State Of Washington, Respondent V Nicholas Keith Mayer, Appellant (Majority)
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FILED COURT OF APPEALS j` ' IN THE COURT OF APPEALS OF THE STATE O' WWAINGTON 2014 SEP - 3 DIVISION II AM 3: 22 STATE OF WASHINGTON ON STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION NICHOLAS KEITH MAYER, Appellant. Melnick, J. Nicholas Mayer appeals his convictions for first degree robbery with two firearm enhancements, first degree burglary with two firearm enhancements, residential burglary, three counts of theft of a firearm, three counts of second degree unlawful possession of a firearm, and third degree theft. burglary conviction, ( unanimous made Nicholas' argues ( insufficient evidence supported his first degree 1) 2) the jury instructions for first degree burglary violated his right to a jury verdict, ( 3) the trial court erred by denying his motions to suppress statements he to the officers, ( 4) the State improperly vouched for one of its key witnesses' credibility, and ( 5) the trial court' s denial of his motion to continue the trial denied him effective assistance of counsel. We affirm Nicholas' s convictions. FACTS I. BACKGROUND On February 9, 2012, just robbery at the KC Teriyaki after restaurant 9: 00 P. M., officers responded to a 911 call regarding a in Salmon Creek, Washington. When the officers arrived, they interviewed the restaurant' s owner, Hui Choe, a restaurant employee, Aljuarsmi Ortiz, and 1 We refer to Nicholas Mayer and Emily Mayer by their first names to avoid confusion. 44232 -9 -II two other witnesses. obviously knew The about believed that it officers the side entrance and was the likely an " restaurant' s inside job," because the suspects closing procedures. 1 Report of Proceedings ( RP) at 21. Choe told the officers about his former employee, Emily Mayer, whom he had fired a few months prior because he suspected her of stealing money. Choe also told the officers that Emily had told him she had an older brother determined that Nicholas officers did drugs. who Emily' s was older After reviewing their databases, the brother. At that point, the officers listed Nicholas and Emily as potential suspects. KC Teriyaki' s closes at 9: 00 P. M. Choe' s usual closing procedure is to turn off the open sign and put removed wallet. the money from the the money from the He set the bag day' s sales register, on a stool into a bank approximately $ behind the counter. bag. At closing on February 9, Choe 800, and put it in a bank bag with his Choe then went into the kitchen to prepare an order for a customer who had come in late; Choe told Ortiz he could leave for the night. Ortiz stated that when Ortiz opened the side door to leave, two young men, approximately six feet tall, wearing hoodies and bandanas over their faces and holding guns, pushed open the door, entered the restaurant, and it, left through the demanded money. side door, The two men noticed the bank bag on the chair, grabbed and ran across the street. Ortiz stated that it seemed as though the two men were waiting for someone to open the side door so they could get into the restaurant. A customer in the restaurant witnessed two men and Ortiz scuffle. She stated that one of the two men had a handgun pointed at Ortiz, while the other grabbed something from under the counter. The customer' s husband, who was waiting in his car outside the restaurant, saw two men with covered carried a gun. faces running from the side of the restaurant. He stated that one of them According to Choe, the restaurant' s side door is an iron door that is kept closed 2 44232 -9 -II during business hours door is hidden by and, except bushes and in cases of emergencies, cannot be seen is from the used only by employees. The side Ortiz further explained that road. customers use the main, front entrance to enter the restaurant, and that the side door is used only by employees, usually to take out the trash and exit at the end of a shift. The following night the officers received a call from a person who identified himself as Clerk' Matt." s Papers ( CP) at 484. He provided the police his phone number. Matt stated ( 1) that a person named Nicholas Mayer was bragging about having recently robbed a Vancouver restaurant; ( 2) that Nicholas had a revolver that he recently gave away to someone; and ( 3) that Nicholas had a lot of cash, which was unusual for him. Matt also gave specific information that Nicholas was with his girlfriend Sarah Baker, riding in a grey pickup. Based on Matt' s information and their investigation, the officers went to the particular location Matt provided and stopped a grey pickup. Inside the pickup were Nicholas, Baker, and another passenger, all of whom went to the police precinct for interviews. Subsequently, Deputy Tom Dennison called Matt, who agreed to and did provide a statement. Dennison then interviewed Baker, who .stated that Nicholas admitted to her that he had robbed a teriyaki restaurant. Dennison later interviewed Nicholas. Miranda2 them, rights from and agreed do if he that he carried with to have his interview Nicholas his Miranda would a card rights. wanted an Before talking to him, Dennison read Nicholas his recorded. him. Nicholas understood his rights, waived After starting the recording, Dennison re -read When asked if he understood his rights, Nicholas asked what he attorney and could not afford one. Dennison responded that if Nicholas was arrested and charged with a crime, when he went before a judge he would be 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 3 44232 -9 -II attorney if appointed an and would talk to he could not afford one. Nicholas stated that he understood his rights Dennison. Nicholas admitted his involvement in the KC Teriyaki restaurant robbery. PROCEDURAL HISTORY II. On February 24, 2012, the State charged Nicholas by amended information with first degree robbery two with firearm enhancements, first degree burglary with two firearm enhancements, residential burglary, three counts of theft of a firearm, three counts of second degree unlawful possession of a firearm, third degree theft, and first degree attempted trafficking in stolen property. Nicholas moved, under CrR 3. 6, to suppress his statements, arguing that the officers unlawfully stopped and detained him. Nicholas also moved, under CrR 3. 5, to suppress his alleged confession to the crimes, ' arguing that the officers gave him improper Miranda warnings. The trial court denied both motions and entered findings of fact and conclusions of law. At the close of the State' s case, the trial court dismissed the trafficking charge. The jury found Nicholas guilty on all other counts and the four firearm enhancements. Nicholas received a 306 month sentence, which included 240 months for the firearm enhancements. Nicholas appeals. ANALYSIS SUFFICIENT EVIDENCE SUPPORTS NICHOLAS' S FIRST DEGREE BURGLARY CONVICTION Nicholas argues there is insufficient evidence to support his burglary conviction because he remained only in places open to the public in the KC Teriyaki restaurant. We disagree and hold that there is sufficient evidence beyond a reasonable doubt that Nicholas unlawfully entered and unlawfully remained in the restaurant. 4 44232 -9 -II Evidence is sufficient if, when viewed in a light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,. 201, 829 P. 2d 1068 ( 1992). " A claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably can be drawn therefrom," which should Circumstantial be interpreted most strongly evidence and direct evidence are Wn.2d 634, 638, 618 P. 2d 99 ( 1980). " cannot be reviewed on appeal." against Salinas, 119 Wn.2d at 201. the defendant. deemed equally reliable. State v. Delmarter, 94 Credibility determinations are for the trier of fact and State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990). A person is guilty of first degree burglary if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime ( a) is armed with a deadly weapon, or (b) assaults any person. RCW 9A.52. 020( 1). " she is not A person ` enters or remains unlawfully' in or upon premises when he or then licensed, invited, 9A.52. 010( 5). or otherwise privileged to so enter or remain." RCW A license or privilege to enter or remain in a building that is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. RCW 9A.52. 010( 5). Whether a defendant enters or remains unlawfully in a building is decided on a case by case basis. State v. Collins, 110 Wn.2d 253, 258, 751 P. 2d 837 ( 1988). An individual' s presence may be unlawful because of an implied limitation on, or revocation of, his privilege to be on the premises." Collins, 110 Wri.2d building, he has remained at 258. If an individual exceeds the scope of his invitation into a unlawfully therein. Collins, 110 Wn.2d at 255. Where a defendant' s initial entry was clearly unlawful, the sufficiency of evidence that he or she remained unlawfully follows automatically. State v. Cordero, 170 Wn. App. 351, 366, 284 P. 3d 773 ( 2012). 5 44232 -9 -II Here, Nicholas hid outside a side door to the KC Teriyaki restaurant. This iron door, not usually used by customers except in emergencies, is kept closed during business hours. It is used by employees to take the trash out and exit the restaurant at the end of a work shift. When Ortiz exited the side door after the restaurant' s business hours, Nicholas pushed him back into the restaurant, entered the door with a gun drawn, and demanded money. When drawing all reasonable inferences in the State' s favor, we hold there is sufficient evidence that Nicholas entered and remained unlawfully in the KC Teriyaki restaurant. He exceeded the scope of his invitation. The time of Nicholas' s entry occurred after the restaurant' s normal business hours. Nicholas did not enter the restaurant through the front entrance or for the purpose of ordering or eating food; he forcefully entered through a hidden side entrance with the intent to steal money. Accordingly, we hold there is sufficient evidence that Nicholas unlawfully entered the restaurant. Thus, there is also sufficient evidence that he unlawfully remained in the closed restaurant while he completed the robbery. THE To CONVICT INSTRUCTION FOR FIRST DEGREE BURGLARY DID NOT VIOLATE II. NICHOLAS' S RIGHT To A UNANIMOUS JURY VERDICT. Nicholas argues there is insufficient evidence that he unlawfully remained in the restaurant and because the jury instructions stated the jury could find him guilty for either unlawful entering or unlawful remaining without requiring jury unanimity on either alternative, he was deprived of his constitutional right .to a unanimous jury verdict. Because sufficient evidence supports that Nicholas both unlawfully entered and unlawfully remained in the restaurant, Nicholas received his constitutional right to a unanimous jury verdict. We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wn.2d 378, 382, 103 P. 3d 1219 ( 2005). We also review constitutional Cubias, 155 Wn. 2d 549, 552, 120 P. 3d 929 ( 2005). challenges de novo. State v. 44232 -9 -II Nicholas part State by Klimes is no v. contends State v. Allen, 127 Wn. longer good Klimes, 117 Wn. App. law. App. 758, 73 P. 3d 416 ( 2003), overruled in 125, 110 P. 3d 849 ( 2005), supports In Allen, Division One of this this argument. But court retreated from its overstatement in Klimes that the unlawful entering and unlawful remaining ways of committing burglary are repugnant to one another. 127 Wn. App. at 132. " Regardless of whether the defendant possessed an intent to commit a crime at the time of the unlawful entry, if the defendant unlawfully remains with the intent to commit a crime, we see no reason such conduct does not satisfy the requirements for Allen, 127 Wn. burglary." App. at 133. Thus, in most burglary cases, juries can be instructed as to both means and no special jury instruction or prosecutorial election of means is State v. Johnson, 132 Wn. App. 400, 409 -10, 132 required. P. 3d 737 ( 2006). So long as there is sufficient evidence as to each means or so long as a reviewing court can tell that the verdict was based on only one means which was supported by substantial evidence, a general verdict finding the defendant guilty of burglary will stand. Johnson, 132 Wn. App. at 410. Here, we already have found that there is sufficient evidence that. Nicholas both unlawfully entered and unlawfully remained in the restaurant. Thus, this argument fails. III. THE OFFICERS PROPERLY STOPPED AND DETAINED NICHOLAS Nicholas argues the trial court erred by denying his motion to suppress because the officers improperly relied on an anonymous tip to stop him. Nicholas argues this stop violated his federal and state constitutional right to be free from unreasonable searches and seizures. Because the officers had corroborated the tip they received from an unknown but named informant with information the officers already knew, the 7 officers' stop did not violate 44232 -9 -II Nicholas' s constitutional right to be free from unreasonable searches and seizures. We hold the trial court did not err by denying Nicholas' s motion to suppress. When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the challenged findings of fact and whether the findings of fact support the law. State conclusions of v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009). " Evidence is substantial when it is enough ` to persuade a fair minded person of the truth of the stated Garvin, 166 Wn.2d at 249 ( quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d premise. "' Unchallenged findings 1038 ( 1999)). 164 Wn. of App. of fact are considered verities 414, 418, 263 P. 3d 1287 ( 2011). law pertaining to the on appeal. State v. Lohr, We review de novo the trial court' s conclusions Garvin, 166 Wn.2d at 249. suppression of evidence. Here, Nicholas does not assign error to any of the trial court' s findings of fact from the CrR 3. 6 hearing. Accordingly, our review is limited to a de novo determination of whether the trial court derived proper conclusions from the unchallenged findings. The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit unreasonable searches and seizures. State v. Day, 161 Wn.2d 889, 893, 168 P. 3d 1265 ( 2007). unreasonable and violate 249. There including quoting State the Fourth Amendment and article I, section 7. Garvin, 166 Wn.2d at a few `jealously and carefully drawn exceptions' to the warrant requirement," are " Terry3 Generally, warrantless searches and seizures are investigative v. stops. State v. Duncan, 146 Wn.2d 166, 171, 43 P. 3d 513 ( 2002) Williams, 102 Wn.2d 733, 736, 689 P. 2d 1065 ( 1984)). A police officer may conduct a warrantless investigative stop based upon less evidence than is needed to establish probable cause 3 to make an arrest. State v. Acrey, 148 Wn.2d 738, 746 -47, 64 P. 3d 594 ( 2003). Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968). 8 44232 -9 -II But the officer must have " a reasonable suspicion, grounded in specific and articulable facts, that the person stopped has been or is about to be involved in a crime." Acrey, 148 Wn.2d at 747. A reasonable, articulable suspicion means that there ` is a substantial possibility that criminal conduct has occurred or is 289 ( 2012) ( quoting State about v. State v. Snapp, 174 Wn.2d 177, 197 -98, 275 P. 3d to occur. "' Kennedy, 107 Wn.2d 1, The officer' s 6, 726 P. 2d 445 ( 1986)). suspicion must relate to a particular crime rather than a generalized suspicion that the person detained is " up to State v. Bliss, 153 Wn. App. 197, 204, 222 P. 3d 107 ( 2009). no good." Information supplied by another person may authorize an investigative stop if the informer' tip demonstrates s 530 P. 2d 243 ( 1975) ( 2d 612 ( 1972)). some "` indicia of reliability. "' State v. Lesnick, 84 Wn.2d 940, 943, quoting Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. Our Supreme Court first stated that reliability can be established if (1) the informant was reliable or ( 2) the officer's corroborative observation suggests either the presence of criminal 178 Wn. activity App. that the information was obtained in a reliable fashion. 769, 781, 315 P. 3d 1158 ( 2014) ( citing Lesnick, 84 Wn.2d Court subsequently detention.' or clarified that "` at State v. Z U.E., 944). Our Supreme reliability by itself generally does not justify an investigatory Instead, a reliable informant' s tip also must be supported by a ` sufficient factual basis' or ` underlying factual justification' so officers can assess the probable accuracy of the informant' s conclusion." 621 P. 2d 1272 ( 1980)). officer' s Z.U.E., 178 Wn. App. at 781 ( quoting State v. Sieler, 95 Wn.2d 43, 48, Thus, " an informant' s report can provide reasonable justification for an investigative stop in two situations: ( 1) when the information available to the officer showed that the informant was reliable or ( 2) when the officer' s observations corroborate either the presence of criminal activity or that the informant' s report was obtained in a reliable 9 44232 -9 -II Z.U.E., fashion." 178 Wn. App. at 782 ( citing Sieler, 95 Wn.2d at 47 -48; Lesnick, 84 Wn.2d at 944). We determine the propriety suspicion based on on what the officer the " knew 445 ( 2008). A judgments totality at inferences and court of an of the investigative stop the reasonableness of the officer' s circumstances." the time of the stop. must base its about at 198. The focus is State v. Lee, 147 Wn. App. 912, 917, 199 P. 3d evaluation human behavior. ' 174 Wn.2d Snapp, suspicion of reasonable commonsense on "` Lee, 147 Wn. App. at 917 ( quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 ( 2000)). Whether a warrantless investigative stop was justified or represents a constitutional violation is a question of law, 299, 224 P. 3d 852 ( 2010). which we review Acrey, discovered during that stop is novo. State v. Bailey, 154 Wn. App. 295, The State bears the burden of showing the propriety of an 148 Wn. 2d investigative stop. de at 746. not admissible If the initial stop .was unlawful, the evidence because it is fruit of the poisonous tree. Kennedy, 107 Wn.2d at 4. In this case, considering the totality of the circumstances, the information available to the officer demonstrated the informant' s reliability. Thus, the Terry stop was proper. The day after the incident at the KC Teriyaki restaurant, 911 to following: He had a friend named Nicholas Mayer, who was about 24 or 25 years old; Nicholas had been bragging about committing an armed robbery of a restaurant in Vancouver within the past a person named several Matt called days; Nicholas had a " report butt load the of cash on him," which is not normal for Nicholas; Nicholas had a revolver, which he recently gave to someone; Nicholas was with his girlfriend, named Sarah Baker; Nicholas and Sarah were traveling in a grey Dodge Dakota ( pick up truck), and that they had just arrived at a bar at Dollars Corner ( in Battleground); and Nicholas was known to have Heroin on him. 10 44232 -9 -II CP at 484. Matt did not want to provide his last name, but he did provide his telephone number. Matt, therefore, is classified as an unknown, but named, informant and cannot be characterized as an anonymous informant. Although Matt did not want to provide any additional personal information, he did provide significant corroborating information regarding the armed robbery of the KC Teriyaki The officers were aware that Choe had recently fired Emily for suspected stealing restaurant. and that she had brother an older who had " a drug problem." 1 RP at 22. Matt told officers that Nicholas was bragging about having recently robbed a Vancouver restaurant and that he frequently had knew of given away were was location, whom where he Matt the time officers Nicholas Mayer. called about as of were the robbery. also aware The officers were Matt stated that Nicholas had that approximately $ 800 had been Matt stated that Nicholas had a lot of cash on hand, restaurant. Thus, the information Matt provided corroborated information that the Additionally, Matt provided specific information as to Nicholas' s already knew. officers pickup unusual. armed at The a gun. taken from the KC Teriyaki which The police considered Nicholas and Emily to be possible Matt identified the individual he that the suspects recently Through their independent investigation, the officers possession. Nicholas. Emily' s brother, suspects. aware heroin in his was with, and what said it could type be located. of vehicle he was driving. The officers found the When the officers stopped the grey pickup, there were three occupants, including Nicholas and Baker. Malt' s reliable tip corroborated the information the police already possessed. The officers' stop did not violate Nicholas' s constitutional right to be free from unreasonable searches and seizures. We hold the trial court did not err by denying Nicholas' s motion to suppress. 11 44232 -9 -II NICHOLAS RECEIVED PROPER MIRANDA WARNINGS IV. Nicholas also argues the trial court erred by denying his motion to suppress his statements because the officer' s Miranda warnings did not properly apprise him of his right to an The officer read Nicholas his Miranda warnings and then explained the process to attorney. obtain attorney if Nicholas an could afford not one. We hold that the warnings Nicholas received satisfied Miranda and the trial court did not err by denying Nicholas' s motion to suppress his statements. When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the challenged findings of fact and whether the findings of fact support the conclusions of persuade a Garvin, 166 Wn.2d law. minded fair - quoting Reid, 98 Wn. appeal. person of App. Lohr, 164 Wn. pertaining to the App. the truth at 249. " Evidence is substantial when it is enough ` to of the stated premise. "' 418. We review de novo the trial court' s conclusions of law suppression of evidence. Garvin, 166 Wn.2d at 249. The Fifth Amendment to the United States Constitution be compelled in any criminal case Washington State Constitution give evidence against with that provided by to be states himself" Garvin, 166 Wn.2d at 249 Unchallenged findings of fact are considered verities on 156). at at a witness against that "[ states himself." that "[ n] o person ... shall Article I, section 9 of the n] o person shall be compelled in any criminal case to The protection provided by the state provision is coextensive the Fifth Amendment. State v. Unga, 165 Wn.2d 95, 100, 196 P. 3d 645 2008). Prior to any custodial interrogation, a suspect must be informed that " he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed 12 44232 -9 -II for him prior to any questioning." Ed. 2d 694 ( 1966). Although inform[]" the individual of his Miranda v. Arizona, 384 U. S. 436, 479, 86 S. Ct. 1602, 16 L. no magic words are required, rights. Miranda, 384 U. S. at Miranda 471. warnings must " clearly The Miranda warnings are not themselves rights protected by the Constitution but [ are] instead measures to insure that the right against self incrimination - compulsory [ is] Michigan v. Tucker, 417 U.S. 433, protected." 444, 94 S. Ct. 2357, 41 L. Ed. 2d 182 ( 1974). " Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably "` conve[ y] to [ a suspect] his rights as required by Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 ( 1989) Miranda. ' quoting California v. Prysock, 453 U.S. 355, 361, 101 S. Ct. 2806, 69 L. Ed. 2d 696 ( 1981)) alteration in original). In Duckworth, the officers told the suspect " that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had this right to the advice and presence of a lawyer even if [he could] not afford to hire one, and that he had the right to stop answering at any time until he] talked to omitted). lawyer." 492 U. S. at 203 ( alteration in original) ( internal quotation marks The officers then added " that they could not provide respondent with a lawyer, but that one would quotation a be appointed marks if omitted). and when you go to The Supreme Court court." stated Duckworth, 492 U. S. at 203 ( internal that "[ w]e think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel," and held that these initial warnings satisfied Miranda. Duckworth, 492 U. S. at 204 -05. 13 44232 -9 -II Here, the officers read Nicholas his Miranda warnings, and he waived his rights by stating, " Let' CP talk." s at 486. The officers then asked to record Nicholas' s interview, to which Nicholas agreed. Once the officers began recording, the following exchange occurred: DEPUTY DENNISON: Do I have your permission to record this Okay. statement? MR. MAYER: Yes. DEPUTY DENNISON: Miranda prior to it, but used against you and in a court of have him So Okay. that okay? You have the you again, lawyer now you ( inaudible). I read you your on recording, I' m going to read it to Anything you say can be we' re on right law. to remain silent. You have the right at this time to talk to a present with you while you are being If you questioned. cannot afford to hire a lawyer, one will be appointed to represent you before questioning if You can decide at any time to exercise these rights and you wish. any statements. any these rights as I' ve explained them to you? questions or make not answer MR. MAYER: Yes. Do you understand each of Um, If I wanted an attorney and I can' t afford one, what what would ? DEPUTY DENNISON: If you wanted an attorney you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn' t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again? MR. MAYER: Yeah, but how would that work? Will you be how it how I DEPUTY DENNISON: You' re not under arrest at this point, right? MR. MAYER: Oh, okay. Okay. DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you' d go before a. judge and then he would ask you whatever at that point, if you were being charged, you would be afforded an attorney if you couldn' t hi you know, if you weren' t able to afford one. MR. MAYER: All right. I understand. DEPUTY DENNISON: Understand? MR. MAYER: Yeah. DEPUTY DENNISON: Okay. So you do understand your rights? MR. MAYER: Yes. DEPUTY DENNISON: explain There to was us or a talk to robbery Keep your rights in mind. Do you want to all right, you know, I told you why you' re here. us about at the at KC Teriyaki and your name keeping your rights in mind, do you want to talk to us about it? MR. MAYER: Okay. 1 RP at 78 -80. 14 has come up. So, 44232 -9 -II In this case, like in Duckworth, Nicholas received Miranda warnings and then was also told the process to have an attorney appointed if he could not afford one. Deputy Dennison believed Nicholas' s question about an attorney pertained to how he could get an attorney if he could not afford one and that he did Dennison process the explained for not request an having an attorney attorney at that time. appointed. For this reason Deputy As the Duckworth Court noted, it is relatively common for a suspect to ask when and how he will obtain counsel if he cannot afford one. 492 U.S. at 204 -05. Thus, we hold that the warnings Nicholas received satisfied Miranda, and the trial court did not err by denying Nicholas' s motion to suppress his statements. V. STATE WITNESS' S TESTIMONY REGARDING PLEA BARGAIN DID NOT VIOLATE NICHOLAS' S RIGHT To HAVE A FAIR AND IMPARTIAL JURY BE THE SOLE JUDGE OF THE FACTS Nicholas argues the State improperly bolstered Emily' s credibility by questioning her about a condition of her plea bargain to testify truthfully. Nicholas argues that by allowing Emily' s testimony, the trial court violated his constitutional right to have the jury be the sole judge of the facts and to determine the credibility of witnesses. We hold that the State did not improperly vouch for Emily' s credibility by questioning her about the condition of her plea bargain to testify truthfully. Generally, the State cannot admit evidence that a witness has agreed to testify truthfully in its case in chief. State v. Ish, 170 Wn.2d 189, 198, 241 P. 3d 389 ( 2010). On redirect, however, the State may question its witness about an agreement to testify truthfully where the 15 44232 -9 -I1 defense first questioned the witness about the agreement on cross- examination.4 Ish, 170 Wn.2d at 198 -99. Here, a condition of Emily' s plea bargain was to testify truthfully in Nicholas' s trial. On cross -examination, Nicholas questioned Emily about reasons to doubt her credibility, including that she had received a plea says you' re supposed at 802 -03. to bargain. asked Emily, " And what you told them Nicholas specifically testify truthfully" and " according to the agreement earlier ?" 4B RP On redirect, the State questioned Emily about her plea bargain and her obligation under the plea bargain to testify truthfully. Because Nicholas questioned Emily about her plea bargain on cross -examination, he opened the door to this subject for redirect. Thus, the trial court did not err by allowing the State to question Emily on redirect about her obligation to testify truthfully. Nicholas was not denied his right to have the jury be the sole judge of witness credibility. VI. TRIAL COURT DID NOT ERR BY DENYING NICHOLAS' S MOTION To CONTINUE Nicholas argues he was denied effective assistance of counsel because the trial court denied his motion for a continuance of the trial date. We disagree and hold the trial court did not err and that Nicholas was not denied effective assistance of counsel. 4 A defendant may, however, impeach a witness on cross -examination by referencing any agreements or promises made by the State in exchange for the witness' s testimony. During such cross -examination, the agreement may be marked as an exhibit, but not necessarily admitted, and relevant portions may be disclosed to the jury. If the agreement contains provisions requiring the witness to give truthful testimony, the State is entitled to point out this fact on redirect if the defendant has previously attacked the witness' s credibility. Ish, 170 Wn.2d at 198 -99. 16 44232 -9 -II MOTION To CONTINUE A. We review a trial court' s decision to deny a continuance to determine if the trial court exercised Wn. App. its discretion based on untenable grounds or reasons. In re Dependency of V.R.R., 134 A court considers various factors when it decides a 573, 581, 141 P. 3d 85 ( 2006). motion to continue, including diligence, due process, the need for an orderly procedure, the possible effect on Wn. App. at the trial, and whether the court previously granted continuances. V.R. R., 134 To show that the, denial of a continuance violated the right to due process, the 581. defendant must show either that he was prejudiced by the denial or that the outcome would have been different if the continuance had been granted. V. R., R. 134 Wn. App. at 581. Nicholas argues he was prejudiced because his counsel received late DNA evidence and therefore did not have time to employ an expert to evaluate and counter the DNA evidence to a prepare defense. The record, however, does not support Nicholas' s assertion. Instead, the record demonstrates that Nicholas' s counsel was well prepared and made a strong case for him. Nicholas' s counsel extensively cross -examined the State' s DNA witness, questioning the DNA witness about, among other things, the DNA locations on a chromosome used to evaluate the DNA evidence; the collection, storage, and testing processes; the precautions taken to avoid contamination; and the statistical analysis performed. Nicholas fails to show prejudice and does not establish ineffective assistance of counsel. Thus, his due process argument fails. Further, Nicholas received the DNA evidence on September 24, but did not move for a continuance until the readiness hearing on October 4, four days before trial was set to begin. The trial court noted the " move to entire trial, continue which somewhat short on provision of until the readiness does have this evidence," but that Nicholas did not hearing, " which makes it very short notice to reschedule the a number of witnesses." 17 2 RP at 240. The trial court also stated 44232 -9 -II that it was familiar with a portion of the evidence from the CrR 3. 5 and CrR 3. 6 hearings and that the DNA evidence was not a central part of the State' s case and was not critical evidence. Thus, considering the importance of evidence, the timeframe of when the evidence was introduced and when Nicholas moved to continue, and that trial was set to begin in only four days, the trial court concluded that a continuance was not justified. In a similar case, our Supreme Court affirmed the trial court' s denial of the defendant' s motion to continue to obtain an expert witness. State v. Downing, 151 Wn.2d 265, 274, 87 P. 3d The court held that although the defendant was surprised and did act diligently to 1169 ( 2004). secure an expert, a continuance was unnecessary because the expert testimony would not change any material facts. minds reasonable 151 Wn.2d Downing, may differ, at 274. In so holding, the court stated: " While we cannot say that . the trial court' s determination that the maintenance of orderly procedure outweighed the reasons favoring a continuance, such as surprise and due diligence, was manifestly unreasonable." Downing, 151 Wn.2d at 274. Similarly, here, we determine that the DNA evidence was not central to the State' s case. Instead, the DNA evidence merely corroborated extensive witness testimony and Nicholas' s confession against the reasonable during his evidence minds interview at may issue after arrest. and concluded differ, The trial court weighed the timeline of events that a continuance was not necessary. Although we hold that the trial court' s decision was not manifestly unreasonable. We hold the trial court did not err by denying Nicholas' s motion to continue. 18 44232 -9 -II INEFFECTIVE ASSISTANCE OF COUNSEL B. To prove ineffective assistance of counsel, Nicholas must show that counsel' s performance was so deficient that it "fell below an objective standard of reasonableness" and that the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 1987) ( quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 1984)). There is a strong presumption that defense counsel' s performance was not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). Performance was not deficient if counsel' s conduct can be characterized as a legitimate trial strategy. State v. Kyllo, 166 Wn.2d 856, 863, 215 P. 3d 177 ( 2009). probability that the deficient at 226. We performance affected ineffective review To establish prejudice, the defendant must show a reasonable assistance the outcome of of counsel claims de the trial. novo. Thomas, 109 Wn.2d State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009). Nicholas' s counsel was well prepared and had a significant breadth of knowledge regarding DNA examined testing the State' s and DNA interpretation witness. of the results. Nicholas' s counsel extensively cross - Thus, Nicholas does not establish deficient performance. Furthermore, as we established above, the trial court' s denial of Nicholas motion to continue did not prejudice him. Having failed to meet both prongs of the test, Nicholas does not show that his counsel rendered ineffective assistance. 19 44232 -9 -II We affirm Nicholas' s convictions. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: T,../, j orgen, J. 20
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