State Of Washington v. Clabon T. Berniard ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
January 18, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47726-2-II
Respondent,
v.
CLABON TERREL BERNIARD, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Clabon Terrel Berniard appeals his convictions and sentence for
multiple crimes arising from his participation in a 2010 robbery and murder at the home of James
and Charlene Sanders.1 Berniard argues that the trial court erred by (1) admitting evidence
obtained by an invalid search warrant, (2) admitting hearsay statements that were not made in the
course of or in furtherance of a conspiracy, (3) admitting a video recording obtained in violation
of Washington’s privacy act, (4) imposing an exceptional sentence, and (5) improperly
instructing the jury on firearm sentencing enhancements. We affirm Berniard’s convictions and
sentence, and we waive appellate costs.
FACTS
I. BACKGROUND
In 2014, this court decided an appeal arising from the same crimes. State v. Berniard,
182 Wash. App. 106, 327 P.3d 1290 (2014).
1
We refer to James and Charlene Sanders by their first names to avoid confusion; we mean no
disrespect.
No. 47726-2-II
Following a home invasion robbery in which one participant shot and killed
James, the State charged Joshua Reese, Amanda Knight, Kiyoshi Higashi, and an
unidentified fourth participant with a number of crimes. Ultimately, the State
charged Berniard, as the fourth participant . . . . . The trial court severed the cases,
and Berniard was tried separately.
The victims’ testimony at Bernard’s trial established that Knight and
Higashi initially obtained entrance to the Sanderses’s home posing as potential
buyers of a ring the Sanderses had advertised on the website Craigslist. Verbatim
Report of Proceedings (VRP) at 900-03. Higashi then drew a gun and ordered
James and Charlene to lie face-down on the floor. They complied, and Knight and
Higashi restrained their hands with plastic zip ties, taking the wedding rings from
Charlene’s and James’s fingers.
On a signal from Knight, two additional intruders, wearing masks and
armed with guns, entered the home and proceeded to the second story, where they
ordered the Sanderses’s two children, JS and CK,[2] downstairs. One of these
masked intruders, identified by the victims as “the mean one,” demanded the
location of the Sanderses’s safe, threatening to kill the victims. VRP at 909-10,
932. He kicked Charlene in the head, pointed a gun at her head, and began counting
backward from three.[3]
At that point, Charlene told the perpetrators that the safe was in the garage.
As Higashi and another intruder took James toward the garage, he broke free from
the zip ties and a fight ensued. JS, who remained unrestrained, joined the struggle,
and in the course of the fight the perpetrators beat JS severely with a pistol and shot
James repeatedly, killing him. The four then fled the scene.
182 Wash. App. at 110-12.
This court reversed Berniard’s convictions and remanded for a new trial. 182 Wash. App.
at 132. On remand, the State filed a third amended information charging Berniard with first
degree murder (count I),4 first degree robbery of J.S. (count II),5 second degree assault of J.S.
2
We use initials to identify minor victims.
3
This masked intruder was later identified as Berniard.
4
RCW 9A.32.030(1)(c).
5
RCW 9A.56.200(1)(a)(iii).
2
No. 47726-2-II
(count III),6 first degree robbery of Charlene (count IV),7 second degree assault of Charlene
(count V),8 and first degree burglary (count VI).9 The State sought firearm sentencing
enhancements, alleging aggravating factors of deliberate cruelty and a high degree of
sophistication or planning on all counts.
II. PRETRIAL MOTIONS
Prior to trial, Berniard moved to suppress evidence, including his and his codefendants’
cell phone records and a video recording of a conversation between his family members. The
State moved to admit Higashi’s statements to his former girlfriend, Jenna Ford, as statements of
a coconspirator.
A. Phone Records
Berniard moved to suppress the subscriber and account information, toll and calling
records, and tower information for four cell phone numbers, including a prepaid cell phone listed
with a “504” area code. The three other cell phone numbers belonged to Berniard’s three
codefendants. Berniard argued that the search warrant was defective because the supporting
declaration failed to state to whom police believed the cell phones belonged or what led police to
believe the cell phones identified contained evidence of the Sanderses’ home invasion.
6
RCW 9A.36.021(1)(c).
7
RCW 9A.56.200(1)(a)(iii).
8
RCW 9A.36.021(1)(c).
9
RCW 9A.52.020.
3
No. 47726-2-II
At the suppression hearing, Berniard argued that he had standing to challenge the search
of the cell phone records because he had a possessory and a privacy interest in the records. In
addition, Berniard made an offer of proof that the 504 number was his cell phone number. The
trial court accepted Berniard’s offer of proof and granted his motion to suppress.
The State filed a motion to reconsider the admissibility of the phone records. The trial
court granted the State’s motion to reconsider and ultimately admitted Berniard’s and his
codefendants’ cell phone records.
B. Video Recording
A few days after the Sanderses’ home invasion, California police apprehended Higashi,
Knight, and Reese. Berniard, 182 Wash. App. at 112. The three made statements implicating
themselves and a fourth participant later identified as Berniard. 182 Wash. App. at 112.
Sabra Gertsch, a news anchor with KOMO 4 TV in Seattle, learned that Berniard had
been identified as the fourth participant in the Sanderses’ home invasion. Gertsch then traveled
to Berniard’s home. Berniard’s aunt answered the door, and Gertsch, wearing KOMO 4 apparel,
identified herself and her cameraman. Berniard’s aunt invited Gertsch into the family home, and
Gertsch’s cameraman brought his large, commercial TV camera inside. While speaking to
Berniard’s aunt, Gertsch revealed that a warrant had been issued for Berniard’s arrest.
Berniard’s aunt told Berniard’s mother, Joan Berniard, why Gertsch and her cameraman
were at the home, and Gertsch began talking to Joan in the living room.10 While Gertsch spoke
with Joan, Berniard’s sister, Lacey Berniard, walked into the living room. Lacey has
10
We use first names as necessary to avoid confusion. We intend no disrespect.
4
No. 47726-2-II
developmental delays. While the cameraman was still recording, Lacey told Joan, “I know what
[Gertsch] is talking about.” 2 Verbatim Report of Proceedings (VRP) at 319. Then, Lacey said
she overhead Berniard discussing the robbery with their sister. This statement was recorded.
Pretrial, Berniard moved to suppress the KOMO 4 TV video recording of Joan and
Lacey’s conversation, arguing that the recording violated Washington’s privacy act. The trial
court denied Berniard’s motion, determining that the video camera was readily apparent and that
Joan and Lacey should have known their conversation was being recorded.
C. Higashi’s Statements
The night of the Sanderses’ home invasion, Higashi went to Ford’s home. There, Higashi
told Ford that he, Knight, Reese, and a man named “XYG” found an ad on Craigslist for a ring
and that they decided to rob the owners. He further explained that the four ransacked the
Sanderses’ home, that he shot Jim Sanders multiple times, and that XYG “pistol whipped the
youngest kid.” 12 Verbatim Transcript of Proceedings (VTP) at 1040, 1041.
Ford instructed Higashi that “if they wanted to get away [with] what they had just done,
they should all get together and make a story.” 13 VTP at 1097. Higashi called Knight and
Reese, and they arrived at Ford’s home. Ford told them to throw away any evidence that may
link the three to the Sanderses’ home. Ford helped Higashi, Knight, and Reese dispose of
evidence, but she did not know about their plan to flee the state and sell the property obtained
from the Sanderses’ residence.
The State moved to admit Higashi’s statements to Ford as statements of a coconspirator.
The trial court granted the State’s motion, stating:
5
No. 47726-2-II
There’s no question we have a conspiracy. The conspiracy is to commit
robbery. But the robbery just doesn’t stop. It’s what you do after the robbery is
still part of the conspiracy of what they were trying to do . . . .
“And the statement in question describes the defendant’s role in the
conspiracy or implicates the defendant in some manner. . . .”
....
You argue that [Higashi’s statement] wasn’t [in the course of the
conspiracy] and it’s separated and different. I don’t think that’s the case. I think
the conspiracy continues until it’s done . . . . And that’s going to be my finding. I
think that the statements are admissible.
7 VTP at 164-65.
III. TRIAL & SENTENCING
At trial, witnesses testified to the above facts. Then, the trial court provided the jury with
the following firearm enhancement instruction:
In order to answer the special verdict forms “yes,” all twelve of you must
unanimously be satisfied beyond a reasonable doubt that “yes” is the correct
answer. If you do not unanimously agree that the answer is “yes” then the presiding
juror should sign the section of the special verdict form indicating that the answer
has been intentionally left blank.
Clerk’s Papers (CP) at 280. The special verdict forms included a blank space for the jurors to
indicate their answer. The blank was followed by: “Write ‘yes’ if unanimous agreement that this
is the correct answer.” CP at 297, 298. Berniard did not object to the court’s instruction.
The jury found Berniard guilty of all charges, and it answered each special verdict form
for the firearm enhancements in the affirmative. In addition, the jury returned special verdict
forms determining that Berniard manifested deliberate cruelty in the commission of the first
degree robbery, second degree assault, and first degree burglary charges. The jury also returned
special verdict forms finding that the first degree robbery, first degree assault of Charlene, and
first degree burglary charges involved a high degree of sophistication or planning.
6
No. 47726-2-II
The trial court sentenced Berniard to a total of 1,172 months’ confinement. Berniard’s
sentence included a 312-month firearm enhancement and 312-month exceptional sentence.
Berniard appeals.
ANALYSIS
I. MOTION TO SUPPRESS
Berniard argues the trial court erred by denying his motion to suppress evidence of his
cell phone records that were obtained by a defective search warrant.11 The State argues that
Berniard does not have standing to challenge the search warrant. We hold that Berniard has
standing to challenge admission of his own phone records, but the trial court’s ruling denying his
motion to suppress was harmless beyond a reasonable doubt.
A. Standing
To determine whether a defendant is entitled to challenge the scope of a search warrant,
we must first decide whether he has standing to qualify for protection under the Fourth
Amendment and article I, section 7 of the Washington Constitution. State v. Francisco, 107 Wn.
App. 247, 252, 26 P.3d 1008 (2001). We review standing to challenge a search or seizure de
novo. State v. Link, 136 Wash. App. 685, 692, 150 P.3d 610, review denied, 160 Wash. 2d 1025, 163
P.3d 794 (2007).
Generally, standing to challenge a search or seizure under the Fourth Amendment and
article I, section 7 requires that a defendant have a legitimate expectation of privacy in the place
searched or item seized. State v. Libero, 168 Wash. App. 612, 616, 277 P.3d 708 (2012). It is well
11
In Berniard’s brief, he argues that the trial court erred by denying his motion to suppress
evidence of his and his codefendants’ cell phone records. At oral argument, Berniard conceded
that he does not have standing to challenge the search of his codefendants’ cell phone records.
7
No. 47726-2-II
established that article I, section 7 of the Washington Constitution is qualitatively different from
the Fourth Amendment and provides greater protections to Washington citizens. State v.
Gunwall, 106 Wash. 2d 54, 66, 720 P.2d 808 (1986). Article I, section 7 “‘is grounded in a broad
right to privacy’ and protects citizens from governmental intrusion into their private affairs
without the authority of law.” State v. Hinton, 179 Wash. 2d 862, 868, 319 P.3d 9 (2014) (quoting
State v. Chacon Arreola, 176 Wash. 2d 284, 291-92, 290 P.3d 983 (2012)). Accordingly, its private
affairs inquiry is much broader than the Fourth Amendment’s reasonable expectation of privacy
inquiry. 179 Wash. 2d at 868.
Under article I, section 7, a search occurs when the government disturbs “those privacy
interests which citizens of this state have held, and should be entitled to hold, safe from
governmental trespass absent a warrant.” State v. Myrick, 102 Wash. 2d 506, 511, 688 P.2d 151
(1984). To determine whether the government intrudes on a private affair, we look to the nature
and extent of the information sought and at the historical treatment of the privacy interests
asserted. State v. Miles, 160 Wash. 2d 236, 244, 156 P.3d 864 (2007).
Telephonic and electronic communications are strongly protected under Washington law.
Gunwall, 106 Wash. 2d at 66. In State v. Gunwall, the Washington Supreme Court determined that
a telephone subscriber has a constitutionally protected privacy interest in the records of the calls
he makes. 106 Wash. 2d at 67-68. While the court recognized that many federal courts have held
that the Fourth Amendment does not protect telephone billing records, it noted that there was a
“long history and tradition of strict legislative protection of telephonic and other electronic
communications in this state.” 106 Wash. 2d at 66.
8
No. 47726-2-II
In reaching its conclusion, the court determined that
[a] telephone subscriber . . . has an actual expectation that the dialing of telephone
numbers . . . will be free from governmental intrusion. A telephone is a necessary
component of modern life. It is a personal and business necessity indispensable to
one’s ability to effectively communicate in today’s complex society. When a
telephone call is made, it is as if two people are having a conversation in the privacy
of the home.
106 Wash. 2d at 67 (quoting People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983)).
Further, the court stated that it was “‘unrealistic to say that the cloak of privacy has been
shed because the telephone company and some of its employees are aware of [a subscriber’s call
records]. . . . [T]he disclosure has been made for a limited business purpose and not for release to
other persons for other reasons.’” 106 Wash. 2d at 68 (quoting State v. Hunt, 91 N.J. 338, 347, 450
A.2d 952 (1982)). Similarly, telephone subscribers with unpublished listings have a legitimate
expectation of privacy in their billing and toll records. State v. Butterworth, 48 Wash. App. 152,
155-57, 737 P.2d 1297 (1987). By requesting an unpublished phone number listing, a subscriber
takes steps to ensure greater privacy protections than other telephone customers. 48 Wash. App. at
155-57.
Here, police filed a search warrant seeking the subscriber and account information, toll
and calling records, and tower information for the 504 number. A magistrate issued the search
warrant, and Berniard filed a motion to suppress all evidence obtained by the warrant.
Berniard made an offer of proof that the 504 number included in the search warrant was
his cell phone number. Berniard argued that the 504 number was exclusively used by him, as
demonstrated by the number of phone calls made to his friends and family. The trial court
ultimately denied Berniard’s motion to suppress.
9
No. 47726-2-II
The 504 number was associated with a prepaid Sprint cell phone registered to “Terry
Brown.” 16 VTP at 1593. Sprint does not ask for subscriber information for prepaid cell
phones. As a result, the name of a subscriber associated with a prepaid Sprint cell phone may
not be accurate. The address associated with the 504 number was the default address for all
Sprint prepaid cell phones.
The State asks that this court adopt the United States Court of Appeals for the Sixth
Circuit’s decision in United States v. Skinner, 690 F.3d 772 (6th Cir. 2012). Skinner is factually
and legally distinguishable. In Skinner, the Sixth Circuit determined that using a cell phone’s
data to trace its owner did not violate the defendant’s reasonable expectation of privacy. 690
F.3d at 774-75. No such search took place here. The State also appears to argue that Skinner
suggests that prepaid cell phones are afforded less protection than postpaid cell phones. This
interpretation, however, does not consider that article I, section 7 provides greater protections to
Washington citizens than comparable federal statutes and rulings. Gunwall, 106 Wash. 2d at 66.
Berniard has a legitimate and protected privacy interest in his own toll and calling
records, as well as his account and subscriber information. As recognized in Gunwall, a phone is
a necessary part of modern life, and phone communications are strongly protected in
Washington. 106 Wash. 2d at 67. Berniard’s privacy interest is not undermined because his
prepaid cell phone was not registered in his name. Instead, Berniard’s choice to not provide his
subscriber information shows that he took steps to ensure even greater privacy protections.
Butterworth, 48 Wash. App. at 155-57. Because Berniard has a constitutionally protected privacy
interest in the cell phone records subject to the search warrant, he has standing to challenge the
scope of the warrant.
10
No. 47726-2-II
B. Harmless Error
The State argues that any error in admitting the phone records was harmless. We agree.
We assume without deciding that the search warrant for Berniard’s cell phone records
was invalid. We apply a harmless error analysis when the trial court admits evidence that is a
product of an invalid warrant. State v. Keodara, 191 Wash. App. 305, 317, 364 P.3d 777 (2015).
Admission of evidence obtained in violation of the state constitution is an error of constitutional
magnitude. 191 Wash. App. at 317. An error of constitutional magnitude can be harmless if we
are convinced beyond a reasonable doubt that “any reasonable jury would have reached the same
result without the error.” State v. Smith, 148 Wash. 2d 122, 139, 59 P.3d 74 (2002). Constitutional
error is presumed to be prejudicial, and the State has the burden of proving the error was
harmless. Keodara, 191 Wash. App. at 317-18.
While Berniard’s phone records established that he was involved with Higashi, Knight,
and Reese and that he was present at the Sanderses’ home when the robbery and murder were
committed, this evidence was cumulative. At trial, Charlene made an in-court identification of
Berniard. Charlene also testified that Berniard hit her son, J.S., in the head with his firearm and
kicked her in the head while demanding to know the location of the family’s safe. In addition,
Berniard’s sister, Lacey, testified that she overheard Berniard talking about a robbery, and
Berniard’s codefendants’ cell phone records established that he was in contact with Knight and
Higashi throughout the evening of the robbery and murder. A reasonable jury would have
reached the same result without Berniard’s cell phone records. Therefore, the trial court’s error
in admitting Berniard’s cell phone records was harmless beyond a reasonable doubt.
11
No. 47726-2-II
II. HIGASHI’S STATEMENTS TO FORD
Berniard also argues the trial court abused its discretion by admitting hearsay statements
made by Higashi because the statements were not made during the course of or in furtherance of
a conspiracy. We disagree.
A trial court’s interpretation of the rules of evidence is a question of law we review de
novo. State v. DeVincentis, 150 Wash. 2d 11, 17, 74 P.3d 119 (2003). Its application of the rules to
particular facts is reviewed for abuse of discretion. 150 Wash. 2d at 17. A trial court abuses its
discretion when its evidentiary decision is manifestly unreasonable or based on untenable
grounds. State v. Foxhoven, 161 Wash. 2d 168, 174, 163 P.3d 786 (2007).
Under ER 801(d)(2)(v), a statement is not hearsay if it is offered against a party and is a
statement by a coconspirator made “during the course and in furtherance of the conspiracy.”
Before admitting coconspirator statements, the trial court must make an independent
determination that a conspiracy existed and that the defendant was a member of the conspiracy.
State v. Halley, 77 Wash. App. 149, 152, 890 P.2d 511 (1995). Where, as here, Washington’s rules
of evidence mirror their federal counterparts, we may look to federal case law interpreting the
federal rules as persuasive authority. In re Detention of Pouncy, 168 Wash. 2d 382, 392, 229 P.3d
678 (2010).
A conspiracy requires “‘concert of action, all the parties working together
understandingly, with a single design for the accomplishment of a common purpose.’” State v.
Sanchez-Guillen, 135 Wash. App. 636, 643, 145 P.3d 406 (2006) (quoting State v. Barnes, 85 Wn.
App. 638, 664, 932 P.2d 669 (1997)). A conspiracy ends when its objectives have either failed
12
No. 47726-2-II
or been achieved. Fed. R. Evid. 801(d)(2)(E) advisory committee’s note, 56 F.R.D. 183, 299
(1973).
Generally, courts interpret the “in furtherance” requirement broadly. State v. King, 113
Wash. App. 243, 280, 54 P.3d 1218 (2002). When determining whether a statement is made in
furtherance of a conspiracy, courts examine the declarant’s intent in making the statement and
not the statement’s actual effect in advancing the goals of the conspiracy. United States v.
Nazemian, 948 F.2d 522, 529 (9th Cir. 1991).
Statements made to encourage further participation or to inform a coconspirator about the
status of the conspiracy are sufficient. King, 113 Wash. App. 280. In addition, statements made
by a coconspirator in “an effort to conceal the conspirators’ illegal activities” are made in
furtherance of the conspiracy. United States v. Williams, 989 F.2d 1061, 1069 (9th Cir. 1993).
However, casual and retrospective statements about past events are admissible only if they
facilitate the criminal activity of the conspiracy. King, 113 Wash. App. at 281. Finally, mere
confessions and narrative declarations of a coconspirator are not statements made in furtherance
of a conspiracy. United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981).
Prior to trial, the State moved to admit Higashi’s statements to Ford as statements of a
coconspirator. The trial court granted the State’s motion, stating:
There’s no question we have a conspiracy. The conspiracy is to commit
robbery. But the robbery just doesn’t stop. It’s what you do after the robbery is
still part of the conspiracy of what they were trying to do . . . .
“And the statement in question describes the defendant’s role in the
conspiracy or implicates the defendant in some manner. . . .”
....
You argue that [Higashi’s statement] wasn’t [in the course of the
conspiracy] and it’s separated and different. I don’t think that’s the case. I think
the conspiracy continues until it’s done . . . . And that’s going to be my finding. I
think that the statements are admissible.
13
No. 47726-2-II
7 VTP at 164-65.
At trial, Ford testified that while at her home on the evening of April 28, 2010, Higashi
stated that he, Knight, Reese, and a man named XYG found an ad on Craigslist for a ring and
that they decided to rob the owners. He further explained that the four ransacked the Sanderses’
home, that he shot Jim Sanders multiple times, and that XYG “pistol whipped the youngest kid.”
12 VTP at 1040-41.
Then, Ford instructed Higashi that “if they wanted to get away [with] what they had just
done, they should all get together and make a story.” 13 VTP at 1097. Higashi called Knight
and Reese, and they arrived at Ford’s home. Ford told them to throw away any evidence that
may link the three to the Sanderses’ home, and she helped Higashi, Knight, and Reese dispose of
evidence of the home invasion.
Here, the parties do not dispute that a conspiracy between Berniard and his three
codefendants existed. Instead, Berniard argues that the conspiracy no longer existed at the time
of Higashi’s statements to Ford because the robbery was complete. Although the criminal act of
robbery was complete at the time of Higashi’s statements, the criminal objectives of the
conspiracy—to successfully escape and make a profit by illegal means—were not yet achieved.12
As a result, Higashi’s statements to Ford were made in the course of the conspiracy.
12
See United States v. Sears, 663 F.2d 896, 905 (9th Cir. 1981) (holding that statements made
while the defendants were escaping from a robbery were in the course of and in furtherance of
the conspiracy because the statements served to further the objectives of the conspiracy—to rob
and escape successfully); Atkins v. United States, 307 F.2d 937, 940 (9th Cir. 1962) (holding that
statements relating to the division of profits were admissible because the criminal aim of the
conspiracy was not to commit robbery but to make a profit by illegal means).
14
No. 47726-2-II
In addition, Higashi’s statements were made in furtherance of the conspiracy. It is
reasonable to interpret Higashi’s statements to Ford about the crimes he and his coconspirators
committed as an attempt to encourage her participation in the conspiracy. Higashi’s
retrospective account of the crime may have been made to encourage Ford to help him and his
codefendants successfully escape and make a profit from the items stolen from the Sanderses’
home. Accordingly, the trial court’s conclusion that the statement furthered the conspiracy and
its application of the rules of evidence to the facts at hand was not manifestly unreasonable or
based on untenable grounds. Therefore, the trial court did not abuse its discretion in admitting
Higashi’s statements.
III. PRIVACY ACT
Berniard also argues the trial court erred in denying his motion to suppress a video
recording obtained in violation of Washington’s privacy act because the recorded conversation
was private. We disagree.
Washington’s privacy act is “one of the most restrictive [privacy statutes] in the nation.”
State v. Townsend, 147 Wash. 2d 666, 672, 57 P.3d 225 (2002). The privacy act generally prohibits
the recording of any private communication without the consent of all parties involved in the
communication. See chapter 9.73 RCW. “Whether a particular conversation is private is a
question of fact, but where the facts are undisputed and reasonable minds could not differ, the
issue may be determined as a matter of law.” State v. Clark, 129 Wash. 2d 211, 225, 916 P.2d 384
(1996). We review questions of law de novo. State v. Kipp, 179 Wash. 2d 718, 726, 317 P.3d 1029
(2014).
15
No. 47726-2-II
To violate the privacy act, there must be (1) a private communication transmitted by a
device that was (2) intercepted or recorded by use of (3) a device designed to record and/or
transmit (4) without the consent of all parties to the private communication. State v. Christensen,
153 Wash. 2d 186, 192, 102 P.3d 789 (2004) (citing RCW 9.73.030). Recordings or information
obtained in violation of the privacy act are inadmissible in court. RCW 9.73.050.
The protections of the privacy act apply only to private communications. Clark, 129
Wash. 2d at 224. The privacy act does not define the term “private,” but it is to be given its
ordinary meaning: “belonging to one’s self . . . secret . . . intended only for the persons involved
(a conversation).” Clark, 129 Wash. 2d at 225. A communication is private if the parties manifest
a subjective intention that it be private and if the parties’ expectation is reasonable. Townsend,
147 Wash. 2d at 673. To determine the reasonableness of a party’s privacy expectation, we
consider “the duration and subject matter of the communication, the location of the
communication, and the presence of potential third parties.” State v. Roden, 179 Wash. 2d 893,
900, 321 P.3d 1183 (2014).
The reasonable privacy expectation standard requires a case-by-case consideration of all
the facts. Kipp, 179 Wash. 2d at 729. Normally, a private home is afforded maximum privacy
protection. 179 Wash. 2d at 731. However, that a conversation takes place with the public is
sufficient to find that a conversation is not private, even if the conversation takes place inside a
private home. Clark, 129 Wash. 2d at 226. “[T]he presence of one or more third parties . . . means
that the conversations were not private in any ordinary or usual meaning of that word.” 129
Wash. 2d at 228.
16
No. 47726-2-II
Here, Berniard moved to suppress the news station video interview of his mother, Joan,
and his sister, Lacey, who has developmental delays. Berniard argued that the video recording
violated Washington’s privacy act because the video recorded a private conversation between
Joan and Lacey without their express consent.
When Gertsch, a news anchor with KOMO 4 TV in Seattle, learned that Berniard had
been identified as the fourth participant in the Sanderses’ home invasion she went to his home.
Gertsch identified herself and her cameraman to Berniard’s aunt who then invited her into the
home.
Berniard’s aunt told Joan why Gertsch and her cameraman were at the home, and Gertsch
began talking to Joan in the living room. The cameraman had a large commercial TV camera
mounted on a tripod, pointed at Joan. While Gertsch interviewed Joan, Lacey walked into the
living room and told Joan, “I know what [Gertsch] is talking about.” 2 VRP at 319. Then,
Lacey was recorded saying she overhead Berniard discussing the robbery with their sister.
While Lacey’s disclosure certainly concerned a private matter, she did not have a
reasonable expectation of privacy in her conversation with Joan. Even if Lacey had a subjective
expectation of privacy in the conversation, her expectation was not objectively reasonable
because Gertsch and her cameraman were present during the disclosure. Because Lacey’s
conversation took place in the presence of third parties, the conversation cannot be said to be
“private in any ordinary or usual meaning of the word,” even though the communication took
place within a private home. Clark, 129 Wash. 2d at 228. Further, the commercial TV camera
pointed at Lacey and Joan while Joan spoke to Gertsch reduced any expectation of privacy in the
conversation. Accordingly, the video recording did not violate the privacy act because the
17
No. 47726-2-II
communication therein was not private. The trial court did not err in denying Berniard’s motion
to suppress the video recording.
IV. CUMULATIVE ERROR
Berniard also argues that the cumulative effect of the trial court’s errors denied him a fair
trial. We disagree.
The cumulative error doctrine applies when a trial is affected by several errors that,
standing alone, may not be sufficient to justify reversal. State v. Greiff, 141 Wash. 2d 910, 929, 10
P.3d 390 (2000). Cumulative error requires reversal when the combination of errors denies the
defendant a fair trial. 141 Wash. 2d at 929. Reversal is not required when there are few or no
errors and the errors, if any, have little to no effect on the outcome of the trial. State v. Weber,
159 Wash. 2d 252, 279, 149 P.3d 646 (2006).
As discussed above, Berniard fails to show that multiple errors occurred in his trial. The
sole error was the trial court’s admission of Berniard’s phone records. Because Berniard
establishes, at most, a single harmless error, we reject his cumulative error claim.
V. EXCEPTIONAL SENTENCE
Berniard also argues the trial court erred in imposing an exceptional sentence because the
aggravating factors found by the jury were inherent to the crimes charged and were not atypical.
We disagree.
Under the Sentencing Reform Act of 1981, a trial court must impose a sentence within
the standard range for a given offense. State v. Jennings, 106 Wash. App. 532, 555, 24 P.3d 430
(2001). However, a court may impose an exceptional sentence above the standard range if it
finds “substantial and compelling reasons” for doing so. State v. Davis, 146 Wash. App. 714, 719,
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No. 47726-2-II
192 P.3d 29 (2008). Aggravating factors that support a sentence above the standard range
include (1) when the defendant’s conduct manifests deliberate cruelty to the victim and (2) the
offense involved a high degree of sophistication or planning. RCW 9.94A.535(3)(a), (m). We
review the trial court’s reasons for imposing an exceptional sentence de novo. State v. Ferguson,
142 Wash. 2d 631, 646, 15 P.3d 1271 (2001).
To determine whether an aggravating factor supports departure from the standard
sentencing range, we apply a two-part test: “(1) The trial court may not base an exceptional
sentence on factors the Legislature necessarily considered in establishing the standard sentencing
range; and (2) the aggravating factor must be sufficiently substantial and compelling to
distinguish the crime in question from others in the same category.” Jennings, 106 Wash. App. at
555. Factors inherent in the crime, because they were necessarily considered by the Legislature,
may not be relied on to justify an exceptional sentence because “[a]n exceptional sentence is not
justified by mere reference to the very facts which constituted the elements of the offense proven
at trial.”13 Ferguson, 142 Wash. App. at 648.
Here, the jury returned guilty verdicts for all six of Berniard’s charges. The jury returned
special verdict forms determining that Berniard manifested deliberate cruelty in the commission
of the first degree robbery, second degree assault, and first degree burglary charges. The jury
13
Berniard also argues the State was required to present the jury with comparative evidence of
other first degree robberies, second degree assaults, and first degree burglaries to support its
finding that the aggravating factors were atypical. However, an atypical crime warranting an
exceptional sentence distinguishes itself from crimes of the same category without extrinsic
evidence. State v. Tili, 148 Wash. 2d 350, 369, 60 P.3d 1192 (2003) (“[T]hose factors that are
inherent in the particular class of crimes at issue may not serve to distinguish defendant’s
conduct from what is ‘typical’ for that crime and may not, therefore, serve as justification for an
exceptional circumstance.”).
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No. 47726-2-II
also returned special verdict forms finding that the first degree robbery, first degree assault of
Charlene, and first degree burglary charges involved a high degree of sophistication or planning.
The trial court imposed an exceptional sentence of 1,172 months.
A. Deliberate Cruelty
When a defendant’s conduct during the commission of a crime manifests deliberate
cruelty toward the victim, the trial court may impose an exceptional sentence. RCW
9.94A.535(3)(a). “Deliberate cruelty consists of gratuitous violence or other conduct that inflicts
physical, psychological, or emotional pain as an end in itself.” State v. Tili, 148 Wash. 2d 350, 369,
60 P.3d 1192 (2003). To justify an exceptional sentence, the cruelty must go beyond what is
normally associated with the commission of the charged offense or what is inherent in the
elements of the offense. 148 Wash. 2d at 369. Further, the deliberate cruelty alleged must be
atypical of the crime charged. State v. Delarosa-Flores, 59 Wash. App. 514, 518, 799 P.2d 736
(1990).
Here, the jury determined Berniard committed the charged offenses with manifest
deliberate cruelty toward the victims, and the trial court entered findings of fact justifying an
exceptional sentence. The jury heard evidence that Berniard was armed, held the Sanders
children at gunpoint, cursed at and threatened Charlene in an effort to obtain the combination to
the family safe, hit J.S. in the head with his firearm multiple times, and “kicked Charlene
Sanders in the head and then put his firearm to the back of her head, counting down as if he was
going to kill her.” CP at 342.
Berniard made multiple threats of death, hit J.S. and Charlene multiple times, and helped
to restrain the Sanders family. Generally, only the threat of force or one blow is necessary to
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No. 47726-2-II
charge first degree robbery, second degree assault, and first degree burglary. See State v. Sims,
67 Wash. App. 50, 61, 834 P.2d 78 (1992). Accordingly, Berniard’s conduct went beyond the
elements of the charged offenses and was atypical. Therefore, the trial court’s imposition of an
exceptional sentence was justified, and the trial court did not err in imposing Berniard’s
sentence.
B. Sophistication or Planning
To justify an exceptional sentence on the basis of the defendant’s high degree of
sophistication or planning, the sophistication must be “‘of a kind not usually associated with the
commission of the offense[s] in question.’” State v. Dunaway, 109 Wash. 2d 207, 219, 743 P.2d
1237 (1987) (alteration in original) (quoting State v. Payne, 45 Wash. App. 528, 531, 726 P.2d 997
(1986)); see RCW 9.94A.535(3)(d)(iii). To determine that an aggravating factor applies to an
accomplice, the jury must determine that the defendant had some knowledge that informs that
aggravating factor. State v. Hayes, 182 Wash. 2d 556, 566, 342 P.3d 1144 (2015).
“Planning a criminal act in a manner both qualitatively and quantitatively in excess of
that necessary to meet the elements inherent in the crime is a factor which may be considered in
justifying an exceptional sentence.” State v. Ross, 71 Wash. App. 556, 564, 861 P.2d 473 (1993),
amended, 71 Wash. App. 556, 883 P.2d 329 (1994). Further, sophistication in planning that is
beyond what is necessary to commit the crime supports an exceptional sentence. 71 Wash. App. at
564.
The jury heard evidence that Berniard and his codefendants targeted the Sanders family
after discovering an ad on Craigslist for an expensive ring, planned a ruse to gain entry into the
Sanderses’ home, and used an open phone line and Bluetooth technology to stay in contact
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No. 47726-2-II
throughout the home invasion. As a result, the jury found, and the trial court agreed, that
Berniard used a high degree of sophistication or planning that went beyond the elements of
second degree assault, first degree robbery, and first degree burglary. In addition, the trial court
and the jury determined that Berniard had knowledge of the sophistication and planning of the
home invasion.
Here, the crime exhibited a degree of sophistication and planning beyond that typical of
assault, robbery, or burglary. Berniard and his codefendants targeted the Sanders family and
acted in concert to invade their home. They wore masks, gathered the family in the same room,
tied them up, and ransacked the home while Berniard and a codefendant used threats to gather
information about where valuables were hidden. The home invasion demonstrated a level of
organization that could only be achieved by sophisticated planning prior to the crime. The
sophistication and planning is imputed on Berniard as an accomplice because he had knowledge
of the plan to rob the Sanderses. Accordingly, the imposition of an exceptional sentence on the
basis of sophistication or planning was justified. Therefore, the trial court did not err in
imposing Berniard’s sentence.
C. Void for Vagueness
In addition, Berniard argues that the aggravating factors were unconstitutionally vague
because no evidence of atypical crimes was presented. We disagree.
The due process vagueness doctrine requires that criminal statutes be specific enough to
give citizens fair notice of what conduct it proscribes. State v. Bahl, 164 Wash. 2d 739, 752-53,
193 P.3d 678 (2008). In addition, criminal statutes must “provide ascertainable standards of
guilt to protect against arbitrary arrest and prosecution.” State v. Baldwin, 150 Wash. 2d 448, 458,
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No. 47726-2-II
78 P.3d 1005 (2003). A statute that fails to meet these two requirements is unconstitutionally
vague. Bahl, 164 Wash. 2d at 753.
RCW 9.94A.535 provides that the trial court must impose a standard range sentence
unless substantial and compelling reasons justify an exceptional sentence. The sentencing
guideline statutes do not define criminal conduct or allow for arbitrary arrest and prosecution.
Baldwin, 150 Wash. 2d at 459. Laws that govern particular decisions given particular facts can
create a liberty interest, but laws granting a significant degree of discretion cannot. State v.
Duncalf, 164 Wash. App. 900, 911-12 n.2, 267 P.3d 414 (2011). Therefore, “the due process
considerations that underlie the void-for-vagueness doctrine have no application in the context of
sentencing guidelines.” Baldwin, 150 Wash. 2d at 459.
Because the void-for-vagueness doctrine does not apply to the sentencing guidelines,
Berniard’s claim is without merit. It is “[f]undamental . . . that a court is free to exercise
discretion in fashioning a sentence.” Baldwin, 150 Wash. 2d at 460. The sentencing guidelines are
designed to structure the trial court’s discretionary sentencing decisions. See 150 Wash. 2d at 461.
As a result, the exceptional sentencing guidelines do not require that a particular sentence be
imposed. Therefore, the aggravating factors found by the court in imposing an exceptional
sentence are not unconstitutionally vague.
VI. FIREARM ENHANCEMENT INSTRUCTIONS
Berniard also argues that the trial court committed a manifest error affecting a
constitutional right by instructing the jury on the firearm enhancements because the instruction
and special verdict forms failed to tell the jury that it could return a “no” verdict. Specifically,
Berniard argues the trial court’s instruction was a manifest constitutional error because it
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No. 47726-2-II
lowered the State’s burden of proof and was an improper comment on the evidence. The State
argues Berniard waived this point of appeal. We agree with the State.
The failure to timely object usually waives a claim of instructional error on appeal. RAP
2.5(a); State v. Williams, 159 Wash. App. 298, 312, 244 P.3d 1018, review denied, 171 Wash. 2d
1025 (2011). A defendant may, however, raise a claim of error for the first time on appeal if it is
a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Gordon, 172 Wash. 2d 671,
676, 260 P.3d 884 (2011). To demonstrate manifest error, the defendant must show actual
prejudice by identifying a constitutional error and showing that the alleged error actually affected
his rights at trial. Gordon, 172 Wash. 2d at 676. To determine if the defendant claims a manifest
constitutional error, we preview the merits of the defendant’s claim to see if it would succeed.
State v. Kirwin, 165 Wash. 2d 818, 823, 203 P.3d 1044 (2009).
We review alleged errors of law in jury instructions de novo. State v. Fleming, 155 Wn.
App. 489, 503, 228 P.3d 804 (2010). Jury instructions are sufficient when they allow each party
to argue its theory of the case, are not misleading, and inform the jury of the applicable law. 155
Wash. App. at 503-04. In addition, a jury must unanimously find beyond a reasonable doubt any
aggravating circumstance that increases the penalty for a crime. State v. Guzman Nuñez, 174
Wash. 2d 707, 712, 285 P.3d 21 (2012). Unanimity is required to either answer “yes” or “no” on a
special verdict form for an aggravating factor. 174 Wash. 2d at 716-17.
Berniard’s charges for first degree murder and first degree robbery carried firearm
enhancements. For the firearm enhancements, the trial court instructed the jury:
If you find the defendant guilty of a specific crime, you will then use the special
verdict form for that count. In order to answer the special verdict forms “yes,” all
twelve of you must unanimously be satisfied beyond a reasonable doubt that “yes”
is the correct answer. If you do not unanimously agree that the answer is “yes” then
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No. 47726-2-II
the presiding juror should sign the section of the special verdict form indicating that
the answer has been intentionally left blank.
CP at 280. The special verdict forms included a blank space for the jurors to indicate their
answer. The blank was followed by: “Write ‘yes’ if unanimous agreement that this is the correct
answer.” CP at 297, 298. Berniard did not object, and the jury found that the firearm
enhancement applied to both charges.
The State argues the trial court’s enhancement instruction was not improper because the
instruction is similar to the instruction in State v. Brett, 126 Wash. 2d 136, 892 P.2d 29 (1995),
which was endorsed in Guzman Nuñez. 174 Wash. 2d at 719. The instruction here, however, is
distinguishable. In Brett, the trial court instructed the jury that it “must unanimously agree upon
which, if any, of the aggravating circumstances set forth . . . [was] proved beyond a reasonable
doubt.” 126 Wash. 2d at 173. The jury was then instructed to indicate “yes” or “no” according to
the unanimous decision it reached. 126 Wash. 2d at 173. If, however, the jury was unable to reach
a unanimous decision, it was instructed to leave the special verdict form blank. 126 Wash. 2d at
173. The Guzman Nuñez court concluded that because the Brett instruction stated that the jury
could leave the special verdict form blank, it was a more accurate statement of the State’s burden
of proof. 174 Wash. 2d at 719.
Here, the trial court instructed the jury only to answer the special verdict forms if it
unanimously concluded that Berniard was armed with a firearm at the time of the offenses.
While the trial court properly instructed the jury that it may leave the special verdict forms blank
if it did not unanimously agree that the answer was “yes,” it did not instruct the jury to answer
“no” on the verdict forms if it unanimously agreed on the absence of the firearm enhancement.
Accordingly, the trial court’s instructions were improper. While the instructions were erroneous,
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No. 47726-2-II
Berniard does not argue how his rights were actually affected at trial. He cannot show actual
prejudice because the jury was still free to reject the firearm enhancement. Further, the jury
returned “yes” verdicts on each special verdict form, showing that the jury found that the State
met its burden of proof. Therefore, Berniard fails to raise a manifest error affecting a
constitutional right.
Berniard attempts to portray his claim as a constitutional error by arguing that the trial
court’s instruction constituted an improper comment on the evidence presented at trial.
However, Berniard’s argument fails because an instruction improperly comments on the
evidence only when it resolves an issue of fact that should have been left to the jury. State v.
Becker, 132 Wash. 2d 54, 64-65, 935 P.2d 1321 (1997). While the jury was not instructed that it
could unanimously answer “no” on the special verdict forms, it was permitted to leave the forms
blank if it did not unanimously agree to the enhancement. Accordingly, the trial court did not
suggest that the jury did not need to consider the firearm enhancements, and it left the issue of
fact to the jury.
In addition, Berniard’s argument that the instruction lowered the State’s burden of proof
is unpersuasive. Berniard argues that the instruction lowered the State’s burden of proof because
it presumed his guilt. Notwithstanding the trial court’s failure to require the jury to unanimously
determine the absence of a sentencing enhancement, the jury was required to answer “yes” to the
special verdict form if its decision was unanimous and found beyond a reasonable doubt.
Accordingly, the State retained its burden to prove the enhancement unanimously and beyond a
reasonable doubt.
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No. 47726-2-II
In conclusion, Berniard fails to raise a manifest error affecting a constitutional right, and
we do not review this claim of error.
VII. APPELLATE COSTS
In his reply brief, Berniard asks that we refrain from awarding appellate costs against
him. Under RCW 10.73.160(1), we may order adult offenders to pay appellate costs. However,
we have the discretion to waive appellate costs. RAP 14.2; State v. Sinclair, 192 Wash. App. 380,
389-90, 367 P.3d 612 (2016).
The trial court found that Berniard was indigent. We must presume under RAP 15.2(f)
that he remains indigent “throughout the review” unless the trial court finds that his financial
condition has improved. Therefore, we exercise our discretion to waive appellate costs.
We affirm Berniard’s convictions and waive appellate costs.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Maxa, A.C.J.
Sutton, J.
27