State of Washington v. Michelle Lee Blair ( 2013 )

FILED
DEC 3, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
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STATE OF WASHINGTON, )
) No. 30961-4-111
Respondent, )
)
v. )
)
NUCHELLELEEBLAI~ ) UNPUBLISHED OPINION I
)
KORSMO, C.J. -
Appellant. )
Michelle Blair appeals her first degree robbery and first degree
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burglary convictions, and resulting persistent offender sentence, on two grounds. We i
conclude her arguments lack merit and affinn.
FACTS I
Ms. Blair and two others were charged with the noted offenses following an
alleged home invasion attack on an acquaintance. The prosecution ultimately alleged that I j
Ms. Blair and co-defendant Andrew Williamson were armed with deadly weapons-a I f
knife and a baseball bat--during the incident. t
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After jury selection and pretrial motions, Ms. Blair asked to have new counsel
appointed. She claimed that her counsel had lied to her about a plea agreement. Counsel I
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explained that his client had given a "free talk" about a homicide case, but her !
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No.30961-4-II1
State v. Blair
information had not been usable and the prosecutor would not offer her a plea deal. He
agreed with his client that they did not communicate well and joined her request because
he could understand how she had lost faith in him. He was, however, ready for trial. The
trial court denied the motion.
Trial testimony established that Mr. Williamson and Ms. Blair robbed the victim
in his house. Ms. Blair used a bat to prod the victim in the head and force him across a
room. Mr. Williamson threatened to kill him with a large knife. The victim turned over
his money and bank cards. When Ms. Blair was arrested, she was in possession of one of
those stolen bank cards.
Ms. Blair defended on the theory that she had gone to the victim's house after her
car broke down nearby. Mr. Williamson let her in to the house. Later an argument
developed when Mr. Williamson demanded money that the victim allegedly owed Ms.
Blair. Mr. Williamson used the knife to obtain some money from the victim.
The jury nonetheless convicted Ms. Blair as charged on both counts. By special
verdict it found that she was not armed with a deadly weapon, but that her accomplice
had been so armed during both offenses. The court imposed a mandatory sentence of life
in prison after determining Ms. Blair was a persistent offender. She then timely appealed
to this court.
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ANALYSIS
This appeal presents claims that the trial court erred in denying the request to
remove counsel and in failing to give a unanimity instruction regarding which deadly
weapon was used to commit the crimes. Each claim will be addressed in tum. I
Request/or New Counsel
Ms. Blair initially argues that the trial court erred in denying her request for new
counsel. She contends that her relationship with counsel was broken and that her timely
request should have been granted. The trial court did not err.
"Whenever a criminal cause has been set for trial, no lawyer shall be allowed to
withdraw from said cause, except upon written consent of the court, for good and
sufficient reason shown." erR 3.1(e). Ifa criminal defendant is dissatisfied with
appointed counsel, the defendant must show good cause to warrant substitution of
counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown
in communication between the attorney and the defendant. State v. Stenson, 132 Wn.2d
688,734,940 P.2d 1239 (1997) (Stenson I). This court reviews a denial ofa request for
new counsel for abuse of discretion. Id. at 733. Typically, discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker,
I Ms. Blair also notes that the judgment and sentence erroneously indicates that
she was convicted by guilty plea rather than by a jury verdict. The trial court is directed
to correct that scrivener's error. We do not otherwise address the argument.
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No. 30961-4-111
State v. Blair
79 Wn.2d 12,26,482 P.2d 775 (1971). A reviewing court considers the following
factors in deciding whether the trial court abused its discretion in denying a request to
remove counsel: "(1) the extent of the conflict, (2) the adequacy of the inquiry, and (3)
the timeliness of the motion." In re Pers. Restraint o/Stenson, 142 Wn.2d 710,724, 16
P.3d 1 (2001) (Stenson II).
The timeliness of a request to remove counsel is an important factor. A trial court
does not abuse its discretion when it denies a motion to have new counsel assigned after
jury selection has occurred. State v. Shelton, 71 Wash. 2d 838, 839-40, 431 P.2d 201
(1967). In Shelton, the defendant argued that the court erred by denying his request after
jury selection to have his counsel resign because he could not put his confidence in the
defense counsel. [d. Because the defendant "gave no reason for his lack of confidence in
his counsel; pointed to no area of disagreement between them; and failed to point out
wherein counsel had in any way failed or refused to adequately advise or aid him" there
was no abuse of discretion. [d. at 839. The court also noted that counsel had prepared
for trial, and there was "no suggestion that counsel did not discharge his duty ... in an
efficient manner." [d. at 840.
The Washington Supreme Court has explicitly recognized that requests to have
new counsel assigned on the eve of trial are untimely. In Stenson II, it stated that
" 'where the request for change of counsel comes during the trial, or on the eve of trial,
the Court may, in the exercise of its sound discretion, refuse to delay the trial to obtain
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No.30961-4-III
State v. Blair
new counsel and therefore may reject the request.'" Stenson II, 142 Wash. 2d at 732
(quoting United States v. Williams, 594 F.2d 1258, 1260-61 (9th Cir. 1979)).
The trial court did not abuse its discretion in denying Ms. Blair's request to have
new counsel assigned on the day of trial because it was not timely. We also agree that
Ms. Blair did not make a showing that would have justified removal of counsel. Similar
to Shelton, Ms. Blair's counsel had stated that he was prepared for trial and defended the
case with his typical style. There was no actual breakdown in communications between
client and counsel. Ms. Blair was understandably disappointed that her "free talk" had
not resulted in a favorable plea offer from the prosecutor and may have thought counsel
expected a better outcome, but the evidence showed that the two were communicating
about the case. There simply was not the utter lack of interaction that is required to
justify replacing counsel.
For both reasons, the trial court did not err in rejecting the motion.
Unanimity Instruction
Ms. Blair also argues that the court erred in failing to require the jury to
unanimously identify which weapon was used during the incident. However, the jury
was not required to unanimously agree on which weapon the accomplice was armed with
at the time of the crime. Also, any error would have been harmless in light of the
verdicts.
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Ms. Blair argues that the multiple weapons alleged to have been used during the
incident were alternative means of committing the crime. She cites no specific authority
for that proposition, and we are not aware of any such authority. Alternative means of
committing a crime exist when the legislature, in defining a crime, creates alternative
ways the offense can be committed. E.g., State v. Arndt, 87 Wn.2d 374,378-86,553 P.2d
1328 (1976). The legislature, however, has not defined the deadly weapon enhancement
in terms of multiple ways of commission. There are many potential deadly weapons, but
only one method of committing this enhancement-being "armed" with a deadly weapon.
There was no need for a unanimity instruction on this topic.
Although that is sufficient to resolve the claim, we write further to clarify Ms.
Blair's basic argument. She accurately quotes from a Division Two case that there is a
"right to express jury unanimity on the means by which the defendant committed the
crime when alternative means are alleged." State v. Emery, 161 Wash. App. 172, 198,253
P.3d 413 (2011), a/I'd, 174 Wash. 2d 741, 278 P.3d 653 (2012). Emery, however, is
incorrect on this point. Emery cites to State v. Ortega-Martinez, 124 Wash. 2d 702, 707,
881 P.2d 231 (1994), which in fact discusses this issue in the context of evidentiary
sufficiency. When there is insufficient evidence to support one of the means of
committing an offense, Ortega-Martinez recognized that there must be a method of
ensuring that the jury unanimously based its verdicts on means that were supported by the
evidence. Id. at 707-08.
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To the extent that Emery can be read in support of the proposition that unanimity
must be assured in every alternative means case, it is incorrect. Although all jurors must
agree that the crime has been committed, they are not required to be in agreement on the
means by which the crime occurred. See State v. Whitney, 108 Wash. 2d 506, 511-12, 739
P.2d 1150 (1987); State v. Franco, 96 Wash. 2d 816, 822-24, 639 P.2d 1320 (1982); Arndt,
87 Wash. 2d at 376-78. Instead, the concern for unanimity arises only when one of the
means on which the jury was instructed is insufficient. At that point the conviction must
be reversed unless there is a special verdict or other guarantee that all members of the
jury returned the verdict on a basis supported by the evidence. Franco, 96 Wash. 2d at 824.
As this is not an alternative means case, our discussion is at an end. However,
even if Ms. Blair had established error in this regard, it would have been hannless
because the convictions on the underlying offenses created her persistent offender status.
The deadly weapon enhancements, even if erroneous, did not affect her sentence.
For the noted reason, the convictions and sentence are affinned. The trial court is
directed to correct the scrivener's error in the judgment form.
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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.
• Korsmo, C.J.
WE CONCUR:
Brown,'.
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