STATE v. HALL (2008)

PUBLISHED IN PART

 ¶ 1 Isiah Hall was convicted of several crimes, including three counts of tampering with a witness.    As to those charges, he argues that his multiple convictions violate the prohibition against double jeopardy.   Because the unit of prosecution for tampering with a witness is any one instance of attempting to induce a witness or a person to do any of the actions set forth in RCW 9A.72.120, Hall's double jeopardy protection was not violated.   In the unpublished portion of this opinion we reject Hall's argument that his trial counsel was ineffective.   We thus affirm.

BACKGROUND

¶ 2 Isiah Halt was initially charged with one count of burglary in the first degree with a firearm enhancement and one count of assault in the second degree.   The charges arose from Hall's actions on the night of January 14, 2007.   On that night, Hall was alleged to have gone to the apartment of Mellissa Salazar, his former girlfriend, and pointed a revolver at her.   He then allegedly entered without permission and chased an acquaintance of Salazar's, LaMont McKinney, out of the apartment.

¶ 3 Before trial, the State amended the information to charge a total of eight counts.   The newly added charges were one count of assault in the second degree, one count of unlawful possession of a firearm, and four counts of tampering with a witness. The witness tampering charges arose from telephone calls Hall made from jail to his girlfriend, Desirae Aquiningoc, regarding her anticipated testimony about Hall's whereabouts on the night in question and about a gun found in her apartment that allegedly belonged to Hall. Aquiningoc testified that during these calls, Hall asked her either to absent herself from trial or testify falsely.

 ¶ 4 The jury acquitted Hall of one count of assault in the second degree and one count of tempering with a witness, but found him guilty of one count of first degree burglary with a firearm enhancement, one count of second degree assault, one count of second degree unlawful possession of a firearm, and three counts of tampering with a  witness.   Hall appeals, arguing first that his multiple convictions for witness tampering violate the prohibition against double jeopardy.¹

ANALYSIS

 ¶ 5 Under the double jeopardy clause of the Fifth Amendment, multiple convictions under the same criminal statute are prohibited if the legislature intended only one unit of prosecution.²  The statutory unit of prosecution is a question of law we review de novo.³

¶ 6 Washington courts have not before addressed the unit of prosecution under the witness tampering statute, RCW 9A.72.120(1), which provides:

A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to:

(a) Testify falsely or, without right or privilege to do so, to withhold any testimony;  or

(b) Absent himself or herself from such proceedings;  or

(c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation or the abuse or neglect of a minor child to the agency.

 ¶ 7 As in any unit of prosecution case, the first step is to analyze the statute.⁴  If the legislature has failed to denote the unit of prosecution, any ambiguity should be construed  in favor of lenity.⁵  A statute is ambiguous if it is susceptible to two or more reasonable interpretations, not merely because different interpretations are conceivable.⁶

¶ 8 Hall maintains the unit of prosecution for witness tampering is “a course of conduct directed towards a witness or a person in relation to a specific proceeding.” ⁷  He argues that the language of RCW 9A.72.120 focuses on a specific witness and a specific proceeding, and that it does not matter how many attempts a defendant makes to tamper with a single witness as long as the intent to obstruct justice in the specific proceeding remains the same.   In the alternative, Hall argues that the statutory language is ambiguous, and therefore it should be construed in his favor under the rule of lenity.

¶ 9 Hall's reading of the statute is incorrect.   The statute prohibits any attempt ⁸ to induce a witness or potential witness to do any of the actions enumerated.   The focus is upon the attempt to induce, not on the specific identity of the person or proceeding.   There is no ambiguity here.

¶ 10 Moreover, Hall's interpretation is not reasonable.   Under his reasoning, a defendant would have no incentive to stop after the first attempt, as he would expose himself to criminal liability for only one count of witness tampering no matter how many efforts he made to induce the witness to disappear or testify falsely.   This interpretation does not serve the legislative purpose.   As the Wisconsin Court of Appeals aptly observed:

Under [appellant's] reasoning, there would be no incentive to stop attempting to intimidate a witness once the process had begun.   Whether a person sent one letter or one hundred letters  attempting to intimidate the witness, there would be only one act, regardless of the number of letters and regardless of whether the witness decided to testify.  [Appellant's] interpretation would hardly serve to eliminate witness intimidation;  indeed, it might well encourage it.9

 ¶ 11 We hold that the unit of prosecution for tampering with a witness is any one instance of attempting to induce a witness or a person to do any of the actions set forth in RCW 9A.72.120. Hall does not argue that his three convictions for witness tampering were not based on three distinct instances of attempt.   Therefore, Hall's convictions do not violate double jeopardy.

¶ 12 Affirmed.

¶ 13 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

OTHER ISSUES

¶ 14 Hall argues that his trial counsel's failure to object to inadmissible and prejudicial testimony of certain witnesses and other evidence constitutes ineffective assistance of counsel and warrants reversal.

¶ 15 To prevail on a claim of ineffective assistance of counsel based on counsel's failure to challenge the admission of evidence, an appellant must show “(1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct;  (2) that an objection to the evidence would likely have been sustained;  and (3) that the result of the trial would have been different had the evidence not been admitted.” 10

¶ 16 Lamont McKinney, the acquaintance who was visiting Salazar at the time of the January 14, 2007 events, testified that he thought it strange that Salazar would “open the door to somebody that she has a restraining order on them.”  11

¶ 17 Hall's counsel did not object.   The State presented no evidence of a restraining order.

¶ 18 Hall contends his attorney was ineffective.   But during closing argument, counsel used McKinney's reference to the restraining order to emphasize the State's failure to present any such evidence and to attack Salazar's credibility because she voluntarily opened the door to a man she claimed was the subject of a restraining order.   Hall's attorney may thus have chosen to not object for tactical reasons.   In any event, Hall's attorney neutralized the prejudicial effect of the reference by using it to cast doubt on the credibility of the State's essential witnesses.   The failure to object to McKinney's testimony did not constitute ineffective assistance.

¶ 19 Detective David Keller worked with Detective John Pavlovich on the search of Aquiningoc's apartment.   During cross-examination of Detective Keller, Hall's counsel used a photograph of court documents pertaining to Hall found in the apartment, which listed a different mailing address for Hall. The documents were from a previous criminal case and included the phrase “[t]he defendant shall be released from jail.” 12  Hall argues his counsel should have sought redaction of the reference to jail.

¶ 20 But Hall's trial strategy was to disprove his ownership of the gun found at Aquiningoc's home by showing that, at the moment of the search, Hall lived not with Aquiningoc but at the address indicated in the documents.   As Hall's attorney knew, the jury would necessarily learn that Hall had a prior conviction because that is an element of the offense of unlawful possession of a firearm.13  Under the circumstances, Hall does not show that failure to remove the jail reference prejudiced him.

¶ 21 Detective Pavlovich was the lead detective on the case. He testified that as a result of his initial investigation, he “determined that several crimes occurred.” 14  Hall argues that this was improper opinion testimony on an ultimate issue and thus violated Hall's constitutional right to a jury trial.15

¶ 22 The comment that several crimes occurred was not a comment on Hall's guilt.   The remark was made in the context of explaining how Detective Pavlovich began his investigation, and made no reference to Hall. Taken in context, the import of the comment was that the detective's first responsibility is to determine whether the facts alleged by the complaining witness would constitute a crime if the allegations proved true.   Hall's attorney was not deficient by reason of his failure to object.

¶ 23 Detective Pavlovich testified that when he first interviewed Aquiningoc, he showed her a booking photo of Hall for her to identify him.   He testified that during a telephone conversation with Hall prior to his arrest, he told Hall he planned to arrest him, and mentioned that “he had some warrants as well.” 16  Defense counsel did not object to either of these statements. The prosecutor asked the court to strike the reference to the warrants and the court did so.

¶ 24 Detective Pavlovich also described the search of Aquiningoc's home, where the police found a gun in the closet and bullets in a dental container.   After Detective Pavlovich identified photographs of the bullets, the prosecutor asked what he meant when he described the evidence as .38 caliber rounds.   In response, Detective Pavlovich pulled a .40 caliber cartridge out of his pocket and showed it to the jury.   The bullet was not marked, offered, or admitted as evidence.

¶ 25 The court immediately summoned a sidebar conference and expressed concern with Detective Pavlovich's conduct, including his references to the booking photo and Hall's prior warrants, and in particular his unanticipated display of a bullet cartridge.   Later, on the record, the court reiterated its concern and the prosecutor apologized for the detective's conduct.   The court observed that a mistrial was not warranted.

¶ 26 Hall contends that given the court's expression of concern, his attorney should have sought a mistrial or curative instruction.

¶ 27 As to the mention of the booking photo, as the court stated, “it introduces a suggestion that the defendant has been in jail before, and it puts in clearly inadmissible evidence.” 17  But Hall stipulated that he had a prior conviction.   Therefore, as with the unredacted documents, counsel's failure to object was not prejudicial.

¶ 28 As to the mention of other warrants, the court struck the reference and explicitly instructed the jury to disregard it.   At the conclusion of the trial, the jurors were instructed to disregard any evidence that was not admitted or was stricken from the record.   Hall does not establish that these measures were ineffective.   He thus does not establish that prejudice resulted from the mentioning of the warrants.

¶ 29 As to the detective's surprising production of the bullet, of which the prosecutor had apparently no more warning than anyone else, the court immediately interrupted the detective's display.   The jury was instructed to disregard any evidence not admitted or stricken.   Hall does not argue that this instruction was ineffective in curing any prejudice from production of the bullet.   In addition, the rounds of ammunition found at Aquiningoc's apartment were admitted at trial without objection, and the dispute at trial was not about the nature of the rounds themselves, but whether Hall had actually possessed the firearm.   Under the circumstances, Hall's counsel's failure to seek a mistrial or further curative instruction did not constitute ineffective assistance.

¶ 30 Affirmed.

FOOTNOTES

1.   Hall did not raise the double jeopardy argument at trial, but constitutional challenges may be raised for the first time on appeal. State v. Adel, 136 Wash.2d 629, 631-32, 965 P.2d 1072 (1998).

2.   Id. at 632, 965 P.2d 1072.   The state constitutional provision, Wash. Const. art.   I, § 9, offers the same scope of protection as its federal counterpart.  Id.

3.   State v. Ose, 156 Wash.2d 140, 144, 124 P.3d 635 (2005).

4.   State v. Varnell, 162 Wash.2d 165, 168, 170 P.3d 24 (2007).

5.   Adel, 136 Wash.2d at 634-35, 965 P.2d 1072.

6.   State v. Tili, 139 Wash.2d 107, 115, 985 P.2d 365 (1999).

7.   Appellant Br. at 8.

8.   The State contends the definition of “criminal attempt” in RCW 9A.28.020(1) applies to “attempt” as used in RCW 9A.72.120, but we do not find this approach helpful.

9.   State v. Moore, 292 Wis.2d 101, 116, 713 N.W.2d 131 (2006) (interpreting the Wisconsin intimidation of witnesses statute).   The relevant language reads:  “[W]hoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.”  Wis. Stat. § 940.42.

FN10. State v. Saunders, 91 Wash.App. 575, 958 P.2d 364 (1998) (citing State v. McFarland, 127 Wash.2d 322, 336, 337 n. 4, 899 P.2d 1251 (1995);  State v. Hendrickson, 129 Wash.2d 61, 80, 917 P.2d 563 (1996))..  FN10. State v. Saunders, 91 Wash.App. 575, 958 P.2d 364 (1998) (citing State v. McFarland, 127 Wash.2d 322, 336, 337 n. 4, 899 P.2d 1251 (1995);  State v. Hendrickson, 129 Wash.2d 61, 80, 917 P.2d 563 (1996)).

FN11.  Report of Proceedings (RP) (May 23, 2007) at 285..  FN11.  Report of Proceedings (RP) (May 23, 2007) at 285.

FN12.  RP (May 24, 2007) at 518..  FN12.  RP (May 24, 2007) at 518.

FN13.  See RCW 9.41.040(1)(a) (“A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter.”)..  FN13.  See RCW 9.41.040(1)(a) (“A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter.”).

FN14.  RP (May 24, 2007) at 490..  FN14.  RP (May 24, 2007) at 490.

FN15.  Even if otherwise admissible, an opinion by either an expert or a lay witness on the ultimate question of a defendant's guilt violates his constitutional right to the independent determination of the facts by a judge or jury.  ER 704;  State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987)..  FN15.  Even if otherwise admissible, an opinion by either an expert or a lay witness on the ultimate question of a defendant's guilt violates his constitutional right to the independent determination of the facts by a judge or jury.  ER 704;  State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987).

FN16.  RP (May 24, 2007) at 502..  FN16.  RP (May 24, 2007) at 502.

FN17. Id. at 518..  FN17. Id. at 518.

ELLINGTON, J.