadly weapon.

In support of his claim of insufficiency, Smith argues that the witnesses against him were unreliable, had motives to lie, and that the witnesses did in fact testify falsely. Smith was entitled to present this theory at trial, and indeed the record reflects that Smith's trial attorney vigorously cross-examined the State's witnesses and argued persuasively on this point to the jury. Smith's confrontation rights were not violated. Any questions as to the witnesses' credibility are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). And insofar as the witnesses have not recanted, the cases cited by Smith are inapplicable. See Larrison v. United States, 24 F.2d 82 (Ill. 1928); United States v. Leibowitz, 919 F.2d 482 (7th Cir. 1990). Evidentiary Ruling Smith contends the court excluded prior inconsistent statements that directly impeached the credibility of the State's witnesses. The portion of the record to which Smith cites shows no evidentiary rulings suppressing prior statements. And Smith does not identify what the statements were, or how they would impeach the witnesses' testimony. This claim of error therefore fails.

Witness Identification

Ten days following the robbery, a detective showed Sheila Faye Simon a picture, and she identified Smith as the man in the picture. Smith claims this was an impermissibly suggestive identification procedure, and that his due process rights were therefore violated. But this was not an instance where Simon was using a photograph to identify a stranger. Rather, Simon knew Smith, and was with him on the night of the robbery. Although showing a witness a single photograph may be impermissibly suggestive under normal circumstances, Smith has failed to demonstrate a substantial likelihood of irreparable misidentification under the facts of this case. State v. Maupin, 63 Wn. App. 887, 822 P.2d 355 (1992); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). Any questions regarding the identification went to its weight, not its admissibility.

Ineffective Assistance of Counsel

Smith also raises various claims of ineffective assistance of counsel. To establish ineffective assistance, an appellant must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to establish either element of the ineffective assistance of counsel claim, we need not address the other element. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Counsel's decisions as to trial strategy or tactics do not constitute ineffective assistance, and there is a strong presumption that counsel was effective and exercised reasonable professional judgment. State v. Red, 105 Wn. App. 62, 66, 18 P.3d 615 (2001) (citing State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991)), review denied, 145 Wn.2d 1036 (2002).

Smith first contends his trial counsel was ineffective for failing to investigate the theory that someone other than Smith committed the crimes. Failure to investigate or interview witnesses, or to properly inform the court of the substance of their testimony, is a recognized basis for a claim of ineffective assistance of counsel may rest. State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991). But here, Smith fails to identify what further investigation should have been undertaken, or what the results of such investigation would have been. He therefore fails to demonstrate either deficient performance or prejudice.

Smith also argues that his attorney was ineffective for failing to request instructions on lesser included offenses. A defendant is entitled to an instruction on a lesser included offense if (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence supports an inference that the lesser crime was committed. State v. Pacheco, 107 Wn.2d 59, 68-69, 726 P.2d 981 (1986); State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). Here, the evidence does not support an inference that a lesser crime was committed. Smith's defense was not that he had committed a lesser crime or crimes, but rather that he had not committed any crime. This claim of ineffective assistance is without merit. Further, Smith has failed to demonstrate that the failure to request a lesser included instruction was not a matter of legitimate trial strategy. Smith also claims that his counsel was ineffective because he failed to offer or request a cautionary instruction about accomplice testimony. A cautionary instruction directs the jury to carefully examine the accomplice's testimony along with the entire case and regard it with care and caution. The accomplice instruction is only required when the accomplice testimony is not "substantially corroborated" by other evidence. See State v. Mannhalt, 68 Wn. App. 757, 767-68, 845 P.2d 1023 (1992). Corroborating evidence is sufficient if it fairly tends to connect the defendant with the commission of the crime. Also, independent evidence need not corroborate every part of the accomplice's testimony. See State v. Calhoun, 13 Wn. App. 644, 648, 536 P.2d 668 (1975) (quoting State v. Gross, 31 Wn.2d 202, 216, 196 P.2d 297 (1948)). Although the State relied heavily on the testimony of Smith's accomplices, it also presented other testimony, including the victim's positive identification of Smith. A cautionary instruction was therefore not necessary and Smith's ineffective assistance argument fails.

Cumulative Error

Finally, Smith argues that cumulative error denied him of his right to a fair trial. The cumulative error doctrine applies only when several trial errors occurred which, standing alone, may not be sufficient to justify a reversal, but when combined together, may deny a defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because Smith identified no errors, the cumulative error doctrine does not apply.


The State has filed a cross-appeal, arguing that the trial court erred in running Smith's deadly weapon enhancements concurrently, and that the failure to run the enhancements consecutively violated the deadly weapon enhancement statute, which provides:

Notwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.

RCW 9.94A.510(4)(e).

A firearm enhancement is not a separate sentence or a separate substantive crime but a statutorily imposed sentence increase for a particular crime based upon certain factors involved in the crime. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 253, 955 P.2d 798 (1998). The State cites State v. Spandel, 107 Wn. App. 352, 27 P.3d 613, review denied, 145 Wn.2d 1013 (2001), in support of its position that the firearm enhancement statute is unambiguous and requires multiple enhancements to be added consecutively to all other sentencing provisions and each other, regardless of whether the underlying offenses are sentenced concurrently. Spandel is not directly on point, because that case addressed multiple enhancements imposed for multiple weapons possessed during a single crime, and did not reach the question of how to harmonize multiple weapons enhancements derived from possession of a single weapon during multiple crimes encompassing the same criminal conduct. Spandel, 107 Wn. App. at 358.

The Washington Supreme Court previously addressed this question in Charles, and held that enhancements could be imposed concurrently due to an ambiguity in the Sentencing Reform Act. Charles, 135 Wn.2d at 253. Following Charles, the legislature amended the firearm enhancement statute to require that all firearm enhancements "run consecutively to all other sentencing provisions, including other deadly weapon or firearm enhancements, for all offenses sentenced under this chapter," notwithstanding any other provision of law. RCW 9.94A.510(4)(e). The legislature's intent in amending the firearm enhancement statute was to ensure that firearm enhancements were imposed consecutively.

These amendments were made to RCW 9.94A.310, which was recodified as RCW 9.94A.510 by Laws 2001, ch. 10, § 6.

In this case, the trial court found Smith's two crimes to be the "same criminal conduct." And RCW 9.94A.510(4)(e) does not expressly address the same criminal conduct statute, RCW 9.94A.400. But the result would be the same whether or not Smith's crimes amounted to the same criminal conduct.

The same criminal conduct provision applies only to computation of offender score, not imposition of sentences. RCW 9.94A.510(4)(e) plainly states that firearm enhancements must be served consecutively, "[n]otwithstanding any other provision of law." The trial court therefore erred when it ran Smith's two weapons enhancements concurrently to one another.

We affirm Smith's convictions, but vacate his sentence and remand for resentencing in accordance with this opinion. FOR THE