State of Washington v. Christopher P. Robbins ( 2020 )

FILED
MARCH 10, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36180-2-III
Respondent, )
)
v. )
)
CHRISTOPHER P. ROBBINS, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Christopher Robbins appeals from Okanogan County convictions
for unlawful imprisonment and third degree driving while license suspended (DWLS),
arguing that a new trial should have been granted due to the absence of a defense witness
and prosecutorial misconduct. We affirm the convictions and remand to correct the
sentence.
FACTS
Robbins drove a female acquaintance to a barter fair near Tonasket and they slept
in his car in a camping area at the fair. The victim testified that he touched her breast
without permission; she told him not to touch her. After the two had dozed, he asked her
to share his sleeping bag. When she did not show any inclination to join him, he started
driving the car up a hill away from the people at the fair.
No. 36180-2-III
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The victim repeatedly told him she did not want to go and to let her out; he kept
driving. She could not open the car door while the vehicle was moving. She struck him
and eventually stabbed him in the hand with a knife she carried in her bag. The car
stopped and she fell out when the door opened. She then ran to a group of people and
took cover in a nearby car. The incident was reported to fair security and they contacted
the county sheriff’s office.
Robbins denied touching the victim or asking her to share his sleeping bag. He
did ask her to have a sexual relationship, but she declined. He then looked for
somewhere to let her out of his car. He agreed that she had stabbed his hand and that she
fell out of the car when the door opened. On cross-examination the prosecutor asked
about two statements Robbins allegedly made to the police—that he had met the victim
the day before and that the pair had arrived at the barter fair about 8:00 a.m. on the day of
the incident. He denied making them. The prosecutor also showed Robbins a letter and
asked if he wrote it. He denied doing so. The letter was not admitted into evidence.
On the morning of the second day of trial, defense counsel advised the court that a
defense witness, Michael Sackman, had not responded to his subpoena and was not
present in court. Sackman was expected to impeach the testimony of the victim by
relating a conversation he had with her after the incident. His location was unknown,
though it was believed he might be at his girlfriend’s residence in Tonasket. The court
authorized a material witness warrant and told the defense that the case would stay on
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schedule if Sackman was not present by the time the defense rested. Defense counsel did
not challenge the schedule. The jury then heard testimony from a deputy sheriff and the
victim. The victim was not cross-examined about her alleged conversation with
Sackman. The State then rested its case around 11:00 a.m. Defense counsel presented
the warrant to the court for signature at 11:10 a.m.
Mr. Robbins testified on direct examination before lunch and was cross-examined
when court resumed at 1:22 p.m. The defense rested at the conclusion of his testimony;
Sackman had not appeared. Defense counsel did not request a continuance of trial and
the parties proceeded with closing argument. The prosecutor argued, without objection,
that Mr. Robbins had told officers that the two had arrived at the barter fair at 8:00 a.m.
and that he had only met the victim the day before.
Later that day, the jury was unable to reach a verdict on the original charge of
second degree kidnapping, but did convict Mr. Robbins of DWLS and the lesser included
offense of unlawful imprisonment. Around 1:00 a.m. the following morning, the material
witness warrant was served on Sackman and he was booked into the county jail. When
notified, the trial judge directed Sackman’s release because the trial had concluded.
Sackman was then booked into jail on a different matter. Robbins promptly moved for a
new trial due to an irregularity that denied him a fair trial. CrR 7.5(a)(5). After setting
the matter over for briefing, the court denied the motion. In the court’s view, the
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proposed impeachment testimony would not have changed the verdict and Sackman’s
absence from trial was never explained.
The court imposed a standard range sentence of 55.5 months in prison on the
unlawful imprisonment charge and a term of 12 months of community custody upon
release. The judgment also included a provision that the total sentence could not exceed
the statutory maximum term of 60 months.
Mr. Robbins timely appealed to this court. A panel considered his appeal without
hearing argument.
ANALYSIS
Appellant argues that the court erred in not continuing the trial due to Sackman’s
absence and by denying the new trial motion for the same reason. He also contends that
the prosecutor’s closing argument constituted misconduct, that cumulative error requires
a new trial, and that his sentence exceeded the maximum allowed by law. We treat the
two missing witness arguments as one before addressing the misconduct and sentence
issues. In the absence of multiple errors, we do not address the cumulative error claim.
Missing Witness
Mr. Robbins argues that the trial court erred in responding to Sackman’s absence.
The trial court did not abuse its discretion.
A trial court’s continuance ruling is reviewed for abuse of discretion. State v.
Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). Similarly, a trial judge’s decision
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on a motion for a new trial is reviewed for abuse of discretion. State v. Marks, 71 Wn.2d
295, 302, 427 P.2d 1008 (1967). Discretion is abused when it is exercised on untenable
grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482
P.2d 775 (1971).
Mr. Robbins initially argues that the court erred in denying a continuance. The
main problem with this argument is that he never requested a continuance. Counsel
postulated early that more time might be needed to find Sackman, but never requested
that the court recess or continue the trial to allow more time for the missing witness to be
located. A trial judge cannot abuse discretion he was never asked to exercise.
Even if counsel’s statements could have been interpreted as an unequivocal
request to extend the trial in order to secure the witness’s attendance, the court would not
have abused its discretion by denying the request. In granting a continuance to secure the
attendance of a witness, the trial court may consider the likelihood of locating the
witness, the materiality of the proposed testimony, and the court’s interest in the
maintenance of orderly procedure. Downing, 151 Wn.2d at 273. Here, Robbins did not
demonstrate that Sackman could easily be located and brought in to testify in a
reasonably prompt manner. He also could not show that Sackman’s testimony had any
purpose other than to impeach the victim. However, impeachment testimony is not a
basis for continuing a trial. State v. Harris, 12 Wn. App. 481, 496-497, 530 P.2d 646(1975). With no reason to know if Sackman could be located in a timely manner and no
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substance to his testimony, the trial court could not have erred in denying a continuance.
There was no abuse of discretion.
Robbins also argues that the trial court should have granted a new trial due to
Sackman’s absence. The trial judge rejected the argument for several reasons, two of
which more than suffice to support the judge’s exercise of discretion. First, the court was
understandably concerned that no reason was ever given for Sackman’s absence. A
voluntary refusal to honor a subpoena would be a very questionable basis for granting a
new trial. On this record, all that the court knew was that Sackman had been subpoenaed
and inexplicably, but apparently voluntarily, failed to appear for trial. Why would the
court believe he would honor a second subpoena and attend a new trial?
More fundamentally, as the trial court realized when it was considering the
material witness warrant, the proposed testimony was not admissible. In order to
impeach a witness with a prior inconsistent statement, the witness must first be asked
about the (alleged) prior statement. ER 613(b) 1; State v. Mays, 65 Wn.2d 58, 62-63, 395
P.2d 758 (1964). If the witness agrees that the statement was made, there would be no
need for the impeachment witness to testify.
1
The rule states in part that testimony about a prior inconsistent statement “is not
admissible unless the witness is afforded an opportunity to explain or deny” the
statement. ER 613(b).
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Here, the defense failed to ask the victim about the alleged conversation with
Sackman. 2 Without that foundation, as the trial court duly noted, Sackman could not
impeach the victim with the alleged prior statement. Because the foundation was not
provided, Sackman could not have testified even if he had arrived at trial. There certainly
was no basis for granting a new trial due to his failure to appear.
Either the unexplained absence or the lack of foundation was sufficient to deny the
new trial. The court had tenable reasons for denying the motion. There was no abuse of
discretion.
Prosecutorial Misconduct
Mr. Robbins next argues that the prosecutor erred in her closing argument by
referencing evidence not produced at trial. While he correctly identifies the prosecutor’s
mistake, his failure to object to the easily remediable error fails to establish prejudice.
Well established standards govern review of this issue. The appellant bears the
burden of demonstrating prosecutorial misconduct on appeal and must establish that the
conduct was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668, 718, 940
P.2d 1239 (1997). Prejudice occurs where there is a substantial likelihood that the
misconduct affected the jury’s verdict. Id. at 718-719. The allegedly improper
2
Also absent from the record is any affidavit from Sackman detailing what he
would testify about. Whether he would actually testify along the lines of the information
he supplied to defense counsel is unknown.
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statements should be viewed within the context of the prosecutor’s entire argument, the
issues in the case, the evidence discussed in the argument, and the jury instructions. State
v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Reversal is not required where the alleged error could have been obviated by a
curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The
failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned
that it evinced an enduring and resulting prejudice that could not have been neutralized
by an admonition to the jury. Id.; State v. Swan, 114 Wn.2d 613, 665, 790 P.2d 610(1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Here, the prosecutor erred in attributing the two statements (arrival time and date
he initially met victim) to the defendant. When asked about each statement, he denied
making them. The prosecutor did not recall Deputy Lee to the stand to discuss the two
statements per ER 613(b). Since the deputy did not discuss them in his own testimony, it
was error for the prosecutor to argue the statements in her closing argument. They
simply were not in evidence.
However, a timely objection would have cured the error. Mr. Robbins had
testified less than an hour earlier and an objection would have allowed the jury to focus
on his actual testimony and/or have permitted the judge to correct the prosecutor’s
misstatement. This was an easy problem to remedy.
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Nor was the information particularly vital to the case. The critical question for the
jury to determine was the defendant’s intent in driving the car toward the hill. Moreover,
the now challenged argument was supported by the victim’s testimony, leaving the
prosecutor free to argue the conflict between her testimony and the defendant’s. The
prosecutor’s failed attempt to impeach the defendant by self-contradiction during cross-
examination did not preclude her from arguing the disagreement in testimony merely
because she wrongly attributed the evidence to the defendant. Her failure to establish the
latter point was squarely before the jury.
Mr. Robbins has not established that the prosecutor’s error was so prejudicial that
an objection could not have remedied the problem. He has not established entitlement to
relief.
Sentence Length
Mr. Robbins does correctly argue that the combined term of incarceration and
community supervision exceeds the statutory maximum sentence. We remand for the
trial court to correct the term of supervision.
Unlawful imprisonment is a class C offense carrying a statutory maximum
sentence of five years in prison. RCW 9A.20.020(1)(c); RCW 9A.40.040(2). The
combined term of imprisonment and community custody may not exceed the statutory
maximum sentence. RCW 9.94A.701(9). In the event that the combined sentence would
exceed the statutory maximum term, the trial court is required to reduce the term of
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community custody. Id. Merely noting on the judgment and sentence that the combined
term may not exceed 60 months is insufficient. State v. Boyd, 174 Wn.2d 470, 472, 275
P.3d 321 (2012).
Accordingly, the trial court must reduce the term of community custody to 4.5
months in order to comply with RCW 9.94A.701(9).
The convictions are affirmed. The case is remanded for the trial court to correct
the term of community custody.
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.
WE CONCUR:
I G-
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