State Of Washington, Resp. v. Jeremiah L. Winchester, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, est Z2-~
) No. 68906-1-1 rn "
Respondent,
) DIVISION ONE Ci §l5
v.
) UNPUBLISHED OPINIBN f£
JEREMIAH LANCE WINCHESTER,
CX:
Appellant. ) FILED: September 15 2014
Appelwick, J. — Winchester appeals his judgment and sentence for attempted
possession of heroin, attempted robbery in the first degree, and unlawful possession of a
firearm. He argues that there were three significant defects at his trial. First, he alleges
that the trial court failed to adequately inquire into his request for new counsel. Second,
he contends that the court improperly admitted statements he involuntarily made to police
while recovering from a major injury. Third, he asserts that the prosecutor committed
misconduct by improperly shifting the burden of proof during closing argument.
Winchester challenges his sentence for attempted robbery, because the combined
term of confinement and community custody exceeded the statutory maximum. He also
asserts that his attempted possession conviction was unranked and thus not subject to a
firearm enhancement. Winchester raises four issues in his statement of additional
grounds. We affirm.
FACTS
On November 22, 2011, Jeremiah Winchester, his son, Jesse1 Winchester, Gavin
Glyzinski, and Johnny Arellano went to the home of Melinda Wilson and Rob Lara.
Winchester asked Lara if he knew someone who could get Winchester $1,800 worth of
We use some first names and nicknames for clarity. No disrespect is intended.
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heroin. Lara knew someone called "Chuko," whose real name was Salvador Rodriguez.
Winchester asked Lara to call Chuko. Lara did. Chuko said he could supply the heroin
and would be there in about an hour. Winchester said that he planned to take Chuko's
guns and money.
Chuko arrived with his brother, Oscar Rodriguez (nicknamed "Scrappy"), and a
man named Andrew Medina. Chuko carried a black backpack. Lara led Chuko, Scrappy,
and Medina upstairs, where the other men and Wilson were.
Things escalated quickly. One of the men in Chuko's group pulled out a gun.
Winchester picked up a gun that lay at his feet. He grabbed one of the men by the
shoulder and asked, "'Where are you going?'" The man turned around and shot
Winchester in the face.
More shots were fired. Chuko, Scrappy, and Medina fled. Lara found Jesse at the
bottom of the stairs, clutching his chest. Wilson called 911. Jesse ultimately died. Lara
also found a bag on the stairs, which was not there before Chuko arrived. The bag
contained heroin and methamphetamine.
Winchester was taken to the hospital. The bullet had entered his cheek and
shattered everything back to his neck. It remained lodged near his spine. Detective Lee
Beld visited Winchester in the hospital three times and spoke with him about the incident.
The two latter interviews were tape recorded.
Winchester was charged with attempted possession of a controlled substance
(heroin), count I; attempted possession of a controlled substance (methamphetamine),
count II; attempted first degree robbery, count III; and second degree unlawful possession
No. 68906-1-1/3
of a firearm, count IV.2 The jury found Winchester guilty of counts I, III, and IV, with a
special firearm verdict on counts I and III.
He appeals his judgment and sentence.
DISCUSSION
Winchester alleges three trial errors: improper denial of his request for new
counsel, improper admission of his statements to police, and prosecutorial misconduct.
He also challenges his sentence for attempted robbery and the firearm enhancement on
his sentence for attempted possession. In addition, he raises four issues in his statement
of additional grounds.
I. Request for New Counsel
Winchester argues that the trial court abused its discretion in denying his request
for new counsel, because it did not adequately inquire into his request. We review a trial
court's refusal to appoint new counsel for abuse of discretion. State v. Cross, 156 Wash. 2d
580, 607, 132 P.3d 80 (2006). The factors to consider are (1) the extent of the conflict,
(2) the adequacy of the trial court's inquiry, and (3) the timeliness of the motion. In re
Pers. Restraint of Stenson, 142 Wash. 2d 710, 724, 16 P.3d 1 (2001) (adopting the test set
out in United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)). An adequate
inquiry requires a full airing of the defendant's concerns and a meaningful inquiry by the
court. Cross, 156 Wash. 2d at 610. "Formal inquiry is not always essential where the
defendant otherwise states his reasons for dissatisfaction on the record." State v.
Schaller. 143 Wash. App. 258, 272, 177 P.3d 1139 (2007). A defendant must demonstrate
2 The State charged and tried Arellano as a codefendant. Glyzinski was initially
charged as a codefendant, but made a plea deal with the State. Lara and Wilson were
not charged at the time of trial.
No. 68906-1-1/4
good cause to warrant substitution of counsel, such as a conflict of interest or a complete
breakdown in attorney-client communications. State v. Stenson. 132 Wash. 2d 668, 734,
940P.2d 1239(1997).
In State v. Varqa. 151 Wash. 2d 179, 200-01, 86 P.3d 139 (2004), the court
adequately considered the merits of James Foy's request. Foy expressed general
dissatisfaction and distrust with his counsel's performance. ]d at 200. The court allowed
him to explain the reasons for his dissatisfaction and questioned counsel about the merits
of Foy's complaint. ]d at 200-01. Counsel responded that he had consulted Foy about
trial tactics and advised him of his legal rights. Id. at 201. This was a sufficiently searching
inquiry. Id.
Likewise, in Schaller, the court provided the defendant an adequate opportunity to
voice his concerns. 143 Wash. App. at 271. Initially, Schaller told the court that he had no
problems communicating with his attorneys, ]d at 262. However, he later made multiple
requests to substitute counsel. See id. at 263-66. He complained that he was not
provided certain discovery and accused his attorneys of lying to him. Id at 263. Schaller
then moved to fire his attorneys for disclosing case details to his ex-wife. ]d at 264. He
also accused counsel of asking him to commit perjury. ]d at 265. The trial court denied
his requests. ]d at 263-67. It concluded that, despite Schaller's animosity toward his
attorneys, he was able to communicate with them. ]d at 267. We affirmed. ]d at 272.
Schaller was able to address his concerns in front of multiple judges. Id at 271. The
judges questioned Schaller about whether his conflicts affected his case and also heard
from his counsel. Id. at 265, 271. These inquiries did not reveal a complete
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No. 68906-1-1/5
communication breakdown. \_± at 271. The trial court properly denied Schaller's
requests. ]dat272.
Here, Winchester expressed several concerns to the court during motions in limine
the morning before jury selection:
MR. WINCHESTER: Your Honor, I just have a couple of questions.
I don't know how this all works, but yeah, I haven't seen discovery. I was
introduced to my lawyer once, and then I talked to him with the investigator
once. They read me one page of discovery, but they both had to go.
I saw him again when he told me about a plea agreement with
someone, and that's the only times that I talked to him. I haven't seen any
of discovery. I haven't helped in my own defense at all.
I don't understand why I can't get a change of venue after what the
paper has done, after some of the things that happened in this country,
especially the sheriffs [sic] department surrounding my house SWAT
[Special Weapons and Tactics]-team style and telling all my witnesses that
I sent them there to get these statements. I mean, I didn't know that was
the deal.
The sheriffs actually lied to my witnesses after I asked them in my
house.
The court told Winchester that there had been no motion for change of venue, but
the jurors would be questioned during voir dire about their knowledge of the case. It also
noted that there were several days before trial during which Winchester could talk to
defense counsel about his concerns and review discovery. Shortly before Winchester's
request, counsel had asked that Winchester be able to review the discovery he sought.
Counsel also commented that he and Winchester had numerous phone calls in addition
to their meetings. The court concluded that Winchester and counsel could work out any
issues and bring a motion if necessary.
No. 68906-1-1/6
The next day, Winchester again raised concerns:
MR. WINCHESTER: Your Honor, I would like to say something at
this time ... so far, my lawyer I've seen him three times, and before the jury
selection happens, I don't feel confident I've had adequate counsel.
I waited this whole time. He told me the whole time it's going to come
out, it's going to come out. I found out today some numerous things that
have happened with the other witnesses and numerous things that
happened to my witnesses, investigators came up one time to talk to my
witnesses at my house.
At this point, I would like to ask for new counsel.
The court told Winchester that it was too late for new counsel, but that he still had time to
work with his current counsel before trial.
Winchester then indicated displeasure that "over half of the witnesses that Iwanted
were not questioned, and the half that was [sic] questioned were told that we're not asking
the questions that they needed to be asked, and were not even put on the witness list."
The court replied that, without a list of the witnesses Winchester wanted to call, it could
not address his complaint. Instead, the court said, Winchester could raise these concerns
to his attorney.
Winchester replied, "I believe the Whatcom County court is doing this, there is [sic]
numerous witnesses for the prosecution that are not being charged until they make a
successful statement as to what they are likely to say on the stand." The court replied
that only the prosecutor controls who is charged, but that Winchester could cross-
examine the witnesses that troubled him.
No. 68906-1-1/7
The prosecutor noted that, in his experience, defense counsel had been diligent in
interviewing major witnesses. The court responded:
THE COURT: I understand Mr. Winchester's claim not to be that. His
claim is that there are people who he would have liked to have called as
witnesses that haven't been investigated by Mr. Brodsky, and that's -
MR. WINCHESTER: I didn't-
THE COURT: - between Mr. Winchester and Mr. Brodsky at this
point.
We're going to go forward.
MR. WINCHESTER: I didn't say that these were people that Iwanted
to call. These are people that the prosecution is going to put up on the
stand-
THE COURT: Anybody that they're bringing, you already know
about.
MR. WINCHESTER: Yeah, there's witnesses that have charges
hanging over their head -
THE COURT: That, again -
MR. WINCHESTER: -- that -
THE COURT:-thatcan't~
MR. WINCHESTER: The charges are in limbo until they testify on
the stand -
THE COURT: The prosecutor --
MR. WINCHESTER: - whether or not the charges are going to
happen.
THE COURT: The prosecutor is the only one that can decide whether
something is charged. I have nothing to say about that. I can't do nothing
[sic] about that.
MR. WINCHESTER: Well, I know that.
THE COURT: So then -
No. 68906-1-1/8
MR. WINCHESTER: I just want that mentioned on the record.
The court proceeded with motions in limine. Winchester did not renew his request for
new counsel.
Winchester argues that this inquiry was insufficiently searching. But, the trial court
allowed Winchester to express his dissatisfactions and addressed them in turn.
Winchester alleged insufficient contact with his lawyer, not an inability to communicate.
The court heard his complaint, advised him to contact his lawyer, and assured him that
he still had time to remedy the problem. Likewise, when Winchester complained about
witnesses, the court directed him to contact counsel to resolve the issue. Winchester
then clarified that his complaint was about the prosecution's witness handling—a matter
unrelated to his own attorney and out of the court's control. As in Schaller. the trial court
heard Winchester's concerns about his representation and determined that they did not
warrant new counsel.
Viewed in context, Winchester did not allege a complete communication
breakdown or an irreconcilable conflict. In fact, most of Winchester's complaints did not
pertain to the attorney-client relationship. Instead, he expressed apprehension about the
venue of his trial, the sheriff's conduct, and the prosecutor's failure to charge certain
witnesses. The trial court heard all of Winchester's concerns and meaningfully inquired
into them. The court did not abuse its discretion in denying Winchester's request for new
counsel.
II. Statements to Police
Winchester asserts that the trial court improperly admitted the statements he made
to Detective Beld while in the hospital. This is so, he contends, because the statements
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No. 68906-1-1/9
were involuntary under the due process test and he was not read his Miranda rights.
Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
When reviewing the trial court's denial of a motion to suppress, we ask whether
substantial evidence supports the challenged findings of facts. State v. Lew, 156 Wash. 2d
709, 733, 132 P.3d 1076 (2006). Substantial evidence is evidence sufficient to persuade
a rational, fair-minded person of the finding's truth. State v. Hill. 123 Wash. 2d 641, 644,
870 P.2d 313 (1994). Unchallenged findings of fact are verities on appeal. Lew, 156
Wash. 2d at 733. We review the court's conclusions of law de novo. Id
Winchester challenges the court's finding that he "was told that he was not under
arrest." There is no evidence that Detective Beld explicitly informed Winchester that he
was not under arrest. Instead, Detective Beld told Winchester that the police were there
to protect him. This might imply that Winchester was not under arrest. But, an implication
is not the equivalent of an explicit statement. Substantial evidence does not support the
court's finding. We do not treat it as a verity on appeal. Winchester challenges no other
findings of fact. We accept the remaining findings as verities. Id
Detective Beld met with Winchester at the hospital three times: twice on November
24, 2011, and once on November 26, 2011. During the first meeting, Winchester was in
intensive care. It was two days after he was shot. Detective Beld visited him at
approximately noon. Winchester's tongue was swollen and his hearing was impaired
from his injuries. He had a breathing tube in his throat, which was removed when
Detective Beld arrived. Winchester was groggy and hard to understand. Winchester,
Detective Beld, and Winchester's family members discussed the incident and came to a
brief understanding of what happened. Detective Beld did not advise Winchester of his
No. 68906-1-1/10
constitutional rights. The conversation was not recorded. However, Detective Beld's
testimony does not suggest that Winchester made incriminating statements.
The second meeting was that night around 8:00 p.m. Detective Beld told
Winchester that deputies were outside the room for his protection. He did not advise
Winchester of his constitutional rights. The interview was recorded. Detective Beld stated
on tape that Winchester gave consent. Winchester acknowledged that he was being
recorded. He was clearer than he had been in the previous interview and answered the
detective's questions in more detail. He occasionally had trouble staying awake.
Detective Beld spent much of the interview trying to figure out who shot
Winchester. At one point, however, Detective Beld asked,
Q: Oh. You had a revolver, right?
A: Mm-hm.
Q: Jeremiah, you had a revolver, right?
A: (Unintelligible).
Q: You what?
A. (Unintelligible) him. I never fired a shot with it.
Detective Beld also told Winchester that officers found a bag of drugs, which contained
heroin, methamphetamine, and marijuana. He asked Winchester if the bag was his.
Winchester responded, "It's not mine."
On November 26, Detective Beld visited Winchester for a third time. Again,
Winchester acknowledged that the interview was recorded. Detective Beld did not advise
Winchester of his constitutional rights.
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No. 68906-1-1/11
Detective Beld began by showing Winchester a photo lineup to help identify the
third suspect. They discussed why Chuko came over that night. Detective Beld asked if
Winchester had Lara call Chuko, to which Winchester replied, "Yup." Later, Winchester
asked if he could be in trouble for having a gun. Detective Beld replied,
Q: I don't know. Can you get in trouble?
A: (Unintelligible).
Q: No, I know. And that's gonna be up to the prosecutor. But...
A: (Unintelligible)...
Q: I think -1 think right now -1 mean, the choice is yours, right? You don't
have to talk about. But havin' the truth out there - because I think the truth
is gonna come out regardless.
A: (Unintelligible).
Q: Could you get in trouble? You could. I mean, you need to know that. I'm
not gonna lie to ya. Will you? I don't know. . . I - you know, that's just not
something we're gonna deal with at the moment.
They then continued discussing the events of November 22 and the possible identity of
the third suspect. The interview lasted 27 minutes.
On April 2, 2012, the court held a CrR 3.5 hearing to address whether the interview
transcripts should be admitted. Winchester argued that his statements were not
voluntary, because he was coming out of a coma and deeply medicated. The court
observed that, according to Detective Beld's testimony, Winchester was able to answer
questions and became clearer-headed with each interview. The court further noted that
there was no evidence about Winchester's medication or its effects. It concluded that the
statements were admissible.
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No. 68906-1-1/12
A. Custodial Interrogation
Winchester argues that he was in custody when he spoke to Detective Beld and
should have been read his Miranda rights. We review Miranda issues de novo. State v.
Daniels, 160 Wash. 2d 256, 261, 156 P.3d 905 (2007), adhered to on recons., 165 wn.2d
627, 200 P.3d 711 (2009). Miranda warnings must be given whenever a suspect is
subject to custodial interrogation by a state agent. Miranda at 467-68. The objective test
for whether a suspect is in custody is if a reasonable person in his or her position would
feel that his or her freedom was curtailed to the degree associated with a formal arrest.
Berkemer v. McCartv. 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). To
constitute custody, the restriction on the suspect's freedom of movement must be police-
created. See, e.g.. State v. Butler, 165 Wash. App. 820, 827-28, 296 P.3d 315 (2013); State
v. Kelter. 71 Wash. 2d 52, 54, 426 P.2d 500 (1967).
In Kelter and Butler, the suspects were interviewed by police while in the hospital.
71 Wash. 2d at 54; 165 Wn. App. at 828. The Kelter court concluded that the suspect was
not in custody because, although he was confined to his hospital room, he was not
arrested or restrained by the police. 71 Wash. 2d at 54. Likewise, in Butler, the suspect was
restricted to his hospital room because of his injuries—not because of the police. 165
Wash. App. at 828. The Butler court observed that there were no police stationed outside
the room. Id. However, the presence of officers does not distinguish the present case
from Butler. Police were stationed outside of Winchester's room for protection, and he
was clearly told so. Winchester was not in custody during his interviews with Detective
Beld. And, when the hospital released him, the police did not detain him.
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No. 68906-1-1/13
B. Due Process Voluntariness
Winchester asserts that his statements to the police were inadmissible, because
they were not voluntarily made. An involuntary confession is inadmissible at trial. State
v. Rilev, 17 Wash. App. 732, 735, 565 P.2d 105 (1977). We review de novo the trial court's
conclusion that a statement was freely and voluntarily given. Butler, 165 Wash. App. at 827.
The test for the voluntariness is whether, under the totality of the circumstances, it
appears that a confession was coerced. State v. Broadawav, 133 Wash. 2d 118, 132, 942
P.2d 363 (1997). The central inquiry is whether the defendant's will was overborne. ]d
In making this determination, courts look to factors such as the defendant's mental state,
the police conduct, the duration of the interrogation, the defendant's prior experience with
police, and the defendant's mental abilities. State v. Adams. 138 Wash. App. 36, 46, 155
P.3d 989 (2007).
Winchester argues that, due to his clouded mental state, his will was overborne.
He relies heavily on Mincev v. Arizona. 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290
(1978). In that case, a detective persistently interrogated the suspect, who was in the
intensive care unit, encumbered by a breathing apparatus, and barely conscious. ]d at
399. The detective told Mincey that he was under arrest, read him his Miranda rights,
and began to question him. Id 396. Mincey was unable to talk because of the tube in
his mouth and had to answer questions by writing on a piece of paper. Id. The detective
interrogated him for almost four hours, despite Mincey's repeated requests for a lawyer.
]d Mincey also complained several times that he was confused or unable to think clearly
and that he could answer more accurately the next day. ]d at 400-01. The United States
Supreme Court found it was clear that Mincey did not want to answer the detective's
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No. 68906-1-1/14
questions, but "weakened by pain and shock, isolated from family, friends, and legal
counsel, and barely conscious, [Mincey's] will was simply overborne." |d at 401-402.
However, a suspect's will is not always overborne simply by the fact that he is
questioned while in pain or under the effect of medication. See, e.g.. United States v.
George. 987 F.2d 1428, 1430 (9th Cir. 1993); State v. Peerson. 62 Wash. App. 755, 774,
816 P.2d 43 (1991). In George, the suspect was taken to the hospital after passing out
due to several heroin-filled balloons in his alimentary canal. 987 F.2d at 1430. The Ninth
Circuit found that George's subsequent statements were voluntary, jd at 1431. An officer
came to the hospital, arrested George, and read him his Miranda rights. ]d at 1430.
When the officer first arrived, George was unconscious and did not stabilize for about four
hours. Id But, at the time of his interrogation, George was coherent, gave responsive
answers to the officer's questions, and accurately remembered his motel and room
number. ]d at 1431. The court also observed that the officer asked simple questions,
kept the interview short, and received no indication that George wanted a lawyer. ]d The
case was thus distinguishable from Mincey. Id
The present case is likewise distinguishable. Winchester agreed to speak with
Detective Beld and did not request a lawyer. Per the transcripts, many of Winchester's
responses were "unintelligible." However, the answers to follow up questions suggest
that this was due to his swollen tongue, rather than fatigue or confusion. Winchester
notes that he sometimes drifted in and out of consciousness. But, Detective Beld
regained Winchester's attention before resuming questioning. He asked short, direct
questions and offered to help Winchester communicate by repeating or paraphrasing
what he said. And, when Winchester appeared to have trouble answering questions,
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No. 68906-1-1/15
Detective Beld offered to stop the interview. Winchester became increasingly clear and
responsive with each interview. The interviews were short—the third lasted only 27
minutes.3 There is no evidence that his medication or his injury affected his decision
making abilities. Neither Winchester's condition nor Detective Beld's behavior make this
case like Mincey.
Winchester further argues that his will was overborne by Detective Beld's use of
subtle, friendly coercion to take advantage of his grief and injuries. Winchester relies on
a Michigan case, People v. Hooks. 112 Mich. App. 477, 316 N.W.2d 245 (1982). In
Hooks, the officer took an incriminating statement from the defendant while he was on a
life support machine. Id at 479. The case does not otherwise describe the officer's
method of obtaining the statement. See id But, it states that "in many ways the subtle,
friendly coercion that can be exerted on one who is helpless and seriously wounded in a
hospital room is more effective than offers of leniency, in rendering one's statements
involuntary." Id at 482.
It is well-settled, however, that police may elicit a confession through psychological
ploys, such as playing on a suspect's sympathies, as long as the confession is a product
of the suspect's own balancing of competing considerations. See, e.g., State v. Unga,
165 Wash. 2d 95, 102, 196 P.3d 645 (2008); State v. Rupe. 101 Wash. 2d 664, 679, 683 P.2d
571 (1984); State v. Rafav. 168 Wash. App. 734, 758, 285 P.3d 83 (2012), review denied.
176Wn.2d 1023, 299 P.3d 1171 (2013). For example, in Unga. the appellant argued that
a detective induced his confession with a promise not to prosecute. 165 Wash. 2d at 107.
3 It is unclear how long the second interview lasted. But, the transcript of the
second interview is shorter than the third.
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No. 68906-1-1/16
The court noted that a "promise does not per se render a confession involuntary; it is one
factor among the totality of the circumstances." Id at 108. Unga received his Miranda
rights, understood and waived those rights, and was old enough to make a voluntary and
intelligent statement. Id at 108. There was no evidence that he lacked capacity. Id
Unga's questioning lasted only 30 minutes, he was in a room with the door left open, and
there was no evidence that the detective used a threatening tone or intimidated him. Id
at 109. And, there was no evidence that Unga was denied food, sleep, or bathroom
facilities. \± Under the totality of the circumstances, Unga's confession was not coerced.
]d at 111.
Winchester was not arrested or read his Miranda rights. In fact, Detective Beld
generally treated Winchester as a victim, not a suspect. Detective Beld told Winchester,
"I'm working really hard to get some justice here," and asked him, "You wanna help me
every way you can, right?" In this way, Detective Beld communicated that his motive for
interviewing Winchester was to find out what happened and solve the case. During the
second interview, however, Detective Beld asked Winchester if he had a gun. Whatever
other investigative value this question served, the answer had the potential to and did
incriminate Winchester. Winchester maintains that this was Detective Beld's motive all
along: to subtly seek admissions from Winchester that could later be used to convict him.
Assuming—without deciding—this was Detective Beld's strategy, we do not agree
that his method of questioning overbore Winchester's will. Detective Beld did not make
any promises to Winchester or lie to him about the effect of his statements. Compare
Unga, 165 Wash. 2d at 107. Some of Detective Beld's questions elicited incriminating
responses. But, these questions were direct and clear. Winchester's responses showed
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No. 68906-1-1/17
he understood the questions. As discussed above, there is no evidence that Winchester's
physical or emotional state rendered him unable to make decisions. Detective Beld did
not suggest that the answer to these questions were any more or less important to
catching Jesse's killer than any other questions. He did not juxtapose incriminating
questions with appeals to Winchester's emotions. Winchester had an extensive criminal
history and was therefore familiar with police interactions. And, Winchester was 40 years
old, well old enough to make a voluntary and intelligent statement. See id at 109 (16
year old defendant able to make voluntary and intelligent statement). Under the totality
of the circumstances, it was not an abuse of discretion for the trial court to conclude that
Winchester's will was not overborne.
The trial court properly admitted Winchester's statements.
C. Ineffective Assistance of Counsel
Winchester argues that, should we find his statements properly admitted, his
counsel was ineffective for not developing a full record at the CrR 3.5 hearing. He
maintains that counsel should have presented evidence about the effect of his
medications, as well as about additional circumstances demonstrating coercion.
To demonstrate ineffective assistance, an appellant must show that the attorney's
performance was deficient and that the deficiency was prejudicial. State v. Thomas, 109
Wash. 2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance is that which falls below
an objective standard of reasonableness. In re Pet, of Moore. 167 Wash. 2d 113, 122, 216
P.3d 1015 (2009). Prejudice occurs if, but for the deficient performance, there is a
reasonable probability that the outcome of the proceedings would have been different.
State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). A reviewing court
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No. 68906-1-1/18
need not address both prongs ifan appellant fails to make a sufficient showing under one
prong. See Thomas. 109 Wash. 2d at 226. If it is easier to dispose of an ineffective
assistance claim on the ground of insufficient prejudice, the court should follow that
course. Strickland v. Washington. 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
Winchester focuses his challenge on counsel's failure to introduce additional
evidence at the CrR 3.5 hearing. The trial court noted that Winchester offered no
evidence that medication impaired his cognitive abilities. Winchester urges that, had this
evidence been before the court at that time, his statements would have been excluded.
Winchester makes no showing that such evidence was in fact available. Instead, he asks
us to presume that it was. Winchester cannot establish deficient performance based on
a presumption.
Moreover, Winchester does not demonstrate prejudice. Winchester's first
incriminating statement was that he had a gun. But, two other witnesses—Glyzinski and
Wilson—testified to this fact at trial. Winchester argues that a defendant's confession has
significant impact on the jury. He also questions Glyzinski's and Wilson's credibility. But,
these arguments go to the weight of the evidence, a question for the finder of fact. See
State v. Camarillo. 115 Wash. 2d 60, 71, 794 P.2d 850 (1990). The jury heard the interview
excerpt where Winchester admits he had a gun. This allowed the jury to consider any
coercive influences on his statement. The jury also witnessed impeachment of Glyzinski's
and Wilson's credibility. It was therefore able to assess the relative weight of the
evidence. We do not review that determination on appeal. Id
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No. 68906-1-1/19
Winchester's other incriminating statement was that he asked Lara to call Chuko.
But, Lara also testified to this fact at trial. And, the jury heard a recording of the following
exchange:
Q: When you - when you had [Lara] call [Chuko], did you have [Lara]
call [Chuko] specifically? Or did [Lara] just call [Chuko] and you said,
"Oh, I r-1 know this guy," was it?
A: No, [Lara] called [Chuko] specifically.
Q: You had him call [Chuko] specifically? And that's because this
guy's been rippin' off people?
A: (Unintelligible) take his guns away from him.
Q: You wanted - he was what?
A: Taking his guns away from him.
The jury was therefore able to consider the circumstances under which Winchester made
these statements and weigh them in light of Lara's corroborating testimony. Winchester
does not demonstrate ineffective assistance of counsel.
III. Prosecutorial Misconduct
Winchester contends that the prosecutor committed misconduct in his closing
argument by impermissibly shifting the burden of proof. Prosecutorial misconduct is
grounds for reversal where the conduct is both improper and prejudicial. State v. Monday.
171 Wash. 2d 667, 675, 257 P.3d 551 (2011). It is flagrant misconduct for a prosecutor to
shift the burden of proof to a defendant. State v. Miles. 139 Wash. App. 879, 890, 162 P.3d
1169 (2007). If the defendant objected to the misconduct at trial, we determine whether
the misconduct resulted in prejudice that had a substantial likelihood of affecting the
verdict. State v. Sakellis. 164 Wash. App. 170, 184, 269 P.3d 1029 (2011). Alternatively, if
19
No. 68906-1-1/20
the defendant failed to object at trial, we ask whether the misconduct was so flagrant and
ill-intentioned that any resulting prejudice could not be cured by a jury instruction. ]d
During closing argument, the prosecutor discussed Detective Beld's testimony that
Glyzinski and Winchester admitted that Winchester had a gun. In response, defense
counsel questioned the testimony's reliability:
Detective Beld was not alone in that room with Gavin Glyzinski.
Sergeant Bos[s] was in there, too. He testified to that. Where's Sergeant
Bos[s]? We didn't hear from him, did we? The State had somebody who
could support Detective Beld's version of events who is sitting in the room,
another law enforcement officer. Why didn't they call him? I submit it's
because he wouldn't have supported that version of events, and if Detective
Beld is willing to lie about what happened in that room with Gavin Glyzinski,
we have to question what else he's willing to lie about in this case.
Defense counsel also addressed Winchester's interview:
But [Detective Beld] wasn't alone. Again, Sergeant Bos[s] was with
him. Where is Sergeant Bosfs's] testimony to say, to agree, yes, Jeremiah
did nod when I asked him that; yes that's what he said, I heard it too? He's
a law enforcement officer. Why wasn't he here to testify unless, unless he
just didn't agree with what Detective Beld had said or done? So we're left
to believe what Detective Beld tells us, because you can't transcribe a nod.
So all we have is Detective Beld saying, "You're nodding."
In rebuttal, the prosecutor stated that,
Mr. Brodsky said the State didn't call Sergeant Bos[s]. Now, there
are a lot of police officers that were involved in this search and this entire
investigation, many, many officers.
. . . We don't call all of those people, so we can get through trials in
a reasonable time. I call witnesses by giving them subpoenas. The
Defense can do the same thing. Mr. Brodsky if he wanted Sergeant Bos[s]
to be here ~
MR. BRODSKY: Objection, Your Honor. This is burden shifting. We
have no burden to call witnesses or produce evidence.
THE COURT: Th[at]'s true. The jury is reminded that counsel's
statements are not evidence in this case.
20
No. 68906-1-1/21
MR. McEACHRAN: Thank you, Your Honor.
As far as witnesses, everyone can call them, and it isn't just the State
that controls here.
MR. BROSKY: Your Honor, he's engaging in the same burden
shifting that the State -
THE COURT: I think that statement is acceptable. We won't go any
further.
Winchester argues that the prosecutor's statements improperly shifted the burden
of proof. The State may not suggest that the defense has the burden to prove its case.
State v. Emery. 174 Wash. 2d 741, 760, 278 P.3d 653 (2012). But, not every comment on
a defendant's failure to produce witnesses impermissibly shifts the burden of proof. State
v. Blair. 117 Wash. 2d 479, 491, 816 P.2d 718 (1991).
For example, under the missing witness doctrine, the jury may draw an unfavorable
inference when a party fails to call a witness who is within that party's control to provide
testimony that would properly be part of the case and in the interest of that party. ]d at
485-86. The unfavorable inference arises "'only where, under all the circumstances of
the case, such unexplained failure to call the witnesses creates a suspicion that there has
been a willful attempt to withhold competent testimony.'" ]d at 488 (quoting State v.
Baker, 56 Wash. 2d 846, 859-60, 355 P.2d 806 (1960)). The absent witness must also be
particularly under the opposing party's control, rather than being equally available to both
parties. Id at 491; see also State v. Montgomery. 163 Wash. 2d 577, 598-99, 183 P.3d 267
(2008).
Here, the prosecutor responded to defense counsel's improper attempt to invoke
the missing witness doctrine. Defense counsel asked the jury to draw an unfavorable
inference from the State's failure to call Sergeant Boss. But, Sergeant Boss was not
21
No. 68906-1-1/22
particularly under the State's control—either party can call a police officer to the stand.
The prosecutor made this point when he said, "As far as witnesses, everyone can call
them, and it isn't just the State that controls here." This did not suggest that Winchester
bore a burden to present evidence of his innocence.
Moreover, the jury was repeatedly instructed about the proper burden of proof.
When defense counsel said, "We have no burden to call witnesses or produce evidence,"
the court replied, "Th[at]'s true." After closings concluded, the trial court reminded the
jury, "the instructions here are your guide, and Instruction No. 3 does set out clearly what
the burden of proof is in this case, and who has that burden of proof." Instruction 3
explained that the "State is the plaintiff and has the burden of proving each element of
each crime beyond a reasonable doubt. The defendant has no burden of proving that a
reasonable doubt exists as to these elements." During closing, the prosecutor reviewed
instruction 3 with the jury. Defense counsel also addressed instruction 3:
We got [sic] this instruction that talks about the burden of proof. It's
clear that the State has the burden, the burden as to every, every element
of the case, the State, and Mr. Winchester has no burden.
I often tell jurors what I tell my clients sometimes, you know, we could
play gin the whole time. We don't have to call witnesses. We don't have to
ask questions. If the State doesn't prove its case, then you're not guilty.
We have no burden of proof in this case. It's part of the instructions.
At the end of the prosecutor's rebuttal, after the challenged statements, the prosecutor
clarified that "the standard that the State has is prove beyond a reasonable doubt. We're
willing to assume that." It was clear to the jury that the State bore the burden of proof.
The prosecutor did not commit misconduct.4
4 Winchester alleges cumulative error with respect to these first three challenges.
We found no error.
22
No. 68906-1-1/23
IV. Sentencing Errors
Winchester alleges three sentencing errors, two of which relate to community
custody and one that relates to the firearm enhancement on his attempted possession
conviction.
A. Statutory Maximum
Winchester asserts that his sentence for attempted robbery exceeded the statutory
maximum. The court sentenced Winchester to 120 months confinement, plus 18 months
of community custody. The statutory maximum for attempted robbery in the first degree
is 120 months. RCW 9A.28.020(3)(b); RCW 9A.56.200(2); RCW 9A.20.021(1)(b). If an
offender's combined term of confinement and term of community custody exceed the
statutory maximum for the crime, the trial court shall reduce the term of community
custody. RCW 9.94A.701(9); State v. Boyd, 174 Wash. 2d 470, 473, 275 P.3d 321 (2012).
The State concedes this error.
When the trial court enters an invalid sentence, the remedy is to remand for
resentencing unless the record makes clear that the court would have imposed the same
term of confinement anyway. See State v. Parker, 132 Wash. 2d 182, 192-93, 937 P.2d 575
(1997). On count III, Winchester faced a standard range of 96.75 to 120 months of
confinement, plus a 36 month firearm enhancement. The trial court initially imposed 156
months for the attempted robbery: 120 months of standard confinement, plus the 36
month firearm enhancement. The prosecutor alerted the court that the confinement time
must be reduced to accommodate the firearm enhancement within the statutory
maximum. The court then amended the confinement time to 120 months: 84 months of
standard confinement, plus the 36 month enhancement. The court also found that
23
No. 68906-1-1/24
Winchester's high offender score warranted an exceptional sentence upward. It is clear
that the trial court intended to impose the maximum amount of confinement possible.
We remand for the trial court to strike Winchester's term of community custody.5
B. Firearm Enhancement
Winchester contends that the trial court lacked the authority to impose a firearm
enhancement on his conviction for attempted possession of a controlled substance.
Anticipatory offenses charged under RCW 69.50.407 generally do not have a seriousness
level and are therefore unranked. State v. Mendoza, 63 Wash. App. 373, 378, 819 P.2d
387(1991). Firearm enhancements do not apply to unranked felonies. State v. Soto.
177 Wash. App. 706, 716, 309 P.3d 596 (2013). Thus, Winchester concludes, his conviction
was not subject to a firearm enhancement.
However, any felony offense under chapter 69.50 RCW with a deadly weapon
special verdict has a seriousness level of III. RCW 9.94A.518. Winchester was convicted
of a felony in violation of RCW 69.50.407 and RCW 69.50.4013. The jury found that
Winchester committed this offense while armed with a firearm. The jury's finding
constituted a deadly weapon special verdict. State v. McGrew, 156 Wash. App. 546, 559,
234 P.3d 268 (2010). Winchester's conviction for attempted possession of a controlled
substance while armed with a firearm is therefore ranked.
The trial court properly imposed a firearm enhancement on Winchester's
attempted possession conviction.
5 Winchester challenges his community custody condition that prohibits him from
consuming or possessing "any alcohol or drugs." Because we remand to strike the
community custody term, we need not consider this assignment of error.
24
No. 68906-1-1/25
V. Statement of Additional Grounds
Winchester also raises four issues in his statement of additional grounds. He
makes three evidentiary challenges and alleges that his convictions violate double
jeopardy.
A. Hearsay
Winchester maintains that the court prematurely sustained the State's hearsay
objection without hearing the challenged evidence. This seems to imply that the court's
ruling precluded proper evidence that it had not yet heard. It did not. The court's ruling
excluded the improper evidence that was presented and precluded any similarly improper
testimony that might have followed. Winchester was free to present subsequent
admissible evidence.
In the alternative, Winchester argues that the evidence was admissible under one
or more hearsay exceptions. Winchester raises these exceptions for the first time on
appeal. We will not find error based on an evidentiary grounds not raised at trial. State
v. Powell. 166 Wash. 2d 73, 82-83, 206 P.3d 321 (2009) (a party may only assign error in
the appellate court on the specific ground ofthe evidentiary objection made at trial.).
B. False Evidence
Winchester asserts that the State presented false evidence through Detective
Beld's testimony. First, Winchester argues that Detective Beld fabricated a motive for
Winchester to commit robbery by testifying that Winchester said Chuko owed money to
him and his friends. But, Winchester confirmed this detail in his interview on November
24. Second, Winchester asserts that Detective Beld fabricated a belief there was
something of value to take from the Chuko, enabling Winchester to form the intent to rob
25
No. 68906-1-1/26
them. But, Winchester knew that Chuko agreed to bring $1,800 worth of heroin and thus
possessed something of value. Third, Winchester argues that Detective Beld falsely
testified about the Chucko's and Scrappy's state of mind that they were going to be
robbed. But, robbery does not require the victim to have a particular mental state. See
RCW 9A.56.190. Finally, Winchester contends that Detective Beld falsely testified that
Winchester approached Chuko and Scrappy in the hallway, suggesting that Winchester
took a substantial step toward attempted robbery. But, other testimony corroborates
Detective Beld's testimony. Winchester's challenges merit no further review.
C. Sufficient Evidence
Winchester alleges that there was insufficient evidence to convict him of attempted
possession of a controlled substance or attempted robbery. A person is guilty of attempt
if, with intent to commit a specific crime, he does any act which is a substantial step toward
the commission of the crime. RCW 9A.28.020(1 ).6 There is sufficient evidence to support
a conviction if, when viewed in the light most favorable to the State, the evidence permits
a rational trier of fact to find the essential elements of the crime beyond a reasonable
doubt. State v. Tilton. 149 Wash. 2d 775, 786, 72 P.3d 735 (2003).
Winchester argues that the State did not demonstrate a substantial step towards
possession of a controlled substance. A substantial step is one that strongly corroborates
the actor's criminal purpose. State v. Johnson. 173Wn.2d895, 899,270 P.3d 591 (2012).
Winchester offered a specific amount of money he was willing to pay for heroin. He asked
6 In count I and II, Winchester was charged under the Controlled Substances Act,
chap 69.50 RCW, not the general attempt statute, RCW 9A.28.020. But, the general
attempt statute is applicable to a controlled substance attempt, because the two are not
inconsistent. State v. Pineda-Pineda. 154 Wash. App. 653, 668, 226 P.3d 164 (2010).
26
No. 68906-1-1/27
Lara to contact Chuko. Chuko arrived at the house with drugs a short time later. All the
essential elements of the transaction had been arranged. There was sufficient evidence
that Winchester took a substantial step towards attempted possession of heroin.
Winchester further argues that the State failed to show that he had the intent to
commit attempted robbery. Glyzinski testified that Winchester said, "We're going to shake
them down for their money," and "we'll just take their guns." Winchester argues that
Glyzinski's testimony was the only evidence of Winchester's intent and that other
testimony directly contradicted Glyzinski's statements. Winchester asks us to assess
witness credibility. It is the fact finder's job to measure witness credibility. Camarillo. 115
Wash. 2d at 71. We do not review that determination on appeal. ]d
D. Double Jeopardy
Winchester argues that the State placed him in double jeopardy when it charged
him with both attempted possession of heroin and attempted first degree robbery. We
use the Blockburqer7 "same elements" test to determine whether there is a violation of
the double jeopardy clause in Constitution article 1, section 9. State v. Gocken. 127
Wn.2d 95,107, 896 P.2d 1267 (1995). This test examines whether each offense contains
an element not contained in the other. Id. at 101.
The statutory provisions under which Winchester was charged do not have the
same elements. Attempted possession of heroin requiresthat the State prove Winchester
attempted to obtain a controlled substance. RCW 69.50.4013(1). One of the elements
of attempted robbery is that Winchester attempted to obtain the personal property of
7 Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
27
No. 68906-1-1/28
another. RCW 9A.56.190; RCW 9A.28.020. Neither of these requirements is present in
the other statute. Winchester was not subjected to double jeopardy.
We remand for the trial court to strike Winchester's term of community custody.
We otherwise affirm.
WE CONCUR:
mM>*-t-
28