STATE v. MALICOAT (2005)

PART-PUBLISHED OPINION

William J. Malicoat appeals his jury conviction of first degree murder, arguing that the trial court improperly admitted his statement to the police and certain hearsay statements the victim made to his mother and a friend.   He also contends the judge commented on the evidence when he refused to allow Malicoat to handle the gun in court when other witnesses had.   Finally, he argues that his counsel was ineffective, the prosecutor improperly questioned him, and the judge erred in imposing an exceptional sentence because Malicoat used sophisticated measures to conceal the victim's body.   We affirm, but we vacate Malicoat's exceptional sentence and remand for sentencing consistent with Blakely.

FACTS

William J. Malicoat owed money to his cousin, Chad Dunaway.   When Dunaway met Malicoat at a storage locker in Vancouver to collect, Malicoat shot and killed Dunaway.   He and a friend then built a wooden box, put Dunaway's body inside, and buried it in the woods.

When Dunaway failed to return from his trip, his relatives suspected Malicoat of wrongdoing.   They contacted the police, who called Malicoat in for an interview.   After denying that he had a storage locker on Kaufman Avenue, Malicoat left the station.   The police followed him to the storage locker and arrested him on an unrelated warrant.   In the storage locker, the police found a pool of blood, a bullet hole, and a bullet.

At the station, the police advised Malicoat of his Miranda¹ rights.   He waived them but later said, “maybe I should get an attorney.”   Clerk's Papers (CP) at 106.   The police stopped questioning him and began to lead him back to jail.   On the way, Malicoat started to sob and said, “He's up in the mountains by Lake Merwin.”   Report of Proceedings (RP) at 24-25.   An officer asked if Dunaway was buried there and Malicoat said he was.   The officers took Malicoat back to the station and again advised him of his Miranda rights.   Malicoat agreed to talk and provided a tape recorded statement, which the trial court admitted.

Following a CrR 3.5 hearing, the trial court ruled that Malicoat's response to the question “Is he buried?” was inadmissible because he had invoked his right to counsel.   But the court ruled that his other statements were voluntary and admissible.

At trial, the court allowed Dunaway's ex-girlfriend and mother to testify that the victim told them Malicoat owed him money, the two had fought over the debt, Malicoat finally agreed to pay, and Dunaway was going to Vancouver to collect the debt.   The trial court ruled the testimony admissible under ER 803(a), as evidence of the declarant's state of mind.

Malicoat testified that Dunaway had two guns with him and that he killed Dunaway in self-defense.

During cross examination, the prosecutor confronted Malicoat about misleading the police and telling them that he did not have a storage locker on Kaufman Avenue.   The prosecutor also asked Malicoat to explain earlier testimony, including his statements that he acted in self-defense and that he wanted to give Dunaway a proper burial.   Defense counsel objected twice;  the trial court overruled both.

During Malicoat's testimony, defense counsel began to hand him the murder weapon.   The trial court asked that defense counsel maintain possession of the gun.   The court allowed the firearms examiner and the officer who logged the gun as evidence to handle the gun.

The jury found Malicoat guilty of first degree murder with a firearm.   Finding considerable sophistication in Malicoat's planning of the crime and cover up, the trial court imposed an exceptional sentence of 480 months plus 60 months for the firearm enhancement.

ANALYSIS

I. Exceptional Sentence

 Shortly before oral argument before us, the United States Supreme Court held in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the sentencing judge may not impose an exceptional sentence above the statutory standard range unless it is based on “facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S.Ct. at 2537 (citations omitted).

 Blakely followed Apprendi and Ring.² In Apprendi, the court said that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’  ” Blakely, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

 The trial judge found substantial and compelling reasons justifying an exceptional sentence because of Malicoat's “sophisticated and extensive measures to conceal the victim's body/dispose of evidence.”   CP at 84.

Malicoat contends that the sentencing procedures in this case were analogous to those in Blakely.   He reminds us that he contested the trial court's factual finding that his crime was sophisticated and that he did not waive his right to have a jury determine whether the facts supported an enhanced punishment.

The State maintains that the trial court based the exceptional sentence on facts Malicoat admitted at trial, for example that he shot the victim, buried the body in a box he built, and threw the weapon off of a bridge.   The State reasons that these admissions authorized the exceptional sentence because Blakely allows the sentencing court to use either “facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S.Ct. at 2537.   We disagree.

Although Malicoat did admit that he shot Dunaway, built a box and buried him in it, and then threw the gun off a bridge, he did not admit that he planned the crime.   Rather, he testified that he shot Dunaway in self-defense.   More importantly, he did not admit that his conduct was more sophisticated than usual.   And this finding of sophistication was the ultimate fact the trial court relied on to impose the exceptional sentence.   Under Blakely, Malicoat was entitled to have a jury decide whether his conduct was more sophisticated in planning and carrying out the murder than usual.   Accordingly, we vacate Malicoat's sentence and remand for sentencing consistent with Blakely.   The court may sentence either within the standard range or, if the State again seeks an exceptional sentence, the court must base it on facts Malicoat admits or a jury finds beyond a reasonable doubt.  State v. Harris, 123 Wash.App. 906, 99 P.3d 902, 911 (2004).   The State may move to empanel a sentencing jury on remand.  State v. Fero, 125 Wash.App. 84, 104 P.3d 49, 58 (2005).

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. Post-Arrest Statements

Malicoat argues that the police did not scrupulously honor his right to discontinue his interrogation after he asked for counsel.   Thus, he contends, the court erred in admitting his recorded statement.

A confession is voluntary if the police advise the defendant of his Miranda rights and he then knowingly, voluntarily, and intelligently waives them.   State v. Aten, 130 Wash.2d 640, 663, 927 P.2d 210 (1996).  “Generally, the police must warn a person of his or her Miranda rights before conducting a custodial interrogation.”  State v. Pejsa, 75 Wash.App. 139, 146, 876 P.2d 963 (1994) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602).   But, “[w]here a defendant has been adequately and effectively warned of his constitutional rights, it is unnecessary to give repeated recitations of such warnings prior to the taking of each separate in-custody statement.”  State v. Vidal, 82 Wash.2d 74, 78, 508 P.2d 158 (1973) (citing State v. Rowe, 77 Wash.2d 955, 468 P.2d 1000 (1970)).

A defendant has the right to stop police questioning by asking to talk with an attorney.  State v. Bradley, 105 Wash.2d 898, 903, 719 P.2d 546 (1986) (citing Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602).  “Once a suspect requests the presence of an attorney ․ there can be no further questioning until an attorney is provided unless the suspect himself reestablishes a line of communication with the police.”  State v. Robtoy, 98 Wash.2d 30, 37, 653 P.2d 284 (1982) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).   Accordingly, the police may question a suspect who asks for counsel but then initiates further communication with the police without an attorney.  Aten, 130 Wash.2d at 666, 927 P.2d 210 (citing Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880).

Malicoat cites State v. Grieb, 52 Wash.App. 573, 761 P.2d 970 (1988) and Robtoy, to support his argument.   In Grieb, the defendant agreed to talk to police after they read him his Miranda rights.   But he repeatedly stated that he did not want to waive his rights, and he refused to sign a waiver.   Grieb, 52 Wash.App. at 574, 761 P.2d 970.   The trial court properly suppressed his statements because it was unclear whether he understood the statements could be used against him, and once he refused to waive his rights, the police should have “ ‘scrupulously honored’ ” his rights and immediately terminated the interview.  Grieb, 52 Wash.App. at 575-76, 761 P.2d 970 (quoting Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)).

Grieb is distinguishable.   Grieb repeatedly and unequivocally said he did not want to waive his rights.   Malicoat merely stated, “maybe I should get an attorney.”   CP at 106.   And contrary to Malicoat's argument, the police did “scrupulously honor” his rights;  they stopped questioning him immediately after he said he might want an attorney.   It was Malicoat who re-initiated the communication.   And, unlike Grieb, Malicoat does not contend that he did not understand his Miranda rights.

In Robtoy, the defendant stated, “Maybe I should call my attorney.”   The detective paused and then told him, “[I]f you say you want your attorney, this conversation ends right here.”  Robtoy, 98 Wash.2d at 32, 653 P.2d 284.   The defendant said he understood and agreed to continue talking.   Robtoy, 98 Wash.2d at 32, 653 P.2d 284.   The Supreme Court characterized Robtoy's request for counsel as equivocal.  Robtoy, 98 Wash.2d at 41, 653 P.2d 284.   And, because the detective did not continue the interview until he was satisfied the defendant was not asking for an attorney, the court found the further questioning appropriate.  Robtoy, 98 Wash.2d at 41, 653 P.2d 284.   The court adopted the Fifth Circuit rule that “when a suspect makes an unequivocal request for an attorney's presence, there can be no inquiry as to the subsequent waiver of that right,” and “if a suspect makes an equivocal request for an attorney, interrogation about any offense must cease and questioning must be confined to clarifying the suspect's wishes regarding an attorney.”  Robtoy, 98 Wash.2d at 38, 653 P.2d 284 (citations omitted).

Here, Malicoat stated, “If you are accusing me of murder, then maybe I should get an attorney.”   CP at 106.   Then when Officer Buckner asked Malicoat if he wanted to call an attorney, Malicoat remained silent.   The police stopped questioning him at that point and began escorting him back to the jail.   On the way to the jail, Malicoat spontaneously said that “he didn't mean to” and that Dunaway was “up in the mountains by Lake Merwin.”   CP at 106;  RP at 24-25.   Buckner asked Malicoat if Dunaway was buried, and Malicoat stated that he was.   Malicoat then explained that the incident occurred at his storage unit and asserted that Dunaway put a gun in his face.   Buckner asked Malicoat if he wanted to return to the sheriff's office and speak with the detectives.   Malicoat said yes.

Because the police honored Malicoat's rights and did not question him further until he reinitiated the conversation, the trial court properly admitted the recorded statement.  Aten, 130 Wash.2d at 666, 927 P.2d 210.

III. Hearsay Statements

Malicoat argues that the trial court erred in allowing Dunaway's mother and ex-girlfriend to testify that Dunaway told them that Malicoat owed him money, that Malicoat had been avoiding his phone calls, and that Dunaway was traveling to Vancouver to receive partial payment.   The State contends that the statements were not offered to prove the truth of the matter asserted but to show Dunaway's state of mind and how he acted.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.  ER 801.   It is not admissible except as provided by the rules of evidence, other court rules, or by statute.  ER 802.   Where a statement is not offered for the truth of the contents of the conversation, but only to show that it was made, the statement is not hearsay.  State v. Garcia-Trujillo, 89 Wash.App. 203, 209, 948 P.2d 390 (1997).   Statements that reveal the declarant's state of mind are admissible under the ER 803(a)(3) hearsay exception.

We review a trial court's decision to admit evidence for abuse of discretion.  State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967 (1999).   A trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds.  State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997).

Furthermore, even if a trial court errs in admitting certain evidence, the defendant must demonstrate that the error was prejudicial.  Robtoy, 98 Wash.2d at 44, 653 P.2d 284.   Where the error violates an evidence rule, not a constitutional mandate, we test for harmful error by asking whether it is reasonably probable that the error materially affected the trial outcome.   State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997).   An error in admitting evidence is harmless if the evidence is of minor significance in the context of all the evidence.  Bourgeois, 133 Wash.2d at 403, 945 P.2d 1120.

We need not decide if the court erred in admitting the statement because the error, if any, was harmless.   The State provided ample evidence of the debt and of Dunaway's intent to travel to Vancouver to collect the money.   Malicoat's neighbor, Keri Ruse, testified that she heard Malicoat arguing with his girlfriend about his debt to Dunaway.   Ruse testified that she heard Malicoat angrily say he would “just take him out.”   RP at 255.   Another neighbor, Lisa Hoppe, testified that Malicoat told her he owed Dunaway money.   She testified that the debt “weighed on him.”   RP at 261.   She also testified that, during an argument with his girlfriend, Malicoat said, “[W]e'll just get rid of Chad and we won't have to worry about it.”   RP at 261.   Malicoat also admitted that he owed Dunaway four or five thousand dollars and that he expected Dunaway to come to Vancouver to pick up some of the money.

In light of this evidence, we are satisfied the error, if any, did not affect the trial outcome.   Thus, it was harmless.

IV. Comment on Evidence

Malicoat maintains that the trial court's refusal to allow him to touch the alleged murder weapon during trial violated article IV, section 16 of the Washington Constitution.

The Washington Constitution, article IV, section 16 provides that, “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.”  “A statement by the court constitutes a comment on the evidence if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement.”  State v. Lane, 125 Wash.2d 825, 838, 889 P.2d 929 (1995) (citing State v. Hansen, 46 Wash.App. 292, 300, 730 P.2d 706 (1986), 737 P.2d 670 (1987)).

Malicoat asserts that “[s]everal witnesses were permitted to handle this unloaded weapon,” but the court “strongly reacted” when defense counsel attempted to “show” the gun to Malicoat.   Appellant's Br. at 11.   He reasons that this was a “direct comment on the evidence.”   Appellant's Br. at 22.

Defense counsel attempted to hand the gun to Malicoat, not simply show it to him.   At that point, the court asked counsel to hold onto the gun.   But the court's ruling did not single out Malicoat.   No other lay witness handled the gun, although the attorneys questioned several about the weapon.   Only the firearms examiner and the officer who logged the gun as evidence handled the weapon in the courtroom.   Thus, Malicoat has not demonstrated that the court's request conveyed to the jury the judge's attitude toward the case.   Moreover, the court instructed the jury that it had not intended to comment on the evidence and that if the jury believed the court had, it should disregard any such comment.   We presume that juries follow the court's instructions.   See State v. Cunningham, 51 Wash.2d 502, 505, 319 P.2d 847 (1958) (citing Traverso v. Pupo, 51 Wash.2d 149, 152, 316 P.2d 462 (1957)).

V. Prosecutorial Misconduct

Malicoat maintains that “[t]he prosecuting attorney's impassioned cross-examination of the defendant, which included assertions of personal opinion and argumentative comments, was flagrant misconduct which justifies a new trial.”   Appellant's Br. at 22.

Malicoat has the burden of establishing prosecutorial misconduct by showing the impropriety of the prosecutor's conduct and its prejudicial effect.   State v. Hoffman, 116 Wash.2d 51, 93, 804 P.2d 577 (1991).   Generally, it is improper for a prosecutor to seek a witness's opinion as to whether another witness is telling the truth.  State v. Jerrels, 83 Wash.App. 503, 507, 925 P.2d 209 (1996);  State v. Casteneda-Perez, 61 Wash.App. 354, 362, 810 P.2d 74 (1991) (improper to ask witness's opinion whether other witness was “lying”).   It is also improper for a prosecutor to give a clearly personal opinion about another witness's credibility.  State v. Copeland, 130 Wash.2d 244, 290-91, 922 P.2d 1304 (1996).   However, a prosecutor may argue the facts in evidence and any reasonable inferences, including comments on a witness's truthfulness.  Copeland, 130 Wash.2d at 290-91, 922 P.2d 1304;  State v. Smith, 104 Wash.2d 497, 510-11, 707 P.2d 1306 (1985);  State v. Sargent, 40 Wash.App. 340, 344, 698 P.2d 598 (1985) (prosecutor's remarks should place the integrity of the prosecution on the side of a witness's credibility).   Overall, a prosecutor's remarks “must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.”  State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997).

If there is a “substantial likelihood” that the prosecutor's misconduct affected the verdict, we must reverse.  State v. Lord, 117 Wash.2d 829, 887, 822 P.2d 177 (1991).   The failure to object to a prosecutor's improper remark waives the error “unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.”  Hoffman, 116 Wash.2d at 93, 804 P.2d 577 (citing State v. York, 50 Wash.App. 446, 458-59, 749 P.2d 683 (1987));  State v. Avendano-Lopez, 79 Wash.App. 706, 714, 904 P.2d 324 (1995).

The prosecutor confronted Malicoat about misleading the police and telling them he did not have a storage locker on Kaufman Avenue.   He also asked Malicoat to explain his earlier testimony, including statements that he acted in self-defense and that he wanted to give Dunaway a proper burial.

Malicoat objects to the following excerpts, among others:

Q: Okay. Now, instead, though, of trying to talk to your cousin, who is your best friend, instead of trying to communicate with him and talk with him to find out what's going on, you decide to use kung fu maneuvers on him;  is that a fair statement?

A: Well, I didn't feel very much talking would have made very much difference with a gun pointed at me.   I didn't-

RP at 444.

Q: Okay. Well, I would submit to you, sir, that this would indicate that there must have been some hard feelings between the two of you prior to ․ him coming down here․Would that be fair?

A: Some hard feelings?

Q: Sure.

A: Um. You know, I-I would assume.

RP at 445-46.

Q: Well, I would strongly suggest to you that the reason that you built a box was very simple.   You-now, come on.   The reason you built the box was you had to transport the body in an open pickup truck.   You couldn't just throw a dead body back in an open pickup truck because people would see it.   So you built the box to hide the body so no one would see it.   Is that a fair statement?

A: Sure.

RP at 461.

We find nothing improper in the prosecutor's questioning.   Malicoat testified that he shot Dunaway in self-defense.   The prosecutor's questions challenged the reasonableness of that claim in light of the evidence.   The prosecutor did not express his personal opinion about Malicoat's guilt or testimony.   We find no prosecutorial misconduct.

VI. Ineffective Assistance

Malicoat also asserts that his counsel was ineffective;  he suggests that counsel should have objected to hearsay evidence and the prosecutor's improper questioning.

To show ineffective assistance of counsel, Malicoat must show that (1) 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.  Stenson, 132 Wash.2d at 705, 940 P.2d 1239.   Prejudice occurs if, but for the deficient performance, the outcome would have been different.  In re Pers. Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).   We give considerable deference to counsel's performance and our analysis begins with a strong presumption that counsel was effective.   See, e.g., Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).   Counsel's performance is not flawed simply because of strategic or tactical choices.  In re Jeffries, 110 Wash.2d 326, 333, 752 P.2d 1338 (1988).

When or whether to object is a classic example of trial tactics.   Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal.   State v. Madison, 53 Wash.App. 754, 763, 770 P.2d 662 (1989) (citing Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).   Malicoat's attorney did object to the testimony the State offered from the victim's mother and ex-girlfriend.   And we have held that the error, if any, in admitting this evidence was harmless.   Accordingly, Malicoat was not prejudiced by counsel's failure to more aggressively pursue the objections.   And, as we have discussed, the prosecutor did not engage in misconduct while questioning Malicoat.   Contrary to Malicoat's assertion, the record does not demonstrate “a lack of reflection and preparation for trial.”   Appellant's Br. at 26.

We affirm Malicoat's conviction but vacate the sentence and remand for sentencing consistent with Blakely and Harris.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.   Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

ARMSTRONG, J.