Personal Restraint Petition Of Robert Nicholas Pounds ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal Restraint ) No. 81122-3-I
of )
)
ROBERT NICHOLAS POUNDS, ) UNPUBLISHED OPINION
)
Petitioner. )
BOWMAN, J. — Robert Nicholas Pounds seeks relief through this personal
restraint petition (PRP) from his convictions of one count of firearm theft and one
count of unlawful firearm possession. He claims he suffered prejudice when the
trial court erroneously denied his pretrial suppression motion and committed
several errors during the bifurcated jury trial. In the alternative, he contends his
trial and appellate attorneys provided ineffective assistance of counsel. We
disagree and deny the petition.
FACTS
On June 5, 2017 at 1:58 p.m., Huong Vuong called 911 to report a
burglary at her neighbor William Hansen’s house. Police responded within fifteen
minutes and questioned the two people they found in the home, Pounds and
Kimberly Ausbun. Ausbun told officers she knew Hansen and had permission to
be in his home. Pounds told officers he was only there to “work on Kimberly’s
car.” Hansen arrived shortly after police and confirmed Ausbun had permission
to be there. He also told them he did not believe any crime had been committed
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81122-3-I/2
so the officers left the scene. Pounds and Ausbun also left, driving a red Ford
minivan. Twenty minutes later, Hansen called 911 to report his gun safe had
been broken into and several of his guns were missing.
About two hours later, police responded to the scene of an abandoned
black Toyota Celica in a driveway a few miles away from Hansen’s home.
Witnesses told police that a woman recently left it there. When police searched
the car, they found three handguns, including a Colt .22 revolver registered to
Hansen. Vuong identified the Celica as the car she saw Ausbun “come from”
when it was parked at Hansen’s house a few days before the robbery. Hansen
eventually identified all three of the revolvers found in the Celica as his property.
A few days later, Detective Benjamin Wheeler began investigating the gun
theft. The detective knew both Pounds and Ausbun from prior police contacts.
During his investigation, Detective Wheeler spoke with Vuong. She described
seeing Pounds and Ausbun acting suspiciously at Hansen’s house while Hansen
was gone. She told the detective she called 911 after she watched Pounds carry
a “cumbersome load” to the red minivan. Pounds put “a number of long items” in
the van that appeared to be “three to four feet long, . . . wrapped in a blanket.”
Pounds and Ausbun then left the property together in the red minivan. Detective
Wheeler also spoke with Hansen, who confirmed no one had permission to take
his guns. Hansen’s descriptions of the stolen guns and rifles matched the “size
and length” of the items Vuong saw Pounds carrying from Hansen’s house to the
minivan.
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No. 81122-3-I/3
On June 13, 2017, Detective Wheeler and Detective Sergeant Scott Dery
went looking for Pounds so they could arrest him for gun theft, unlawful
possession of a firearm,1 and possibly burglary. They found the red minivan
parked near a local business but before they could detain him, Pounds drove
away. After a short distance, Pounds turned around and drove back toward the
officers, who activated their emergency lights and “blocked him” with their
unmarked patrol car. They arrested Pounds, placed him in handcuffs, and
searched him incident to arrest. Officers recovered a .22 caliber “rimfire round”
in Pounds’ pants pocket. Detective Wheeler saw Ausbun walking nearby during
Pounds’ arrest.
Police later obtained a search warrant for the minivan and discovered a
“military style” ammunition box, gun cleaning kits, and a yellow reflective vest in
the van. Officers saw a handgun sitting on top of the vest and found two loaded
handgun magazines inside a pocket. They found Pounds’ identification card in
the other vest pocket. Hansen later identified as his property the ammunition
box, cleaning kits, handgun, and two magazines that officers found in the
minivan.
The State charged Pounds with one count of first degree unlawful
possession of a firearm and one count of theft of a firearm. A jury convicted
Pounds of both counts in a bifurcated trial.2 On direct appeal, Pounds’ appellate
counsel challenged only the sufficiency of the evidence to support the
1
Detective Wheeler confirmed Pounds was a felon not allowed to possess firearms.
2
In phase I, the jury issued a verdict on count 2, theft of a firearm. In phase II, the jury
issued its verdict on count 1, unlawful possession of a firearm.
3
No. 81122-3-I/4
convictions. In an unpublished decision, we affirmed Pounds’ convictions.3
Pounds timely filed this PRP.
ANALYSIS
Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173
Wn.2d 123, 132, 267 P.3d 324 (2011). To obtain relief, a petitioner must show
(1) that he was actually and substantially prejudiced by a violation of
constitutional rights or (2) that his trial suffered from a nonconstitutional defect
that inherently led to a complete miscarriage of justice. Coats, 173 Wn.2d at
132; In re Pers. Restraint Petition of Brett, 142 Wn.2d 868, 874, 16 P.3d 601(2001). The petitioner may not rely on bald assertions or conclusory allegations.
In re Pers. Restraint Petition of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).
Rather, he must show by a preponderance of the evidence that the error caused
him actual prejudice. In re Pers. Restraint Petition of Cook, 114 Wn.2d 802, 814,
792 P.2d 506 (1990).
Pounds argues the trial court erred by denying his motion to suppress
evidence seized as a result of his unlawful arrest, admitting recordings of jail calls
as evidence, refusing to grant his motion for a mistrial, and refusing to
adequately clarify a jury question. Pounds also asserts ineffective assistance of
both trial and appellate counsel. We address each claim of error in turn.
3
State v. Pounds, No. 77863-3-I (Wash. Ct. App. June 10, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/778633.pdf, review denied, 194 Wn.2d 1003, 451 P.3d
325 (Nov. 6, 2019).
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Probable Cause To Arrest
Pounds argues the trial court erred when it refused to suppress evidence
seized as a result of his unlawful arrest. He contends Detective Wheeler lacked
probable cause to arrest him without a warrant. We disagree.
We review the trial court’s conclusions of law on a motion to suppress de
novo and the findings of fact used to support those conclusions for substantial
evidence. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
Substantial evidence means enough evidence to persuade a fair-minded rational
person of the truth of the finding. State v. Allen, 138 Wn. App. 463, 468, 157
P.3d 893 (2007). We treat unchallenged findings as verities on appeal. Allen,
138 Wn. App. at 468.4
Probable cause must support a physical arrest. Dunaway v. New York,
442 U.S. 200, 213, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979). Probable cause
exists “when the arresting officer is aware of facts or circumstances” sufficient to
cause a reasonable officer to believe a person has committed a crime. State v.
Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004). We use an objective standard to
determine whether probable cause supports an arrest. Gaddy, 152 Wn.2d at 70
(citing State v. Graham, 130 Wn. 2d 711, 724, 927 P.2d 227 (1996)). It is not a
technical inquiry. State v. Perez, 5 Wn. App. 2d 867, 872, 428 P.3d 1251 (2018).
Instead, it rests on “ ‘the totality of facts and circumstances within the officer’s
knowledge at the time of the arrest.’ ” Perez, 5 Wn. App. 2d at 872 (quoting
4
Pounds challenges several of the trial court’s findings of fact. We note that the court
identified the findings as “undisputed facts” below. In any event, we do not reach the issue as
none of the challenged findings are relevant to whether Detective Wheeler had probable cause to
arrest Pounds.
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State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979)); see also Wong Sun
v. United States, 371 U.S. 471, 481-82, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
The burden is on the State to establish probable cause for an arrest. State v.
Grande, 164 Wn.2d 135, 141, 187 P.3d 248 (2008).
Pounds argues Detective Wheeler lacked probable cause to arrest him
because no witness observed him with the stolen guns, Pounds had no direct
connection with Hansen, and no evidence directly tied Pounds to the Celica
where police found the stolen guns.5 But the evidence established that when he
arrested Pounds, Detective Wheeler knew that Pounds was inside Hansen’s
home without permission, that he left with Ausbun carrying items consistent with
the size and shape of Hansen’s missing firearms, and that shortly after the theft,
police found some of Hansen’s stolen guns inside the Celica—a car associated
with Ausbun—abandoned near Hansen’s house. These facts are sufficient for a
reasonable officer to believe Pounds took Hansen’s guns.6 The trial court did not
err in denying Pounds’ motion to suppress.
Jail Calls
Pounds claims the trial court erred by refusing to suppress recordings of
jail calls that the State did not provide in discovery and by refusing to declare a
5
Pounds also argues that his arrest was unlawful because the traffic stop was a pretext
to investigate the firearm theft. The record does not support this claim. Detective Wheeler
testified that he stopped Pounds not for any claimed traffic infraction but to arrest him for gun
theft, unlawful possession of a firearm, and possibly burglary.
6
Pounds also suggests that Detective Wheeler was subjectively motivated to target
Pounds because of prior contacts with him. But we determine probable cause by objective facts,
not the subjective opinion of an officer. State v. Huff, 64 Wn. App. 641, 645, 826 P.2d 698(1992).
6
No. 81122-3-I/7
mistrial after the prosecutor called the recordings “jail calls” during closing
argument.
A. Discovery Violation
Pounds claims the jail calls “were late discovery” that the court should
have excluded and admission of the calls prejudiced him. We disagree.
The purpose of discovery rules is to protect against surprise that results in
prejudice to the opposing party. State v. Bradfield, 29 Wn. App. 679, 682, 630
P.2d 494, review denied, 96 Wn.2d 1018 (1981). When a party violates a
discovery rule or discovery order, the trial court “may order such party to permit
the discovery of material and information not previously disclosed, grant a
continuance, dismiss the action or enter such other order as it deems just under
the circumstances.” CrR 4.7(h)(7)(i). Failure to produce evidence or identify
witnesses timely may be “appropriately remedied by continuing trial to give the
nonviolating party time to interview a new witness or prepare to address new
evidence.” State v. Hutchinson, 135 Wn.2d 863, 881, 959 P.2d 1061 (1998),
abrogated on other grounds by State v. Jackson, 195 Wn.2d 841, 467 P.3d 97(2020). Exclusion or suppression of evidence or dismissal for a discovery
violation are extraordinary remedies that the court should apply narrowly.
Hutchinson, 135 Wn.2d at 882; State v. Smith, 67 Wn. App. 847, 852, 841 P.2d
65 (1992).
A trial court has broad discretion to determine the proper remedy for a
discovery violation. Bradfield, 29 Wn. App. at 682. We review the court’s rulings
for an abuse of that discretion. State v. Barry, 184 Wn. App. 790, 797, 339 P.3d
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No. 81122-3-I/8
200 (2014). The trial court abuses its discretion when it relies on untenable
grounds or reasons or if its decision is manifestly unreasonable. Barry, 184 Wn.
App. at 797.
Several months before trial, the State disclosed to Pounds that it had
recordings of jail calls between Pounds and Ausbun. Pounds’ attorney told the
prosecutor not to provide them unless the State planned to use them at trial.
During motions in limine, Pounds moved to exclude any nondisclosed evidence.
The prosecutor told the court, “[E]very piece of evidence that I would seek to
offer has already been provided to [the defense] in the process of discovery.”
Based on that representation, the court granted Pounds’ motion.
After the court addressed the parties’ written motions in limine, defense
counsel said she would like to “address the Court on one more issue.” Counsel
asked the court to exclude Detective Wheeler’s testimony that he knew Pounds
and Ausbun as “boyfriend and girlfriend.” She argued that the testimony was
hearsay and unduly prejudicial to Pounds because it suggested the detective
investigated Pounds in the past.
After consulting with the detective, the prosecutor conceded that the
testimony was hearsay and told the court she would instead offer “four
segments” of the jail calls between Pounds and Ausbun to establish their
relationship. Pounds’ attorney objected, arguing that she made a strategic
decision to exclude Detective Wheeler’s testimony about Pounds and Ausbun’s
relationship because the State said it would not offer the recordings. The trial
court ruled that the State could use the recordings and offered to continue the
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No. 81122-3-I/9
trial to allow Pounds’ attorney time to assess the evidence. Pounds declined.
The parties agreed to redact the recordings to remove direct evidence that
Pounds was in custody during the calls.
Pounds fails to show that the State violated the rules of discovery or a
court order. The State disclosed the evidence to Pounds several months before
trial and offered to provide copies of the recordings even though the prosecutor
had no plans at that time to use them at trial. Pounds declined. Even so, a
continuance would have cured any prejudice to Pounds from the late disclosure.
Pounds declined that relief as well. The trial court did not abuse its discretion in
allowing the State to admit the recordings.
B. Mistrial
Pounds next argues that the court erred in refusing to grant a mistrial
when the prosecutor identified the recordings as “jail calls” in closing argument.
Again, we disagree.
We review a trial court’s decision to deny a motion for mistrial for an abuse
of discretion. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003); State
v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). The court should grant a mistrial
“only when the defendant has been so prejudiced that nothing short of a new trial
can insure that the defendant will be tried fairly.” State v. Mak, 105 Wn.2d 692,
701, 718 P.2d 407 (1986).
In determining whether a trial irregularity is so prejudicial as to require a
mistrial, we look to (1) the seriousness of the irregularity, (2) whether the
statement in question was cumulative of other admissible evidence, and (3)
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No. 81122-3-I/10
whether an instruction to disregard the remark could cure any irregularity. See
State v. Weber, 99 Wn.2d 158, 165-66, 659 P.2d 1102 (1983). We will reverse
the trial court only if there is a substantial likelihood the irregularity affected the
jury’s verdict. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002).
Here, Pounds’ only argument to support his motion for a mistrial was that
the prosecutor referred to the telephone conversations between Pounds and
Ausbun as “jail calls” during the State’s closing argument in phase II of the trial.
But the prosecutor’s one reference to “jail calls” in the second phase of a week-
long trial was fleeting.7 And while the court did not allow direct evidence at trial
that Pounds was in custody, the recordings themselves suggested that the calls
took place while Pounds was incarcerated. For example, Ausbun told Pounds in
one call that she had “put $40 on [his] books yesterday” and promised to “come
see [him] tomorrow.” Any irregularity was insignificant, cumulative of other
evidence, and curable by a jury instruction. Pounds did not request a curative
instruction. The trial court did not err by denying Pounds’ motion for a mistrial.
Jury Question
Pounds claims he did not receive a fair trial because the trial court did not
adequately clarify confusion raised in a jury question during deliberations. In the
alternative, he argues his trial counsel was ineffective for not pointing the trial
court to authority in support of her request that the court give the jury a more
specific answer.
7
Pounds also claims the prosecutor committed misconduct by violating “the parties’
agreement not to disclose to the jury that the calls were jail calls.” But even if the inadvertent
comment amounts to misconduct, Pounds fails to show that it “inherently result[ed] in a complete
miscarriage of justice.” Cook, 114 Wn.2d at 812.
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No. 81122-3-I/11
A. Supplemental Jury Instruction
Jury instructions must accurately inform the jury of the relevant law. State
v. Henderson, 192 Wn.2d 508, 512, 430 P.3d 637 (2018). Unless shown
otherwise, we presume a jury follows the court’s instructions. State v. Swan, 114
Wn.2d 613, 661-62, 790 P.2d 610 (1990). In response to a jury question after
deliberations begin, CrR 6.15(f)(1) permits a trial court to provide supplemental
written instructions on “any point of law.” We review a trial court’s decision
whether to give a supplemental instruction for abuse of discretion. State v.
Sublett, 176 Wn.2d 58, 82, 292 P.3d 715 (2012).
Here, jury instruction 6 told the jury, “A person is guilty of theft of a firearm
if he or she commits a theft of any firearm.” The “to convict” jury instruction,
number 7, told the jury that to convict Pounds of “theft of a firearm,” it must find
that the State proved each of these elements beyond a reasonable doubt:
(1) That between June 5, 2017, and June 13, 2017, the defendant
wrongfully obtained a .22 caliber revolver belonging to another;
(2) A .22 caliber revolver is a firearm;
(3) That the defendant intended to deprive the other person of the
firearm; and
(4) That this act occurred in the State of Washington.
And jury instruction 8 told the jury:
To convict the defendant of Theft of a Firearm, one particular act of
Theft of a Firearm must be proved beyond a reasonable doubt, and
you must unanimously agree as to which act has been proved.
You need not unanimously agree that the defendant committed all
the acts of Theft of a Firearm.
During deliberations, jurors sent the following question to the court:
Instructions 6 & 8 state “theft of any firearm” and “theft of a firearm”
on multiple occasions. Instruction 7 specifically states “a .22 caliber
revolver.”
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No. 81122-3-I/12
Are we ruling only on a .22 caliber revolver (7) or are we ruling on
any firearm presented in the case (8)?
The court e-mailed the jury question to the parties and asked for their
input. The State agreed with the court’s proposed response to “re-read your
instructions.” Defense counsel asked the court to refer the jury back to
instruction 7, the to-convict instruction, but the court declined.
Pounds relies on several cases to argue that the court’s answer to the
jurors’ question failed to “clarify the applicable law for the jury,” warranting
reversal.8 Each case is distinguishable. In Gotcher and Davenport, the
prosecutors misstated the law in closing arguments and it was apparent from the
juries’ questions that the misstatements created confusion. State v. Gotcher, 52
Wn. App. 350, 355-56, 759 P.2d 1216 (1988); State v. Davenport, 100 Wn.2d
757, 759, 765, 675 P.2d 1213 (1984). Even so, the courts did not correct the
errors in response to the questions. Gotcher, 52 Wn. App. at 356; Davenport
100 Wn.2d at 759. In Campbell, one of the jury instructions contained an
erroneous statement of law that the court compounded in its answer to a jury
question. State v. Campbell, 163 Wn. App. 394, 401-02, 260 P.3d 235 (2011),
rev’d on recons., 172 Wn. App. 1009 (2012). And in Young, the trial court
refused to clarify the meaning of a technical term and instead referred the jury
back to the instructions as a whole, even though none of the instructions
contained any information about the term’s meaning. State v. Young, 48 Wn.
App. 406, 417, 739 P.2d 1170 (1987).
8
Pounds appears to argue in his PRP that this error affected his phase II conviction for
count 1, unlawful possession of a firearm. We reject this claim because the court specifically told
the jury that instructions “6 through 12 of the Phase I instructions do not apply to Count 1.”
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No. 81122-3-I/13
Pounds does not argue that the jury instructions here were legally flawed
or that the court did not sufficiently explain a technical term. Instead, he argues
that the court should have directed the jury to the more specific to-convict
instruction to clarify the law rather than the instructions as a whole. But we
presume the jury followed the court’s instruction to consider all of the instructions,
including the to-convict instruction. While the trial court could have elected to
answer the jury’s question by referring it to the elements listed in instruction 7, it
did not have to. See State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988); State
v. Sutton, 18 Wn. App. 2d 38, 45, 489 P.3d 268 (2021).
B. Ineffective Assistance of Trial Counsel
In the alternative, Pounds suggests that his trial attorney performed
deficiently by not offering the trial court authority, presumably in the form of the
cases discussed above, that would have compelled the court to give a more
specific response to the jury inquiry.
To prevail on a claim of ineffective assistance, the defendant must show
both that his counsel erred and that the error was so significant, in light of the
entire trial record, it deprived him of a fair trial. Strickland v. Washington, 466
U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When a claim of
ineffective assistance stems from counsel’s failure to request a particular jury
instruction, the defendant must show he was entitled to the instruction, counsel’s
performance was deficient in failing to request it, and the failure to request the
instruction caused prejudice. State v. Thompson, 169 Wn. App. 436, 495, 290
P.3d 996 (2012).
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No. 81122-3-I/14
Pounds acknowledges that his attorney requested a more specific
instruction from the court but faults her for not supporting her request with case
law. His claim rests on the incorrect premises that he was entitled to the more
specific instruction and that cases like Campbell and Davenport would have
compelled the court to refer the jury to the to-convict instruction. As discussed
above, those cases do not support that proposition. Pounds fails to show
ineffective assistance of counsel.
Ineffective Assistance of Appellate Counsel
Pounds argues that “[i]f this Court finds any of the issues raised by [him] in
his petition have merit, then appellate counsel was deficient in failing to raise
[them].”
A petitioner claiming ineffective assistance of appellate counsel on
collateral review must show that “the legal issue that appellate counsel failed to
raise had merit” and that he “was actually prejudiced by appellate counsel’s
failure to raise the issue.” In re Pers. Restraint Petition of Dalluge, 152 Wn.2d
772, 777-78, 100 P.3d 279 (2004). “Failure to raise all possible nonfrivolous
issues on appeal is not ineffective assistance.” In re Pers. Restraint of Lord, 123
Wn.2d 296, 314, 868 P.2d 835 (1994). Instead, to establish deficient
performance, the petitioner must show that his appellate counsel inadequately
raised or failed to raise issues of merit and that the error led to prejudice. In re
Pers. Restraint of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918 (2013).
Prejudice requires the petitioner to “ ‘show a reasonable probability that, but for
his counsel’s unreasonable failure to file a merits brief, he would have prevailed
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No. 81122-3-I/15
on his appeal.’ ” Dalluge, 152 Wn.2d at 7889 (quoting Smith v. Robbins, 528
U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000)).
Because Pounds does not prevail on any of the issues raised in his PRP,
he fails to show ineffective assistance of appellate counsel.
We deny his petition.
WE CONCUR:
9
Emphasis omitted.
15