State Of Washington, V. Jeremy J. Simmons

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 80563-1-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
JEREMY JOSEPH SIMMONS, )
)
Appellant. )
)
HAZELRIGG, J. — Jeremy J. Simmons was convicted as charged of two
counts of murder in the first degree, one count of assault in the first degree, and
one count of unlawful possession of a firearm in the first degree. The first three
counts also carried firearm enhancements which were found by special verdict.
Based on his criminal history, Simmons was sentenced as a persistent offender to
life in prison without the possibility of parole.
On appeal, Simmons challenges the court’s hardship dismissal of a juror as
both an improper closure of the court and a violation of his right to be present
during the proceedings. He further asserts error as to search warrants for cell
phone information, a number of evidentiary rulings by the trial court, and the denial
of both a motion to dismiss for government misconduct under CrR 8.3(b) and
motion for mistrial. He avers that the prosecutor engaged in misconduct at several
points during closing argument. Finally, Simmons challenges the use of a most
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serious offense, committed when he was a juvenile, as a predicate offense in the
imposition of a life sentence as a persistent offender on the grounds that such
practice is a violation of our state constitution. We disagree with Simmons’
arguments on appeal and affirm.
FACTS
Just after midnight on November 2, 2017, Shon Tiea Brister, Raymond
Myles, Jr., and Brandon Washington were shot in downtown Seattle. Washington
survived, but Brister and Myles died at the scene. Washington was captured on
the recorded 911 call and on body cam footage of one of the responding officers
identifying one of the shooters as “Green Eyes” and he repeated that identification
to officers when he was later interviewed at Harborview Medical Center. In the
time following the shooting, several witnesses came forward and identified the
shooters by providing various street names by which they knew them. The
investigation suggested there was a second shooter involved in the incident,
initially identified as “Big Baby.”1 Each of the witnesses who provided those names
to police indicated that they personally knew the individual they identified.
Washington had provided police with a phone number saved in his cell
phone contacts for Green Eyes. Police obtained a search warrant for the
subscriber information for that phone number and learned that Jeremy Simmons
was the account holder. The search warrant allowed police to access the call log
information, as well as cell site location information (CSLI), associated with the
1 The State alleges that Big Baby is Nyagah Baker-Williams and charged him as a co-
defendant. However, Simmons proceeded to trial alone.
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phone number. Simmons was later arrested in Mexico and turned over to US
federal authorities at the U.S./Mexico border in San Ysidro, California, along with
three cell phones that were marked, logged, and transported with him as his
property. A Deputy US Marshal who had been in contact with the Seattle Police
Department (SPD) about Simmons’ apprehension, transported him from the
border to the San Diego Central Jail for booking. The cell phones were transferred
with Simmons. Simmons was extradited from California to Washington and SPD
seized the phones as evidence.
Simmons was charged with two counts of murder in the first degree, each
with a firearm enhancement, as to Brister and Myles; one count of assault in the
first degree with a firearm enhancement as to Washington; and one count of
unlawful possession of a firearm in the first degree.2 Because Simmons’ criminal
history included two prior most serious (“strike”) offenses, he faced a mandatory
sentence of life in prison without the possibility of parole as a persistent offender.
Simmons brought numerous pretrial motions on evidentiary matters, including
challenging the search warrants for data from the phones that were transported
into the U.S. as his property and the admissibility of text messages extracted from
them. He also brought a CrR 8.3(b) motion to dismiss for government misconduct,
based on what he asserted was an unlawful arrest in Mexico, which was denied.
Prior to the start of testimony, Simmons objected to the hardship dismissal
the court granted to a person selected as an alternate juror, as well as the process
2 Simmons resolved the unlawful possession of a firearm in the first degree charge by
entering a guilty plea prior to proceeding to trial on the remaining charges. He was sentenced on
all counts at a separate sentencing hearing after the conclusion of trial.
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by which the dismissal occurred. Additionally, Simmons challenged the
identification procedure used by SPD with various eyewitnesses and objected to
the court’s decision allowing the witnesses to make in-court identifications.
Ultimately, the jury convicted Simmons as charged and the court sentenced him
to life in prison without the possibility of parole, pursuant to the Persistent Offender
Accountability Act (POAA).3 Simmons now appeals.
ANALYSIS
I. Hardship Dismissal of Alternate Juror
Simmons first argues it was error for the trial court to excuse a juror based
on hardship. He asserts that this violated both his right to a public trial and right to
be present. Prior to the jury being sworn, during a planned recess that spanned
multiple weeks, the trial court excused the third alternate juror. The juror informed
the court via email that her 93-year-old father was admitted to the hospital with
congestive heart failure and advised that she held power of attorney for him. The
court forwarded the juror’s email to both parties. The defense responded
approximately an hour later, but after business hours, and requested a hearing on
the matter. The juror had already been excused for hardship by the time this email
was sent. The judge filed the email thread with the juror in the court file and held
a hearing on the issue a few days later.
3 RCW 9.94A.570.
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A. Courtroom Closure and the Right to a Public Trial
Both the Sixth Amendment of the United States Constitution and article I,
section 22 of the Washington State Constitution guarantee a criminal defendant
the right to a public trial. State v. Wise, 176 Wn.2d 1, 9, 288 P.3d 1113 (2012).
“In order to protect the accused’s constitutional public trial right, a trial court may
not close a courtroom without, first, applying and weighing five requirements as
set forth in [State v. Bone–Club] and, second, entering specific findings justifying
the closure order.” State v. Easterling, 157 Wn.2d 167, 175, 137 P.3d 825 (2006)
(citing Bone-Club, 128 Wn.2d 254, 258–59, 906 P.2d 325 (1995)). “These
requirements mirror the requirements applied to protect the public’s article I,
section 10 right to open proceedings.” Id. However, our state’s Supreme Court
has held that “not every interaction between the court, counsel, and defendants
will implicate the right to a public trial or constitute a closure if closed to the public.”
State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012). “Whether a criminal
accused’s constitutional public trial right has been violated is a question of law,
subject to de novo review on direct appeal.” Easterling, 157 Wn.2d at 173–74.
Such a claim may be raised for the first time on appeal. Wise, 176 Wn.2d at 9.
Before resolving the question of whether a trial court violated a defendant’s
right to a public trial, the reviewing court must determine whether “the proceeding
at issue implicates the public trial right, thereby constituting a closure at all.”
Sublett, 176 Wn.2d at 71. Here, as the State points out, our state has affirmatively
rejected the assertion that hardship determinations implicate the public trial right.
See State v. Russell, 183 Wn.2d 720, 730–31, 357 P.3d 38 (2015) (court holding
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a work session within chambers to go over juror questionnaires for potential
hardship did not implicate public trial right); State v. Schierman, 192 Wn.2d 577,
607–08, 438 P.3d 1063 (2018) (no public trial right implicated by preliminary
hardship excusal determination made during meeting between counsel and court
administrator); State v. Jones, 185 Wn.2d 412, 426, 372 P.3d 755 (2016) (no public
trial right implicated where judicial assistant randomly drew the alternate jurors
during recess); State v. Wilson, 174 Wn. App. 328, 329–30, 298 P.3d 148 (2013)
(when bailiff excused two jurors for illness prior to voir dire, no implication of public
trial right). Simmons fails to engage with the applicable legal precedent raised by
the State. As the court’s dismissal here was based on hardship, the fact that it
occurred via email does not constitute an improper closure of the court. Because
we do not find that a closure occurred, we need not engage in the Bone-Club
analysis.
B. Defendant’s Right to be Present
We review de novo an assertion of violation of a defendant’s constitutional
right to be present during criminal proceedings. State v. Irby, 170 Wn.2d 874, 880,
246 P.3d 796 (2011). A person charged with a crime has a fundamental right to
be present at all critical stages of a trial. Id.Simmons relies on Irby to argue that he was denied his right to be present
at a critical stage when the trial court dismissed the alternate juror for hardship
through email, without opportunity for the parties to provide input. Irby is
distinguishable, however, as it involved for-cause challenges to potential jurors
based on their responses to an initial questionnaire. Id. at 877–78. A for-cause
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challenge is distinct in that it is subject to argument by the parties, the challenged
juror may be rehabilitated such that the cause that gave rise to the motion to strike
dissipates or is resolved, and a defendant may have meaningful input to help the
process. As noted in Irby, the evaluation of for-cause challenges based on
questionnaire is an evaluation of “the ability of particular jurors to try this specific
case.” Id. at 882.
The situation presented here differs from Irby in that this was a hardship
dismissal; one that was medically urgent, very serious and where input from the
parties would be highly unlikely to impact the court’s ruling. See RCW 2.36.100.
It is noteworthy that the error in Irby was found to be prejudicial because “the State
cannot prove beyond a reasonable doubt that the removal of several jurors in Irby’s
absence had no effect on the verdict.” Id. at 887. The reasoning was that the court
could not speculate as to how the prospective jurors dismissed for-cause may have
deliberated had they been seated. In Simmons’ case, even if we assumed error
as to the hardship dismissal, we can conclude that it would be harmless beyond a
reasonable doubt since the excused juror was one of multiple alternates. The
record demonstrates that the case proceeded to verdict without the use of any
alternate jurors. That critical fact guides our determination on this issue; had the
excused juror been one of the first twelve, our analysis and outcome could be
different.
II. Privacy Act Challenge to Cell Phone Communication
Simmons argues that it was error for the trial court to have admitted into
evidence text messages retrieved from one of his cellphones, specifically that such
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an admission is a violation of Washington’s privacy act, chapter 9.73 RCW. This
argument was not properly preserved. Appellate courts generally will not consider
issues raised for the first time on appeal. RAP 2.5(a); State v. McFarland, 127
Wn.2d 322, 332–33, 899 P.2d 1251 (1995). The record demonstrates that
Simmons did not raise a privacy act challenge to the text messages recovered
from his phone. Rather, he brought an unsuccessful motion to suppress certain
records from the carrier, T-Mobile, particularly data saved in cloud storage, but no
such evidence was recovered by SPD nor admitted at trial. As such, a privacy act
challenge to the admission of the text messages extracted from the cell phones is
raised now for the first time and we decline to reach it.
III. Motion for Mistrial
Simmons avers that the trial court abused its discretion in denying a motion
for a mistrial that he advanced during trial. The motion was based on two grounds:
first, the court’s failure to require Washington to answer a question during cross-
examination after he flatly refused; and second, the trial court’s admission of
Washington’s prior statement to law enforcement on re-direct. We review a trial
court’s denial of a motion for a mistrial for abuse of discretion. State v. Gamble,
168 Wn.2d 161, 177, 225 P.3d 973 (2010). “The Supreme Court of our state has
indicated a trial court should only grant a mistrial when the defendant has been so
prejudiced that nothing short of a new trial can ensure that the defendant will be
tried fairly.” State v. Taylor, __ Wn, App. __, 490 P.3d 263, 270 (2021). The
prejudice is considered against the “backdrop of the trial as a whole.” Id.Additionally, we review a court’s rulings on admission of evidence for abuse of
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discretion. State v. Simms, 151 Wn. App. 677, 692, 214 P.3d 919 (2009). In
reviewing the denial of a motion for mistrial, we apply the Weber factors: “1) the
seriousness of the irregularity, 2) whether the statement at issue was cumulative
of other properly admitted evidence, and 3) whether the irregularity was able to be
cured by an instruction to disregard the improper testimony, which the jury is
presumed to follow.” Taylor, 490 P.3d at 270 (citing State v. Weber, 99 Wn.2d
158, 165–66, 659 P.2d 1102 (1983)).
We necessarily must first consider whether the issues cited as the basis for
the motion for mistrial were, in fact, irregularities. The trial court allowed the State
to admit the prior statements by Washington under the rule of completeness,
because defense counsel opened the door during cross-examination and the judge
ruled it was within its discretion to not require Washington to answer the question
of who else he was with at a birthday party earlier on the evening of the killings.
On appeal, Simmons focuses on the propriety of these rulings as the basis for his
assertion that the trial court erred in denying his motion for mistrial.
A. Washington’s Refusal to Answer During Cross-Examination
It was not error for the court to decline to order Washington to answer
defense’s question on cross-examination about events in the hours before the
incident. Washington was testifying about being at a birthday party prior to the
shooting and the following exchange occurred:
Q. Now, who was at this party you had with Ray?
A. Me and a couple buddies.
Q. Who? What are their names?
A. Doesn’t matter.
Q. It doesn’t matter?
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A. Nope.
Q. You know their names?
A. Yes. Does not matter.
Q. But you won’t divulge them?
A. They’re not—it doesn’t matter of this case.
[Defense Counsel]: Your Honor, I’d ask the court to instruct the
witness to answer the question.
The Court: I am not going to do that, [Defense Counsel].
[Defense Counsel]: Your Honor, then I would move to strike his
testimony. He needs to answer the question here.
The Court: I’m not going to do that, either, Counsel.
[Defense Counsel]: Then I would object to that, Your Honor.
The Court: It’s overruled.
Q (By [Defense Counsel]:) So you won’t give us the names of your
buddies?
A. That’s what I said. Doesn’t matter.
A defendant has no constitutional right to admit irrelevant evidence. State v.
Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004). “Evidence is relevant if it has
any tendency to make any fact that is of consequence to the case more or less
likely than without the evidence.” Id. at 858 (citing ER 401). “A trial court’s decision
to admit evidence is reviewed for abuse of discretion.” State v. Sexsmith, 138 Wn.
App. 497, 504, 157 P.3d 901 (2007). While Simmons claims this was error, he
fails to articulate why this information was relevant such that admission would be
proper. Neither does he advance any authority that would support his claim of
error. In the absence of authority or argument to the contrary, we are unpersuaded
by Simmons’ claim of error as to this ruling. See In re Det. of Ruston, 190 Wn.
App. 358, 373, 358 P.3d 935 (2015) (“We do not consider conclusory arguments
that are unsupported by citation to authority.”). The court did not abuse its
discretion in declining to order Washington to answer this question.
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B. Admission of Washington’s Prior Statements under ER 106
The other basis Simmons offered for his motion for mistrial is an assertion
that the trial court committed error by allowing the State to introduce prior
statements Washington made to police. A critical fact in our analysis is that the
prior statements were admitted only after the defense’s cross-examination of
Washington, wherein certain portions of his statement to police were strategically
selected and presented in a manner that suggested Washington had reported that
Baker-Williams was the only shooter. The trial court ruled that the State could
rehabilitate the witness via prior statements under the rule of completeness. See
ER 106.
ER 106 provides:
When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the party at the
time to introduce any other part, or any other writing or recorded
statement, which ought in fairness to be considered
contemporaneously with it.
The rule clearly applies in this instance. Defense counsel made a strategic
decision to inquire about prior statements Washington had made regarding the
shooting, but chose to present them in a limited fashion to give the appearance
that Washington reported only one shooter, Baker-Williams. This tactical decision
by counsel opened the door for the State to inquire about the statements in a more
complete fashion under ER 106 to clarify the true context and content for the jury.
As such, the trial court’s ruling on this matter was not error.
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Because neither of the grounds for Simmons’ motion for mistrial constitute
error or trial irregularities, we need not engage with the Weber factors to determine
whether the court abused its discretion in denying the motion.
IV. Out-of-Court Identification Procedures.
Simmons next asserts that the trial court erred by not suppressing his out-
of-court identification by a number of witnesses based on the police procedure
used. An out-of-court identification violates due process if the procedure is so
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification. State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002).
Simmons bears the burden of establishing that the procedures used were
impermissibly suggestive. Id. In reviewing a claim of an impermissibly suggestive
identification procedure, we employ a two-step process. First, Simmons must
show the procedure was impermissibly suggestive. State v. Ramires, 109 Wn.
App. 749, 761, 37 P.3d 343 (2002). If he meets this burden, the court then
determines whether the photo identification contained “sufficient indicia of
reliability despite the suggestiveness.” Id.The trial court noted at oral argument on the motion to suppress that the
identification by the four witnesses Simmons challenged involved individuals who
were personally familiar with him. Each positively identified him when they initially
spoke to police, albeit by a nickname as opposed to his legal name.4 The
4 Several witnesses alternately identified one of the shooters as Green Eyes, J, or Jay.
Each of those witnesses later confirmed, after viewing Simmons’ DOL photo, that the person that
they knew by the nickname they provided was Simmons.
One witness knew Simmons’ legal name and directly identified him as one of the shooters.
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procedure complained of by Simmons was only provided to connect the street and
government names of the person each witness otherwise identified as one of the
shooters. As such, the use of Simmons’ Department of Licensing photo toward
that end was not an impermissibly suggestive procedure that would have skewed
the identifications. Each witness asserted that they knew what Green Eyes/J/Jay
looked like—they just didn’t know his true legal name.
Our opinion in State v. Collins is informative here. 152 Wn. App. 429, 216
P.3d 463 (2009). In Collins, we clarified:
There is a wide difference between identification of a stranger seen
only under the stress of a crime in progress and identification of a
known individual in a photograph. There is no likelihood that
recollection will be distorted by suggestive procedures when the
witness already knows the person depicted.
Id. at 435. We explained, “[t]he identification of a suspect by an acquaintance does
not raise the due process concerns that arise when an eyewitness identification is
tainted by suggestive procedures.” Id. at 436. It is undisputed that all four
identifications at issue here involve witnesses who were acquaintances of
Simmons, therefore no due process concern exists and Simmons fails to carry his
burden. For the same reasons, it was not error for the trial court to allow the
witnesses to identify Simmons in court during their testimony.
V. CrR 8.3(b) Motion to Dismiss due to Government Misconduct
Prior to the start of trial, Simmons argued pursuant to CrR 8.3(b) that the
case against him should be dismissed due to government misconduct based on
his claims as to his arrest in Mexico. He argued in the alternative that the court
should suppress the cellphones that were turned over to US authorities at the
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border, as well as any evidence extracted from them. Simmons claimed that he
was illegally arrested in his home by Mexican authorities and he inferred that this
was directed by US authorities who were seeking him in connection to this incident.
He was turned over to a deputy US Marshal at the US/Mexico border, transferred
to the San Diego Central Jail, and eventually extradited to Washington based on
a warrant filed with the information in this case. The trial court denied the motion
and found that Simmons failed to meet his legal and factual burden. The court
ruled that Simmons did not establish facts demonstrating any illegal search or
seizure occurred as there was no evidence provided as to his arrest by Mexican
authorities apart from Simmons’ own assertions. The same is true on appeal,
particularly in light of the fact that our review is limited to the record from the trial
court. See State v. MacFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
On the record before us, we do not find the trial court erred in denying the
motion to dismiss. Aside from the inadequacy of the evidence in support of
Simmons’ claims, we reiterate the Washington State Supreme Court’s clear
holding in State v. Bowman: “‘Where, for any reason, an arrest is invalid, but the
defendant enters a plea of not guilty and is in court on the day of trial, the court
has jurisdiction of his person.’” 69 Wn.2d 700, 703, 419 P.2d 786 (1966) (quoting
State v. Ryan, 48 Wn.2d 304, 305, 293 P.2d 399 (1956)). The authority Simmons
provides for this assignment of error focuses on tribal sovereignty, a uniquely
distinguishable concern from government misconduct, and does not engage with
this longstanding state authority.
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We agree with the trial court’s ruling that Simmons had not met his burden
and further determination that, “it would be [an] extraordinary [remedy for a] court
to dismiss under 8.3(b) because somebody flees to Mexico and is then arrested in
Mexico.” The trial court noted “there is no evidence before this court as to arbitrary
Governmental action that somehow would violate the Fourth Amendment here in
his arrest.” For this same reason, we need not consider Simmons’ argument for
suppression given that he has not established that Washington authorities should
be held responsible for the alleged misconduct of a foreign government. Even if
we found there was a sufficient record to reach that issue, suppression is not an
available remedy under CrR 8.3(b).
VI. Sufficiency of the Search Warrants for Simmons’ Cell Phones
Simmons next challenges the sufficiency of search warrants issued as to
his cell phones. First, he argues that the warrant issued for a search of his cell
phone lacked sufficient particularity regarding the information sought. The record
reveals that Simmons is conflating two separate warrants authorizing two distinct
searches. The first was for service provider records for a cell phone number from
a specific two-day period, which Simmons argued lacked the requisite particularity
as the warrant allowed for retrieval of cloud data generally. However, no cloud
data was recovered under authority of that warrant. As such, we decline to review
this challenge.
The second warrant was for the search of the three phones transported with
Simmons as associated with him at the time of arrest. Here, the State conceded
the first warrant to search the three phones was flawed and invalid. The remedy
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for the error, which Simmons agreed was proper, was for the State to seek a
second warrant. The State sought a second warrant under the independent source
doctrine and executed a second search of the phones pursuant to the corrected
warrant. See State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005). Given
that Simmons conceded at the trial court that the second warrant remedied the
deficiencies in the original, his argument on appeal as to this issue is waived.
VII. Prosecutorial Misconduct
Simmons next avers that the prosecutor committed misconduct in closing
argument based on three separate incidents. “The right to a fair trial is a
fundamental liberty secured by the Sixth and Fourteenth Amendment to the United
States Constitution and article I, section 22 of the Washington State Constitution.”
In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703, 286 P.3d 673 (2012).
When a prosecutor commits misconduct, it may deprive a defendant of their
constitutional right to a fair trial. Id. at 703–04. Prosecutors play a central and
influential role in ensuring the fundamental fairness of the criminal justice system.
State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011).
To prevail on his claims of prosecutorial misconduct, Simmons must show
that, within the context of the record and circumstances of the trial as whole, the
prosecutor’s conduct was both improper and prejudicial. State v. Thorgerson, 172
Wn.2d 438, 442, 258 P.3d 43 (2011). “To show prejudice requires that the
defendant show a substantial likelihood that the misconduct affected the jury
verdict.” Glassmann, 175 Wn.2d at 704. Because Simmons failed to object at
trial, “the errors he complains of are waived unless he establishes that the
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misconduct was so flagrant and ill intentioned that an instruction would not have
cured the prejudice.” Id. As an initial matter, we look to each claim independently
to determine whether the challenged statement constitutes misconduct.
A. Improper Burden-Shifting
Simmons first claims that the prosecutor “improperly shifted the burden to
the defense in its rebuttal argument.” In particular Simmons complains of the
State’s characterization that the jury must “buy off” on the defense case, find that
numerous witnesses were not credible, and accept that the telephonic evidence
was an “unfortunate coincidence.” Again, “[w]e review allegedly improper
statements by the State in the context of the argument as a whole, the issues
involved in the case, the evidence referenced in the statement, and the trial court’s
jury instructions.” State v. Fuller, 169 Wn. App. 797, 812, 282 P.3d 126 (2012).
Even if we were to assume that this argument amounted to misconduct, we cannot
say that it was not curable by the instructions directing the jury that “[t]he defendant
has no burden of proving that a reasonable doubt exists as to these elements” and
detailing the presumption of innocence. Further, the statements complained of as
burden-shifting were responsive to the closing argument of the defense. This case
hinged on credibility determinations as to the various witnesses, with no affirmative
defense at play. This left closing arguments from both sides to center on a review
of credibility as to the various witnesses and allowed the parties to urge the jurors
to believe certain witnesses over others as to their account of the events on the
evening in question.
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B. Vouching for State’s Witnesses
Simmons next argues that the prosecutor improperly utilized the phrase “we
know” throughout his closing such that it amounted to improper vouching for
certain witnesses. It is improper for a prosecutor to personally vouch for the
credibility of witnesses. State v. Brett, 126 Wn.2d 136, 175, 892 P.3d 29 (1995).
Simmons notes in briefing that the prosecutor utilized “the phrase ‘we know’ about
22 times,” but fails to provide context for any of those quotes. When we look to
the transcript of closing argument, the prosecutor’s use of “we know” was in the
context of walking the jury through the various pieces of evidence presented at trial
and suggesting the inferences they should draw from that evidence as finders of
fact. Even if we were to assume this was misconduct, we cannot conclude that it
was so flagrant and ill-intentioned that instruction would not cure it. The jury was
provided instruction 22 which expressly stated, “You are the sole judges of the
credibility of each witness.” We presume that juries follow the instructions of the
court. State v. Moe, 56 Wn.2d 111, 115, 351 P.2d 120 (1960). In light of this
presumption, Simmons has not carried his burden as to this challenge.
C. Appeal to Emotion
Simmons next draws our attention to the prosecutor’s argument in the
following passage:
That’s because the law is rooted in our shared common intellectual
sense, in our shared common moral sense. What that means is that
if we apply the law to the evidence and we follow the law, then you’ll
reach the correct verdict. And by doing that, by following the law, by
applying the facts to the law, it will feel right, it will feel right
intellectually, it will feel right morally, and it will feel right, just feel
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right. Because it makes sense, the law makes sense. It makes sense
here, and it makes sense here, and it makes sense deep in here.
As to our preliminary determination of whether such argument constitutes
misconduct, we need look no further than an opinion of this court published not
even a year ago, wherein this same deputy prosecutor made this same
argument—apparently a classic closing for him. See State v. Craven, 15 Wn. App.
2d 380, 475 P.3d 1038 (2020). We reinforce the analysis and conclusion therein,
As a judicial officer, the prosecutor should have understood that
following and applying the law will not always feel right emotionally
or instinctually. In fact, as the court instructed, jurors are court
officers with an obligation to set aside their biases and intellectually
apply the law to the facts even if the result is personally distasteful or
disappointing.
Id. at 388-89.
Even in Craven, where defense objected, we concluded that the curative
instruction given by the court was sufficient to resolve the prejudice created by the
misconduct. Id. at 386, 391. In light of that determination, we cannot now say that
Simmons has carried his burden in establishing the prejudice flowing from the
prosecutor’s nearly identical statements in this trial were such that the misconduct
was so flagrant and ill-intentioned that an instruction would not have been sufficient
to cure. We however, do think it wise that the prosecutor stop talking feelings and
focus on law and evidence in closing argument.
VIII. Life Sentence Under the Persistent Offender Accountability Act
In his final assignment of error, Simmons asserts the mandatory life
sentence without the possibility of parole that was imposed pursuant to the POAA
is unconstitutional given that one of his predicate offenses was committed while
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he was a juvenile. Simmons was 16 years old at the time of the offense, but was
convicted as an adult and the crime is scored as an adult felony under the
Sentencing Reform Act of 1981 (SRA). RCW 9.94A.030(34). Nearly identical
challenges were addressed in our state Supreme Court’s recent opinion, State v.
Moretti which held that the POAA did not violate article I, section 14 of our
constitution when an offender’s sentence is based on prior convictions for most
serious, or “strike,” offenses which were committed as young adults. 193 Wn.2d
809, 834, 446 P.3d 609 (2019). We recognize the factual distinction, though, given
that Simmons was a juvenile, unlike the “youthful offenders” in Moretti.5 6 However,
several recent cases from the other divisions of this court have followed Moretti
with regard to defendants with predicate offenses committed before they reached
the age of majority. See State v. Teas, 10 Wn. App. 2d 111, 131–35, 447 P.3d
606 (2019), review denied, 195 Wn.2d 1008 (2020); see also State v. Vasquez,
No. 36281-7-III, slip op. at 11–14 (Wash Ct. App. Dec. 10, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/362817_unp.pdf; State v. Smith, No.
36213-2-III, slip op. at 20–22 (Wash Ct. App. Apr. 6 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/362132_ord.pdf. In light of this precedent,
we are bound to similarly follow the reasoning set out in Moretti.
5 In footnote 5 of Moretti, the Court expressly stated “[w]e express no opinion on whether
it is constitutional to apply the POAA to an offender who committed a strike offense as a juvenile
and was convicted in adult court.”
6 A juvenile is someone who has not reached the age of majority. RCW 26.28.010.
“Youthful offenders” are those who have, but who may not yet have reached full brain maturity
according to developing science. Case law continues to refine the age range that encompasses
youthful offenders. See In re Pers. Restraint of Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021);
State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015).
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A. POAA overview
Under the POAA, “persistent offenders” must be sentenced to life in prison
without the possibility of parole. RCW 9.94A.570. A “persistent offender” is an
individual who commits a third most serious offense after having been convicted
on two separate prior occasions of most serious offenses or their out-of-state
equivalents. RCW 9.94A.030(38). A “most serious offense” is any class A felony
or certain class B felonies that are violent, sexual, or dangerous. See RCW
9.94A.030(33). Juvenile offenses are not included as strikes under the POAA.
State v. Thorne, 129 Wn.2d 736, 748, 921 P.2d 514 (1996) (abrogated on other
grounds by Black v. Ctr. Puget Sound Reg’l Transit Auth., 195 Wn.2d 198, 457
P.3d 453 (2020)); RCW 9.94A.030(34).
B. Mootness
As a preliminary matter, the State asserts that this issue is moot given that
Simmons’ offender score is so high that standard range sentences, with the
statutory requirements as to the firearm enhancements and consecutive time,
would function as a life sentence.
Generally, this court does not consider matters which are moot. State v.
Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995). “A case is technically moot if
the court can no longer provide effective relief.” State v. Hunley, 175 Wn.2d 901,
907, 287 P.3d 584 (2012). However, this court may consider an issue if it
determines that it presents “matters of continuing and substantial public interest.”
Id. This determination is made by weighing the following factors: “‘[(1)] the public
or private nature of the question presented, [(2)] the desirability of an authoritative
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No. 80563-1-I/22
determination for the future guidance of public officers, and [(3)] the likelihood of
future recurrence of the question.’” Id. (alterations in original) (quoting In re Pers.
Restraint of Mattson, 166 Wn.2d 730, 736, 214 P.3d 141 (2009)). Claims involving
interpretation of the SRA have been found to be “matters of continuing and
substantial public interest.” See Hunley, 175 Wn.2d at 907; see also Mattson, 166
Wn.2d at 736. The key distinguishing fact between Simmons’ case and those
addressed in Moretti, however, is that one of Simmons’ strikes was committed
when he was a juvenile as opposed to those committed as “youthful offenders” by
the defendants in Moretti. That single distinguishing fact is significant enough to
weigh in favor of taking the issue up.
C. Categorical Bar Analysis
Simmons first argues that his sentence is categorically barred under article
I, section 14 of our state constitution. It has already been recognized that article I,
section 14 is “more [protective] than the federal constitution in the context of
sentencing both recidivists and juveniles,” so we need only look to our state
constitution. Moretti, 193 Wn.2d at 834. “The first step in the categorical bar
analysis is to determine whether there is a national consensus against” counting
adult convictions for crimes committed while one was a juvenile toward a life
sentence under a habitual offender law by looking at “‘objective indicia of society’s
standards, as expressed in legislative enactments and state practice.’” State v.
Bassett, 192 Wn.2d 67, 85, 428 P.3d 343 (2018) (internal citation omitted) (quoting
Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)).
The burden is on the party bringing the challenge to establish that a national
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No. 80563-1-I/23
consensus exists. Moretti, 193 Wn.2d at 821. The second step is for this court to
exercise its independent judgment. Bassett, 192 Wn.2d at 87. This is
accomplished by considering “‘the culpability of the offenders at issue in light of
their crimes and characteristics, along with the severity of the punishment in
question’” and “‘whether the challenged sentencing practice serves legitimate
penological goals.’” Id. (quoting Graham, 560 U.S. at 67).
As to the first step in the categorical bar analysis, whether a national
consensus exists regarding the specific sentencing practice, Simmons has not met
his burden. Simmons argues there is an “emerging national consensus that
juvenile offenses should not count as strikes.” However in arguing such, Simmons
focuses on juvenile convictions via juvenile adjudications as opposed to
convictions in adult court for crimes that were committed by a juvenile.7 There are
numerous ways in which a juvenile conviction in our state, and likely others, is
distinct from an adult conviction where the crime was committed as a juvenile. See
Juvenile Justice Act of 1977, ch.13.40 RCW.
As recently as 2019, in Moretti our Supreme Court expressly found there
was no national consensus against using a crime committed as a young adult to
enhance the sentence of an adult who continues to offend. 193 Wn.2d at 821.
Specifically, the opinion provided, “[a] review of the case law shows that many
state courts have held that when sentencing an adult recidivist, it is not cruel and
unusual to consider strike offenses committed when the offender was not just a
young adult, but a juvenile.” Id. at 822. Further, all of the secondary authority
7 In Washington, jurisdiction over a juvenile defendant may be transferred to superior
court if the juvenile court declines to retain it. See RCW 13.04.030; 13.40.110
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No. 80563-1-I/24
provided by Simmons in the case before us existed at the time of the Supreme
Court’s review in Moretti. Simmons has not met this burden to establish a national
consensus against the sentencing practice he challenges.
The second step is for this court to utilize its independent judgment by
considering “‘the culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punishment in question’” and
determine “‘whether the challenged sentencing practice serves legitimate
penological goals.’” Bassett, 192 Wn.2d at 87 (quoting Graham, 560 U.S. at 67).
Here, Simmons correctly identifies the severity of the sentence as the harshest
available in our state. See State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018).
As to Simmons’ culpability in light of the crimes he committed, double murder and
assault in the first degree all with firearm enhancements, we see no reason to
depart from the reasoning set out in Moretti. Moretti made clear that the focus in
POAA analysis is not on the prior strikes where the commission of those crimes
may have been impacted by incomplete brain development and other mitigating
factors of youth, but on the third most serious offense that triggered the applicability
of the POAA after the defendant continued to offend into adulthood. Id. at 825–
26.
Simmons falters by framing the punishment before this court as one for the
conviction he received when he was a juvenile and not based on the multiple most
serious offenses giving rise to this case. As such, Simmons has not shown
reduced culpability as to the present offenses which he committed at the age of
35. “Many of the cases exempting juveniles from harsh sentencing practices have
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No. 80563-1-I/25
relied on the strong prospects of juveniles for change.” Id. at 824. Here, those
cases do not apply to someone who continued to offend well into adulthood. See
Id. at 826. Further, Simmons’ convictions here are of a more severe nature than
those before the Moretti court. Id. at 813–18 (reviewing consolidated challenges
to POAA by multiple petitioners—Moretti was convicted of robbery in the first
degree and assault in the second degree; Nguyen was convicted of first and
second degree assault, both with a deadly weapon enhancement; Orr was
convicted of burglary in the first degree and assault in the second degree, both
with a deadly weapon enhancement).
The final question of “whether the penological goals of retribution,
deterrence, incapacitation, and rehabilitation are served by this sentence” is also
resolved in a manner similar to Moretti. Bassett, 192 Wn.2d at 88. “A sentence of
life without the possibility of parole will never serve the goal of rehabilitation.”
Moretti, 193 Wn.2d 826–27. “The main purposes of the POAA are ‘deterrence of
criminals who commit three most serious offenses and the segregation of those
criminals from the rest of society.’” Id. at 827 (internal citation omitted) (quoting
State v. Witherspoon, 180 Wn.2d 875, 888, 329 P.3d 888 (2014)).
Simmons’ argument regarding the penological goals misses the mark as
well because he focuses on youthfulness, as opposed to his decision-making in
adulthood that led to the most recent strike offenses. He claims that no deterrent
effect exists by including strikes which were committed as a juvenile because “[t]he
same characteristics that render juveniles less culpable also makes them less
likely to consider potential punishment.” However, Simmons did not commit these
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No. 80563-1-I/26
murders and assault as a youth, but instead as an adult, which renders this
particular argument inapplicable to the present case. Here, like in Moretti, “[w]e
do not have to guess whether [Simmons] will continue committing crimes into
adulthood because [he] already ha[s].” Id. at 829. The penological goals intended
by the legislature are served by including adult convictions for strike offenses
committed as a juvenile.
Simmons is unsuccessful in establishing that the Washington State
Constitution categorically bars his sentence of life without the possibility of parole
when predicated on an adult strike offense committed as a juvenile. Simmons’
argument as to an “emerging” national consensus is not sufficient to carry his
burden, particularly in light of our Supreme Court’s finding to the contrary in Moretti.
Neither does he prevail on his arguments as to his culpability and whether POAA
serves legitimate penological goals. We further acknowledge that Division II of this
court recently reinforced this particular analysis in Teas, which involved an
offender who had committed their predicate strike offense between the age of 17
and 19.8 10 Wn. App. 2d at 120, 131–35.
D. Proportionality Review
A second prong to Simmons’ constitutional challenge to his sentence is his
assertion that it violates article I, section 14 of our state constitution because it is
grossly disproportionate to the offenses for which he was convicted. Moretti, 193
Wn.2d at 830. “When conducting a proportionality analysis, we consider ‘(1) the
nature of the offense, (2) the legislative purpose behind the statute, (3) the
8 Teas’ precise age at the time of this offense is unclear from the opinion.
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No. 80563-1-I/27
punishment the defendant would have received in other jurisdictions, and (4) the
punishment meted out for other offenses in the same jurisdiction.’” Id. (internal
citation omitted) (quoting Witherspoon, 180 Wn.2d at 887). In Moretti, the
Supreme Court found the life sentences imposed on the three petitioners were not
grossly disproportionate. Id.
As to the first factor, the nature of the offense, Simmons was convicted of
three most serious offenses at trial, all of which are class A felonies- two counts of
murder in the first degree and one count of assault in the first degree, and the jury
found by special verdict that a deadly weapon enhancement applied to each count.
As a practical matter, the statutory maximum sentence for each murder charge
and the assault in the first degree is life in prison. Given Simmons’ offender score,
and the mandatory consecutive and enhancement time, the State calculates his
standard range as 1104–1351 months, or 92 to 112 years in prison. Further, the
convictions here are of a more serious nature than those reviewed and upheld by
the Supreme Court in Moretti. Id. at 830–31. The first factor does not weigh in
Simmons’ favor.
Second, as to the legislative purpose of the statute, “the purpose of the
POAA is to deter criminals who commit three most serious offenses and to
incapacitate them by segregating them from the rest of society.” Id. at 832. Just
like the petitioners in Moretti, Simmons has “shown that [he is] unwilling to stop
endangering the public.” Id. at 832–33. Therefore, this factor tends to indicate
that Simmons’ sentence is not grossly disproportionate.
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No. 80563-1-I/28
The third factor, the punishment that the offenders would have received in
other jurisdictions, does not weigh in Simmons’ favor, since multiple counts of
murder could result in a death sentence in numerous jurisdictions. See FLA. STAT.
ANN. § 782.04; TEX. PEN. CODE ANN. § 12.31; ARIZ. REV. STAT. ANN. § 13-1105.
Further, the Supreme Court has recognized that “[a] total of 34 states appear to
have some sort of habitual offender statute, many of which allow or require
imposing life sentences.” Moretti, 193 Wn.2d at 833. But even outside of the
framework of a habitual offender statute, the crimes for which Simmons was
convicted alone would result in a significant sentence in any jurisdiction.
The final factor is the punishment the offender would have received for a
different crime in the same jurisdiction. In Moretti, the court framed this by looking
to what the petitioners would have received if they had committed any other most
serious offense—which would be identical to that of life without the possibility of
parole. Id. at 833–34. The same is true here. Simmons’ proportionality challenge
fails.
E. Racial Disproportionality
Simmons’ final challenge to the constitutionality of his sentence is his claim
that the POAA results in disparate racial impact and violates article I, section 14 of
the Washington State Constitution. The record before us is lacking in both
sufficient data and argument for us to engage in a full review of this assignment of
error. Though Simmons argues his challenge mirrors that of Gregory, there the
court was presented with more robust and conclusive data which allowed the
Supreme Court to be “confident that the association between race and the death
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No. 80563-1-I/29
penalty is not attributed to random choice.” 192 Wn.2d at 22 (emphasis omitted).
We certainly acknowledge the systemic racism which permeates our criminal legal
system. We find compelling the defense assertion at oral argument that the
numerous discretionary decisions of prosecutors accumulate along one’s
trajectory through the system, including and especially the discretionary decision
of a prosecutor to decline a particular juvenile offender into superior court and
proceed against others in juvenile court. However, in order to fully engage in the
racial disproportionality analysis of the POAA that Simmons seeks, we simply must
ground that review in comprehensive data. We echo the conclusion reached by
another panel of this court where we clarified that this sort of challenge requires
thorough studies and specific data on the matter of disproportionality, and, in the
absence of such a record, we decline to reach this issue. See State v. Kennon,
No. 80813-3-I, slip op. at 25–28 (Wash. Ct. App. Aug. 16, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/808133.pdf. Simmons has failed to
demonstrate that his sentence of life in prison without the possibility of parole is
unconstitutional.
Affirmed.
WE CONCUR:
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