State of Washington v. Rebecca Anne Clemmer

FILED
FEBRUARY 4, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37133-6-III
Respondent, )
)
v. )
)
REBECCA ANNE CLEMMER, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J.P.T.1 — Rebecca Clemmer appeals from her Stevens County
conviction for vehicular homicide, raising challenges concerning her trial and the
judgment and sentence. We affirm the conviction and remand to strike two provisions of
the judgment.
FACTS
Several witnesses observed Ms. Clemmer driving erratically for nearly 20 miles on
northbound Highway 395 in northern Spokane and southern Stevens Counties. They
described a vehicle swerving from shoulder to shoulder over a considerable distance and
driving for extended periods of time in the oncoming lane, sending southbound vehicles
1
Judge Kevin M. Korsmo was a member of the Court of Appeals at the time
argument was held on this matter. He is now serving as a judge pro tempore of the court
pursuant to RCW 2.06.150.
No. 37133-6-III
State v. Clemmer
off the roadway to avoid a collision. Ms. Clemmer testified that she was returning to her
Colville home after visiting her mother’s residence in Spokane.
Ms. Clemmer then parked in the middle of the highway near Clayton and began
consuming food purchased from a Zip’s restaurant. Passing motorists unsuccessfully
attempted to attract her attention, but she ignored them. She then accelerated in excess of
60 miles per hour, and swerved into the oncoming lane before striking a southbound
vehicle, killing the driver Erik Bruhjell. Mr. Bruhjell was on the shoulder attempting to
get off the roadway when she struck him. The first trooper on the scene, Don Field,
spoke to Ms. Clemmer while she was being treated in her car by medical personnel
before being extracted from the car. She told him she was in a hurry to get home and
pick up her children from daycare. When asked why she had stopped in the middle of the
road, she claimed to have parked on the side of the roadway.
Ms. Clemmer was transported by helicopter to a hospital in Spokane. Trooper
Ryan Senger arrived at the hospital after Clemmer. He advised her of her Miranda2
warnings. When the trooper asked if she wanted speak with him, “she asked about
speaking to an attorney and said that she should speak with one first.” Report of
Proceedings (RP) at 35-36. The trooper deemed the statement ambiguous and unclear,
but did not question her further due to her incoherence.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
No. 37133-6-III
State v. Clemmer
Detective Jordan Rippee later visited Ms. Clemmer at the hospital, advised her of
her rights, and obtained her agreement to speak with him. She related the same story that
she later told the jury—she was going to visit her mother in Spokane, she took half of her
regular daily hydrocodone dosage, she stopped at Jack-in-the-Box for food, and she
started driving back to Colville. She did not remember the collision.
The Stevens County Prosecuting Attorney filed a single charge of vehicular
homicide. A CrR 3.5 hearing was conducted to qualify the statements made to the three
Washington State Patrol officers. Defense counsel sought to exclude only one statement:
Judge, my only issue is with respect to the state’s first witness, Trooper
Field, and the incriminating statement in response to his question, “I was in
a hurry—to get my kids from day care.”
RP at 48. The court concluded that the statements made to Trooper Field were not the
product of custodial interrogation and admitted them. Although not challenged, the court
also determined that Ms. Clemmer’s statement to Trooper Senger was ambiguous,
resulting in the conclusion that Ms. Clemmer voluntarily waived her rights in order to
speak with Detective Rippee.
A lengthy jury trial ensued, with the State calling 21 witnesses; Ms. Clemmer was
the sole defense witness.3 Without objection, both Trooper Senger and the phlebotomist
3
The defense intended to recall Detective Rippee as a defense witness, but instead
took advantage of a period between State’s witnesses to ask further questions of the
trooper. RP at 488-493.
3
No. 37133-6-III
State v. Clemmer
testified to the existence of needle marks on Ms. Clemmer’s arm. Senger also testified
that Ms. Clemmer was impaired. On cross-examination, the trooper admitted he did not
know what drugs had been administered to Clemmer by medical staff and did not
acknowledge the injuries the woman had suffered in the wreck.
Laboratory reports showed that Ms. Clemmer had 0.077 mg per liter of
hydrocodone in her system; therapeutic levels were between .01 mg to .05 mg.
Urinalysis testing also showed the presence of benzodiazepines, opiates, oxycodone, and
cannabis in her system.
Ms. Clemmer testified consistent with the statement she gave to Detective Rippee.
She was taking hydrocodone for pancreatic pain. She remembered stopping at Zip’s and
eating while driving, but did not remember anything else up until her arrival at the
hospital. Ms. Clemmer testified about previous hospitalizations for high blood pressure
and diabetic/blood sugar issues that had made her sleepy. She admitted on cross-
examination that she had told others that she fell asleep before the accident.
The prosecutor argued the case on the theory that Ms. Clemmer drove recklessly
and was under the influence of drugs. Defense counsel took issue with the latter theory,
arguing that Trooper Senger had rushed to characterize Clemmer as an illegal drug user
due to the needle marks and lacked supporting evidence for his theory. As to the reckless
driving, counsel argued that the driving was so extreme and unusual that it reflected
health problems rather than drug impairment.
4
No. 37133-6-III
State v. Clemmer
The jury convicted Ms. Clemmer as charged. After the trial court imposed a top
end standard range sentence, Ms. Clemmer timely appealed to this court. A panel
considered the appeal without conducting argument.
ANALYSIS
In order, we initially consider Ms. Clemmer’s allegations that the trial court erred
in admitting her statements to Detective Rippee, that she received ineffective assistance
of trial counsel, and that the prosecutor erred in closing argument. We then jointly
address her challenges to the conditions of the judgment and sentence.4
Statements to Detective
Ms. Clemmer first challenges the trial court’s determination that the statements
she made at the hospital to Detective Rippee should not have been admitted at trial in
light of her assertion of her right to counsel to Trooper Senger. She waived and/or
invited this alleged error, which also was harmless.
RAP 2.5(a) acknowledges the basic principle of appellate review—appellate
courts will not review issues not raised in the trial courts. Matters of manifest
constitutional error may be raised for the first time on appeal if the record is adequate.
RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Here,
the prosecutor properly qualified the statements she desired to use at trial in accordance
4
Due to the absence of multiple errors, we do not consider her claim of
cumulative error.
5
No. 37133-6-III
State v. Clemmer
with the dictates of CrR 3.5. State v. McFarland, 15 Wn. App. 220, 222, 548 P.2d 569(1976); State v. Harris, 14 Wn. App. 414, 420-422, 542 P.2d 122 (1975). As part of that
process, the prosecutor put forth evidence that (1) Ms. Clemmer was not in custody when
questioned by Trooper Field, and (2) that she made an equivocal request for counsel to
Trooper Senger, which allowed Detective Rippee later to clarify and obtain a valid
waiver of right.
On appeal, Ms. Clemmer does not challenge the statements to Trooper Field, but
does now assert that the court erred in finding that her assertion of the right to counsel
was equivocal. She had the opportunity to present argument to the trial court on the topic
but expressly limited her concerns to one statement made to Trooper Field. She has
waived the opportunity to now complain about the statement to Detective Rippee. State
v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (failure to object to evidence and
seek to suppress it waived claim of error on appeal).
Alternatively, she also has invited the error about which she now complains. One
cannot cause an error and then attempt to benefit from the error on appeal. This is known
as the doctrine of invited error. E.g., State v. Studd, 137 Wn.2d 533, 545-549, 973 P.2d
1049 (1999). Ms. Clemmer refused to challenge the evidence below and did not object to
admission of the testimony at trial. If there was any error below, she invited it.
Finally, any error in the admission of the detective’s testimony concerning her
statements to him was harmless. The recitation of Ms. Clemmer’s travels in Spokane was
6
No. 37133-6-III
State v. Clemmer
largely the same as her own trial testimony. The admission of the same evidence by the
State did not prejudice her.
The challenge to the testimony of Detective Rippee is without merit.
Effective Assistance of Counsel
Ms. Clemmer next argues that her counsel failed to perform effectively by failing
to object to Trooper Senger’s opinion that she was impaired and to the testimony of the
trooper and the phlebotomist concerning the needle marks in her arms. This was a clear
case of trial strategy.
Long-settled standards govern review of ineffective assistance claims. An
attorney must perform to the standards of the profession; the failure to live up to those
standards will require a new trial when the client has been prejudiced by counsel’s
failure. McFarland, 127 Wn.2d at 334-335. In evaluating ineffectiveness claims, courts
must be highly deferential to counsel’s decisions. A strategic or tactical decision is not a
basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Thus, to prevail on a claim of ineffective assistance, the
defendant must show both that her counsel erred and that the error was so significant, in
light of the entire trial record, that it deprived her of a fair trial. Id. at 690-692. When a
claim can be disposed of on one ground, a reviewing court need not consider both
Strickland prongs. Id. at 697.
7
No. 37133-6-III
State v. Clemmer
The decision to object to evidence is a matter of trial tactics. E.g., State v.
Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989) (object). This court has noted that
a reviewing court presumes that a “failure to object was the product of legitimate trial
strategy or tactics, and the onus is on the defendant to rebut this presumption.” State v.
Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007) (citing cases).
Here, counsel did not object when Trooper Senger, qualified as an expert,
expressed his opinion that Ms. Clemmer was impaired by drugs. Ms. Clemmer does not
point to any defect in the trooper’s qualifications or otherwise explain that he was not
qualified to express an opinion. Instead, she claims that the expression of that opinion
was improper under State v. Quaale, 182 Wn.2d 191, 340 P.3d 213 (2014), and that
counsel could not have been engaged in trial strategy. 5 However, the record
demonstrates the contrary.
Counsel did not object to testimony from Senger and the phlebotomist that needle
marks were present on Ms. Clemmer’s arm, nor did he challenge Senger’s opinion that
Ms. Clemmer was driving while impaired. Counsel did, however, effectively cross-
examine Senger about the basis for his opinion and demonstrated that the trooper was
unfamiliar with Clemmer’s medical history or treatment resulting from the accident,
including the pain killers with which she had been treated. Instead, pointing to the
5
We need not address respondent’s argument that appellant gives Quaale an
overly expansive reading.
8
No. 37133-6-III
State v. Clemmer
testimony about the needle marks and lack of information about the medical intervention,
counsel later argued to the jury that Senger had rushed to judgment and assumed illicit
drug usage without properly investigating his client’s background or considering the
effects of the accident and the ensuing treatment on his client’s condition. RP at 850-
852.
The cross-examination of Senger’s opinion became the central defense to the
impairment prong of the vehicular homicide charge. Counsel understandably did not
object to the testimony or to the needle mark observations since they were a foundation to
that defense. It was counsel’s trial strategy to permit the testimony and then
counterattack it. The strategy was effectively employed.
Ms. Clemmer has not established that counsel performed ineffectively. Her claim
of ineffective assistance fails.
Prosecutorial Misconduct
Ms. Clemmer also argues that the prosecutor committed misconduct in closing
argument by shifting the burden of proof to the defense. The argument did not shift the
burden.
Claims of prosecutorial misconduct also are reviewed under familiar standards.
The appellant bears the burden of demonstrating prosecutorial misconduct on appeal and
must establish that the conduct was both improper and prejudicial. State v. Stenson, 132
Wn.2d 668, 718, 940 P.2d 1239 (1997). Prejudice occurs where there is a substantial
9
No. 37133-6-III
State v. Clemmer
likelihood that the misconduct affected the jury’s verdict. Id. at 718-719. The allegedly
improper statements should be viewed within the context of the prosecutor’s entire
argument, the issues in the case, the evidence discussed in the argument, and the jury
instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Reversal is not required where the alleged error could have been obviated by a
curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The
failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned
that it evinced an enduring and resulting prejudice that could not have been neutralized
by an admonition to the jury. Id.; State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174(1988). A prosecutor has “wide latitude” in arguing inferences from the evidence
presented. Stenson, 132 Wn.2d at 727. In addition, once a defendant presents evidence,
a prosecutor can fairly comment on what was not produced. State v. Barrow, 60 Wn.
App. 869, 871-873, 809 P.2d 209 (1991); State v. Guizzotti, 60 Wn. App. 289, 298, 803
P.2d 808 (1991); State v. Contreras, 57 Wn. App. 471, 788 P.2d 1114 (1990)
In closing, defense counsel argued that the troopers had attempted to portray his
client in a bad light. One example he gave was that Trooper Senger had mentioned Ms.
Clemmer’s lack of remorse as a factor in his assessment of her condition. RP at 852.
Counsel also argued that his client did not remember what happened, leaving counsel to
only theorize possibilities. RP at 857. In rebuttal, the prosecutor responded that Ms.
Clemmer’s behavior in the hospital and on the witness stand were factors weighing on
10
No. 37133-6-III
State v. Clemmer
her credibility, and that she showed no remorse at any time for the accident she had
caused or the life she had taken. RP at 861-862. Instead, the focus of her testimony was
on how she had been impacted by the collision. The prosecutor then continued,
The only tears were when she first got on the stand for herself because she
doesn’t want to be charged with this crime—she knows she was driving
under the influence. She couldn’t even tell you she wasn’t.
RP at 862.
Ms. Clemmer now alleges that the prosecutor’s comments on Ms. Clemmer’s
testimony amounted to faulting the defense for not providing evidence and shifted the
burden of proof to the defense. They did not. In context, the statements were nothing
more than recalling the defendant’s own testimony and contrasting her lack of knowledge
and lack of remorse for the victim with her knowledge of her behavior before the
accident and her concern for her own future. The prosecutor’s remarks were comments
on credibility and inferences to be drawn from the evidence. They did not amount to
suggesting that the defendant had to provide any evidence or meet a burden of proof.
Rather, the comments pointed out the holes in the defendant’s story by noting what was
missing from it, as well as the holes in her presentation that suggested her denial was not
credible.
These were not burden-shifting comments. There was no error, let alone error so
egregious that it could not have been cured by a proper objection. The prosecutor did not
commit misconduct in closing argument.
11
No. 37133-6-III
State v. Clemmer
Sentencing Conditions
Ms. Clemmer points to a scrivener’s error in the judgment form and also argues
that several sentencing conditions are not crime-related. She did not make any of these
arguments to the trial court, so this court need only address a couple of her points.
The record reflects that Ms. Clemmer is not a minor. Accordingly, the judgment
provision indicating that notice should be sent to the Department of Licensing to revoke a
juvenile’s driver’s license is erroneous. It should be struck.
Despite finding Ms. Clemmer indigent, the court nonetheless required her to pay
fees for community supervision. This was error. State v. Ramirez, 191 Wn.2d 732, 426
P.3d 714 (2018). We also direct the trial court on remand to strike this provision.
Ms. Clemmer challenges three additional community custody conditions on the
basis that they are not related to her crime. One of the challenges is an allegation that the
prohibition on associating with known illegal drug users is improper, while the other
challenged conditions indicate she should obtain a drug/alcohol evaluation and not
possess alcohol containers. Whether a community custody condition is crime-related is
an inherently factual consideration. Accordingly, any challenge to such a condition
normally must initially be raised in the trial court. State v. Peters, 10 Wn. App. 2d 574,
591, 455 P.3d 141 (2019); State v. Casimiro, 8 Wn. App. 2d 245, 249, 438 P.3d 137,
review denied, 193 Wn.2d 1029 (2019). We believe that is the case here. For instance, in
our common experience, evaluators and treatment providers typically include potential
12
No. 37133-6-III
State v. Clemmer
alcohol abuse in conjunction with drug treatment. If that is not the case in Stevens
County, then a timely question to the trial court could have clarified its intention on this
point. In the absence of such a record, we will not speculate about the possibilities,
particularly given the court’s unchallenged chemical dependency finding. Accordingly,
we decline to consider the crime-relatedness of these provisions.
The judgment is affirmed and the case remanded to strike the two noted sentence
provisions.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Korsmo, J.P.T.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Siddoway, A.C.J.
13