State Of Washington v. Robert L. Davis, Arnold M. Cruz, & Robert Pry ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ) Cora
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) DIVISION ONE ??7,4
Respondent, ) rrl
) No. 77930-3-1
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) UNPUBLISHED OPINION xis ni
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ROBERT LEE PRY, ROBERT ) Zr-
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LAVALLE DAVIS, and ARNOLD ) CJ1 --I co
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MAFNAS CRUZ, CO 2C
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) FILED: November 13,2018
Appellants. )
)
DWYER,J. —This opinion resolves the consolidated appeals of Robert Lee
Pry, Robert Lavalle Davis, and Arnold Mafnas Cruz, arising out of their joint trial
in connection with the 2015 home invasion robbery and murder of Robert Archie
Hood and resultant attempts to dispose of Hood's body.
Pry was charged with robbery, murder, and kidnapping, all in the first
degree, with all crimes aggravated by the victim's particular vulnerability, the
deliberate cruelty inflicted on the victim, and Pry's egregious lack of remorse.
Pry was also charged with identity theft and possession of stolen property, both
in the second degree, and witness tampering. All of these charges, save the
witness tampering charge, were based on his central role in the commission of
the home invasion and murder; the witness tampering charge was based on his
conduct while in custody. Pry was found guilty as charged.
No. 77930-3-1/2
On appeal, through counsel, Pry assigns error to the trial court's denial of
his motion for substitution of counsel, to the trial court's handling of an allegation
of juror misconduct, to the prosecutor's statements in closing argument that, Pry
claims, implied that he had tailored his testimony, and to that which Pry asserts
were improper appeals to the jury's passion in the State's opening statement and
closing argument. Pro se, Pry sets forth additional assignments of error in a
statement of additional grounds for review. None of these claims of error warrant
appellate relief.
Davis was charged with murder and robbery, both in the first degree, and
both aggravated by the victim's particular vulnerability and Davis's multiple
current offenses. Davis was acquitted on these charges. He was also charged
with identity theft in the second degree, aggravated by his multiple current
offenses, based on his asserted role in facilitating the home invasion and in later
efforts to access Hood's bank accounts. He was found guilty on this charge. On'
appeal, through counsel, Davis claims that he was denied a fair trial due to:(1)
prosecutorial misconduct,(2) ineffective assistance of his counsel in addressing
this claimed misconduct; and (3) ineffective assistance of counsel in cross-
examining a witness. Moreover, Davis avers, if none of these claims of error
alone warrants reversal, their cumulative effect must. Pro se, Davis sets forth
several assignments of error in a statement of additional grounds for review.
None of the claims of error made on Davis's behalf entitle him to appellate relief.
Cruz was charged with rendering criminal assistance in the first degree, a
class B felony, aggravated by his egregious lack of remorse and by the crime's
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No. 77930-3-1/3
impact on others. He was also charged with concealment of a deceased body, a
gross misdemeanor. Cruz was found guilty as charged, although the jury
declined to find egregious lack of remorse as an aggravating factor. On appeal,
Cruz avers that the information charging him with the felony was constitutionally
deficient and that the exceptional sentence imposed on him was not authorized
by statute. Pro se, Cruz submits a statement of additional grounds for review.
We hold that the information charging Cruz with rendering criminal assistance in
the first degree was constitutionally deficient. Consequently, we reverse this
conviction with direction that the charge be dismissed by the trial court without
prejudice. His misdemeanor conviction is undisturbed by this resolution. We
remand Cruz's case to the trial court for resentencing.
For clarity, we will separately address each defendant's assignments of
error and the facts pertinent thereto.
I
Pry Appeal
A
On December 17,2015, Robert Archie Hood was robbed, severely
beaten, and killed in his home near Bremerton. Pry's girlfriend, Ocean Wilson,
and Pry's sister, Shawna Dudley-Pry, were riding in the car transporting Pry and
another man, Joshua Rodgers-Jones, to rob Hood's house.
Wilson testified that, later, Pry told her:
Mhat...they went up to the man's house,that he knocked on the
door and told the man that he was God. And that they had tied the
old man up and hit him and asked him if he had raped kids in the
past. And I guess the old man, Mr. Hood, had confirmed that that
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No. 77930-3-1/4
was a long time ago. [Pry]told me that they left the man in the
house tied up, and he was snoring on the floor.
That night, Wilson, Pry and Dudley-Pry stayed in a motel room where they
attempted to access Hood's bank accounts via telephone calls and the Internet.
Pry and the others left the motel and returned to Bremerton the next day.
On December 21, Hood's friend Candyce Gratton went to his house,
noticed that he was gone and that the house was in disarray, and alerted the
police. On December 22, Pry was taken into custody. A subsequent police
search of the duplex in which Pry had been living revealed many of Hood's
personal effects and various documents containing his financial information.
Hood's body was recovered on December 30.
The State brought charges against Pry, Davis, Cruz, and Rodgers-Jones
and joined their cases for trial. The trial court later severed Rodgers-Jones's
case for trial. The consolidated trial consumed 44 days.
On the first day of jury selection, a day on which 200 jurors had been
summoned to court, Pry requested a new appointed attorney. His stated basis
was that he did not "feel ... adequately represented" and that his attorney was
trying to get him "to take a [plea] deal [rather] than preparing for my defense."
Pry's attorney then stated that he had no issue with continuing to represent Pry.
The trial court denied the request. Pry did not make any request of this nature at
any other time during the trial.
In opening statement, the prosecutor opined that Hood "probably never
envisioned" the events leading to his death, a remark to which no defense
counsel objected.
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No. 77930-3-1/5
Twice during trial, attorneys for Pry and for Davis brought to the court's
attention a juror who appeared to them to have been asleep during trial. When
Davis's attorney first called the judge's attention to the juror in question, the judge
stated that the juror did not appear to him to have been asleep during the
proceedings. Later, attorneys for both Pry and Davis again raised the issue. The
trial court, after hearing observations and argument from counsel and reciting its
own observations of the juror's behavior, made a factual finding that the juror had
not been sleeping. Pry and Davis subsequently declined the judge's offer of
further inquiry. Neither raised the issue again.
During the State's cross-examination of Pry, in response to a question
about his memory of specific dates in December 2015, Pry stated,"[M]y life is on
the line and I've had plenty of time to think about everything that's happened
thoroughly." In closing argument, the prosecutor referenced this remark in order
to cast doubt on Pry's credibility as a witness and to imply that Pry's having "had
plenty of time to think about everything that's happened" meant that he had used
that time to conform or tailor his testimony to the evidence produced at trial.
The prosecutor also noted, in closing argument, that the evidence did not
show the exact course of events that took place when Pry and Rodgers-Jones
were alone with Hood, but that the evidence established more than sufficient
facts about Hood's death to prove the State's case. The prosecutor also noted
that the day on which the closing argument was delivered would have been
Hood's birthday, and asked the jury to "celebrate" Hood by carefully considering
the evidence. An objection was interposed to the use of the word "celebrate."
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No. 77930-3-1/6
This objection was sustained and no defendant requested any further relief. No
objections were interposed to the other remarks.
The jury found Pry guilty of murder, robbery, and kidnapping, all in the first
degree. It further found that all of the offenses were aggravated by the victim's
particular vulnerability, the deliberate cruelty inflicted on the victim, and Pry's lack
of remorse. Pry's convictions for murder and robbery in the first degree were
subsequently merged into a single felony murder conviction. The jury also found
Pry guilty of identity theft In the second degree, possession of stolen property in
the second degree, and witness tampering. The court imposed an exceptional
sentence of 958 months of imprisonment.
Pry first contends that the trial court's denial of his request for substitution
of appointed counsel, made on the first day of jury selection, constituted an
abuse of its discretion. We disagree.
While the Sixth Amendment to the United States Constitution guarantees
that, in "all criminal prosecutions, the accused shall ... have the assistance of
counsel for his defense," it does not give an indigent defendant an absolute right
to choose any particular advocate. U.S. CONST. amend VI; State v. Stenson, 132
Wn.2d 668, 733, 940 P.2d 1239(1997).1 Whether an indigent defendant's
dissatisfaction with his court-appointed counsel justifies the appointment of new
The analysis Is the same under the state constitution. State v. DeWeese 117 Wn.2d
369, 375-76, 816 P.2d 1(1991).
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No. 77930-3-1/7
counsel is a matter reserved to the trial court's discretion.2 Stenson, 132 Wn.2d
at 733. The timeliness of a request for substitution of counsel affects the trial
court's exercise of discretion to grant or deny that request. State v. Garcia 92
Wn.2d 647,655-56,600 P.2d 1010(1979).
A criminal defendant who is dissatisfied with appointed
counsel 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. Smith v. Lockhart, 923 F.2d 1314, 1320(8th Cir.
1991). Attorney-client conflicts justify the grant of a substitution
motion only when counsel and defendant are so at odds as to
prevent presentation of an adequate defense. E.g., State v. Lopez,
79 Wn. App. 755, 766,904 P.2d 1179(1995)(citing United States
v. Morrison, 946 F.2d 484,498 (7th Cir. 1991)). The general loss of
confidence or trust alone is not sufficient to substitute new counsel.
Johnston v. Florida, 497 So.2d 863(Fla. 1986).
Factors to be considered in a decision to grant or deny a
motion to substitute counsel are(1)the reasons given for the
dissatisfaction,(2)the court's own evaluation of counsel, and (3)
the effect of any substitution upon the scheduled proceedings.
State v. Stark, 48 Wn. App. 245, 253,738 P.2d 684(1987).
Stenson, 132 Wn.2d at 734.
The analogous situation of a request to proceed pro se provides the
rule applied in this setting, as regards the timeliness of the request:
(a) if made well before the trial or hearing and unaccompanied by a
motion for continuance, the right of self-representation exists as a
matter of law;(b) if made as the trial or hearing is about to
commence, or shortly before, the existence of the right depends on
the facts of the particular case with a measure of discretion
reposing in the trial court in the matter; and (c) if made during the
trial or hearing, the right to proceed pro se rests largely in the
informed discretion of the trial court.
2 A trial court abuses its discretion when its decision adopts a view no reasonable person
would take or Is based on untenable grounds or untenable reasons. State v. Sisouvanh, 175
Wn.2d 607,623, 290 P.3d 942(2012).
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No. 77930-3-1/8
State v. Fritz 21 Wn. App. 354, 361, 585 P.2d 173(1978).
Our courts have been alert to the risk of defendants using requests for
substitute counsel to hinder or delay proceedings. State v. DeWeese, 117
Wn.2d 369, 379, 816 P.2d 1 (1991). "In the absence of substantial reasons a
late request should generally be denied, especially if the granting of such a
request may result in delay of the trial." Garcia, 92 Wn.2d at 656 (analyzing a
late request to proceed pro se). Indeed, the basic rule is plainly stated:"A
defendant may not manipulate the right to counsel for the purpose of delaying
and disrupting trial." DeWeese, 117 Wn.2d at 379.
"[A] trial court conducts adequate inquiry by allowing the defendant and
counsel to express their concerns fully"; this process need not be a formal
inquiry. State v. Schaller, 143 Wn. App. 258, 271, 177 P.3d 1139(2007). The
defendant must state the reasons for his dissatisfaction with counsel and the
record on appeal should show that the trial court had before it the information
necessary to assess the merits of the defendant's request. State v. Varga, 151
Wn.2d 179, 200-01,86 P.3d 139(2004).
This trial involved three defendants. Sixty-eight witnesses were called to
testify. Two hundred jurors were summoned on the first day of voir dire.
Scheduling was already a major concern for witnesses,jurors, and counsel. It
was in this context that Pry made the request for substitution of counsel without
providing any substantial reasons therefor. Granting Pry's request would have
forced either a continuance of the proceedings or a severance of Pry's case from
the other defendants' cases.
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No. 77930-3-1/9
And a severance was no small matter. The trial judge had already ruled
on severance requests from the various defendants. It had granted Rodgers-
Jones's request and denied the others. The trial judge had good reason to take
care that Pry's request for new counsel did not become a disguised attempt to
obtain the severance that the court had previously denied him.
Further, Pry's vague statements to the trial court contained no contention
of a conflict of interest, an irreconcilable conflict, or a complete breakdown in
communication between Pry and his counsel. At no other point in the months-
long period before trial, nor during the remaining weeks of trial, did Pry state that
there was any issue between himself and his attorney. Indeed, Pry's counsel
had made 16 separate appearances on Pry's behalf before the trial judge prior to
Pry making his request. Based on the trial court's observations of counsel's
advocacy for Pry during each appearance before the trial court, the court acted
within its discretion in accepting his assertion that he had no concerns about
moving forward as Pry's attorney.
Pry claims that the trial court did not make a sufficient inquiry into his
request. In fact, the judge asked Pry why he was dissatisfied and asked his
counsel if he had any concerns. As noted above, the record fails to show any
inadequacy on the part of Pry's counsel and Pry described only a general
dissatisfaction with his representation. The inquiry was sufficient to fully inform
the judge, who was plainly aware of a continuance's impact"upon the scheduled
proceedings." Stenson, 132 Wn.2d at 734. The trial court did not abuse its
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No. 77930-3-1/10
discretion in denying Pry's late request for new appointed counsel. Fritz, 21 Wn.
App. at 361. There was no error.
C
Pry next avers that a juror may have been sleeping during the trial, and
that the trial court abused its discretion by not properly investigating this juror's
alleged misconduct. To the contrary, the record does not show that the juror was
sleeping, and no defendant accepted the trial court's offer for further inquiry when
the issue was addressed at trial. Thus, the trial court did not abuse its discretion.
There was no error.
ROW 2.36.110 and CrR 6.5 impose on the trial court a continuous
obligation to investigate allegations of juror unfitness and to excuse jurors who
are found to be unfit. State v. Elmore, 155 Wn.2d 758, 773, 123 P.3d 72(2005).
The party alleging juror misconduct bears the burden of showing that such
misconduct occurred. State v. Revnoldson, 168 Wn.App. 543, 547, 277 P.3d
700(2012). ROW 2.36.110 sets forth the circumstances under which a trial court
must dismiss a juror:
It shall be the duty of a judge to excuse from further jury
service any juror, who in the opinion of the judge, has manifested
unfitness as a juror by reason of bias, prejudice, indifference,
Inattention or any physical or mental defect or by reason of conduct
or practices incompatible with proper and efficient jury service.
For dismissal to be proper, the record must establish that a juror engaged
in "misconduct." State v. Jorden, 103 Wn.App. 221, 229, 11 P.3d 866(2000). In
resolving an allegation of juror misconduct, the trial court may act as both an
observer and a decision-maker, and its factual determinations are given
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No. 77930-3-1/11
deference on appeal. Elmore, 155 Wn.2d at 768-69; Jorden 103 Wn. App. at
229. The trial court's determination is reviewed for an abuse of discretion. There
is no mandatory format for a trial court to utilize when determining whether a juror
engaged in misconduct. The trial court has discretion to hear and resolve the
issue in any manner that avoids tainting the juror and that works best for the
proceedings. Jorden, 103 Wn. App. at 229.
It is not always necessary for a trial judge to engage in further inquiry in
response to an allegation of a sleeping juror because the judge may be
personally aware of whether the juror was(or was not) sleeping. In Jorden, the
judge observed the allegedly sleeping juror during trial and found that"she was
yawning, dozing, and sitting with her eyes closed." 103 Wn. App. at 226. The
juror was dismissed after the judge concluded that she was "'the most inattentive
juror[the judge had]seen in six and a half years of doing trials.'" Jorden, 103
Wn.App. at 226.
In this case, the trial court was confronted, twice, with a defense
contention that the challenged juror had been sleeping. The prosecutor
disagreed. In the first instance, the trial court resolved the matter with the judge's
affirmative statement that the juror had not been asleep during the proceedings.3
Over a month later, when the issue was brought to the trial court's attention
during closing arguments, the prosecutor stated:
3 The Issue was brought to the court's attention during a break in the proceedings when
Davis's lawyer stated that the juror looks like he might be dozing a little bit? The judge observed
that the juror was attentive but may have had a headache; the prosecutor corroborated this
account, stating that the juror had manifested frustration with the pace of the proceedings. The
judge did not accept that the Juror had been sleeping, remarking that stilt Is Just when we were on
the break there he had his eyes closed?
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No. 77930-3-1/12
I'm watching him keep notes. He doesn't look at the speaker in the
eye the entire time, but he's taking notes throughout [the defense]
argument[s].... He's not sleeping.
To this the trial court added its own observation:
I've watched him because he does have that appearance on
occasion. And so I paid special attention to him during those
occasions. I haven't noticed anything where he looks like he's
actually asleep.
Pry and Davis both declined the trial court's offer for further inquiry into the
matter. Cruz did not express any opinion on the matter. Hence, the record is
that the trial court investigated the allegation and made a finding of fact—that the
juror was not "actually asleep." Further, in declining the trial court's offer to make
further inquiry of the matter, the defendants waived any claim that the trial court's
process for resolving the Issue was Insufficient. The trial court did not abuse its
discretion in its disposition of the juror misconduct allegation. There was no
error.
0
Pry next avers that the prosecutor, in her closing argument, improperly
accused him of tailoring his testimony based only on his presence in the
courtroom. This mischaracterizes the prosecutors argument, in which the
prosecutor quoted Pry's own testimony to show that he had time to think about
what he would say when testifying. This assertion was not misconduct.
In support of his argument, Pry cites to Justice Ginsburg's dissent in
Portuondo v. Allard, 529 U.S.61, 1205. Ct. 1119, 146 L. Ed.47(2000). The
majority opinion in Portuondo held that a defendant's rights under the Sixth
Amendment to the United States Constitution were not violated when a
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No. 77930-3-1/13
prosecutor's closing argument called attention to the fact that the defendant had
possessed the opportunity to hear the other trial witnesses testify and to tailor his
testimony accordingly. Portuondo, 529 U.S. at 73. Justice Ginsburg was of the
view that this "transform[ed] a defendant's presence at trial from a Sixth
Amendment right Into an automatic burden on his credibility." Portuondo, 529
U.S. at 76(Ginsburg, J., dissenting).
Our Supreme Court adopted Justice Ginsburg's views when it analyzed a
similar accusation of tailoring under the pertinent provision of the state
constitution. State v. Martin, 171 Wn.2d 521, 533-36, 252 P.3d 872(2011)
(holding that, in this circumstance, Const. art. I, § 22 provides greater rights than
does the Sixth Amendment). Soon thereafter, in State v. Hilton, 164 Wn. App.
81,261 P.3d 683(2011), a panel of Division Three judges resolved an appeal in
a case in which the prosecutor had made a more direct tailoring argument—one
that specifically referenced the defendant's presence in court. The appellate
court nevertheless rejected the defendant's assertion of prosecutorial misconduct
because the prosecutor's argument was based on the defendant's testimony, not
on his mere presence. The court explained:
As noted previously, the Martin majority did not address the
issue, which had divided the court in Portuondo, of whether a
genetic tailoring argument would be proper. 171 Wn.2d at 536 n.8.
This case does not truly present that issue, either, since the
defendant was cross-examined about tailoring and the prosecutor's
argument directly tied the credibility of defendant's testimony to his
opportunity to prepare it. This was not a generic tailoring argument
because it had a basis in the cross-examination. There was
nothing improper about the argument because it was reasonably
drawn from the testimony admitted at trial. Hoffman, 116 Wn.2d at
95.
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No. 77930-3-I/14
It was proper to cross-examine the defendant about the
changes in his story and his opportunities to prepare those
changes. It was thus also proper to argue the issue to the jury.
116 Wn.2d at 95. The defendant's constitutional rights under article
I, section 22 were not violated.
Hilton 164 Wn. App. at 98 (citing State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577(1991)).
In this case, the prosecutors comments in closing argument did not
accuse Pry of tailoring his testimony based on his mere presence at trial. Rather,
the comments were based on inferences that the prosecutor drew from Pry's own
testimony, as was found acceptable in Hilton. In her closing argument, the
prosecutor discussed Pry's actions and testimony to demonstrate his instinct for
self-preservation, and then made the comment that is the subject of Pry's
misconduct argument:
So these are Robert Pry's words to you when he took the
stand. He told you that he would not divulge information freely. He
Is not a credible witness in this case.
These are his words. "My life is on the line, and I've had
plenty of time to think about what happened." He is able to craft his
statement to you In court.
Pry objected to this, citing to Martin. The trial court overruled his
objection, explaining that the comment was not an accusation of tailoring based
on Pry's mere presence in court but, instead, that "[the prosecutor] said ... he
had a lot of time to think about it and put a story together, essentially, which is
what he said." The prosecutor's comments,and the trial court's ruling, are
supported by the record of Pry's cross-examination. Pry's assertion of
misconduct thus fails.
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No. 77930-3-1/15
Pry also asserts that the prosecutor's opening statement and closing
argument contained improper appeals to the jury's passion.
In her opening statement, the prosecutor stated that Hood "probably never
envisioned" the manner of his death. In her closing argument, the prosecutor
noted that the day would have been Robert Hood's 90th birthday had he lived,
that the evidence did not indicate precisely what happened when he was beaten
and hog-tied, and that the jury should "celebrate" Hood. Of these comments,
only the last was objected to by defense counsel. On appeal, Pry avers that the
comments,taken as a whole, were so improper that they had a cumulative effect
of prejudicial error, and that this effect was so pronounced that no instruction or
series of instructions could ameliorate it and cure the error. We do not agree that
the challenged statements constituted misconduct that would entitle Pry to a new
trial.
A defendant alleging improper argument by the State bears the burden of
proving that the prosecutor's conduct was both improper and prejudicial. State v.
Emery, 174 Wn.2d 741,756, 278 P.3d 653(2012). Once a defendant
establishes that a prosecutors statements were improper, the appellate court
determines whether the defendant is entitled to relief by applying one of two
standards of review. Emery, 174 Wn.2d at 760. The first standard, which
applies if the defendant timely objected at trial and the objection was overruled,
requires that the defendant show that the prosecutors misconduct led to
prejudice that had a substantial likelihood of affecting the jury's verdict. Emery,
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No. 77930-3-1/16
174 Wn.2d at 760. However, if the objection was sustained and no further
remedy was requested, any claim that the trial judge should have imposed a
further remedy is forfeited. See State v. Giles, 196 Wn. App. 745, 769, 385 P.3d
204(2016)(when a party receives the remedies he requested, "[t]he law
presumes that these remedies are effective").4
The second standard applies if the defendant did not object at trial. In that
event, the defendant is deemed to have waived the claim of error unless the
defendant can show that "(1)'no curative instruction would have obviated any
prejudicial effect on the jury' and (2)the misconduct resulted in prejudice that
'had a substantial likelihood of affecting the jury verdict.'" Emery, 174 Wn.2d at
761 (quoting State v. Thomerson, 172 Wn.2d 438,455, 258 P.3d 43(2011)).
Pry relies on State v. Pierce, 169 Wn. App. 533, 553,280 P.3d 1158(2012), in which the defendant assigned "error to three examples of the
prosecutor appealing to the jury's passion and prejudice and arguing facts
outside the evidence:(1)the prosecutors first person narrative of the thoughts
[the defendant] must have been thinking leading up to the crimes,(2)the
prosecutor's fabricated description of the murders, and (3)the prosecutors
argument that the [victims] could not have imagined they would be murdered in
their own home." In Pierce, the prosecutor "told the jury an emotionally charged,
but largely speculative," narrative of the alleged crime. 169 Wn. App. at 542.
[Pat Yar] probably said,"This ain't over. I know you. This ain't
over." Okay? 1 betcha he was hot. Makes these two people lay
down on their floor, in their home, in their kitchen, almost head-to-
'It is a principle of long standing that a trial attorney who does not request a remedy
forfeits the claim that the trial judge should have imposed that remedy." Giles 196 Wn. App. at
769-70.
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No. 77930-3-1/17
head,face-to-face where they can see each other. Where they
look into their eyes. They can look into their eyes. "I can't leave
any witnesses, especially one that'll probably kill me the next time
he sees me." And he shoots. There's your premeditation. "Lay
down on the floor. Say your goodbye's."
Pierce 169 Wn.App. at 543.
Further, the prosecutor in Pierce stated that "'[n]ever in their wildest
dreams.... or in their wildest nightmare'" could the victims have expected to be
murdered on the day of the crime. 169 Wn. App. at 555. The court in Pierce
held that this argument was an improper invitation for the jury to place
themselves in the proverbial shoes of the victims, and that the victims' lack of
expectations that the crime would occur was not relevant to the defendant's guilt.
169 Wn.App. at 555.
Pry also cites to State v. Claflin, 38 Wn. App. 847,690 P.2d 1186(1984),
as an example of a prosecutor's undue appeal to the jury's sympathy for a victim.
In Claflin, the prosecutor recited a lengthy "poem utilizing vivid and highly
Inflammatory imagery In describing rape's emotional effect on its victims." 38
Wn.App. at 850. The court in Claflin noted that "reference to the heinous nature
of a crime and its effect on the victim can be proper argument," but that reciting
the poem "was nothing but an appeal to the jury's passion and prejudice" that
"contained many prejudicial allusions to matters outside the actual evidence." 38
Wn. App. at 849-51.
In the State's opening statement herein, the prosecutor offered that "[Mr.
Hood] probably never envisioned that when he opened the door that night that he
would be beaten so severely that he would be left paralyzed, that he would then
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No. 77930-3-1/18
be hog-tied and left to die on his bathroom floor."5 Pry analogizes this statement
to the "never in their wildest dreams" statement in Pierce. 169 Wn. App. at 555.
Here, however, the prosecutor's language was more tempered than either that
used in Pierce or that which Pry's brief alleges. Significantly, the prosecutor
qualified her statement with the word "probably." Moreover, as Pry did not
object, our inquiry considers whether the allegedly improper statement was so
flagrant and ill-intentioned that any resulting prejudice could not have been
remedied by a curative instruction. The language used here is not comparable to
the inflammatory statement in Pierce and, even if the statement were improper,
we are confident that any resulting prejudice could have been cured by a proper
Instruction.
Pry also asserts that, in the State's closing argument, the prosecutor
"fabricated a description" of the attack on Hood comparable to that set out in
Pierce. In his brief, Pry quotes the prosecutors opening passage from this
argument while omitting the sentences in which she tied her comments to the
available evidence. The full passage in question is as follows:
Pie are here talking about the violence that was done to his body.
The violence that was done to his body after he was killed. We are
here talking about the night of terror that was issued upon him on
December 17th. When Joshua Rodgers Jones and Robert Pry go
to his house, knock on the door and say,"It's God."
Now, Robert Hood knew Rodgers Jones, likely trusted
Rodgers Jones. There was no signs of a forced entry. I don't know
If the door was unlocked or if he let them in.
5 In Pry's brief, Pry asserts that the prosecutor stated, in her opening statement,'Mr.
Hood could not have imagined that he would be beaten so severely that he would be left
paralyzed, then hog-tied, and left to die on his bathroom floor? The record shows that the
prosecutor actually stated that Hood 'probably never envisioned" these events.
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No. 77930-3-1/19
I don't know what happened in those first moments, whether
or not they started in on him right away or whether or not they sat
and chatted with him first. Whether Rodgers Jones introduced
Archie to Robert Pry. Or whether they started torturing him right
away. Whether they started shouting at him and hitting him,
demanding his account numbers, his PIN numbers, his cash, his
firearms. I can't answer those questions for you.
And I don't have to answer those questions for you. We do
know from Dr. Lacsina, the medical examiner, that he was beaten.
We know that he was beaten severely around the head. We saw
those horrible pictures. We know that he had a broken nose, that
he had swollen, blackened eyes. We know that he had defensive
wounds on his hands. Extensive bleeding on the brain under his
subarachnoid, on his skull, he had bleeding.
We know that he was beaten after he was tied. We know he
was still alive when he was bound by the hands. We can only hope
that by the time he was hit so hard that he was paralyzed that he
was rendered unconscious. We can only hope that when he was
dragged into the bathroom and hogtied and left to die on the
bathroom floor, that he was unconscious.
Pry omits the third paragraph of this passage from his brief. However,
with the benefit of the context provided by the omitted passage, it is clear that the
prosecutor did not fabricate a narrative comparable to that which took place In
Pierce. To the contrary, the prosecutor stated that the evidence did not show the
exact course of events during the home invasion, but pointed out that this was
not necessary in order for the State to prove its case because of that which the
evidence did establish.
Pry also argues that two sentences quoted above beginning with "We can
only hope..." were an undue appeal to sympathy for Hood, comparable to the
language used by the prosecutor in Claflin. We disagree. The prosecutor herein
was primarily referring to the evidence presented at trial and stated explicitly
which facts had been and which facts had not been established by the evidence.
-19-
No. 77930-3-1/20
Indeed, the evidence well-supported the prosecutor's statements that "[Hood]
was hit so hard that he was paralyzed" and that "he was dragged into the
bathroom and hogtied and left to die on the bathroom floor." Nothing in the
prosecutor's statement can be properly likened to the poetry recited in Claflin
All of the comments made by the prosecutor in closing to which Pry did
not object, but now cites to support his claim of misconduct, were but small
fragments of a lengthy closing argument Comparing them, in context, to the
arguments advanced in the cases Pry cites, they are measured statements.
They are not shown to have been flagrant and ill-intentioned. It is not established
that proper jury instructions could not have cured any prejudice resulting from
these statements. Indeed, it is not apparent that any prejudice resulted from the
statements at all. In fact, after closing arguments were delivered, the jury took
five days to examine the evidence, did not vote to convict Davis on several of the
State's charges, and declined to find one of the aggravating circumstances with
which Cruz had been charged. These are not the actions of a jury stirred to
decide a case based on its passions rather than the evidence produced at trial.
The prosecutor also stated that the jury should "celebrate" Hood. Pry
objected to this comment. The trial court sustained the objection. Thereafter,
none of the defendants requested any further relief. Pry received the remedy he
requested regarding the "celebrate" remark. The law presumes this remedy to
be effective. Giles 196 Wn.App. at 769(citing State v. Warren, 165 Wn.2d 17,
28, 195 P.3d 940(2008); State v. Swan 114 Wn.2d 613,661-64, 790 P.2d 610(1990)). Thus, Pry's contention that the prosecutor's statements, taken together,
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No. 77930-3-1/21
constituted misconduct that denied him a fair trial is unavailing. He does not
establish an entitlement to appellate relief.
F
Pry, pro se, seeks relief in a statement of additional grounds filed pursuant
to RAP 10.10. None of these grounds merit appellate relief.
Pry first asserts that the trial court erred by admitting hearsay statements
under hearsay exceptions that he contends were inapplicable. However, he
provides no argument or authority as to how these statements failed to conform
to exceptions to the hearsay rule. Thus, he does not establish trial court error.
Pry next contends that his sentence violated the constitutional prohibition
on double jeopardy. He avers that, although his robbery and felony murder
convictions were merged at the entry of judgment into the felony murder
conviction, his kidnapping conviction should also have been merged into the
felony murder conviction. Again, he provides no support for his contention. Pry
cites to State v. Williams, 131 Wn.App. 488, 128 P.3d 98(2006), but that case
only concerns the merger of felony murder and robbery convictions into the
felony murder conviction—exactly as happened herein.
"If the legislature authorizes cumulative punishments for both offenses,
double jeopardy is not offended." State v. Moreno, 132 Wn. App.663,667, 132
P.3d 1137(2006). "Where a defendant's act supports charges under two
criminal statutes, a court weighing a double jeopardy challenge must determine
whether, in light of legislative intent, the charged crimes constitute the same
offense." In re Pers. Restraint of Orange, 152 Wn.2d 795,815, 100 P.3d 291-21-
No. 77930-3-1/22
(2004). Washington courts have consistently ruled that, consistent with
legislative intent, "kidnapping and robbery never merge." State v. Berg, 181
Wn.2d 857, 866 n.3, 337 P.3d 310(2014)(citing In re Personal Restraint of
Fletcher 113 Wn.2d 42, 52-53, 776 P.2d 114(1989)). In arguing that the
robbery and kidnapping convictions should have been merged, Pry is arguing
against settled law. There was no error.
Finally, Pry assigns error to the court's imposition of an exceptional
sentence. Specifically, he contends that the trial court's decision to increase his
sentence based on a finding not included in the jury's verdicts was a violation of
his right to a jury trial. Pry received an exceptional sentence pursuant to ROW
9.94A.535(2)(c), which gives the trial court discretion in imposing a sentence
when a defendant has committed multiple current offenses and, due to the
defendant's high offender score, the absence of an exceptional sentence would
allow one or more crimes to go unpunished. Pry's case fit this scenario due to
his plethora of prior convictions and current offenses. Contrary to Pry's
assertions, the sentencing court is allowed to make findings of fact regarding the
existence of prior convictions. Blakely v. Washington, 542 U.S. 296, 301, 124 S.
Ct. 2531, 159 L. Ed. 2d 403(2004). Thus, the imposition of an exceptional
sentence did not violate Pry's Sixth Amendment rights. This argument, as with
the other arguments in Pry's statement of additional grounds, lacks merit. Pry's
statement of additional grounds fails to establish a basis for appellate relief.
-22-
No. 77930-3-1/23
11
Davis Appeal
A
Ocean Wilson testified that it was Robert Davis who drove Pry and
Rodgers-Jones to Hood's house on December 17. The drop-off location
identified by Wilson was under 24-hour video surveillance, although the quality of
the surveillance footage was too poor to discern any cars stopping there. That
evening, Davis met with Alisha Small, telling Small that he had heard that she
was a "paper shark"—a person with good accounting skills—and that he had "a
large account... he wanted [her]to work on?
Davis, Small, Wilson, Pry, Dudley-Pry, and Rodgers-Jones later headed
for the Emerald Queen Casino in Fife. At the casino, Davis called his friend
Donald Goodloe and asked him to come to the casino. Goodloe did so,
accompanied by Sheila Costello. Using money provided by Davis, Goodloe
rented a room at a motel across the street. Pry, Dudley-Pry, and Small all used
the room to attempt to access Hood's bank accounts. Davis occupied his own
room at the casino hotel. Late the next day, all except Costello returned to
Bremerton.
Davis was arrested on December 22. He was eventually tried along with
Pry and Cruz. Among the 68 testifying witnesses were Wilson, Goodloe, Davis's
former roommate Christina Waggoner, and several detectives. During the
prosecution's direct examination of Detective Ray Stroble, who had previously
questioned Goodloe, evidence was introduced to the effect that Davis had
-23-
No. 77930-3-1/24
involved Costello to get her aid in helping access Hood's accounts. This
evidence was admitted only to impeach Goodloe's testimony, and the jury was
instructed that it was not to consider the evidence for any other purposes.
Waggoner testified for the State. During Davis's cross-examination of
Waggoner, his counsel brought out the issue of Waggoner's poor relationship
with her neighbors due to her connection with Davis. The trial court ruled that
this opened the door, on re-direct examination, to testimony that Waggoner had
been questioned by third parties regarding her loyalty to Davis. Davis's attorney
unsuccessfully argued that the issues were not related.
In closing argument, the prosecutor referred to Davis's alleged recruitment
of Costello to help access Hood's accounts. Davis's lawyer did not object" In
Davis's summation, his attorney noted to the jury that no substantive evidence
supported the allegation that Davis had recruited Costello for this purpose.
Davis was acquitted on charges of murder in the first degree and robbery
In the first degree. The jury found him guilty of identity theft in the second
degree. Davis received an exceptional sentence of 103 months based on a plea
bargain with the State!
Davis first asserts that the prosecutor engaged in misconduct when,
during closing argument, she referenced—for substantive purposes—evidence
that had been admitted only for impeachment purposes. The challenged
6 The state concedes that this was a misuse of Impeachment evidence.
7 Davis's plea bargain Involved a guilty plea for an unrelated charge of felonypromotion
of prostitution. The plea bargain arrangement ran his sentence for this conviction consecutively
to his sentence for the conviction herein.
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No. 77930-3-I/25
statement was the prosecutor's reference to evidence that Davis brought Sheila
Costello to Fife to help with accessing Hood's bank accounts.
The State concedes that this reference was improper but, nevertheless,
argues that it does not warrant a new trial. We agree.
As previously discussed, claims of prosecutorial misconduct are reviewed
under one of two standards. If the allegedly improper statement was objected to,
the defendant must show that it led to prejudice that had a substantial likelihood
of affecting the jury's verdict. Emery, 174 Wn.2d at 760. If no objection was
interposed, the defendant must show that the misconduct was so grave that no
curative instruction could have obviated its prejudicial effect on the jury, and that
the misconduct was flagrant, ill-intentioned, and "resulted in prejudice that'had a
substantial likelihood of affecting the jury verdict.'" Emery, 174 Wn.2d at 761(quoting Thomerson, 172 Wn.2d at 455). In addressing the question of jury
prejudice, the jury is presumed to follow its instructions. State v. Grisby, 97
Wn.2d 493,499,647 P.2d 6(1982)(assessing prejudice from improper
statement in argument to jury).
Davis did not object to the misuse of the impeachment evidence. Rather,
he addressed the issue in his own closing argument. As there was no objection,
we review the contention of misconduct under the more stringent standard. With
the exception of the single utterance about Costello, the prosecutor made an
argument as to Davis's involvement with the effort to access Hood's bank
accounts that was fully supported by the substantive evidence. This includes the
evidence that Davis recruited Small to assist with accessing Hood's accounts,
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No. 77930-3-1/26
that he transported Small, Pry, and Wilson to the motel near the Emerald Queen
Casino (where they made attempts to access Hood's bank accounts), and that
he gave Don Goodloe money to rent the room at the motel in Goodloe's name.
Significantly, the jury was given the following instruction at the time that
the impeachment evidence was offered during trial:
I'm going to allow the witness to answer the following
questions, but you may consider the answers only for the purpose
ofjudging the credibility of Donald Goodloe's testimony. The
answers are not being admitted as substantive evidence and you
may not consider the answers in your deliberations as proof of the
matter asserted.
Prior to the attorneys' closing arguments and the jury commencing its
deliberations, the jury was also provided with the following instruction:
One of my duties has been to rule on the admissibility of
evidence. Do not be concerned during your deliberations about the
reasons for my rulings on the evidence. If I have ruled that any
evidence is inadmissible, or if I have asked you to disregard any
evidence, then you must not discuss that evidence during your
deliberations or consider it in reaching your verdict. Do not
speculate whether the evidence would have favored one party or
the other.
Jury Instruction 1. The jury was also instructed that:
Certain evidence has been admitted in this case for only a
limited purpose. This evidence may be considered by you only for
that purpose. You may not consider it for any other purpose. Any
discussion of the evidence during your deliberations must be
consistent with this limitation.
Jury Instruction 6.
Thus, it is plain that a curative instruction (the judge simply reminding the
jury of the judge's prior instructions) could have ameliorated any prejudice
caused by the passing misuse of the impeachment evidence. Moreover, nothing
-26-
No. 77930-3-1/27
supports the proposition that the misuse was flagrant or ill-intentioned. Davis's
assertion of misconduct fails.
C
Davis next asserts that his attorney provided constitutionally deficient
representation because his lawyer did not object to the prosecution's misuse of
the impeachment evidence. We disagree.
Constitutionally ineffective assistance of counsel is established only when
the defendant shows that(1)counsel's performance, when considered in light of
all the circumstances, fell below an objectively reasonable standard of
performance, and (2)there is a reasonable probability that, but for counsel's
deficient performance, the result of the proceeding would have been different.
Strickland v. Washington,466 U.S.668,689-95, 104 S. Ct. 2052,80 L. Ed. 2d
674(1984); State v. Hassan, 151 Wn. App. 209, 217, 211 P.3d 441 (2009). The
burden is on the defendant to demonstrate deficient representation and
prejudice. In re Det. of Hatfield, 191 Wn. App. 378,401, 362 P.3d 997(2015).
Failure to satisfy either part of this analysis ends the inquiry. State v.
Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563(1996).
"Because the presumption runs in favor of effective representation, the
defendant must show in the record the absence of legitimate strategic or tactical
reasons supporting the challenged conduct by counsel." State v. McFarland, 127
Wn.2d 322, 336,899 P.2d 1251 (1995). "[T]he presumption of adequate
representation is not overcome if there is any 'conceivable legitimate tactic' that
-27-
No. 77930-3-1/28
can explain counsel's performance." Hatfield, 191 Wn. App. at 402(quoting
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80(2004)).
Furthermore, prejudice is only shown if "there is a reasonable probability
that, but for counsel's deficient performance, the outcome of the proceedings
would have been different." State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177(2009). "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland,466 U.S. at 694. There is a significant
limitation applicable to the assessment of prejudice.
In assessing prejudice,"a court should presume, absent challenge
to the judgment on grounds of evidentiary insufficiency, that the
judge or jury acted according to the law" and must"exclude the
possibility of arbitrariness, whimsy, caprice,'nullification' and the
like."
State v. Grier, 171 Wn.2d 17, 34,246 P.3d 1260(2011)(quoting Strickland, 466
U.S. at 694-95). As the Supreme Court explained in Strickland,
A defendant has no entitlement to the luck of a lawless
decisionnnaker, even if a lawless decision cannot be reviewed. The
assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision.
466 U.S. at 695. This means that, in assessing potential prejudice, we must
assume that the jury followed the court's Instructions. Grier, 171 Wn.2d at 43-44.
As to the first part of the Strickland two-part test, Davis does not contend,
let alone show,that there was no conceivable tactical reason for his counsel to
refrain from objecting to the misuse of the impeachment evidence. To the
contrary, the record makes clear that his attorney knew that the impeachment
evidence could not be considered by the jury for substantive purposes and opted
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No. 77930-3-1/29
not to object in favor of addressing the matter during Davis's closing argument.
Put simply, rather than object during argument(and risk looking like an
obstructionist to the jury), counsel chose to use part of her closing argument to
rightfully accuse the prosecutor of trying to cheat to gain a conviction. This was a
conceivable, and sound, tactical decision.
It is also true that Davis cannot show that he was prejudiced as a result of
his lawyer's performance. As noted, the impeachment evidence in question was
admitted along with a limiting instruction directing that the evidence could not be
considered by the jury as substantive evidence. The jury, before both closing
arguments and its deliberations, was again instructed to this effect. The jury is
conclusively presumed to have followed these instructions. Strickland 466 U.S.
at 695; Grier, 171 Wn.2d at 43-44.
Because Davis is not entitled to rely on a lawless decision-maker to
establish prejudice, he cannot do so. Assuming that the jury followed its
instructions, as we must, there is no possibility that it considered the
impeachment evidence as substantive evidence. As a matter of law, Davis
cannot show prejudice.
D
Davis next claims that he received ineffective assistance of counsel based
on his lawyer's cross-examination of Christina Waggoner. Specifically, Davis
faults his attorney for opening the door to testimony that Waggoner was under
pressure not to testify against Davis. Davis, again, does not show that his
counsel's assistance was ineffective.
-29-
No. 77930-3-1/30
The Strickland test, summarized above, requires Davis to prove both
deficient performance and prejudice. Deficient performance is that which falls
"below an objective standard of reasonableness." Strickland, 466 U.S. at 688.
Defense counsel's decisions on strategy or tactics in the course of representation
are given deference on review and the threshold for proving deficient
performance is high. "In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel's assistance was reasonable
considering all the circumstances." Strickland, 466 U.S. at 688. "When
counsel's conduct can be characterized as legitimate trial strategy or tactics,
performance is not deficient." KvIlo, 166 Wn.2d at 863.
Here, Davis's attorney had a legitimate trial strategy behind her line of
questioning while cross-examining Waggoner: she brought out the fact that
Waggoner's neighbors were unhappy with her after Davis, a house guest of hers,
was involved in Hood's robbery and murder. This would tend to show that
Waggoner had a motive to testify against Davis. In this way, Davis's attorney
sought to impeach Waggoner's testimony.
Davis's counsel made an obvious tactical decision. The adoption of such
a tactic does not constitute deficient performance. Davis's ineffective assistance
of counsel claim fails.
E
Based on the assignments of error discussed above, Davis next argues
that he has a right to a new trial due to cumulative error. Cumulative error is
established when,taken alone, several trial court errors do not warrant reversal
-30-
No. 77930-3-1/31
of a verdict but the combined effect of the errors denied the defendant a fair trial.
State v. Hodges, 118 Wn. App. 668,673-74,77 P.3d 375(2003). It is the
defendant's burden to prove an accumulation of error of sufficient magnitude to
necessitate retrial. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332,868 P.2d
835,870 P.2d 964(1994). Davis makes this assertion without support. He has
not established any prejudicial error, let alone the many errors that would give
rise to a ruling of cumulative error. His claim fails.
F
Davis, pro se, seeks relief in a statement of additional grounds pursuant to
RAP 10.10.8 None of his contentions therein establish a basis for appellate
relief.
As did Pry, Davis alleges that the trial court violated his due process rights
by admitting co-conspirator statements despite hearsay objections. However, all
of the admitted statements with which Davis takes issue were statements made
in furtherance of a conspiracy, as defined by ER 801(d)(2)(v), or were adoptive
admissions, pursuant to ER 801(d)(2)(ii), and were thus properly admitted as
admissions of a party-opponent. Davis does not make a substantive argument
as to why any of the statements admitted failed to conform to applicable hearsay
exceptions.
Davis also advances several claims of prosecutorial misconduct. First, he
argues that the prosecutor undercut a plea bargain that he had entered into by
'Davis's statement of additional grounds Includes further claims of Ineffective assistance
of counsel. This assertion is rejected for the same reasons as his other claims of Ineffective
assistance. He shows neither deficient performance nor prejudice arising from his attomey's
performance.
-31-
No. 77930-3-1/32
discussing unrelated criminal convictions at Davis's sentencing hearing. The
plea bargain involved the imposition of consecutive sentences for the identity-
theft conviction and an unrelated charge of promoting prostitution, to which Davis
had entered a guilty plea. The prosecutor discussed Davis's criminal history as
part of its explanation to the sentencing judge as to why the consecutive
sentences, to which Davis had agreed, should be imposed. The prosecutor did
not undercut the plea bargain.
Davis next argues that prosecutorial misconduct compromised his right to
a fair trial and to a speedy trial. These assertions arise out of the State's addition
of a charge of murder in the first degree in its third amended information, filed
shortly before the original trial date. In response to the amendment, Davis's
counsel moved for a continuance, which was granted. Subsequently, Davis
moved to dismiss the murder charge, contending that the introduction of this
charge in close proximity to the original trial date constituted misconduct that
violated Davis's right to a fair trial. The State averred, in response, that the
murder charge could not have been added until the State had reviewed sufficient
evidence and that such review took a great deal of time due to the complex
investigation and discovery process. The trial court denied Davis's motion to
dismiss the charge.
Davis's speedy trial right cannot be said to have been violated by the
addition of the murder charge; the State put forth a valid reason for filing the
amended information when it did. There is nothing in the record to support his
contention that the amendment was delayed in order to force him into requesting
-32-
No. 77930-3-1/33
a continuance. Similarly, the addition of the murder charge cannot be said to
have denied Davis his right to a fair trial, given that the jury acquitted him of that
charge and the charge of robbery in the first degree.
Davis next alleges perjury on the part of the prosecution's witnesses,
particularly Ocean Wilson, to support an overall theory of malicious misconduct
by the prosecution. The record does not support these claims. Davis claims that
Wilson's perjury was indicated by camera footage that does not show Davis's car
stopping at the time and place identified by Wilson when Davis dropped off Pry
and Rodgers-Jones. However, testimonial evidence adduced at trial indicates
that this was the result of the poor quality of the footage and does not show that
Wilson's account was fabricated. Davis also makes sundry accusations of
perjury against other state witnesses without any substantial support for his
claims. As to all of these assertions, our purpose is not to reweigh the evidence.
His claim that we should do so is unavailing.
Davis next asserts that his offender score of 22 was incorrectly calculated.
During his sentencing hearing, he stated that he agreed with the trial court's
calculation of his offender score. His assertion that it is incorrect is a new
position taken without any explanation and without support in the record. His
claim does not warrant appellate relief.
Davis also makes a vague assertion that the search warrant for his home
and car was not valid, without providing any authority as to why this would be the
case. Thus, he does not establish an entitlement to appellate relief.
-33-
No. 77930-3-1/34
Finally, Davis assigns error to the trial court's grant of the State's motion
for joinder and to the trial court's subsequent denial of his motion to sever.
Separate trials are not favored; a defendant seeking severance has the burden of
demonstrating that a joint trial will result in a specific unfair prejudice that
outweighs the policy of judicial economy that is served by joint trials. State v.
Rodriquez, 163 Wn.App. 215, 228,259 P.3d 1145(2011). Davis's statement
alleges no such unfair prejudice, or, in fact, any concern that would outweigh the
public's interest in judicial economy in light of the trial's significant length, the
nature of the charges, and the number of witnesses involved.
Nothing in Davis's statement of additional grounds establishes a basis for
appellate relief.
III
Cruz Appeal
A
Cruz's primary contention on appeal is that the amended information
charging him with rendering criminal assistance in the first degree was
constitutionally deficient because it failed to allege several essential elements of
the crime. We agree.
Following Hood's death, Pry became concerned about secretly disposing
of Hood's body. He asked Cruz for help. When law enforcement officers
discovered Hood's body, they released Cruz's name to the press as someone
being sought in connection with Hood's death.
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No. 77930-3-1/35
Cruz subsequently surrendered himself to the police. He was charged by
information with having committed both the felony of rendering criminal
assistance in the first degree and the gross misdemeanor of concealing a
deceased body. The amended information included the following language
concerning the charge of rendering criminal assistance in the first degree:
Count 1
Rendering Criminal Assistance in the First Degree 1Non-Relativel
On or about or between December 17, 2015 and December
30,2015, in the County of Kitsap, State of Washington, the above-
named Defendant, rendered criminal assistance to a person who
had committed or was being sought for any class A felony; contrary
to the Revised Code of Washington 9A.76.070(1).191
Cruz contends that the information charging him with rendering criminal
assistance in the first degree was constitutionally deficient. This is so, he
asserts, because the information did not set forth all of the essential elements of
the crime.
9 In comparison, the to-convict jury instruction at trial for the charge of rendering criminal
assistance in the first degree Is more detailed and reads as follows:
To convict Arnold Cruz of the crime of Rendering Criminal Assistance In
the First Degree, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or between December 17, 2015 and December 30, 2015,
Arnold Cruz rendered criminal assistance to another person; and,
(2)That Arnold Cruz acted with the intent to prevent, hinder or delay the
apprehension or prosecution of another person; and,
(3)That such other person had committed or was being sought for Murder
In the First Degree; and,
(4)That Arnold Cruz knew that such other person had committed or was
being sought for Murder, and,
(5)That the defendant's act occurred In the State of Washington.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements,then it will be your duty to return
a verdict of not guilty.
-35-
No. 77930-3-1/36
An accused has a right under both the state and federal constitutions to be
Informed of each criminal charge alleged so that the accused may adequately
prepare a defense for trial. U.S. CONST.amend. VI; WASH.CONST. art. I, § 22
(amend. X). The State must provide a charging document that sets forth every
material element of each charge made, along with essential supporting facts.
State v. McCarty, 140 Wn.2d 420,425,998 P.2d 296(2000).
"The standard of review for evaluating the sufficiency of a charging
document is determined by the time at which the motion challenging its
sufficiency is made." State v. Taylor, 140 Wn.2d 229,237,996 P.2d 571 (2000).
When a defendant challenges the sufficiency of the charging document prior to a
verdict, the charging language is strictly construed. Taylor, 140 Wn.2d at 237. If,
however, the defendant challenges the sufficiency of the charging document
following a verdict, then the charging language must be construed liberally in
favor of validity. Taylor, 140 Wn.2d at 237.
Because a challenge to the sufficiency of a charging document involves a
question of constitutional due process, it may be raised for the first time on
appeal. State v. Leach, 113 Wn.2d 679,691,782 P.2d 552(1989). When an
appellant raises such a challenge, the proper standard of review is the two-
pronged test set forth in State v. Kiorsvik, 117 Wn.2d 93, 106, 812 P.2d 86(1991):"The standard of review we here adopt will require at least some
language in the information giving notice of the allegedly missing element(s) and
if the language is vague, an inquiry may be required Into whether there was
actual prejudice to the defendant."
-36-
No. 77930-3-1/37
A charging document satisfies the first prong of this test by setting forth all
of the essential elements of the crime charged. McCarty, 140 Wn.2d at 425. If
the required elements are set forth, even if only in vague terms, then the
charging document satisfies the second prong of the test if the terms used did
not result in any actual prejudice to the defendant. McCarty, 140 Wn.2d at 425.
However, if the required elements cannot be found, or even fairly implied, in the
charging document, we do not reach the second prong of the test Instead, when
the charging document fails the first prong of the test, prejudice to the defendant
is presumed and we must declare the charging document constitutionally
deficient. McCarty, 140 Wn.2d at 425. The remedy for a constitutionally
deficient charging document is reversal and dismissal of the charge without
prejudice to the State's ability to refile the charge. State v. Quismundo, 164
Wn.2d 499, 504, 192 P.3d 342(2008).
Here, Cruz asserts that the information charging him with rendering
criminal assistance in the first degree omitted essential elements of the crime set
forth in ROW 9A.76.050. The State responds by asserting that ROW 9A.76.050
merely provides a definition for an element of the crime of "rendering criminal
assistance in the first degree" as set forth in RCW 9A.76.070, and that such
definitional terms need not be alleged. Because Cruz raises his challenge for the
first time on appeal, we apply the standard of review announced in K orsvik.
Hence, to properly resolve the claim of error, we must first identify the essential
elements of the crime of rendering criminal assistance in the first degree.
-37-
No. 77930-3-1/38
RCW 9A.76.070(1) provides that, "[a] person is guilty of rendering criminal
assistance in the first degree if he or she renders criminal assistance to a person
who has committed or is being sought for murder in the first degree or any class
A felony or equivalent juvenile offense." The base crime of"rendering criminal
assistance" is set forth in RCW 9A.76.050:
As used in RCW 9A.76.070, 9A.76.080, and 9A.76.090, a
person "renders criminal assistance" if, with intent to prevent,
hinder, or delay the apprehension or prosecution of another person
who he or she knows has committed a crime or juvenile offense or
is being sought by law enforcement officials for the commission of a
crime or juvenile offense or has escaped from a detention facility,
he or she:
(1) Harbors or conceals such person; or
(2) Warns such person of impending discovery or
apprehension; or
(3) Provides such person with money,transportation,
disguise, or other means of avoiding discovery or apprehension; or
(4) Prevents or obstructs, by use of force, deception, or
threat, anyone from performing an act that might aid in the
discovery or apprehension of such person; or
(5) Conceals, alters, or destroys any physical evidence that
might aid in the discovery or apprehension of such person; or
(6) Provides such person with a weapon.
Six years ago, our Supreme Court was called upon to resolve a sufficiency
of the evidence challenge to a conviction for rendering criminal assistance in the
first degree. State v. Budik, 173 Wn.2d 727,272 P.3d 816(2012). To resolve
the challenge, the court was required to identify the essential elements of the
offense. Budik, 173 Wn.2d at 733("the question is whether, viewing the
evidence in the light most favorable to the State,'any rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt'"
(emphasis added)(quoting State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007(2009))). The court did so, stating that a person violates RCW 9A.76.070
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if(1)"he or she renders criminal assistance"(2)to another person
"who has committed or is being sought for murder in the first
degree or any class A felony or equivalent juvenile offense."...
[A] person renders criminal assistance if he or she (1) knows that
another person (a)"has committed a crime or juvenile offense" or
(b)"is being sought by law enforcement officials for the commission
of a crime or juvenile offense" or(c)"has escaped from a detention
facility" and (2)intends "to prevent, hinder, or delay the
apprehension or prosecution" of that other person and (3)
undertakes one of the six specified actions [set forth in RCW
9A.76.050].
Budik 173 Wn.2d at 734. The court found that the evidence was insufficient to
support a finding that Budik had undertaken one of the six specified actions set
forth in RCW 9A.76.050. Budik, 173 Wn.2d at 737-38. Therefore, the court
concluded, no rational fact finder could have found all of the essential elements
of the crime of rendering criminal assistance in the first degree proved beyond a
reasonable doubt. Budik 173 Wn.2d at 737-38.1°
Although we are here considering the sufficiency of an information, rather
than the sufficiency of the evidence supporting a conviction, the essential
elements identified in Budik control. Indeed, it was incumbent upon our Supreme
Court to set forth the essential elements of the crime of rendering criminal
assistance in the first degree before it could analyze whether the evidence
sufficiently supported a finding that all of those elements had been proved
beyond a reasonable doubt. See Budik, 173 Wn.2d at 733. Therefore, the Budik
decision unquestionably identified the essential elements of the crime of
"We have previously followed Budik relying on its Identification of the essential
elements of the crime of rendering criminal assistance In the first degree, in resolving a similar
sufficiency of the evidence challenge to a conviction for rendering criminal assistance In the first
degree. State v. Mollet, 181 Wn. App. 701,706-08, 326 P.3d 851 (2014).
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No. 77930-3-1/40
rendering criminal assistance in the first degree. That the essential elements
must be delineated herein, so as to evaluate the content of the charging
document, as opposed to the sufficiency of the evidence adduced at trial, is of no
moment.
The amended information charging Cruz with rendering criminal
assistance in the first degree did not include all of the essential elements of the
crime, as identified in Budik. In fact, it did not set forth any of the elements of the
base crime of rendering criminal assistance set forth by RCW 9A.76.050.
Because the amended information entirely omitted references to such elements
and was devoid of any language from which those elements could be fairly
implied, the information fails the first prong of the K orsvik test. As a result, we
presume prejudice to Cruz and need not consider the second prong of the test."
For its part, the State contends that RCW 9A.76.070 sets forth the crime
of rendering criminal assistance in the first degree and that RCW 9A.76.050 sets
forth merely the definition of an element of that crime, i.e., what it means to
render criminal assistance. The State further asserts that this definition of
rendering criminal assistance, as set forth in RCW 9A.76.050, did not need to be
included in the amended information. These contentions are unavailing. Given
that this argument directly conflicts with our Supreme Court's holding in Budik,
wherein the court identified the essential elements of the crime as including the
II The State contends that other circumstances In the charging process, specifically a
detailed probable cause statement provided to Cruz with the original Information, sufficiently
Informed Cruz of the charges against him so as to bar any claim that he was prejudiced by the
information. Because we do not reach the second prong of the Xiorsvik test we need not
consider this argument. When the charging document fails the first prong of the KlorsviR test,
prejudice is presumed.
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No. 77930-3-1/41
elements of the base crime of rendering criminal assistance set forth in RCW
9A.76.050, the State's arguments fail.
In support of its contentions, the State cites to State v. Johnson, 180
Wn.2d 295, 325 P.3d 135(2014), and State v. Porter, 186 Wn.2d 85, 375 P.3d
664(2016). Neither of these cases supports the State's assertion that Budik did
not declare that the essential elements of rendering criminal assistance in the
first degree include the elements set forth in RCW 9A.76.050.12 Indeed, the
State misinterprets the cases cited. This misperception stems from a
fundamental misapprehension of a basic principle: there is a difference between
an instruction that states what the essential elements of a crime are, as opposed
to an instruction that states what an essential element means.
In Johnson the defendant was charged with unlawful imprisonment. The
information stated that"the defendant J.C. JOHNSON in King County,
Washington, during a period of time intervening between May 4, 2009 through
May 6,2009, did knowingly restrain [II], a human being." 180 Wn.2d at 301.
Johnson challenged the sufficiency of the information because it did not include
the definition of "restrain," as set forth in former RCW 9A.40.010(1)(1975).
Johnson, 180 Wn.2d at 301-02. Our Supreme Court rejected Johnson's
12 The State asserts that Porter distinguished between the requirements ofjury
instructions and the requirements of charging documents. Therefore, the State reasons Budik's
determination of the essential elements does not apply here, as it reviewed the sufficiency of
evidence posttrial. Such a conclusion Is a misreading of Porter, which simply stated that not "all
aspects of proof that are necessary at trial constitute essential elements that must be Included In
the Information.* Porter, 186 Wn.2d at 94. Porter did not upset clear precedent requiring that all
essential elements of any crime charged be included In a charging document.
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No. 77930-3-1/42
argument, holding that the State was not required to include the definition of the
element of "restrain." Johnson, 180 Wn.2d at 301-02.
Similarly, in Porter, the court deemed sufficient an information charging
the defendant with unlawful possession of a stolen vehicle that did not include
the definition of the word "possess." 186 Wn.2d at 91. The information in
question alleged that"CLIFFORD MELVIN PORTER, JR., in the State of
Washington, on or about the 27th day of August, 2011, did unlawfully and
feloniously knowingly possess a stolen motor vehicle, knowing that it had been
stolen." Porter, 186 Wn.2d at 88. Porter argued that the information should have
included the definition of possess, as set forth in ROW 9A.56.140(1), as an
essential element. Porter, 186 Wn.2d at 88. The court disagreed, holding that
ROW 9A.56.140(1) merely defined the essential element of possession, rather
than providing an additional element that the State must charge. Porter, 186
Wn.2d at 91.
Neither Johnson nor Porter overrule the holding in Budik that ROW
9A.76.050 sets forth some of the essential elements of the crime of rendering
criminal assistance in the first degree." Both Johnson and Porter support the
proposition that provisions of definitional statutes that explain what an essential
element of a crime means may be excluded from an information, but that
provisions of definitional statutes that explain what the essential elements of a
13 Additionally, Johnson and Porter can be further distinguished from the circumstances
herein because the charging documents analyzed in both cases included essential mens rea
elements that are absent In the amended Information charging Cruz. In fact, the court In porter
specifically distinguished its holding from that of another case, State v. Moavenzadeh 135 Wn.2d
359, 956 P.2d 1097(1998), wherein the charging document was found to be Insufficient because
It did not Include all essential mens rea elements.
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No. 77930-3-1/43
crime are must be included. Because the court in Budik specifically set forth the
provisions of RCW 9A.76.050 as essential elements of the crime of rendering
criminal assistance in the first degree, the State cannot be correct that section
.050 merely explains the meaning of an essential element of the crime.
The amended information charging Cruz with rendering criminal
assistance in the first degree did not set forth all of the essential elements of the
crime, as declared by our Supreme Court. Therefore, the information fails the
first prong of the Korsvik test, was prejudicial to Cruz, and was thereby
constitutionally deficient. Accordingly, Cruz's conviction of rendering criminal
assistance in the first degree must be reversed and the cause remanded to the
trial court for dismissal of the charge without prejudice.
B
Because we hold that the amended information was constitutionally
deficient, we need not reach Cruz's contention regarding his exceptional
sentence. The reversal of the conviction for rendering criminal assistance in the
first degree renders the sentencing issue moot. We thus proceed to Cruz's
statement of additional grounds.
C
In his statement of additional grounds for review, filed pursuant to RAP
10.10, Cruz personally asserts several additional claims.
Cruz first asserts that his offender score was incorrectly calculated.
Because we reverse the conviction for rendering criminal assistance in the first
degree, this issue, like the exceptional sentencing issue, is moot.
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No. 77930-3-1144
It is somewhat difficult to determine what Cruz asserts as his second
additional ground. Without presenting any argument that his convictions violated
the double jeopardy clause of the Fifth Amendment to the United States
Constitution, Cruz cites to case law interpreting the clause. He does not actually
assert that any particular conviction or charges violated the double jeopardy
clause, and it is apparent that his convictions do not, in fact, run afoul of the
constitutional prohibition. He has not established a basis for appellate relief.
Cruz next asserts a claim of prosecutorial misconduct, premised on an
assertion of improper statements made by the prosecutor during trial. To resolve
such a claim, we first inquire whether the prosecutor made improper comments,
then, if such comments were made, we inquire as to whether they were
prejudicial to the defendant. State v. Lindsay, 180 Wn.2d 423,431, 326 P.3d
125(2014). "If the defendant did not object at trial, the defendant is deemed to
have waived any error, unless ... the defendant show[s] that(1)'no curative
instruction would have obviated any prejudicial effect on the jury' and (2)the
misconduct resulted in prejudice that'had a substantial likelihood of affecting the
jury verdict.'" Emery, 174 Wn.2d at 760-61 (quoting Thomerson, 172 Wn.2d at
455).
Here, Cruz's contention of prosecutorial misconduct fails because none of
the statements he avers to be misconduct actually constitute misconduct.
Furthermore, Cruz failed to object to any of the statements at trial, and does not
assert that any misconduct could not have been cured by an instruction to the
jury. Instead, Cruz asserts that the evidence referenced by the prosecutor was
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No. 77930-3-1/45
"phony." But Cruz's disdain for the evidence does not establish that the
prosecutor engaged in misconduct by referencing such evidence during closing
argument. Cruz's assertion of prosecutorial misconduct fails.
Nothing in Cruz's statement of additional grounds establishes a basis for
appellate relief.
IV
The judgment entered in State v. Pry is affirmed.
The judgment entered in State v. Davis is affirmed.
Cruz's conviction of rendering criminal assistance in the first degree is
reversed and the cause is remanded to the trial court with direction to dismiss the
charge without prejudice. Cruz's other convictions remain undisturbed. State v.
Cruz is remanded to the trial court for resentencing.
We concur:
a..,f. Q.AA-dzsiok cc
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