Leach, A.C.J.
Ryan Raynard Jackson appeals his conviction for attempted robbery in the first degree. Jackson claims the police unlawfully seized him in violation of the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. He challenges the sufficiency of the evidence to support his conviction and claims the trial court abused its discretion in admitting certain evidence while excluding other evidence. Jackson further alleges that the trial court failed to properly instruct the jury about unanimity, demeaned his counsel in front of the jury, and erred by denying his motion for a mistrial. Alternatively, Jackson asserts his counsel was ineffective for failing to object to testimony, for failing to challenge his seizure as unlawful, and for failing to request a limiting instruction for ER 404(b) evidence. Jackson also alleges prosecutor misconduct. Finally, in a pro se statement of additional grounds, Jackson contends the trial court failed to follow the proper procedures for protecting his right not to be tried while incompetent. Because none of Jackson's claims warrant appellate relief, we affirm.
The State charged Ryan Jackson with one count of attempted robbery in the first degree. The following facts are taken from the testimony presented at trial.
On September 19, 2009, at about 1:30 in the morning, two men approached Kelly Crithfield and Jerry Little as they were walking to Crithfield's apartment. One of the approaching men asked, "How's it going?" before asking for money. When Crithfield informed the man he did not have any money, the man stopped walking alongside Crithfield and Little. But a few seconds later, the man returned, pointed a handgun at Crithfield's stomach, and demanded items from Little. Crithfield froze, and Little ran into the middle of the street, yelling for help. The man with the gun turned, walked to a car in the middle of the street, entered the passenger side door, and left.
Crithfield called 911 and reported the incident. Officer Billman responded and took statements from Crithfield and Little. Based on the description of the assailants Crithfield and Little provided, Billman transmitted that the assailants were "[t]wo black males about 30 years of age." Crithfield and Little described the one with the firearm as "the smaller of the two" and wearing "a blue and white striped shirt with blue Dickie-type pants."
After Billman left to patrol, Crithfield and Little continued walking to Crithfield's apartment. Little observed two men resembling their assailants walking near Crithfield's apartment steps. Crithfield observed the men from behind and recognized one of them as the man who tried to rob them. Crithfield again called the police, and the dispatcher recommended that they get off the street. Crithfield went inside his apartment, and Little drove home.
About one-half hour later, Billman came upon a group of four to five males standing in an alleyway. One of the men matched the description provided by Crithfield. Billman exited his car, identified himself, and asked to speak to a man wearing a blue-and-white patterned shirt. The suspect, Jackson, then turned and attempted to walk away. Billman told him that he could not leave and began interviewing people in the group. Officer Spencer was also present, and in a pat down search of Jackson, he located a realistic-looking CO2-powered BB gun.
Shortly after Crithfield returned to his apartment, he received a call from a police dispatcher, telling him that an officer outside was ready to drive him to a nearby location to identify a possible suspect in the attempted robbery. The officer drove Crithfield to a location six blocks away where Spencer and Billman had detained Jackson. Spencer asked Crithfield whether he recognized the detained man. Crithfield identified Jackson as the man who tried to rob him. Crithfield also identified Jackson at trial. Although Little identified Jackson at trial, he could no longer recall what the defendant was wearing on the night of the incident.
The jury convicted Jackson as charged. He appeals.
Jackson argues that Officer Billman unlawfully seized him in violation of the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. Jackson further alleges that the unconstitutional seizure requires suppression of all the evidence obtained after the seizure occurred. We review claims of unlawful seizures de novo.
Preliminarily, we note that Jackson failed to raise the suppression issue in the trial court. Generally, a failure to move in the trial court to suppress improperly obtained evidence waives the right to raise the issue on appeal.
Generally, a warrantless seizure is per se unreasonable under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution.
To justify a
Here, Billman had sufficient facts to form a reasonable, articulable suspicion that Jackson attempted to rob Crithfield and Little. Billman arrived shortly after Crithfield reported the incident, took statements from Crithfield and Little, and only a short time later, he identified a suspect six blocks from Crithfield's apartment matching the description of the assailant. Under the totality of these circumstances, we hold that Billman acted reasonably when he stopped Jackson. Therefore, Jackson's claim of a manifest error fails.
Emphasizing minor discrepancies in witness testimony, Jackson challenges the sufficiency of the evidence to support his attempted first-degree robbery conviction. In a sufficiency challenge, we view the evidence in the light most favorable to the State and decide whether any rational trier of fact could have found guilt beyond a reasonable doubt.
The State charged Jackson with attempted first-degree robbery. To convict Jackson as charged, the court instructed the jury that it had to unanimously agree beyond a reasonable doubt
Despite the alleged incongruities in the testimony at trial, sufficient evidence supports Jackson's conviction. Crithfield and Little both testified that they were walking home from a bar in Tacoma when they were approached by two men. One man asked them for money, their wallets, and jewelry and brandished what appeared to be a firearm. Little then ran into the street yelling for help, while Crithfield dialed 911. Later, when Billman and Spencer detained Jackson, Spencer found a realistic-looking CO2-powered BB gun on him. Another officer drove Crithfield to Jackson's location, where Crithfield positively identified Jackson as the man who tried to rob him. Crithfield and Little also positively identified Jackson as their assailant at trial.
We conclude that a rational trier of fact could have found each element of the charged offense beyond a reasonable doubt from this evidence. Jackson's sufficiency challenge therefore fails.
Jackson claims the trial court abused its discretion in admitting certain evidence while excluding other evidence. We review the trial court's admission or exclusion of evidence under an abuse of discretion standard.
First, Jackson claims that the trial court erred in excluding Crithfield's and Little's written statements as inadmissible hearsay. Jackson argues that the statements were not hearsay because they were not offered to prove the truth of the matter asserted in them. Instead, they were offered as prior inconsistent statements, under ER 801(d)(i), to challenge Crithfield's and Little's credibility.
Whether a statement is hearsay is a question of law we review de novo.
Contrary to Jackson's claim, ER 801(d)(i) does not apply because Crithfield and Little did not provide their written statements under oath subject to penalty of perjury. Moreover, Jackson failed to show any inconsistency between the written statements and Crithfield's and Little's trial testimony. Thus, the trial court did not abuse its discretion by refusing to admit the written statements.
Next, Jackson argues that the trial court improperly allowed Officer Spencer to refresh his recollection during his testimony by reviewing Crithfield's written statement.
ER 612 governs the use of a writing to refresh the memory of a witness. To refresh a witness's memory under this rule, the trial court must determine that (1) the witness's memory needs refreshing, (2) opposing counsel has had the opportunity to inspect the writing, and (3) the trial court is satisfied that the witness is not being coached and is using the writing to aid rather than supplant his or her own recollection.
Assuming, without deciding, that Jackson's characterization of the record is correct, ER 612 does not help him. Jackson cites no authority for the proposition that the writing must have been prepared by the witness. Contrary to Jackson's assertion, "writings prepared by others may be used so long as the other requirements of [ER 612] are met."
Next, Jackson claims that the trial court erroneously admitted hearsay when it allowed Billman to (1) consult his incident report before testifying that Jackson had a beer can on his person and (2) read the computer assistance dispatch (CAD) logs
Although Jackson contends the State failed to follow the proper procedure to refresh Billman's memory, the questions asked and answered demonstrate sufficient compliance with ER 612. Without reviewing these documents, Billman did not recall whether Jackson possessed a beer can or the exact time he contacted Crithfield and Jackson. It is also evident that the trial court was satisfied that the witness was not being coached. Furthermore, defense counsel had an opportunity to examine the writings and cross-examine Billman regarding them. Because the requirements of ER 612 were met, we find no error.
Next, Jackson challenges the admissibility of testimony from Robert Ochoa about a crime different from the one charged. Ochoa testified that he and James Tucker were also approached by Jackson. According to Ochoa, Jackson asked for a cigarette, and when Ochoa gave him one, the BB gun became exposed while Jackson looked for a lighter. Jackson put the gun back in his belt and tried to explain that a misunderstanding existed about the weapon. Jackson then asked for some change, which Ochoa gave him. Ochoa testified that he would have given Jackson money even without the display of the gun "just to move on with my evening."
Jackson contends that the trial court's admission of this testimony over objection violated ER 404(b) because the trial court failed to conduct a balancing test on the record.
We agree that the trial court erred. However, the erroneous admission of ER 404(b) evidence is harmless absent a reasonable probability that the error materially affected the outcome of the trial.
Jackson claims that his counsel provided ineffective assistance for several reasons. None have merit.
Claims of ineffective assistance involve mixed questions of fact and law we review de novo.
Jackson alleges deficient representation based on trial counsel's failure to object to the following testimony from Crithfield:
According to Jackson, the prosecutor should have asked Crithfield what the assailant looked like, not what he believed he told the police at the time of the incident. This, Crithfield argues, is "unmitigated hearsay."
But "[a] statement is not hearsay if it is used only to show the effect on the listener, without regard to the truth of the statement."
Next, Jackson complains that his counsel failed to object to Officer Spencer's testimony regarding Ochoa's and Tucker's identification of Jackson. But again, Jackson fails to establish prejudice. Without this testimony from Spencer, the outcome of the trial is not likely to have been any different.
Jackson also argues that Spencer's testimony violated his right to confront witnesses against him under
Finally, Jackson complains that his counsel failed to request a limiting instruction for Ochoa's ER 404(b) testimony. But as explained above, Jackson cannot establish prejudice from the admission of Ochoa's testimony. Absent prejudice, we find no reversible error.
Jackson contends that the trial court violated his constitutional right to a unanimous jury by failing to give a unanimity instruction. Specifically, he contends the evidence presented and the State's closing argument allowed the jury to rely on Jackson's contact with Ochoa instead of his contact with Crithfield and Little to convict him of attempted robbery in the first degree.
When the State alleges multiple acts, any one of which could constitute the crime charged, the jury must unanimously agree on which incident constituted the crime.
In this case, the State charged and presented evidence of a single incident of attempted first-degree robbery. Crithfield and Little testified that Jackson approached them, brandished what appeared to be a firearm, and demanded their wallets and jewelry. On the other hand, Ochoa testified that Jackson never pointed the gun at him, that he voluntarily gave Jackson some money, and that he would have given Jackson the money even without the accidental display of the gun. And contrary to Jackson's assertion, the prosecutor unambiguously identified the incident the State relied upon in closing argument:
Further, the prosecutor made clear that Ochoa's testimony pertained to Jackson's identity, not to a separate attempted robbery.
Accordingly, the trial court did not err in failing to provide a unanimity instruction.
Jackson argues the prosecutor's "flagrant and ill-intentioned misconduct" requires reversal. Referring to the police reports and Crithfield's and Little's written statements, Jackson contends the prosecutor argued for the admission of hearsay evidence that he knew was clearly inadmissible and for the exclusion of evidence that he knew was admissible.
A defendant cannot raise a claim of prosecutorial misconduct for the first time on appeal unless the misconduct is so "`flagrant and ill intentioned that it cause[d] an enduring and resulting prejudice'" that a curative instruction could not have neutralized.
The prosecutor did not seek to admit the police reports as evidence. Rather, the prosecutor properly used the reports to refresh the recollection of the testifying officers. And, as we have explained, Crithfield's and Little's written statements were not admissible. Finding no misconduct, let alone flagrant and ill intentioned misconduct, we reject Jackson's claim.
Jackson assigns error to the trial court's denial of his motion for a mistrial after witnesses saw Jackson in restraints in the hallway outside the courtroom. Jackson claims this created a dilemma for defense counsel: how to challenge the witnesses about their in-court identifications after they observed the defendant in the hallway without exposing the fact that they observed Jackson in custody, wearing restraints. According to Jackson, this placed his constitutional right to be tried by a jury who did not know he was being held in custody in conflict with his constitutional right to present all relevant, admissible evidence in his defense. We disagree.
Jackson does not explain why his counsel could not cross-examine witnesses about an allegedly tainted courtroom identification by asking about the hallway observations without reference to restraints or custodial status. Also, as noted by the State, the hallway observation does not taint the identification any more than the testifying witnesses observing a single defendant sitting at counsel table. Because Jackson cannot demonstrate prejudice from the hallway observations, we reject his claim.
Jackson claims the trial court demeaned counsel by asking him to repeat his ER 404(b) objection to Ochoa's testimony in front of the jury and then promptly overruling it. But we generally will not consider an issue unsupported by adequate argument or citation to relevant authority.
Jackson alleges that cumulative error deprived him of a fair trial. Because the only error in this case—the admission of ER 404(b) evidence without a balancing test on the record—was harmless, we reject this claim.
In a statement of additional grounds, Jackson argues pro se that the trial court failed to observe the proper procedures for protecting his right not to be tried while incompetent. While the trial court must order an expert evaluation of the defendant's mental condition if there is reason to doubt the defendant's competency to stand trial,
We affirm Jackson's conviction for attempted robbery in the first degree.
GROSSE, and APPELWICK, JJ., concur.
