STATE v. CASSEL (2005)

PART PUBLISHED OPINION

¶ 1 Robert W. Cassel appeals his conviction for premeditated first degree murder, arguing that (1) the evidence was insufficient to support the jury's guilty verdict;  (2) the trial court improperly admitted hearsay testimony;  and (3) the trial court erred in including out-of-state convictions in calculating Cassel's offender score.   In his Statement of Additional Grounds for Review (SAG),¹ Cassel argues (1) ineffective assistance of counsel;  (2) police and prosecutorial misconduct;  (3) improper surprise witness testimony;  (4) trial court error in refusing to dismiss a sleepy juror;  and (5) insufficiency of the evidence.   We affirm the conviction and remand for resentencing.

FACTS

¶ 2 Kathleen McCullough made her living by collecting tithes and appearing at various churches as a traveling minister.   It was not unusual for her to live at various motels when she provided ministerial services away from her home in Klamath Falls, Oregon.

¶ 3 McCullough grew up poor and experienced financial difficulties as an adult, but she would scrimp and save to buy jewelry.

¶ 4 In March 1999, Robert Cassel called Steven Preller, McCullough's close friend, collect from the Clark County jail in Washington.   McCullough had known Cassel for approximately six or seven years.   Cassel asked for McCullough's phone number, which Preller provided.

¶ 5 Within days, McCullough left her home in Klamath Falls and traveled to Clark County, Washington to post bail for Cassel, who was in jail on pending robbery charges.   While in the vicinity of the courthouse, McCullough spoke briefly with a woman named Beverly Brown.

¶ 6 Brown noticed that McCullough seemed distressed and began talking to her.   McCullough told Brown that she had come to bail Cassel out of jail after receiving a message from God that Cassel would “rescue” her.   Report of Proceedings (RP) at 10-A 383. But McCullough told Brown that she was unsure if she had done the right thing.   Shortly thereafter, Brown saw McCullough with Cassel and, at that point, McCullough appeared unemotional and calm.²

¶ 7 On March 26, McCullough and Cassel rented a room at the Comfort Inn in Vancouver, Washington with a check-out date of March 29.   McCullough seemed happy and told lodge staff about her plans to marry Cassel.   Though McCullough registered in person when she arrived, she did not sign any paperwork at the end of her stay.

¶ 8 McCullough had dinner with Preller at a Mexican restaurant in Camas, Washington, on March 27.   At the end of the meal, McCullough purchased dinner to take to Cassel.   Later that evening or early the next morning, Preller received a call from McCullough.   According to Preller, she seemed upset.   This was the last time they spoke.

¶ 9 On March 28, Cassel used McCullough's credit card to check into the Heathman Lodge in Vancouver, Washington.   Cassel told lodge staff that his wife was in the car and not feeling well.   On March 29, a hotel employee asked Cassel about his wife.   Cassel responded that she had been delayed out of town at a trade show and was due in soon.   The hotel employees never saw McCullough.

¶ 10 On March 29, two days after Preller last saw McCullough, Cassel drove McCullough's car, a maroon Grand Am, to Preller's Washington home.   Cassel told Preller that he had purchased a new Ford Taurus for McCullough and that she would be coming by shortly to show it to Preller.   But McCullough never arrived, and the police were later unable to find any record that Cassel had recently purchased a vehicle.

¶ 11 Also on March 29, Cassel went to a convenience store in Camas and used one of McCullough's credit cards to purchase various items, including a sleeping bag, a Coleman stove, cleaning agent, a tarp, and food.   That same day, he pawned her jewelry.   Cassel also attempted to remove cash from McCullough's bank accounts on March 31, April 1, and April 2.

¶ 12 On April 5, McCullough's daughter, Kimberly Bair, reported her mother missing.   Vancouver police opened a missing person investigation.

¶ 13 On April 19, Vancouver police located McCullough's Grand Am in a Portland, Oregon neighborhood, near Cassel's son's residence.   Using a warrant, they seized and searched the car, which revealed a small amount of Cassel's blood in the driver's area and a small quantity of McCullough's blood on the passenger door.   Police also discovered some fern-like plant matter on the floor of McCullough's Grand Am. At trial, an expert testified that the plants were the same or similar to those growing in the area where police located a body later identified as McCullough's.

¶ 14 On May 11, the police located McCullough's body on a rural, unpaved road in Washington, near Cassel's residence.   The body was badly decomposed, but Dr. Fred Sorenson, a specialist in forensic dentistry, was able to positively identify the body as McCullough.   The autopsy showed that McCullough died of blunt head trauma and that her injury was consistent with at least eight or nine blows to the back of her head.   The blows could have been inflicted with a heavy, blunt object, such as a rock.

¶ 15 In July, police interviewed Cassel.   During the interview, Cassel described McCullough as a “false prophet.”   RP 12 at 867.   The court admitted this statement at trial.

¶ 16 At trial, Bair testified about various items of jewelry that had belonged to her mother.   She told the jury that her mother was attached to her jewelry, considered some of the pieces to be heirlooms, and would not permit others to wear them.   She further testified that she had never seen her mother bleeding in her Grand Am and that she was not aware of any injuries on her mother's body at the time her mother left for Washington.

¶ 17 The State charged Cassel with premeditated first degree murder pursuant to RCW 9A.32.080 (a) or, alternatively, murder while committing or attempting to commit the crime of robbery in the first or second degree.   The jury found Cassel guilty of premeditated first degree murder.

¶ 18 At sentencing, the State advised the trial court that Cassel had an offender score of eleven, based on five felony offenses committed in Oregon in 1999 and two felonies committed in Washington in 2000.   The State did not provide certified copies of Cassel's past judgments and made no effort to compare his out-of-state convictions to similar offenses in Washington.   Cassel did not object or comment on the offender score calculation, and the court sentenced him to 548 months, the high end of the standard range.   This timely appeal follows.

ANALYSIS

I. Offender Score Calculation

 ¶ 19 Cassel contends that the trial court erred by including Cassel's unclassified out-of-state convictions in his offender score.   The State responds that the trial court's calculation is correct because Cassel failed to object at sentencing.

 ¶ 20 Illegal or erroneous sentences may be challenged for the first time on appeal.  In Re Personal Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996).   It is the State, not the defendant, who bears the ultimate burden of ensuring the record supports both the existence and classification of out-of-state convictions by a preponderance of the evidence.  State v. Ford, 137 Wash.2d 472, 480-81, 973 P.2d 452 (1999).

 ¶ 21 While the best evidence of a prior conviction is a certified copy of the judgment, the State may introduce documents of record or transcripts of prior proceedings to establish the defendant's criminal history.  State v. Cabrera, 73 Wash.App. 165, 168, 868 P.2d 179 (1994).

 ¶ 22 Where a defendant's criminal history includes out-of-state convictions, the court must classify the convictions according to the comparable offense definitions and sentences provided in Washington law.   State v. Wiley, 124 Wash.2d 679, 682, 880 P.2d 983 (1994).

 ¶ 23 When the court makes no effort to classify out-of-state convictions according to comparable Washington crimes before they are included in the sentencing score, the resulting sentence is erroneous.  State v. Beals, 100 Wash.App. 189, 196, 997 P.2d 941 (2000).

 ¶ 24 When lack of classification is successfully challenged on appeal, but the defendant did not object below, we remand to the trial court to allow the State an opportunity to complete the classification process.  Ford, 137 Wash.2d at 483, 973 P.2d 452.

 ¶ 25 Here, the State failed to provide certified copies of Cassel's prior judgments or any comparable evidence to establish his criminal history.   Further, the State made no effort to compare Cassel's Oregon convictions to Washington felonies.   Instead, the State contends that Cassel acknowledged the truthfulness of his criminal history by simply failing to object at sentencing.   But the State's conclusory argument is an insufficient basis for classification.   And a defendant does not acknowledge the State's position regarding classification by merely failing to object at the sentencing.  Ford, 137 Wash.2d at 483, 973 P.2d 452.

¶ 26 Because the State failed to establish the existence and comparability of Cassel's prior offenses, we remand for resentencing, allowing classification of Cassel's out-of-state convictions.

¶ 27 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Sufficiency of the Evidence

¶ 28 Cassel contends that his conviction for premeditated first degree murder lacks sufficient evidence.   We disagree.

¶ 29 Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it 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).   We draw all reasonable inferences from the evidence in favor of the State and interpret the evidence most strongly against the defendant.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

¶ 30 Circumstantial evidence is no less reliable than direct evidence, and criminal intent may be inferred from conduct where it is “plainly indicated as a matter of logical probability.”  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).   A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it.  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

¶ 31 Premeditation is the mental process of thinking beforehand;  of deliberation, reflection, weighing or reasoning for a period of time, however short.  State v. Commodore, 38 Wash.App. 244, 247, 684 P.2d 1364 (1984).   Circumstantial evidence is sufficient to show premeditation when the inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict is substantial.  State v. Bingham, 105 Wash.2d 820, 824, 719 P.2d 109 (1986).

¶ 32 To convict Cassel of premeditated murder in the first degree, the jury had to find beyond a reasonable doubt that Cassel caused McCullough's death with a premeditated intent to do so.  RCW 9A.32.030(a).   The jury also had to find that the crime occurred in Washington on or about March 28.

¶ 33 The record provides sufficient evidence to support Cassel's conviction for premeditated murder in the first degree.   Immediately before McCullough's disappearance, staff at the Vancouver Comfort Inn saw her with Cassel.   She had dinner with Preller in Camas on the evening of March 27 and then she took dinner to Cassel.   When she called Preller late on March 27 or early March 28, she was upset.   McCullough did not sign to check out of the Comfort Inn on March 28, and later that day, Cassel showed up alone at the Heathman Lodge in Vancouver, using McCullough's credit card.

¶ 34 Witnesses testified that after McCullough disappeared, Cassel used her car and credit cards and pawned her heirloom jewelry. He falsified stories about her whereabouts and purchased supplies consistent with an intent to dispose of her body in the woods.   Almost all of these acts occurred in Washington.3  Police found McCullough's remains in a rural Washington area, and fern-like plant leaves present at that location were also found in McCullough's Grand Am. The Grand Am contained traces of McCullough's and Cassel's blood.   In a police interview, Cassel stated that McCullough was a “false prophet.”   RP 12 at 867.

¶ 35 From this circumstantial evidence, the jury had ample reason to conclude that Cassel killed McCullough in Washington around March 28.

¶ 36 The record further shows that McCullough died of blunt head trauma and that her injury was consistent with eight or nine blows to the back of her head.   This alone is sufficient to show a period of thinking beforehand and to support the jury's finding of premeditated intent.  Bingham, 105 Wash.2d at 824, 719 P.2d 109.

¶ 37 Based on the evidence presented at trial, a reasonable juror could find that Cassel was guilty of first degree premeditated murder.   We hold that the evidence was sufficient to support the jury's verdict.

III. Victim's Statements

¶ 38 Cassel asserts that he was denied a fair trial because the trial court erred in admitting irrelevant and prejudicial hearsay statements McCullough made to Brown.   The State responds that Brown's testimony was relevant and properly admitted.

¶ 39 We review the trial court's evidentiary rulings for an abuse of discretion;  abuse occurs only if the ruling was manifestly unreasonable or based on untenable grounds.  State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967 (1999).   Cassel bears the burden of proving abuse of discretion.  State v. Demery, 144 Wash.2d 753, 758, 30 P.3d 1278 (2001).

¶ 40 The rules of evidence permit the use of statements as an exception to the hearsay rules when those statements describe a then existing mental, emotional or physical condition:

(3) Then Existing Mental, Emotional or Physical Condition.

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

ER 803(a)(3).   To be admissible under this rule, statements must be relevant to a fact at issue.  State v. Haack, 88 Wash.App. 423, 438-39, 958 P.2d 1001 (1997);  see ER 401 (explaining that evidence is relevant if it tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”).

¶ 41 But in a homicide case, if there is no defense that brings the victim's state of mind into issue, then evidence of the victim's fears or emotions is usually not relevant to the issue of whether the defendant committed the act charged.  State v. Parr, 93 Wash.2d 95, 103, 606 P.2d 263 (1980);  State v. Cameron, 100 Wash.2d 520, 531, 674 P.2d 650 (1983).

¶ 42 At trial, Brown testified that she spoke to McCullough outside the Clark County courthouse.   Brown testified that during this conversation, McCullough told Brown that she was uncertain about whether she should bail Cassel out of jail.   Brown further testified that McCullough appeared scared, confused, and emotional.

¶ 43 Cassel objected to McCullough's statements as inadmissible and prejudicial.   The trial court overruled the objection and found that the evidence was admissible under the state-of-mind exception to the hearsay rule.  ER 803(a)(3).   The court determined that the evidence was relevant to explain the dynamic between McCullough and Cassel.   The court further found that the evidence was more probative than prejudicial.  ER 403.

¶ 44 The trial court properly admitted Brown's testimony about her encounter with McCullough.   The State offered this testimony to provide the context for McCullough's roller coaster relationship with Cassel and not as evidence that Cassel committed murder.   Further, Brown's testimony was corroborated through her observations and through the testimony of other witnesses.   The trial court carefully balanced the prejudice against the probative value of the information and instructed Brown to refrain from referring to the specific crime of robbery, for which Cassel was held in jail.   Thus, it was not an abuse of discretion for the trial court to admit McCullough's statements to Brown under ER 803(a)(3).

¶ 45 In reaching this conclusion, we note that even if the trial court improperly admitted Brown's testimony, any resulting error would be harmless.

¶ 46 An error of constitutional magnitude is harmless when the reviewing court is convinced beyond a reasonable doubt that the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt.4  State v. St. Pierre, 111 Wash.2d 105, 119, 759 P.2d 383 (1988).

¶ 47 Here, Brown's testimony was but a tiny fragment in a myriad of circumstantial evidence uniformly pointing to Cassel's guilt.   Thus, we conclude that the untainted evidence in the record is so overwhelming that it necessitates a finding of guilt, and that any error in admitting Brown's testimony was harmless.

IV. SAG Issues

A. Ineffective Assistance of Counsel

¶ 48 Cassel argues he received ineffective assistance of counsel because his attorney failed to adequately present exculpatory evidence, such as McCullough's involvement with the occult, Preller's motives to murder McCullough, and McCullough's general fears for her life due to threats made by unidentified persons.

¶ 49 To show ineffective assistance of counsel, Cassel must establish that (1) his counsel's performance was deficient;  and (2) the deficient performance prejudiced him.  State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987).   Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness.  State v. Stenson, 132 Wash.2d 668, 705, 940 P.2d 1239 (1997).   Prejudice occurs when but for the deficient performance, the outcome would have differed.  In re Personal Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).   We give great judicial deference to counsel's performance, and our analysis begins with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Further, we do not consider matters outside the record on direct appeal.  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).

¶ 50 Cassel's arguments regarding ineffective assistance are flawed in several respects.   First, Cassel's counsel actually attempted to argue McCullough's involvement with the occult, but the trial court ruled that Cassel could not argue that theory at trial.   Second, in making his arguments, Cassel is relying on matters outside the record on appeal.  McFarland, 127 Wash.2d at 335, 899 P.2d 1251.   Finally, Cassel has failed to provide any evidence that his counsel's strategic decisions about the appropriate way to handle the case were objectively unreasonable or prejudicial.

B. Improper Evidentiary Ruling

¶ 51 In passing, Cassel mentions that the trial court's ruling disallowing the defense theory of McCullough's involvement with the occult may have been improper.   His contention is without merit.   The constitutional right to present a defense is not unfettered.  State v. Drummer, 54 Wash.App. 751, 755, 775 P.2d 981 (1989).   Specifically, in a case where the defendant seeks to introduce evidence connecting other persons with the crime charged, a proper foundation must be laid.  State v. Kwan, 174 Wash. 528, 533, 25 P.2d 104 (1933);  State v. Rehak, 67 Wash.App. 157, 834 P.2d 651 (1992).   Here, Cassel failed to present sufficient evidence to allow him to argue that persons involved with the occult murdered McCullough.   Thus, the trial court correctly disallowed this defense.

C. Improper Admission of Defendant's Criminal History

¶ 52 Cassel argues that the trial court incorrectly admitted evidence of his criminal history when it allowed Brown to testify about McCullough bailing him out of jail.   But evidence of prior misconduct may be properly admitted as circumstantial evidence of the crime charged.   See e.g. State v. Cartwright, 76 Wash.2d 259, 262, 456 P.2d 340 (1969).   Here, the fact that McCullough bailed Cassel out of jail was relevant to establish that the two were together in Washington and was necessary to provide context for their relationship.   Moreover, the mere fact that Cassel was in jail did not necessarily indicate any wrongdoing on his part.   And as discussed previously, the trial court weighed the prejudicial effect of this evidence against the probative value and correctly concluded that the evidence should be admitted.  ER 404(b).

D. Police and Prosecutorial Misconduct

¶ 53 Cassel argues that the police and the prosecution improperly destroyed evidence.   Specifically, he argues that it was improper for the State to allow cremation of McCullough's body and that the police improperly manufactured the blood evidence found in her car.   The record before us does not support these assertions.   See McFarland, 127 Wash.2d at 335, 899 P.2d 1251.   Furthermore, Cassel failed to timely object to the admission of this evidence at trial and, thus, failed to preserve these issues for this court's review.  State v. O'Neill, 91 Wash.App. 978, 993, 967 P.2d 985 (1998).

¶ 54 Cassel further maintains that prosecutorial misconduct denied him the right to a fair and impartial trial.   A defendant alleging prosecutorial misconduct bears the burden of showing both improper conduct and prejudicial effect.  State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997).   Here, Cassel makes only vague arguments and fails to show any evidence of either improper conduct or prejudicial effect.   Thus, Cassel fails to meet his burden in establishing prosecutorial misconduct.

E. Surprise Witness Testimony

¶ 55 Cassel argues the trial court erred by allowing Brown to testify even though she was not on the State's witness list.   The trial court, in its discretion, may permit the State to endorse the name of an additional witness during trial, where no undue prejudice will result to the defendant.  State v. Shelby, 69 Wash.2d 295, 418 P.2d 246 (1966).   Cassel did not object to the late endorsement at trial but rather, he objected only to the relevance and prejudicial effect of Brown's testimony about McCullough's statements.   Therefore, the issue of late endorsement is not preserved on appeal.   O'Neill, 91 Wash.App. at 993, 967 P.2d 985.   Further, we conclude that the trial court did not abuse its discretion in allowing the late endorsement and that Cassel was not unduly prejudiced as a result.

F. Sleepy Juror

¶ 56 Cassel argues that the court abused its discretion by failing to dismiss a sleepy juror over defense objection.   Whether a juror was so inattentive that the defendant was prejudiced is a matter addressed to the trial court's discretion and is reviewable only for an abuse of discretion.   State v. Hughes, 106 Wash.2d 176, 721 P.2d 902 (1986).

¶ 57 During the trial, the court noted that one of the jurors was “nodding off” and promptly brought the matter to the attorneys' attention.   RP 9 at 322.   Defense counsel suggested that the juror be replaced with one of the alternates, but the court denied this request.   The trial court did not abuse its discretion in refusing to dismiss the sleepy juror.   In making its ruling, the court noted that the juror had not “missed anything,” and it offered to address the matter again if further concerns about the juror's inattentiveness arose.   RP 10-A at 326.

¶ 58 Accordingly, we affirm the conviction and remand for resentencing, permitting classification of Cassel's out-of-state convictions.

FOOTNOTES

1.   RAP 10.10.

2.   Brown testified to these facts at trial.

FN3.  The sole exception is that Cassel pawned McCullough's jewelry at an Oregon pawn shop..  FN3.  The sole exception is that Cassel pawned McCullough's jewelry at an Oregon pawn shop.

FN4.  The admission of McCullough's out-of-court statements implicates the right of confrontation under the sixth amendment to the United States Constitution and the Wash. Const. art. 1, § 22, (amend.10)..  FN4.  The admission of McCullough's out-of-court statements implicates the right of confrontation under the sixth amendment to the United States Constitution and the Wash. Const. art. 1, § 22, (amend.10).

VAN DEREN, J.