Personal Restraint Petition Of Harold John Murphy ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE
PERSONAL RESTRAINT OF: No. 83195-0-1
HAROLD JOHN MURPHY, Jr., DIVISION ONE
Petitioner. UNPUBLISHED OPINION
Hazelrigg, A.C.J. — In 2018, Harold Murphy was convicted of a number of
felonies which were affirmed on direct appeal by this court. Murphy timely filed
this personal restraint petition in which he raises nine claims, including ineffective
assistance of trial and appellate counsel, and seeks an order vacating his
convictions. Because Murphy fails to demonstrate actual and substantial prejudice
as to any and all claims, we deny his petition.
FACTS
Murphy was found guilty of one count each of attempted theft in the first
degree and assault in the second degree, both with firearm enhancements, 1 one
count of unlawful possession of a firearm in the first degree (UPF1), 2 and three
additional counts of attempted theft in the first degree without enhancements.3
This court affirmed his convictions in an unpublished opinion. State v. Murphy, No.
78231-2-I, slip op. at 1 (Wash. Ct. App. Apr. 13, 2020) (unpublished),
1 Counts 1 and 2.
2 Count 3.
3 Counts 4, 5, and 6.
No. 83195-0-I/2
https://www.courts.wa.gov/opinions/pdf/782312.pdf, review denied, 196 Wn.2d
1005 (2020). The charges against Murphy arose from a bank fraud scheme
targeting Boeing Employees Credit Union (BECU) that involved deposits of fake
checks into accounts and withdrawals of provisional funds from those accounts.
Id. at 1. The relevant facts were set out in Murphy’s direct appeal as follows:
In June 2016, Murphy met Samantha Tinoco and her friend
Taya Sneed and recruited them to work for him. Murphy told Sneed
he wanted to hire her to promote him as a rapper. Tinoco thought
she would be working as a model for Murphy’s rap videos. Murphy
told the women he would pay them in advance but first they needed
to deposit checks in their BECU accounts because his account was
“full.”
Sneed testified Murphy told her that “they weren’t able to get
their money, so they put those checks in our name so that we could
get it for them, and were also saying that it’s going to, like, turn into
ours.” Tinoco and Sneed also gave Murphy their debit cards and
PINs. 4 Murphy claimed he needed the debit cards “because he was
doing a show” in Portland, Oregon.
Murphy and a friend showed the women an “envelope full of”
checks. The checks were from businesses like Seattle City Light and
Aerotek and made payable to Tinoco and Sneed. Murphy drove the
women to several BECU branches to deposit the checks and
withdraw the cash for him. While in Murphy’s car, both Sneed and
Tinoco saw a gun in the glove compartment. When Sneed asked
about the gun, Murphy said he “only uses it when he needs it.”
Between June 10 and 13, Tinoco deposited four checks,
immediately withdrew the cash, and gave it to Murphy. Sneed
attempted to deposit checks on three occasions. On the third
attempt, the teller refused the transaction because too much money
had gone through Sneed’s account. Later that day, Sneed and
Tinoco spoke with a friend who alerted them to the fraudulent
scheme. Sneed and Tinoco went to BECU to report the fraud on June
13. By that time, Sneed had deposited and withdrawn almost $5,000
for Murphy. Tinoco had deposited and withdrawn nearly $9,800.
Celeste Barker-Henry testified about her role in a similar
incident around the same time. Barker-Henry was experiencing
financial troubles and Murphy and his friend told her they could help.
They sat in Murphy’s car in a parking lot and Murphy offered to write
her a check for the money she needed. Barker-Henry gave Murphy
4 Personal identification numbers.
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her debit card and PIN. While she was in Murphy’s car, Barker-Henry
saw a gun in the center console.
The next day on June 15, Murphy gave Barker-Henry a check
from Swedish Hospital made payable to her. He told her to deposit
the check in her BECU account. Murphy explained that he would
withdraw some of the money and leave the amount she needed in
her account. When Barker-Henry attempted to deposit the check, the
teller informed her the check was “fake.” A bank security employee
told Barker-Henry to return the next day to discuss the incident.
When Barker-Henry left BECU approximately 20 minutes after she
entered the bank, Murphy was gone.
Barker-Henry returned to BECU the next day as instructed.
The BECU fraud investigator showed her evidence that Murphy had
used her debit card to deposit a fraudulent check at an ATM 5 and
withdraw cash. A month later, Barker-Henry met with King County
Sheriff’s Detective Robin Fry and identified Murphy from a
photomontage.
Murphy’s younger cousin Rolazja Stewart-Satterwhite also
testified about her involvement in his scheme. On June 30, Stewart-
Satterwhite and her cousin Alysha Stevens 6 met Murphy, who told
Stewart-Satterwhite she needed to go into a bank to deposit a check
for him. Stewart-Satterwhite refused, but Murphy took a gun from the
glove compartment of his car and pressed the barrel into her side. At
that point, Stewart-Satterwhite agreed. At Murphy’s direction,
Stevens then drove Stewart-Satterwhite to a BECU branch in his car.
Initially, Stewart-Satterwhite attempted to deposit the check at
the drive-through teller. The teller told them the large amount of the
check required deposit inside the bank. Stewart-Satterwhite texted
this information to Murphy, who told her to “remain calm” and delete
their messages. When Stewart-Satterwhite and Stevens went into
the bank, they were escorted into an office to speak with two BECU
employees, including financial crime investigator Trichell Avaava.
Eventually, Stewart-Satterwhite explained the situation.
Stewart-Satterwhite was worried about returning to Murphy
without the cash. In response, Avaava enacted a plan. Avaava wrote
Stewart-Satterwhite a false receipt that showed the deposit was
pending in her account and would be available after the upcoming
July 4 holiday. Stewart-Satterwhite showed the receipt to Murphy
and told him that BECU wanted her to go into the branch after July 4
to sign for the large amount of money. Murphy told Stewart-
Satterwhite to comply.
On July 7, the day the money was supposed to be available,
Stewart-Satterwhite was with Detective Fry and exchanged
5 Automated teller machine.
6 Stevens and Murphy are not related.
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No. 83195-0-I/4
messages with Murphy. When Murphy met Stewart-Satterwhite to
pick up his money, officers arrested him.
The State charged Murphy with one count of attempted theft
in the first degree and assault in the second degree with firearm
enhancements related to the incident involving Stewart-Satterwhite.
The State charged him with three additional counts of attempted theft
in the first degree stemming from the activities with Tinoco, Sneed,
and Barker-Henry. Due to his criminal history, the State also charged
Murphy with [UFP1]. A jury convicted Murphy as charged. With an
offender score of 10, the court imposed a concurrent high-end
standard-range sentence of 170 months of confinement.
Id. at 2-5.
On direct appeal, Murphy argued that (1) the trial court erroneously denied
his motion to bifurcate or sever the UPF1 count from the other five counts, (2) the
prosecutor committed misconduct by improperly commenting on his right to remain
silent, (3) his counsel was ineffective for failing to raise various objections, (4)
cumulative error deprived him of a fair trial, and (5) sufficient evidence did not
support his convictions. We affirmed. Id. at 16.
Murphy then timely filed this personal restraint petition (PRP) in which he
raised numerous claims, nine of which were referred to the panel by order of this
court. 7
ANALYSIS
I. Standards for Collateral Relief
“To obtain relief from a PRP based on a constitutional error, a petitioner
must show two things: (1) a constitutional error occurred and (2) the error resulted
in actual and substantial prejudice.” In re Pers. Restraint of Williams, 198 Wn.2d
7 Order Dismissing Personal Restraint Petition in Part and Referring Remaining Claims to
a Panel of Judges, In re Pers. Restraint of Murphy, No. 83195-0-I (Wash. Ct. App. July 10, 2023).
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342, 353, 496 P.3d 289 (2021). The petitioner must demonstrate such prejudice
by a preponderance of the evidence. In re Pers. Restraint of Davis, 152 Wn.2d
647, 671-72, 101 P.3d 1 (2004). In other words, the “petitioner has the burden of
establishing that, more likely than not, he was actually prejudiced by the claimed
error.” In re Pers. Restraint of Hews, 99 Wn.2d 80, 89, 660 P.2d 263 (1983). “But
‘bare allegations unsupported by citation of authority, references to the record, or
persuasive reasoning cannot sustain this burden of proof.” In re Pers. Restraint of
Pheth, 20 Wn. App. 2d 326, 332, 502 P.3d 920 (2021) (quoting State v. Brune, 45
Wn. App. 354, 363, 725 P.2d 454 (1986)). Actual prejudice is determined “in light
of the totality of circumstances.” In re Pers. Restraint of Music, 104 Wn.2d 189,
191, 704 P.2d 144 (1985). If the petitioner fails to make this prima facie showing,
the “petition will be dismissed.” In re Pers. Restraint of Cook, 114 Wn.2d 802, 810,
792 P.2d 506 (1990).
The standard of review on nonconstitutional claims is different and a “mere
showing of prejudice” is insufficient. Davis, 152 Wn.2d at 672. Nonconstitutional
errors are only considered when “‘the claimed error constitutes a fundamental
defect which inherently results in a complete miscarriage of justice.’” Id. (quoting
Cook, 114 Wn.2d at 813).
II. Ineffective Assistance of Counsel
Because Murphy contends that his trial and appellate counsel were both
ineffective for failing to raise the various claims he now asserts in this PRP, we set
out the ineffective assistance of counsel (IAC) standards here and apply them at
the conclusion of each substantive challenge wherein Murphy also alleges IAC.
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“The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee the right to effective
assistance of counsel.” State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011).
Pursuant to Strickland v. Washington, a successful IAC claim requires the
defendant to make two fundamental showings: “First, the defendant must show
that counsel’s performance was deficient. . . . Second, the defendant must show
that the deficient performance prejudiced the defense.” 466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). “If either element of the test is not satisfied, the
inquiry ends.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). If a PRP
satisfies the two-part Strickland test, the “petitioner has necessarily met the burden
of proving ‘actual and substantial prejudice’” for collateral relief. In re Pers.
Restraint of Crace, 174 Wn.2d 835, 845, 280 P.3d 1102 (2012).
The first prong of the test requires the defendant to demonstrate that
counsel’s representation was deficient. State v. McFarland, 127 Wn.2d 322, 334,
899 P.2d 1251 (1995). To meet this burden, they must show that counsel’s
performance “fell below an objective standard of reasonableness based on
consideration of all the circumstances.” Id. at 334-35. We apply “a strong
presumption [that] counsel’s representation was effective.” Id. at 335. “When
counsel’s conduct can be characterized as legitimate trial strategy or tactics,
performance is not deficient.” Kyllo, 166 Wn.2d at 863.
The second prong of the test requires the defendant to show that “counsel’s
deficient representation prejudiced the defendant, i.e., there is a reasonable
probability that, except for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” McFarland, 127 Wn.2d at 335. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In determining whether the identified errors
resulted in such prejudice, we presume, “absent challenge to the judgment on
grounds of evidentiary insufficiency, that the judge or jury acted according to law.”
Id. at 695.
To prevail on an IAC claim concerning appellate counsel, the petitioner
“must demonstrate the merit of any legal issue appellate counsel raised
inadequately or failed to raise” and also “demonstrate actual prejudice.” In re Pers.
Restraint of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918 (2013); In re Pers.
Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994). “Failure to raise all
possible nonfrivolous issues on appeal is not ineffective assistance.” Lord, 123
Wn.2d at 314. But “if a petitioner can show that [their] appellate counsel failed to
raise an issue with underlying merit, then the first prong of the ineffective
assistance test is satisfied.” In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 787,
100 P.3d 279 (2004). To satisfy the prejudice prong, the petitioner must “show a
reasonable probability that, but for [their] counsel’s unreasonable failure to file a
merits brief, [they] would have prevailed on [their] appeal.” Smith v. Robbins, 528
U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).
III. Invalid Search Warrant
Murphy’s first claim is that warrant no. 16-717 violated his constitutional
rights under the Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington Constitution because it was overbroad and not
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No. 83195-0-I/8
particularized. The State concedes that the search warrant was invalid for lack of
particularity, 8 but argues that Murphy is not entitled to relief because he failed to
demonstrate actual and substantial prejudice in light of the “overwhelming
untainted evidence to prove each charge.”
“Both the Fourth Amendment and article I, section 7 require that a search
warrant describe with particularity the place to be searched and the persons or
things to be seized.” State v. Vance, 9 Wn. App. 2d 357, 363, 444 P.3d 1214(2019); see also State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993) (warrants
must “describe with particularity the things to be seized”). The particularized
description of the “things to be seized” must be “in the warrant, not in the supporting
documents.” Groh v. Ramirez, 540 U.S. 551, 557, 124 S. Ct. 1284, 157 L. Ed. 2d
1068 (2004). Otherwise, the warrant is invalid on its face and per se
unconstitutional. Id.Here, Detective Robin Fry submitted an affidavit for a search warrant in
which she identified five cell phones that she believed contained evidence of
Murphy’s alleged crimes. In support of a finding of probable cause, the affidavit
included a detailed narrative that there was “evidence of those crimes” on the
identified cell phones. However, the search warrant that was ultimately issued
made no particularized reference as to which cell phones were to be searched.
Although courts “may construe a warrant with reference to a supporting application
or affidavit if the warrant uses appropriate words of incorporation, and the
supporting document accompanies the warrant,” Id. at 557-58, the affidavit here
8 Because the State correctly concedes the warrant was constitutionally invalid for lack of
particularity, we do not consider Murphy’s additional argument that the warrant was also overbroad.
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No. 83195-0-I/9
did not accompany the warrant. Accordingly, the State’s concession is correct; the
warrant was facially invalid.
A. Actual and Substantial Prejudice
On direct appeal, “if trial error is of constitutional magnitude, prejudice is
presumed and the State bears the burden of proving it was harmless beyond a
reasonable doubt.” State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013).
To determine whether the error was harmless, this court applies the
“‘overwhelming untainted evidence test.’” State v. Elwell, 199 Wn.2d 256, 270,
505 P.3d 101 (2022) (internal quotation marks omitted) (quoting State v.
Thompson, 151 Wn.2d 793, 808, 92 P.3d 228 (2004)). Generally, under that test,
it is the State’s burden to show beyond a reasonable doubt that the untainted
evidence admitted at trial was “‘so overwhelming that it necessarily leads to a
finding of guilt.’” Id. (quoting Thompson, 151 Wn.2d at 808). However, on
collateral review, “we shift the burden to the petitioner to establish that the error
was not harmless; in other words, to establish that the error was prejudicial.” In re
Pers. Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982). Thus,
Murphy must show by a preponderance of the evidence that he was actually and
substantially prejudiced by the warrantless search. See Davis, 152 Wn.2d at 671-
72.
Murphy points to the following evidence that was retrieved from his phone:
the photo of a Makarov handgun next to Barker-Henry’s debit card, text messages
between himself and his friend, Zaheed Lynch, and between himself and Aviel
Marie, the registered owner of the Dodge Challenger. In his opening brief,
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Murphy’s entire argument on the prejudice aspect of this assignment of error is
constrained to two paragraphs in which he identifies Stewart-Satterwhite’s
testimony that the gun in the photograph was similar to the one Murphy had pointed
at her and asserts that the State’s arguments at trial were based on the text
messages from the phone. According to Murphy, his cell phone “contained a trove
of prejudicial information” that was used against him at trial and all of that evidence
was “extremely prejudicial.” However, Murphy offers only one sentence from the
State’s closing argument in which it quoted a text from Murphy’s phone and stated,
“[f]ind a bitch with a BECU account and we can hit it for $15K,” and does not specify
which counts were impacted or otherwise provide argument as to the nature of the
asserted prejudice. Such allegations without “citation of authority, references to
the record, or persuasive reasoning” are insufficient to meet his burden of proving
actual and substantial prejudice. Pheth, 20 Wn. App. 2d at 332. Accordingly,
Murphy is not entitled to collateral relief on this basis.
B. IAC Stemming from Invalid Search Warrant
The State asserts that “a timely motion to suppress the evidence found only
on Murphy’s phones would likely have been granted” and concedes that “trial
counsel’s failure to challenge the cell phone search warrant was deficient.” 9 We
agree. However, Murphy must also establish prejudice under the Strickland
standard in order to obtain relief. Crace, 174 Wn.2d at 845. To do so, he “must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
9 We accept this concession as the warrant was unconstitutional on its face.
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No. 83195-0-I/11
U.S. at 694. Under this framework, the issue is whether Murphy has shown that
the evidence obtained as a result of the invalid search warrant is “sufficient to
undermine confidence in the outcome.” Id.
In his opening petition, Murphy provides no prejudice argument under the
Strickland standard regarding the evidence obtained through the defective
warrant; he merely states that his trial counsel “failed to file a suppression motion
based upon the defective search warrant” (a fact conceded by the State) and “trial
counsel’s failure to raise a suppression motion was ineffective” (a legal conclusion
without supporting analysis). 10 In his reply brief, Murphy dedicates substantial
argument as to the State’s reliance on the cell phone evidence and its “prejudicial”
effect on the proceeding under Strickland. But this argument “raised for the first
time in a reply brief is too late for consideration.” State v. Pervez, 15 Wn. App. 2d
265, 272 n.11, 478 P.3d 103 (2020). Accordingly, we decline to reach the merits
10 Murphy also opines that the State committed a violation under Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because it had actual knowledge of the defects
in the warrant and thus had an obligation to disclose those defects to Murphy’s trial counsel, who
“would have [then] filed a suppression motion.”
To establish a Brady violation, Murphy has the burden to demonstrate the three following
elements: “[(1)] The evidence at issue must be favorable to the accused either because it is
exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the
State, either willfully or inadvertently; and [(3)] prejudice must have ensued.” Strickler v. Greene,
527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). As our Supreme Court has
explained, “if the means of obtaining the exculpatory evidence has been provided to the defense,
the Brady claim fails.” State v. Mullen, 171 Wn.2d 881, 896, 259 P.3d 158 (2011) (quoting United
States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir. 1985).
Murphy does not contend that the State failed to disclose either the facially invalid warrant
or the affidavit upon which it was based. As Murphy had access to both and failed to file a
suppression motion, this does show that his trial counsel performed deficiently, but it does not show
that the State committed a violation of Brady. Even assuming arguendo that the State was
obligated to disclose its opinions and conclusions as to the validity of the warrant, i.e., its work
product under CrR 4.7(f)(1), Murphy’s claim would still fail as he does not show prejudice.
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No. 83195-0-I/12
of Murphy’s IAC claim as it relates to the alleged prejudice resulting from the invalid
warrant. 11
IV. Sufficiency of Evidence in Counts 4, 5, and 6
Murphy argues that counts 4, 5, and 6 should be vacated on sufficiency
grounds because none of the individual transactions relied upon for those counts
exceeded the $5,000 threshold under the theft statute and the jury was not
instructed to aggregate the amounts.
When a conviction is based on insufficient evidence, it violates “the due
process clause of the Fourteenth Amendment and thus results in unlawful
restraint.” In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277(2011). “The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth
of the State’s evidence and all inferences that reasonably can be drawn therefrom.”
State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990). “[Q]uestions of
credibility, persuasiveness, and conflicting testimony must be left to the jury.”
Martinez, 171 Wn.2d at 364.
In counts 4, 5, and 6, the State charged Murphy with attempted theft in the
first degree pursuant to RCW 9A.56.030(1)(a). The jury was instructed that theft
11 It is noteworthy that in Murphy’s direct appeal, we rejected his sufficiency claims without
mentioning any of the evidence obtained through the warrantless cell phone search. See Murphy,
slip op. at 14.
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No. 83195-0-I/13
in the first degree requires “theft of property exceeding $5,000 in value.” 12 “Theft”
was defined as follows: “to wrongfully obtain the property of another, with intent to
deprive that person of such property, or by color or aid of deception, to obtain
control over the property of another, with intent to deprive that person of such
property.” 13 Further, the instructions provided that “[w]henever any series of
transactions that constitutes theft is part of a common scheme or plan, then the
sum of the value of all transactions shall be the value considered in determining
the degree of theft involved.” The language of the to-convict instructions 14 required
the State to prove beyond a reasonable doubt that, with the intent to commit theft
in the first degree, Murphy did an act that constituted a substantial step 15 toward
the commission of that crime.
Murphy asserts “there was no evidence of a substantial step towards the
commission of or intent to commit theft of over $5,000.”
A. Count 4—BECU and Barker-Henry
Barker-Henry recalled planning to meet up with Murphy at the BECU in
Tukwila on June 15, 2016. That day, they met at a Starbucks in the area before
Murphy drove her to BECU. Barker-Henry explained that Murphy told her to walk
into the BECU and deposit a check for $2691.34 into her account. Murphy gave
her the check, made out to her name, and she walked into the BECU branch,
12 This language aligns with the statutory definition provided in RCW 9A.56.030(1)(a). The
jury was also instructed that “value” means “the market value of the property at the time and in the
approximate area of the act.”
13 This follows the statutory definition under RCW 9A.56.020(1).
14 “Criminal attempt” is defined under RCW 9A.28.020(1) and matches the jury instruction
provided here.
15 A “substantial step” was defined as “conduct that strongly indicates a criminal purpose
and that is more than mere preparation.”
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No. 83195-0-I/14
handed the check to the bank teller, and asked to deposit the check. When the
teller realized the check was fake, Barker-Henry briefly conversed with BECU
security and Tukwila police before leaving the bank. She also confirmed through
security camera photographs, taken from the ATM on that same day at around the
same time, that Murphy had attempted to use her ATM card to deposit another
check for $2,579.61 in her name into her BECU account. A financial crime
investigator for BECU, Trichell Avaava, also testified to the aforementioned
deposits and confirmed the location and amount of both. Based on those two
attempted transactions, Avaava assessed BECU’s total exposure to be $5,270.95.
B. Count 5—BECU and Sneed
Sneed testified that she had a conversation with Murphy in which he
requested her full name, address, and phone number. The following day, Murphy
drove Sneed and Tinoco to Federal Way and went into some apartments where
he picked up an envelope full of checks. Sneed explained that “[a] lot” of those
checks had her name on them. Others were in Tinoco’s name. Sneed stated that
she and Tinoco were instructed to go into different banks and cash the checks,
which they did. Tinoco recalled depositing one check for $2,674.30 into an ATM
and another for $2,370.85 inside of a bank. Avaava verified the amount of the first
transaction, which was made at a BECU ATM, and the second, which was made
at the BECU Everett branch. Avaava’s assessment was that the total exposure to
BECU was $5,065.15.
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C. Count 6—BECU and Tinoco
Tinoco testified that Murphy asked for her identification and told her she
would get $6,000 in advance for modeling work. Murphy and “Marcus” 16 explained
to Tinoco that “they would just give [her] checks, and they would just give [her] it
in cash.” They also told Tinoco that they needed her to deposit and cash the
checks because “their accounts were full.” Tinoco recalled going to Murphy’s dad’s
house in Federal Way with Sneed, Murphy, and Marcus. She stated that Murphy
and Marcus told her and Sneed to stay in the car while they went into an apartment,
and when they came back to the car, Murphy and Marcus showed them two checks
that were made out to Tinoco and Sneed. Tinoco recalled obtaining about $9,000
or $10,000 from cashing checks in her BECU account. While she “believed it was
two” checks that made up the total amount, the State introduced copies of four
checks made out to and signed by Tinoco. The checks were for $2,388.64,
$2,480.56, $2,587.61, and $2,351.84. Avaava verified that all four checks were
used in transactions with BECU and the total loss or exposure to BECU was
$9,808.65.
Viewed in the light most favorable to the State, the evidence shows that
Murphy made multiple substantial steps towards theft in the first degree as to each
of these separate victims. Though the transactions were not all successful, a
reasonable juror could conclude that Murphy had the intent to steal an amount
over $5,000 when he obtained the women’s personal information, procured
fraudulent checks in their names, provided those checks to the women, drove them
16 “Marcus” is an associate of Murphy who did not testify.
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to various BECU locations, and directed them to deposit and cash the checks.
Moreover, the value of the checks underlying each count exceeded the $5,000
statutory threshold. Based on this evidence, a rational trier of fact could have
concluded that Murphy was guilty beyond a reasonable doubt and thus, his claim
of insufficiency fails as to these three counts.
V. To-Convict Instructions for Counts 1, 4, 5, and 6
Murphy next argues that the to-convict instructions for counts 1, 4, 5, and 6
violated his rights to jury unanimity, due process of law, and notice of the charge.
We disagree.
A. Omission of the Victims’ Names
Murphy asserts that the failure to name each of the victims in the to-convict
instructions for counts 1, 4, 5, and 6 violated his constitutional rights to notice of
the charge and juror unanimity.
“Accused persons have the constitutional right to know the charges against
them.” State v. Pry, 194 Wn.2d 745, 751, 452 P.3d 536 (2019); U.S. CONST.
amend. VI; W ASH. CONST. art. I, § 22. The State provides notice of charges by the
filing of an information, which must set “forth every essential statutory and
nonstatutory element of the crime.” Id. An element is essential if it “‘is one whose
specification is necessary to establish the very illegality of the behavior.’” Id. at
752 (quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)). “[I]n
cases of theft and larceny proof of ownership of the stolen property in the specific
person alleged is not essential,” and thus, the victim’s name is “not a necessary
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element of a theft instruction.” State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143(1995). However, “allegations of ownership must be sufficiently stated in an
information to establish that the property was not that of the accused.” Id.While the to-convict instructions for attempted theft in the first degree as
charged in counts 1, 4, 5, and 6 did not specify the alleged victims, the second
amended information did. As the charging document sufficiently stated that the
property at issue was not Murphy’s, the State provided proper notice of the
charges.
Murphy also argues that the jury could have based the convictions on
government entities not named in the charging document because no instruction
was given about the “allocation of loss between BECU, the four women, and the
entities whose checks were forged.” Because government entities cannot be
victims of theft under RCW 9A.56.020, Murphy avers that the evidence was
insufficient to support these counts. His argument is unpersuasive.
When the parties discussed the to-convict instructions for attempted theft in
the first degree prior to closing arguments, defense counsel objected to the State’s
proposed instructions based on the failure to specifically name the alleged victims.
The State, which proposed WPIC 100.02, 17 assured that it would “be making very
17 WPIC 100.02 provides the following:
To convict the defendant of the crime of attempted (fill in crime), each of the
following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant did an act that was a substantial
step toward the commission of (fill in crime);
(2) That the act was done with the intent to commit (fill in crime); and
- 17 -
No. 83195-0-I/18
clear elections during closing with respect to [c]ounts 1, 4, 5, and 6, and which
checks and which young woman’s actions those are corresponding to.” The trial
court accepted the State’s proposed instructions.
During closing arguments, the State explained to the jury that “under each
of these counts, you are given the responsibility of gathering together, of summing
up the value of the transactions under each of the accounts,” which is “why we’ve
separated these counts by the woman involved and the bank account involved.”
For each count of attempted theft, the State specified the victim whose BECU
account was used along with the fraudulent checks relied upon. Because the State
made clear elections by expressly naming the alleged victims for each count and
Murphy provides no support for his contention that the jury would have disregarded
those elections and based the convictions on government entities as the victims,
his argument fails.
Murphy next argues that the lack of named victims in the instructions
violated his right to a unanimous jury verdict under State v. Stephens, 93 Wn.2d
186, 190-91, 607 P.2d 304 (1980). He is mistaken. Stephens was “charged with
one count of assault against two victims conjunctively,” i.e., the instruction provided
that the “jury must find ‘the defendant knowingly assaulted Richard Heieck or
(3) That the act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable
doubt as to any one of these elements, then it will be your duty to return a verdict
of not guilty.
11A W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 100.02, at 492
(5th Ed. 2021).
- 18 -
No. 83195-0-I/19
Norman Jahnke.” Id. at 189. That instruction was erroneous as it “allowed
conviction if, e.g., six jurors believed Stephens assaulted Jahnke and six believed
he assaulted Heieck.” Id. at 190. The court explained that “[t]he instruction, in
effect, split the action into two separate crimes . . . while the information charged
only one.” Id. Accordingly, the court held that this instruction violated Stephens’
right to a unanimous jury verdict. Id. at 190-91. Here, however, the instructions
did no such thing; the acts alleged by the State were not set out in the conjunctive
and none of the instructions split any one action into more than one crime. Rather,
the instructions remained in line with the second amended information and, at
closing argument, the State clearly identified which victim’s BECU account was at
issue in each separate count.
Notably, Murphy’s argument that the to-convict instructions were required
to name the alleged victims is directly contradicted by State v. Lee, 128 Wn.2d at
159. 18 There, the State charged Lee with theft in the second degree and though
the information included the names of the victims, the to-convict instructions did
not. Id. at 154. On appeal, Lee argued that the trial court erred by not instructing
the jury to unanimously agree on the identity of the theft victim. Id. at 156. Our
Supreme Court disagreed and explained that the name of the person whose
property was stolen is not an element of the crime and thus the instructions are not
required to name the victim. Id. at 158-59. In theft and larceny cases, “[t]he State
18 Murphy considers this portion of Lee to be nonbinding dicta because the court ultimately
reversed Lee’s conviction on sufficiency grounds. However, as the State notes, the discussion of
the unanimity issue in Lee is persuasive and directly on point here. See also, State v. Greathouse,
113 Wn. App. 889, 902, 56 P.3d 569 (2002) (“Lee does not stand for the proposition that an
information that fails to state the name of the owner of the stolen property is constitutionally
deficient.”).
- 19 -
No. 83195-0-I/20
is required to prove only that [the property] belonged to someone other than the
accused.” Id. at 159. Accordingly, the court held “there was no error in failing to
include the names of the victims in the ‘to convict’ instruction” and “no unanimity
instruction regarding the victim’s identity was needed.” Id. at 158, 160. The same
is true here. 19
Murphy also claims that his right to a unanimous verdict was violated
because the State did not elect the underlying acts it relied on to demonstrate a
“substantial step” and the court did not provide an instruction pursuant to State v.
Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). “Washington requires
unanimous jury verdicts in criminal cases.” Stephens, 93 Wn.2d at 190. “[A]
defendant may be convicted only when a unanimous jury concludes that the
criminal act charged in the information has been committed.” Petrich, 101 Wn.2d
at 569. Thus, “[w]hen the prosecution presents evidence of several acts that could
form the basis of one count charged, either the State must tell the jury which act
to rely on in its deliberations or the court must instruct the jury to agree on a specific
criminal act.” State v. Kitchen, 110 Wn.2d 403, 409, 607 P.2d 304 (1980).
However, neither an election nor unanimity instruction is required when the counts
are based on “a continuing course of conduct.” Petrich, 101 Wn.2d at 571. “To
determine whether criminal conduct constitutes one continuing act, the facts must
be evaluated in a commonsense manner.” State v. Handran, 113 Wn.2d 11, 17,
19 Murphy urges this court to disregard Lee’s discussion of the jury instruction issues
because, he contends, it is at odds with two subsequent Supreme Court decisions, Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Both cases are inapposite and neither
requires the to-convict instructions for theft to name the victims. Thus, we follow the reasoning set
out in Lee.
- 20 -
No. 83195-0-I/21
775 P.2d 453 (1989). “Where evidence involves conduct at different times and
places, or different victims, then the evidence tends to show several distinct acts.”
State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). Conversely, evidence
of “an ongoing enterprise with a single objective” shows a continuing course of
conduct. Id. at 361.
Here, for each count of attempted theft in the first degree, the jury was
instructed that, in order to convict Murphy, it must find that during the specified
time period “the defendant did an act that was a substantial step toward the
commission of Theft in the First Degree.” In closing argument, the State pointed
to the evidence of numerous actions by Murphy, all of which targeted BECU
through different “recruits.” These acts included recruiting the women, obtaining
their personal information, providing them with fraudulent checks, driving them to
the banks and ATMs, and explaining specifically how to conduct themselves when
questions were asked. His conduct toward Stewart-Satterwhite took place
between June 30 and July 7, 2016, that involving Barker-Henry on June 15, and
as to both Sneed and Tinoco between June 10 and 13. Although each count
related to a different person’s bank account, they all concerned the same banking
institution, BECU. Moreover, while some of the steps were taken on different
dates, they were all carried out within a brief period of time with largely
synchronous orchestration. Looking at the evidence in a common-sense manner,
these counts all involved a continuing course of conduct with a single objective:
taking funds from BECU with fraudulent checks by targeting multiple women.
- 21 -
No. 83195-0-I/22
Accordingly, counts 1, 4, 5, and 6 all constituted a continuing course of conduct
and no unanimity instruction nor election was necessary. 20
VI. Failure To Instruct on Common Scheme or Plan for Counts 4, 5, and 6
Murphy contends that counts 4, 5, and 6 must be vacated because the State
aggregated the fraudulent transactions in order to meet the $5,000 threshold for
theft in the first degree but the jury was not instructed on common scheme or plan.
The State argues that if the instruction was required, Murphy invited the error as
his proposed to-convict instructions were identical to those given to the jury.
Pursuant to RCW 9A.56.010(21)(c), “the State can aggregate a series of
transactions that constitute theft in one count and use the aggregate value of the
transactions in determining the degree of theft.” State v. Hassan, 184 Wn. App.
140, 146, 336 P.3d 99 (2014). Such aggregation is only allowed “if the State can
show that the transactions are part of a criminal episode or a common scheme or
plan.” Id. If the State does aggregate the value, “a common scheme or plan is an
essential element of a crime that must be included in the information and in the to-
convict instruction.” Id.Here, the second amended information alleged that Murphy committed
attempted theft in the first degree as a “series of transactions which were part of a
criminal episode, continuing criminal impulse, and a common scheme or plan in
which the sum value of the property or services did exceed $5,000.” Neither the
20 Murphy also argues that trial and appellate counsels’ respective failure to raise these
issues at trial and on direct appeal constitutes ineffective assistance of counsel. However, as
Murphy fails to show any error stemming from these issues, let alone resulting prejudice, his claims
of ineffective assistance of counsel on this basis fail.
- 22 -
No. 83195-0-I/23
State’s nor Murphy’s proposed to-convict instructions included the common
scheme or plan element. Ultimately, the to-convict instructions did not require the
jury to determine whether there was a common scheme or plan.
“When a defendant proposes an instruction that is identical to the instruction
the trial court gives, the invited error doctrine bars an appellate court from reversing
the conviction because of an error in that jury instruction.” State v. Summers, 107
Wn. App. 373, 381, 28 P.3d 780 (2001), modified on recons. on other grounds, 43
P.3d 526 (2002). The invited error doctrine applies in “every situation where the
defendant’s actions at least in part cause the error.” Id. at 381-82. As our Supreme
Court has noted, “There can be no doubt that this is a strict rule, but we have
rejected the opportunity to adopt a more flexible approach.” State v. Studd, 137
Wn.2d 533, 547, 973 P.2d 1049 (1999). Even when the instruction is
unconstitutional and relieves the State of its burden to prove an essential element
beyond a reasonable doubt, the invited error doctrine applies. Id. at 546-47.
Because Murphy’s failure to both propose alternate instructions and to object to
those given, contributed to the error, the invited error doctrine bars relief on this
challenge.
A. Failure To Challenge Instructions as IAC
Murphy submits that his trial counsel and appellate counsel were both
ineffective for failing to raise this issue in both levels of proceedings. “If
instructional error is the result of ineffective assistance of counsel, the invited error
doctrine does not preclude review.” Kyllo, 166 Wn.2d at 861.
- 23 -
No. 83195-0-I/24
1. Trial Counsel
Murphy states that trial counsel “did not propose or object to the failure to
give proper instructions.” Even assuming arguendo that trial counsel was deficient
for failing to propose the common scheme or plan instruction with the to-convict
instructions in order to allow the State to aggregate the amounts of the transactions
at issue for counts 4, 5, and 6, Murphy does not demonstrate that this resulted in
prejudice under the Strickland standard. Had Murphy’s trial counsel proposed the
instruction it would have been provided to the jury. However, even assuming it
had been, the evidence was overwhelming to show a common scheme or plan and
to support the value of the transactions in each count. It is also unclear what
strategic or tactical reason counsel could have to propose an instruction which
would assist the State in proving the $5,000 threshold, which strongly suggests
that both the decision not to object and to refrain from proposing an aggregation
instruction were tactical defense choices. Accordingly, Murphy fails to show that
there was a reasonable probability that but for trial counsel’s failure to propose the
instruction, the outcome of the proceeding would have been different as to these
counts.
2. Appellate Counsel
Murphy also claims his appellate counsel was ineffective based on the
failure to raise this issue in his direct appeal. Assuming counsel had assigned
error on this issue and satisfied RAP 2.5, Murphy shows no reasonable probability
that the outcome would have been different. Murphy’s complete lack of argument
- 24 -
No. 83195-0-I/25
as to prejudice on this issue seems to demonstrate that he believes this would
have required automatic reversal, but he would be mistaken.
“Where a to-convict instruction omits an essential element of a crime, it is
constitutionally defective unless the State can demonstrate that the omission was
harmless beyond a reasonable doubt.” Hassan, 184 Wn. App. at 149. For the
error to have been harmless on direct appeal, this court would have needed to
“‘conclude beyond a reasonable doubt that the jury verdict would have been the
same absent the error.’” State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)
(quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35(1999)). Murphy fails to establish that the verdict would not have been the same,
which is his burden at this stage. As the evidence of a common scheme or plan
and the value of the property involved in the attempted theft was overwhelming
and Murphy’s argument as to prejudice is inadequate, he has not shown a
reasonable probability that the outcome on direct appeal would have been any
different.
VII. Separate Convictions for Counts 1 and 2
Murphy contends that he was convicted and punished twice for the same
act in counts 1 and 2, in violation of the constitutional prohibition against double
jeopardy, and argues that those counts “should have merged or counted as the
same criminal conduct.” 21 We disagree.
21 While Murphy asserts that “the two offenses were the same criminal conduct,” he
provides insufficient analysis to warrant consideration of that distinct legal issue. He offers one
citation to RCW 9.94A.589(1)(a), which provides the definition of same criminal conduct, but no
accompanying argument as to how these offenses satisfy the statutory definition. “This court will
- 25 -
No. 83195-0-I/26
A. Double Jeopardy
“The double jeopardy clause of the Fifth Amendment to the United States
Constitution and article I, section 9 of the Washington State Constitution prohibit
the imposition of multiple punishments for the same offense.” State v. Tili, 139
Wn.2d 107, 112, 985 P.2d 365 (1999). “Where a defendant’s act supports charges
under two criminal statutes, a court weighing a double jeopardy challenge must
determine whether, in light of legislative intent, the charged crimes constitute the
same offense.” In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d
291 (2004). When the statutes do not expressly disclose whether the legislature
intended to authorize separate punishments, we “apply a rule of statutory
construction that has been variously termed the ‘same elements’ test, the ‘same
evidence’ test, and the Blockburger test.” Orange, 152 Wn.2d at 816 (citing
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).
Under the Blockburger test, “double jeopardy principles are violated if the
defendant is convicted of offenses that are identical in fact and in law.” In re Pers.
Restraint of Borrero, 161 Wn.2d 532, 537, 167 P.3d 1106 (2007). “If each offense
contains an element not contained in the other, the offenses are not the same; if
each offense requires proof of a fact that the other does not, the court presumes
the offenses are not the same.” Id. When one of the crimes is an attempt crime,
which requires the element of a “substantial step,” the test is slightly modified
because in order to determine “whether each offense requires proof of a fact that
the other does not, the ‘abstract’ term ‘substantial step’ must be given a factual
not consider claims insufficiently argued by the parties.” State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d
440 (1990). Because Murphy offers no argument here, we do not reach the merits.
- 26 -
No. 83195-0-I/27
definition.” Id. (quoting Orange, 152 Wn.2d at 818). That definition depends on
the “actual facts constituting the ‘substantial step.’” Id. If the evidence is such that
various acts could have been the “substantial step,” we do not assume that the
jury relied on the one act that also proves the other crime. Id. at 538. For example,
in State v. Esparza, this court determined there was no double jeopardy violation
because the assault at issue “did not necessarily constitute the substantial step
taken in furtherance of the robbery.” 135 Wn. App. 54, 63, 143 P.3d 612 (2006).
As “there was other conduct proved at trial that did not constitute assault that would
be sufficient to establish that [the accused] took a substantial step toward the
commission of first degree robbery” and “it was not required for the State to prove
facts sufficient to convict [the defendant] of second degree assault in order for it to
prove [the defendant] committed the offense of first degree attempted robbery,”
there was no double jeopardy violation. Id. at 64.
Here, because the statutes for assault in the second degree, RCW
9A.36.021, and attempted theft in the first degree, RCW 9A.28.020 and 9A.56.030,
do not provide express legislative intent for cumulative punishments, we apply the
Blockburger test to determine whether the crimes are identical in fact and law. See
Borrero, 161 Wn.2d at 537. Murphy asserts that one act, pointing a gun at Stewart-
Satterwhite, was relied upon for both the assault in the second degree in count 2
and the “substantial step” towards attempted theft in the first degree in count 1.
However, during closing argument, the State pointed to numerous acts that
the jury could rely on for Murphy’s substantial step in count 1:
On June 30th, he drove to the hospital—to the hospital parking lot to
pick up [Stewart-Satterwhite] and [Stevens]. That was a substantial
- 27 -
No. 83195-0-I/28
step, that was conduct. He tried to convince [Stewart-Satterwhite] to
deposit the check when the other part of the plan fell apart. He
pointed a gun at her to force her to deposit the check, instructing
[Stevens] to drive to the bank, providing a car, and providing
[Stewart-Satterwhite] with a cover story about what to say, that this
was a settlement from a car accident, and then waiting through July
1st, 2nd, 3rd, 4th, 5th, and 6th. There’s some action in that waiting,
keeping in communication with [Stewart-Satterwhite], making sure
the plan was in place, and then going to the site, going to the location,
the Days Inn, on the 7th is another substantial step to pick up the
money.
Although the State told the jury that it could rely on the fact that Murphy pointed a
gun at Stewart-Satterwhite, that was certainly not the only act for which the State
presented evidence at trial. Because there was other conduct on which the jury
could rely that constituted a substantial step towards theft in the first degree and it
was not necessary for the State to prove that Murphy pointed a firearm at Stewart-
Satterwhite in order to prove the attempted theft count, these convictions do not
violate double jeopardy. Esparza, 135 Wn. App. at 63-64; Borrero, 161 Wn.2d at
537-38.
B. Merger
Murphy next avers that counts 1 and 2 should have merged. Generally,
when “proof of one crime depends upon proof of another, the crimes will merge.”
State v. Grant, 172 Wn. App. 496, 500, 301 P.3d 459 (2012). However, the merger
doctrine “only applies where the Legislature has clearly indicated that in order to
prove a particular degree of crime (e.g., first degree rape) the State must prove not
only that a defendant committed that crime (e.g., rape) but that the crime was
accompanied by an act which is defined as a crime elsewhere in the criminal
- 28 -
No. 83195-0-I/29
statutes (e.g., assault or kidnapping).” State v. Vladovic, 99 Wn.2d 413, 420-21,
662 P.2d 853 (1983).
Because Murphy’s conviction for attempted theft was not raised to the first
degree through the conduct that constituted assault against Stewart-Satterwhite,
but instead on the value of the property he attempted to steal pursuant to RCW
9A.56.030(1)(a), the merger doctrine is inapplicable. 22
VIII. All Four Counts of Attempted Theft as Same Criminal Conduct
Murphy next avers that the four counts of attempted theft (counts 1, 4, 5,
and 6) should be treated as one for sentencing purposes because, he contends,
they are based on the same criminal conduct. The State insists that Murphy has
waived this challenge. In his reply brief, Murphy responds to the State’s waiver
argument by noting that he “has raised ineffective assistance of counsel at
sentencing and on appeal so the issue can be considered through that rubric.”
Same criminal conduct is defined in RCW 9.94A.589(1)(a), as follows:
Except as provided in (b), (c), or (d) of this subsection,
whenever a person is to be sentenced for two or more current
offenses, the sentence range for each current offense shall be
determined by using all other current and prior convictions as if they
were prior convictions for the purpose of the offender score:
PROVIDED, That if the court enters a finding that some or all of the
current offenses encompass the same criminal conduct then those
current offenses shall be counted as one crime. Sentences imposed
under this subsection shall be served concurrently. Consecutive
sentences may only be imposed under the exceptional sentence
provisions of RCW 9.94A.535. “Same criminal conduct,” as used in
this subsection, means two or more crimes that require the same
22 Murphy asserts that the double jeopardy and merger arguments regarding counts 1 and
2 “should have been raised at trial or on appeal” and “failure to do so was ineffective.” However,
as established, each of those constitutional challenges are without merit, and thus, Murphy
necessarily fails to show ineffective assistance of counsel on these bases.
- 29 -
No. 83195-0-I/30
criminal intent, are committed at the same time and place, and
involve the same victim.
“In order for separate offenses to ‘encompass the same criminal conduct’ under
the statute, three elements must therefore be present: (1) same criminal intent, (2)
same time and place, and (3) same victim.” State v. Porter, 133 Wn.2d 177, 181,
942 P.2d 974 (1997). The absence of any element prohibits a finding of same
criminal conduct. Id. Here, a finding of same criminal conduct is plainly precluded
as each count concerned a different victim: count 1—Stewart-Satterwhite; count
2—Barker-Henry; count 3—Sneed; and count 4—Tinoco. Accordingly, Murphy’s
claim fails. 23
IX. Additional Bases for IAC of Trial Counsel
Murphy raises two additional grounds on which he asserts his trial and
sentencing were impacted by IAC. First, Murphy contends that trial counsel was
ineffective for failing to object to “very prejudicial evidence.” “Only in egregious
circumstances, on testimony central to the State’s case, will the failure to object
constitute incompetence of counsel justifying reversal.” State v. Madison, 53 Wn.
App. 754, 763, 770 P.2d 662 (1989). “The decision of when or whether to object
is a classic example of trial tactics” and it is a legitimate trial tactic for counsel to
forgo an objection when seeking to “avoid highlighting certain evidence.” Id.; State
v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019). When a claim of IAC is
23 As Murphy does not establish any error, much less prejudice, he is unable to
demonstrate deficient performance as to this same criminal conduct claim. Accordingly, his
arguments that trial counsel was ineffective for not presenting a same criminal conduct argument
at sentencing, and that appellate counsel was ineffective for not raising this issue in his direct
appeal necessarily fail.
- 30 -
No. 83195-0-I/31
based on counsel’s failure to object, “the defendant must show (1) an absence of
legitimate strategic or tactical reasons supporting the challenged conduct; (2) that
an objection to the evidence would likely have been sustained; and (3) that the
result of the trial would have been different had the evidence not been admitted.”
State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998) (internal citations
omitted).
Instead of attempting to satisfy those requirements, Murphy merely
identifies testimony and asserts, without analysis, that it should have been
excluded under ER 403 and 404. He then concludes that “[i]t was ineffective not
to object” and declares the “prejudice is apparent.” Such conclusory statements,
unsupported by authority and persuasive reasoning, are insufficient to satisfy his
burden. See Pheth, 20 Wn. App. 2d at 332. Under Strickland, it is Murphy’s
burden to demonstrate both deficient performance and resulting prejudice and he
fails to show either here.
Second, Murphy avers his trial counsel was ineffective for failing to propose
WPIC 6.05. WPIC 6.05 concerns accomplice testimony and it provides the
following:
Testimony of an accomplice, given on behalf of the [State]
[City] [County], should be subjected to careful examination in the light
of other evidence in the case, and should be acted upon with great
caution. You should not find the defendant guilty upon such
testimony alone unless, after carefully considering the testimony, you
are satisfied beyond a reasonable doubt of its truth.
WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6.05,
at 203 (5th Ed. 2021). This “cautionary instruction is required only if the accomplice
testimony is uncorroborated.” State v. Willoughby, 29 Wn. App. 828, 831, 630
- 31 -
No. 83195-0-I/32
P.2d 1387 (1981). However, “where the accomplice testimony is corroborated by
independent evidence, failure to give the instruction may not be error.” State v.
Harris, 102 Wn.2d 148, 153, 685 P.2d 584 (1984), overruled in part on other
grounds by State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991). “If the
accomplice testimony was substantially corroborated by testimonial, documentary
or circumstantial evidence, the trial court did not commit reversible error by failing
to give the instruction.” Id. at 155.
Murphy asserts that the instruction was mandatory in this case due to the
“lack of any corroboration” of Stewart-Satterwhite’s allegations that Murphy
pointed a gun at her. While Stewart-Satterwhite’s testimony was the basis of count
2, assault in the second degree with a deadly weapon, she was the victim of that
assault. Pursuant to RCW 9A.08.020(5), “a person is not an accomplice in a crime
committed by another person if: (a) [They are] a victim of that crime.” Thus,
Stewart-Satterwhite’s testimony concerning the assault in which she described
Murphy pointing a gun at her does not implicate WPIC 6.05. But, even if Murphy
could satisfy the deficient performance prong of the test on the failure to propose
this instruction, which he does not, he still fails to demonstrate that it produced a
reasonable likelihood of prejudice as to the count he identifies. Murphy then
broadly asserts that the collective impact of “all errors” shows a reasonable
probability of prejudice under Strickland. He is incorrect. 24
24 Murphy does not raise any additional bases for his claim of IAC by appellate counsel
apart from those already addressed. Although the State concedes that “Murphy’s direct appeal
was devoid of merit and poorly presented,” it asserts that Murphy has failed to show prejudice
under Strickland. In accordance with our previous analysis, we agree with the State.
- 32 -
No. 83195-0-I/33
X. Community Custody on Count 2
Finally, Murphy claims the trial court imposed a sentence that exceeded the
statutory maximum for count 2, assault in the second degree, and requests an
order directing the trial court to strike the term of community custody. The State
concedes the error and we agree.
Assault in the second degree is a class B felony with a maximum sentence
“by confinement in a state correctional institution for a term of ten years.” RCW
9A.36.021(2)(a); 9A.20.021(1)(b). Pursuant to RCW 9.94A.701(10), the term of
community custody “shall be reduced by the court whenever an offender’s
standard range term of confinement in combination with the term of community
custody exceeds the statutory maximum for the crime as provided in RCW
9A.20.021.”
Murphy’s offender score on count 2, which provided a maximum term of 120
months, was 11 and his standard range was 63 to 84 months in prison. On count
2, the court imposed 84 months of confinement to run consecutively with the
mandatory firearm enhancement of 36 months for a total of 120 months of
confinement. Because the court also imposed a term of community custody of “at
least 4 months, plus all accrued earned early release time at the time of release,”
the sentence on count 2 exceeds the statutory maximum. Accordingly, the trial
court must strike the community custody term from the judgment and sentence.
Because Murphy fails to show actual and substantial prejudice resulting
from any of his claims, including those alleging ineffective assistance of trial and
- 33 -
No. 83195-0-I/34
appellate counsel, his petition is denied. However, we remand for the trial court to
correct the judgment and sentence.
WE CONCUR:
_____________________________
- 34 -