State of Washington v. Ben Alan Burkey ( 2018 )

FILED
FEBRUARY 1, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34093-7-III
) (consolidated with
Respondent, ) No. 34956-0-III)
)
v. )
)
BEN ALAN BURKEY, )
)
Appellant. ) UNPUBLISHED OPINION
)
)
In the Matter of the Personal Restraint of )
)
BEN ALAN BURKEY, )
)
Petitioner. )
PENNELL, J. — After his original convictions were reversed for a public trial
violation, 1 Ben Alan Burkey was convicted of murder, kidnapping, conspiracy to commit
kidnapping, robbery, and assault, all in the first degree. He appeals his convictions and
has also filed a timely personal restraint petition. We affirm Mr. Burkey’s convictions
and dismiss the petition. However, we remand for resentencing and correction of a
scrivener’s error.
1
State v. Burkey, No. 25516-6-III (Wash. Ct. App. May 21, 2015) (unpublished),
https://www.courts.wa.gov/opinions/pdf/255166.unp.pdf.
Nos. 34093-7-III; 34956-0-III
State v. Burkey
FACTS
In September 2005, Rick Tiwater’s murdered body was found in the woods of
north Spokane County. Forensic evidence led police to target their investigation on
Mr. Burkey. Eventually, law enforcement theorized Mr. Burkey and another man named
James Tesch had assaulted and murdered Mr. Tiwater in retaliation for Mr. Tiwater being
a perceived law enforcement informant or “snitch.” The assault against Mr. Tiwater
started during the evening at Mr. Burkey’s home, where Mr. Burkey initially hit Mr.
Tiwater. Then, after being summoned to the home by Mr. Burkey, Mr. Tesch arrived and
continued the assault by kicking Mr. Tiwater, dragging him into the kitchen, and striking
him on the head with a ball peen hammer. With Mr. Tiwater unconscious, Mr. Tesch and
Mr. Burkey transported Mr. Tiwater to a remote wooded area where they continued their
fatal attack. By the time his body was discovered by law enforcement, Mr. Tiwater had
suffered several blunt force injuries as well as burns to his head, chest, and hands. Mr.
Burkey and Mr. Tesch were charged with several criminal offenses, including first degree
assault and first degree murder. The two men were tried separately.
Several witnesses testified to the events leading up to Mr. Tiwater’s death. Some
of the witnesses from Mr. Burkey’s initial trial in 2006 were unavailable for retrial in
2015. The State therefore obtained leave to present the witnesses’ testimony through trial
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
transcripts. Mr. Burkey testified at his first trial, but not the second. At the second trial,
the State introduced transcript evidence of Mr. Burkey’s original testimony as part of its
case in chief.
Troy Fowler was one of the witnesses whose testimony was presented through a
transcript. Mr. Fowler said he was at Mr. Burkey’s house with Mr. Tiwater and Mr.
Burkey on the evening of the murder. Mr. Tesch was not yet present. Mr. Fowler saw
Mr. Burkey strike Mr. Tiwater several times. He also heard Mr. Burkey call Mr. Tiwater
a snitch. Mr. Fowler testified Mr. Burkey called Mr. Tesch to come over and help figure
out if Mr. Tiwater was an informant. Mr. Fowler then left Mr. Burkey’s home before Mr.
Tesch arrived. Mr. Fowler testified he talked to Mr. Burkey the next day. Mr. Burkey
said Mr. Tiwater had fallen into a campfire and would not be seen again.
The State also presented transcript testimony from Mr. Burkey’s girlfriend, Patricia
Lascelles. Ms. Lascelles’s testimony was less directly helpful to the State than Mr.
Fowler’s testimony. Ms. Lascelles denied seeing Mr. Burkey strike Mr. Tiwater. She
also claimed Mr. Burkey told Mr. Tesch to stop while Mr. Tesch attacked Mr. Tiwater
inside the home. But Ms. Lascelles also supplied testimony relevant to the State’s theory,
in that she: (1) admitted Mr. Burkey had sent her to Mr. Tesch’s home with instructions
to have Mr. Tesch come over, (2) described Mr. Tesch’s attack on Mr. Tiwater,
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
(3) explained that Mr. Tesch and Mr. Burkey drove off in Mr. Burkey’s car with Mr.
Tiwater’s body in the back seat, (4) testified that Mr. Burkey and Mr. Tesch returned
home in the car the morning after the attack bearing bloody clothes and a golf club, but
without Mr. Tiwater, and (5) admitted she attempted to hide or destroy the bloodied
evidence at the direction of both Mr. Tesch and Mr. Burkey.
The police recovered physical evidence from Mr. Burkey’s home that corroborated
Ms. Lascelles’s attempted destruction of evidence. They also obtained surveillance
footage from a nearby gas station showing Mr. Burkey and another man present with
Mr. Burkey’s car around 5:00 a.m. the day after the attack began. Mr. Burkey did not
appear upset or disoriented in any way.
In statements presented to the jury through law enforcement witnesses and the
prior trial transcript, Mr. Burkey blamed Mr. Tesch for Mr. Tiwater’s murder. Mr.
Burkey admitted he was present during Mr. Tesch’s entire violent attack. However, Mr.
Burkey denied any involvement. Mr. Burkey explained he tried to tell Mr. Tesch to stop.
He also claimed he was fearful of Mr. Tesch and only agreed to help dispose of Mr.
Tiwater’s body and other evidence after Mr. Tesch threatened to kill Mr. Burkey and his
son.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
When asked about Mr. Fowler’s allegation that Mr. Burkey had hit Mr. Tiwater
prior to Mr. Tesch’s arrival at his home, Mr. Burkey admitted to only minor wrongdoing.
Mr. Burkey said he slapped Mr. Tiwater after discovering Mr. Tiwater had used drugs in
front of Ms. Lascelles’s son. Mr. Burkey claimed this incident was unrelated to Mr.
Tesch’s later attack.
The jury convicted Mr. Burkey of all five pending counts. At sentencing, the trial
court found Mr. Burkey’s convictions for first degree kidnapping (count II) and first
degree robbery (count IV) merged with his first degree murder conviction (count I). The
trial court then imposed 548 months of confinement for the murder, with 68 months for
the kidnapping and 171 months for the robbery to run concurrently. The court further
imposed 51 months of confinement on the conspiracy charge (count III) and 123 months
for the assault (count VI), both to run consecutively with the sentence for count I. For the
deadly weapon enhancements, an additional 24 months was added to counts I, II, IV, and
VI, and 12 months was added to count III, with all these enhancements to run consecutive
to the base sentence. The court also imposed community custody terms of 36 months for
counts I and VI, and 18 months for count IV.
Mr. Burkey appeals. He has also filed a statement of additional grounds for
review, and a report as to continued indigency. A personal restraint petition filed by Mr.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Burkey has been consolidated with his direct appeal.
ANALYSIS
Prior bad act evidence
Mr. Burkey claims his trial was tainted by the improper introduction of bad act
evidence. Specifically, he points to the State’s evidence that Mr. Burkey had head-butted
Mr. Tesch’s girlfriend in front of Mr. Tesch on the day of the murder. The State contends
the head-butting evidence was not presented for an improper character purpose. Instead,
it was relevant to refute Mr. Burkey’s claim that he was fearful of Mr. Tesch and had not
willingly assisted with the murder. We agree with the State.
Otherwise inadmissible evidence can become relevant and admissible as a result of
defense trial tactics, including comments made in opening statements. State v. Rupe,
101 Wn.2d 664, 686-88, 683 P.3d 571 (1984). That is what happened here. During
opening statement, defense counsel presented the theory that Mr. Burkey feared Mr.
Tesch and was merely a passive observer of Mr. Tesch’s assaultive conduct. This theory
was further developed during cross-examination of the law enforcement witnesses who
had interviewed Mr. Burkey. Because the evidence that Mr. Burkey head-butted Mr.
Tesch’s girlfriend in front of Mr. Tesch tended to show Mr. Burkey was not fearful of Mr.
Tesch, it was relevant to rebut the defense’s theory of the case. The trial court did not
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
abuse its broad discretion in admitting this evidence.
Lack of unanimity jury instruction
Mr. Burkey argues for the first time on appeal that the trial court violated his right
to a unanimous verdict by failing to require juror agreement on which acts constituted the
crime of first degree assault. Mr. Burkey claims Mr. Tiwater had been assaulted
numerous times in the hours before his murder and any of the attacks could have
constituted first degree assault. According to Mr. Burkey, these circumstances required
the court to issue a unanimity instruction pursuant to State v. Petrich, 101 Wn.2d 566,
683 P.2d 173 (1984).
We disagree with Mr. Burkey’s characterization of the record. A unanimity
instruction is required when the prosecutor presents evidence of several distinct acts, any
one of which could form the basis of a charged crime. Id. at 571-72. But that is not what
happened here. According to the State’s theory of the case, the assault on Mr. Tiwater
was an ongoing crime that started in Mr. Burkey’s home and then continued into the
woods. 3 Verbatim Report of Proceedings (VRP) (Dec. 14, 2015) at 595-96. The State
claimed Mr. Burkey was involved in the assault from the very beginning and that both
Mr. Burkey and Mr. Tesch were united in their effort to punish Mr. Tiwater for being a
snitch. Under these circumstances, the individual acts of violence perpetrated against Mr.
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State v. Burkey
Tiwater constituted a continuing course of conduct. State v. Crane, 116 Wn.2d 315, 326,
804 P.2d 10 (1991); State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). As such,
no unanimity instruction was required. Crane, 116 Wn.2d at 326; Love, 80 Wn. App. at
361.
The State’s theory of a continuing assault contrasted with the defense’s theory that
there had been two separate assaults of Mr. Tiwater: (1) a minor assault by Mr. Burkey
(for which no charges had been brought), precipitated by Mr. Tiwater’s use of drugs in
front of Ms. Lascelles’s son, and (2) a separate major assault perpetrated solely by Mr.
Tesch. Given these opposing case theories, the lack of a unanimity instruction actually
helped Mr. Burkey. As written, the instructions required the jury to make an all or
nothing decision about Mr. Burkey’s offense conduct, thereby increasing the odds of
reasonable doubt. Mr. Burkey was not prejudiced by the lack of a unanimity instruction.
Reversal is unwarranted in these circumstances. See State v. Carson, 179 Wn. App. 961,
979, 320 P.3d 185 (2014), aff’d, 184 Wn.2d 207, 357 P.3d 1064 (2015).
Alleged nondisclosure of impeachment evidence
Mr. Burkey argues the State improperly withheld material impeachment evidence
pertaining to Patricia Lascelles’s plea agreement with the State. We review this claim de
novo. State v. Mullen, 171 Wn.2d 881, 893-94, 259 P.3d 158 (2011).
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Some background is warranted prior to analyzing the merits of Mr. Burkey’s
claim. As noted, the State presented Ms. Lascelles’s testimony through a transcript from
Mr. Burkey’s first trial. The transcript contains a cross-examination of Ms. Lascelles by
Mr. Burkey’s prior attorney. During the cross-examination, no mention was made of Ms.
Lascelles’s plea agreement with the State.
After Mr. Burkey was convicted at his second trial, his attorney filed a motion for
a new trial. Counsel claimed he had not been aware of Ms. Lascelles’s plea agreement
until after trial. The attorney representing Mr. Burkey at his second trial was not the same
individual who represented Mr. Burkey at his first trial.
The trial court held a hearing on Mr. Burkey’s new trial motion. After reviewing
the parties’ evidentiary submissions, the trial court found the State had disclosed Ms.
Lascelles’s plea agreement to Mr. Burkey’s initial trial attorney. 4 VRP (Jan. 29, 2016)
at 667-68; Clerk’s Papers (CP) at 368-69. Accordingly, there had been no improper
withholding. 4 VRP (Jan. 29, 2016) at 668. The trial court also found that the attorney
who represented Mr. Burkey at his second trial could have easily discovered Ms.
Lascelles’s plea agreement. Id. Thus, Mr. Burkey had not met the legal standard for
relief from his conviction.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Based on the trial court’s findings, which we review with deference, State v.
Davila, 184 Wn.2d 55, 74, 357 P.3d 636 (2015), it is apparent the State never withheld
exculpatory impeachment evidence. By disclosing Ms. Lascelles’s plea agreement to
Mr. Burkey’s initial trial counsel (the only attorney to ever cross-examine Ms. Lascelles),
the State disclosed sufficient information to enable Mr. Burkey to take advantage of any
exculpatory value from the plea agreement. Mullen, 171 Wn.2d at 896. Mr. Burkey was
therefore not deprived of his right to a fair trial. Reversal is unwarranted.
Sentencing issues and scrivener’s error
The parties agree on two sentencing errors as well as a scrivener’s error in Mr.
Burkey’s judgment and sentence. Because there is no dispute that these errors require
remand, our analysis is brief.
First, Mr. Burkey argues the trial court erroneously imposed sentences for robbery
(count IV), kidnapping (count II), and murder (count I) after finding the three crimes
merged. We accept the State’s concession that the multiple sentences imposed by the
court was error. See State v. Williams, 131 Wn. App. 488, 498, 128 P.3d 98 (2006).
Given the trial court’s merger finding, the convictions for robbery and kidnapping should
have been set aside. No separate weapons enhancements were applicable. Nor were
terms of community custody. Remand for resentencing is appropriate.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Second, Mr. Burkey argues the community custody term imposed for his first
degree assault conviction violates the prohibition on ex post facto laws. At the time of
Mr. Burkey’s 2005 offense conduct, the Sentencing Reform Act of 1981, chapter 9.94A
RCW, only contemplated a variable community custody term of 24-48 months. Former
RCW 9.94A.715 (2001), repealed by LAWS OF 2009, ch. 28, § 42(2); former WAC 437-
20-010 (2000). Since 2009, RCW 9.94A.701(1)(b) has mandated a term of 36 months for
a serious violent offense. LAWS OF 2009, ch. 375, § 5. Because application of the
mandatory 36-month term to Mr. Burkey violates the prohibition on ex post facto laws,
resentencing is appropriate. State v. Coombes, 191 Wn. App. 241, 250, 361 P.3d 270(2015). At resentencing, Mr. Burkey should be subject to the laws in effect in 2005.
Finally, the jury convicted Mr. Burkey of first degree felony murder, which is a
violation of RCW 9A.32.030(1)(c). Yet, the judgment and sentence indicates Mr. Burkey
was convicted of premeditated murder under RCW 9A.32.030(1)(a). The parties agree
this was error. It shall be corrected at resentencing. See State v. Munoz-Rivera, 190 Wn.
App. 870, 895, 361 P.3d 182 (2015).
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Burkey raises five issues in his statement of additional grounds for review
(SAG). Each is addressed in turn.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Ineffective assistance of counsel
Mr. Burkey argues he received ineffective assistance of counsel because his
attorney only had 17 days to prepare after he was told the State would be allowed to use
transcripts of testimony from the first trial. A claim of ineffective assistance requires
proof of deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26,
743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Neither requirement has been met.
Mr. Burkey has not demonstrated deficient performance. There is no set period of
time for trial preparation that is indicative of deficient performance. United States v.
Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). The transcripts at issue
here were short. No evidence indicates defense counsel had insufficient time for
preparation. To the contrary, Mr. Burkey’s trial counsel represented Mr. Burkey during
his initial appeal. In that appeal, Mr. Burkey made a sufficiency challenge to the State’s
evidence. Given this circumstance, it is apparent that counsel had ample advance
opportunity to review Mr. Burkey’s trial transcripts.
Mr. Burkey also fails to show prejudice. The record does not contain any
information suggesting the outcome of Mr. Burkey’s case would have been different had
counsel been given more time to prepare.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Lack of cautionary instruction on accomplice testimony
Mr. Burkey next argues the trial court erroneously failed to supply the jury with a
cautionary instruction regarding Ms. Lascelles’s purported accomplice testimony. He
also argues defense counsel was deficient for not requesting such an instruction.
Mr. Burkey’s substantive claim fails because a cautionary instruction is only
required when an accomplice’s testimony is uncorroborated by other evidence. State v.
Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled in part on other grounds by
State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991). Even assuming Ms. Lascelles
should be considered an accomplice, her testimony was amply corroborated by physical
evidence and the testimony of other witnesses, including Mr. Burkey himself. Given
these circumstances, the failure to issue a cautionary instruction was not reversible error.
Harris, 102 Wn.2d at 155 (“If the accomplice testimony was substantially corroborated
by testimonial, documentary or circumstantial evidence, the trial court did not commit
reversible error by failing to give the instruction.”).
Mr. Burkey also cannot show defense counsel performed deficiently by failing to
seek a cautionary instruction. Ms. Lascelles’s testimony was largely favorable to Mr.
Burkey. The defense decision not to emphasize Ms. Lascelles’s credibility problems was
reasonably strategic.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Use of transcripts from first trial without determining reliability
Relying on Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S. Ct. 2531, 65 L. Ed. 2d 597(1980), Mr. Burkey argues the trial court violated his confrontation clause 2 rights by not
determining the reliability of Ms. Lascelles’s transcript testimony prior to admission.
Mr. Burkey misapprehends the nature of the constitutional right to confrontation. The
standard for a defendant’s confrontation rights is no longer set by Ohio v. Roberts. The
current law on confrontation rights is outlined in Crawford v. Washington, 541 U.S. 36,
68-69, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Under Crawford, a testimonial
statement, such as testimony from a prior trial, may be admitted so long as the State can
show “unavailability and a prior opportunity for cross-examination.” Id. at 68. This
standard has been met. There was no confrontation violation.
State’s use of allegedly perjured testimony
Mr. Burkey’s next argument is that the State violated his right to a fair trial by
knowingly using perjured testimony from Ms. Lascelles. See State v. Larson, 160 Wn.
App. 577, 594-95, 249 P.3d 669 (2011). The argument has already been addressed by the
trial court and the court determined, based on substantial evidence, that there had been no
perjury. Given this circumstance, the State was entitled to rely on Ms. Lascelles’s
2
U.S. CONST., amend. VI; WASH. CONST., art. I, § 22.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
testimony.
Impeachment evidence regarding Ms. Lascelles
Mr. Burkey claims his attorney should have attempted to impeach Ms. Lascelles’s
credibility with evidence of a prior conviction, as contemplated by ER 609. Nothing in
the record shows Ms. Lascelles had been convicted of a previous crime that would be
relevant under ER 609(a). Accordingly, Mr. Burkey has not shown deficient
performance. In addition, Ms. Lascelles’s testimony was beneficial to the defense’s
theory of the case. As a result, Mr. Burkey has failed to establish prejudice.
Cumulative or harmless error
Mr. Burkey last argues he deserves a new trial because of cumulative error.
State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because we find no error,
the cumulative error doctrine does not apply.
PERSONAL RESTRAINT PETITION
Ineffective assistance of counsel based on conflict of interest
Mr. Burkey contends his trial counsel labored under an unconstitutional conflict of
interest because counsel also represented a potential witness by the name of Terrance
Kinard. We reject this claim. Mr. Burkey has not met his burden of proving his counsel
provided ineffective assistance due to a conflict.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
To show a constitutional violation of the right to conflict-free counsel, “a
defendant must show that (a) defense counsel ‘actively represented conflicting interests’
and (b) the ‘actual conflict of interest adversely affected’ his performance.” In re Pers.
Restraint of Gomez, 180 Wn.2d 337, 348-49, 325 P.3d 142 (2014) (quoting Cuyler v.
Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)). “An actual
conflict of interest exists when a defense attorney owes duties to a party whose interests
are adverse to those of the defendant.” State v. White, 80 Wn. App. 406, 411-12,
907 P.2d 310 (1995); accord State v. Byrd, 30 Wn. App. 794, 798, 638 P.2d 601 (1981);
see also RPC 1.7. A “[p]ossible or theoretical” conflict of interest is “‘insufficient to
impugn a criminal conviction.’” Gomez, 180 Wn.2d at 349 (quoting Cuyler, 446 U.S.
at 350).
Mr. Burkey has not pointed to any evidence indicating his interests were adverse to
Mr. Kinard’s. Mr. Kinard was never implicated in the murder of Mr. Tiwater. Nor was
he a relevant witness. 3 The charges that gave rise to defense counsel’s representation of
3
Mr. Burkey claims Mr. Kinard could have testified about Mr. Burkey’s lack of ill
will toward Mr. Tiwater. This testimony was of questionable relevance, particularly
given the fact that Mr. Kinard was not present at the time of the offense. To the extent
Mr. Kinard’s testimony was relevant, it would have been readily impeachable based on
Mr. Kinard’s criminal history. Defense counsel provided stronger evidence of Mr.
Burkey’s lack of ill will toward Mr. Tiwater through the testimony of attorney Patrick
Stiley.
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Nos. 34093-7-III; 34956-0-III
State v. Burkey
Mr. Kinard had nothing to do with Mr. Burkey. Mr. Burkey’s claim that defense counsel
may have nevertheless been facing a conflict is insufficient to overturn a conviction.
State v. Dhaliwal, 150 Wn.2d 559, 573, 79 P.3d 432 (2003).
State’s use of Mr. Burkey’s testimony from first trial
Mr. Burkey makes several claims regarding the State’s use of his prior trial
testimony during its case in chief. Mr. Burkey does not challenge the admissibility of his
prior testimony. Instead, he makes less direct claims of error. None are persuasive.
First, Mr. Burkey complains defense counsel was ineffective because counsel did
not want Mr. Burkey to take the stand even after the court ruled Mr. Burkey’s prior
testimony could be used in the State’s case in chief. We reject this claim. Had Mr.
Burkey taken the stand, he could have been cross-examined based on any slight
inconsistency with his prior testimony. Defense counsel’s recommendation that Mr.
Burkey exercise his right to remain silent on remand was reasonably strategic.
Mr. Burkey also argues he was prejudiced because a police detective read his
former testimony to the jury. But the jury was instructed to consider the testimony as if it
came from Mr. Burkey, not the detective. Jurors are presumed to follow the court’s
instructions absent evidence to the contrary. State v. Kirkman, 159 Wn.2d 918, 928, 155
P.3d 125 (2007). There is no such evidence here.
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State v. Burkey
Lastly, Mr. Burkey suggests the use of his prior testimony forced him to choose
between remaining silent or testifying in order to stop a witness for the State from reading
his testimony. Mr. Burkey’s reasoning is unfounded. Mr. Burkey’s prior testimony was
admissible as a statement by a party opponent. ER 801(d)(2). As such, its admissibility
did not turn on Mr. Burkey’s availability as a witness or decision to testify. Compare
ER 801(d)(2) (statement of party opponent not hearsay) with ER 804(b)(1) (prior witness
testimony admissible only if witness unavailable).
Alleged perjured testimony by Ms. Lascelles
This argument fails for the same reason noted in the analysis of the issue in
Mr. Burkey’s SAG. There was no perjured testimony.
Incorrect accomplice liability jury instruction
Mr. Burkey argues the language of the jury instruction on accomplice liability
misstated the law for two reasons. First, he argues the jury was instructed it could convict
him as an accomplice if he acted with knowledge he was promoting any crime. He is
wrong. Mr. Burkey cites the following sentence from the accomplice liability instruction
as error: “A person is an accomplice in the commission of a crime if, with knowledge that
it will promote or facilitate the commission of the specific crime charged . . . .” CP at 236
(emphasis added). Mr. Burkey complains about the emphasized language. But the
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State v. Burkey
instruction clearly goes on to say Mr. Burkey is only an accomplice if he had knowledge
his actions would promote the specific crime charged. This accords with the Washington
Supreme Court’s requirements for the accomplice liability instruction. See State v.
Cronin, 142 Wn.2d 568, 578-80, 14 P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471,
510-13, 14 P.3d 713 (2000).
Mr. Burkey also argues the jury instruction explained in a confusing manner what
it means to “aid” someone. Again, he is wrong. The instruction stated:
The word “aid” means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene
and ready to assist by his or her presence is aiding in the commission of the
crime. However, more than mere presence and knowledge of the criminal
activity of another must be shown to establish that a person present is an
accomplice.
A person who is an accomplice in the commission of a crime is
guilty of that crime whether present at the scene or not.
CP at 236.
This language clearly and unambiguously states what “aid” means for the purposes
of accomplice liability. It then goes on to further explain that someone who is present at
the scene and ready to assist has provided aid, but merely being present without more is
not enough. The instruction then clarifies that presence is not always required. The
instruction provides the general definition of “aid” and then some clarifying points. It is
neither confusing nor misleading.
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State v. Burkey
Alleged improper closing argument
A defendant bears the burden of showing that the prosecutor’s comments are both
improper and prejudicial. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014).
Alleged improper arguments by the prosecutor must be reviewed in the context of the
total argument, the issues in the case, the evidence addressed in the argument, and the
instructions given. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
Mr. Burkey has provided quotations from different parts of the prosecutor’s
closing argument and argues these statements were misconduct because they misstated
the evidence, were not supported by the evidence, and were otherwise improper. For
example, Mr. Burkey takes issue with the prosecutor’s argument: “But that’s the
individual that Mr. Burkey was waiting for to back him up when they were finally going
to administer punishment to Mr. Tiwater.” 3 VRP (Dec. 14, 2015) at 581. Mr. Burkey
calls this a fabrication because the words “back him up” or “administer punishment” were
not used in the trial testimony. He is correct that those exact words were not used. But
Mr. Fowler testified Mr. Burkey called Mr. Tesch over to help figure out if Mr. Tiwater
was a snitch. A prosecutor has wide latitude in closing argument to draw reasonable
inferences from the evidence and express such inferences to the jury. State v. Hoffman,
116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). The prosecutor’s argument about backing up
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State v. Burkey
or administering punishment was a reasonable inference given Mr. Fowler’s testimony
and other testimony supporting the State’s theory in general. Mr. Burkey may disagree
with the State’s inference, but that does not make the inference improper or the
prosecutor’s actions misconduct. Mr. Burkey presents 29 parts of the prosecutor’s
closing argument alleging misconduct. All of his arguments have the same flaw as the
one above, ignoring the prosecutor’s latitude to argue inferences from the evidence.
There was no misconduct here. 4
MOTION FOR PRODUCTION OF TRANSCRIPTS
Mr. Burkey argues the State should be compelled to produce the unredacted
transcripts of his prior testimony to “assure that the record on appeal is sufficiently
complete.” Motion for Production of Transcripts, In re Pers. Restraint of Burkey, No.
34956-0-III, at 2 (Wash. Ct. App. Jan. 3, 2017). But he does not explain how these
transcripts will aid this court’s review. The existing transcripts of the prior testimony
contain no gaps or omissions. Further, the record indicates the redacted portions of the
transcripts relate to objections that were raised during the first trial. Defense counsel
wanted to make sure any of those objections that needed to be preserved could be so, but
4
Mr. Burkey also argues defense counsel was ineffective for failing to object to
the alleged prosecutorial misconduct. Since there was no misconduct, there was likewise
no ineffective assistance for failing to object. State v. Larios-Lopez, 156 Wn. App. 257,
262, 233 P.3d 899 (2010).
21
Nos. 34093-7-111; 34956-0-111
State v. Burkey
neither of the parties wanted those objections read to the jury. The reason for the
redactions is adequately explained in the record, and Mr. Burkey has provided no other
justification for compelling production of unredacted transcripts.
APPELLATE COSTS
Mr. Burkey has complied with this court's general order by submitting a continued
indigency report, and has requested a waiver of appellate costs in his opening brief. We
grant the request.
CONCLUSION
We affirm Mr. Burkey's convictions, dismiss his personal restraint petition, and
deny the motion to compel production of transcripts, but remand for resentencing and
correction of the scrivener's error.
A majority of the panel has determined 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.
Pennell, J.
WE CONCUR:
22