State Of Washington, Respondent V. Roy Miller, Appellant (Majority)
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DIVISION II OA JUN 24 iOTCJ 1 2 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO DIVISION II No. 44268 -0 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION ROY EUGENE MILLER, Appellant. LEE, J. A jury convicted Roy Eugene Miller of second degree assault with a deadly weapon enhancement, a also convicted trial court Miller firearm enhancement, and a of possession of a improperly dangerous excluded evidence that the domestic weapon. violence enhancement. The jury Miller appeals arguing that ( 1) the victim was a drug dealer, ( 2) the prosecutor committed misconduct, and ( 3) he received ineffective assistance of counsel. We affirm Miller' s convictions. FACTS Miller and Rachel Robinson lived together for several years and have a son in common. After their relationship ended, Robinson moved out of the house and their son continued to live with Miller. But, Robinson went to Miller' s house almost every day to see her son. On July 13, 2012, Robinson him up the was at Miller' next afternoon. stating that if she came s house. She put her son to bed and made plans to come and pick The next morning, Robinson received a text message from Miller to the house she would leave in an ambulance. In the late 9: OS afternoon, No. 44268 -0 -II Robinson to the house to went pick up her She went into the .yard and began son as planned. picking berries while she waited to see if her son would come out to meet her. After a few minutes, Miller came running out toward her holding a large pipe. When Robinson saw Miller, she opened the pocketknife she was carrying and swung it at Miller causing a superficial cut on his arm. Miller hit Robinson three times with the pipe: once on her left hand, once on her left hip, and once across her shoulder blade. After Miller hit Robinson on the shoulder pointed it at ribcage and blade, the responded fell onto Robinson. Miller left her Miller' s called she lying neighbor police. to the 1A RP call. on the stated, " the I ground. heard the at ground. Then Miller pulled a gun from his waistband, and should just finish you off now," stomped on Robinson' s 1 A Report of Proceedings ( RP) at 62. argument. When he heard a male voice yell, " Die, bitch," he 47. Kalama Police Officer Jeff Skeie and Sergeant Stephen Parker When Skeie arrived on the scene, he secured several weapons in Miller' s immediate possession: the gun, an illegal spring blade knife, a pocket knife, and a " Leatherman" knife tool. 1A RP at 134. After speaking with Miller and Robinson, Parker arrested Miller. The State charged Miller with second degree assault with a firearm enhancement and a deadly weapon enhancement. The State also charged Miller with unlawful possession of a dangerous weapon. Prior to trial, the State moved to exclude evidence related to Robinson using or selling drugs. not want Miller argued that the evidence was relevant because it explained why he did Robinson in the house and why he had ruling: 2 a gun. The trial court made the following No. 44268 -0 -II I can see where, potentially, this is relevant in a very narrow perspective his belief that of she' s involved in illegal activity. an Uh, and that so that it doesn' t cast dispurgeon [ sic] on him of, as you say of why he would not want her The problem is, now we' re looking at this great big open door to, you really doing it or not? And, that' s where I' m having some real problems with going down this path of trying a case about a drug deal because there. know, that' was she s not what we' re if there' that here for. Uh, it' s about an assault that took place, and, if um restricted manner that way to fashion this in a very narrow his belief, then I could see where that I, you know, may be willing to s some was allow that. But, anything else that starts opening this great big door, you know, if that' s his belief and that' s what he told her and that' s why he told her, then it could be for a very limited purpose. So All I right. I do find there is at least some relevance, although very will limited, and, you know, essentially we' re going to have to see how this evolves. But, if this starts evolving into a trial about a drug deal, I' m going to stop it right there, because that' s going down the road that' s not relevant. That' s a separate Uh, and, as long as it continues to be tied in and we' re not opening, as I said, this door to try a separate incident I will allow it. But, it s going to have to be kept very narrow, and if it' s not then I it' action that is not at the heart of this case. expect the objections and I will rule on it at that time. Okay. 1A RP at 27, 30. During trial, Miller did not attempt to introduce any evidence about Robinson doing or selling drugs. At trial, Robinson testified to the facts stated above. She also explained that she went to the house, even after Miller told her not to, because he would often send her angry messages but be fine knife by with the time she arrived at her for her the house to see her son. She also stated that she brought the During cross -examination, Robinson testified that Miller own protection. had assaulted her in the past. Miller testified to Miller' s account of support the incident backyard eating berries when his claim of self defense and was he first similar saw her. to Robinson' s. lawful use of force. Generally, He agreed that she was in the But, Miller testified that he did not pick up the 3 No. 44268 -0 -II pipe until he was outside, and he did not raise or swing the pipe until after Robinson attacked him with the knife. and each time he testified that he Miller testified that Robinson tried to stab him with the knife several times responded with never the pipe to keep her from stabbing threatened Robinson with the gun. or cutting him. He also Rather, he testified that during the struggle with Robinson, the gun fell out of his waistband. When the gun hit the ground, a round jammed in the chamber. While he was trying to clear the gun, Robinson began to get up, so Miller put his foot on her shoulder, pushed her back down, and told her to stay on the ground. The jury found Miller guilty of second degree assault and possession of a dangerous weapon. The jury firearm, ( 2) Miller also entered was three special verdict armed with a deadly forms weapon ( the finding: ( 1) pipe), Miller was armed with a and ( 3) Miller and Robinson were household or family members. Miller appeals. ANALYSIS A. EXCLUSION OF EVIDENCE Miller argues that the trial court erred by excluding evidence of Robinson' s drug use. Miller' s argument involved in limited to doing evidence is frivolous. or The trial court did not exclude all evidence that Robinson was selling drugs. that was relevant Rather, the trial court ruled that any evidence would be to the issues in the case. And, the trial court was clear that it would not permit Miller to turn the trial into a trial about whether Robinson actually did or sold drugs. However, these ruling did not preclude Miller from asking Robinson directly about her alleged drug use, or from presenting evidence to impeach her if she denied it. Further, the ruling did not exclude Miller from testifying about his personal knowledge about Robinson' s involvement in doing or selling drugs and how that related to his beliefs and actions at the time 4 No. 44268 -0 -II of Accordingly, the trial court did not exclude evidence that prevented Miller from the incident. presenting his defense and Miller' s argument fails. 1 B. PROSECUTORIAL MISCONDUCT Miller argues that the prosecutor committed misconduct by introducing improper opinion testimony during its redirect examination of Sergeant Parker. Miller did not object to the question or answer. Here, he has failed to meet the high burden imposed when a defendant fails to object to alleged prosecutorial misconduct. To prevail on a prosecutor' s conduct was prosecutorial improper a defendant must show that the claim, misconduct State v. Thorgerson, 172 Wn.2d 438, 442, and prejudicial. To show prejudice, a defendant must show a substantial likelihood that the 258 P. 3d 43 ( 2011). misconduct affected the verdict. Thorgerson, 172 Wn.2d at 442 -43. A defendant who fails to object to the prosecutor' s improper act at trial waives any error, unless the act was so flagrant and ill intentioned that 172 Wn.2d at 443. an instruction could not have cured the resulting prejudice. Thorgerson, The focus of this inquiry is more on whether the resulting prejudice could have been cured, rather than the flagrant or ill-intentioned nature of the remark. State v. Emery, 174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012). 1 In his issue statement, Miller also asserts that the trial court erred " when it refused to allow the defense to elicit the fact that the complaining witness had not told the police that the defendant had threatened her with a gun." assertion with argument or Bosley, any 118 Wn.2d 801, unsupported by citation to Br. of Appellant authority. at 1. RAP 10. 3( a)( However, Miller fails to support this 6); Cowiche Canyon Conservancy v. 809, 828 P. 2d 549 ( 1992) ( we do not consider issues that are argument or authority). 5 We do not address the issue any further. No. 44268 -0 -II Here, Miller points to one specific incident of alleged prosecutorial misconduct that occurred during the prosecutor' s redirect examination of Sergeant Parker: STATE]: Um, why didn' t you arrest Rachel Robinson? PARKER] : Well, as far as the assault, we didn' t believe that she was the primary physical aggressor. lA RP at 193. inadmissible Miller argues that the prosecutor' s question was improper because it elicited opinion testimony. Even assuming, without deciding, that the question was improper, Miller has failed to meet his burden to show prejudice. If Miller had objected, the jury could have been instructed to disregard Sergeant Parker' s answer. We assume that juries 158, 166, 659 P. 2d 1102 ( 1983). will follow the court' s instructions. State v. Weber, 99 Wn.2d Therefore, if the jury had been instructed to disregard Parker' s opinion that Robinson was not the primary aggressor, any prejudice from the comment would have been cured. Because a jury instruction could have cured the prejudice, Miller has failed to meet his burden to prove prosecutorial misconduct. C. INEFFECTIVE ASSISTANCE OF COUNSEL We review ineffective assistance Wn.2d 870, 883, 204 P. 3d 916 ( 2009). of counsel claims de novo. State v. Sutherby, 165 A defendant claiming ineffective assistance of counsel has the burden to establish that ( 1) counsel' s performance was deficient and ( 2) the performance prejudiced the defendant' 80 L. Ed. 2d 674 ( 1984). s case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, Failure to establish either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700. 6 No. 44268 -0 -II Counsel' reasonableness. counsel' s performance s State v. performance is deficient if it falls below an objective Stenson, 132 Wn. 2d 668, 705, 940 P. 2d 1239 ( 1997). is highly deferential; we strongly McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). presume standard of Our scrutiny of reasonableness. State v. To rebut this presumption, a defendant bears the burden of establishing the absence of any legitimate trial tactic explaining counsel' s performance. State Grier, 171 Wn. 2d 17, 33, 246 P. 3d 1260 ( 2011). v. Here, Miller cannot meet his burden to show the absence of any legitimate trial tactic explaining defense counsel' s decision not to ask the trial court to strike Robinson' s references to prior abuse by the defendant. Miller asserts that he received ineffective assistance of counsel because his defense counsel did not ask the trial court to instruct the jury to disregard several of Robinson' s nonresponsive Robinson' answers regarding by prior assaults the defendant. inadmissible propensity s comments were evidence. Specifically, he argues that However, as the State correctly points out, the question currently before this court is not whether Robinson' s statements were admissible under ER 404( b), but rather whether Miller can meet his burden to show ineffective assistance of counsel on appeal. During Miller' s cross -examination of Robinson, the following four exchanges took place: DEFENSE]: So, why do you think you needed a knife that time? Because me and him got in fights. I know how he is. I' ve put up ROBINSON]: with him hitting me upside the head and my ear bleeding. I mean, he' s pulled his gun on me fought back in front of our previous son. times, too. that he This is just him, I mean, he' s and yeah, I' ve And this time I felt a little bit better and he also Giving my car key away, my spare car key, and the X - ox, the Wii, he said he was, you know, B giving getting rid of all my stuff. Giving it away to someone who despises me. was telling me was getting giving my stuff away. And I have no idea who that was. DEFENSE] : And so you took the knife there to stab him? 7 No. 44268 -0 -I1 You said you hadn' t really paid attention to that gun before? Oh, I got it pulled on me so many times, it' s not that I don' t pay DEFENSE]: ROBINSON]: attention to it. I kind of got used to him pulling a gun on me. DEFENSE] : Are you aware that he has some physical limitations? ROBINSON]: What do you mean by that? Physical limitations? DEFENSE]: Bad back, a bad left arm? ROBINSON]: DEFENSE]: Yeah, that' s never stopped him before from beating on me. Okay, that wasn' t really my question. My question was you' re aware that he has the bad back? DEFENSE] : You weren' t trying to set [ Miller] up were you? No, I wasn' t. I' ve never done that. If that was the case, I would ROBINSON]: All the twenty, thirty other times he' s beat on me. have done it a That I my intention did not. The neighbors called that I don' t talk to, I was not long don' t talk to his time ago. Miller], the way he know, who called I wanted to get arrested because I was afraid of neighbors. the would react, cops? I mean, and I asked Officer Skeie, who you And he said the neighbor. 1 A RP at 86, 88, 93, 95. Miller' s defense was primarily that Robinson was the primary physical aggressor and that he in acted Robinson' s defense. self - answers Miller also argued that Robinson set him up to get him arrested. during cross -examination could actually support Miller' s theories. For example, Miller implied that it was not plausible that Robinson would have gone to Miller' s house if she was legitimately afraid of being assaulted, and therefore, she went there to attack Miller. and get Further, if Miller had repeatedly assaulted her, she would have a motive to set him up him performance arrested. in this case. There are legitimate trial tactics that explain defense counsel' s Because Miller has failed to show the absence of any legitimate trial tactic, he cannot show his defense counsel' s performance was deficient, and his ineffective assistance of counsel claim must fail. 8 No. 44268 -0 -II 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: 9
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