State Of Washington, V. Dannie C. Brashear ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 86610-9-I
Respondent,
DIVISION ONE
v.
OPINION PUBLISHED IN PART
DANNIE CHRISTOPHER BRASHEAR,
Appellant.
BIRK, J. — Dannie Brashear appeals his conviction, arguing, among other
things, that the trial court violated his constitutional right to confer with counsel
where he appeared at all pretrial hearings remotely, while his defense counsel was
at a different location. In the published portion of this opinion, we hold that
Brashear did not object to this arrangement in the trial court and cannot raise this
issue for the first time on appeal because he cannot show manifest error as
required by RAP 2.5(a)(3). For this reason, and those discussed in the
unpublished portion of this opinion, we affirm Brashear’s conviction and remand to
strike the victim penalty assessment (VPA) and community custody supervision
fees.
I
On November 18, 2021, the State filed an information in superior court
charging Brashear with several criminal counts arising out of alleged altercations
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with an intimate partner. Brashear appeared remotely via Zoom1 from the jail for
each of his pretrial hearings, while defense counsel appeared from a location
different from him. Brashear did not object to appearing remotely at any of the
hearings.
Brashear’s first appearance occurred on December 2, 2021. The trial court
found probable cause existed for the charges and appointed counsel for Brashear.
The State requested, and the trial court agreed to, $500,000.00 in bail. The trial
court placed Brashear in a waiting room2 for “a few minutes” while the conditions
for release and the no-contact order were being prepared. Defense counsel asked
to be placed in the same waiting room, which the trial court stated it could not do.3
At Brashear’s arraignment, Brashear pleaded not guilty and the trial court
set dates for trial and an omnibus hearing.
On December 17, 2021, the trial court went on the record to note that a
motion hearing had been moved to the following week.
On December 23, 2021, the trial court held a hearing for Brashear’s motion
to reduce bail to $100,000.00. Through counsel, Brashear argued that he had a
1 “Zoom” is a cloud-based videoconferencing software platform.
2 A Zoom “waiting room” is a virtual staging area that prevents people from
joining a meeting until the host is ready. Secure Your Meetings with Zoom Waiting
Rooms, ZOOM BLOG, https://www.zoom.com/en/blog/secure-your-meetings-zoom-
waiting-rooms/?cms_guid=false&lang=en-US (last visited Oct. 15, 2024).
3 Brashear does not clearly argue on appeal that this exchange amounted
to an objection to use of the remote platform. Brashear raises it as evidence that
he lacked the ability to continuously confer with counsel. When Brashear was
asked to wait while the trial court completed paperwork, his newly appointed
counsel asked for the opportunity to confer. The record indicates that a breakout
room was not available because the jail was “pushing through.” The exchange
does not indicate that the remote platform did not allow breakout room capability.
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two year old child for whom he was obligated to pay child support, he tested
positive for COVID-19 at the jail and “[h]e’d like to get out of there,” he had an open
labor and industries claim that he could not prosecute from the jail, and he had
limited funds secured to assist in the payment of the bail bond. The State objected
to any reduction of Brashear’s bail, and the trial court denied the defense’s motion.
At the January 12, 2022 omnibus hearing, the State noted that “the parties
are in agreement to set it over to next week.” Defense counsel indicated he had
“talked to [Brashear] about this,” and the court continued the hearing.
On January 21, 2022, the trial court held the rescheduled omnibus hearing,
where the parties confirmed they had exchanged omnibus packages.
On January 25, 2022, the trial court held a hearing for defense counsel’s
motion to continue. After determining the parties were within Brashear’s speedy
trial deadline, the trial court reset trial for April 18, 2022.
On February 4, 2022, the trial court held a hearing for Brashear’s motion to
allow him access to the law library, for which Brashear was not present. The State
had no objection and the trial court granted the motion.
On March 16, 2022, a hearing was held on Brashear’s motion for
substitution of counsel. The trial court allowed the substitution and confirmed it
would not change any trial dates.
On April 14, 2022, the trial court held a readiness hearing. Brashear’s new
defense counsel noted she and the State agreed on a new trial date, but could be
ready “only if the motion to sever is granted.” The State requested a continuance
to review the motion to sever and noted it also could not be ready without knowing
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the court’s ruling on the motion. Brashear stated, “I would like to move forward
with my trial on Monday, but I believe it’s best if we could sever it.” The trial court
continued trial to May 2 and set a new readiness hearing.
On April 21, 2022, the trial court held a second readiness hearing. Defense
counsel requested a continuance to review additional discovery she had received,
and noted on the record she had conferred with Brashear, “We have discussed it
at length. He knows what the Court’s position is and I think the Court can find good
cause, based on the fact that I have not reviewed all of the discovery in the
matters.” After hearing from the State and Brashear, the trial court continued trial
until June 21, 2022.
On May 13, 2022, the trial court held a hearing regarding the pending trial
date. The State explained a witness was not available for the June 21 date
because he would be in military training, and asked to advance the trial date to
May 23. Brashear confirmed he did not object to moving up the trial date. The
trial court granted the State’s request.
II
Brashear argues for the first time on appeal that his constitutional right to
privately confer with counsel was violated where he appeared at these pretrial
hearings by videoconference while his defense counsel was in a different location.
We hold that Brashear cannot raise this issue for the first time on appeal because
he cannot establish manifest error under RAP 2.5(a)(3).
Under both the Sixth Amendment and article 1, section 22 of the
Washington constitution, a criminal defendant is entitled to the assistance of
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counsel. State v. Heng, 2 Wn.3d 384, 388, 539 P.3d 13 (2023). The right to
counsel attaches at a defendant’s “ ‘first appearance before a judicial officer’ where
‘a defendant is told of the formal accusation against him and restrictions are
imposed on his liberty.’ ” Id. at 389 (quoting Rothgery v. Gillespie County, 554
U.S. 191, 194, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008)). The right to counsel
requires defendants to have the ability to confer meaningfully and privately with
their attorneys at all critical stages of the proceedings. State v. Anderson, 19 Wn.
App. 2d 556, 562, 497 P.2d 880 (2021). “[A] critical stage is one where a
‘defendant’s rights were lost, defenses were waived, privileges were claimed or
waived, or in which the outcome of the case was otherwise substantially affected.’ ”
Heng, 2 Wn.3d at 394 (internal quotation marks omitted) (quoting State v.
Heddrick, 166 Wn.2d 898, 910 n.9, 215 P.3d 201 (2009)).
Case law distinguishes between the defendant lacking any legal counsel at
a hearing, and the defendant having counsel but lacking the ability to confer
meaningfully and privately during the proceedings. See State v. Dimas, 30 Wn.
App. 2d 213, 219, 544 P.3d 597 (2024). The Supreme Court has held that the
absence of counsel from a hearing that is not a critical stage is subject to
constitutional harmless error analysis. Heng, 2 Wn.3d at 393-94 (citing Satterwhite
v. Texas, 486 U.S. 249, 257, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988)). And this
court has held that where counsel is present, a deprivation of the right to
meaningfully and privately confer even at a critical stage is subject to constitutional
harmless error analysis. Dimas, 30 Wn. App. 2d at 219-20 (contrasting State v.
Heddrick, 166 Wn.2d 898, 910, 215 P.3d 201 (2009) (discussing complete denial
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of counsel) and State v. Bragg, 28 Wn. App. 2d 497, 512, 536 P.3d 1176 (2023)
(applying constitutional harmless error to deprivation of the ability to confer at
critical stages)).4
Brashear did not object in the trial court that appearing remotely violated his
right to privately confer with counsel. RAP 2.5(a)(3) states that a party may raise
for the first time on appeal a “manifest error affecting a constitutional right.” This
rule is intended to allow a reviewing court to correct any “serious injustice to the
accused” and to preserve the fairness and integrity of judicial proceedings. State
v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). To determine the
applicability of RAP 2.5(a)(3), we inquire whether (1) the error is truly of a
constitutional magnitude, and (2) the error is manifest, meaning the appellant can
show actual prejudice. State v. J.W.M., 1 Wn.3d 58, 90, 524 P.3d 596 (2023). To
demonstrate actual prejudice, the appellant must make a plausible showing that
the claimed error had practical and identifiable consequences in the trial of the
case. Id. at 91. In determining whether the error was identifiable, the trial record
must be sufficient to determine the merits of the claim. State v. Kirkman, 159
Wn.2d 918, 935, 155 P.3d 125 (2007). “If the facts necessary to adjudicate the
claimed error are not in the record on appeal, no actual prejudice is shown and the
error is not manifest.” McFarland, 127 Wn.2d at 333.
4 When a defendant lacks any counsel at a critical stage of the proceedings,
the Washington Supreme Court has called this structural error requiring automatic
reversal. Heng, 2 Wn.3d at 392.
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Here, the deprivation of the right to confer with counsel is a constitutional
claim. Thus, the question turns on whether Brashear has established manifest
error.
This showing becomes more difficult when the claim is that a criminal
defendant was unable to confer with counsel at a proceeding that was not a critical
stage. Since critical stages in general include those “where the outcome of the
case was otherwise substantially affected,” Heng, 2 Wn.3d at 394, it follows that
limitations on conferring with counsel at other hearings are less likely to result in
“ ‘practical and identifiable consequences in the trial of the case’ ” under RAP
2.5(a)(3), J.W.M., 1 Wn.3d at 91 (internal quotation marks omitted) (quoting State
v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)). Brashear does not attempt
to demonstrate that any of the hearings at issue were critical stages. Brashear’s
first appearance and arraignment were not critical stages for purposes of the right
to counsel. See Heng, 2 Wn.3d at 395. The remaining proceedings were two
motion hearings for bail reduction, two omnibus hearings, a motion to continue
trial, a motion to allow Brashear access to the law library, a motion for substitution
of counsel, two readiness hearings, and a motion hearing to move the trial date
forward. At these hearings, Brashear “lost no rights, waived no defenses, and
neither claimed nor waived privileges.” Id. His challenges to the bail amount were
denied, but he did not “lose his ability to challenge bail.” Id.We additionally look at the content of the hearings in considering whether
any limitation on conferral resulted in actual prejudice having practical and
identifiable consequences in the trial of the case. At the December 17 hearing, the
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trial court went on the record only to learn the hearing had been moved to the
following week. At the December 23 hearing, Brashear’s counsel argued for bail
reduction and listed multiple reasons why bail should be reduced. It is clear from
the reasons presented that Brashear had had ample opportunity to confer with
counsel. There is no indication that consultation with counsel during the hearing
would have changed the outcome of the motion and Brashear makes no attempt
to show that any alleged deprivation affected the trial that occurred five months
later. The omnibus hearing was agreed, and the motions for law library access
and substitution of counsel were granted in Brashear’s favor. Brashear does not
show how the ability to confer at these hearings could have affected them, let alone
the subsequent trial.
The remaining hearings concerned the trial date. The trial court granted
trial continuances despite Brashear’s refusal to waive his speedy trial right. But
the trial court had legitimate reasons for granting the continuances, Brashear
informed the court of his objections, in at least one hearing Brashear’s counsel
noted on the record the fact of having conferred with Brashear, and the last hearing
resulted in trial being moved to an earlier date, where defense counsel invited
Brashear to provide his input, revealing that Brashear supported the court’s action.
There is no indication that Brashear’s ability to confer with counsel during the
hearings would have changed any result. In addition, Brashear gives no reason
that when trial occurred affected the outcome of this case.
Brashear cites Bragg in support of his argument that a trial court has an
affirmative duty to provide guidance on how a defendant can privately confer with
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counsel regardless of whether the record permits review of the issue.5 Brashear
mischaracterizes Bragg. In Bragg, the State conceded that it was manifest error
affecting a constitutional right for the defendant to participate in all pretrial hearings
by video while his attorney appeared in court. 28 Wn. App. 2d at 504 n.5. The
court accepted review under RAP 2.5(a)(3), but cautioned, “[W]e do not hold that
every such deprivation satisfies RAP 2.5(a)(3). Manifest error must first be found.”
Id. at 504 n.5. We explained there was no “bright-line rule that a trial court
affirmatively must establish a process on the record for confidential attorney-client
communication, or it commits a constitutional violation,” and instead held that
“reviewing courts should consider the totality of the circumstances, including
whether the trial court explicitly established a process for such communications,
given the variety of different circumstances that may occur.” Id. at 507. In other
words, the trial court’s accommodation for private conferral is merely one factor
relevant to assessing whether an error is manifest. This factor does not aid
Brashear, because despite his asking us to infer he was unable to confer with
counsel, the record is silent on whether the trial court’s videoconferencing platform
allowed that capability.
In contrast, in Bragg, during at least four critical stage proceedings the trial
court provided no guidance about how to privately confer and explicitly refused to
5 Brashear also cites State v. Schlenker, but in that matter the appellant
preserved error by objecting to the use of videoconferencing in the trial court. 31
Wn. App. 2d 920, 553 P.3d 712, 725 (2024).
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answer Bragg’s question about how to confer with his counsel.6 Id. at 506, 510-
11. The court applied the constitutional harmless error standard and held it could
not know beyond a reasonable doubt whether the outcome of the case would have
differed if the defendant had been able to have his attorney’s confidential
assistance during the four critical stage hearings. Id. at 512, 516. The substance
of the hearings appeared to have been significant to the outcome. They were a
review hearing discussing a plea offer, a hearing discussing Bragg’s request to
discharge counsel, and two hearings discussing DNA evidence and the potential
need for additional expert testimony at trial. Id. They included plea discussions,
and we could not exclude reasonable doubt about whether conferral might have
led to a plea bargain hundreds of months shorter than Bragg’s ultimate sentence.
Id. at 512-13. These were matters significant to the trial, and occurred in a context
where it was apparent that Bragg and his counsel had severe difficulty
communicating. Id. at 513-14. The lack of the ability to privately confer thus
appeared to significantly impact hearings whose outcome shaped the trial.
Brashear does not show how communication with counsel at any of the
pretrial hearings in his case could have affected the trial. He therefore fails to show
manifest error affecting a constitutional right under RAP 2.5(a)(3) and we decline
to reach this claim of error.
6 Bragg repeatedly alerted the court to his desire to confer with counsel and
his inability to do so, therefore it is not clear that Bragg is properly viewed as a
case in which objection was not made in the trial court.
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We have determined that the remainder of this opinion has no precedential
value. Therefore, it will be filed for public record in accordance with the rules
governing unpublished opinions. See RCW 2.06.040.
UNPUBLISHED TEXT FOLLOWS
Brashear additionally argues (1) the trial court violated his right to a fair trial
in admitting multiple references to his criminal history, (2) the State engaged in
prosecutorial misconduct, (3) Mourer did not have actual authority to consent to
officers’ warrantless entries into Brashear’s property, (4) cumulative error
occurred, (5) the trial court failed to follow the procedural requirements of the
mental health sentencing alternative (MHSA) statute, RCW 9.94A.695, (6) the trial
court erroneously imposed the VPA and community custody supervision fees, and
(7) numerous additional issues raised in a statement of additional grounds.
III
The State alleged that on October 26, 2021, October 30, 2021, and
November 9, 2021, Brashear assaulted his girlfriend, Jenny Mourer. The State
charged Brashear with second degree assault, harassment, two counts of fourth
degree assault, third degree malicious mischief—all with domestic violence
designations—interference with reporting of domestic violence, and first degree
unlawful possession of a firearm. In the State’s case, Clark County Sherriff’s
Deputy Michael Gonzalez testified an incident occurred on October 27, 2021 at
around 2:00 a.m., where a female called and said her head was bleeding and she
wanted an ambulance.
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No. 86610-9-I/12
Deputy Gonzalez testified Mourer ran down the hill and “had blood coming
down from the top of her head. And she also had lacerations on her, I believe it
was right arm and wrist area.” The deputy testified that Mourer told him “that her
boyfriend or at the time, [Brashear] were arguing over her mom calling her and that
she got hit over the head with a hard object and she didn’t know what it was.” After
taking photos of Mourer, Deputy Gonzalez walked her down to the ambulance.
Officers then went up to the residence to search for Brashear using a K-9 unit, but
could not locate him. Mourer testified she and Brashear began dating sometime
after February 1, 2021, and stopped dating October 26, 2021 because “that’s the
day [Brashear] assaulted” her. Mourer testified that she “got knocked off the truck.
I was sitting on the back of the truck. And . . . either he punched me or kicked me.
I don’t remember which came first, but I remember I flew off the back of the truck
and I got knocked out.” Mourer testified Brashear hit her with his fists and “a tool
bag that had two drills in it.” Mourer testified she sustained a “collapsed lung on
my left side and I had fractured ribs and I had to get stiches on my arm and staples
in my head.” Medical witnesses at trial verified these injuries from the October 26-
27, 2021 incident.
Mourer said she left the hospital on October 30 and Brashear picked her up
and took her back to his house. Mourer testified that back at the house, she “got
hurt again” and “got punched off the toilet.” Mourer was punched in the face and
testified that she tried to defend herself by grabbing “whatever I could around me
and I was laying on my bag and I just started throwing shit, stuff.” Mourer testified
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No. 86610-9-I/13
Brashear threatened her life, and told her “it was either me or him,” meaning “[o]ne
of us was gonna die.”
Deputy Gonzalez arrived at the property on October 30 and assisted Mourer
with gathering her belongings and walked her down the driveway to the ambulance
where she was transported to the hospital. Deputy Gonzalez testified he searched
the property looking for Brashear, and during his search found a “revolver” located
“on a bench outside of the vacant home.”
Brashear testified that his relationship with Mourer turned bad “almost
immediately” and during arguments she would strike him. On October 26, just after
midnight, the two were arguing in the garage when Mourer picked up Brashear’s
drill bag and swung it at him. Brashear responded by pushing Mourer off to the
side, causing her to fall onto the hitch of the truck. According to Brashear, as he
pushed Mourer, the beer bottle in his hand fell to the ground and broke. Brashear
testified, “I believe she fractured two of her ribs on her left side and then she rolled
over and was dazed, and she had mentioned yesterday that she ran her forehead
into the exhaust pipe of the truck.” Mourer then fell into the glass from the broken
beer bottle, “[a]nd then, when she was getting back out from under the truck, she
was pushing herself” up, causing her to cut her arm. Brashear explained that there
was blood “all over the door and on the refrigerator” because he helped Mourer up
and took her into the main house. The two then made the decision to call 911 and
Brashear helped her into the ambulance that night. Afterwards, Brashear went
back into the house and went to sleep.
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No. 86610-9-I/14
Brashear testified that he picked Mourer up from the hospital and brought
her back to his house, where the two began arguing later that evening. Brashear
testified Mourer “said that she was gonna call up an ambulance and tell them that
her lung was collapsing, so that she could get off the property.” Brashear helped
Mourer carry her things down to the property line at the bottom of the driveway.
The State dismissed the interference with reporting of domestic violence
charge before the case was submitted to the jury. The jury acquitted Brashear of
harassment, both counts of fourth degree assault, and third degree malicious
mischief. The jury found Brashear guilty of second degree assault and unlawful
possession of a firearm, and found that Brashear and Mourer were intimate
partners.
At sentencing, the trial court imposed the VPA fee, and waived all other non-
mandatory legal financial obligations. Brashear asked for a MHSA because of his
history as a “severe alcoholic.” The trial court denied Brashear’s request and
stated,
I look at this case and what is bothering me is or what I’m having
trouble with is the argument that alcohol is the primary problem here.
It’s a bit, in this Court’s view of saying that fuel is a danger and fuel
is a problem. Well, if fuel is only a danger to or explosive when
there’s an underlying flame or ignition or something that could start
it. So, obviously, alcohol is a lifelong struggle and condition here, but
what’s more bothersome to the Court is a pattern of behavior, not
just in this case, but perhaps previously.
But what I’m seeing here and what I remember from the case
was a pattern of a certain amount of grooming and predation upon
this particular victim. It’s hard to imagine a more vulnerable victim or
a fact pattern presentation that demonstrates a particular
vulnerability.
As I recall, you found her at a gas station in Battleground with
a child in February alone and in the rain. Took her into his property
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out in North County. You see patterns of isolation and financial
dependence and other dependence on him. I don’t think that’s
accidental. I don’t think that can be explained by alcohol over the
course of eight or nine months when we get into October and
November with these alleged incidents occurred.
I think this was all whether intentional or subconscious, an
effort to groom and put this person in a position of complete
dependence. And I think when the Court stands at the zenith of its
authority and power is when it’s protecting those that are vulnerable
in the community.
Brashear appeals his conviction.
IV
Brashear argues the trial court violated his right to a fair trial in failing to
sustain objections and strike testimony where multiple witnesses testified about
Brashear’s criminal history and prior imprisonment.7 We disagree.
We review the trial court’s cure of irregularities, such as improper testimony,
for an abuse of discretion. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172, 837
P.2d 599 (1992). “When a trial court’s exercise of its discretion is manifestly
unreasonable or based upon untenable grounds or reasons, an abuse of discretion
exists.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). “To determine
the prejudicial effect of an irregular occurrence during trial, we examine the
occurrence’s seriousness, whether it involved cumulative evidence, and whether
the trial court properly instructed the jury to disregard it.” State v. Thompson, 90Wn. App. 41, 46, 950 P.2d 977 (1998).
7 The State argues we should decline review of this issue because Brashear
fails to assign error to the trial court’s decision on the motion for mistrial and
analyzes his claim only within that context. Brashear assigns error to the
witnesses’ references and argues the issue in his analysis. Brashear has properly
raised the issue on appeal.
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Before trial, the parties stipulated that Brashear was previously convicted of
an offense. Brashear moved to exclude evidence of his prior bad acts, and the
trial court stated if such evidence was to be elicited, “it should be done with an offer
of proof outside the presence of the jury.” Brashear argues that there were five
instances where witnesses provided testimony that violated the court’s order as to
the ER 404(b) evidence that was addressed during motions in limine.
First, when asked how he generally executes a warrant, Clark County
Sheriff’s Deputy Zachary Nielsen testified, “Every time that we do a search warrant,
we do a risk assessment, which would lead us to totaling points based upon
criminal histories, access to weapons, that kind of thing,” and “for this incident we
had SWAT serve the warrant based upon the risk to deputies.” Brashear objected
based on non-responsiveness, which the trial court overruled.
Second, Deputy Gonzalez testified he knew Brashear had “a criminal
history.” Outside the presence of the jury, Brashear asked the trial court to strike
that comment. The trial court stated there was no prejudice to Brashear and
refused Brashear’s request to instruct the jury to disregard the testimony because
it would have drawn unnecessary attention to the issue.
Third, the State asked Deputy Gonzalez to identify Brashear, to which
Brashear objected for lack of foundation. The State attempted to establish
foundation:
Q Have you seen Mr. Brashear before?
A In person, no.
Q How have you seen him?
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No. 86610-9-I/17
A By recent mugshots in our RMS system.
[Defense counsel]: Objection as to the reference of
mugshots and ask that it be stricken.
THE COURT: Well, counsel raised a foundational
question. He can answer that question. Some public records?
[Deputy Gonzalez]: Yes, public records. I was able to
obtain a photograph of [Brashear], which I did that night to try and
figure out his identity.
Brashear requested a conversation outside the presence of the jury, in which he
raised both this and the earlier reference to criminal history, and asked for an
instruction striking the references from the record. The State argued “there is
going to be a stipulation that he has a crime of—a conviction for a serious offense,”
and “I don’t care if Your Honor wants to strike this particular thing from the record.
But for the record from the State’s understanding, there is no prejudice, because
the jury is [going to] hear information.” The trial court declined to strike the
objectionable references from the record.
Fourth, Mourer testified she was worried “[b]ecause [Brashear] said he
refused to go back to prison,” so she did not meet officers at the end of the
driveway. Brashear objected, and outside the presence of the jury, moved for a
mistrial. The trial court denied the motion for a mistrial and declined to act on
Brashear’s objection.
Fifth, Clark County Sheriff’s Detective Matthew Volker testified, “Initially, it
was unclear if the defendant and/or [Mourer] were [in] that residence, but there
was obviously concern for [Mourer’s] safety. So, there—the house was basically
cleared by our SWAT team, to make sure that nobody was inside.” Detective
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No. 86610-9-I/18
Volker further testified that SWAT does not get dispatched every time officers go
to a case like that. Brashear did not object, and thus waived the issue.
Because of the trial court’s resistance to Brashear’s requests to order
improper comments stricken, in none of these instances can we say “the trial court
properly instructed the jury to disregard it.” Thompson, 90 Wn. App. at 46. Thus,
we confront an evidentiary record which the trial court allowed to go to the jury with
numerous references to other acts by Brashear that were obviously inadmissible
under ER 403 and ER 404(b), and that were excluded by the order in limine. The
reference to the SWAT response had no identified relevance to the action but
served only to improperly imply that Brashear was dangerous. Such references
were not akin to a response to a challenge by the defense to the reliability of the
State’s investigation of Brashear’s guilt. The first reference might have been
technically responsive to the State’s question about the procedure for executing a
warrant, but the question could not have alerted defense counsel to a forthcoming
reference to criminal history and the dangerousness implied in a SWAT response,
and the purpose of motions in limine and of stipulating to relevant criminal history
is to prevent such surprises from occurring. Allowing the references to the SWAT
response and then refusing to strike them was error. The reference to “recent
mugshots” was not cumulative given the age of the provable prior offense, as the
trial court recognized from rephrasing the inquiry into one about “public records.”
And the trial court again erred by refusing to strike the improper testimony.
While the question is a close one, we decline to order a new trial. Ultimately,
the question is whether the improper statements, when viewed against the
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background of all the evidence, were so prejudicial that Brashear was denied a fair
trial. To the extent these references indicated a generic criminal history or having
been in prison, they were harmless in this case because the jury knew from jury
selection that the State was accusing Brashear of having a prior conviction and the
subsequent stipulation included in the final instructions indicated the prior
conviction. The only extent to which these statements implied more was the extent
to which they suggested more recent criminality. This was an implication at most,
and was never directly indicated. In light of the deferential standard of review, we
cannot say that the trial court’s decision to deny a mistrial amounted to an abuse
of discretion, and for the same reason the improper references do not justify a new
trial.
Brashear further argues that defense counsel was ineffective in failing to
contemporaneously object to all the improper testimony. To prevail on a claim of
ineffective assistance of counsel the defendant must demonstrate that: (1)
counsel’s representation was deficient, meaning it fell below an objective standard
of reasonableness based on consideration of all the circumstances; and (2) the
defendant was prejudiced, meaning there is a reasonable probability that the result
of the proceeding would have been different but for the challenged conduct.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984); McFarland, 127 Wn.2d at 334-35. If either prong has not been met, we
need not address the other prong. State v. Garcia, 57 Wn. App. 927, 932, 791
P.2d 244 (1990).
19
No. 86610-9-I/20
Brashear fails to establish there was a reasonable probability that the
outcome would have been different given the amount of evidence of Brashear’s
guilt regarding the second degree assault and unlawful possession of a firearm.
Moreover, the jury’s acquittal on four other counts indicates that it was not unduly
swayed against neutrally weighing the evidence and being willing to acquit.
Defense counsel was not ineffective in failing to object to the testimony.
V
Brashear argues the State engaged in prosecutorial misconduct by
commenting on his guilt during cross-examination. We conclude the misconduct
was not prejudicial.
During Brashear’s cross-examination, he claimed the investigation was
unfair because he was not given a chance to give his version of events. Later, he
admitted he was given an opportunity to give a statement, but he added that when
he offered to come in to the station, the police planned to have him arrested “no
matter what.” The State challenged this testimony by confronting Brashear with
the fact he had absented himself from the scene of at least one of Mourer’s claimed
assaults, and the following testimony occurred:
Q Why would he arrest you, if you did nothing wrong?
A I didn’t say I did nothing wrong. It’s obvious that there was an
assault on [Mourer] that night. Not an assault, but she was hurt. She
was harmed. She went to the hospital.
Q All right.
A And I was fearful that I was going to be railroaded.
20
No. 86610-9-I/21
Q Okay. So, don’t you think that it would be logical then, that
you would want to leave with law enforcement? That you would want
to be present when they show up at the house, so you don’t look
guiltier then you are by not being there.
[Defense counsel]: Objection, Your Honor. Motion to strike.
THE COURT: Rephrase the question, please. Sustained.
(Emphasis added.) Outside the presence of the jury, Brashear moved for a mistrial
due to prosecutorial misconduct. The trial court denied the motion.
In a prosecutorial misconduct claim, the defendant bears the burden of
proving that the prosecutor’s comments were both improper and prejudicial. State
v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). If the defendant objected
at trial, the defendant must show that the prosecutor’s misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury’s verdict. State v.
Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009).
A prosecutor cannot use their position of power and prestige to sway the
jury and may not express an individual opinion of the defendant’s guilt,
independent of the evidence actually in the case. In re Pers. Restraint of
Glasmann, 175 Wn.2d 696, 706, 286 P.3d 673 (2012). Many cases warn of the
need for a prosecutor to avoid expressing a personal opinion of guilt. E.g., State
v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006); State v. Dhaliwal, 150 Wn.2d
559, 577-78, 79 P.3d 432 (2003); State v. Stith, 71 Wn. App. 14, 21-22, 856 P.2d
415 (1993).
Here, the prosecutor’s cross-examination was improper because it
embedded in the question the prosecutor’s own testimony that Brashear was
guilty. The State’s argument on appeal that it was harmless because the
21
No. 86610-9-I/22
prosecutor was about to argue in closing that Brashear was guilty is unacceptable
as a justification because the prosecutor was not entitled to argue with the witness
instead of pursuing proper cross-examination, and even in argument the
prosecutor would not have been entitled to offer their own opinion. However, the
misconduct was not prejudicial because it did not have a substantial likelihood of
affecting the jury’s verdict. Brashear did not answer the question, and the trial
court sustained the objection and instructed the prosecutor to rephrase. The jury
was instructed that the attorney’s statements were not evidence, and jurors are
presumed to follow the court’s instructions. In re Pers. Restraint of Phelps, 190
Wn.2d 155, 172, 410 P.3d 1142 (2018). We conclude this one instance of
misconduct does not rise to the level justifying appellate relief.
VI
Brashear argues the State failed to prove Mourer had actual authority to
consent to officers’ warrantless searches of Brashear’s property. We disagree.
A
The trial court held a CrR 3.6 hearing on Brashear’s motion to suppress.
The following testimony was elicited.
On October 27, 2021, Deputy Gonzalez was dispatched to Brashear’s
residence on a report of a possible assault. During the investigation, the deputy
took a report of Mourer’s injuries and learned Brashear and Mourer were
associated with the address. The property contained a locked metal gate between
the house and the road, and law enforcement had to walk around the gate to
access the property. Deputy Gonzalez testified that Mourer gave law enforcement
22
No. 86610-9-I/23
permission to search the property. Deputy Gonzalez further testified that Brashear
was not on the property at the time and “we were unable to locate him or get a hold
of him” to ask for his consent to search. Deputy Gonzalez took photographs later
marked as the State’s exhibits 7-18. He found the door to a house on the property
ajar, and took the photographs from standing outside. His trial testimony later
explained that the photographs generally showed broken items, scenes of
disturbance, and in several locations blood droplets.
On October 30, 2021, Deputy Gonzalez was dispatched to Brashear’s
property for an unknown medical problem. When he arrived at the metal gate,
Deputy Gonzalez walked past it because “when we showed up there, we could
hear two people talking or arguing with each other up the driveway,” and based on
his previous visit to the property, the deputy “had established probable cause to
arrest [Brashear].” Deputy Gonzalez testified that as they approached, Mourer
was walking down to them and told them that Brashear had departed. The deputy
was about 70 yards from the gate and he could “actually see the house itself when
I actually contacted [Mourer] because she had property that she was taking—she
had her belongings with her that were on the driveway.” Mourer had one or two
“[t]ub boxes with clothing, bags with clothing,” and “a backpack.” Officers did not
have a warrant to search the property. Deputy Gonzalez testified that “[t]he way
[Mourer] indicated, she pointed in the direction” Brashear had gone, and “it was
non-verbal to me that we could search the property for [Brashear].” Deputy
Gonzalez testified that he placed Mourer in an ambulance, and began searching
23
No. 86610-9-I/24
for Brashear with a K-9 unit. Officers did not locate Brashear, but did locate a
firearm on a bench outside of the vacant home located on the property.
Mourer testified that law enforcement asked for permission to search the
property on October 27 and she affirmatively gave them permission. Mourer
testified that on October 30, she was again contacted by law enforcement. Mourer
testified that on that day, she was hiding in the bushes and felt that she “couldn’t
get to the bottom of the property.” Mourer testified she did not go to the bottom of
the property because she was “in fear of the cops getting shot,” because Brashear
“said he’s not going back to prison. It’ll be a shootout before he goes back to
prison.” Mourer confirmed law enforcement asked for, and she gave, her
permission to search the property on October 30.
Mourer testified she had been staying at Brashear’s property “on and off for
months,” and would stay there five nights a week. Mourer testified she had
permission to spend the night at Brashear’s house because “[h]e brought me
there,” and “I don’t drive. So, that’s the only way I could get there is if he picked
me up.” Out of 30 days, Mourer would stay the night “at least a good 25” nights in
a row. Before October 27, Mourer had been staying at the property for over two
weeks. “[H]alf of [her] apartment” was at the property. Mourer had access to the
outside of the property, including access to the keys to Brashear’s truck, the house,
and the locked gate because the keys were kept in the truck. Mourer testified
Brashear “did hand me the keys one or more than one time. He told me what
every key belonged to,” and “[h]e said if something happened to him or he went
somewhere that this is—he told me what all the keys are for specifically and to if—
24
No. 86610-9-I/25
and I would have to give them to his son or something.” Mourer testified that she
stayed on the property occasionally when Brashear was not present.
Brashear testified Mourer did not live with him but instead lived in an
apartment that he helped her move into. Brashear testified he and Mourer dated
“off and on” for about seven months and Mourer would stay on the property “maybe
three nights a week.” Brashear testified that he “stayed the night at her apartment
I think four—four nights,” in the seven months they were dating.
B
Brashear challenges finding of fact 4, which states,
Mourer felt she could not meet law enforcement outside of the gate
because she was fearful of the defendant. She felt she needed to
hide in the bushes and that she couldn’t make it to the bottom of the
property.
This finding is supported by Mourer’s testimony she did not go to the bottom of the
property because of fear of a shootout, and so hid in the bushes. Substantial
evidence supports this finding.
Brashear challenges finding of fact 5, which states,
Once on the property law enforcement heard two people arguing with
each other. Mourer walked to them and said that the defendant had
run off. She pointed in the direction that he ran and gave law
enforcement permission to search the property for him. She had her
belongings in the driveway, [which] included one or two tub boxes
filled with clothing, bags of clothing, and a backpack. Mourer was
placed into an ambulance and left the property.
Deputy Gonzalez testified that he heard “two people talking or arguing with each
other up the driveway,” and Mourer was walking down to them and told them that
Brashear had departed. Deputy Gonzalez testified that Mourer “pointed in a
25
No. 86610-9-I/26
direction” Brashear had taken, and Mourer testified law enforcement asked for
consent to search the property, and she said yes. Deputy Gonzalez testified
Mourer had one or two “[t]ub boxes with clothing, bags with clothing,” and “a
backpack,” and he walked her to the ambulance. Substantial evidence supports
this finding of fact.
Brashear challenges finding of fact 8, which states,
Prior to contact with law enforcement, Mourer had been living with
the defendant at the 391st Street address. She and the defendant
were in a dating relationship and Mourer had recently been living at
the address for about three to four weeks. In total, lived at the
address on and off for about seven months and had been staying
there about three to five nights per week. Half of her belongings were
on the property. The defendant had to transport her to the address
as she did not drive. She had access to the property, including the
keys to his truck, the house, and the gate. Mourer stayed on the
property on occasion when the defendant was not present.
Mourer testified that prior to contact with law enforcement she had been staying at
the property. She had been staying there “on and off for months,” and would stay
there five nights a week. “[H]alf of [her] apartment” was at the property. Because
Mourer did not drive, Brashear drove her there. She had access to the outside of
the property and access to the keys to Brashear’s truck, the house, and the locked
gate. She also stayed on the property occasionally when Brashear was not
present. Substantial evidence supports this finding of fact.
C
Brashear challenges conclusion of law 1, which states,
Law enforcement entered the property under exigent circumstances
given the nature of the dispatch and the nature of the assault from
three days earlier.
26
No. 86610-9-I/27
Unchallenged finding of fact 1 states law enforcement was dispatched to
Brashear’s residence on October 27, 2021 on a report of a possible assault and
Deputy Gonzalez took a report of Mourer’s injuries. Unchallenged finding of fact
3 states Deputy Gonzalez was dispatched to the same location on October 30 for
an unknown medical problem.
Warrantless entry onto the premises in response to a 911 call, or a report
of someone needing assistance, is justifiable under the emergency aid exception.
E.g., State v. Johnson, 104 Wn. App. 409, 412, 16 P.3d 680 (2001) (domestic
violence report); State v. Leupp, 96 Wn. App. 324, 326, 980 P.2d 765 (1999) (911
hang up call); State v. Menz, 75 Wn. App. 351, 352, 880 P.2d 48 (1994) (domestic
violence report). The findings of fact support this conclusion of law.
Brashear challenges conclusions of law 3 through 6, which state,
3. Mourer gave law enforcement consent to search the property.
4. Mourer had actual authority to provide such consent as she
was a co-habitant of the property.
5. Law enforcement were legally on the premises when they
found the firearm because of Mourer’s consent.
6. The firearm is admissible.
Under article I, section 7 of the Washington Constitution, warrantless searches are
per se unreasonable. State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563(1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct.
649, 166 L. Ed. 2d 482 (2006). Article I, section 7 provides that “[n]o person shall
be disturbed in his private affairs, or his home invaded, without authority of law.”
One exception to the warrant requirement is consent to search, and it is the State’s
burden to establish that consent was lawfully given. State v. Thompson, 15127
No. 86610-9-I/28
Wn.2d 793, 803, 92 P.3d 228 (2004). In search and seizure cases involving
cohabitants, Washington has adopted the common authority rule. Id. at 804.
Article I, section 7 of the Washington Constitution provides greater
protection of individual privacy than the Fourth Amendment. State v. Morse, 156
Wn.2d 1, 10, 123 P.3d 832 (2005). Under article I, section 7, whether a person
can consent to the search of a premises is based upon that person’s independent
authority to so consent and the reasonable expectation of their co-occupant about
that authority. “First, a consenting party must be able to permit the search in his
own right. Second, it must be reasonable to find that the defendant has assumed
the risk that a co-occupant might permit a search.” State v. Mathe, 102 Wn.2d
537, 543-44, 688 P.2d 859 (1984). “In essence, an individual sharing authority
over an otherwise private enclave inherently has a lessened expectation that his
affairs will remain only within his purview, as the other cohabitants may permit
entry in their own right.” State v. Leach, 113 Wn.2d 735, 739, 782 P.2d 1035(1989). The test for the authority to consent is as follows:
The touchstone of the inquiry is that the person with common
authority must have free access to the shared area and authority to
invite others into the shared area. That access must be significant
enough that it can be concluded that the nonconsenting co-occupant
assumed the risk that the consenting co-occupant would invite others
into the shared area. When a guest is more than a casual visitor and
has “run of the house,” her lesser interest in the property is sufficient
to render consent to search effective only as to the areas of the home
“where a visitor would normally be received.”
Morse, 156 Wn.2d at 10-11 (internal quotation marks omitted) (quoting 4 W AYNE
R. LAFAVE, SEARCH & SEIZURE § 8.5(e), at 235 (4th ed. 2004))
28
No. 86610-9-I/29
Here, Mourer was “more than a casual visitor” as Brashear’s girlfriend and
her testimony supports that the part of the premises Brashear had made available
to her as her dwelling included at least the exterior grounds of the property where
the gun was found and the open door through which police viewed the interior of
the residence. Mourer and Brashear were in a relationship, and Mourer had been
living at Brashear’s residence on and off for about seven months, about three to
five nights a week. Mourer was a regular co-habitant on the property and thus had
independent authority to consent to a search of the property. It is reasonable to
conclude Brashear assumed the risk that Mourer would consent to a search, as he
allowed her to stay on the property while he was away, he allowed her access to
the house and gate keys, and the search arose out of her emergency call that he
had assaulted her at the property while she was residing there.
Brashear takes out of context the court’s discussion in Thompson to argue
that it was necessary to show not merely that Mourer had authority to allow these
particular searches, but that she had “equal control over the premises.” In
Thompson, Thompson lived on a trailer on part of his parents’ land, and stored
some items in a boathouse on another part of the land. 151 Wn.2d at 806.
Thompson’s father authorized a search of the boathouse. Id. at 799. Thompson
relied on the rule that if a cohabitant is present and able to object, the police must
“also” obtain the cohabitant’s consent to search—where a cohabitant is defined as
a person having “equal control over the premises.” Id. at 804-05. The court held
that by merely storing some items in the boathouse, Thompson did not enjoy equal
control as the owner and so it was not necessary to also obtain his consent to
29
No. 86610-9-I/30
justify a search of the boathouse. Id. at 805-06. But Thompson did not hold that
“equal” authority must exist to give consent for any search, and Morse contradicts
that assertion by acknowledging that a guest might have the ability to permit a
search of common areas but not private areas in which the guest was not normally
received. Morse, 156 Wn.2d at 11. As a regular inhabitant of the property as
Brashear’s girlfriend, Mourer had at least the authority described in Morse to allow
the searches of the property grounds in which she was normally received.
Conclusions of law 3 through 6 are supported by the trial court’s findings of
fact. Mourer had actual authority to consent to the search of the property.
VII
Brashear argues the errors are prejudicial in the aggregate. We disagree.
Cumulative error may warrant reversal, even if each error standing alone would
otherwise be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d
646 (2006). However, the doctrine does not apply where the errors are few and
have little or no effect on the outcome of the trial. Id. Because the errors are few
and had no effect on the outcome of the trial, we reject Brashear’s cumulative error
argument.
VIII
Brashear argues the trial court erred by failing to order and review a
presentence report authored by the department of corrections, which he claims
was required by the MHSA statute. We disagree.
Trial courts have “considerable discretion” when determining whether an
alternative sentence is appropriate. State v. Hender, 180 Wn. App. 895, 900-01,
30
No. 86610-9-I/31
324 P.3d 780 (2014). A court that fails to consider a requested alternative abuses
its discretion. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).
There are four eligibility requirements to be sentenced under the MHSA statute:
(a) The defendant is convicted of a felony that is not a serious
violent offense or sex offense;
(b) The defendant is diagnosed with a serious mental illness
recognized by the diagnostic manual in use by mental health
professionals at the time of sentencing;
(c) The defendant and the community would benefit from
supervision and treatment, as determined by the judge; and
(d) The defendant is willing to participate in the sentencing
alternative.
RCW 9.94A.695(1). The trial court may rely on mental health services reports to
determine whether a defendant had a serious mental illness. RCW 9.94A.695(2).
To assist the trial court in its determination, the department of corrections “shall”
provide a written presentence investigation report, however, the trial court “may
waive the production of this report if sufficient information is available to the court
to make a determination under subsection (4) of this section.” RCW 9.94A.695(3).
Subsection four reads, in relevant part, “After considering all available information
and determining whether the defendant is eligible, the court shall consider whether
the defendant and the community will benefit from the use of this sentencing
alternative.” RCW 9.94A.695(4).
In its denial of the MHSA request, the trial court referenced Brashear’s
pattern of “grooming and predation” and patterns of “isolation and financial
dependence and other dependence on him” which the trial court did not believe to
be accidental. The trial court further stated it believed it stood “at the zenith of its
authority and power when it’s protecting those that are vulnerable in the
31
No. 86610-9-I/32
community.” Moreover, the record contains no indication that at the time of
sentencing Brashear had ever been diagnosed with a serious mental illness
triggering eligibility for the sentencing alternative. Based on the trial court’s view
of the evidence, it concluded that the community would not benefit from granting
the MHSA request. The trial court did not abuse its discretion in declining to order
a presentence investigation report.
IX
Brashear argues the trial court erroneously imposed the VPA and the
community custody supervision fees. The State concedes remand is appropriate
to strike the imposition of both fees. We accept the State’s concession and remand
for both fees to be stricken as a ministerial matter.
X
In his statement of additional grounds, Brashear amplifies the above
arguments and further asserts numerous claims regarding prosecutorial
misconduct, judicial misconduct, and ineffective assistance of counsel. We have
considered Brashear’s arguments that the prosecutor engaged in misconduct by
(1) bringing to the trial court’s attention outside the presence of the jury Mourer’s
uncharged rape allegation with a request to instruct Mourer to not mention it during
her testimony, (2) allegedly violating conditions of the omnibus agreement by
producing new (unidentified) discovery, (3) amending the information to add an
additional charge of fourth degree assault before trial, (4) allowing Mourer to testify
with an allegedly active arrest warrant, and (5) allegedly misstating the evidence
of Mourer’s residential alternatives during sentencing, that the trial court erred by
32
No. 86610-9-I/33
(6) violating his right to a speedy trial, (7) reading the amended information to the
jury venire which included the State’s allegation that Brashear had a prior
conviction, (8) failing to take corrective action when a juror was overheard
discussing jury selection on the phone, and the parties agreed on taking no action,
(9) requesting that Deputy Gonzalez say “public records” instead of “recent
mugshots” (discussed above), (10) denying a motion for mistrial (discussed
above), (11) admitting evidence of Brashear’s suicidal threats but not admitting
evidence of Mourer’s “similar behavior,” (12) failing to rule on Brashear’s motion to
strike the “recent mugshots” comment where the court redirected the testifying
witness (discussed above), and (13) admitting Mourer’s statements to Detective
Volker made the day after the night of October 30-31, 2021, under the “excited
utterance” exception, and that Brashear’s counsel was ineffective in failing to (14)
contemporaneously object to an officer referring to Mourer as a “victim,” (15) timely
file a motion to sever counts (which was later withdrawn), (16) file a motion to
dismiss charges based on a speedy trial violation, (17) call Mourer’s mother to
testify, (18) subpoena ambulance records and Mourer’s phone records, (19)
decline a stipulation with the State,8 (20) object to the trial court violating
Brashear’s right to confer with counsel, (21) make the trial court aware of the
State’s alleged omnibus violations, (22) move for a new jury panel, (23) object to
the prosecutor’s alleged misstatements of Mourer’s residential alternatives during
8 Although not identified by Brashear, it is clear he is referring to the
stipulation concerning his 2011 conviction.
33
No. 86610-9-I/34
sentencing, and (24) impeach Deputy Gonzalez and Mourer. We have concluded
that these claims lack merit.
We affirm Brashear’s conviction, and remand to allow the trial court to strike
the VPA and the community custody supervision fees as a ministerial matter.
WE CONCUR:
34