State Of Washington, Respondent V. Thomas Roman, Appellant (Majority)
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FILED COU:E T OF APPE L DIVISION 11 STAA1 IN THE COURT OF APPEALS OF THE tbiLASSIVTR9ON STATE OF WASHINGTON DIVISION II D .:, tiTY No. 443 5 -2 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION THOMAS JOSEPH ROMAN, Appellant. Thomas Joseph Roman appeals his jury trial conviction for second degree HUNT, P. J. assault by strangulation. instruct the jury on He argues that ( 1) the trial court abused its discretion in refusing to the lesser degree offense of fourth degree assault, ( 2) the State violated his constitutional right to remain silent because Officer Derek Makein impermissibly testified about Roman' s exercise of his right to remain silent, and ( 3) defense counsel' s failure to object to Makein' s testimony constituted ineffective assistance of counsel. We affirm. FACTS I. ASSAULT Roman and Angela Roman' are husband and wife. On September 30, 2012, Angela asked Roman for the car keys; when he refused, she reached into his pocket for the keys. Roman grabbed her arm, bit her, and punched her in her chest, causing her to fall; at this point, Roman had Angela in " kind Angela stood up, of a headlock." she screamed for 2 Verbatim Report of Proceedings ( VRP) at 213. When help. Officer Derek Makein, who was patrolling in the area, To avoid confusion, we refer to Thomas Roman as " Roman" and Angela Roman as " Angela." We intend no disrespect. No. 44325 -2 -II heard her Roman, held screams who was onto stars, and her left that of " help holding 1 VRP a child. arm, punched she also drove toward the sound of screams, and found Angela and me," her at several had injuries to her Angela told Makein that Roman had bitten and 58. times, chest. her neck, causing her to see and " squeeze[ ed]" 1 VRP at 85. Makein noticed Angela putting her hand near her chest, appearing in distress; he also saw a fresh bite mark on her arm. Makein arrested Roman. II. PROCEDURE. The State charged Roman with second -degree assault by strangulation under RCW 9A.36. 021( 1)( g), with a special domestic violence At Roman' s jury trial, hospital allegation. emergency room physician' s assistant Gary Bilodeau testified that on September 30, 2012, he had examined Angela and prepared her medical records. Angela said that Roman had bitten her, hit her, thrown her to the Angela' s physical ground, and choked her so that she examination revealed petechia ( broken had "[ blood seen] vessels) stars." 1 VRP at 40. in her cheeks, some redness and swelling on her throat, a bite mark on her left wrist, and bruising in several areas. Bilodeau examined because Angela Angela' s neck, noticed redness on complained of difficulty the front swallowing. of it, CAT2 and ordered a scan The CAT scan results revealed that Angela had a thyroid cartilage fracture and significant soft tissue edema in her neck, injuries consistent with strangulation. Bilodeau also testified that strangulation can cause petechia to the face. In addition to the facts previously set forth, Officer Makein testified that as he approached the couple, he noted a strong odor of alcohol emanating from Roman. When Makein 2 A CAT scan refers to a computed tomography scan that uses x ray technology to take multiple cross -sectional views inside the body. 2 No. 44325 -2 -II first made contact" Roman, Roman with guy ?" and Makein inferred from Roman' 73, 74. Makein, "[ s conduct A]re you profiling me because I' m a that he was going to not cooperate. 1 VRP at Makein advised Roman that he was under arrest for domestic violence assault and read Roman his want asked Miranda3 rights. to talk to Makein. Roman " 1 VRP at clammed 73. up," asked for an attorney, and said he did not Defense counsel did not object to Officer Makein' s testimony about Roman' s exercise of his right to remain silent. After placing Roman in the police car, Makein went back to talk to Angela to continue his investigation to and make sure Angela received medical Angela repeated her treatment. earlier gesture of touching her upper chest and collarbone area, which Makein took as signs of additional injuries. Makein also noticed that Angela began coughing more as the conversation progressed and said, " My I' m throat hurts. having difficulty breathing." 1 VRP at 84. Angela also told Makein that Roman had come up behind her with his arm around her neck and squeezed her neck, causing her to " see ... stars" and to have problems breathing. 1 VRP at 85. In addition to the facts previously set forth, Angela testified that when she looked at her bitten hand, she saw really realized she could not had told Makein there deep turn her was teeth marks neck and in it and noticed that it hurt to something wrong with her it was red and swollen. swallow or neck and to open throat. her mouth. She also And she She did not, however, remember telling Makein that she had been choked or strangled. But Angela further testified that the pain in her throat lasted five weeks and it was painful to yawn, to stretch, or turn her neck. 3 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 3 No. 44325 -2 -II he had been Roman testified that ( 1) incident; ( 2) when Angela tried to grab 4 drinking the car keys and was " impaired " at the time of the from him, he " gave her a stiff arm in the chest. She was approaching [ him] as [ he] put [ his] arm out, so [ he] got her pretty good one in the 5; ( chest with a stiff arm " her arm" 7 stance," and 3) as Angela continued trying to grab the keys, he " put [ his] mouth on bit her, but " didn' t break the 6; ( skin, " 4) Angela then " knocked [ him] off [his] he started to fall, so he grabbed onto Angela; and ( 5) he had been holding onto their child the whole time. In response to questions about choking Angela, Roman replied, When [ Angela] came at me I wasn' t looking at her, so I put my arm up like this, I had her it shoulder, and at one point kind I came of a down and I headlock, but I almost wasn' fell. I guess you could consider you know I t was I was told I had choked her out, and I thought it was like a big time wrestler . sing two hands u to choke someone. 2 VRP at 213. When asked if he had ever had his hands around Angela' s neck, Roman replied, No, I never choked her, punched her, kicked her or kneed her. I didn' t do any of those things. I was an ass, but I didn' t do those things." Defense counsel requested a 2 VRP at 221. jury instruction on fourth degree assault. The trial court expressed concern about giving this instruction because Roman was charged with second degree assault by strangulation, not fourth degree assault. request, the trial court noted: 42 VRP at169. 52 VRP at180. 62VRPat183. 72 VRP at184. 4 2 VRP at 239. In denying defense counsel' s No. 44325 -2 -II But if I give a lesser included of Assault 4, it seems to me that I' m inviting the jury as a compromised verdict to say I' m not convinced beyond a reasonable doubt that the State has proven that he actually strangled her, but there' s no question that he actually assaulted her, because he punched her, assuming you believe her, he pushed her down and he did get her in a headlock, and that' s the quandary that I have there, so you are in essence by asking for a lesser included. You are inviting the jury to compromise a verdict, where we have this specific charge. 2 VRP at 242. The jury found Roman guilty of second degree assault by strangulation and returned a special verdict of aggravated domestic violence. The trial court sentenced Roman to 6 months in prison with credit for 70 days served. Roman appeals. ANALYSIS I. LESSER DEGREE OFFENSE INSTRUCTION Roman argues that the trial court abused its discretion and prejudiced his case when it to instruct the refused jury on the lesser offense of fourth degree assault. Holding that»the evidence did not support that Roman committed only fourth degree assault, we disagree. We review a trial court' s refusal to give a lesser included offense instruction for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771 - 72, 966 P. 2d 883 ( 1998). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or State reasons. v. ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971). Both the defendant and the State have a statutory right to have supportable inferior degree offenses presented to the jury. 10. 61. 006, 10. 61. 003. if "( 1) State v. Stevens, 158 Wn.2d 304, 310, 143 P. 3d 817 ( 2006); see RCW A defendant is entitled to a jury instruction on an inferior degree offense the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense; ( 2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and ( 3) there is evidence that 5 No. 44325 -2 -II the defendant committed only the inferior 448, 454, 6 P. 3d 1150 ( 2000) ( internal State v. Fernandez- Medina, 141 Wn.2d offense.' quotation marks omitted) ( quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P. 2d 381 ( 1997)). Here, the parties dispute only the third prong of this test, which is a factual question asking whether the evidence raises an inference and affirmatively establishes the defendant' s theory that he committed only the inferior degree offense, to the exclusion of the charged Fernandez- Medina, 141 Wn.2d offense. at 455. To convict Roman of second degree assault by strangulation8, the State had to prove beyond a reasonable doubt that Roman assaulted Angela by strangulation, under circumstances not amounting to first degree assault. RCW 9A.36. 021( g). Strangulation" means to compress a person' s neck, thereby obstructing the person' s blood flow or ability to breathe, or doing so with the intent to obstruct the person' s blood flow or ability to breathe. RCW 9A.04. 110( 26). assault not In contrast, fourth degree assault, a gross misdemeanor, is an amounting to first degree, second degree, third degree, or custodial assault. RCW 9A.36. 041. Here, the overwhelming evidence of Roman' s strangulation of Angela and her resulting injuries does not support Roman' s theory that he committed only the inferior degree offense of fourth degree supports the assault. Fernandez- Medina, 141 Wn.2d jury' s finding Roman guilty of second at degree 455. On the contrary, the evidence assault by strangulation: ( 1) At the crime scene, Angela had told Makein that Roman had " com[ e] behind her with his arm around 8 RCW 9A.36. 021 provides, in pertinent part: 1) A person is guilty of assault in the second degree circumstances not amounting to assault in the first degree:.. . g) Assaults another by strangulation or suffocation. Emphasis added.) 6 if he or she, under No. 44325 -2 -II her neck and squeeze[ ed] her neck," 1 VRP at 85, and Makein had noticed signs of strangulation, including her incessant coughing and her complaints about difficulty breathing and throat pains; 2) at the hospital soon thereafter, Angela had also told hospital physician' s assistant, Bilodeau, that Roman had front of her choked her; ( 3) Bilodeau' s examination of Angela had revealed redness on the neck and petechia on her cheeks, which had likely been caused by strangulation; ( 4) Bilodeau had ordered a CAT scan, which showed that Angela had a thyroid cartilage fracture and substantial soft tissue edema in her neck, injuries consistent with strangulation; ( 5) Angela had testified about the pain in her throat that had lasted five weeks after the incident and that it had been painful to yawn, to stretch, or to turn her neck; and ( 6) Roman had admitted at trial that " at one point" he had Angela in " kind of a headlock." 2 VRP at 213. The evidence did not support that Roman committed only simple fourth degree assault, which could not have encompassed the severe injuries that Angela suffered here from Roman' s squeezing her neck or headlock, both synonymous with strangulation under the facts of this case. See RCW 9A.36. 041. We hold, therefore, that the trial court did not abuse its discretion in concluding that the evidence did not support an inferior degree instruction and in refusing Roman' s requested instruction. II. COMMENT ON SILENCE Roman next argues that Makein' s testimony about Roman' s silence at the scene and about Roman' s pre -arrest and post- arrest statements violated his constitutional right to remain silent. The State counters that ( 1) Makein' s testimony was not a comment on Roman' s exercise of his right to silence; and ( 2) even if it were such a comment, it was harmless error. Assuming, without deciding, that Makein' s testimony was an impermissible comment on Roman' s exercise 7 No. 44325 -2 -II of his constitutional right to remain silent, we hold that any such error was harmless beyond a reasonable doubt. The State bears the burden of showing that a constitutional error was harmless beyond a reasonable 138 Wn. doubt. State App v. Easter, 130 Wn.2d 228, 242, 922 P. 2d 1285 ( 1996); 343, 347, 156 P. 3d 955 ( 2007). State v. Pottorff, We will find constitutional error harmless if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result absent the error, and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. Easter, 130 Wn.2d at 242. Such is the case here. Roman challenges the following testimony about his pre -arrest and post -arrest silence and statements: STATE:] Now, you didn' t have him do any of those [ sobriety tests], did you? sir. Once he was I advised him he' s under arrest for OFFICER MAKEIN;] No domestic attorney. I violence assault, read him [ Miranda]. He clammed up, said I want my I don' t want to talk to you, so for me once he says anything like that after I read [ Miranda] I don' t ask him anything else. STATE:] Describe for me when you first made contact with him how is his demeanor? I would have to say defiant, probably the best word OFFICER MAKEIN:] because tried to after he explain made the to him, statement, are you no. profiling me because I' m a guy? I I' m just making sure everybody is safe, making sure I' m safe, but for him once he made that statement it was clear that he wasn' t going to cooperate. investigation He wasn' t going to really do anything to assist with the information that we need. His demeanor was basically I or provide was pissing him off, because I determined it was a crime that occurred against his wife and put him in custody. STATE:] After the defendant is taken into custody, what did you do? OFFICER MAKEIN:] Of course pat him down for weapons, put him in the backseat of my car, read him [ Miranda]. He doesn' t want to talk, so I left him in the car, continued my investigation to make sure that the victim gets medical treatment, have her evaluated and that' s what I did. 1 VRP at 73 -75. 8 No. 44325 -2 -II Absent Makein' s comments, the jury would still have reached the same verdict, finding Roman guilty choke[ d]" of second degree assault by strangulation. First, despite denying having Angela, Roman admitted to the jury at trial that he had her in " kind of a headlock" at one point." 2 VRP at 213. Second, the undisputed evidence about the nature and severity of Angela' s injuries from Roman' s headlock included Bilodeau' s testimony about redness on the front of her neck and throat, petechia on Angela' s cheeks that was likely caused by strangulation, the CAT scan results showing Angela' s thyroid cartilage fracture and substantial soft tissue in her edema neck ( symptoms also consistent Bilodeau that Roman " choked" her. 1 VRP at 39. with strangulation), and Angela' s report to Also undisputed was Makein' s testimony that Angela had coughed incessantly when he spoke with her, that she had difficulty breathing, and that she told him Roman had " squeeze[ ed]" her neck. 1 VRP at 85. Angela testified that she had pain in her throat that had lasted five weeks after the incident and that it was painful to yawn, to stretch, or to turn her neck. The overwhelming uncontroverted evidence about Angela' s cheek petechia, neck and throat injuries, and breathing these injuries to Roman' s having had her in " kind difficulties was consistent with strangulation. Angela attributed 9 having " squeez[ ed] " her neck; and even Roman himself admitted to of a headlock." 2 VRP at 213. Based on this evidence, a reasonable jury would have convicted Roman of second degree assault by strangulation even absent Makein' s testimony about Roman' s silence. Accordingly, we hold that any error was harmless beyond a reasonable doubt and, thus, does not warrant reversal of Roman' s conviction. 91 VRP at85. No. 44325 -2 -II III. EFFECTIVE ASSISTANCE OF COUNSEL Roman last argues. that his trial counsel rendered ineffective assistance in failing to object to Makein' s comment on his ( Roman' s) right to remain silent. This argument also fails. To prevail on an ineffective assistance of counsel claim, a defendant must show both deficient performance and resulting prejudice; failure to show either prong defeats such claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002). To establish prejudice, a defendant must show that but for counsel' s unprofessional errors, the result of the proceeding would have been different. 1984). Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 For the same reasons that we hold Makein' s comments about Roman' s silence to have been harmless error, we also hold that Roman does not show that his counsel' s failure to object to this testimony prejudiced him. Thus, Roman' s ineffective assistance challenge fails on this second prong alone, and we need not address the deficient performance prong of the test. We affirm. 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: 10
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