State of Washington v. Norman Ray Goodrum ( 2017 )

FILED
APRIL 18, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34972-1-111
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
NORMAN RAY GOODRUM, )
)
Appellant. )
LAWRENCE-BERREY, J. - Norman Goodrum appeals his convictions for first
degree robbery, second degree burglary, and third degree theft. He argues insufficient
evidence supports his second degree burglary conviction because the State failed to prove
he "entered or remained unlawfully" in a building. He also argues the prosecutor
committed misconduct in rebuttal argument by shifting the burden of proof and by
arguing facts not in evidence. Finally, he contends the trial court erred in imposing legal
financial obligations (LFOs) without inquiring into his ability to pay. In a statement of
additional grounds for review (SAG), Mr. Goodrum claims he received ineffective
assistance of counsel, alleges additional instances of prosecutorial misconduct, and argues
cumulative error deprived him of a fair trial. We disagree with Mr. Goodrum's
arguments and affirm.
No. 34972-1-III
State v. Goodrum
FACTS
On February 27, 2015, Mr. Goodrum rented a room at the Travelodge hotel in
Longview, Washington. When Mr. Goodrum returned to the hotel office, he and the front
desk manager, Brandon Excell, began arguing about Mr. Goodrum's damage deposit.
The two argued for 30 minutes, and Mr. Excell eventually returned Mr. Goodrum's
deposit to end the argument.
On March 6, Mr. Excell was again managing the front desk at the Travelodge. At
around 6:30 p.m., Mr. Excell received a telephone call from Sharon Hockett in room 111.
Mr. Goodrum was in the room and had broken the toilet, so Ms. Hockett asked Mr. Excell
to come fix it. Mr. Excell left the office to go fix the toilet. Mr. Excell thought he would
only be gone for a short time, so he did not lock the door.
Shortly after the telephone call, surveillance video showed a man walk out of room
111 and ride away on a bicycle. In the video, the man was wearing a black and gray Fox-
brand sweatshirt, jeans, and black and white Nike shoes.
Moments later, Mr. Excell arrived at room 111 and knocked on the door. Only
Ms. Hockett was there. Mr. Excell looked inside the toilet tank and saw the chain
between the handle and the flapper had been disconnected. Mr. Excell hooked the chain
back up.
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As Mr. Excell was fixing the toilet, a person in a black and gray Fox sweatshirt,
jeans, and black and white Nike shoes entered the Travelodge office. The person had the
hood pulled over his or her head. The person approached the front desk, which was "L"
shaped and faced the corner of the room. The person walked behind the front desk area,
bent over behind the counter, and used a crowbar to pry open one of the drawers. The
person took a stack of cash from inside the drawer and walked out of the office.
On March 18, Mr. Excell was again managing the front desk at the Travelodge.
Around 9:30 p.m., a masked person wearing a black and gray Fox sweatshirt and black
and white Nike shoes walked in the door. The person pointed a handgun at Mr. Excell
and told him to hand over the money in the drawer. The robber's voice sounded familiar
to Mr. Excell, but he was unable to place it. Mr. Excell took the money from the drawer
and gave it to the person.
Mr. Excell thought about the incident over the next week and realized he
recognized the robber's voice from his earlier argument with Mr. Goodrum. Officer
Steve Dennis interviewed Mr. Goodrum. Another officer showed Mr. Goodrum a picture
from the March 6 surveillance video of the person outside room 111 wearing the black
and gray Fox sweatshirt. Mr. Goodrum admitted the person in the picture was him. The
police later obtained a search warrant and searched Mr. Goodrum's home. They found a
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used gun cleaning kit in Mr. Goodrum's bedroom. They also found Nike shoes and a
black and gray Fox sweatshirt in the house.
The State charged Mr. Goodrum with first degree robbery, second degree burglary,
and third degree theft. At trial, the State played the Travelodge' s surveillance videos for
the jury, which showed the incidents on March 6 and March 18.
In closing argument, the prosecutor noted the central question in the case was
whether Mr. Goodrum was the person in the surveillance videos. The prosecutor argued
it was Mr. Goodrum who burglarized the Travelodge on March 6 because Mr. Goodrum
later admitted he was outside room 111 that night, and the person who took the cash from
the drawer two minutes later was wearing the same exact clothing as Mr. Goodrum. The
prosecutor also argued it was Mr. Goodrum who robbed the Travelodge on March 18
because the robber again wore the same clothing and the police found a used gun cleaning
kit in Mr. Goodrum's house, which suggested Mr. Goodrum previously had a gun.
In the defense's closing argument, defense counsel implied Mr. Excell and Ms.
Hockett could have framed Mr. Goodrum. Defense counsel argued Mr. Excell could have
used his knowledge of the Travelodge surveillance system to make it appear Mr.
Goodrum was responsible for the crimes. Defense counsel suggested Mr. Excell may
have done this to retaliate against Mr. Goodrum for their argument over the damage
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State v. Goodrum
deposit. Defense counsel also argued Ms. Hockett, who was a drug addict and desperate
for money, could have conspired with another unknown person.
In rebuttal, the prosecutor argued it was unlikely that Mr. Excell and Ms. Hockett
framed Mr. Goodrum twice. The prosecutor later asked the jury to conclude Mr.
Goodrum was the burglar based on the physical evidence. He then stated, "There is no
other explanation, there is no reasonable doubt." Report of Proceedings (RP) (Aug. 12,
2015) at 127.
The prosecutor then re-outlined the evidence supporting the robbery charge. He
then stated, "There's a gun case for a gun that's never located but was seen during the
robbery, we see a gun. Mr. Goodrum has the-has a gun case." RP (Aug. 12, 2015) at
130. The prosecutor then concluded that Mr. Excell and Ms. Hockett did not know each
other, and there was "no evidence of any other suspects for the robbery." RP (Aug. 12,
2015) at 131. Defense counsel did not object to any of these statements.
The jury found Mr. Goodrum guilty as charged. At sentencing, the trial court
imposed a $500 victim assessment but struck all other fees and costs. Mr. Goodrum did
not object to the imposition of the victim assessment. Mr. Goodrum appeals.
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State v. Goodrum
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE FOR SECOND DEGREE BURGLARY
Mr. Goodrum argues insufficient evidence supports his conviction for second
degree burglary because the State failed to prove he entered or remained unlawfully in the
building. He argues the Travelodge hotel office was unlocked, open to the public, and no
one ever revoked his license to be there. Therefore, he argues, even if he intended to
commit a crime, his presence in the building was lawful.
When a defendant challenges the sufficiency of the evidence, the proper inquiry is
"whether, after viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences from the evidence
must be drawn in favor of the State and interpreted most strongly against the defendant."
Id.
A person commits second degree burglary "if, with intent to commit a crime
against a person or property therein, he or she enters or remains unlawfully in a building
other than a vehicle or a dwelling." RCW 9A.52.030(1). A person unlawfully enters or
remains in a building when he or she is not licensed, invited, or otherwise privileged to
enter or remain. Former RCW 9A.52.010(5) (2011).
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State v. Goodrum
"A license or privilege to enter or remain in a building which is only partly open to
the public is not a license or privilege to enter or remain in that part of a building which is
not open to the public." Id. Thus, a person still commits second degree burglary when he
or she initially enters a building lawfully, but then exceeds the scope of the implied or
express privilege by intruding into areas of the building not open to the public. State v.
Allen, 127 Wash. App. 125, 135, 110 P.3d 849 (2005). A trier of fact may infer limitations
on the scope of a person's privilege to be on the premises from the particular facts of the
case. State v. Collins, 110 Wash. 2d 253, 261-62, 751 P.2d 837 (1988).
For example, in Allen, the manager of a U.S. Bank branch-which was located on
the first floor of a high rise office building open to the public-saw Joel Allen walk out
of his personal office. Allen, 127 Wash. App. at 128. The manager went to his office and
discovered his wallet was missing. Id. The manager later saw Mr. Allen out on the
street, confronted him, and held him until police arrived. Id. at 128-29. The State
charged Mr. Allen with second degree burglary. Id. at 127.
The Allen court reversed Mr. Allen's convictions on other grounds, but
nevertheless held sufficient evidence supported his burglary conviction. Id. at 13 7. The
court acknowledged the office building was open to the public and, therefore, Mr. Allen
was initially privileged to enter. Id. However, the court noted Mr. Allen exceeded that
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State v. Goodrum
privilege when he entered the manager's office, which was physically separated from the
lobby and teller areas by a partial wall and a portion of the escalator. Id. at 138. The
court also noted the manager placed some chairs to create a narrow opening into his
office, which supported a reasonable inference that the office was not part of the public
area of the bank and that Mr. Allen exceeded the scope of any privilege by entering the
office. Id.
Here, the Travelodge office was unlocked and open to the public, and thus Mr.
Goodrum was initially privileged to enter. But as the surveillance video shows, the front
desk-which was in an "L" shape and facing the comer of the office-was plainly
reserved for Travelodge employees. Much like the chairs that left a narrow opening to
the manager's office in Allen, the narrow pathway leading behind the Travelodge front
desk supports a reasonable inference that this area was not part of the public area of the
office. Because Mr. Goodrum intruded into an area that was not open to the public, he
exceeded the scope of the implied privilege to be in the office.
Drawing all reasonable inferences in favor of the State, we conclude the evidence
was sufficient for a rational jury to find that Mr. Goodrum remained in the office
unlawfully. Accordingly, sufficient evidence supports his conviction for second degree
burglary.
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State v. Goodrum
B. PROSECUTOR'S COMMENTS IN REBUTTAL ARGUMENT
Mr. Goodrum argues the prosecutor committed misconduct during rebuttal by
shifting the burden of proof to him to prove his innocence. He also contends the
prosecutor improperly argued facts not in evidence.
The prosecutorial misconduct inquiry consists of two prongs: first, whether the
prosecutor's comments were improper and, if so, whether the improper comments caused
prejudice. State v. Lindsay, 180 Wn.2d 423,430, 326 P.3d 125 (2014). However, when
the defendant fails to object to the prosecutor's conduct or request a curative instruction
at trial-as is the case here-the misconduct is reversible error only if the defendant
shows the misconduct was so flagrant and ill-intentioned that an instruction could not
have cured the resulting prejudice. Id.
In the context of closing arguments, the prosecutor has "' wide latitude in making
arguments to the jury and prosecutors are allowed to draw reasonable inferences from the
evidence."' State v. Fisher, 165 Wn.2d 727,747,202 P.3d 937 (2009) (quoting State v.
Gregory, 158 Wash. 2d 759, 860, 147 P.3d 1201 (2006)). This court considers a
prosecutor's alleged improper conduct in the context of the total argument, the issues in
the case, the evidence addressed in the argument, and the jury instructions. State v.
Anderson, 153 Wn. App. 417,430, 220 P.3d 1273 (2009).
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No. 34972-1-111
State v. Goodrum
1. Alleged burden shifting
Mr. Goodrum argues several of the prosecutor's statements in rebuttal argument
shifted the burden of proof to the defense. He argues the remarks suggested he was guilty
because there was no evidence to prove his innocence.
The prosecutor may not shift the burden of proof to the defendant. In re Pers.
Restraint o/Glasmann, 175 Wash. 2d 696, 713, 286 P.3d 673 (2012). Because the
defendant has no duty to present evidence, it may be misconduct for a prosecutor to argue
that the defense did not call witnesses or explain the factual basis of the charges.
Anderson, 153 Wash. App. at 428; State v. Jackson, 150 Wn. App. 877,885,209 P.3d 553
(2009); see also State v. Blair, 117 Wash. 2d 479, 485-92, 816 P.2d 718 (1991) (holding a
prosecutor may comment on defendant's failure to call particular witnesses under the
missing witness doctrine). A prosecutor may not imply that a defendant is guilty because
he or she failed to explain the State's evidence. State v. Fleming, 83 Wash. App. 209, 215,
921 P.2d 1076 (1996).
For example, in Fleming, the prosecutor argued in closing that "'you ... would
expect and hope that if the defendants are suggesting there is a reasonable doubt, they
would explain some fundamental evidence in this [matter]. And several things, they
never explained."' Id. at 214 (emphasis omitted) (alterations in original). The prosecutor
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No. 34972-1-111
State v. Goodrum
then argued the defendants had not explained several pieces of the State's evidence, such
as how the alleged rape victim got scratched. Id. at 214-15. The prosecutor implied the
defendants had a duty to explain this evidence and, because they did not, they were guilty.
Id. at 215.
However, it is not misconduct for a prosecutor to argue that the evidence does not
support the defense theory. Lindsay, 180 Wash. 2d at 431; State v. Russell, 125 Wash. 2d 24,
87, 882 P.2d 747 (1994). The prosecutor, as an advocate, is entitled to make a fair
response to the arguments of defense counsel. Russell, 125 Wash. 2d at 87. Even if a
prosecutor's response is improper, this court will not reverse if the remarks were invited
or provoked by defense counsel, in reply to defense counsel's argument, pertinent, and
not incurably prejudicial. Id. at 86; State v. Thierry, 190 Wash. App. 680, 690, 360 P.3d
940 (2015), review denied, 185 Wash. 2d 1015, 368 P.3d 171 (2016).
Here, defense counsel implied Mr. Excell and Ms. Hockett could have framed Mr.
Goodrum, argued they both had motive to do so, and implied an unknown third person
could have helped. In rebuttal, the prosecutor responded that such a conspiracy was
unlikely, and then later re-outlined the evidence supporting the burglary charge:
We know that the guy outside 111 in the beginning is the Defendant. We
know because he told you. And we know, based on the physical evidence,
that it was the Defendant that burgled the place two minutes later. There is
no other explanation, there is no reasonable doubt.
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RP (Aug. 12, 2015) at 127 (emphasis added).
Mr. Goodrum argues the italicized remarks improperly shifted the burden of proof.
We disagree. The prosecutor did not imply Mr. Goodrum had a duty to explain the
State's evidence for the jury to acquit him. Rather, the prosecutor summarized the State's
evidence and argued that, in light of this evidence, there was no other explanation for the
crime. These comments were not improper.
The prosecutor concluded rebuttal by arguing:
There's no evidence here that says ... Excell knew Hockett. I mean,
there's just nothing. They-she said he didn't know her; he said she didn't
know him. They'd seen each other, but that's it. There's no evidence, and
there's no evidence of any other suspects for the robbery.
RP (Aug. 12, 2015) at 130-31 (emphasis added).
Mr. Goodrum argues the italicized remarks also improperly shifted the burden of
proof. Again, we disagree. Defense counsel argued in closing that another unknown
suspect could have conspired with Mr. Excell and Ms. Hockett to frame Mr. Goodrum.
The prosecutor was entitled to respond to this argument and argue the evidence did not
support this theory. The fact the prosecutor did not make similar statements in his initial
closing argument further demonstrates these remarks in rebuttal were merely a response
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State v. Goodrum
to the defense theory. See Thierry, 190 Wash. App. at 692. Accordingly, these comments
were not improper. 1
2. Alleged reference to facts not in evidence
Mr. Goodrum also contends the prosecutor improperly argued facts not in
evidence. He cites the prosecutor's reference to a "gun 'case,"' which the prosecutor
argued he possessed. Br. of Appellant at 21. He argues there was no evidence of a gun
case at trial.
It is improper for a prosecutor during closing argument to make statements or
submit to the jury facts that are not supported by the evidence. Glasmann, 175 Wash. 2d at
704-05; State v. Boehning, 127 Wash. App. 511, 519, 111 P.3d 899 (2005).
During trial, the State called a police officer who testified he found a used gun
cleaning kit in Mr. Goodrum's bedroom. The prosecutor argued in his initial closing
argument that this cleaning kit suggested Mr. Goodrum previously had a gun. The
prosecutor attempted to make this same reference during rebuttal argument, but called it a
"gun case" instead of a "gun cleaning kit." RP (Aug. 12, 2015) at 130. Although the
remark was a misstatement of the evidence, it was likely an unintentional misstatement.
1
Mr. Goodrum also cites the prosecutor's statement that Mr. Goodrum "should
probably 'buy a lottery ticket because he's used up a lifetime of bad luck to get all of
these coincidences.'" Br. of Appellant at 20. However, Mr. Goodrum does not explain
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State v. Goodrum
Had defense counsel objected, the prosecutor could have easily corrected the
misstatement. This isolated misstatement does not warrant reversal.
3. Ineffective assistance of counsel
Mr. Goodrum also argues defense counsel provided ineffective assistance because
he did not object to these comments or request a curative instruction. To succeed on an
ineffective assistance claim, the defendant must show both deficient performance and a
reasonable probability the attorney's conduct affected the case's outcome. State v. Benn,
120 Wash. 2d 631, 663, 845 P.2d 289 (1993).
Because the prosecutor did not shift the burden of proof to the defense, his remarks
were not improper and defense counsel did not perform deficiently by not objecting. See
State v. Larios-Lopez, 156 Wn. App. 257,262, 233 P.3d 899 (2010).
Even assuming defense counsel's failure to object to the prosecutor's "gun case"
remark was deficient, Mr. Goodrum fails to show prejudice. The jury was likely aware
the prosecutor was attempting to reiterate the same point from his initial closing argument
about the gun cleaning kit. There is no evidence the jury interpreted the "gun case"
statement as anything other than a simple misstatement. Mr. Goodrum's ineffective
assistance claim fails.
how this comment shifted the burden of proof.
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C. ALLEGED LFO ERROR
Mr. Goodrum argues the trial court erred in imposing the $500 victim assessment
without considering his ability to pay. He also argues the court erred because it did not
make any specific findings about his financial situation.
Mr. Goodrum did not object to the imposition of this LFO at the sentencing
hearing. He is, therefore, not entitled to appellate review as a matter of right. See State v.
Blazina, 182 Wash. 2d 827, 832-35, 344 P.3d 680 (2015). But even assuming he had
preserved the issue, his claim is meritless.
RCW 10.01.160(3) only requires the trial court to inquire into a defendant's ability
to pay before it imposes discretionary LFOs. E.g., State v. Shelton, 194 Wash. App. 660,
673, 378 P.3d 230 (2016), review denied, 187 Wash. 2d 1002, 386 P.3d 1088 (2017). The
$500 victim assessment is mandatory, and trial courts must impose it regardless of a
defendant's ability to pay. See, e.g., State v. Curry, 118 Wash. 2d 911, 917-18, 829 P.2d
166 (1992); State v. Mathers, 193 Wash. App. 913, 922-24, 376 P.3d 1163, review denied,
186 Wash. 2d 1015, 380 P.3d 482 (2016); Shelton, 194 Wash. App. at 673-74. Because the
trial court only imposed mandatory LFOs, it was not required to consider Mr. Goodrum's
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No. 34972-1-111
State v. Goodrum
ability to pay, nor was it required to make findings about his financial situation. 2
D. APPELLATE COSTS
Mr. Goodrum argues that this court should not presumptively impose appellate
costs against indigent defendants who lose on appeal and then require those defendants to
rebut that presumption. He also argues this court "cannot impose costs on appeal unless it
considered the appellant's actual ability to pay." Br. of Appellant at 34.
An appellate court has discretion to require a convicted defendant to pay appellate
costs to the State. See RCW 10.73.160(1); RAP 14.2. Generally, "the party that
substantially prevails on review" will be awarded appellate costs, unless the court directs
otherwise in its decision terminating review. 3 RAP 14.2. An appellate court's authority
2
Trial courts are not required to enter formal findings regarding a defendant's
ability to pay court costs. See Curry, 118 Wash. 2d at 914-16. Citing State v. Duncan, 185
Wash. 2d 430, 374 P.3d 83 (2016), Mr. Goodrum appears to argue that trial courts are
required to make findings regarding a defendant's ability to pay before imposing
mandatory LFOs. The only relevant portion of Duncan is where the court states "[t]he
constitution does not require that the trial court enter formal findings, though of course it
is a good practice and helpful on review." Id. at 436-37. Duncan does not help Mr.
Goodrum because (1) it still does not require findings, and (2) Mr. Goodrum is not
asserting a constitutional claim that he is being sanctioned for nonwillful failure to pay,
but a statutory claim that the trial court violated RCW 10.01.160(3) in imposing the LFO.
3"A 'prevailing party' is any party that receives some judgment in its favor."
Guillen v. Contreras, 169 Wash. 2d 769, 775, 238 P.3d 1168 (2010). "If neither party
completely prevails, the court must decide which, if either, substantially prevailed." Id.
Here, the State is the substantially prevailing party.
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State v. Goodrum
to award costs is "permissive," and a court may, pursuant to RAP 14.2, decline to award
costs at all. See State v. Nolan, 141 Wn.2d 620,628, 8 P.3d 300 (2000).
Unlike RCW 10.01.160(3), which was at issue in Blazina, 182 Wash. 2d 827, the
statute authorizing appellate costs does not require an inquiry into the defendant's
financial resources before appellate costs are imposed. See RCW 10.73.160; State v.
Sinclair, 192 Wn. App. 380,389,367 P.3d 612, review denied, 185 Wash. 2d 1034, 377
P.3d 733 (2016) (noting that while ability to pay is an important factor that may be
considered under RCW 10.73.160, it is not necessarily the only relevant factor, nor is it
necessarily an indispensable factor); State v. Wright, 97 Wash. App. 382, 384, 985 P.2d 411
(1999) (finding that RCW 10.73.160 only requires an inquiry into ability to pay at the
point of collection and not when the recoupment order is made).
Because this court's authority to award appellate costs is permissive and
discretionary, this court does not presumptively impose appellate costs against defendants.
Rather, the court determines which party substantially prevailed, considers the
appropriate factors, and exercises its discretion.
Mr. Goodrum also argues that this court may not constitutionally impose appellate
costs unless it considers the appellant's actual ability to pay. Our Supreme Court
expressly rejected this argument in State v. Blank, 131 Wn.2d 230,930 P.2d 1213 (1997).
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There, the court considered "whether, prior to including a repayment obligation in
defendant's judgment and sentence, it is constitutionally necessary that there be an inquiry
into the defendant's ability to pay, his or her financial resources, and whether there is no
likelihood that defendant's indigency will end." Id. at 239. The Blank court held the
constitution does not require an inquiry into ability to pay at the time the costs are
imposed. Id. at 242. "Instead, the relevant time is the point of collection and when
sanctions are sought for nonpayment." Id. "If at that time defendant is unable to pay
through no fault of his own, ... constitutional fairness principles are implicated." Id.
Because Mr. Goodrum is not yet faced with the alternatives of payment or
imprisonment, his constitutional objection to appellate costs on the grounds of indigency
is premature. Mr. Goodrum acknowledges Blank, but argues our Supreme Court cast
doubt on Blank's continuing validity when it decided Blazina, 182 Wash. 2d 827. However,
our Supreme Court decided Blazina solely on statutory grounds. See id. at 839. Blazina
has no bearing on the constitutionality of Washington's appellate cost scheme.
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Under ordinary circumstances, Division Three's June 2016 "General Order" would
dictate the outcome of Mr. Goodrum's request to deny the State appellate costs. 4
However, this case was originally assigned to Division Two. It was transferred to this
division pursuant to RCW 2.06.040, RAP 4.4, and CAR 2l(a) after briefing was
complete. 5 Because the Division Three General Order sets forth various requirements
and deadlines for criminal appellants during the briefing process, we decline to require
Mr. Goodrum to strictly comply with the General Order.
Division Two of this court generally exercises its discretion to waive appellate
costs when the trial court has previously found the defendant indigent, reasoning that
under RAP 15.2(f), appellate courts presume a defendant's indigence throughout review
unless the court finds the defendant's financial situation has improved. E.g., State v.
Hart, 195 Wn. App. 449,463, 381 P.3d 142 (2016), review denied, 187 Wash. 2d 1011, 388
4
The General Order directs defendants who want this court to exercise its
discretion not to impose appellate costs to make their requests either in their opening
briefs or in a RAP 17 motion, which must be filed within 60 days after the defendant's
opening brief. If a defendant alleges inability to pay as a factor supporting his or her
request, the order also requires the defendant to designate evidence relating to the trial
court's determination of indigency and the defendant's current or likely ability to pay
discretionary LFOs. It also requires defendants to file a report as to continued indigency
with this court no later than 60 days after they file their opening briefs.
5
These provisions are all silent as to whether the transferee division may apply its
own general orders to the transferred cases.
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P .3d 480 (2017). Here, the trial court found Mr. Goodrum indigent for purposes of
appeal. Because the parties had no control over the fact this case was transferred to
Division Three, we exercise our discretion consistent with Division Two's policy and
waive appellate costs in this matter.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
A defendant is permitted to file a prose SAG in a criminal case on direct appeal.
RAP 10.lO(a). This statement is not required to cite authorities or to the record itself, but
must have sufficient specificity to inform the court of the "nature and occurrence" of
specified errors. RAP 10.lO(c). The SAG must not rely on matters outside the record.
State v. McFarland, 127 Wn.2d 322,338,899 P.2d 1251 (1995).
In his SAG, Mr. Goodrum argues he received ineffective assistance of counsel,
alleged additional instances of prosecutorial misconduct, and argues cumulative error
deprived him of a fair trial.
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Goodrum first argues he received ineffective assistance because trial counsel
failed to call additional witnesses to support his alibi defense. However, there is nothing
in the record on appeal regarding what information these unknown witnesses could have
supplied, whether they would have testified, if counsel knew about them, and ifhe did,
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No. 34972-1-III
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why he declined to call them. 6 Because the record is inadequate to determine whether
trial counsel's failure to call these witnesses was deficient or prejudicial, this court cannot
consider this issue on direct review. See McFarland, 127 Wash. 2d at 337-38. The
appropriate means of raising this issue is through a personal restraint petition. Id. at 335.
Mr. Goodrum also argues he received ineffective assistance because trial counsel
was unable to operate the courtroom audio-visual equipment. He argues this affected
counsel's ability to argue he was not the same height as the burglar or robber. The record
demonstrates trial counsel had some initial trouble with the courtroom audio-visual
equipment, but was eventually able to operate it after the prosecutor assisted him. See
RP (Aug. 12, 2015) at 117-18.
Mr. Goodrum also argues trial counsel failed to adequately address the fact Ms.
Hockett used heroin prior to testifying. Ms. Hockett testified she had been an addict for
eight or nine years, had used heroin earlier that day, and if she had not used heroin she
would have been sick and would have been "no good" as a witness. RP (Aug. 12, 2015)
at 22. The prosecutor asked if she had any trouble focusing, and Ms. Hockett responded
she was nervous but it had nothing to do with her heroin use. Rather than focusing his
6
Mr. Goodrum names his mother as one of these potential witnesses, but does not
specify who the others are.
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cross-examination on Ms. Hockett's drug use that day, defense counsel instead focused
on whether Ms. Hockett remembered what happened on March 6. This was not deficient
performance.
Finally, Mr. Goodrum argues he received ineffective assistance because trial
counsel failed to address the fact that Mr. Excell recognized the robber's voice from his
earlier argument with Mr. Goodrum. But because this was particularly unfavorable
evidence to Mr. Goodrum, trial counsel may have not wanted to highlight it. See Benn,
120 Wash. 2d at 665 (defense counsel does not perform deficiently if his or her trial conduct
can be characterized as legitimate trial strategy or tactic).
We conclude Mr. Goodrum did not receive ineffective assistance of counsel.
B. PROSECUTORIAL MISCONDUCT
Mr. Goodrum argues the prosecutor committed misconduct by vouching for Ms.
Hockett's credibility in closing argument. A prosecutor cannot express a personal
opinion as to a defendant's guilt or a witness's credibility, independent of the evidence
actually in the case. Lindsay, 180 Wash. 2d at 437; Glasmann, 175 Wash. 2d at 706. But a
prosecutor may draw inferences from the evidence as to why the jury would want to
believe one witness over another. State v. Brett, 126 Wash. 2d 136, 175, 892 P.2d 29
(1995).
22
No. 34972-1-111
State v. Goodrum
In summarizing the evidence, the prosecutor referenced Ms. Hackett's testimony
that Mr. Goodrum was in room 111 on March 6. The prosecutor then stated, "[I]t's up to
[the jury] to decide if she was telling the truth." RP (Aug. 12, 2015) at 109. The
prosecutor then implied Ms. Hackett's testimony was believable because she had testified
about some embarrassing information. This was not improper. The prosecutor correctly
informed the jury that its role was to determine whether Ms. Hockett testified truthfully,
and then drew an inference from the evidence as to why the jury should believe her.
Mr. Goodrum also contends the prosecutor misstated the facts when he argued that
Mr. Goodrum confessed to the crime. However, the prosecutor did not argue Mr.
Goodrum confessed to the crime. Rather, the prosecutor's remarks referenced Mr.
Goodrum's admission to Officer Steve Dennis that he was the individual in the black and
gray Fox sweatshirt outside room 111 on March 6. See RP (Aug. 11, 2015) at 151; RP
(Aug. 12, 2015) at 99, 110.
Mr. Goodrum also contends the prosecutor misstated the facts when he argued that
Mr. Goodrum broke the toilet in room 111. However, Officer Dennis testified that Mr.
Goodrum admitted he broke the toilet. See RP (Aug. 11, 2015) at 151.
23
No. 34972-1-111
State v. Goodrum
Mr. Goodrum finally contends the prosecutor committed misconduct when he
argued the Nike shoes the police found in Mr. Goodrum's house were the same shoes
from the surveillance videos, when they were actually different shoes. This was not the
prosecutor's argument. Rather, the prosecutor, who was playing the video footage for the
jury, argued the shoes Mr. Goodrum wore outside room 111 matched the burglar's shoes,
and these also matched the robber's shoes. See RP (Aug. 12, 2015) at 101, 106, 109.
C. CUMULATIVE ERROR
Mr. Goodrum argues his conviction should be reversed based on cumulative error.
The cumulative error doctrine applies if there were several trial errors, none of which
standing alone is sufficient to warrant reversal, that when combined may have denied the
defendant a fair trial. State v. Greif!, 141 Wash. 2d 910, 929, 10 P.3d 390 (2000). Here,
there were not multiple errors and, therefore, there was no cumulative error.
Affirmed.
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.
j
24
No. 34972-1-III
State v. Goodrum
WE CONCUR:
Fearing, C.
25