State Of Washington v. Thomas Joseph Feely , 192 Wash. App. 751 ( 2016 )

|N THE COURT OF APPEALS OF THE STATE OF VVASH{NGTON
DIV|S|ON ONE
STATE OF WASH!NGTON, No. 72450-9-|
Responc|ent,
THOMAS JOSEF'H FEELY, PUBLISHED OP|N|ON
Appeliant. F|LED: February 22, 2016
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VERELLEN, J. - Under RCW 9.94.@\.834, a trial court may impose an
endangerment enhancement for the crime of attempting to elude a pursuing police
vehicle when "one or more persons other than the defendant or the pursuing iaw
enforcement officer" were endangered by the actions of the defendant during the
commission of the crime We conciude the plain meaning of the enhancement extends
to endangering officers who were not following the defendant. Therefore, we reject
Feely’s claim of prosecutorial misconduct for arguing to the jury that officers who
deployed spike strips were endangered by his driving
Feely‘s other ciaims of prosecutorial misconduct also fail because he does not
show the challenged statements when viewed in context, resulted in prejudice And
because he does not show prejudice from these statements his attorney’s failure to
object does not support a claim for ineffective assistance of counsei. We affirrn.
No. 72450~9~|!2
FACTS
Shortiy after midrright, Trooper Travis i_ipiorr was parked in an unmarked vehicle
on the shoulder of the northbound onrarnp to interstate 5. A pickup truck driven by
``i'homas Feeiy passed very' close to Trooper i_ipton’s car while merging onto the
freeway. Trooper Lipion observed the truck drift into the left lane before returning to the
right lane He followed Feely.
Cirice Troczper i_ipioh caught up to Feeiy, he stained his cars audio and video
recording sysiem. l~ie observed Feeiy drift "i:rack and forth within the right lane
contirruously,” and cross the fog lime and the "cehter skip iine” dividing the train lanes.i
After Feeiy failed to signal a lane change, Trooper Liptoh activated his siren and
emergency lighis.
F'eeiy continued northbc)uhd. Tror;rper Lipton advised dispatch of Feeiy’s failure
to stop. Feely took the heart exist and ran the stop sign at the top of tire exit rarnp. i=eeiy
continued on the two»~larre road, greatly exceeding the speed limit and drifting “over ohio
the oncoming lane frequerrtly.”? He bypassed two cam ihai slowed or stopped as a
result "l"rooper Lipic)h requested dispatch contact other troopers to cieploy spike sirips.
Pizlice set cip a spike strip, but Feely went around ii. Sergearii larry Fiynn set up
arrc)ther spike sirip, Feeiy attempted to drive around ii hut “immediaieiy locked up" his
brakes$‘ lie "s|i¢:l almost the whole way” towards Sergeant Fiynn and stopped just short
of where Sergearrt Flynri was siahciirig,‘* Feely then "star’red to jerk forrvard” towards
1 Fiepor‘i of Proceedings (F{P} (July 28, .?O‘i¢i) €-.\159, 62.
3 i;'i,; at 63.
3 RP r.ruiy 29, 2014) ar 134
"’ 34
NO. ?2450~9-|!11
any sounds corning from any other dlrecrllon."*“ Moreo~rer, poiice riogs, who arrived
within five minutes of finding Feely’s trucl<, were able to locate him hiding nearby in a
tree, Tiiese dogs led the officers in the same tree. Feely smelled of alcohol, and
several hours after the ihciderrh had a blood alc:ohc:il level of O.‘l$. The only elemental
issue at trial was ideniity. Gi~ren the muiiipie, corroborating facts identifying Feeiy as
the driver of the iruck, compelling evidence supports his convictions.
Feeiy relies on S‘tate v. .lohnson, where, even absent an objeciion, tire court
concluded fha proseciilor's misstatements were flagrant and ill iriieritioned and required
reversal,$'”' But in _._l_c_)jisq§gi_, fine prosecutor used a puzzle analogy to explain line "ahiciing
belief" requirement of the reasonable doubt standard.$§ ``li``he prosec.utor further stated
that to “l:)e able ic find reason to cioulzi, you have to )?f! in the biarrir, that’s your iob."$g
The court held the prosecutors statements improperly "trivialized the Stai:e’s
hurcien, focused on the degree of certainty the jurors needed to aci, and implied that the
jury had a duty to convict without a reason not to do sc).”"*"
Feely argues the prosecutors minimization of the Staie’s burden of proof here is
analogous to the prosecutors improper statements in _.l;g_l__r_r_iL. Bui the prosecutor here
never implied the jury had a duty to convict without a reason to do so or ever suggested
that the burden of proof shifted in F-'eely. in context of the total cir:isirig argurnent, we
conclude the presecuior did net tri\.riaiize the State’s burclen.
ii nn r.iuiy 2a 2@14)3183,
37 158 Wn. App. 67``?', 635-86, 243 P.Sd 936 (2010).
33 i§; at 682
3§ § (emphasis addecl).
49 § all 685.
11
Nn. 72450~§-!!12
Because Feely did not object at trial and fails to establish any resulting preiuclice,
his claim fails,
c:. Argurrient about Priur Ot‘fenses as li.iloiive in Flee
Feely cuniends the prosecutor violated the trial cciuri’s limiting instruction when
he argued the jury could consider Feely"s stipulated prior Dllls nut only to prove he had
prior qualifying convictions elevating the Dl.ll to a feinny, bur also to pircnre he had a
"‘mntive to flee."’*'*
l~lere, Feely requested and renewed a limiting instruction under ER 404(!)):
Evidence of other crimes which occurred prior to April Q‘th, 20'¥4
may only be considered ¥or fire limited purpose of determining whether ivlr.
F~'eely has the requisite prior conx<'ir:tions in make this case a felony DlJl.
The evidence is not in be used or considered for the purpose of proving
the character ci n person in order in show that the person acted in
conformity with that character.l‘l"i?l
During the prosecuior’s rebuttal closing nrgurnent, he arguecl:
Well, hir. Feely has the four priors, we know that, four prior DUls.
You can’t use ihat, you cannot use that to say that because he was
convicted four times of driving under the influerice, he must have been
driving under the influence this iime. lt’s not a characier thing. You can’i
do that
But whai; you can do is use that for another purpose, the element of
the nffense, a felony Di.lll,] and rnutive, would somebody who is driving
runcler the influence want to be caught having four prior Dl.ll conviutions?
Df course nut. Ancl ihat gives him a motive to flee police, and to do so in a
very dangerous, reckless rnannnr. and thnt’s what you see nn that viueo,
what other motive would he have to flee 'ilhe police il he was jus“i, if he
wasn’t the driver? Because when you flee [in} that *iruck, you sure look like
you’re the driver at that p:)init, uon’t you?i"``il
‘*l Appellant’s Br. at 26.
43 GP at 35 (emphasis added).
43 RP (.luly SU, 2014) at 484-85,
’l2
No. ?2450-9~!!1 3
Defense counsel did not object during argi.iment.
When a trial court has ruled in a motion in limine that evidence of prior
convictions are limited to prnving only the fact of prior convictions and when the express
limiting instruction given by tire court allows that evidence "only’* as prcof of prior
convictions, ii the State wants to use the evidence for another ER 404»(&)} purpose, then
it must ask the trial court for such a ruling."‘i Here, the prosecutors argument is
inconsistent with the courts instruction that the evidence could "oniy be considered for
ina limited prrr;)ose“ of determining whether Feely had the requisite prior convictions to
make the case a felony DUl, and therefore is irrrprnper.
But because Feely fails in show resulting prejudice in view of the compelling
evidence of his guilt noted anove, his claim fails,
il, ll\iEFFEC'l"iVE ASSlSTANCE C>F CUUNSEL
in the al|ternativei Feely argues ne was denied effective aegis/tamm because
defense counsel failed to object to the prosecutors closing arguments We disagree
We review ineffective assistance claims de novo.’i‘$ Tr) establish an ineffective
assistance clairn, a defendant must snow det"cnient performance and resnlting
prejunice.‘*$
44 §§q Staie v. Fisher_, 165 Wn.?d 72?1 '?48»49, 202 P.3cl 937 (2009) (holding
where a trial court expressly conditions the admission of evidence of physical abuse on
defense connsel’s making an issue of molestation victim``s deiay in reporting the
proser:.utnr’s preemptive introduction of that evidence contravened line courts pretrial
ruling and the requirements of ER 404(£))).
"``“5 Staie ir. Suil'i§_ri;y, 165 Wn£d 870, 833, 204 P.Sd 916 (20{)9),
46 Sirickland v. Wa$i','tingti’;)n, 466 U,S. 6§8, 65?, 104 S. Ci, 2652, 80 L, Ed, 2d
6``?4 {1984); Siaie ¥r. Nichola, ‘l@“l Wn.?€i ’l, 8, 1642 F’.Sd ”|1122 (2007}.
‘i3
Noi 72450-9~i!14
Counsei’s performance is detic:ient if it falls "below an objective standard of
reasonableness."t? To establish deficient neriorrnanne, the defendant must show the
absence cit any “conneizrabie iegitimate tac:tic” supporting cnnnsel’s action."e We
strongly presume nol.insel’s pertnrrnanr:»e was reasnnabiett@
Tn establish nrejudice, the defendant must show there is a reasonable probability
that but for the deficient perinnnance, the outcome wonid have been differentt§’° “‘A
reasnnable probability is a probability sufficient to undermine coniicience in the
outcome.Ҥ" Fnilr.ire to establish either prong ot the test is fatal to an ineffective
assistance ot counsel claim.§'z
Becauae the prosecntnr’s argument about the endangerment enhancement was
not improner, defense oonnsei‘s perforrnanne was not cletir;ient. Even assuming
deficient performance as to the prosec;ntor’s two other argurnents, Feely faiis to show
that the arguments themselves prejudiced hirn, and thereiore, he does not show
prejudice from defense cnunnel’s failure to object
l|l. EXCEPTEONAL SENTENCE
At sentencing Feely had an offender score ct 14 for each count The trial court
imposed the 'i2 month and one day endangerment enhancement to increase the base
sentence int the attempting to elude conviction. lt also imposed consecutive sentences
ii State va Townsend 142 Wn,Zcl 838, 843-44, 15 P.Sd 145(211}01),
43 State v. Reicl‘ienbach, 153 Wn.zd 126, tSG, "l@'i P.Scl 80(21)04).
49 Striclr'.lahd 436 U.S. at 69(3; State v. i‘incFar’|arid 1237 Wn.‘é."d 322, 335, 899 P.Zd
1251 {1995).
59 Nichols, 161 Wn£d at 8.
51 Strickland, 466 U.S. at 694
52 _I_,r_;l_; at ?00.
14
No. 72450-9-|/15
for the attempting to eiude and felony DU| convictions Feeiy contends the court
exceeded its authority in imposing the exceptional sentence l-le focuses upon the trial
court’s oral comments that it was concerned that the endangerment enhancement
would not have any impact on his punishment
To reverse an exceptional sentence, we must deten'nine whether
(‘l) under a clearly erroneous standard, there is insufficient evidence in the
record to support the reasons for imposing an exceptional sentence;
(2) under a de novo standard, the reasons supplied by the sentencing
court do not justify a departure from the standard range; or (3) under an
abuse of discretion stanciard, the sentence is clearly excessive or clearly
too lenient.f§i"i
We review Feely’s challenge to the trial court’s reasons for imposing an exceptional
sentence de novo.S"
We conclude the trial court properly imposed an exceptional sentence based on
Fee|y‘s high offender score. A trial court may impose a consecutive sentence when it
finds that the “defendant has committed multiple current offenses and the defendants
high offender score results in some of the current offenses going unpunished."~"§ These
are referred to as "free crimes."§@ Hare, the court imposed consecutive sentences
based on the free-crimes principle.§? The trial court's written findings of fact expressly
53 , 176 Wash. App. 463, 469, 308 P.3d 812 (2013};
P.CW 9.94)5\.585(4)§ S'tate V. LBW, 154 Wash. 2d 85, 93, 110 F’.?)d 717 (2005).
54 France, 176 Wn. App. at 469
55 RCW 9.94»&.535(2)(0).
55 France, 1?6 Wh. App. at 468.
57 “Consecutive sentences may only be imposed under the exceptional sentence
provisions of RCW 9.94A.535.” RCW 9.94#..589(1)(3).
15
No. 72450-9-|!16
state that “the defendant has committed multiple current offenses and the defendants
high offender score results in some of the current offenses going unpunished."§a
Under the Sentencing Reforrn Act of 198“1, chapter 9.94A RCW, the sentencing
range increases based on the defendants offender score, up to a score of 9.59 Based
on Feely’s offender score of 14 for each count, he faced a SO-rnonth sentence for the
felony DU| conviction alone. Therefore, any sentence for eluding, with or without the
endangerment enhancement, would have been subsumed.
Accordingly, we conclude the trial court did not exceed its authority in sentencing
Fee|y to consecutive terms Even though the court referred to the endangerment
enhancement it is clear the court considered that "there’s no benefit to the community”
by a concurrent sentence.€@ And Feely cites no authority to support his assertion that a
court may not take a sentencing enhancement into account when imposing consecutive
sentences
lV. STATEMENT OF ADDlTlONAL GROUNDS FC)R REV|EW
in his statement of additional grounds, Fee|y argues his counsel was ineffective
when she failed to interview the State’s expert on dog traclting. Failure to investigate or
interview witnesses may support an ineffective assistance c|aim.*"‘ But Feely’s counsel
thoroughly cross-examined and recross-examined the State’s expert Even assuming
deficient performance Feeiy fails to establish prejudice in view of the compelling
evidence of his guilt
53 CP at 76.
59 RCW 9.94A,510.
60 RP (Aug. '18, 20‘|4) at 25,
51 State v. Ftay_, 116 Wn.2d 53‘|, 548, 806 P.Zd 1220 (1991).
16
N0. 72450-9-|/17
Feely also argues the prosecutor committed misconduct during closing argument
by playing the State's video evidence and improperly commenting on the evidence For
example the prosecutor made a comment that something had been thrown out of
Feely's truck during the pursuit The prosecutor continued, "|t takes a little while to see
it, but when you’re tacking at it, you can see it going out the driver‘s side window and go
over to the right, indicating that there’s nobody in that right passenger seat.”@@ Defense
counsel objected arguing the prosecutors comment was "a misstatement of what the
facts show."€i* The trial court instructed the jury that the prosecutor could not ask them
"to speculate about what they might have seen here" but that they could "see the video"
and "rnal168 P.3d 359 (2007).
" Appellant’s Br. at 16.
No. 72450»9»1!5
30 the question becomes who is endnngered? Weli, certainly
[Feely] was endangering himself. Cenniniy he was endangering Trooper
Lipinn, and perhaps during a pari of that, he was endangering Oiiioer
Pike, because Oi"iicer Pike was behind l.ipton and suddenly found a tire
coming his wny, nut inosn rrnufd nor qna!ify for you in answer yes,
because ;``f’s a pursuing oiiicer or a defendant ii has in be someone erisa
inni"s in danger.
C)f nnurse, there were other people out on the rnad. Ynu can count
them Tnere’s l think three or four vehiciesi Sorne that pulled over, Snrne
were driving by at various pnints, but certainly nn Kickerrille, . . , he comes
to a prince where, i.ininrtunately, time vehicles driving in opposite directions
are in the same place, . . . ivir. Feely has to dart ihrc)i.igh, between the tina
of thern. 80 thnse, those individuals are, certainly could, you could find
that thny’re» endangered by the driving of lv‘lr. Feely nn that night
Other nossil:»iiities, you ln 153 Wn. App. ¢'i‘l?, 43‘§, 226 P.Bd 1273 (2$09)),
22 §_e_@_ Sta’ce *.r. F"‘irtie, 'l2? Wn.?d 628, 657~58, 934 P,Zd 245 (‘1995); see also
Staie V. Osmal'i, ll\|o. 7‘l844-4-l, 2916 WL 293802, itt "7 (Wasi't. Ct. App. Jari. 2.5, 2@16),
No. 72450~9~»1!8
Feeiy contends the prosecutor “trivialized and ultimately failed to convey the
gravity" of the State’s burden of proof “in arguing the jury had to convict if it ‘i940 P.2d 1239 (1997)).
26 l_cl_. ai rst (quoting state v. Thorgersan, 172 vvn.zd 433, 455_ 253 P_sd 43
(2011)).
27 j_c_:l_._ at 763; accord State v. Smith, 144 Wash. 2d 665, 679, 30 P.Sd 1245, 39 P.3d
294 (2001) (“Some improper prosecutorial remarks can touch on a constitutional right
but still be curabie."); see also State v. Warren, 165 Wash. 2d 17, 28, 195 P.Sd 940 (2008)
(prosecutor’s flagrantiy improper comments in closing argument undermining the
No, 72450»9~|!9
Senoncl, Feely cannot show a substantial likelihood that the statements affected
the jury’s verclict. in analyzing the prejudicial effect of n prosecutors improper
oc>rnments, we do not look at the comments in isolation but in the context of the total
argument the issues in the case, the evidenee§ and the instructions given to the lury,@@
immediately following the staternents, the prosecutor accurately restated the
reasonable doubt standard;
if you all know the Detenclant committed n crime, and committed all cit the,
or all of the elements are proven, then you are convinced beyond a
reasonable dnuht. lt’s not just that l knew that it happeneci, cr l knew that
he was guilty. 50 think about [i"c] in those terms.iz@i
Tal