State Of Washington, V. Charles Linnell Bluford ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 80053-1-I
)
Respondent, )
) DIVISION ONE
v. )
)
CHARLES LINNELL BLUFORD, )
) UNPUBLISHED OPINION
Appellant. )
)
MANN, C.J. — Charles Bluford appeals his convictions for rape in the first degree
and robbery in the first degree. He argues that the court erred by admitting a hearsay
statement, that his counsel was ineffective, and that cumulative error violated his right to
a fair trial. He also argues that one of the community custody conditions imposed on
him is not crime-related, that the court erred by requiring him to register as a firearm
offender, and that the court erred by imposing a discretionary legal financial obligation
(LFO). We affirm Bluford’s convictions, but remand to strike the LFO.
FACTS
Bluford was charged and convicted of seven counts of robbery in the first degree,
one count of indecent liberties, and one count of first degree rape, for a series of
Citations and pin cites are based on the Westlaw online version of the cited material.
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offenses involving multiple victims in Seattle, Renton, Bellevue, and Shoreline.
Bluford’s convictions were overturned on appeal after the Supreme Court held that the
trial court abused its discretion by joining all of the offenses in a single trial. State v.
Bluford, 188 Wn.2d 298, 303, 393 P.3d 1219 (2017).
On remand, the State amended the information to five counts, including rape in
the first degree (count 1), and robbery in the first degree (count 2) for a March 10, 2012,
incident involving victim R.U. Counts 1 and 2 were tried by jury in October 2018.
Testimony at trial established as follows. On March 10, 2012, R.U. drove home
from work alone at about 10:30 p.m. and activated the electronic garage door as she
pulled up to her house on the end of a dead end street. She parked outside the garage
and went to get something from the trunk of her car. As she bent over the trunk, a man
emerged from behind a large tree. At trial, R.U. identified the man as Bluford.
Bluford approached R.U., called out to her, and pressed a gun against her side.
Bluford directed R.U. into her open garage and pushed her against a wall. Bluford
pulled out a condom, and pulled down R.U.’s leggings. R.U. kept pulling her leggings
back up, but Bluford forcefully inserted his finger inside her vagina repeatedly. Bluford
then forced R.U. to her knees, and forced his penis into her mouth.
A car pulled up in front of the house, blocking the driveway, and R.U. heard a
woman say, “That’s enough, that’s enough.” R.U. broke free and activated the
electronic garage. Bluford had already taken R.U.’s ring set, and he grabbed R.U.’s
purse as the door was closing. R.U.’s phone was in her purse.
Police tracked R.U.’s phone, and discovered that an individual had replaced
R.U.’s Subscriber Identity Module (SIM) card with their own SIM card with a different
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phone number. Police determined that a SIM card belonging to Cheryl Woodward was
used in R.U.’s cellphone on March 11, 2012. Woodward communicated with Bree
Brazille on the phone. When police served a search warrant on Woodward’s home on
March 15, 2012, officers recovered R.U.’s phone containing Woodward’s SIM card.
Woodward, a long-time acquaintance of Brazille, testified that Brazille sold her the
phone. Woodward believed that Brazille was married to Bluford. Woodward showed
officers a picture of Bluford and Brazille that she had taken on the phone.
Also on March 15, 2012, King County Sheriff’s detectives stopped Bluford and
Brazille. Police took Brazille’s phone at the stop. R.U.’s engagement wedding ring set
was in Brazille’s purse. Officers recovered a marriage license between Bluford and
Brazille. Detectives served a search warrant on the address listed on the marriage
certificate, where officers recovered R.U.’s purse. Police also found a document
showing that Bluford owed money to a debt collector at the residence. Because Brazille
was deceased at the time of trial, the State moved to admit Brazille’s statements to
officers that she shared the phone with Bluford, which the court allowed.
The jury convicted Bluford as charged. After conviction on these counts, Bluford
entered a guilty plea to felony harassment and two counts of theft in the first degree for
the conduct stemming from the other cases. At sentencing, the court imposed an
indeterminate sentence of 229 months to life for the rape count, running the other
counts concurrently. The court imposed a lifetime term of community custody. Bluford
appeals.
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ANALYSIS
A. Testimony Impeaching Non-testifying Declarant
Bluford first argues that the trial court erred by admitting Brazille’s hearsay
statement to the detective that she shared her phone with Bluford. He contends the
court erred because Brazille’s statement was not admissible for impeachment purposes
under ER 806 and that the defense did not open the door. We disagree.
We review a trial court’s evidentiary ruling for an abuse of discretion. State v.
Mohamed, 186 Wn.2d 235, 241, 375 P.3d 1068 (2016). Hearsay is an out-of-court
statement made by someone other than the testifying declarant that is offered for the
truth of the matter asserted. ER 801(c). While hearsay is generally inadmissible, when
hearsay statements are admitted into evidence, ER 806 permits impeachment of the
hearsay declarant.
When a hearsay statement . . . has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may be
supported, by any evidence which would be admissible for those purposes
if declarant had testified as a witness. Evidence of a statement or conduct
by the declarant at any time, inconsistent with the declarant’s hearsay
statement, is not subject to any requirement that the declarant may have
been afforded an opportunity to deny or explain.
ER 806.
During the State’s case, Detective Marylisa Priebe-Olson testified about the
investigation. She said that Brazille identified the phone as hers. Detective Kris
Knudsen testified that Brazille was searched incident to arrest and that he interviewed
Brazille after her arrest. On cross-examination, defense counsel asked Detective
Knudsen about Brazille’s phone and referred to the phone as “her” phone repeatedly.
On redirect, the State confirmed that Detective Knudsen obtained this information from
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his conversation with Brazille, and that she said the phone was hers. When asked
whether Brazille shared the phone with someone, Knudsen said “She said that was her
cell phone number.”
After Knudsen concluded his testimony, the State alerted the court that it
intended to call Detective Priebe-Olson again to illicit testimony that Brazille shared the
phone with Bluford. The defense did not object.
Under ER 806, the State moved to admit evidence that Brazille told Detective
Priebe-Olson that Brazille and Bluford shared the phone. The trial court determined that
when defense counsel questioned Detective Knudsen and referred to the phone as “her
phone,” it implied to the jury that the phone belonged to Brazille only. In accordance
with this ruling, the State asked Detective Priebe-Olson “when you spoke with Ms.
Brazille on that particular day, did she tell you that she and Charles
Bluford shared the same cell phone,” to which Detective Priebe-Olson replied “yes, she
did.”
Despite Bluford’s contentions that the court erred in admitting the testimony
because defense counsel did not open the door to such testimony, Bluford cannot
demonstrate that the trial court abused its discretion. A party may open the door during
the questioning of a witness to otherwise inadmissible evidence. State v. Korum, 157
Wn.2d 614, 646, 141 P.3d 13 (2006). “Where the defendant ‘opened the door’ to a
particular subject, the State may pursue the subject to clarify a false impression.” State
v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009). Here, defense counsel’s
questioning of Detective Knudsen could have implied to the jury that the phone
belonged to Brazille alone because defense counsel referred to the cell phone as “her”
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phone. The court did not abuse its discretion by allowing the clarifying testimony of
Detective Priebe-Olson.
Even if the court erred in admitting the single hearsay statement, the error was
harmless. An evidentiary error is not prejudicial unless the error materially affected the
outcome of the trial. In opening argument, defense counsel said that although the
phone belonged to Brazille, “Bluford would use it sometimes.” There was significant
evidence, besides the phone, that implicated Bluford in R.U.’s robbery and assault. 1
For these reasons, even if there was an error, it was harmless.
B. Ineffective Assistance of Counsel
Bluford next contends that his counsel was ineffective by not objecting to
evidence of Bluford’s debt. We disagree.
To demonstrate ineffective assistance of counsel, the defendant must show that:
(1) defense counsel’s representation was deficient, falling below an objective standard
of reasonableness based on consideration of all the circumstances and (2) defense
counsel’s deficient representation prejudiced the defendant. State v. McFarland, 127
Wn.2d 322, 334, 899 P.2d 125 (1995). The defendant establishes the second prong
when there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. McFarland, 127 Wn.2d at 335.
Counsel’s performance is presumed to be reasonable. State v. Brett, 126 Wn.2d
136, 198, 892 P.2d 29 (1995). The defendant must show the absence of a legitimate
1 R.U. identified Bluford in court, the picture of Bluford on R.U.’s phone matched her description
of her assailant, R.U. accurately described Bluford’s vehicle, and R.U.’s stolen possessions were
recovered from Bluford’s residence.
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strategic or tactical reason supporting the challenged conduct by counsel. State v.
Mannering, 150 Wn.2d 277, 286, 75 P.3d 961 (2003).
At trial, the State presented evidence of a document sent to Bluford by a debt
collection agency, Alliance One, showing that Bluford owed $1,735.75. Defense
counsel did not object. Then, during closing, the prosecutor used the debt as evidence
of a possible financial motive, arguing:
What is the motive? Was it a financial motive? We know from the
Defendant’s mail that he was in arrears. According to his Alliance One, he
owed $1737.75. Did it start off as a financial motive? Was the motive
because he needed a wedding ring for his fiancée [Brazille]? We know
that they were going to be getting married.
The prosecutor continued by telling the jury that only the person who committed the
crime knows the motive and motive is not an element of the crime that needs to be
proven.
Bluford contends that defense counsel was ineffective for failing to object
because evidence of poverty or debt is generally inadmissible to show motive, and an
objection would have been sustained because the evidence was irrelevant. We agree
with Bluford that “[e]vidence of poverty is generally not acceptable to show motive.”
State v. Kennard, 101 Wn. App. 533, 541, 6 P.3d 38 (2000). But the letter from Alliance
One was offered by the State for two reasons. First, because the letter was addressed
to Bluford at the same address as Brazille, it provided evidence that Bluford lived with
Brazille at the house where the victim’s stolen property was recovered. And second,
the letter was offered to show a possible motive, i.e., that Bluford may not have had
sufficient funds to buy Brazille a wedding ring. Thus, because the evidence was not
offered merely as evidence of poverty leading to motive, it likely would have been
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admissible as relevant. Bluford cannot show that defense counsel was deficient for
failing to object. 2
C. Cumulative Error
Bluford also argues cumulative error. Under the cumulative error doctrine, the
defendant must show that while multiple errors, when standing alone, are insufficient
grounds for reversal, the combined effect of these errors requires a new trial. State v.
Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017). Bluford has not demonstrated that
the trial court erred by admitting hearsay or that counsel was ineffective. While Bluford
attempts to characterize these alleged deficiencies as major errors, these are minor
instances that had little to no effect on the jury’s verdict. Therefore, he cannot
demonstrate cumulative error.
D. Community Custody Condition
Bluford argues that the community custody condition regarding sexual
relationships is not crime related and infringes on Bluford’s constitutional rights. We
disagree.
We review community custody conditions for an abuse of discretion and will
reverse them if they are manifestly unreasonable. State v. Nguyen, 191 Wn.2d 671,
678, 425 P.3d 847 (2018). The court may impose and enforce crime-related
prohibitions and affirmative conditions as part of the sentence. RCW 9.94A.505(9). A
2 As the State correctly points out, defense counsel addressed the potential financial motive head
on, arguing “The defendant was in arrears for a debt he owned. Big deal.” He then pointed at pictures of
the house and continued:
Look at that house. Its middle to upper middle class. They have nice TVs, electronic
toys, the furniture is nice. [Brazille] was obviously making enough money, whatever she
was doing, in order to maintain this lifestyle.
So, in arrears $1000, you’re going to go out and commit a First Degree Rape and First
Degree Robbery? I don’t think so.
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“crime-related prohibition” is “an order of a court prohibiting conduct that directly relates
to the circumstances of the crime for which the offender has been convicted.” RCW
9.94A.030(10). To be crime-related, there must be a reasonable relationship between
the condition and the defendant’s behavior, but “the prohibited conduct need not be
identical to the crime of conviction.” Nguyen, 191 Wn.2d at 684. Any community
custody conditions that interfere with the convict’s fundamental rights must be
reasonably necessary to accomplish the essential needs of the State and must be
sensitively imposed. State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).
The court imposed the following condition on Bluford: “Inform the supervising
CCO 3 and sexual deviancy treatment provider of any dating relationship. Disclose sex
offender status prior to any sexual contact. Sexual contact in a relationship is prohibited
until the treatment provider approves of such.”
We recently held that an identical condition was constitutional as long as the
condition was crime-related. See State v. Lee, 12 Wn. App. 2d 378, 386, 403, 460 P.3d
701 (2020) (defendant was required to “‘[i]nform the supervising [community corrections
officer] and sexual deviancy treatment provider of any dating relationship. Disclose sex
offender status prior to any sexual contact. Sexual contact in a relationship is prohibited
until the treatment provider approves of such’” (alterations in original)).
The requirement imposed on Bluford is plainly crime-related and sensitively
imposed. Bluford was convicted of raping a woman a gunpoint. Even though R.U. was
not his romantic partner, this condition involves sexual intimacy which directly relates to
Bluford’s offense. Bluford’s requirement to disclose his history of sexual violence to
3 Community Corrections Officer.
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future partners, so that they can make an informed decision regarding any sexual
relationship with him, is crime related.
E. Felony Firearm Offender
Bluford argues that the court erred by requiring him to register as a felony firearm
offender. We disagree.
A person convicted of a felony firearm offense may be required to comply with
registration requirements. RCW 9.41.330(1). A “felony firearm offense” includes “any
felony offense if the offender was armed with a firearm in the commission of the
offense.” RCW 9.41.010(10)(e).
The firearm registration statute is regulatory, not punitive. State v. Gregg, 196
Wn.2d 473, 485, 474 P.3d 539 (2020). When the trial court’s finding results in a
regulatory, rather than punitive result, a jury determination is not required. State v.
Felix, 125 Wn. App. 575, 578, 105 P.3d 427 (2005).
Bluford was charged with rape in the first degree, one element of which was “that
the defendant used or threatened to use a deadly weapon or what appeared to be a
deadly weapon.” The jury was instructed that a firearm is a deadly weapon.
During sentencing, the court made a finding that counts 1 and 2 were felony
firearm offenses after the State’s request. 4 Bluford did not object. Bluford was required
to comply with the felony firearm registration requirements.
Bluford’s failure to object to the trial court’s findings results in Bluford failing to
preserve this issue on appeal. “An appellant may not challenge for the first time on
4 The State did not distinguish which offense formed the basis for the firearm registration
requirement. Because the rape charge formed the proper basis for Bluford to comply with firearm
registration requirements, we do not need to consider whether the robbery charge requires firearm
registration.
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appeal the trial court’s findings of fact where those findings are a result of assertions
made at the sentencing hearing without objection.” State v. Reynolds, 80 Wn. App.
851, 860, 912 P.2d 494 (1996). Regardless, the record supports the trial court’s ruling
that Bluford was armed with a firearm. 5 Therefore, the court’s requirement of Bluford to
register as a felony firearm offender was proper.
F. Legal Financial Obligations
Bluford argues that the court erred by imposing discretionary LFOs. The State
concedes. We accept the State’s concession.
The trial court found Bluford indigent, and waived all waivable fees, fines, and
interest. The court imposed community custody supervision fees from boilerplate
language on the judgment and sentence. Courts shall not impose discretionary costs
on defendants who have been found indigent. RCW 10.01.160(3); State v. Ramirez,
191 Wn.2d 732, 748, 426 P.3d 714 (2018). Supervision fees are discretionary legal
financial obligations. State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (2020).
We remand to the trial court to strike the community custody supervision fees.
Affirmed. 6
5 R.U. was taught about firearms, she felt the gun press against her hip, she thought it looked and
felt like a real gun, she thought it looked like a smaller version of a .45 caliber pistol, a single round from a
.380 semi-automatic handgun was found in Bluford’s residence, a .380 is similar to but smaller than a .45,
and Bluford had been convicted of prior robberies using a firearm.
6 In his statement of additional grounds, Bluford contends that the court violated his due process
rights and right to a fair trial. He bases this on an interaction where Woodward held up her hands to
demonstrate how long the gun was. Bluford contends that the court should have given a curative
instruction. Bluford fails to demonstrate prejudice from this interaction.
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WE CONCUR:
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